Tax Treaties, Saving Clause & Exception to Saving Clause

Overview of Tax Treaties:

The United States has income tax treaties with a number of foreign countries. Under these treaties, residents (not necessarily citizens) of foreign countries are exempt from US income tax or taxed at a reduced rate on certain types of income received from a US source.  The tax treaties vary; some allow for tax exemption and reduction on many different types of income while others do not.  If  a tax treaty does not address a specific type of income, then no tax exemption or reduction can be applied to that income and persons receiving that income will have to pay US federal income tax.   

Do States Honor Tax Treaties?:

Some states honor the provisions of U.S. tax treaties but some states do not. The state of Tennessee does not require individual income tax withholding so international persons living in Tennessee and receiving income from a US source do not pay state income tax.  If you do not live in Tennessee, or are required to file a tax return in another state, please check the requirements of that state with the appropriate state revenue office.

Students, Apprentices, Trainees, Teachers, Professors, and Researchers Who Became Resident Aliens for Tax Purposes:

Generally, you must be a nonresident alien student, apprentice, trainee, teacher, professor, or researcher in order to claim a tax treaty exemption.   Once you become a resident alien, you generally can no longer claim a tax treaty exemption for this income.  However, if you entered the United States as a nonresident alien for tax purposes, but are now a resident alien for tax purposes, the treaty exemption may continue to apply if the tax treaty has an exception to its savings clause (see below) that allows you to continue to claim treaty benefits.  

 Saving Clause & Exception to Saving Clause:

Most tax treaties have a saving clause. A saving clause preserves or “saves” the right of each country to tax its own residents as if no tax treaty existed. Therefore, once an international person becomes a US resident or resident alien for tax purposes the tax treaty benefits can no longer be claimed.

However, many tax treaties have an exception to the saving clause, which may allow an international person to continue to claim certain treaty benefits even after becoming a US resident or resident alien for tax purposes.

Time Limit for Claiming Tax Treaty Benefits:

Many treaties limit the number of years you can claim a treaty exemption. For international students, apprentices, and trainees, the limit is usually 4–5 years from the date of entry into the USA.  For teachers, professors, and researchers, the limit is usually 2–3 years from the date of entry into the USA.  Once you reach this limit, you can no longer claim the tax treaty exemption.   It is important to note that the tax treaty benefit clock begins as of the date you enter the USA.  Therefore, if you do not claim tax treaty benefits during the allowed time, you cannot claim them later.   For example, a J-1 researcher who enters the USA on January 1, 2010 who can claim tax treaty benefits for two years, must claim those benefits in 2010 and 2011.  If the J-1 researcher does not earn any income in the USA for the first two years, the opportunity to claim tax treaty benefits is lost unless an exception to the saving clause exists. 

Another example:  F-1 student enters the USA on August 1, 2006.  The student earns no income for first three years but receives a paid internship in last semester of senior year (i.e. 2010), has a year of Optional Practical Training and then continues on to graduate studies and works as a graduate teaching assistant from August 2011 - May 2013.  Since the student arrived in the USA in August 2006, tax treaty benefits could be claimed for no more than 5 years.  The student can claim the tax treaty benefits in 2010 only. For the additional pay as a graduate teaching assistant, the student must pay US income tax unless an exception to the saving clause exists.

 

For more information on tax treaties, please follow this link to the IRS Tax Treaty page.