Section:
Effective: 07/01/1993
Supersedes: 03/01/1993
Next Review Date:
Issuance Date: 07/01/1993
Issuing Office: General Accounting Division
University of California Accounting Manual
T-182-27 Taxes: Federal Taxation of Aliens
D-371-77 Disbursements: State Tax Withholding from Non-Resident, Non-Employees
Internal Revenue Service Publication 519, "U.S. Tax Guide for Aliens"
UCSD Rules and Procedures to Comply with the Immigration Reform and Control Act of 1986, Staff Personnel Office, March, 1992
BACKGROUND
In 1986 the Federal legislature passed two laws which had significant impact upon the responsibilities of persons or entities who make payments to aliens. The laws are the Tax Reform Act of 1986 and the Immigration Reform and Control Act of 1986 (IRCA). The result of these acts is that greater emphasis has been placed upon a payer to ensure the propriety of any payment to a non-U.S. citizen. Inherent in the acts are requirements for verification of documentation, clearer definitions of residency for tax purposes, alternative or unique tax withholding regulations, and updated reporting requirements. As the effects of these regulations have made their way into the University, they have been implemented through various green sheet distributions. This issuance consolidates the new regulations into a single document.
POLICY
With respect to compensation, the University's relationship with non-citizen individuals exists in two forms; that of an employer or that of a payer of non- employee compensation. Examples of non-employee compensation include, but are not limited to, payment for independent personal services, such as honoraria, payments to independent contractors or consultants, performers, scholarship or fellowship recipients, or travel reimbursements. Information outlined in and required by this Policy and Procedure issuance allows the University to make appropriate decisions regarding the legal hiring, income tax withholding, income tax treaty application, and income tax reporting for non-citizen individuals.
FORMS
INS Form I-9 Employment Eligibility Verification (Exhibit A)
The most common types of alien employment eligible status at the University, are the "J" (exchange visitor), "F" (student), and "H" (temporary visitor of distinguished merit and ability). Each of these permit the bearer to be paid compensation for services performed and to be reimbursed for expenses incurred. The alien can assert such employable status by offering a copy of his/her form I-94 Departure Record or IAP-66 Certificate of Eligibility for Exchange Visitor Status, as evidence at the time of hiring. Instructions for the proper completion of this form can be found in Exhibit A.
UCSD Form AT-1 Statement of Citizenship Status (Exhibit B)
This statement offers background information to assist the Accounting Office/Payroll Division in determining residency for tax purposes. All information should be provided because the answer to each question furnishes valuable insight into the proper tax treatment of the visitor. This form should be completed by all non-citizen individuals. Clearly some of the information requested is not relevant for permanent residents (Green Card holders) in which case "N/A" should be indicated at the point of the inapplicable question.
IRS Form 8233 Exemption from Withholding on Compensation for Independent Personal Services of a Nonresident Alien Individual (Exhibit C)
Contrary to its name, this form is required for anyone who desires to be considered for exemption from Federal Withholding Tax under the terms of an income tax treaty between the U.S. and their country of permanent residence. (See Supplement I for a summary of tax treaties). The exemption, if granted is only good for the current calendar year (ending December 31). Should the alien desire to continue his/her exemption, he/she must submit a new Form 8233 for further consideration in the next calendar year. The Accounting office will notify all aliens of currently expiring status to renew their exemption requests where it is warranted for the new year. The form 8233 is not to be used by aliens who ultimately expect to make the U.S. their permanent home. Instructions for the completion of this form are found at the bottom of, and upon the reverse side of Exhibit C.
IRS Form 1078 Certificate of Alien Claiming Residence in the United States (Exhibit D)
The Form 1078 should be filed only when an alien can claim residency for tax purposes after qualifying under the Substantial Presence Test. (See Section V(A)). Normally a newly arrived H-1 status alien can claim this tax status if he/she will be in the U.S. for more than 183 days in the current taxable year (January 1 through December 31). This form is no longer required to be filed by the holder of an Alien Registration (Green) card.
UCSD Form AT-2 Withholding Tax Status (Exhibit E)
This form is a confirmation to the employee by the Accounting Office of its determination of the alien's income tax status. It is useful by the alien upon filing of annual tax reports to determine the appropriate annual Individual Income Tax Return form to file. It is also useful upon departure from the U.S. as a demonstration of tax status during the alien's visit to the U.S.
California Form 590 Certificate of California Residence (Exhibit F)
This form is only used by graduate students who are U.S. citizens and holders of Alien Registration (Green) cards who wish to demonstrate to the Office of Graduate Studies and Research that they are California residents when there is a doubt as to the true residency of the individual. This form is not appropriately used by a nonimmigrant (visiting) alien.
California Form 591A Certificate of Non California Residence For Report of Tax withheld at Source From Payments to Nonresidents (Exhibit G)
This form is to be filed only by individuals who are recipients of graduate, or post doctoral, scholarship or fellowship payments and who are:
U.S. citizens and permanent resident aliens who have not resided in California for all twelve months of a calendar year, even if the scholar is a new California Resident who intends to make this State their permanent home, or
aliens holding a nonimmigrant visitor's visa.
For those predoctoral students who must file Form 591A, their payments will be received through the payroll system and not the vendor system in order that State tax will be withheld.
When the minimum time necessary has passed to qualify for residency, then a U.S. citizen or an immigrant scholar should complete the California Form 590, Certificate of California Residence.
Note: the Form 590 does not apply to nonimmigrants.
Form AT-6 Provisional Tax Statement Worksheet (Exhibit H)
In order to begin the process for an orderly departure by certain non-U.S. citizens from the U.S., the completion of this form by the department is the first step. Nonresident aliens holding F, J, or M visas are exempt from this process. When the completed Form AT-6 is received by the Payroll Division, a turnaround document called a Provisional Tax Statement will be generated. The wage and tax information reflected on the Provisional Tax Statement is the means for the departing alien to address his/her income tax liability upon departure. (See Section VII for further information.)
Form AT-8 Provisional Tax Statement Instructions (Exhibit I)
Accompanying the provisional wage and tax information furnished to a non-citizen employee departing from the U.S. will be information directing the departing alien to the Internal Revenue Service, indicating the required supporting documentation needed, and explaining the final process to obtain tax clearance before departure.
Any of these forms may be photocopied from the exhibits as needed. As an alternative, departments can call the Payroll Division, extension 40291, to obtain copies.
PROCEDURES
Determination of Residency for Income Tax Purposes
Visa Classifications
Documentation
Passport and Form I-94
Form IAP-66 (if a J-1 visa), or Form I-20A-ID (if an F-1 visa)
One other form of photo identification, such as a UCSD student or staff identification card, or a driver's license.
An official UCSD document signed by an appropriate official, such as a letter from the department or a copy of the Personnel Action Form.
If the alien has applied for, but not yet received the number, a Receipt for Application for Social Security Number must be affixed to the appointment packet before it can be processed by the Accounting Office.
A new Social Security number is usually issued within two to five weeks of the date of application. As soon as the number is received, the Accounting Office/Payroll Division must be notified so that the records can be updated. In some cases the Social Security card may be stamped "Not valid for employment." This means that the applicant is probably an F-1 visa holder, and, as a student, this individual may not be lawfully employed outside the institution in which he/she is registered as a student.
Compensation from University sources.
Generally an alien falls into one of three classifications in terms of residency for federal income tax purposes:
A permanent resident alien is one who has been granted the legal right to live and work in the United States without restriction. Typical evidence of this status is the "Alien Registration Card" commonly referred to as the "Green Card." Other aliens may possess a "Conditional Resident" card which also permits its holder the same rights and privileges, however only until the expiration date indicated on the card.
A non-resident alien who qualifies under the terms of the "Substantial Presence Test" or by right of marriage to a U.S. citizen or legal permanent U.S. resident is considered a resident for tax purposes. Except in specific circumstances it is probably more advantageous for an alien to be treated as a resident for tax purposes where he/she qualifies. The Substantial Presence Test is a formula which is applied to determine the number of qualifying days under Internal Revenue Service guidelines by which a nonresident alien can be considered a resident for Federal tax purposes:
Was the individual physically present in the U.S. for at least 31 days during the current calendar year with other than an F or J visa?
If yes, go on to b.
If no, the individual does not pass the test and is considered a nonresident for tax purposes.
Was the individual physically present in the U.S. with other than an F or J visa for 183 days in the current and two preceding calendar years calculated as follows?:
| # of days present in current year | X 1 = | _______ |
| # of days present last year | X 1/3 = | _______ |
| # of days present two years ago | X 1/6 = | _______ |
| Total days present | _______ |
If total days present are equal to or greater than 183 in accordance with the formula above, the individual can be considered a resident alien for tax purposes (but not for immigration purposes).
If total days present equal less than 183 days, the individual is classified as a nonresident alien.
A special rule applies for students who are F or J visa holders. That is, the student must complete a five-year waiting period before the substantial presence test can be applied. And even then, none of the five years of the waiting period can be used in the formula to determine residency.
A special rule applies for nonstudent J visa holders. That is, the individual must complete a two-year waiting period before the substantial presence test can be applied. And even then, neither of the two years of the waiting period can be used in the formula to determine residency. Another rule dictates that after a nonstudent J visa holder has served a two-year waiting period in any six-year period, he/she may be considered a resident for tax purposes for any year in which he/she is present in the U.S. for more than 183 days. For example he must have filed a nonresident tax return for any two of the preceding six taxable years.
A nonimmigrant alien (one who is not a permanent legal resident) who does not qualify for residency under any of the conditions above is considered a nonresident for tax purposes. There may be some advantages to this status as certain types of income may be exempt from U.S. taxation.
The type of visa held by each alien authorizes its holder to engage in activities within the U.S. as described below:
| TYPE | DESCRIPTION |
| A | Foreign diplomats and their immediate families, may enroll as a student but can only accept employment under strict circumstances. |
| B-1 | Temporary visitor for business, cannot accept any employment for which they are paid by a U.S. institution, but may accept reimbursement for travel and per diem. |
| B-2 | Temporary visitor for pleasure or "prospective student," may not accept employment or reimbursements in any form. |
| C | Alien in transit, cannot accept any employment in the U.S., limited to 29-day stay. |
| D | Alien crewman on shore leave or transferring to another vessel or aircraft, may accept U.S. employment only in any capacity required for normal operation and service on board a vessel or aircraft, may not remain in the U.S. for more than 29 days. |
| E | Treaty trader or treaty investor and dependents, may enroll in school, but (except in certain cases) are not permitted to accept paid employment in the U.S. |
| F | Student status visa, confirmed by holder's Form I-20-A designating educational institution of affiliation. Student may also perform personal services for pay within the same institution. An extension may be granted to allow a newly graduated student to perform practical training within his/her field of expertise and for which he/she may be compensated. |
| G | Representatives and employees of international organizations and related personnel, may enroll as a student, but can only accept employment under strict circumstances. |
| H | A visitor of distinguished merit and ability to perform temporary services of an exceptional nature. |
| I | Representatives of foreign information media and immediate family, may enroll as a student, and is not normally permitted to accept employment. |
| J | Exchange visitor who is in the U.S. under a Department of State approved program for study, teaching, research or training. |
| K | Fiancee of U.S. citizen, permitted to remain in the U.S. a maximum of 90 days pending marriage to the petitioner. |
| L | Intracompany transferee and immediate family, may be employed by a U.S. affiliate of the corporation for which the alien regularly works in his homeland, and may enroll as a student. |
| TC-1 | Special classification established as a result of the U.S.-Canada Free-Trade Agreement. Permits its holder to accept employment in the U.S. for up to one year. |
Except for those aliens admitted specifically to work, such as those outlined above, nonimmigrant aliens normally may not accept employment in the United States. Students and exchange visitors may, with written permission, accept certain employment. A nonimmigrant alien is subject to INS sanctions if he/she violates the terms of admission; abandons his/her status; overstays the period of admission; engages in criminal, immoral, narcotic or subversive activity; or accepts unauthorized employment.
Visa and Passport
Depending on the nature of the proposed visit to the U.S., an application for visa is filed by the alien, or a U.S. sponsor. When the application is approved, a visa is granted. The visa is only a visiting status with an expiration date. This information is contained along with other identifying information in a document known as a passport. The visa expiration date is the last date that a visiting alien may enter the U.S.
Form I-94 Arrival and Departure Permit
At the port of entry supplemental documentation is affixed to the passport. The most common form of this documentation is the Form I-94 Arrival and Departure Permit, and is the actual document which authorizes its bearer to function within the U.S. The I-94 reflects the visiting status (i.e. J-1, H-1, etc.), the expiration date of that status, the alien's country of citizenship, and possibly the authorized U.S. institutional affiliation. Aliens who enter the U.S. with the F-1 status also receive a Form I-94 at the port of entry. One major difference, however, is that the I-94 status expiration date is often indicated as "D/S" which is an Immigration and Naturalization Service (INS) expression for "Duration of Stay." This means that so long as the student continues in an approved program of study at his/her authorized institution, he/she may remain in the U.S. until he/she has completed the program.
As the expiration date of the I-94 approaches, the visitor must either prepare to leave the country, or apply for an extension of status. If the extension of status is granted, the I-94 will be annotated by an INS authority. The extension may change the status (i.e. from J-1 to H-1) as well as extend the time authorized in status. Thus the original visa information as indicated in the passport may no longer be valid, while an updated I-94 allows the visitor to legally continue his/her business in the U.S. The disadvantage of this situation is that should the alien desire a temporary exit from the U.S., a renewed visa would be required to reenter, even though the I- 94 may still have authorized the alien's legal presence. THE I-94, NOT THE VISA, IS THE ONLY VALID INDICATION OF CURRENT STATUS WHILE IN THE U.S.. IF THE I-94 HAS EXPIRED AND WILL NOT BE RENEWED, IT IS THE EMPLOYER'S RESPONSIBILITY TO IMMEDIATELY TERMINATE THE INDIVIDUAL.
Taxpayer Identification Number
The University is required to furnish to Federal and State tax agencies a taxpayer identification (Social Security) number for each employee. Failure by the University to furnish this number can result in a financial penalty for each omission. Thus, it is mandatory that each alien supply the University with such a number. If the alien has not had one issued to him by the Social Security Administration, he is required to apply for one.
The nearest office of the Social Security Administration is located at 1940 Garnet Ave., Suite 207 in Pacific Beach. The applicant must bring the following items when applying for a Social Security Number:
Compensation for Employment
Verification of Employment Eligibility and Tax Status Determination
Under the terms of the Immigration Reform and Control Act, the University may not "employ" any alien who does not have the legal right to work. One of the requirements of the Act is that the employer is required to complete the Form I-9, Employment Eligibility Verification. If the new employee is not a citizen and not a permanent resident alien, as evidenced by his/her assertions on the Form I-9, a series of inquiries must be made to establish the alien's right to work, withholding tax status, and the University's tax reporting requirements for that individual. The following forms must be attached to the employment packet as required (see Section IV.):
INS Form I-9, Employment Eligibility Verification
Form AT-1, Statement of Citizenship Status
IRS Form 8233 Exemption from Withholding on Compensation for Independent Personal Services of a Nonresident Alien Individual, if appropriate.
IRS Form 1078, Certificate of Alien Claiming Residence in the United States, if appropriate.
Income Tax Withholding
"Residency" is a nebulous term. It has several different meanings depending upon the context in which it is used. A "resident" for income tax purposes has a different connotation than a "resident" for immigration purposes. Further, a "resident" for Federal Income tax purposes is different than a "resident" for California State Income tax purposes.
Resident Aliens
Aliens who are employed by UCSD, and are determined to be "resident" for tax purposes are subject to tax withholding on the same basis as United States citizens. There are no limitations on the choice of marital status or the number of exemptions which they can claim on a Form W-4, Employee's Withholding Allowance Certificate.
Non-Resident Aliens
Aliens who are employed by UCSD, and are determined to be "non-resident" for withholding tax purposes may be treated in one of two ways:
If the non-resident alien qualifies for exemption from federal withholding under the terms of an income tax treaty with his/her country of permanent residence, no federal tax will be withheld from the alien's paycheck as long as the alien continues to qualify under the treaty terms for continued exemption.
If the non-resident alien does not qualify for exemption from federal withholding tax under the terms of an income tax treaty, IRS directives dictate that federal tax be withheld from the alien's paycheck at the rate calculated for a single person, claiming only one exemption. This would be true without regard to the alien's actual marital status or number of dependents. (There are exceptions to this rule for residents of Canada, Mexico, Japan and South Korea.)
As for State income tax withholding, the non-resident alien is permitted to claim appropriate marital status and number of qualified dependents the same as a U.S. citizen.
Determination of Tax Status
After the Accounting Office has reviewed all documentation pertaining to the alien's appointment, a form entitled Withholding Tax Status (see Exhibit E) will be forwarded to the appointee reflecting the tax status as determined by the Accounting Office.
Health and Life Insurance
Nonimmigrant aliens should be advised of The Regents' requirement that health insurance coverage must be carried as a condition of employment (See PPM 200-21). Depending upon their appointment, alien employees may qualify for a University sponsored health plan. If not, the alien must provide evidence of other outside health plan coverage which will equal or provide greater benefits than the minimum the University plans provide. A certification of coverage is required of all such employees and should be forwarded with their Employment forms. Questions concerning these requirements for non-students should be directed to the UCSD Benefits Office for further clarification. Foreign students must enroll in a special student health insurance plan as a condition of registration. Questions concerning the student plan should be directed to Student Health Services.
Salary Advances
The Assistant Vice Chancellor, Financial Services has been delegated the authority to approve salary advances to newly appointed aliens not to exceed $8,000 to any one person. By letter dated September 16, 1985, former University of California President Gardner stated that "the purpose of such advances is to assist aliens employed on research contract or other University activities to cover costs of subsistence and travel when currency restrictions prohibit them from taking sufficient funds out of their countries to defray such costs, with the understanding that repayment of such advances shall be made within six months after arrival or within the period of appointment, whichever is earlier." Should such a salary advance be required, a letter from the hiring department chair to the Assistant Vice Chancellor, Financial Services should provide the following information:
The full name of the newly arrived alien,
The new appointee's salary rate and title,
The proposed length of appointment,
The amount of the salary advance required, and
The proposed payback schedule (in accordance with President Gardner's directive above.)
Upon approval by the Assistant Vice Chancellor, the letter will be forwarded to the UCSD Payroll Division where a Form U5- 6, Check Request will be prepared. When the salary advance check becomes available, it will be disbursed to the hiring department by campus mail unless a request for "pickup" has been made.
Scholarship and Fellowship Payments (Stipends)
By definition, a payment made to a Pre/Postdoctoral Fellow is not of a payroll nature -- that is, there is no employer-employee relationship between the University and a fellowship recipient. However, the payroll compute programs are used to generate nonimmigrant and non-California resident predoctoral and all postdoctoral fellowship checks in much the same way that salary payments are provided to regular employees. As such, complete documentation for each fellow is required to ensure accurate tax withholding and reporting. Depending upon whether the scholarship or fellowship payment is being made to a degree candidate or a non-degree candidate, and the alien's immigration status, the payment procedure is quite different
Degree Candidates Who are Permanent U.S. Residents and Permanent California Residents.
Permanent Resident Aliens (Green Card holders) who are candidates for a degree and who are receiving undergraduate or graduate scholarships or fellowships, and who are permanent California Residents, are paid by vendor check (through the Disbursements Division). The following conditions and requirements are associated with payments to this type of candidate:
Additional Forms Required:
Form AT-1 Statement of Citizenship Status
Form 590, Certificate of California Residence
If it is not apparent that a Permanent Resident Alien (Green Card holder) is a resident of California but he/she asserts that he/she is, he/she must complete Form 590 to prevent mandatory state tax withholding.
Copy of Alien Registration (Green) card if the candidate is a legal permanent U.S. resident.
Taxation:
Aliens in this status will not have any State or Federal Income tax deducted from their stipend payments. However, they should be informed that if their income is at least partially taxable, they should be filing quarterly estimated State and Federal income tax returns to address their liability.
Degree Candidates who are Nonimmigrants (Visitors), or who are Permanent U.S. Residents but not California Residents
All aliens in this status are paid through the use of the payroll compute programs. The following conditions and requirements are associated with payments to this type of candidate:
Additional Forms Required:
Form AT-1 Statement of Citizenship Status
Form 591A, Certificate of Non California Residence for Report of Tax withheld at Source from Payments to Nonresidents (for Green Card Holders or U.S. citizens only).
If a Permanent Resident Alien (a Green Card holder) asserts that he/she is a permanent resident of a location outside the State of California, he/she must complete the Form 591A.
Form W-4, Employee's Withholding Allowance Certificate.
Copy of the Alien Registration (Green) card if the candidate is a legal permanent U.S. Resident.
Copy of Form I-94 Arrival and Departure Permit if the candidate is not a legal permanent resident.
State Tax Withholding
All aliens in this classification will be subject to State Tax withholding in accordance with the Form W-4 on file at the time of payment. State tax law dictates that withholding through stipend deduction is mandatory for all non- California residents.
Federal Tax Withholding
Nonimmigrant (Visiting) Aliens
Nonimmigrant (visiting) aliens will fall into one of two categories for Federal tax withholding purposes:
Aliens exempted from Federal tax under the terms of an income tax treaty.
Nonimmigrant aliens who find themselves in this category will not have any Federal income tax withheld from their stipend payments.
Aliens who do not qualify under a tax treaty for Federal tax exemption.
Nonimmigrant aliens who find themselves in this category will experience tax withholding at the rate calculated for a single person, claiming only one exemption.
Permanent Resident (Green Card) Aliens who are not California Residents
While it is extremely convenient, it is not mandatory for these aliens to have Federal tax deducted from their stipend payments. However, they should be informed that if their income is at least partially taxable, they should be filing quarterly estimated Federal income tax returns to address their probable tax liability.
Non-degree Candidates (Postdoctoral Fellows/Scholars)
Payments to all aliens in this classification will be provided through the use of the payroll compute programs in much the same manner as an employee receives compensation. In additional to the typical paperwork required for a Postdoctoral Fellow, the following items are required for those who are not U.S. citizens:
Additional Forms Required:
Form AT-1 Statement of Citizenship Status
Form 8233, Exemption From Withholding on Compensation for Independent Personal Services of a Nonresident Alien Individual.
If a fellowship exemption exists in a tax treaty with the alien's country of permanent residence, submit Form 8233 to be considered for the tax exempt status.
Form 1078, Certificate of Alien Claiming Residence in the United States if appropriate. (See Section IV above.)
Copy of the Alien Registration (Green) card if the scholar is a legal permanent U.S. Resident.
Copy of Form I-94 Arrival and Departure Permit if the scholar is not a legal permanent resident.
State Tax Withholding for Alien Non- degree Candidates
All Nonimmigrant (visitor) aliens, and Permanent Resident (Green Card) Aliens who are not Permanent California Residents.
Aliens in this classification will be subject to State Tax withholding in accordance with the Form W-4 on file at the time of payment. State tax law dictates that withholding through stipend deduction is mandatory for all non-California residents.
Permanent resident aliens who are also permanent California residents.
While it is extremely convenient, it is not mandatory for these aliens to have State tax deducted from their stipend payments. They should be informed, however, that since their income is taxable, they should be filing quarterly estimated State income tax returns to address their probable tax liability.
Federal Tax Withholding
Nonimmigrant (Visiting) Aliens
Nonimmigrant (visiting) aliens will fall into one of two categories for Federal tax withholding purposes:
Aliens exempted from federal tax under the terms of an income tax treaty.
Nonimmigrant aliens who find themselves in this category will not have any federal income tax withheld from their stipend payments.
Aliens who do not qualify under a tax treaty for federal tax exemption.
Nonimmigrant aliens who find themselves in this category will experience tax withholding at the rate calculated for a single person, claiming only one exemption.
Permanent Resident (Green Card) Aliens
While it is extremely convenient, it is not mandatory for these aliens to have Federal tax deducted from their stipend payments. They should be informed, however, that since their income is taxable, they should be filing quarterly estimated Federal income tax returns to address their probable tax liability.
Non-employee compensation (Vendor Payments)
While the Immigration Reform and Control Act of 1986 focused upon the unlawful employment of improperly documented aliens, it did not place the same responsibility for scrutiny upon payers of non-employee compensation. Thus, the University is permitted to issue payment for limited non-employee/employer services and reimbursement for travel expenses to non- citizens who are present in the United States on a B1 or B2 visa. Payments made to nonresident aliens on visits of short duration will be handled in the following manner:
Payments for limited services performed
Payments of honoraria or other compensation for services can be made to nonresident aliens engaged as independent contractors without regard to visa classification. However, such payments are taxable in accordance with federal and state laws and the applicable tax treaty, if any, with the alien's country of residence. In order to determine the correct federal withholding rate, the alien must complete and attach the following documentation to the item requesting compensation for independent personal services performed:
Statement of Citizenship Status, and
If a tax treaty exists with the alien's country of permanent residence, Form 8233 Exemption From Withholding on Compensation for Independent Personal Services of a Nonresident Alien Individual.
Payments for reimbursement of expenses
Payments for the reimbursement of expenses, such as travel, can also be made regardless of visa restrictions to nonresident aliens engaged as independent contractors or invited to attend recruitment interviews. These payments represent reimbursement of an expense rather than an income payment which some visitors are not eligible to accept. Since payments for reimbursement of expenses are not compensatory in nature, the University is under no obligation for income tax withholding or reporting.
Additional responsibilities
The departmental administrator shall have the responsibility to inform a foreign visitor that they are incurring some risk with the Immigration and Naturalization Service (INS) if they accept payments while in a B-2 (tourist) or similar visa status that does not permit the receipt of any payment from a United States source. While there is no provision under the law for sanction or penalty against the University if it makes a payment not allowable under a particular visa category, the alien is nonetheless bound by the limitation of his or her visa and may be subject to sanctions imposed by the INS for noncompliance. Consequently, it is essential that the inviting department advise all prospective foreign visitors regarding the importance of obtaining the proper visa classification in order to assist the alien in making an informed decision.
Taxation of Non-employee Compensation
Depending upon "residency" status, a non- payroll payment to an alien could have various tax ramifications.
Resident Alien - Federal Tax Withholding
A non-payroll payment to a resident alien for federal tax withholding purposes is the same as that for a U.S. citizen--there is no requirement for the payer to withhold Federal tax. However, it may well be taxable income to the recipient who is required to file a quarterly estimated Federal tax return to avoid possible future penalty and interest payments.
Resident Alien - State Tax Withholding
Permanent Resident Aliens (Green Card Holders) who are also California Residents
A non-payroll payment to such an individual is treated the same as that for a U.S. citizen--there is no requirement for the payer to withhold State Income tax. However, it may well be taxable income to the recipient who is required to file quarterly estimated State tax return to avoid possible future penalty and interest payments.
Permanent Residents (Green Card Holders) who are not California Residents
A non-payroll payment to such an individual is subject to a probable 5% State withholding tax if the cumulative calendar year payments total $1,500 or more. The State Franchise Tax Board requests that all such payments be reported to them for a rate determination before payment is made.
Nonimmigrant (Visiting) Aliens - Federal Tax Withholding
Nonimmigrant (visiting) aliens will fall into one of two categories for Federal tax withholding purposes:
Aliens exempted from Federal tax under the terms of an income tax treaty.
Nonimmigrant aliens who find themselves in this category will not have any Federal income tax withheld from their vendor payments.
Aliens who do not qualify under a tax treaty for Federal tax exemption.
Nonimmigrant aliens who find themselves in this category will experience a 30% Federal withholding tax rate.
Nonimmigrant (visiting) Aliens - State Tax Withholding
A non-payroll payment to such an individual is subject to a probable 5% State withholding tax if the cumulative calendar year payments total $1,500.00 or more. The State Franchise Tax Board requests that all such payments be reported to them for a rate determination before payment is made.
Summary information regarding compensation from University sources may be reviewed in the following:
Supplement II - New Hire Attachments to PAF
Supplement III - Deductions from Resident Aliens
Supplement IV - Deductions from Non- Resident Aliens
TAX TREATIES
Nonresident aliens from countries with which the United States has an income tax treaty may be eligible for exemption from Federal Withholding Tax and U.S. Federal Income Tax liability if they meet the requirements of the treaty. (See Supplement I for a summary list of tax treaty exemptions.) Note that tax treaty articles usually are based on residence rather than citizenship. Thus, for example, a citizen of Turkey (with which the United States does not have a tax treaty) who is a resident of Greece may qualify under the terms of the Greek treaty for exemption from U.S. Federal income tax liability.
Generally, five types of tax treaty articles may apply to certain payments by the University. These are:
Independent Personal Services
Examples of payments of this type include honorarium, independent consultant, independent contractor, or performer. Typically the exemption is granted for short stays of fewer than 180 days in the U.S. Some treaties also impose a maximum annual dollar limitation on earnings.
Dependent Personal Services
Examples of payments of this type include payments to persons who are "employed" by the University usually for a period of less than 180 days.
Dependent Personal Services During Training
Examples of payments of this type include payments to persons who are "employed" by the University but also must be enrolled as a student. There is commonly no time maximum, however there is usually a maximum dollar limitation on earnings per calendar year.
Teaching and/or Research
Examples of payments of this type most often include payments to persons who are "employed" by the University to perform teaching and/or research functions. Some treaties do not exempt research, while other treaties extend the research exemption to those who perform research in a "non-employed" capacity such as a postdoctoral fellow. The treaties often require that the exempted person is a faculty member or professional researcher in their homeland before the treaty exemption can be granted. These teaching/research exemptions are not generally extended to Research, Teaching, or Language Assistant graduate student appointments. Most treaties have a two-year limitation of this exemption where it applies.
Fellowship and/or Scholarship Exemption
Examples of payments of this type are restricted to non-payroll payments of scholarship or fellowship payments. Sometimes the exemption is only granted on scholarship income received from abroad. Many treaties have a five-year limitation for this exemption.
It is essential to note that the language of each tax treaty is unique. Each request for exemption (Form 8233) will be examined on its own merits within the context of the pertinent treaty. The fact that a request has been submitted does not guarantee a tax exempt status for that individual. Departments are invited to discuss unclear cases with the Payroll Division. It should also be noted that when a tax exemption is granted, it is only applicable to Federal Income Tax. Income tax treaty exemptions do not extend to State Income Tax. All persons who earn income while working within California generate a potential state tax liability without respect to where their place of permanent residence lies.
SAILING PERMITS
Except for the cases outlined in E. below, a nonresident alien employee who is ready to depart from the United States must obtain a tax clearance (often called a Sailing Permit) from the Internal Revenue Service. To obtain the Sailing Permit a four-step process must be completed:
For holders of Alien Registration (Green) cards and other nonimmigrant aliens who have achieved "residency" for Federal withholding tax purposes the Statement will be produced in the form of a Form W-2, Wage and Tax Statement, but with the annotation that it is a "Provisional" statement.
For nonimmigrant aliens who do not qualify for exemption from Federal withholding tax under the terms of a U.S. Income Tax treaty, a notarized letter will be generated, bearing wage and tax information.
For nonimmigrant aliens who do qualify for exemption from Federal withholding tax under the terms of a U.S. Income Tax treaty, a Form 1042S, Foreign Person's U.S. Source Income Subject to Withholding will be provided.
Alien students, industrial trainees, and exchange visitors, including their spouses and children, who enter on F, H-3, H-4 or J visas only and who receive no income from U.S. sources while in the U.S. under those visas other than:
Allowances to cover expenses incidental to study in the U.S., such as stipend payments.
The value of any perquisites such as food and lodging connected with an authorized course of study.
Income from employment authorized by the INS.
Alien visitors for business on a B-1 visa, or B- 1/B-2 visa, who do not remain in the U.S. for more than 90 days during the tax year.
Alien residents of Canada or Mexico who frequently commute between that country and the U.S. for employment, and whose wages are subject to the withholding of U.S. tax.
Additional Information
The Internal Revenue Service Publication 519 U.S. Tax Guide for Aliens is an overview of responsibilities facing the nonimmigrant visitor to the United States. This publication is available free of charge by telephone call to the IRS Form Request Line. The telephone number is 1 (800) 829-3676. The Publication 519 can be received by mail within approximately two weeks of the request.
- A valid passport with your Alien Registration Card or Visa.
- Copies of your U.S. income tax returns filed for the past 2 years. (If you were in the United States for less than 2 years, bring copies of the income tax returns you filed in that period.)
- Receipts for income taxes paid on these returns.
- Receipts, bank records, canceled checks and other documents that prove your deductions, business expenses, and dependents claimed on the returns.
- A statement (your enclosed provisional tax statement) from each employer you worked for this year, showing wages paid and tax withheld. If you are self-employed (i.e. received honorarium payment(s) from outside UCSD), you must bring a statement of income and expenses up to the date you plan to leave.
- Proof of any payments of estimated tax for the past year, as well as the current year.
- Documents showing any gain or loss from the sale of personal property, including capital assets and merchandise.
- Documents concerning scholarships or fellowship grants
- Copies of the application for, and approval of, the grant,
- Statement of the amount paid, and the duties and obligations under the grant, and
- List of any previous grants.
- Documents indicating qualification for special tax treaty benefits.
___________________________________________________________________________________
IRS Address: 880 Front Street 9:00am to 4:30pm
AT-8 (rev. 8/90)
San Diego, CA Office Hours
SUPPLEMENT I
DEDUCTIONS FROM NON-RESIDENT ALIENS
Supplement I is available for printing/viewing in Acrobat Adobe PDF Format
SUPPLEMENT II
NEW HIRE ATTACHMENTS
Supplement II is available for printing/viewing in Acrobat Adobe PDF Format
SUPPLEMENT III
DEDUCTIONS FROM RESIDENT ALIENS Supplement III is available for printing/viewing in Acrobat Adobe PDF Format
(As Defined for Tax Purposes)
SUPPLEMENT IV
DEDUCTIONS FROM NON-RESIDENT ALIENS Supplement IV is available for printing/viewing in Acrobat Adobe PDF Format
(As Defined for Tax Purposes)
EXHIBIT A
EXHIBIT A is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT B
EXHIBIT B is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT C
EXHIBIT C is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT D
EXHIBIT D is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT E
EXHIBIT E is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT F
EXHIBIT F is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT G
EXHIBIT G is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT H
EXHIBIT H is available for printing/viewing in Acrobat Adobe PDF Format
EXHIBIT I
EXHIBIT I is available for printing/viewing in Acrobat Adobe PDF Format
Accounting Office/Payroll Division
In accordance with your request, you will find enclosed a provisional tax statement covering payments made to you from January 1 of the current year to the date of your departure.
Before your departure from the United States you must file Form 1040C, U.S. Departing Alien Income Tax Return. Upon successful completion of this process you will be issued a Certificate of Compliance, otherwise known as the "Sailing Permit" or "Tax Clearance," which you must possess in order to legally exit the United States.
You must obtain your tax clearance from the Internal Revenue Service. It will be necessary that you appear in person at the address shown below during the hours indicated. The office is open Monday through Friday, except for holidays.
A separate clearance is needed for each departing alien. If both husband and wife are aliens and leaving the country, both must appear even though joint tax returns are filed.
We suggest that you get your "Sailing Permit" at least two weeks before departure, but not earlier than 30 days before departure. Do not wait until the last minute as there may be some unexpected problems to settle.
Obtaining your "Sailing Permit" will be made easier if you take to the Internal Revenue Office papers and documents related to your income and stay in the United States. The following is a list of some of these papers and documents: