Can we split a gift if only one of us is a US citizen?
The election is not open to every couple. It depends on the status of both spouses, not only the donor, so a couple where one is a US person and the other is not will usually find the route closed to them. That matters, because the planning they were given may have assumed it was open. The consequence is worth understanding before the gift is made rather than after: without the election the gift is treated as made entirely by the spouse who made it, and it is that spouse's reporting position and exemption that carry all of it.
Do both spouses have to file to split a gift?
The election is joint and it is made on returns, so a gift split on one spouse's return and nowhere else is not split. Both spouses signify consent, and where each has gifts of their own to report each files. The trap is the spouse who has made no gifts at all and therefore sees no reason to file anything. If the election is being relied on, that spouse's return is part of the mechanism. Check too that the consent covers the year in question, because the election is made year by year rather than once for a family.
We gave money from a joint account — is that already split?
Not necessarily, and this is a common misunderstanding about it. Whose gift it is depends on whose funds were used and what the account arrangements actually are, not on whose name is printed on the cheque. A joint account holding one spouse's earnings can still be making that spouse's gift. The election exists precisely because the default answer is often unhelpful. If the intention is that each spouse gave half, that has to be either true on the facts and evidenced, or achieved by making the election — and the two routes leave very different files behind.
Does gift splitting apply to a gift of property in India?
The election is a US mechanism and it changes a US reporting and exemption position. It says nothing about how the transfer is treated where the property sits, so the question has two halves. On the US side, whether the gift is within gift tax at all depends on the donor's status and, for someone who is not a US person, on where the asset is treated as situated. On the Indian side the transfer is examined under its own rules, including how the recipient's cost is fixed for a later sale. A file that answers one half and leaves the other open is the usual source of trouble years afterwards.
Once we split one gift, does it apply to all gifts that year?
That is the usual effect, and it is why the election is not a free option to be exercised gift by gift. Consenting for a year reaches the gifts made in that year rather than the single transfer you had in mind, so a couple who made other transfers — a loan forgiven, help with a deposit, a payment into a trust — need those on the table before consenting. List the year's transfers first, then decide. Reversing a considered election afterwards is not a straightforward matter.
Can we split a gift made before we were married?
No, and the boundary is the point rather than a technicality. The election rests on the couple's status at the time the gift was made, so transfers made before the marriage sit outside it, and so can transfers made in a year where the marriage began or ended part way through. Where the timing is close, the date of the gift has to be established from documents rather than assumed. The day a transfer was agreed and the day it was completed are often different, and here that difference can decide whether the election is available at all.
Branch or subsidiary — which should we use to expand?
A branch keeps one taxpayer: results consolidate at home, losses are usable sooner, and the exposure is that the branch is a permanent establishment whose profit the host country taxes, sometimes with a branch tax on repatriation. A subsidiary is a separate taxpayer with limited liability and local rates, at the cost of withholding on dividends home and transfer pricing on everything between them. The deciding facts are usually expected losses, liability and exit plans. See branch against subsidiary.
How do I actually stop being taxed twice?
In this order. Fix your residence under each country's own rules, and if both claim you, apply the treaty tie-breaker. Identify where each type of income is sourced. Read the article that covers that income type, because it decides who taxes and at what maximum rate. Then claim the relief on the residence-country return, with proof of the foreign tax. Most of the tax people lose to double taxation is lost at the last step, not the first. See how double taxation is relieved.
