Tax Treaties Between the U.S. and the People’s Republic of China

Tax Treaties Between the U.S. and the People’s Republic of China

The United States has income tax treaties with many foreign countries. Under these treaties, residents (not necessarily citizens) of foreign countries are taxed at a reduced rate or are exempt from U.S. income taxes on certain items of income they receive from sources within the United States. These reduced rates and exemptions vary among countries and spe­cific items of income.

If there is no treaty between your country and the United States, you must pay tax on the income in the same way and at the same rates shown in the instructions for Form 1040NR.  Also, see Publication 519.

Many of the individual states in the United States have a tax in addition to the federal taxes. There­fore, you should consult the tax authorities of the state in which you live to find out if that state taxes the income of individuals.  Once you have determined the state’s general taxation, you should decide if the tax applies to any of your income.

Tax treaties reduce the U.S. taxes of resi­dents of foreign countries. With certain excep­tions, they do not reduce the U.S. taxes of U.S. citizens or residents. U.S. citizens and residents are subject to U.S. income tax on their world­wide income.

Treaty provisions generally are reciprocal (apply to both treaty countries); therefore, a U.S. citizen or resident who receives income from a treaty country may refer to the tables in this publication to see if a tax treaty might affect the tax to be paid to that foreign country. For­eign taxing authorities sometimes require certifi­cation from the U.S. Government that an appli­cant filed an income tax return as a U.S. citizen or resident as part of the proof of entitlement to the treaty benefits. See Form 8802, Application for United States Residency Certification, to re­quest a certification.

Disclosure of a treaty-based position that reduces your tax. If you take the position that any U.S. tax is overruled or otherwise reduced by a U.S. treaty (a treaty­ based position), you generally must disclose that position on Form 8833 and attach it to your return. If you are not required to file a return because of your
treaty-­based position, you must file a return anyway to report your status. The filing of Form 8833 does not apply to a reduced rate of withholding tax on non-effectively connected in­come, such as dividends, interest, rents or roy­alties, or to a reduced rate of tax on pay re­ceived for services performed as an employee, including pensions, annuities, and social secur­ity. For more information, see Publication 519 and the Form 8833 instructions.

If you fail to file Form 8833, you may have to pay a $1,000 penalty. Corporations are subject to a $10,000 fine for each failure.

Tax Exemptions Provided by Treaties

This publication contains discussions of the ex­emptions from tax and specific other effects of the tax treaties on the following types of in­come.

• Pay for certain personal services per­ formed in the United States.
• Pay a professor, teacher, or researcher who teaches or performs research in the United States for a limited time.
• Amounts received for maintenance and studies by an international student or apprentice here for study or experience.
• A foreign government pays Wages, salaries, and pensions.
  
  

Personal Services Income

Pay for certain personal services performed in the United States is exempt from U.S. income tax if you are a resident of one of the countries discussed below if you are in the United States for a limited number of days and meet certain other conditions. For this purpose, the word “day” means a day during any part of which you are physically present in the United States.

Terms defined. Several terms appear in many of the discussions that follow. The particu­lar tax treaty determines the exact mean­ings of the terms under discussion; thus, the mean­ings vary among treaties. Therefore, the following definitions are general definitions that may not give the precise meaning intended by a particular treaty.

The terms fixed base and permanent estab­lishment generally means a fixed place of busi­ness, such as a place of management, a branch, an office, a factory, a warehouse, or a mining site, through which an enterprise carries on its business.

The term borne generally means having ultimate financial accounting responsibility for, or providing the monetary resources for, an ex­penditure or payment, even if another entity in another location made the expenditure or payment.

Professors, Teachers, and Researchers

Pay of professors and teachers who are resi­dents of the following countries is generally ex­empt from U.S. income tax for 2 or 3 years if they temporarily visit the United States to teach or do research. The exemption applies to pay earned by the visiting professor or teacher dur­ing the applicable period. For most of the following countries, the relevant period begins on the date of arrival in the United States to teach or engage in research.  Furthermore, this applies to the exemption for most countries even if they stay in the United States extends beyond the applicable period.

The exemption generally applies to pay re­ceived during a second teaching assignment if both are completed within the specified time, even if the second assignment was not arranged until after arrival in the United States on the first assignment. Below, the conditions are stated under which the payment of a professor or teacher from that country is exempt from U.S. income tax.

If you do not meet the requirements for ex­emption as a teacher or if you are a resident of a treaty country that does not have a special provision for teachers, you may qualify under a personal services income provision discussed earlier.

Students and Apprentices

Residents of the following countries who are in the United States to study or acquire technical experience are exempt from U.S. income tax, under certain conditions, on amounts received from abroad for their maintenance and studies.

This exemption does not apply to the salary paid by a foreign corporation to one of its exec­utives, a citizen and resident of a foreign coun­try who is temporarily in the United States to study a particular industry for an employer. That amount is a continuation of salary and is not re­ceived to learn or acquire experience.

There is a statement of the conditions under which the exemption applies to students and apprentices from that country for each country listed.

Amounts received from the National Insti­tutes of Health (NIH) under provisions of the Visiting Fellows Program are generally treated as a grant, allowance, or award for purposes of whether the treaty provides an exemption.  Amounts received from NIH under the Visiting Associate Program, and Visiting Scientist Pro­gram are not exempt from U.S. tax as a grant, allowance, or award.

Wages and Pensions Paid by a Foreign Government

Wages, salaries, pensions, and annuities paid by the governments of the following countries to their residents who are present in the United States as nonresident aliens generally are ex­empt from U.S. income tax. The conditions un­der which the income is exempt are stated for each of the countries listed.

Exemption under U.S. tax law. Employees of foreign countries who do not qualify under a tax treaty provision and employees of international organizations should see if they can qualify for exemption under U.S. tax law.

Suppose you work for a foreign government in the United States. In that case, your foreign government salary is exempt from U.S. tax if you perform services similar to those performed by U.S. government employees in that foreign country and that for­eign government grants an equivalent exemp­tion. If you work for an international organization in the United States, your salary from that source is exempt from U.S. tax. See Chapter 10 of Publication 519 for more information.

Overview of the Treaties Between the U.S. and the People’s Republic of China

Income that residents of the People’s Republic of China receive for personal services as inde­pendent contractors or self­-employed individu­als (independent personal services) that they perform during the tax year in the United States is exempt from U.S. income tax if the residents:

• Are present in the United States for no more than 183 days in the calendar year, and

• Do not have a fixed base regularly availa­ble in the United States for performing the services.
  
  

If they have a fixed base available in the United States, they are taxable on the income attributa­ble to the fixed base.

Pay received by residents of the People’s Republic of China for services performed as employees (dependent personal services) in the United States is exempt from U.S. tax if:

• The residents are present in the United States for no more than 183 days in the calendar year,
• The pay is paid by or for an employer who is not a U.S. resident, and
• The pay is not borne by a permanent es­tablishment or fixed base that the em­ployer has in the United States.

These exemptions do not apply to directors’ fees for service on the board of directors of a U.S. corporation.

These exemptions generally do not apply to income received as a public entertainer (such as a theater, motion picture, radio, or television artist, musician, or athlete). However, the income of athletes or public entertainers from China par­ticipating in a cultural exchange program agreed upon by the U.S. and Chinese govern­ments is exempt from U.S. tax.

Professors, Teachers, and Researchers

An individual who is a resident of the People’s Republic of China and who is temporarily in the United States primarily to teach, lecture, or con­duct research at a university or other accredited educational institution or scientific research institution is exempt from U.S. income tax on in­come for the teaching, lecturing, or research for a total of not more than three years.

This exemption does not apply to income from research carried on mainly for the private benefit of any person rather than in the public interest.

Students and Apprentices

A student, business apprentice, or trainee who is a resident of the People’s Republic of China on the date of arrival in the United States and who is present in the United States solely to ob­tain training, education, or special technical ex­perience is exempt from U.S. income tax on the following amounts.

• Payments received from abroad for main­tenance, education, study, research, or training.
• Grants or awards from a government, sci­entific, educational, or other tax-­exempt or­ganization.
• Income from personal services performed in the United States of up to $5,000 for each tax year.
  
  

An individual is entitled to this exemption only for the time reasonably necessary to com­plete the education or training.

Wages and Pensions Paid by a Foreign Government

Income, other than a pension, paid by the Peo­ple’s Republic of China or its political subdivi­sions or local authorities to an individual for services performed for the paying governmental body is exempt from U.S. income tax. However,
the exemption does not apply to payments for services performed in the United States by a resident of the United States who either:

• Is a U.S. citizen, or
• Did not become a U.S. resident only to perform the services.
  
  

Pensions paid by the People’s Republic of China for services performed for China are ex­empt from U.S. income tax unless the recipient is both a citizen and a resident of the United States.