Tax & Business Insights

Withholding on Payments to Foreign Contractors

Volume 24 Issue 6 -- November/December 2012

It is becoming increasingly common for even small US companies to retain as independent contractors individuals located in other countries. It is easy for them to provide Internet or web-related design and programming services, for example, without regard to where they are physically located. What are the implications for the US companies that hire them?

The tax code imposes a broad set of withholding rules on foreign payments of certain US-source income, including non-employee compensation for services. Generally, the tax regulations require that a withholding agent that makes a payment of U.S.-source income to a foreign person obtain documentation that identifies the beneficial owner as a foreign person entitled to a reduced rate of withholding. Otherwise, the withholding agent must withhold 30% of the payment as U.S. tax.

Broadly speaking, US source income earned by non-US persons (i.e., persons who are not citizens or residents of the US) is taxed in one of two ways. Income connected with a US trade or business is taxed in the US on a net basis at graduated rates and requires the filing of a tax return by the owner of the business.

Technically, income connected with a US trade or business is not subject to withholding (but it can be subject to other reporting, e.g., Form 1099).

Most US source income not connected with a US trade or business is taxed on a gross basis at 30% (or an applicable lower treaty rate) and is paid through withholding. If the US payor fails to withhold the required tax amounts, then the US payor is liable for the tax.

Income that is exempt from US tax either because it is deemed not to have a US source or because of an applicable tax treaty is not subject to withholding.

Theoretically income earned by a non-US person for services provided entirely outside the US is not US source income under the Internal Revenue Code. In addition, many tax treaties provide for reduced or no tax on certain compensation income if specific requirements are met. The regulations exclude from withholding payments for compensation that is exempt from tax either under the Code or under a tax treaty.

Many tax treaties exempt from US tax income that a non-US person earns from independent (i.e., non-employee) services performed entirely outside of the US unless the individual is present in the US for certain periods of time in the year or has a fixed base or permanent establishment in the US. Treaties, however, vary in the way they address this issue so it is necessary to consider the specific wording of each applicable treaty.

In many cases, however, applying these principles can be difficult. Because the US payor of the income is liable for any tax not withheld, the US person bears the risk of failing to withhold when required.

First, treaty rules determining what income is subject to US tax vary somewhat from country to country. Second, a US payor of income to a foreign person may not know all of the facts concerning whether the non-US person is subject to US tax. For example, the foreign person may be engaged in US activities unknown to the US payor. For these reasons, it can be difficult for the US person to know whether the income is truly exempt or subject to a reduced rate of withholding.

Fortunately, there is a relatively straightforward way for the US payor to avoid the risks. The simplest way is to withhold 30% of the payment unless the payee provides the necessary documentation, which in this case is usually IRS Form 8233. Although the foreign person will likely complain, using Form 8233 to establish a treaty exemption or rate reduction is the only way the US payor can protect itself. If the payee supplies the Form 8233 then the US person can avoid withholding or withhold at the applicable treaty rate.

If the foreign person is unwilling to provide Form 8233, then the only prudent thing is to withhold at the 30% rate to protect the payor from possible liability for failing to properly withhold. In the event that this withholding would overpay the tax due from the foreign person, the foreign person would have to file a US return to obtain a refund.

A US tax ID number will usually be required to complete Form 8233. This is likely to be a point of contention with the foreign person. Payments subject to foreign withholding are reported on Form 1042-S and Form 1042 (even if no amount was withheld).

If you have questions about withholding on foreign payments or similar issues, please contact the Tax & Business Professionals.  

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