Non-Repatriable capital gain in India - for a US Citizen living in the US - BLOCKED CURRENCY

I visited your website recently.   I have a need to discuss international tax matter with you.   I am a US citizen - dual citizen of India. I have been residing in US since 1996.   Prior to coming to USA, I had purchases some stocks in India (using Indian rupees) back in 1993. This stocks have appreciated in value and I did some sale recently. There is no long-term capital gain tax in India (zero). Also, these income in India is held in Non-Repatriable NRO account (Reserve Bank of India DOES NOT allow these funds to be repatriated out of India since it was originally bought using Rupees income in India). I file income tax return in India regularly and there was no capital gain tax from the above transaction. Question is - do I have to pay US income tax (15%) on this capital gain or is there an exception to worldwide income rule here ? I have been told by some people (not a CPA) that IRS does not tax you in such cases where money is non-repatriable. Hypothetically, one could make non-Repat gain in India for $100M and at 15% rate if IRS asks him to pay $15M tax how could he even pay that kind of tax in a lifetime if he is simply salaried employee making $100K per year in the US? Someone even guessed (can't rely) that tax needs to  be reported to IRS but it becomes payable only when funds in India become repatriable.       Can you please advise.   Thanks --------------------------------------------------------------
david ingram replies:

This situation used to be covered since 1974 by Revenue Ruling 74-351.  However, this ruling was declared partially obsolete in May, 2007.

1.    The profit is absolutely taxable to you as a US citizen whether you are physically in the United states or living in India.  US citizens are taxale in the US on their worldwide income no matter where they live and no matter where the money is paid from.  If they are truly non-resident, they may be eligible to exempt up to slightly over $80,000 of earned income (from services NOT investment).

2.    As the holder of this foreign financial accouont in India, you shouldhave been filing Treasury Form TDF 90-22.1  which you can find at


failure to file this form (as you can see by reading the fine print at the bottom of the form) is a minimum fine of $10,000 (as of June 20, 2007) to a maximum fine of $500,000 PLUS up to 5 years in jail.

3.   If the currency is blocked, you can elect to defer the tax until

    a.    you actually get the money unblocked OR
    b.    you actually use the money by spending it on a trip to India or giving it to your mother or using it in some other manner.  For instance, you might have someone give you $10,000 US in the States and then they use the $10,000 worth of rupees when they get to India.  The deferral is taxed at that time.

4.   Note that extending the payment can increase the tax if the value of the currency increases relative to the US dollar as has happened in the last two or three years.

Assuming you are using the money somehow in India, you are likely better off paying the tax to the US with other funds.  Keeping track of the deferral process can be a bookkeeping nightmare and is NOT worth it for small sums. �