Subchapter A - Nonresident Aliens and Foreign Corporations

26 USC 1441 - Withholding of tax on nonresident aliens

(a) General rule
Except as otherwise provided in subsection (c), all persons, in whatever capacity acting (including lessees or mortgagors of real or personal property, fiduciaries, employers, and all officers and employees of the United States) having the control, receipt, custody, disposal, or payment of any of the items of income specified in subsection (b) (to the extent that any of such items constitutes gross income from sources within the United States), of any nonresident alien individual or of any foreign partnership shall (except as otherwise provided in regulations prescribed by the Secretary under section 874) deduct and withhold from such items a tax equal to 30 percent thereof, except that in the case of any item of income specified in the second sentence of subsection (b), the tax shall be equal to 14 percent of such item.

(b) Income items
The items of income referred to in subsection (a) are interest (other than original issue discount as defined in section 1273), dividends, rent, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, or other fixed or determinable annual or periodical gains, profits, and income, gains described in section 631 (b) or (c), amounts subject to tax under section 871 (a)(1)(C), gains subject to tax under section 871 (a)(1)(D), and gains on transfers described in section 1235 made on or before October 4, 1966. The items of income referred to in subsection (a) from which tax shall be deducted and withheld at the rate of 14 percent are amounts which are received by a nonresident alien individual who is temporarily present in the United States as a nonimmigrant under subparagraph (F), (J), (M), or (Q) of section 101(a)(15) of the Immigration and Nationality Act and which are

(1) incident to a qualified scholarship to which section 117 (a) applies, but only to the extent includible in gross income; or

(2) in the case of an individual who is not a candidate for a degree at an educational organization described in section 170 (b)(1)(A)(ii), granted by

(A) an organization described in section 501 (c)(3) which is exempt from tax under section 501 (a),

(B) a foreign government,

(C) an international organization, or a binational or multinational educational and cultural foundation or commission created or continued pursuant to the Mutual Educational and Cultural Exchange Act of 1961, or

(D) the United States, or an instrumentality or agency thereof, or a State, or a possession of the United States, or any political subdivision thereof, or the District of Columbia,

as a scholarship or fellowship for study, training, or research in the United States. In the case of a nonresident alien individual who is a member of a domestic partnership, the items of income referred to in subsection (a) shall be treated as referring to items specified in this subsection included in his distributive share of the income of such partnership.

(1) Income connected with United States business
No deduction or withholding under subsection (a) shall be required in the case of any item of income (other than compensation for personal services) which is effectively connected with the conduct of a trade or business within the United States and which is included in the gross income of the recipient under section 871 (b)(2) for the taxable year.

(2) Owner unknown
The Secretary may authorize the tax under subsection (a) to be deducted and withheld from the interest upon any securities the owners of which are not known to the withholding agent.

(3) Bonds with extended maturity dates
The deduction and withholding in the case of interest on bonds, mortgages, or deeds of trust or other similar obligations of a corporation, within subsections (a), (b), and (c) of section 1451 (as in effect before its repeal by the Tax Reform Act of 1984) were it not for the fact that the maturity date of such obligations has been extended on or after January 1, 1934, and the liability assumed by the debtor exceeds 271/2 percent of the interest, shall not exceed the rate of 271/2 percent per annum.

(4) Compensation of certain aliens
Under regulations prescribed by the Secretary, compensation for personal services may be exempted from deduction and withholding under subsection (a).

(5) Special items
In the case of gains described in section 631 (b) or (c), gains subject to tax under section 871 (a)(1)(D), and gains on transfers described in section 1235 made on or before October 4, 1966, the amount required to be deducted and withheld shall, if the amount of such gain is not known to the withholding agent, be such amount, not exceeding 30 percent of the amount payable, as may be necessary to assure that the tax deducted and withheld shall not be less than 30 percent of such gain.

(6) Per diem of certain aliens
No deduction or withholding under subsection (a) shall be required in the case of amounts of per diem for subsistence paid by the United States Government (directly or by contract) to any nonresident alien individual who is engaged in any program of training in the United States under the Mutual Security Act of 1954, as amended.

(7) Certain annuities received under qualified plans
No deduction or withholding under subsection (a) shall be required in the case of any amount received as an annuity if such amount is, under section 871 (f), exempt from the tax imposed by section 871 (a).

(8) Original issue discount
The Secretary may prescribe such regulations as may be necessary for the deduction and withholding of the tax on original issue discount subject to tax under section 871 (a)(1)(C) including rules for the deduction and withholding of the tax on original issue discount from payments of interest.

(9) Interest income from certain portfolio debt investments
In the case of portfolio interest (within the meaning of section 871 (h)), no tax shall be required to be deducted and withheld from such interest unless the person required to deduct and withhold tax from such interest knows, or has reason to know, that such interest is not portfolio interest by reason of section 871 (h)(3) or (4).

(10) Exception for certain interest and dividends
No tax shall be required to be deducted and withheld under subsection (a) from any amount described in section 871 (i)(2).

(11) Certain gambling winnings
No tax shall be required to be deducted and withheld under subsection (a) from any amount exempt from the tax imposed by section 871 (a)(1)(A) by reason of section 871 (j).

(12) Certain dividends received from regulated investment companies

(A) In general
No tax shall be required to be deducted and withheld under subsection (a) from any amount exempt from the tax imposed by section 871 (a)(1)(A) by reason of section 871 (k).

(B) Special rule
For purposes of subparagraph (A), clause (i) of section 871 (k)(1)(B) shall not apply to any dividend unless the regulated investment company knows that such dividend is a dividend referred to in such clause. A similar rule shall apply with respect to the exception contained in section 871 (k)(2)(B).

(d) Exemption of certain foreign partnerships
Subject to such terms and conditions as may be provided by regulations prescribed by the Secretary, subsection (a) shall not apply in the case of a foreign partnership engaged in trade or business within the United States if the Secretary determines that the requirements of subsection (a) impose an undue administrative burden and that the collection of the tax imposed by section 871 (a) on the members of such partnership who are nonresident alien individuals will not be jeopardized by the exemption.

(e) Alien resident of Puerto Rico
For purposes of this section, the term nonresident alien individual includes an alien resident of Puerto Rico.

(f) Continental shelf areas
For sources of income derived from, or for services performed with respect to, the exploration or exploitation of natural resources on submarine areas adjacent to the territorial waters of the United States, see section 638.

(g) Cross reference
For provision treating 85 percent of social security benefits as subject to withholding under this section, see section 871 (a)(3).

26 USC 1442 - Withholding of tax on foreign corporations

(a) General rule
In the case of foreign corporations subject to taxation under this subtitle, there shall be deducted and withheld at the source in the same manner and on the same items of income as is provided in section 1441 a tax equal to 30 percent thereof. For purposes of the preceding sentence, the references in section 1441 (b) to sections 871 (a)(1)(C) and (D) shall be treated as referring to sections 881 (a)(3) and (4), the reference in section 1441 (c)(1) to section 871 (b)(2) shall be treated as referring to section 842 or section 882 (a)(2), as the case may be, the reference in section 1441 (c)(5) to section 871 (a)(1)(D) shall be treated as referring to section 881 (a)(4), the reference in section 1441 (c)(8) to section 871 (a)(1)(C) shall be treated as referring to section 881 (a)(3), the references in section 1441 (c)(9) to sections 871 (h) and 871 (h)(3) or (4) shall be treated as referring to sections 881 (c) and 881 (c)(3) or (4), the reference in section 1441 (c)(10) to section 871 (i)(2) shall be treated as referring to section 881 (d), and the references in section 1441 (c)(12) to sections 871 (a) and 871 (k) shall be treated as referring to sections 881 (a) and 881 (e) (except that for purposes of applying subparagraph (A) of section 1441 (c)(12), as so modified, clause (ii) of section 881 (e)(1)(B) shall not apply to any dividend unless the regulated investment company knows that such dividend is a dividend referred to in such clause).

(b) Exemption
Subject to such terms and conditions as may be provided by regulations prescribed by the Secretary, subsection (a) shall not apply in the case of a foreign corporation engaged in trade or business within the United States if the Secretary determines that the requirements of subsection (a) impose an undue administrative burden and that the collection of the tax imposed by section 881 on such corporation will not be jeopardized by the exemption.

(1) Guam, American Samoa, the Northern Mariana Islands, and the Virgin Islands
For purposes of this section, the term foreign corporation does not include a corporation created or organized in Guam, American Samoa, the Northern Mariana Islands, or the Virgin Islands or under the law of any such possession if the requirements of subparagraphs (A), (B), and (C) of section 881 (b)(1) are met with respect to such corporation.

(2) Commonwealth of Puerto Rico

(A) In general
If dividends are received during a taxable year by a corporation

(i) created or organized in, or under the law of, the Commonwealth of Puerto Rico, and

(ii) with respect to which the requirements of subparagraphs (A), (B), and (C) of section 881 (b)(1) are met for the taxable year,

subsection (a) shall be applied for such taxable year by substituting 10 percent for 30 percent.

(B) Applicability
If, on or after the date of the enactment of this paragraph, an increase in the rate of the Commonwealth of Puerto Ricos withholding tax which is generally applicable to dividends paid to United States corporations not engaged in a trade or business in the Commonwealth to a rate greater than 10 percent takes effect, this paragraph shall not apply to dividends received on or after the effective date of the increase.

26 USC 1443 - Foreign tax-exempt organizations

(a) Income subject to section 511
In the case of income of a foreign organization subject to the tax imposed by section 511, this chapter shall apply to income includible under section 512 in computing its unrelated business taxable income, but only to the extent and subject to such conditions as may be provided under regulations prescribed by the Secretary.

(b) Income subject to section 4948
In the case of income of a foreign organization subject to the tax imposed by section 4948 (a), this chapter shall apply, except that the deduction and withholding shall be at the rate of 4 percent and shall be subject to such conditions as may be provided under regulations prescribed by the Secretary.

26 USC 1444 - Withholding on Virgin Islands source income

For purposes of determining the withholding tax liability incurred in the Virgin Islands pursuant to this title (as made applicable to the Virgin Islands) with respect to amounts received from sources within the Virgin Islands by citizens and resident alien individuals of the United States, and corporations organized in the United States, the rate of withholding tax under sections 1441 and 1442 on income subject to tax under section 871 (a)(1) or 881 shall not exceed the rate of tax on such income under section 871 (a)(1) or 881, as the case may be.

26 USC 1445 - Withholding of tax on dispositions of United States real property interests

(a) General rule
Except as otherwise provided in this section, in the case of any disposition of a United States real property interest (as defined in section 897 (c)) by a foreign person, the transferee shall be required to deduct and withhold a tax equal to 10 percent of the amount realized on the disposition.

(b) Exemptions

(1) In general
No person shall be required to deduct and withhold any amount under subsection (a) with respect to a disposition if paragraph (2), (3), (4), (5), or (6) applies to the transaction.

(2) Transferor furnishes nonforeign affidavit
Except as provided in paragraph (7), this paragraph applies to the disposition if the transferor furnishes to the transferee an affidavit by the transferor stating, under penalty of perjury, the transferors United States taxpayer identification number and that the transferor is not a foreign person.

(3) Nonpublicly traded domestic corporation furnishes affidavit that interests in corporation not United States real property interests
Except as provided in paragraph (7), this paragraph applies in the case of a disposition of any interest in any domestic corporation if the domestic corporation furnishes to the transferee an affidavit by the domestic corporation stating, under penalty of perjury, that

(A) the domestic corporation is not and has not been a United States real property holding corporation (as defined in section 897 (c)(2)) during the applicable period specified in section 897 (c)(1)(A)(ii), or

(B) as of the date of the disposition, interests in such corporation are not United States real property interests by reason of section 897 (c)(1)(B).

(4) Transferee receives qualifying statement

(A) In general
This paragraph applies to the disposition if the transferee receives a qualifying statement at such time, in such manner, and subject to such terms and conditions as the Secretary may by regulations prescribe.

(B) Qualifying statement
For purposes of subparagraph (A), the term qualifying statement means a statement by the Secretary that

(i) the transferor either

(I) has reached agreement with the Secretary (or such agreement has been reached by the transferee) for the payment of any tax imposed by section 871 (b)(1) or 882 (a)(1) on any gain recognized by the transferor on the disposition of the United States real property interest, or

(II) is exempt from any tax imposed by section 871 (b)(1) or 882 (a)(1) on any gain recognized by the transferor on the disposition of the United States real property interest, and

(ii) the transferor or transferee has satisfied any transferors unsatisfied withholding liability or has provided adequate security to cover such liability.

(5) Residence where amount realized does not exceed $300,000
This paragraph applies to the disposition if

(A) the property is acquired by the transferee for use by him as a residence, and

(B) the amount realized for the property does not exceed $300,000.

(6) Stock regularly traded on established securities market
This paragraph applies if the disposition is of a share of a class of stock that is regularly traded on an established securities market.

(7) Special rules for paragraphs (2) and (3)
Paragraph (2) or (3) (as the case may be) shall not apply to any disposition

(A) if

(i) the transferee has actual knowledge that the affidavit referred to in such paragraph is false, or

(ii) the transferee receives a notice (as described in subsection (d)) from a transferors agent or a transferees agent that such affidavit is false, or

(B) if the Secretary by regulations requires the transferee to furnish a copy of such affidavit to the Secretary and the transferee fails to furnish a copy of such affidavit to the Secretary at such time and in such manner as required by such regulations.

(8) Applicable wash sales transactions
No person shall be required to deduct and withhold any amount under subsection (a) with respect to a disposition which is treated as a disposition of a United States real property interest solely by reason of section 897 (h)(5).

(1) Cannot exceed transferor’s maximum tax liability

(A) In general
The amount required to be withheld under this section with respect to any disposition shall not exceed the amount (if any) determined under subparagraph (B) as the transferors maximum tax liability.

(B) Request
At the request of the transferor or transferee, the Secretary shall determine, with respect to any disposition, the transferors maximum tax liability.

(C) Refund of excess amounts withheld
Subject to such terms and conditions as the Secretary may by regulations prescribe, a transferor may seek and obtain a refund of any amounts withheld under this section in excess of the transferors maximum tax liability.

(2) Authority of Secretary to prescribe reduced amount
At the request of the transferor or transferee, the Secretary may prescribe a reduced amount to be withheld under this section if the Secretary determines that to substitute such reduced amount will not jeopardize the collection of the tax imposed by section 871 (b)(1) or 882 (a)(1).

(3) Procedural rules

(A) Regulations
Requests for

(i) qualifying statements under subsection (b)(4),

(ii) determinations of transferors maximum tax liability under paragraph (1), and

(iii) reductions under paragraph (2) in the amount required to be withheld,

shall be made at the time and manner, and shall include such information, as the Secretary shall prescribe by regulations.

(B) Requests to be handled within 90 days
The Secretary shall take action with respect to any request described in subparagraph (A) within 90 days after the Secretary receives the request.

(d) Liability of transferor’s agents or transferee’s agents

(1) Notice of false affidavit; foreign corporations
If

(A) the transferor furnishes the transferee an affidavit described in paragraph (2) of subsection (b) or a domestic corporation furnishes the transferee an affidavit described in paragraph (3) of subsection (b), and

(B) in the case of

(i) any transferors agent

(I) such agent has actual knowledge that such affidavit is false, or

(II) in the case of an affidavit described in subsection (b)(2) furnished by a corporation, such corporation is a foreign corporation, or

(ii) any transferees agent, such agent has actual knowledge that such affidavit is false,

such agent shall so notify the transferee at such time and in such manner as the Secretary shall require by regulations.

(2) Failure to furnish notice

(A) In general
If any transferors agent or transferees agent is required by paragraph (1) to furnish notice, but fails to furnish such notice at such time or times and in such manner as may be required by regulations, such agent shall have the same duty to deduct and withhold that the transferee would have had if such agent had complied with paragraph (1).

(B) Liability limited to amount of compensation
An agents liability under subparagraph (A) shall be limited to the amount of compensation the agent derives from the transaction.

(3) Transferor’s agent
For purposes of this subsection, the term transferors agent means any person who represents the transferor

(A) in any negotiation with the transferee or any transferees agent related to the transaction, or

(B) in settling the transaction.

(4) Transferee’s agent
For purposes of this subsection, the term transferees agent means any person who represents the transferee

(A) in any negotiation with the transferor or any transferors agent related to the transaction, or

(B) in settling the transaction.

(5) Settlement officer not treated as transferor’s agent
For purposes of this subsection, a person shall not be treated as a transferors agent or transferees agent with respect to any transaction merely because such person performs 1 or more of the following acts:

(A) The receipt and the disbursement of any portion of the consideration for the transaction.

(B) The recording of any document in connection with the transaction.

(e) Special rules relating to distributions, etc., by corporations, partnerships, trusts, or estates

(1) Certain domestic partnerships, trusts, and estates
In the case of any disposition of a United States real property interest as defined in section 897 (c) (other than a disposition described in paragraph (4) or (5)) by a domestic partnership, domestic trust, or domestic estate, such partnership, the trustee of such trust, or the executor of such estate (as the case may be) shall be required to deduct and withhold under subsection (a) a tax equal to 35 percent (or, to the extent provided in regulations, 15 percent) of the gain realized to the extent such gain

(A) is allocable to a foreign person who is a partner or beneficiary of such partnership, trust, or estate, or

(B) is allocable to a portion of the trust treated as owned by a foreign person under subpart E of part I of subchapter J.

(2) Certain distributions by foreign corporations
In the case of any distribution by a foreign corporation on which gain is recognized under subsection (d) or (e) of section 897, the foreign corporation shall deduct and withhold under subsection (a) a tax equal to 35 percent of the amount of gain recognized on such distribution under such subsection.

(3) Distributions by certain domestic corporations to foreign shareholders
If a domestic corporation which is or has been a United States real property holding corporation (as defined in section 897 (c)(2)) during the applicable period specified in section 897 (c)(1)(A)(ii) distributes property to a foreign person in a transaction to which section 302 or part II of subchapter C applies, such corporation shall deduct and withhold under subsection (a) a tax equal to 10 percent of the amount realized by the foreign shareholder. The preceding sentence shall not apply if, as of the date of the distribution, interests in such corporation are not United States real property interests by reason of section 897 (c)(1)(B). Rules similar to the rules of the preceding provisions of this paragraph shall apply in the case of any distribution to which section 301 applies and which is not made out of the earnings and profits of such a domestic corporation.

(4) Taxable distributions by domestic or foreign partnerships, trusts, or estates
A domestic or foreign partnership, the trustee of a domestic or foreign trust, or the executor of a domestic or foreign estate shall be required to deduct and withhold under subsection (a) a tax equal to 10 percent of the fair market value (as of the time of the taxable distribution) of any United States real property interest distributed to a partner of the partnership or a beneficiary of the trust or estate, as the case may be, who is a foreign person in a transaction which would constitute a taxable distribution under the regulations promulgated by the Secretary pursuant to section 897.

(5) Rules relating to dispositions of interest in partnerships, trusts, or estates
To the extent provided in regulations, the transferee of a partnership interest or of a beneficial interest in a trust or estate shall be required to deduct and withhold under subsection (a) a tax equal to 10 percent of the amount realized on the disposition.

(6) Distributions by regulated investment companies and real estate investment trusts
If any portion of a distribution from a qualified investment entity (as defined in section 897 (h)(4)) to a nonresident alien individual or a foreign corporation is treated under section 897 (h)(1) as gain realized by such individual or corporation from the sale or exchange of a United States real property interest, the qualified investment entity shall deduct and withhold under subsection (a) a tax equal to 35 percent (or, to the extent provided in regulations, 15 percent (20 percent in the case of taxable years beginning after December 31, 2010)) of the amount so treated.

(7) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this subsection, including regulations providing for exceptions from provisions of this subsection and regulations for the application of this subsection in the case of payments through 1 or more entities.

(f) Definitions
For purposes of this section

(1) Transferor
The term transferor means the person disposing of the United States real property interest.

(2) Transferee
The term transferee means the person acquiring the United States real property interest.

(3) Foreign person
The term foreign person means any person other than a United States person.

(4) Transferor’s maximum tax liability
The term transferors maximum tax liability means, with respect to the disposition of any interest, the sum of

(A) the maximum amount which the Secretary determines could be imposed as tax under section 871 (b)(1) or 882 (a)(1) by reason of the disposition, plus

(B) the amount the Secretary determines to be the transferors unsatisfied withholding liability with respect to such interest.

(5) Transferor’s unsatisfied withholding liability
The term transferors unsatisfied withholding liability means the withholding obligation imposed by this section on the transferors acquisition of the United States real property interest or on the acquisition of a predecessor interest, to the extent such obligation has not been satisfied.

26 USC 1446 - Withholding1 tax on foreign partners share of effectively connected income

(a) General rule
If

(1) a partnership has effectively connected taxable income for any taxable year, and

(2) any portion of such income is allocable under section 704 to a foreign partner,

such partnership shall pay a withholding tax under this section at such time and in such manner as the Secretary shall by regulations prescribe.

(b) Amount of withholding tax

(1) In general
The amount of the withholding tax payable by any partnership under subsection (a) shall be equal to the applicable percentage of the effectively connected taxable income of the partnership which is allocable under section 704 to foreign partners.

(2) Applicable percentage
For purposes of paragraph (1), the term applicable percentage means

(A) the highest rate of tax specified in section 1 in the case of the portion of the effectively connected taxable income which is allocable under section 704 to foreign partners who are not corporations, and

(B) the highest rate of tax specified in section 11 (b)(1) in the case of the portion of the effectively connected taxable income which is allocable under section 704 to foreign partners which are corporations.

(c) Effectively connected taxable income
For purposes of this section, the term effectively connected taxable income means the taxable income of the partnership which is effectively connected (or treated as effectively connected) with the conduct of a trade or business in the United States computed with the following adjustments:

(1) Paragraph (1) of section 703 (a) shall not apply.

(2) The partnership shall be allowed a deduction for depletion with respect to oil and gas wells but the amount of such deduction shall be determined without regard to sections 613 and 613A.

(3) There shall not be taken into account any item of income, gain, loss, or deduction to the extent allocable under section 704 to any partner who is not a foreign partner.

(d) Treatment of foreign partners

(1) Allowance of credit
Each foreign partner of a partnership shall be allowed a credit under section 33 for such partners share of the withholding tax paid by the partnership under this section. Such credit shall be allowed for the partners taxable year in which (or with which) the partnership taxable year (for which such tax was paid) ends.

(2) Credit treated as distributed to partner
Except as provided in regulations, a foreign partners share of any withholding tax paid by the partnership under this section shall be treated as distributed to such partner by such partnership on the earlier of

(A) the day on which such tax was paid by the partnership, or

(B) the last day of the partnerships taxable year for which such tax was paid.

(e) Foreign partner
For purposes of this section, the term foreign partner means any partner who is not a United States person.

(f) Regulations
The Secretary shall prescribe such regulations as may be necessary to carry out the purposes of this section, including

(1) regulations providing for the application of this section in the case of publicly traded partnerships, and

(2) regulations providing

(A) that, for purposes of section 6655, the withholding tax imposed under this section shall be treated as a tax imposed by section 11 and any partnership required to pay such tax shall be treated as a corporation, and

(B) appropriate adjustments in applying section 6655 with respect to such withholding tax.

[1] So in original. Probably should be followed by “of”.