26 USC 871 - Tax on nonresident alien individuals

U.S Code last checked for updates: Nov 22, 2024

§ 871.

Tax on nonresident alien individuals

(a)

Income not connected with United States business—30 percent tax

(1)

Income other than capital gains

Except as provided in subsection (h), there is hereby imposed for each taxable year a tax of 30 percent of the amount received from sources within the United States by a nonresident alien individual as—

(A)

interest (other than original issue discount as defined in section 1273), dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income,

(B)

gains described in subsection (b) or (c) of section 631,

(C)

in the case of—

(i)

a sale or exchange of an original issue discount obligation, the amount of the original issue discount accruing while such obligation was held by the nonresident alien individual (to the extent such discount was not theretofore taken into account under clause (ii)), and

(ii)

a payment on an original issue discount obligation, an amount equal to the original issue discount accruing while such obligation was held by the nonresident alien individual (except that such original issue discount shall be taken into account under this clause only to the extent such discount was not theretofore taken into account under this clause and only to the extent that the tax thereon does not exceed the payment less the tax imposed by subparagraph (A) thereon), and

(D)

gains from the sale or exchange after October 4, 1966, of patents, copyrights, secret processes and formulas, good will, trademarks, trade brands, franchises, and other like property, or of any interest in any such property, to the extent such gains are from payments which are contingent on the productivity, use, or disposition of the property or interest sold or exchanged,

but only to the extent the amount so received is not effectively connected with the conduct of a trade or business within the United States.

(2)

Capital gains of aliens present in the United States 183 days or more

(3)

Taxation of social security benefits

For purposes of this section and section 1441—

(A)

85 percent of any social security benefit (as defined in section 86(d)) shall be included in gross income (notwithstanding section 207 of the Social Security Act), and

(B)

section 86 shall not apply.

(b)

Income connected with United States business—graduated rate of tax

(1)

Imposition of tax

(2)

Determination of taxable income

(c)

Participants in certain exchange or training programs

(d)

Election to treat real property income as income connected with United States business

(1)

In general

A nonresident alien individual who during the taxable year derives any income—

(A)

from real property held for the production of income and located in the United States, or from any interest in such real property, including (i) gains from the sale or exchange of such real property or an interest therein, (ii) rents or royalties from mines, wells, or other natural deposits, and (iii) gains described in section 631(b) or (c), and

(B)

which, but for this subsection, would not be treated as income which is effectively connected with the conduct of a trade or business within the United States,

may elect for such taxable year to treat all such income as income which is effectively connected with the conduct of a trade or business within the United States. In such case, such income shall be taxable as provided in subsection (b)(1) whether or not such individual is engaged in trade or business within the United States during the taxable year. An election under this paragraph for any taxable year shall remain in effect for all subsequent taxable years, except that it may be revoked with the consent of the Secretary with respect to any taxable year.

(2)

Election after revocation

(3)

Form and time of election and revocation

[(e)

Repealed. Pub. L. 99–514, title XII, § 1211(b)(5), Oct. 22, 1986, 100 Stat. 2536]

(f)

Certain annuities received under qualified plans

(1)

In general

For purposes of this section, gross income does not include any amount received as an annuity under a qualified annuity plan described in section 403(a)(1), or from a qualified trust described in section 401(a) which is exempt from tax under section 501(a), if—

(A)

all of the personal services by reason of which the annuity is payable were either—

(i)

personal services performed outside the United States by an individual who, at the time of performance of such personal services, was a nonresident alien, or

(ii)

personal services described in section 864(b)(1) performed within the United States by such individual, and

(B)

at the time the first amount is paid as an annuity under the annuity plan or by the trust, 90 percent or more of the employees for whom contributions or benefits are provided under such annuity plan, or under the plan or plans of which the trust is a part, are citizens or residents of the United States.

(2)

Exclusion

Income received during the taxable year which would be excluded from gross income under this subsection but for the requirement of paragraph (1)(B) shall not be included in gross income if—

(A)

the recipient’s country of residence grants a substantially equivalent exclusion to residents and citizens of the United States; or

(B)

the recipient’s country of residence is a beneficiary developing country under title V of the Trade Act of 1974 (19 U.S.C. 2461 et seq.).

(g)

Special rules for original issue discount

For purposes of this section and section 881—

(1)

Original issue discount obligation

(A)

In general

(B)

Exceptions

The term “original issue discount obligation” shall not include—

(i)

Certain short-term obligations

(ii)

Tax-exempt obligations

(2)

Determination of portion of original issue discount accruing during any period

(3)

Source of original issue discount

(4)

Stripped bonds

(h)

Repeal of tax on interest of nonresident alien individuals received from certain portfolio debt investments

(1)

In general

(2)

Portfolio interest

For purposes of this subsection, the term “portfolio interest” means any interest (including original issue discount) which—

(A)

would be subject to tax under subsection (a) but for this subsection, and

(B)

is paid on an obligation—

(i)

which is in registered form, and

(ii)

with respect to which—

(I)

the United States person who would otherwise be required to deduct and withhold tax from such interest under section 1441(a) receives a statement (which meets the requirements of paragraph (5)) that the beneficial owner of the obligation is not a United States person, or

(II)

the Secretary has determined that such a statement is not required in order to carry out the purposes of this subsection.

(3)

Portfolio interest not to include interest received by 10-percent shareholders

For purposes of this subsection—

(A)

In general

(B)

10-Percent shareholder

The term “10-percent shareholder” means—

(i)

in the case of an obligation issued by a corporation, any person who owns 10 percent or more of the total combined voting power of all classes of stock of such corporation entitled to vote, or

(ii)

in the case of an obligation issued by a partnership, any person who owns 10 percent or more of the capital or profits interest in such partnership.

(C)

Attribution rules

For purposes of determining ownership of stock under subparagraph (B)(i) the rules of section 318(a) shall apply, except that—

(i)

section 318(a)(2)(C) shall be applied without regard to the 50-percent limitation therein,

(ii)

section 318(a)(3)(C) shall be applied—

(I)

without regard to the 50-percent limitation therein; and

(II)

in any case where such section would not apply but for subclause (I), by considering a corporation as owning the stock (other than stock in such corporation) which is owned by or for any shareholder of such corporation in that proportion which the value of the stock which such shareholder owns in such corporation bears to the value of all stock in such corporation, and

(iii)

any stock which a person is treated as owning after application of section 318(a)(4) shall not, for purposes of applying paragraphs (2) and (3) of section 318(a), be treated as actually owned by such person.

Under regulations prescribed by the Secretary, rules similar to the rules of the preceding sentence shall be applied in determining the ownership of the capital or profits interest in a partnership for purposes of subparagraph (B)(ii).

(4)

Portfolio interest not to include certain contingent interest

For purposes of this subsection—

(A)

In general

Except as otherwise provided in this paragraph, the term “portfolio interest” shall not include—

(i)

any interest if the amount of such interest is determined by reference to—

(I)

any receipts, sales or other cash flow of the debtor or a related person,

(II)

any income or profits of the debtor or a related person,

(III)

any change in value of any property of the debtor or a related person, or

(IV)

any dividend, partnership distributions, or similar payments made by the debtor or a related person, or

(ii)

any other type of contingent interest that is identified by the Secretary by regulation, where a denial of the portfolio interest exemption is necessary or appropriate to prevent avoidance of Federal income tax.

(B)

Related person

(C)

Exceptions

Subparagraph (A)(i) shall not apply to—

(i)

any amount of interest solely by reason of the fact that the timing of any interest or principal payment is subject to a contingency,

(ii)

any amount of interest solely by reason of the fact that the interest is paid with respect to nonrecourse or limited recourse indebtedness,

(iii)

any amount of interest all or substantially all of which is determined by reference to any other amount of interest not described in subparagraph (A) (or by reference to the principal amount of indebtedness on which such other interest is paid),

(iv)

any amount of interest solely by reason of the fact that the debtor or a related person enters into a hedging transaction to manage the risk of interest rate or currency fluctuations with respect to such interest,

(v)

any amount of interest determined by reference to—

(I)

changes in the value of property (including stock) that is actively traded (within the meaning of section 1092(d)) other than property described in section 897(c)(1) or (g),

(II)

the yield on property described in subclause (I), other than a debt instrument that pays interest described in subparagraph (A), or stock or other property that represents a beneficial interest in the debtor or a related person, or

(III)

changes in any index of the value of property described in subclause (I) or of the yield on property described in subclause (II), and

(vi)

any other type of interest identified by the Secretary by regulation.

(D)

Exception for certain existing indebtedness

Subparagraph (A) shall not apply to any interest paid or accrued with respect to any indebtedness with a fixed term—

(i)

which was issued on or before April 7, 1993, or

(ii)

which was issued after such date pursuant to a written binding contract in effect on such date and at all times thereafter before such indebtedness was issued.

(5)

Certain statements

A statement with respect to any obligation meets the requirements of this paragraph if such statement is made by—

(A)

the beneficial owner of such obligation, or

(B)

a securities clearing organization, a bank, or other financial institution that holds customers’ securities in the ordinary course of its trade or business.

The preceding sentence shall not apply to any statement with respect to payment of interest on any obligation by any person if, at least one month before such payment, the Secretary has published a determination that any statement from such person (or any class including such person) does not meet the requirements of this paragraph.

(6)

Secretary may provide subsection not to apply in cases of inadequate information exchange

(A)

In general

If the Secretary determines that the exchange of information between the United States and a foreign country is inadequate to prevent evasion of the United States income tax by United States persons, the Secretary may provide in writing (and publish a statement) that the provisions of this subsection shall not apply to payments of interest to any person within such foreign country (or payments addressed to, or for the account of, persons within such foreign country) during the period—

(i)

beginning on the date specified by the Secretary, and

(ii)

ending on the date that the Secretary determines that the exchange of information between the United States and the foreign country is adequate to prevent the evasion of United States income tax by United States persons.

(B)

Exception for certain obligations

(7)

Registered form

(i)

Tax not to apply to certain interest and dividends

(1)

In general

(2)

Amounts to which paragraph (1) applies

The amounts described in this paragraph are as follows:

(A)

Interest on deposits, if such interest is not effectively connected with the conduct of a trade or business within the United States.

(B)

The active foreign business percentage of—

(i)

any dividend paid by an existing 80/20 company, and

(ii)

any interest paid by an existing 80/20 company.

(C)

Income derived by a foreign central bank of issue from bankers’ acceptances.

(D)

Dividends paid by a foreign corporation which are treated under section 861(a)(2)(B) as income from sources within the United States.

(3)

Deposits

For purposes of paragraph (2), the term “deposits” means amounts which are—

(A)

deposits with persons carrying on the banking business,

(B)

deposits or withdrawable accounts with savings institutions chartered and supervised as savings and loan or similar associations under Federal or State law, but only to the extent that amounts paid or credited on such deposits or accounts are deductible under section 591 (determined without regard to sections 265 and 291) in computing the taxable income of such institutions, and

(C)

amounts held by an insurance company under an agreement to pay interest thereon.

(j)

Exemption for certain gambling winnings

(k)

Exemption for certain dividends of regulated investment companies

(1)

Interest-related dividends

(A)

In general

(B)

Exceptions

Subparagraph (A) shall not apply—

(i)

to any interest-related dividend received from a regulated investment company by a person to the extent such dividend is attributable to interest (other than interest described in subparagraph (E)(i) or (iii)) received by such company on indebtedness issued by such person or by any corporation or partnership with respect to which such person is a 10-percent shareholder,

(ii)

to any interest-related dividend with respect to stock of a regulated investment company unless the person who would otherwise be required to deduct and withhold tax from such dividend under chapter 3 receives a statement (which meets requirements similar to the requirements of subsection (h)(5)) that the beneficial owner of such stock is not a United States person, and

(iii)

to any interest-related dividend paid to any person within a foreign country (or any interest-related dividend payment addressed to, or for the account of, persons within such foreign country) during any period described in subsection (h)(6) with respect to such country.

Clause (iii) shall not apply to any dividend with respect to any stock which was acquired on or before the date of the publication of the Secretary’s determination under subsection (h)(6).

(C)

Interest-related dividend

For purposes of this paragraph—

(i)

In general

(ii)

Excess reported amounts

If the aggregate reported amount with respect to the company for any taxable year exceeds the qualified net interest income of the company for such taxable year, an interest related dividend is the excess of—

(I)

the reported interest related dividend amount, over

(II)

the excess reported amount which is allocable to such reported interest related dividend amount.

(iii)

Allocation of excess reported amount

(I)

In general

(II)

Special rule for noncalendar year taxpayers

(iv)

Definitions

For purposes of this subparagraph—

(I)

Reported interest related dividend amount

(II)

Excess reported amount

(III)

Aggregate reported amount

(IV)

Post-December reported amount

(D)

Qualified net interest income

(E)

Qualified interest income

For purposes of subparagraph (D), the term “qualified interest income” means the sum of the following amounts derived by the regulated investment company from sources within the United States:

(i)

Any amount includible in gross income as original issue discount (within the meaning of section 1273) on an obligation payable 183 days or less from the date of original issue (without regard to the period held by the company).

(ii)

Any interest includible in gross income (including amounts recognized as ordinary income in respect of original issue discount or market discount or acquisition discount under part V of subchapter P and such other amounts as regulations may provide) on an obligation which is in registered form; except that this clause shall not apply to—

(I)

any interest on an obligation issued by a corporation or partnership if the regulated investment company is a 10-percent shareholder in such corporation or partnership, and

(II)

any interest which is treated as not being portfolio interest under the rules of subsection (h)(4).

(iii)

Any interest referred to in subsection (i)(2)(A) (without regard to the trade or business of the regulated investment company).

(iv)

Any interest-related dividend includable in gross income with respect to stock of another regulated investment company.

(F)

10-percent shareholder

(2)

Short-term capital gain dividends

(A)

In general

(B)

Exception for aliens taxable under subsection (a)(2)

(C)

Short-term capital gain dividend

For purposes of this paragraph—

(i)

In general

(ii)

Excess reported amounts

If the aggregate reported amount with respect to the company for any taxable year exceeds the qualified short-term gain of the company for such taxable year, the term “short-term capital gain dividend” means the excess of—

(I)

the reported short-term capital gain dividend amount, over

(II)

the excess reported amount which is allocable to such reported short-term capital gain dividend amount.

(iii)

Allocation of excess reported amount

(I)

In general

(II)

Special rule for noncalendar year taxpayers

(iv)

Definitions

For purposes of this subparagraph—

(I)

Reported short-term capital gain dividend amount

(II)

Excess reported amount

(III)

Aggregate reported amount

(IV)

Post-December reported amount

(D)

Qualified short-term gain

(E)

Certain distributions

In the case of a distribution to which section 897 does not apply by reason of the second sentence of section 897(h)(1), the amount which would be treated as a short-term capital gain dividend to the shareholder (without regard to this subparagraph)—

(i)

shall not be treated as a short-term capital gain dividend, and

(ii)

shall be included in such shareholder’s gross income as a dividend from the regulated investment company.

(l)

Rules relating to existing 80/20 companies

For purposes of this subsection and subsection (i)(2)(B)—

(1)

Existing 80/20 company

(A)

In general

The term “existing 80/20 company” means any corporation if—

(i)

such corporation met the 80-percent foreign business requirements of section 861(c)(1) (as in effect before the date of the enactment of this subsection) for such corporation’s last taxable year beginning before January 1, 2011,

(ii)

such corporation meets the 80-percent foreign business requirements of subparagraph (B) with respect to each taxable year after the taxable year referred to in clause (i), and

(iii)

there has not been an addition of a substantial line of business with respect to such corporation after the date of the enactment of this subsection.

(B)

Foreign business requirements

(i)

In general

(ii)

Active foreign business income

For purposes of clause (i), the term “active foreign business income” means gross income which—

(I)

is derived from sources outside the United States (as determined under this subchapter), and

(II)

is attributable to the active conduct of a trade or business in a foreign country or possession of the United States.

(iii)

Testing period

(iv)

Transition rule

In the case of a taxable year for which the testing period includes 1 or more taxable years beginning before January 1, 2011—

(I)

a corporation meets the 80-percent foreign business requirements of this subparagraph if and only if the weighted average of—

(aa)

the percentage of the corporation’s gross income from all sources that is active foreign business income (as defined in subparagraph (B) of section 861(c)(1) (as in effect before the date of the enactment of this subsection)) for the portion of the testing period that includes taxable years beginning before January 1, 2011, and

(bb)

the percentage of the corporation’s gross income from all sources that is active foreign business income (as defined in clause (ii) of this subparagraph) for the portion of the testing period, if any, that includes taxable years beginning on or after January 1, 2011,

(II)

the active foreign business percentage for such taxable year shall equal the weighted average percentage determined under subclause (I).

is at least 80 percent, and

(2)

Active foreign business percentage

Except as provided in paragraph (1)(B)(iv), the term “active foreign business percentage” means, with respect to any existing 80/20 company, the percentage which—

(A)

the active foreign business income of such company for the testing period, is of

(B)

the gross income of such company for the testing period from all sources.

(3)

Aggregation rules

For purposes of applying paragraph (1) (other than subparagraphs (A)(i) and (B)(iv) thereof) and paragraph (2)—

(A)

In general

(B)

Subsidiaries

(4)

Regulations

(m)

Treatment of dividend equivalent payments

(1)

In general

(2)

Dividend equivalent

For purposes of this subsection, the term “dividend equivalent” means—

(A)

any substitute dividend made pursuant to a securities lending or a sale-repurchase transaction that (directly or indirectly) is contingent upon, or determined by reference to, the payment of a dividend from sources within the United States,

(B)

any payment made pursuant to a specified notional principal contract that (directly or indirectly) is contingent upon, or determined by reference to, the payment of a dividend from sources within the United States, and

(C)

any other payment determined by the Secretary to be substantially similar to a payment described in subparagraph (A) or (B).

(3)

Specified notional principal contract

For purposes of this subsection, the term “specified notional principal contract” means—

(A)

any notional principal contract if—

(i)

in connection with entering into such contract, any long party to the contract transfers the underlying security to any short party to the contract,

(ii)

in connection with the termination of such contract, any short party to the contract transfers the underlying security to any long party to the contract,

(iii)

the underlying security is not readily tradable on an established securities market,

(iv)

in connection with entering into such contract, the underlying security is posted as collateral by any short party to the contract with any long party to the contract, or

(v)

such contract is identified by the Secretary as a specified notional principal contract,

(B)

in the case of payments made after the date which is 2 years after the date of the enactment of this subsection, any notional principal contract unless the Secretary determines that such contract is of a type which does not have the potential for tax avoidance.

(4)

Definitions

For purposes of paragraph (3)(A)—

(A)

Long party

(B)

Short party

(C)

Underlying security

(5)

Payments determined on gross basis

(6)

Prevention of over-withholding

(7)

Coordination with chapters 3 and 4

(n)

Cross references

(1)

For tax treatment of certain amounts distributed by the United States to nonresident alien individuals, see section 402(e)(2).

(2)

For taxation of nonresident alien individuals who are expatriate United States citizens, see section 877.

(3)

For doubling of tax on citizens of certain foreign countries, see section 891.

(4)

For adjustment of tax in case of nationals or residents of certain foreign countries, see section 896.

(5)

For withholding of tax at source on nonresident alien individuals, see section 1441.

(6)

For election to treat married nonresident alien individual as resident of United States in certain cases, see subsections (g) and (h) of section 6013.

(7)

For special tax treatment of gain or loss from the disposition by a nonresident alien individual of a United States real property interest, see section 897.

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cite as: 26 USC 871