By Anthony Diosdi
In an increasingly global economy, workers are experiencing unprecedented mobility. As such, foreigners living in America, even for a limited time, often participate in a pension or retirement plan in the United States; participation might even be mandatory. In most cases, pretax money is contributed into retirement accounts where it accumulates tax-free until retirement. U.S. retirement such as 403(b) plans, 401(k) plans, and Individual Retirement Accounts (“IRAs”) are commonly encountered by foreigners who are employed in the United States. In the alternative, Americans who are employed abroad often contribute to foreign retirement plans. Whether contributions, earnings, and distributions are includible in a foreign worker’s U.S. taxable income depends on how the worker is classified for U.S. tax purposes and whether a tax treaty exempts an event that is otherwise taxable. This article will discuss how the United States- China Income Tax Treaty can potentially be utilized to minimize the income tax consequences associated with a 403(b) plan.
Taxation of U.S. Based Retirement Distributions
We will begin our discussion with a discussion of U.S. based retirement accounts and how foreigner participants are taxed under U.S. law. The most common U.S. retirement plans, for U.S. tax purposes are 401(k) plans, 403(b) plans, and individual retirement accounts. The applicable classification depends on the employer, contributions, and other factors. Below, these retirement accounts are discussed in more detail.
A 401(k) plan is an employer-sponsored defined-contribution account defined in Section 401(k) of the Internal Revenue Code. (Unless otherwise specified, all sections are to the Internal Revenue Code of 1986 (“IRC” or “Section”) or the regulations thereunder, both as amended through the date of this article. All references to U.S. taxes herein are to federal taxes, unless otherwise specified).
Employee funding comes directly from their paycheck and contributions may be matched by the employer. Income taxes on pre-contributions and investment earnings are tax deferred. For pre-tax contributions, the employee does not pay federal income tax on the amount of current income he or she transfers to a 401(k) account, but does still pay the 7.65 percent payroll taxes (social security and medicare). Employees of a business with a 401(k) are allowed to contribute up to $19,500 for 2021. For U.S. tax purposes, the participant pays income taxes on the plan distribution when funds are withdrawn from the plan. If an individual needs to access 401(k) funds before the year the participant turns 59 1/2, the participant will be assessed a 10 percent penalty on any withdrawals made in addition to income taxes owed on the withdrawal. In some cases, participants can withdraw funds from a 401(k) plan at age 55 without incurring the 10 percent penalty.
403(b) plans resemble 401(k) plans but they serve employees of public schools and tax-exempt organizations rather than private sector workers. Contributions made to a 403(b) plan are not taxed until money is withdrawn from the plan. For 2021, the most an employee can contribute to a 403(b) account is $19,500 in 2021. For U.S. tax purposes, the participant pays income taxes on the plan distribution when funds are withdrawn from the plan. If an individual needs to access 403(b) funds before the year the participant turns 59 1/2, the participant will be assessed a 10 percent penalty on any withdrawals made in addition to income taxes owed on the withdrawal. In some cases, participants can withdraw funds from a 401(k) plan at age 55 without incurring the 10 percent penalty.
Individual Retirement Accounts
An individual retirement account or (“IRA”) is a form of individual retirement plan, provided by many financial institutions, that provides tax advantages for retirement savings. It is a trust that holds investment assets purchased with an individual’s earned income for the individual’s eventual retirement. For the 2021 tax year, the total contributions an individual may make to a traditional IRA is $6,000 ($7,000 if the individual is age 50 or older). For U.S. tax purposes, the participant pays income taxes on the plan distribution when funds are withdrawn from the plan. If an individual needs to access IRA funds before the year the participant turns 59 1/2, the participant will be assessed a 10 percent penalty on any withdrawals made in addition to income taxes owed on the withdrawal.
Taxation of Retirement Contributions and the Taxation of the Accumulated Earnings in a U.S. Based Retirement Plan
The U.S. tax consequences of distributions from a U.S. based retirement account depends on whether a non-U.S. citizen is classified as nonresident or resident for U.S. income tax consequences. We will begin first with discussing the income tax consequences to non-U.S. citizens who are not “U.S. residents” for income tax purposes. Foreign persons that are not “U.S. residents” are only taxed on their U.S. source income. For U.S. source income, foreign persons are subject to two different U.S. taxing regimes. One regime applies to income that is connected with the conduct of a trade or business in the United States. The other regime applies to certain types of nonbusiness income from U.S. sources. If a foreign person conducts a trade or business in the United States, the net income effectively connected with the U.S. business activity will be taxed at the usual tax rates. At present, the top nominal marginal rate paid by individual taxpayers is 37 percent. The determination of whether a foreign person is engaged in the conduct of a trade or business in the United States generally. However, appropriate deductions and credits will apply in the determination of U.S. tax liability.
Most of the forms of U.S.-source income received by foreign persons that are not effectively connected with a U.S. trade or business will be subject to a flat tax of 30 percent on the gross amount of the income received. Section 871(a) of the Internal Revenue Code imposes the 30-percent tax on “interest * * * dividends, rents, salaries, wages, premiums, annuities, compensation, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income.” This enumeration is sometimes referred to as “FDAP income.” The collection of such taxes is affected primarily through the imposition of an obligation on the person or entity making the payment to the foreign person to withhold the tax and pay it over to the Internal Revenue Service (“IRS”). Distributions from U.S.- based retirement accounts are subject to the 30 percent withholding rules discussed above. Thus, when a non-U.S. resident for tax purposes receives a distribution from a U.S.-based retirement account, unless treaty applies, he or she will be subject to a 30 percent withholding. A nonresident may also be subject to a 10 percent penalty for early withdrawal from the U.S.-based retirement account.
The tax rules are different for non-U.S. citizens that are taxed as “U.S. residents.” U.S. residents are subject to federal income tax on their worldwide income regardless of the country from which the income derives, the country in which payment is made or the currency in which the income is received. On the other hand, all U.S. source income received by U.S. residents is taxed at U.S. prgressive ordinary income or capital gain rates. When a U.S. resident withdraws funds from a U.S.-based retirement account, he or she is taxed at progressive ordinary rates. In order to discourage the early withdrawal of funds, Section 72(t) of Internal Revenue Code imposes a 10 percent additional income tax on distributions which fails to satisfy certain criteria- such as early withdrawal. U.S. residents are also subject to a 20 percent withholding tax on distributions from U.S.-based retirement accounts. However, a U.S. resident can receive a refund from the IRS any overpayment of tax.
International Law Governing Tax Treaties
The tax treaties advance a series of objectives, usually on a reciprocal basis. Their fundamental rationale is to prevent taxes from interfering with the free flow of international trade and investment. Their basic trust is the avoidance of double taxation of income from international transactions by limiting the jurisdiction that each treaty country may exercise to tax income from domestic sources realized by residents of the other country. Most provide clarification in certain respects of areas in which the application of the tax laws of the treaty partners may be ambiguous or unpredictable.
From time to time the Treasury Department will publish its Model Treaty. In general, the Model Treaty reflects the current position of U.S. representatives in negotiating treaty arrangements with other countries. It does not reflect the specific provisions of any treaty actually in force. The U.S. Model Treaty is not the only prototype that has been devised and used. The Organization for Economic Cooperation and Development (“OECD”) (whose members include virtually all of the major industrialized countries) has published a series of model treaties for the elimination of double taxation, together with particularly useful commentaries on the model treaty provisions.
Under the U.S.-Constitution, the U.S. Executive Branch has the exclusive province to negotiate all treaties (including tax treaties) as part of its authority to conduct U.S. foreign relations. Although the State Department has the primary jurisdiction over foreign relations within the Executive Branch, it is the Treasury Department, acting through its Assistant Secretary for Tax Policy and its International Tax Counsel, that actually negotiates tax treaties with the appropriate authorities of the foreign country. If agreement on the treaty is reached with the foreign country, the President signs the treaty on behalf of the United States and sends it to the U.S. Senate for its advice and consent. The Senate then refers the treaty to its Foreign Relations Committee which holds hearings on the matter. If the Senate Foreign Relations Committee approves the treaty, it sends the treaty to the full Senate for its consideration. Once the Senate approves the treaty by a two-thirds vote of its members, the treaty actually becomes effective only if and when the U.S. Executive Branch exchanges instruments of ratification with the foreign treaty country.
A U.S. tax treaty typically specifies the taxes of the foreign treaty partner to which the treaty applies. The treaty also typically provides that it applies only to federal income taxes and to certain federal taxes in the United States and to “identical or substantially similar taxes” of the foreign treaty partner or the United States that may be enacted after the treaty is signed.
It is important to understand that often terms of a U.S. tax treaty modify the tax results that one would otherwise obtain under the Internal Revenue Code. Internal Revenue Code Section 7852(d)(1) provides that “[f]or purposes of determining the relationship between a provision of a treaty and any law of the United States affecting revenue, neither the treaty nor the law shall have preferential status by reason of its being a treaty or law.” This rather enigmatic formulation is another (albeit convoluted) way of stating a basic principle of U.S. jurisprudence with respect to the posture of treaties: under the U.S. Constitution (art. VI, cl. 2), U.S. treaties and federal statutes have equal status as the supreme law of the land and, thus, whenever there is a conflict between the two, the later in time prevails. See Restatement (Third) of the Foreign Relations Law of the United States Section 115 (A.L.I. 1986). Thus, as long as a treaty does not conflict with the Constitution, laws passed by Congress and treaties ratified by the Senate will have equal weight. Consequently, if a tax treaty was ratified by the Senate after an Internal Revenue Code was enacted by Congress, any conflicted provisions of the Code will be superseded by the tax treaty. In other words, when an individual elects to apply the provisions of an income tax treaty, the income tax treaty may overrule the applicable provision of the Internal Revenue Code. The converse of the rule above is also true. If a U.S. statute is enacted that is inconsistent with an existing treaty provision, the statute, being later in time, will prevail and the benefits of the treaty will not be available.
U.S. Courts Interpretation of the OECD Rules
As indicated above, tax treaties are often poorly worded and confusing. As a result, each tax tax treaty contains a Technical Explanation which reflects the policies behind each provision of the treaty. Technical Explanations also interpret tax treaties. When Technical Explanations do not explain the intent of a tax treaty, the OECD may be consulted to interpret the treaty. The OECD publishes commentary every four years to interpret terms of income tax treaties.
U.S. courts will refer to OECD commentary as meaningful guidance and in divining the probable intent of the party-countries. However, U.S. courts are not bound by OECD commentaries (the only legally binding instruments are the Conventions signed by Member Countries). While a court will give deference to the consistent interpretation of a treaty advanced by the agencies of the United States charged with its administration, their interpretation is not conclusive and will not be adopted by the court if it is not supported by the treaty language or the intent of the party countries. See Nat’l Westminster v. U.S, 58 Fed Cl. 491 (2003). Nat’l Westminster states in relevant part, “for each of the Articles in the Convention there is a detailed Commentary which is designed to illustrate or interpret the provisions….Although the present Commentaries are not designed to be annexed in any manner to the Conventions to be signed by member countries, which alone constitute legally binding international instruments, they can nevertheless be of great assistance in the application of the Conventions and, in particular, in the settlement of eventual disputes.”
Nat’l Westminster indicates that if the U.S. and a treaty partner were members of the OECD at the time the treaty was enacted, the U.S. may apply the OECD definitions to interpret certain tax treaty terms. As long as the OECD terms are not contrary to the intent of the party-countries. The IRS has agreed with this interpretation in private letter rulings. Thus, unless an Internal Revenue Code (U.S. tax law) is enacted later in time from that of a tax treaty, U.S. tax law cannot supersede a tax treaty. Many tax treaties take a very broad approach as to what constitutes a “pension distribution” under international treaty law with which the IRS and U.S. courts may be legally bound to recognize.
A Closer Look At How Tax Treaties Are Applied to Distributions of U.S. Based Retirement Accounts
The U.S. currently has income tax treaties with approximately 58 countries. Each tax treaty is different and has its own unique definitions. As a consequence, to determine the impact of treaty provisions in any specific situation, the applicable treaty at issue must be analyzed.This subsection of this article will discuss the implications of a few select tax treaties when applied to the distributions to non-U.S. citizens from U.S. based retirement accounts. This article will examine the U.S.- China Tax Treaty and how the treaty can be utilized to eliminate U.S. taxes associated with the distribution of 403(b) retirement plans.
Applying the U.S- China Tax Treaty to U.S. 403(b) Retirement Account Distributions
Let’s assume that Tom is an India citizen that comes to the U.S. on an E-3 Visa for a short-term assignment. While working in the United States, Tom contributed money to an IRA. Tom has returned to India. and would like to withdraw money from his U.S. based IRA. However, Tom is concerned about the U.S. federal 30 percent withholding tax and the 10 percent early withdrawal penalty.
Since Tom is a citizen of China, a country that the U.S. has a bilateral income tax treaty, Tom may utilize the U.S.- China Income Tax Treaty to potentially avoid the 30 percent withholding tax and the early withdrawal penalty. Article 17 of the United States- China Income Tax Treaty, states that “a resident of a Contracting State in consideration of past employment shall be taxable only in that Contracting State.” The provisions of Article 17 apply only with respect to remunerations and pensions in respect of services rendered in connection with a business carried on by the government or a political subdivision or a local authority of a Contracting State. Thus, the treaty provides that “Article 17 means that pensions derived and beneficially owned by a resident of one of the Contracting States in consideration of past employment…in respect of services rendered in connection with a business carried on by the government or a political subdivision…shall be taxable only in that State [of residency].” Under the provisions of the U.S.- China Income Tax Treaty,” the country of residence has exclusive taxing rights over pension distributions. Residency for tax treaty purposes is determined under domestic law of each country. A tax resident is a person that is “liable to tax” in that country on the basis of residency or domicile.
Below, please see Illustration 1. and Illustration 2. Which demonstrates how the U.S.- China Tax Treaty applies to U.S. based retirement accounts.
Let’s assume that Tom is a citizen and resident of China. Tom accepts a short term assignment with Big Tech, a privately held company based in San Jose, California. Tom contributes part of his Big Tech salary to a 401K plan. Tom would like to utilize the U.S.- China Income Tax Treaty to avoid the 30 percent U.S. withholding tax on the distribution of the 401K plan. Since Tom made payments to a plan established by Big Tech, a private company that is not associated with the government or a political subdivision, Tom cannot utilize the U.S.- China Income Tax Treaty to avoid the 30 percent U.S. withholding tax.
Same facts as Illustration 1. But, now let’s assume that Tom accepts a short term assignment at a large university in New York. The university contributes funds to a 403(b) plan on behalf of Tom. Since Tom is a resident of China, he can potentially take a treaty position that the 403(b) plan should be taxed according to the provisions of the U.S.- China Income Tax Treaty.
Next, we must determine if the 403(b) plan can be classified as a “pension or remuneration” under the treaty. Article 17 of the U.S.- China Income Tax Treaty makes a reference to “pensions and other similar remunerations.” However, the terms “pensions and other remuneration” is not defined in the treaty. Since these terms are not defined in the treaty, the OECD commentary can be potentially utilized to interpret the definitions of “pensions or other similar remuneration.” The U.S. joined the OECD in 1961. However, China is not a member of the OECD. Consequently, U.S. federal courts are not legally required to utilize the OECD to interpret the terms of the U.S.- China Income Tax Treaty. However, U.S. courts may refer to the OECD if it promotes international consistency.
According to the OECD, the word “pension” covers periodic and non-periodic payments. The OECD provides that a lump-sum payment in lieu of periodic pension payments that is made on or after cessation of employment may fall within the definition of Article 17 and Article 18 (applies to government employees) of the treaty. See OECD 2018 Commentary, Art 18. Assuming that Tom took a lump sum distribution from his 403(b) on or after the cessation of employment in the United States, Tom can potentially take the position that the 403(b) plan distribution falls within the OECD’s definition of a “pension” and as a result, Tom’s U.S. based 403(b) distribution should fall under the scope of the treaty and the 403(b) plan distribution should not be subject to U.S. withholding and early withdrawal penalties. However, Tom will need to timely make a treaty election in order to avoid U.S. tax on the distribution from his U.S. based retirement account.
Treaty Reporting Requirements
Anyone that claims the benefits of the U.S.- China Income Tax Treaty for U.S. tax purposes may need to disclose the position on their U.S. tax return. See IRC Section 6114. A taxpayer reports treaty-based positions either by attaching a statement to its return or by using Form 8833. If a taxpayer fails to report a treaty-based return position, each such failure is subject to a penalty of $1,000, or a penalty of $10,000 in the case of a corporation. See IRC Section 6712.
The Income Tax Regulations describe the items to be disclosed on a Form 8833. The disclosure statement typically requires six items:
1. The name and employer identification number of both the recipient and payor of the income at issue;
2. The type of treaty benefited item and its amount;
3. The facts and an explanation supporting the return position taken;
4. The specific treaty provisions on which the taxpayer bases its claims;
5. The Internal Revenue Code provision exempted or reduced; and
6. An explanation of any applicable limitations on benefits provisions.
Tom may also need to disclose the treaty position on a Form W-8BEN.
Often the terms of a U.S. tax treaty modify the tax results that one would otherwise obtain under the Internal Revenue Code. Correctly taking a treaty position can result in substantial tax savings. On the other hand, taking an incorrect treaty position can result in the assessment of significant penalties and interest by the IRS. If you are considering taking a treaty position, you should consult with an experienced international tax attorney to assist you. We have advised a substantial number of clients regarding taking income tax treaty positions in connection with U.S. based and foreign retirement plans..
Anthony Diosdi is one of several tax attorneys and international tax attorneys at Diosdi Ching & Liu, LLP. Anthony focuses his practice on domestic and international tax planning for multinational companies, closely held businesses, and individuals. Anthony has written numerous articles on international tax planning and frequently provides continuing educational programs to other tax professionals.
He has assisted companies with a number of international tax issues, including Subpart F, GILTI, and FDII planning, foreign tax credit planning, and tax-efficient cash repatriation strategies. Anthony also regularly advises foreign individuals on tax efficient mechanisms for doing business in the United States, investing in U.S. real estate, and pre-immigration planning. Anthony is a member of the California and Florida bars. He can be reached at 415-318-3990 or email@example.com.
This article is not legal or tax advice. If you are in need of legal or tax advice, you should immediately consult a licensed attorney.