| Publication 519 |
2008 Tax Year |
3.
Exclusions From Gross Income
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 resident and nonresident aliens.
Topics - This chapter discusses:
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Nontaxable interest,
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Nontaxable dividends,
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Certain compensation paid by a foreign employer,
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Gain from sale of home, and
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Scholarships and fellowship grants.
Useful Items - You may want to see:
See chapter 12 for information about getting these publications.
Resident aliens may be able to exclude the following items from their gross income.
Foreign Earned Income and Housing Amount
If you are physically present in a foreign country or countries for at least 330 full days during any period of 12 consecutive
months, you may
qualify for the foreign earned income exclusion. The exclusion is $85,700 in 2007. In addition, you may be able to exclude
or deduct certain foreign
housing amounts. You may also qualify if you are a bona fide resident of a foreign country and you are a citizen or national
of a country with which
the United States has an income tax treaty. For more information, see Publication 54.
Foreign country.
The term “ foreign country” means any territory under the sovereignty of a government other than that of the United States. The term also
includes territorial waters of the foreign country, the airspace over the foreign country, and the seabed and subsoil of submarine
areas adjacent to
the territorial waters of the foreign country.
Nonresident aliens can exclude the following items from their gross income.
U.S. source interest income that is not connected with a U.S. trade or business is excluded from income if it is from:
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Deposits (including certificates of deposit) with persons in the banking business,
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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
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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:
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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,
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In registered form that are targeted to foreign markets and the interest on which is paid through financial institutions outside
the United
States, or
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In registered form that are not targeted to foreign markets, if you furnished the payer of the interest (or the withholding
agent) a
statement that you are not a U.S. person. You should have made this statement on a Form W-8BEN or on a substitute form similar
to Form W-8BEN. In
either case, the statement should have been signed under penalties of perjury, should have certified that you are not a U.S.
citizen or resident, and
should have included your name and address.
Portfolio interest does not include the following types of interest.
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Interest 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.
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Interest 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.
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Contingent interest.
For the definition of 10% shareholder, see Regulations section 1.871-14(g).
Contingent interest.
Portfolio interest does not include contingent interest. Contingent interest is either of the following:
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Interest that is determined by reference to:
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Any receipts, sales, or other cash flow of the debtor or related person,
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Income or profits of the debtor or related person,
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Any change in value of any property of the debtor or a related person, or
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Any dividend, partnership distributions, or similar payments made by the debtor or a related person.
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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).
Exception for existing debt.
Contingent interest does not include interest paid or accrued on any debt with a fixed term that was issued:
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On or before April 7, 1993, or
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After April 7, 1993, pursuant to a written binding contract in effect on that date and at all times thereafter before that
debt was
issued.
The following dividend income is exempt from the 30% tax.
Certain dividends paid by foreign corporations.
There is no 30% tax on U.S. source dividends you receive from a foreign corporation. See Second exception under Dividends in
chapter 2 for how to figure the amount of excludable dividends.
Certain interest-related dividends.
There is no 30% tax on certain interest-related dividends from sources within the United States that you receive from
a mutual fund or other
regulated investment company. The mutual fund will designate in writing which dividends are interest-related dividends.
Certain short-term capital gain dividends.
There may not be any 30% tax on certain short-term capital gain dividends from sources within the United States that
you receive from a mutual fund
or other regulated investment company. The mutual fund will designate in writing which dividends are short-term capital gain
dividends. This tax
relief will not apply to you if you are present in the United States for 183 days or more during your tax year.
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.
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 meet all three of the following conditions.
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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.
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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.
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Your pay for these services is not more than $3,000.
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
according to the rules in chapter 4.
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 2007, Henry Smythe, a nonresident alien from a nontreaty country, worked for an overseas office of a U.S. partnership.
Henry, who uses the
calendar year as his tax year, was temporarily present in the United States for 60 days during 2007 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 2007, 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
2007 was $4,500. He received $2,875 in 2007, and $1,625 in 2008. During 2007, 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 under the rules in
chapter 4.
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 “ F,” “ J,” or “ Q” visas 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 a “ J” visa 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:
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A nonresident alien individual, foreign partnership, or foreign corporation, or
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An office or place of business maintained in a foreign country or in a U.S. possession by a U.S. corporation, a U.S. partnership,
or an
individual who is a U.S. citizen or resident.
The term “ foreign employer” does not include a foreign government. Pay from a foreign government that is exempt from U.S. income tax is
discussed in chapter 10.
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 you meet both
of the following conditions.
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You receive the annuity only because:
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You performed personal services outside the United States while you were a nonresident alien, or
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You performed personal services inside the United States while you were a nonresident alien and you met the three conditions,
described
earlier, under Employees of foreign persons, organizations, or offices.
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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 U.S. citizens or residents.
If the annuity qualifies under condition (1) but not condition (2) above, you do not have to include the amount in
income if:
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You are a resident of a country that gives a substantially equal exclusion to U.S. citizens and residents, or
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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. See chapter 9.
Gambling Winnings From Dog or Horse Racing
You can exclude from your gross income winnings from legal wagers initiated outside the United States in a parimutuel pool
with respect to a live
horse or dog race in the United States.
Gain From the Sale of Your Main Home
If you sold your main home, you may be able to exclude up to $250,000 of the gain on the sale of your home. If you are married
and file a joint
return, you may be able to exclude up to $500,000. For information on the requirements for this exclusion, see Publication
523.
This exclusion does not apply to nonresident aliens who are subject to the expatriation tax rules discussed in chapter 4.
Scholarships and Fellowship Grants
If you are a candidate for a degree, you may be able to exclude from your income part or all of the amounts you receive as
a qualified scholarship.
The rules discussed here apply to both resident and nonresident aliens.
If a nonresident alien receives a grant that is not from U.S. sources, it is not subject to U.S. tax. See Scholarships, Grants,
Prizes, and
Awards in chapter 2 to determine whether your grant is from U.S. sources.
A scholarship or fellowship is excludable from income only if:
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You are a candidate for a degree at an eligible educational institution, and
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You use the scholarship or fellowship to pay qualified education expenses.
Candidate for a degree.
You are a candidate for a degree if you:
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Attend a primary or secondary school or are pursuing a degree at a college or university, or
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Attend an accredited educational institution that is authorized to provide:
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A program that is acceptable for full credit toward a bachelor's or higher degree, or
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A program of training to prepare students for gainful employment in a recognized occupation.
Eligible educational institution.
An eligible educational institution is one that maintains a regular faculty and curriculum and normally has a regularly
enrolled body of students
in attendance at the place where it carries on its educational activities.
Qualified education expenses.
These are expenses for:
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Tuition and fees required to enroll at or attend an eligible educational institution, and
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Course-related expenses, such as fees, books, supplies, and equipment that are required for the courses at the eligible educational
institution. These items must be required of all students in your course of instruction.
However, in order for these to be qualified education expenses, the terms of the scholarship or fellowship cannot require
that it be used for
other purposes, such as room and board, or specify that it cannot be used for tuition or course-related expenses.
Expenses that do not qualify.
Qualified education expenses do not include the cost of:
This is true even if the fee must be paid to the institution as a condition of enrollment or attendance. Scholarship or fellowship
amounts used
to pay these costs are taxable.
Amounts used to pay expenses that do not qualify.
A scholarship amount used to pay any expense that does not qualify is taxable, even if the expense is a fee that must
be paid to the institution as
a condition of enrollment or attendance.
Payment for services.
You cannot exclude from income the portion of any scholarship, fellowship, or tuition reduction that represents payment
for teaching, research, or
other services. This is true even if all candidates for a degree are required to perform the services as a condition for receiving
the degree.
Example.
On January 7, Maria Gomez is notified of a scholarship of $2,500 for the spring semester. As a condition for receiving the
scholarship, Maria must
serve as a part-time teaching assistant. Of the $2,500 scholarship, $1,000 represents payment for her services. Assuming that
Maria meets all other
conditions, she can exclude no more than $1,500 from income as a qualified scholarship.
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