US Citizens/Residents Exercising Stock Options May be Exempt from Korean Income Taxation

Not long ago, I came across a situation in which a US citizen/resident (“Client”) exercised stock options to acquire stock in a South Korean corporation (“KoreaCo”).  KoreaCo granted the options to Client as compensation for services that Client performed in the US during a prior year.  Client has never been an employee of KoreaCo and performed no services in Korea.

Around the time of the option exercise, the Korean professionals involved insisted that Client was subject to Korean taxation on the excess of the stock’s fair market value (“FMV”) over the cost of exercising the option.  (i.e., treating the “bargain purchase price” as income)

For the sake of discussion, assume that the excess was equal to $1 million, which would have given rise to an approximate Korean tax of $200,000.

Issue:                  

Is Client liable for the $200,000 of Korean income tax noted above?

Brief answer:   

No.  The United States - Republic Of Korea Income Tax Convention (the “Treaty”) prohibits Korea from taxing Client on the $1 million.

Discussion:

Tax treaties are bilateral (i.e., applying to both parties) agreements between countries that can override one or both countries’ domestic tax rules to the extent that taxpayers qualify for their benefits.  These benefits often allow applicable taxpayers to be subject to lower rates of tax on income associated with one or both countries.  This could involve reduced withholding rates on things like dividends paid by a domestic corporation to a non-domestic shareholder (e.g., withholding 10% instead of 30%), or even full exemption or certain types of income.

According to the Korean professionals involved in the matter, Korean tax law states that if an individual in Korea exercises stock options for a payment of 100x when the stock has a FMV of 300x, such transaction gives rise to a taxable “gain” of 200x, and a corresponding tax of 40x (20% rate x 200x).

However, the Treaty overrides this otherwise-applicable Korean tax rule as follows.  The text of the Treaty and the Technical Explanation are available at https://www.irs.gov/businesses/international-businesses/korea-tax-treaty-documents.

• Treaty Article 1 (Taxes Covered), paragraph (1)(b) provides that the Treaty covers Korean Income Tax.  Per the Korean tax professionals, the tax on the “gain” is a tax covered by the Treaty.

• Treaty Article 6 (Source of Income), paragraph (6) provides in relevant part that

• Income received by an individual for his performance of labor or personal services, whether as an employee or in an independent capacity, or for furnishing the personal services of another person and income received by a corporation for furnishing the personal services of its employees or others, shall be treated as income from sources within one of the Contracting States only to the extent that such services are performed in that Contracting State.

 ·       The Treaty’s Technical Explanation, Article 6 (Source of Income), paragraph 1 elaborates that a Contracting State (e.g., Korea) may tax a resident of the other Contracting State (e.g., United States) only on income from sources within the first-mentioned Contracting State (as long as the resident is not a citizen of the first-mentioned Contracting State).

·        Treaty Article 16 (Capital Gains), paragraph (1) further clarifies that a US resident recognizing gains in Korea that (a) don’t relate to real property and (b) who does not have a Korean Permanent Establishment (i.e., a fixed place of business in Korea, pursuant to Article 9) is exempt from Korean taxation.

·        Treaty Article 18 (Independent Personal Services) also indicates that Client is exempt from Korean taxation on the “gain” because Client was not in Korea for any amount of time even if Client did perform independent services.

Based on the above, it is clear that the Treaty exempts Client’s “gain” on the option exercise and that the otherwise-applicable corresponding 20% Korean tax does not apply.

Caveat:  the above discussion relates solely to Korean income tax imposed on the economic “gain” and not any other taxes (e.g., stamp duties and social insurance contributions).  This article is meant solely for general awareness purposes and should not be relied upon as professional advice.  Proper treatment of each situation will depend on the specific facts and circumstances and the reader should seek out their own professional advice.

Interesting aside:  Would payment of the $200,000 Korean tax would be eligible for a foreign tax credit?  Unfortunately, the answer is no because that Korean tax is not truly a tax imposed on Client since the Treaty prohibits Korea from imposing it in this example.  To qualify for the foreign tax credit, payment must be compulsory for it to be considered a “tax.”

Nonresident alien or Resident alien for 2019 US income tax purposes (Part 1 of a series)

Nonresident alien or Resident alien for 2019 US income tax purposes (Part 1 of a series)

An intimidating question for those with little or no experience with US tax rules.  Even if they don’t completely understand the rules, they do understand that their resident/nonresident status may have a big impact on them.

Caveat:  There are multiple additional implications beyond US federal income tax (e.g., immigration status, disclosure requirements, state/local taxation, gift/estate taxation, etc.) that are beyond the scope of this writing.  Be sure to check back soon, as I plan to discuss these areas in more detail in the future.

KEY POINTS

• Talk to an experienced tax professional about these and related rules and how best to approach them.  For example, aliens can be both nonresident and resident in their first/last resident year (“dual-status”) so determining residency start/end dates can be very important.
  
• Rules are mostly mechanical, but can be complicated. 
• Only applies to US noncitizens.  US citizens are not “aliens,” so resident/nonresident status is moot.
• Internal Revenue Code section 871 imposes income tax on nonresident alien individuals.
• Treas. Reg. section 1.871-1(a) provides that resident alien individuals are generally taxable the same as US citizens.
• Section 7701(b)(30) provides the definitions of “resident alien” and “nonresident alien.”
• In general
• A resident alien an individual that meets any of the following requirements:
• US lawful permanent resident at any time during such calendar year.  Also known as the “green card” test.
• Meets the “substantial presence test” of section 7701(b)(3).
• Makes specific election to be treated as a resident alien.
• A nonresident alien is an individual that is not a resident alien.

DISCUSSION

Section 871 imposes income tax on nonresident alien individuals.  Income subject to US tax is generally limited to income from US sources (e.g., covered by section 861 – services performed in the US, interest/dividends from US payors, etc.).  Tax rate is generally 30% for income not connected with US business and the regular graduated tax rate for income that is connected with a US business.

Treas. Reg. section 1.871-1(a) provides

• “Resident alien individuals are, in general, taxable the same as citizens of the United States; that is, a resident alien is taxable on income derived from all sources, including sources without the United States.”

Note:  A nonresident alien may also be subject to a 30% tax rate on capital gains if they are (1) not effectively connected with a US business, and (2) the nonresident alien is present in the US for 183 or more days during the tax year.  If the nonresident alien satisfies the 183-day test, all US-source capital gains and losses for the year are considered, even if they occurred while the individual was not present in the US.

Resident Alien status requirement #1 – Lawful Permanent Resident / Green Card

• Section 7701(b)(1) and (2)
• See also IRS Publication 519 (US Tax Guide for Aliens)

This test is straightforward. 

You are a lawful permanent resident of the US at any time if you have been given the privilege, according to the immigration laws, of residing permanently in the US as an immigrant. You generally have this status if the US Citizenship and Immigration Services (“USCIS”) (or its predecessor organization, “INS”) issued you an alien registration card, also known as a “green card.” You continue to have resident status under this test unless the status is taken away from you or is administratively or judicially determined to have been abandoned.

Resident Alien status requirement #2 – Substantial Presence Test

• Section 7701(b)(3)
• See also IRS Publication 519

This test is more detailed, but still mostly mechanical with relatively little left to interpretation.

For purposes of this test:

• “US” generally includes all 50 US states, DC, and a few other geographies, but not US possessions/territories or US airspace.
• When counting days of presence in the US, you are treated as present in the US on any day you are physically present in the country at any time during the day, with certain exceptions. Do not count the following as days of presence in the US for the substantial presence test.
• Days you commute to work in the US from a residence in Canada or Mexico if you regularly commute from Canada or Mexico.
• Days you are in the US for less than 24 hours when you are in transit between two places outside the US.
• Days you are in the US as a foreign vessel’s crewmember, under a NATO visa, or are otherwise exempt as set forth in IRS Publication 519.
• Maintaining a “closer connection” to a foreign country in which you have a tax home may allow you to be an NRA even if you do meet the substantial presence test.

You will be considered a US resident for tax purposes (for 2019) if you meet the substantial presence test for calendar year 2019. To meet this test, you must be physically present in the US on at least:

• 31 days during 2019, and
• 183 days during the 3-year period that includes 2019, 2018, and 2017, counting:
• All the days you were present in 2019, and
• ¹/₃ of the days you were present in 2018, and
• ¹/₆ of the days you were present in 2017.

Closer Connection – Even if you meet the substantial presence test, you can be treated as a nonresident alien if you meet all of the following criteria and file Form 8840 (subject to certain limitations):

• Are present in the US for less than 183 days during the year,
• Maintain a tax home in a foreign country during the year, and
• Have a closer connection during the year to one or more foreign countries in which you have a tax home than to the US.

Resident Alien status requirement #3 – Affirmative Election

• Section 7701(b)(4)

An individual may also make a “first year election” to be treated as a resident alien for the portion of their first year of US presence in the following circumstances.

• Not a US resident under the green card test or the substantial presence test for the election year,
• Wasn't a US resident under either test for the calendar year immediately before the election year,
• Is a US resident under the substantial presence test for the calendar year immediately after the election year,
• Is present in the US for at least 31 consecutive days in the election year (“31-day period”), and
• Is present in the US for at least 75% of the days during the period beginning on the first day of the 31-day period and ending on the last day of the election year.

Key Takeaways

• Determining Nonresident alien vs. Resident alien status is very fact-dependent and can be very complicated.
• Only applies to US noncitizens.  US citizens are taxed on their worldwide income.
• Individuals sometimes can choose their status.
• Mistakes in this area can be very costly, be sure to discuss with an experienced international tax professional.

Withholding on prizes and awards to US nonresidents

Prizes and awards to US nonresidents may be subject to US income tax withholding!

The long arm of the US tax law can reach unexpected places. 

Did you know that awarding prizes (cash or otherwise) to non-US persons might require you to withhold US federal income taxes and pay them over to the US Treasury?  Moreover, failure to do so may result in the person who should have withheld those taxes being responsible for the unpaid tax!

If that weren’t enough, that requirement can also apply to those who simply administer the prize/award program for someone else (even if they aren’t the one choosing the winners).

Example

• COMPANY (based in the US) runs an entertainment website.
• The website has visitors from around the world.
• COMPANY periodically runs promotions on its website where visitors can win cash prizes by solving puzzles and being randomly chosen from correct entries. 
• Entrants are not required to make purchases to enter/win, nor are they required to perform any services to receive their prize.
• ALEX (age 15, a nonresident alien individual) wins a $1000 prize.

Issue 

• How much must COMPANY withhold in US income taxes from its $1000 prize payment to ALEX?

Short Answer

• COMPANY must withhold $300 in US taxes from ALEX's prize and send the remaining $700 to ALEX.

Brief Discussion

• Answer above is not intuitive.  ALEX does not have any obvious taxable connection to the US and solved the puzzle in his own home.
• COMPANY must determine the nature of the transaction taking place because it controls the “source” (i.e., US source vs. foreign source) of the income, which often dictates whether US income taxes must be withheld by the payor.
• Quick synopsis of US income tax withholding requirements (to the extent applicable here):
• Section 1441 applies to withholding of tax on nonresident aliens. It requires (among other things) that those having control over most types of income being paid to nonresidents withhold tax from those payments.
• Section 871 sets the tax rate (and thus the section 1441 withholding rate) at 30% on US source income of nonresident alien individuals.
• Source of income is mostly covered by sections 861 - 865. Key authorities relevant here:
• Section 861 – Compensation for services performed in the US are US source.
• Section 862 – Compensation for services performed outside of the US are foreign source.
• Section 863 – Permits Treasury to promulgate regulations as to source for items of income not specified in section 861 and 862.
• Treas. Reg. section 1.863-1(d)(2) provides that the source of income from prizes and awards is determined by the residence of the payor.
• ALEX winning the prize was not a direct result of solving the puzzle, it was a result of being chosen from all correct entries received by COMPANY.  As such, ALEX was not being compensated for services performed by him for COMPANY's benefit.  Thus, sections 861 and 862 do not apply to this issue.
• As a result, Treas. Reg. section 1.863-1(d)(2) treats ALEX’s prize as US source income because COMPANY (the payor) is a US person.
• Section 871 thus requires 30% withholding on the $1000 prize.
• If the person administering prize payments has (per section 1441) control over the payments, that person is a considered a “withholding agent” (defined under section 7701(a)(16)) and may be held responsible for the failure to withhold.

 Full text of Internal Revenue Code available at https://www.law.cornell.edu/uscode/text/26

Protecting Americans from Tax Hikes Act of 2015

On the evening of December 15, 2015, the House released the text of the Protecting Americans from Tax Hikes Act of 2015 (Division Q of House amendment #2 to the Senate amendment to H.R. 2029, Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2016).  Nickname is the PATH Act.

The Act is expected to be put up for a vote as early as Thursday, December 17.   The 233-page full text can be found at http://waysandmeans.house.gov/wp-content/uploads/2015/12/PATH_Act_xml.pdf (pdf) and http://docs.house.gov/billsthisweek/20151214/R121515.006.xml (text) and a 20-page section-by-section summary can be found on the Ways and Means Committee's website at https://rules.house.gov/sites/republicans.rules.house.gov/files/114/PDF/114-SAHR2029Ex-SxS.pdf.

I recommend reviewing the Ways and Means summary, but the outline is as follows.  Further review to come...

• DIVISION Q—PROTECTING AMERICANS FROM TAX HIKES ACT OF 2015
• Sec. 1. Short title, etc.
• TITLE I—EXTENDERS
• Subtitle A—Permanent extensions
• PART 1—TAX RELIEF FOR FAMILIES AND INDIVIDUALS
• Sec. 101. Enhanced child tax credit made permanent.
• Sec. 102. Enhanced American opportunity tax credit made permanent.
• Sec. 103. Enhanced earned income tax credit made permanent.
• Sec. 104. Extension and modification of deduction for certain expenses of elementary and secondary school teachers.
• Sec. 105. Extension of parity for exclusion from income for employer-provided mass transit and parking benefits.
• Sec. 106. Extension of deduction of State and local general sales taxes.
• PART 2—INCENTIVES FOR CHARITABLE GIVING
• Sec. 111. Extension and modification of special rule for contributions of capital gain real property made for conservation purposes.
• Sec. 112. Extension of tax-free distributions from individual retirement plans for charitable purposes.
• Sec. 113. Extension and modification of charitable deduction for contributions of food inventory.
• Sec. 114. Extension of modification of tax treatment of certain payments to controlling exempt organizations.
• Sec. 115. Extension of basis adjustment to stock of S corporations making charitable contributions of property.
• PART 3—INCENTIVES FOR GROWTH, JOBS, INVESTMENT, AND INNOVATION
• Sec. 121. Extension and modification of research credit.
• Sec. 122. Extension and modification of employer wage credit for employees who are active duty members of the uniformed services.
• Sec. 123. Extension of 15-year straight-line cost recovery for qualified leasehold improvements, qualified restaurant buildings and improvements, and qualified retail improvements.
• Sec. 124. Extension and modification of increased expensing limitations and treatment of certain real property as section 179 property.
• Sec. 125. Extension of treatment of certain dividends of regulated investment companies.
• Sec. 126. Extension of exclusion of 100 percent of gain on certain small business stock.
• Sec. 127. Extension of reduction in S-corporation recognition period for built-in gains tax.
• Sec. 128. Extension of subpart F exception for active financing income.
• PART 4—INCENTIVES FOR REAL ESTATE INVESTMENT
• Sec. 131. Extension of minimum low-income housing tax credit rate for non-Federally subsidized buildings.
• Sec. 132. Extension of military housing allowance exclusion for determining whether a tenant in certain counties is low-income.
• Sec. 133. Extension of RIC qualified investment entity treatment under FIRPTA.
• Subtitle B—Extensions through 2019
• Sec. 141. Extension of new markets tax credit.
• Sec. 142. Extension and modification of work opportunity tax credit.
• Sec. 143. Extension and modification of bonus depreciation.
• Sec. 144. Extension of look-thru treatment of payments between related controlled foreign corporations under foreign personal holding company rules.
• Subtitle C—Extensions through 2016
• PART 1—TAX RELIEF FOR FAMILIES AND INDIVIDUALS
• Sec. 151. Extension and modification of exclusion from gross income of discharge of qualified principal residence indebtedness.
• Sec. 152. Extension of mortgage insurance premiums treated as qualified residence interest.
• Sec. 153. Extension of above-the-line deduction for qualified tuition and related expenses.
• PART 2—INCENTIVES FOR GROWTH, JOBS, INVESTMENT, AND INNOVATION
• Sec. 161. Extension of Indian employment tax credit.
• Sec. 162. Extension and modification of railroad track maintenance credit.
• Sec. 163. Extension of mine rescue team training credit.
• Sec. 164. Extension of qualified zone academy bonds.
• Sec. 165. Extension of classification of certain race horses as 3-year property.
• Sec. 166. Extension of 7-year recovery period for motorsports entertainment complexes.
• Sec. 167. Extension and modification of accelerated depreciation for business property on an Indian reservation.
• Sec. 168. Extension of election to expense mine safety equipment.
• Sec. 169. Extension of special expensing rules for certain film and television productions; special expensing for live theatrical productions.
• Sec. 170. Extension of deduction allowable with respect to income attributable to domestic production activities in Puerto Rico.
• Sec. 171. Extension and modification of empowerment zone tax incentives.
• Sec. 172. Extension of temporary increase in limit on cover over of rum excise taxes to Puerto Rico and the Virgin Islands.
• Sec. 173. Extension of American Samoa economic development credit.
• Sec. 174. Moratorium on medical device excise tax.
• PART 3—INCENTIVES FOR ENERGY PRODUCTION AND CONSERVATION
• Sec. 181. Extension and modification of credit for nonbusiness energy property.
• Sec. 182. Extension of credit for alternative fuel vehicle refueling property.
• Sec. 183. Extension of credit for 2-wheeled plug-in electric vehicles.
• Sec. 184. Extension of second generation biofuel producer credit.
• Sec. 185. Extension of biodiesel and renewable diesel incentives.
• Sec. 186. Extension and modification of production credit for Indian coal facilities.
• Sec. 187. Extension of credits with respect to facilities producing energy from certain renewable resources.
• Sec. 188. Extension of credit for energy-efficient new homes.
• Sec. 189. Extension of special allowance for second generation biofuel plant property.
• Sec. 190. Extension of energy efficient commercial buildings deduction.
• Sec. 191. Extension of special rule for sales or dispositions to implement FERC or State electric restructuring policy for qualified electric utilities.
• Sec. 192. Extension of excise tax credits relating to alternative fuels.
• Sec. 193. Extension of credit for new qualified fuel cell motor vehicles.
• TITLE II—PROGRAM INTEGRITY
• Sec. 201. Modification of filing dates of returns and statements relating to employee wage information and nonemployee compensation to improve compliance.
• Sec. 202. Safe harbor for de minimis errors on information returns and payee statements.
• Sec. 203. Requirements for the issuance of ITINs.
• Sec. 204. Prevention of retroactive claims of earned income credit after issuance of social security number.
• Sec. 205. Prevention of retroactive claims of child tax credit.
• Sec. 206. Prevention of retroactive claims of American opportunity tax credit.
• Sec. 207. Procedures to reduce improper claims.
• Sec. 208. Restrictions on taxpayers who improperly claimed credits in prior year.
• Sec. 209. Treatment of credits for purposes of certain penalties.
• Sec. 210. Increase the penalty applicable to paid tax preparers who engage in willful or reckless conduct.
• Sec. 211. Employer identification number required for American opportunity tax credit.
• Sec. 212. Higher education information reporting only to include qualified tuition and related expenses actually paid.
• TITLE III—MISCELLANEOUS PROVISIONS
• Subtitle A—Family tax relief
• Sec. 301. Exclusion for amounts received under the Work Colleges Program.
• Sec. 302. Improvements to section 529 accounts.
• Sec. 303. Elimination of residency requirement for qualified ABLE programs.
• Sec. 304. Exclusion for wrongfully incarcerated individuals.
• Sec. 305. Clarification of special rule for certain governmental plans.
• Sec. 306. Rollovers permitted from other retirement plans into simple retirement accounts.
• Sec. 307. Technical amendment relating to rollover of certain airline payment amounts.
• Sec. 308. Treatment of early retirement distributions for nuclear materials couriers, United States Capitol Police, Supreme Court Police, and diplomatic security special agents.
• Sec. 309. Prevention of extension of tax collection period for members of the Armed Forces who are hospitalized as a result of combat zone injuries.
• Subtitle B—Real estate investment trusts
• Sec. 311. Restriction on tax-free spinoffs involving REITs.
• Sec. 312. Reduction in percentage limitation on assets of REIT which may be taxable REIT subsidiaries.
• Sec. 313. Prohibited transaction safe harbors.
• Sec. 314. Repeal of preferential dividend rule for publicly offered REITs.
• Sec. 315. Authority for alternative remedies to address certain REIT distribution failures.
• Sec. 316. Limitations on designation of dividends by REITs.
• Sec. 317. Debt instruments of publicly offered REITs and mortgages treated as real estate assets.
• Sec. 318. Asset and income test clarification regarding ancillary personal property.
• Sec. 319. Hedging provisions.
• Sec. 320. Modification of REIT earnings and profits calculation to avoid duplicate taxation.
• Sec. 321. Treatment of certain services provided by taxable REIT subsidiaries.
• Sec. 322. Exception from FIRPTA for certain stock of REITs.
• Sec. 323. Exception for interests held by foreign retirement or pension funds.
• Sec. 324. Increase in rate of withholding of tax on dispositions of United States real property interests.
• Sec. 325. Interests in RICs and REITs not excluded from definition of United States real property interests.
• Sec. 326. Dividends derived from RICs and REITs ineligible for deduction for United States source portion of dividends from certain foreign corporations.
• Subtitle C—Additional provisions
• Sec. 331. Deductibility of charitable contributions to agricultural research organizations.
• Sec. 332. Removal of bond requirements and extending filing periods for certain taxpayers with limited excise tax liability.
• Sec. 333. Modifications to alternative tax for certain small insurance companies.
• Sec. 334. Treatment of timber gains.
• Sec. 335. Modification of definition of hard cider.
• Sec. 336. Church plan clarification.
• Subtitle D—Revenue Provisions
• Sec. 341. Updated ASHRAE standards for energy efficient commercial buildings deduction.
• Sec. 342. Excise tax credit equivalency for liquified petroleum gas and liquified natural gas.
• Sec. 343. Exclusion from gross income of certain clean coal power grants to non-corporate taxpayers.
• Sec. 344. Clarification of valuation rule for early termination of certain charitable remainder unitrusts.
• Sec. 345. Prevention of transfer of certain losses from tax indifferent parties.
• Sec. 346. Treatment of certain persons as employers with respect to motion picture projects.
• TITLE IV—TAX ADMINISTRATION
• Subtitle A—Internal Revenue Service reforms
• Sec. 401. Duty to ensure that Internal Revenue Service employees are familiar with and act in accord with certain taxpayer rights.
• Sec. 402. IRS employees prohibited from using personal email accounts for official business.
• Sec. 403. Release of information regarding the status of certain investigations.
• Sec. 404. Administrative appeal relating to adverse determinations of tax-exempt status of certain organizations.
• Sec. 405. Organizations required to notify Secretary of intent to operate under 501(c)(4).
• Sec. 406. Declaratory judgments for 501(c)(4) and other exempt organizations.
• Sec. 407. Termination of employment of Internal Revenue Service employees for taking official actions for political purposes.
• Sec. 408. Gift tax not to apply to contributions to certain exempt organizations.
• Sec. 409. Extend Internal Revenue Service authority to require truncated Social Security numbers on Form W–2.
• Sec. 410. Clarification of enrolled agent credentials.
• Sec. 411. Partnership audit rules.
• Subtitle B—United States Tax Court
• PART 1—TAXPAYER ACCESS TO UNITED STATES TAX COURT
• Sec. 421. Filing period for interest abatement cases.
• Sec. 422. Small tax case election for interest abatement cases.
• Sec. 423. Venue for appeal of spousal relief and collection cases.
• Sec. 424. Suspension of running of period for filing petition of spousal relief and collection cases.
• Sec. 425. Application of Federal rules of evidence.
• PART 2—UNITED STATES TAX COURT ADMINISTRATION
• Sec. 431. Judicial conduct and disability procedures.
• Sec. 432. Administration, judicial conference, and fees.
• PART 3—CLARIFICATION RELATING TO UNITED STATES TAX COURT
• Sec. 441. Clarification relating to United States Tax Court.
• TITLE V—TRADE-RELATED PROVISIONS
• Sec. 501. Modification of effective date of provisions relating to tariff classification of recreational performance outerwear.
• Sec. 502. Agreement by Asia-Pacific Economic Cooperation members to reduce rates of duty on certain environmental goods.
• TITLE VI—BUDGETARY EFFECTS
• Sec. 601. Budgetary effects.