Nonresident Aliens - Income Exclusions

Resident and nonresident aliens are allowed exclusions from gross income if they meet certain conditions. An exclusion from gross income is generally income you receive that is not included in your U.S. income and is not subject to U.S. tax. This chapter covers some of the more common exclusions allowed to nonresident aliens.

Nonresident aliens can exclude the following items from their gross income.

Interest

U.S. source interest income that is not connected with a U.S. trade or business is excluded from income if it is from:

1. Deposits (including certificates of deposit) with persons in the banking business,
2. Deposits or withdrawable accounts with mutual savings banks, cooperative banks, credit unions, domestic building and loan associations, and other savings institutions chartered and supervised as savings and loan or similar associations under federal or state law (if the interest paid or credited can be deducted by the association), and
3. Amounts held by an insurance company under an agreement to pay interest on them.

Government obligations. Interest on obligations of a state or political subdivision, the District of Columbia, or a U.S. possession, generally is not included in income. However, interest on certain private activity bonds, arbitrage bonds, and certain bonds not in registered form is included in income.

Portfolio interest. U.S. source interest income that is not connected with a U.S. trade or business and that is portfolio interest on obligations issued after July 18, 1984, is excluded from income. Portfolio interest is interest (including original issue discount) that is paid on obligations:

1. Not in registered form (bearer obligations) that are sold only to foreign investors, and the interest on which is payable only outside the United States and its possessions, and that has on its face a statement that any U.S. person holding the obligation will be subject to limitations under the U.S. income tax laws,
2. In registered form that are targeted to foreign markets and the interest on which is paid through financial institutions outside the United States, or
3. In registered form that are not targeted to foreign markets, if you furnish the payer of the interest (or the withholding agent) a statement that you are not a U.S. person. You can make this statement on a Form W-8 or on a substitute form similar to Form W-8. In either case, the statement must be signed under penalties of perjury, must certify that you are not a U.S. citizen or resident, and must include your name and address.

Portfolio interest does not include interest that you receive on an obligation issued by a corporation of which you own, directly or indirectly, 10% or more of the total voting power of all classes of voting stock. Portfolio interest does not include interest that you receive on an obligation issued by a partnership of which you own, directly or indirectly, 10% or more of the capital or profits interests.

Portfolio interest does not include contingent interest. Contingent interest is either of the following:

1. Interest that is determined by reference to:
   1. Any receipts, sales, or other cash flow of the debtor or related person,
   2. Income or profits of the debtor or related person,
   3. Any change in value of any property of the debtor or a related person, or
   4. Any dividend, partnership distributions, or similar payments made by the debtor or a related person.
2. Any other type of contingent interest that is identified by the Secretary of the Treasury in regulations.

For the definition of "related person" in connection with any contingent interest, and for the exceptions that apply to interest described in item (1), see subparagraphs (B) and (C) of Internal Revenue Code section 871(h)(4).

Portfolio interest includes any contingent interest paid or accrued on any indebtedness with a fixed term that was issued:

1. On or before April 7, 1993, or
2. After April 7, 1993, pursuant to a written binding contract in effect on that date and at all times thereafter before that indebtedness was issued.

Services Performed for Foreign Employer

If you were paid by a foreign employer, your U.S. source income may be exempt from U.S. tax, but only if you meet one of the situations discussed next.

Employees of foreign persons, organizations, or offices. If three conditions exist, income for personal services performed in the United States as a nonresident alien is not considered to be from U.S. sources and is tax exempt. If you do not meet all three conditions, your income from personal services performed in the United States is U.S. source income and is taxed.

The three conditions are:

1. You perform personal services as an employee of or under a contract with a nonresident alien individual, foreign partnership, or foreign corporation, not engaged in a trade or business in the United States; or you work for an office or place of business maintained in a foreign country or possession of the United States by a U.S. corporation, a U.S. partnership, or a U.S. citizen or resident,
2. You perform these services while you are a nonresident alien temporarily present in the United States for a period or periods of not more than a total of 90 days during the tax year, and
3. Your pay for these services is not more than $3,000.

If your pay for these services is more than $3,000, the entire amount is income from a trade or business within the United States. To find if your pay is more than $3,000, do not include any amounts you get from your employer for advances or reimbursements of business travel expenses, if you were required to and did account to your employer for those expenses. If the advances or reimbursements are more than your expenses, include the excess in your pay for these services.

A day means a calendar day during any part of which you are physically present in the United States.

Example 1. During 1999, Henry Smythe, a nonresident alien from a nontreaty country, worked for an overseas office of a domestic partnership. Henry, who uses the calendar year as his tax year, was temporarily present in the United States for 60 days during 1999 performing personal services for the overseas office of the partnership. That office paid him a total gross salary of $2,800 for those services. During 1999, he was not engaged in a trade or business in the United States. The salary is not considered U.S. source income and is exempt from U.S. tax.

Example 2. The facts are the same as in Example 1, except that Henry's total gross salary for the services performed in the United States during 1999 was $4,500. He received $2,875 in 1999, and $1,625 in 2000. During 1999, he was engaged in a trade or business in the United States because the compensation for his personal services in the United States was more than $3,000. Henry's salary is U.S. source income and is taxed.

Crew members. Compensation for services performed by a nonresident alien in connection with the individual's temporary presence in the United States as a regular crew member of a foreign vessel engaged in transportation between the United States and a foreign country or U.S. possession is not U.S. source income and is exempt from U.S. tax.

Students and exchange visitors. Nonresident alien students and exchange visitors present in the United States under section 101(a)(15)(F), (J), or (Q) of the Immigration and Nationality Act can exclude from gross income pay received from a foreign employer.

This group includes bona fide students, scholars, trainees, teachers, professors, research assistants, specialists, or leaders in a field of specialized knowledge or skill, or persons of similar description. It also includes the alien's spouse and minor children if they come with the alien or come later to join the alien.

A nonresident alien temporarily present in the United States under section 101(a)(15)(J) of the Immigration and Nationality Act includes an alien individual entering the United States as an exchange visitor under the Mutual Educational and Cultural Exchange Act of 1961.

Foreign employer. A foreign employer is:

1. A nonresident alien individual, foreign partnership, or foreign corporation, or
2. An office or place of business maintained in a foreign country or in a U.S. possession by a domestic corporation, a domestic partnership, or an individual who is a citizen or resident of the United States.

The term "foreign employer" does not include a foreign government.

Income from certain annuities. Do not include in income any annuity received under a qualified annuity plan or from a qualified trust exempt from U.S. income tax if:

1. You receive the annuity only because of personal services performed outside the United States while you were a nonresident alien; or personal services performed inside the United States while you were a nonresident alien that meets the three conditions described in Employees of foreign persons, organizations, or offices, earlier, and
2. At the time the first amount is paid as an annuity under the plan (or by the trust), 90% or more of the employees for whom contributions or benefits are provided under the annuity plan (or under the plan of which the trust is a part) are citizens or residents of the United States.

If the annuity qualifies under condition (1) but not condition (2) above, you do not have to include the amount in income if:

1. You are a resident of a country that gives a substantially equal exclusion to U.S. citizens and residents, or
2. You are a resident of a beneficiary developing country under the Trade Act of 1974.

If you are not sure whether the annuity is from a qualified annuity plan or qualified trust, ask the person who made the payment.

Income affected by treaties. Income of any kind that is exempt from U.S. tax under a treaty to which the United States is a party is excluded from your gross income. Income on which the tax is only limited by treaty, however, is included in gross income.