Understanding FDAP Income: A Comprehensive Guide

Aug 1, 2023

As a leading accounting firm specializing in US international taxation, we understand the complexities and nuances that come with navigating the tax landscape, especially when it involves foreign income. One such complexity is Foreign Derived Adjustment Property (FDAP) income. This article aims to provide a comprehensive understanding of FDAP income, its implications, and how to manage it effectively.

What is FDAP Income?

FDAP income, as defined by the Internal Revenue Code (IRC) Section 871(a)(1)(A), refers to income, other than gains derived from the sale or exchange of property or income effectively connected with a trade or business within the United States, received from sources within the United States by a nonresident alien individual. This includes interest, dividends, rents, royalties, and compensation for personal services.

The general rule, as per IRC Section 871(a)(1)(A), is that FDAP income is subject to a 30% tax rate. However, this rate may be reduced or eliminated if a tax treaty exists between the United States and the foreign individual’s country of residence.

This 30% tax is generally withheld at the source. That is, the payer (such as a tenant paying rent or a corporation paying dividends) is responsible for withholding the tax and remitting it to the IRS. This ensures that the tax is collected even if the foreign individual does not file a US tax return.

Who is a Foreign Person?

A foreign person, as defined by the Internal Revenue Service (IRS), can be a non-resident alien individual, a foreign corporation, or a foreign entity. The tax rules and regulations differ for each type of foreign person, and understanding these differences is crucial for effective tax planning.

Beneficial Owner and Withholding Agent

The beneficial owner of the income, the person who is entitled to the benefits of the income, is the one liable for the tax on FDAP income. The withholding agent, typically the payer of the income, has the responsibility of withholding the tax and remitting it to the IRS. This could be a financial institution making a withholdable payment, a tenant paying rent to a foreign landlord, or a corporation paying dividends to a foreign shareholder.

Types of Income Subject to FDAP Taxation

FDAP income encompasses various types of income subject to withholding tax in the United States for foreign persons or entities. Understanding these types of income is crucial for accurate tax reporting and compliance.

1. Rental Income: Foreign individuals or entities earning rental income from real property situated within the United States are generally subject to FDAP taxation. This includes income derived from residential, commercial, or rental property.

2. Royalty Income: Royalties received by foreign persons or entities for the use of intellectual property, such as patents, copyrights, or trademarks, are considered FDAP income. These payments made by U.S. sources are typically subject to withholding tax.

3. Dividend Income: Foreign investors receiving dividends from U.S. corporations are subject to FDAP taxation. Dividends are generally considered passive income and may be subject to withholding tax unless reduced or eliminated by an applicable tax treaty.

4. Interest Income: Interest payments received from U.S. sources by foreign individuals or entities. This includes interest earned on bank deposits, bonds, loans, or any other interest-bearing instrument.

5. Capital Gains: Gains generated from the sale or disposition of U.S. real property by foreign individuals or entities are subject to FDAP taxation. These capital gains may be eligible for reduced tax rates under certain circumstances.

6. Periodic Gains: Certain periodic gains, such as annuities or pension payments, made to foreign persons by U.S. sources are subject to FDAP taxation. These payments are typically subject to withholding tax.

7. Other Types of Income: FDAP income also includes income from personal services, original issue discount (OID), and effectively connected income that does not meet the requirements for exclusion. It’s essential to consult a qualified tax professional or refer to IRS guidelines to accurately determine the specific types of income subject to FDAP taxation.

Income Tax Treaties and Withholding Tax

Income tax treaties play a significant role in the taxation of FDAP income. These agreements, negotiated between the United States and a foreign country, aim to avoid double taxation and prevent tax evasion. They often include provisions that reduce or eliminate the 30% tax on FDAP income. For instance, the tax treaty between the US and Canada reduces the tax rate on interest and dividends to 15%. This tax reduction is achieved through a lower withholding tax rate, applied by the withholding agent at the time of payment.

FDAP Income vs. Effectively Connected Income (ECI)

It’s crucial to distinguish FDAP income from Effectively Connected Income (ECI). While FDAP income is generally passive income from US sources, ECI is income effectively connected with a trade or business in the United States. According to IRC Section 871(b)(1), a nonresident alien engaged in trade or business within the United States during the taxable year shall be taxable as a US resident on income which is effectively connected with the conduct of such trade or business.

This distinction is important because the tax treatment of ECI is different from that of FDAP income. ECI is generally taxed on a net basis (that is, after deducting allowable expenses) at the same graduated rates that apply to US residents. In contrast, FDAP income is generally taxed on a gross basis (without deducting expenses) at a flat 30% rate (or lower treaty rate).

Capital Gains and Periodical Gains

Capital gains, the profit from the sale of a capital asset like stocks or real estate, are generally not considered FDAP income. Instead, they are usually taxed under a separate set of rules. However, certain capital gains, known as periodical gains, can be treated as FDAP income under specific circumstances. For example, gains from the sale of patents or copyrights can be treated as FDAP income if they are contingent on the productivity, use, or disposition of the property.

Offshore Obligations and Financial Institutions

Offshore obligations and financial institutions play a significant role in the FDAP income landscape. Payments made to satisfy these obligations can be considered FDAP income if they are from U.S. sources. Financial institutions often act as withholding agents, responsible for withholding the tax on FDAP income and remitting it to the IRS.

Social Security and U.S. Social Security

Social Security benefits can also be a source of FDAP income for nonresident aliens. If a nonresident alien has worked in the United States and earned enough credits, they may be eligible for U.S. Social Security benefits. These benefits can be considered FDAP income and may be subject to the 30% tax, unless exempted or reduced by a tax treaty.

Related: How to File IRS Form 8833: Expert Advice for U.S. Expatriates?

Business Income and Business Activities

Business income, or income effectively connected with a trade or business in the United States, is generally not considered FDAP income. However, certain types of business income, such as compensation for personal services performed in the United States, can be treated as FDAP income. The nature and extent of the foreign person’s business activities in the United States can have a significant impact on the classification and taxation of their income.

Income Taxes and Tax Withholding

Income taxes on FDAP income are generally collected through tax withholding. The withholding agent, typically the payer of the income, is responsible for withholding the tax and remitting it to the IRS. This ensures that the tax is collected even if the foreign person does not file a U.S. tax return. The rate of tax withholding is typically 30%, but it can be reduced or eliminated by a tax treaty.

Treaty Rule and Taxation on Capital Gains

The treaty rule, or the provision of a tax treaty that reduces or eliminates the tax on FDAP income, is a crucial tool for managing FDAP income. It can significantly reduce the tax liability of a foreign person, especially on income types like dividends and royalties. Taxation on capital gains, on the other hand, is generally outside the scope of FDAP rules, unless the gains are considered periodical gains.

Non-Resident Aliens and Flowthrough Entity

Non-resident aliens, or individuals who are not U.S. citizens or residents, are the primary subjects of FDAP rules. A flowthrough entity, such as a partnership or an S corporation, can also be subject to FDAP rules if it has FDAP income and foreign partners or shareholders.

Foreign Source and U.S.-Source Income

Foreign source income, or income from sources outside the United States, is generally not subject to FDAP rules. U.S.-source income, on the other hand, is the primary subject of FDAP rules. The source of the income is determined by a set of complex rules, and understanding these rules is crucial for managing FDAP income.

Foreign Income Taxes and Foreign Interest Income

Foreign income taxes, or taxes paid to a foreign country on income from foreign sources, can often be credited against U.S. tax liability. This can help avoid double taxation of the same taxable income. Foreign interest income, or interest income from foreign sources, is generally not subject to FDAP rules, unless it is effectively connected with a U.S. trade or business.

Withholding Tax and Federal Tax Withholding

Withholding tax, or the tax withheld by the payer of the income and remitted to the IRS, is the primary method of collecting tax on FDAP income. Federal tax withholding, or the withholding of federal income tax, is required for certain types of payments, including FDAP income.

Remember, every individual’s tax situation is unique, and this article provides general information. For personalized advice, please consult with a tax professional.

At 1040 Abroad, we understand that navigating international tax laws can be complex and challenging. We’re here to make your tax filing as an expat stress-free and efficient. If you have any questions or need clarification on anything related to FDAP income or any other tax-related concerns, feel free to reach out to us at info@1040abroad.com. We’re committed to providing you with free, expert tax advice to ensure you have a clear understanding of your tax obligations.

Written by

Kasia Strzelczyk, EA

A certified accountant and IRS enrolled agent with over 8 years of experience working with US expats. With a deep understanding of the unique financial challenges faced by expats, Kasia is dedicated to helping clients navigate complex tax laws and regulations.

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