Is gift tax owed when giving money from a non-US person to a US person if the money is originating in a US bank account?

Question

A Person is not a US Person but maintains a bank account in the US when the person was a tourist in the US. This person does not work in the US nor ever stay in the US for more than 10 days in a year. The funding source for that bank account is from his own personal bank account in his home country (so the money is not made in the US).

If he chooses to gift the money sitting in the US bank account, say $100,000 to a US personal, would he have to pay any gift tax? Assuming that his original home country doesn't have any gift tax.

Answer 1

Since your question is very particular on the details, I'm assuming you did your research. Unfortunately you won't get a better answer here than what you've found on the Internet already.

This is not a clear-cut situation as the situation you're describing has been a source to some confusion. Mainly, the question is whether the US bank account is a tangible asset or not. To the best of my knowledge, this has not yet been settled, so I suggest going to a professional tax adviser (EA/CPA licensed in the US) who'd advise you the best course of action.

I think it would be safer to transfer the money directly from the foreign account to the US beneficiary (although even then, if the IRS decides to start digging, it may claim that you're essentially disguising a transfer from a US account, so I suggest talking to a professional before doing anything).

In any case, the US recipient will need to report the gift (if it is $100K or more) using the form 3520 with his/her tax return.