New Brunswick Landlord with Kansas Rental Property

⚠️ Note (updated 2026-05-18, body text corrected) — §871(d) election mechanism and Bank of Canada rate corrected in body text below. Supplemental T1135 penalty note (point 3) remains accurate.

1. Section 871(d) election is NOT made via Form 8288-B. The §871(d) election (which converts your US rental income from FDAP — 30% flat withholding on gross rent with no deductions — to ECI, where you deduct expenses on Schedule E and pay tax on net) is made by attaching a written statement to your first Form 1040-NR. Separately, to stop the 30% withholding at source, you provide your property manager with Form W-8ECI (Certificate of Foreign Person's Claim That Income Is Effectively Connected). Form 8288-B is the FIRPTA Withholding Certificate used at SALE only — applied for 90+ days before closing to reduce the default 15% gross-price withholding on a property sale. The two forms apply to entirely different scenarios.

2. 2025 Bank of Canada annual average rate is 1.3978 CAD per USD (not 1.36). Apply consistently across all USD-to-CAD conversions on T776 and T1135.

3. T1135 penalty structure. Late filing: $25/day, max $2,500. Failure to file: up to $24,000/year. False statement or omission: 5% of unreported property cost with a $24,000 minimum penalty. Failing to file T1135 also extends CRA's reassessment period from 3 to 6 years for related tax years.

Overview: Why This Combination Matters

As a New Brunswick resident owning rental property in Kansas, you're subject to tax obligations in three separate jurisdictions: Canada (federal and provincial), the United States (federal), and the state of Kansas. Each jurisdiction claims taxing rights on your rental income, and without proper planning, you could face double taxation, penalties, and missed deductions.

Kansas presents specific challenges because it requires non-resident landlords to file a state income tax return and pay state tax on rental income at a 5.7% rate. Additionally, Kansas property taxes average 1.41% of assessed value—higher than several neighboring states—which creates significant deduction opportunities.

The key to managing this complexity is understanding the filing sequence: you report to the CRA first (Canadian tax residence), claim a foreign tax credit for US taxes paid, and coordinate with IRS filing to avoid withholding penalties and interest.

Canadian Tax Obligations (CRA)

Reporting Rental Income on Form T776

You must report all gross rental income from your Kansas property on the CRA's Form T776 (Statement of Real Estate Rentals). This form includes:

• Gross rental income (in Canadian dollars, converted at the Bank of Canada average annual rate for 2025: 1 USD = 1.3978 CAD)
• Allowable expenses (mortgage interest, property tax, property management fees, insurance, repairs, utilities you pay, capital cost allowance if applicable)
• Net rental income (taxable in Canada)

Do not net US taxes paid against Canadian income on T776. Instead, claim a foreign tax credit (see below).

Form T1135: Reporting Foreign Property

If the fair market value of your Kansas property exceeded CAD $100,000 at any point during the tax year, you must file Form T1135 (Foreign Income Verification Statement). This form requires:

• Property address and legal description
• Fair market value in Canadian dollars
• Gross income earned during the year
• Country where property is located (USA)

Non-filing or late filing of T1135 can result in penalties starting at $25 per day (up to $2,500) for the first failure and $50 per day (up to $5,000) for subsequent failures, even if no additional tax is owing.

Foreign Tax Credit (FTC)

This is your most important tool for avoiding double taxation. You claim a non-business income foreign tax credit on line 40500 of your personal tax return (Schedule 1).

How it works:

1. Calculate your Canadian tax on worldwide income
2. Calculate US/Kansas tax paid (from your IRS Form 1040-NR)
3. Claim the lesser of:
   • Actual US/Kansas taxes paid, or
   • Canadian tax attributable to that foreign income

Example: If you earned USD $10,000 in Kansas rental income (CAD $13,600), paid USD $2,100 in combined US federal and Kansas state tax, but your Canadian marginal tax rate on that income is 43%, you cannot claim the full USD $2,100. You'd be limited to approximately CAD $5,848 (43% × CAD $13,600). In this scenario, the US taxes paid exceed the Canadian tax on that income, and you've effectively paid the higher rate.

The foreign tax credit is claimed as a non-refundable credit, meaning it reduces tax owing but cannot generate a refund.

US Federal Tax Obligations (IRS)

Obtaining an ITIN

To file US tax returns, you need an Individual Taxpayer Identification Number (ITIN). You cannot use your Canadian Social Insurance Number (SIN). Apply using IRS Form W-7 (Application for IRS Individual Taxpayer Identification Number) submitted with:

• A completed Form W-7
• A copy of your passport (certified or notarized)
• Proof of Canadian residency (utility bill, lease, property tax statement)

Mail to the IRS at the address on Form W-7. Processing takes 6–10 weeks. Once issued, your ITIN remains valid indefinitely for tax filing purposes (though it may expire for other IRS purposes after five years of non-use).

Filing Form 1040-NR (U.S. Nonresident Alien Income Tax Return)

You must file Form 1040-NR annually, even if you have no federal tax owing, because:

1. It establishes your filing compliance with the IRS
2. It claims the Section 871(d) election to avoid the 30% withholding on gross rents
3. It reports all expenses and depreciation to reduce taxable income

Key differences from Form 1040 (resident returns):

• Nonresident aliens use Form 1040-NR, not the standard 1040
• You report only income "effectively connected" with a US business (your rental activity qualifies)
• The standard deduction for nonresidents is lower or not available, depending on tax treaty status
• You report income on Schedule E (Supplemental Income and Loss) and carry it to 1040-NR

Schedule E Reporting

Attach Schedule E (Supplemental Income and Loss from Rental Real Estate and Other Sources) to your 1040-NR. Report:

• Rental income (gross, as received)
• Expenses:
  • Property tax (Kansas: ~1.41% of assessed value annually)
  • Mortgage interest (if any)
  • Property management fees
  • Repairs and maintenance
  • Insurance
  • HOA fees (if applicable)
  • Utilities
  • Advertising for tenants
  • Legal and professional fees
• Depreciation (building only, over 27.5 years)

Calculate net rental income, which is your "effectively connected income" (ECI).

Section 871(d) Election: Avoiding 30% Withholding

By default, US financial institutions withhold 30% of gross rents on payments to foreign non-residents. This is not a tax payment—it's a withholding requirement.

Section 871(d) election allows you to be taxed only on net income (after expenses) instead of gross income, provided you:

1. File Form 1040-NR reporting net rental income
2. File it on time (including extensions)
3. Make the election on §871(d) election statement or attach a statement to Form 1040-NR declaring the election

Once filed, this election applies to all future years unless you revoke it. The benefit: instead of 30% withholding on gross rents, you're taxed on net income at graduated federal rates (10% to 37% in 2025, depending on your total income).

Example without election: USD $10,000 annual rent = USD $3,000 withheld Example with election: USD $10,000 rent minus USD $4,000 expenses (property tax, interest, insurance) = USD $6,000 net income, taxed at your marginal federal rate (likely 22–24%), rather than defaulting to 30% withholding.

Kansas State Tax Obligations

Kansas Nonresident Income Tax Return (Form K-40NR or K-40)

Kansas requires all nonresidents earning Kansas source income to file Form K-40NR or Form K-40 (if you elect to file the resident form). Kansas taxes nonresident rental income at its flat rate of 5.7% (as of 2025).

You must file by April 15 (same as federal) unless you have an IRS extension, in which case you may file by October 15.

Reporting Requirements on Kansas Return

• Kansas source income (rental income, converted to USD, then to CAD for reporting purposes)
• Kansas source deductions (property tax paid, interest, depreciation, repairs, etc.)
• The Kansas return produces a Kansas tax liability, which you claim as a foreign tax credit on your Canadian return

Kansas Property Tax Deduction

Kansas property tax is your single largest deductible expense. The statewide effective rate is approximately 1.41% of assessed value, though individual counties vary. A USD $200,000 property could generate USD $2,820 in annual property tax—a substantial deduction on both your Kansas and federal returns.

Selling the Property: FIRPTA

If you sell the Kansas property, the Foreign Investment in Real Property Tax Act (FIRPTA) applies. Here's what you need to know:

• 15% federal withholding is required on the sale price (FIRPTA withholding)
• The buyer's closing attorney or title company withholds 15% and sends it to the IRS
• You must report the sale on Form 8288 (U.S.

Estimate your FIRPTA withholding at sale: Use the FIRPTA Withholding Calculator to see how much the buyer must hold back at closing, and whether filing Form 8288-B in advance would reduce it.