§ 864. Definitions and special rules
(a)
Produced
For purposes of this part, the term “produced” includes created, fabricated, manufactured, extracted, processed, cured, or aged.
(b)
Trade or business within the United States
For purposes of this part, part II, and chapter 3, the term “trade or business within the United States” includes the performance of personal services within the United States at any time within the taxable year, but does not include—
(1)
Performance of personal services for foreign employer
The performance of personal services—
(A)
for a nonresident alien individual, foreign partnership, or foreign corporation, not engaged in trade or business within the United States, or
(B)
for an office or place of business maintained in a foreign country or in a possession of the United States by an individual who is a citizen or resident of the United States or by a domestic partnership or a domestic corporation,
by a nonresident alien individual temporarily present in the United States for a period or periods not exceeding a total of 90 days during the taxable year and whose compensation for such services does not exceed in the aggregate $3,000.
(2)
Trading in securities or commodities
(A)
Stocks and securities
(i)
In general
Trading in stocks or securities through a resident broker, commission agent, custodian, or other independent agent.
(ii)
Trading for taxpayer’s own account
Trading in stocks or securities for the taxpayer’s own account, whether by the taxpayer or his employees or through a resident broker, commission agent, custodian, or other agent, and whether or not any such employee or agent has discretionary authority to make decisions in effecting the transactions. This clause shall not apply in the case of a dealer in stocks or securities.
(B)
Commodities
(i)
In general
Trading in commodities through a resident broker, commission agent, custodian, or other independent agent.
(ii)
Trading for taxpayer’s own account
Trading in commodities for the taxpayer’s own account, whether by the taxpayer or his employees or through a resident broker, commission agent, custodian, or other agent, and whether or not any such employee or agent has discretionary authority to make decisions in effecting the transactions. This clause shall not apply in the case of a dealer in commodities.
(C)
Limitation
Subparagraphs (A)(i) and (B)(i) shall apply only if, at no time during the taxable year, the taxpayer has an office or other fixed place of business in the United States through which or by the direction of which the transactions in stocks or securities, or in commodities, as the case may be, are effected.
(c)
Effectively connected income, etc.
(1)
General rule
For purposes of this title—
(A)
In the case of a nonresident alien individual or a foreign corporation engaged in trade or business within the United States during the taxable year, the rules set forth in paragraphs (2), (3), (4), (6), and (7) shall apply in determining the income, gain, or loss which shall be treated as effectively connected with the conduct of a trade or business within the United States.
(B)
Except as provided in paragraph (6) or (7) or in section
871
(d) or sections
882
(d) and (e), in the case of a nonresident alien individual or a foreign corporation not engaged in trade or business within the United States during the taxable year, no income, gain, or loss shall be treated as effectively connected with the conduct of a trade or business within the United States.
(2)
Periodical, etc., income from sources within United States—factors
In determining whether income from sources within the United States of the types described in section
871
(a)(1), section
871(h), section
881
(a), or section
881
(c), or whether gain or loss from sources within the United States from the sale or exchange of capital assets, is effectively connected with the conduct of a trade or business within the United States, the factors taken into account shall include whether—
(A)
the income, gain, or loss is derived from assets used in or held for use in the conduct of such trade or business, or
(B)
the activities of such trade or business were a material factor in the realization of the income, gain, or loss.
In determining whether an asset is used in or held for use in the conduct of such trade or business or whether the activities of such trade or business were a material factor in realizing an item of income, gain, or loss, due regard shall be given to whether or not such asset or such income, gain, or loss was accounted for through such trade or business.
(3)
Other income from sources within United States
All income, gain, or loss from sources within the United States (other than income, gain, or loss to which paragraph (2) applies) shall be treated as effectively connected with the conduct of a trade or business within the United States.
(4)
Income from sources without United States
(A)
Except as provided in subparagraphs (B) and (C), no income, gain, or loss from sources without the United States shall be treated as effectively connected with the conduct of a trade or business within the United States.
(B)
Income, gain, or loss from sources without the United States shall be treated as effectively connected with the conduct of a trade or business within the United States by a nonresident alien individual or a foreign corporation if such person has an office or other fixed place of business within the United States to which such income, gain, or loss is attributable and such income, gain, or loss—
(i)
consists of rents or royalties for the use of or for the privilege of using intangible property described in section
862
(a)(4) derived in the active conduct of such trade or business;
(ii)
consists of dividends, interest, or amounts received for the provision of guarantees of indebtedness, and either is derived in the active conduct of a banking, financing, or similar business within the United States or is received by a corporation the principal business of which is trading in stocks or securities for its own account; or
(iii)
is derived from the sale or exchange (outside the United States) through such office or other fixed place of business of personal property described in section
1221
(a)(1), except that this clause shall not apply if the property is sold or exchanged for use, consumption, or disposition outside the United States and an office or other fixed place of business of the taxpayer in a foreign country participated materially in such sale.
Any income or gain which is equivalent to any item of income or gain described in clause (i), (ii), or (iii) shall be treated in the same manner as such item for purposes of this subparagraph.
(C)
In the case of a foreign corporation taxable under part I or part II of subchapter L, any income from sources without the United States which is attributable to its United States business shall be treated as effectively connected with the conduct of a trade or business within the United States.
(D)
No income from sources without the United States shall be treated as effectively connected with the conduct of a trade or business within the United States if it either—
(i)
consists of dividends, interest, or royalties paid by a foreign corporation in which the taxpayer owns (within the meaning of section
958
(a)), or is considered as owning (by applying the ownership rules of section
958
(b)), more than 50 percent of the total combined voting power of all classes of stock entitled to vote, or
(5)
Rules for application of paragraph (4)(B)
For purposes of subparagraph (B) of paragraph (4)—
(A)
in determining whether a nonresident alien individual or a foreign corporation has an office or other fixed place of business, an office or other fixed place of business of an agent shall be disregarded unless such agent
(i)
has the authority to negotiate and conclude contracts in the name of the nonresident alien individual or foreign corporation and regularly exercises that authority or has a stock of merchandise from which he regularly fills orders on behalf of such individual or foreign corporation, and
(ii)
is not a general commission agent, broker, or other agent of independent status acting in the ordinary course of his business,
(B)
income, gain, or loss shall not be considered as attributable to an office or other fixed place of business within the United States unless such office or fixed place of business is a material factor in the production of such income, gain, or loss and such office or fixed place of business regularly carries on activities of the type from which such income, gain, or loss is derived, and
(C)
the income, gain, or loss which shall be attributable to an office or other fixed place of business within the United States shall be the income, gain, or loss property allocable thereto, but, in the case of a sale or exchange described in clause (iii) of such subparagraph, the income which shall be treated as attributable to an office or other fixed place of business within the United States shall not exceed the income which would be derived from sources within the United States if the sale or exchange were made in the United States.
(6)
Treatment of certain deferred payments, etc.
For purposes of this title, in the case of any income or gain of a nonresident alien individual or a foreign corporation which—
(B)
is attributable to a sale or exchange of property or the performance of services (or any other transaction) in any other taxable year,
the determination of whether such income or gain is taxable under section
871
(b) or
882 (as the case may be) shall be made as if such income or gain were taken into account in such other taxable year and without regard to the requirement that the taxpayer be engaged in a trade or business within the United States during the taxable year referred to in subparagraph (A).
(7)
Treatment of certain property transactions
For purposes of this title, if—
(A)
any property ceases to be used or held for use in connection with the conduct of a trade or business within the United States, and
the determination of whether any income or gain attributable to such disposition is taxable under section
871
(b) or
882 (as the case may be) shall be made as if such sale or exchange occurred immediately before such cessation and without regard to the requirement that the taxpayer be engaged in a trade or business within the United States during the taxable year for which such income or gain is taken into account.
(d)
Treatment of related person factoring income
(1)
In general
For purposes of the provisions set forth in paragraph (2), if any person acquires (directly or indirectly) a trade or service receivable from a related person, any income of such person from the trade or service receivable so acquired shall be treated as if it were interest on a loan to the obligor under the receivable.
(2)
Provisions to which paragraph (1) applies
The provisions set forth in this paragraph are as follows:
(3)
Trade or service receivable
For purposes of this subsection, the term “trade or service receivable” means any account receivable or evidence of indebtedness arising out of—
(5)
Certain provisions not to apply
(A)
Certain exceptions
The following provisions shall not apply to any amount treated as interest under paragraph (1) or (6):
(i)
Subparagraphs (A)(iii)(II), (B)(ii), and (C)(iii)(II) of section
904
(d)(2) (relating to exceptions for export financing interest).
(6)
Special rule for certain income from loans of a controlled foreign corporation
Any income of a controlled foreign corporation (within the meaning of section
957
(a)) from a loan to a person for the purpose of financing—
shall be treated as interest described in paragraph (1).
(7)
Exception for certain related persons doing business in same foreign country
Paragraph (1) shall not apply to any trade or service receivable acquired by any person from a related person if—
(A)
the person acquiring such receivable and such related person are created or organized under the laws of the same foreign country and such related person has a substantial part of its assets used in its trade or business located in such same foreign country, and
(B)
such related person would not have derived any foreign base company income (as defined in section
954
(a), determined without regard to section
954
(b)(3)(A)), or any income effectively connected with the conduct of a trade or business within the United States, from such receivable if it had been collected by such related person.
(e)
Rules for allocating interest, etc.
For purposes of this subchapter—
(1)
Treatment of affiliated groups
The taxable income of each member of an affiliated group shall be determined by allocating and apportioning interest expense of each member as if all members of such group were a single corporation.
(2)
Gross income method may not be used for interest
All allocations and apportionments of interest expense shall be made on the basis of assets rather than gross income.
(3)
Tax-exempt assets not taken into account
For purposes of allocating and apportioning any deductible expense, any tax-exempt asset (and any income from such an asset) shall not be taken into account. A similar rule shall apply in the case of the portion of any dividend (other than a qualifying dividend as defined in section
243
(b)) equal to the deduction allowable under section
243 or
245
(a) with respect to such dividend and in the case of a like portion of any stock the dividends on which would be so deductible and would not be qualifying dividends (as so defined).
(4)
Basis of stock in nonaffiliated 10-percent owned corporations adjusted for earnings and profits changes
(A)
In general
For purposes of allocating and apportioning expenses on the basis of assets, the adjusted basis of any stock in a nonaffiliated 10-percent owned corporation shall be—
(B)
Nonaffiliated 10-percent owned corporation
For purposes of this paragraph, the term “nonaffiliated 10-percent owned corporation” means any corporation if—
(C)
Earnings and profits of lower tier corporations taken into account
(i)
In general
If, by reason of holding stock in a nonaffiliated 10-percent owned corporation, the taxpayer is treated under clause (iii) as owning stock in another corporation with respect to which the stock ownership requirements of clause (ii) are met, the adjustment under subparagraph (A) shall include an adjustment for the amount of the earnings and profits (or deficit therein) of such other corporation which are attributable to the stock the taxpayer is so treated as owning and to the period during which the taxpayer is treated as owning such stock.
(ii)
Stock ownership requirements
The stock ownership requirements of this clause are met with respect to any corporation if members of the taxpayer’s affiliated group own (directly or through the application of clause (iii)) 10 percent or more of the total combined voting power of all classes of stock of such corporation entitled to vote.
(iii)
Stock owned through entities
For purposes of this subparagraph, stock owned (directly or indirectly) by a corporation, partnership, or trust shall be treated as being owned proportionately by its shareholders, partners, or beneficiaries. Stock considered to be owned by a person by reason of the application of the preceding sentence, shall, for purposes of applying such sentence, be treated as actually owned by such person.
(D)
Coordination with subpart F, etc.
For purposes of this paragraph, proper adjustment shall be made to the earnings and profits of any corporation to take into account any earnings and profits included in gross income under section
951 or under any other provision of this title and reflected in the adjusted basis of the stock.
(5)
Affiliated group
For purposes of this subsection—
(A)
In general
Except as provided in subparagraph (B), the term “affiliated group” has the meaning given such term by section
1504 (determined without regard to paragraph (4) of section
1504
(b)). Notwithstanding the preceding sentence, a foreign corporation shall be treated as a member of the affiliated group if—
(B)
Treatment of certain financial institutions
For purposes of subparagraph (A), any corporation described in subparagraph (C) shall be treated as an includible corporation for purposes of section
1504 only for purposes of applying such section separately to corporations so described. This subparagraph shall not apply for purposes of paragraph (6).
(C)
Description
A corporation is described in this subparagraph if—
(D)
Treatment of bank holding companies
To the extent provided in regulations—
(i)
a bank holding company (within the meaning of section 2(a) of the Bank Holding Company Act of 1956), and
(ii)
any subsidiary of a financial institution described in section 581 or 591 or of any bank holding company if such subsidiary is predominantly engaged (directly or indirectly) in the active conduct of a banking, financing, or similar business,
shall be treated as a corporation described in subparagraph (C).
(6)
Allocation and apportionment of other expenses
Expenses other than interest which are not directly allocable or apportioned to any specific income producing activity shall be allocated and apportioned as if all members of the affiliated group were a single corporation.
(7)
Regulations
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of this section, including regulations providing—
(A)
for the resourcing of income of any member of an affiliated group or modifications to the consolidated return regulations to the extent such resourcing or modification is necessary to carry out the purposes of this section,
(B)
for direct allocation of interest expense incurred to carry out an integrated financial transaction to any interest (or interest-type income) derived from such transaction and in other circumstances where such allocation would be appropriate to carry out the purposes of this subsection,
(C)
for the apportionment of expenses allocated to foreign source income among the members of the affiliated group and various categories of income described in section
904
(d)(1),
(D)
for direct allocation of interest expense in the case of indebtedness resulting in a disallowance under section
246A,
(f)
Election to allocate interest, etc. on worldwide basis
For purposes of this subchapter, at the election of the worldwide affiliated group—
(1)
Allocation and apportionment of interest expense
(A)
In general
The taxable income of each domestic corporation which is a member of a worldwide affiliated group shall be determined by allocating and apportioning interest expense of each member as if all members of such group were a single corporation.
(B)
Treatment of worldwide affiliated group
The taxable income of the domestic members of a worldwide affiliated group from sources outside the United States shall be determined by allocating and apportioning the interest expense of such domestic members to such income in an amount equal to the excess (if any) of—
(i)
the total interest expense of the worldwide affiliated group multiplied by the ratio which the foreign assets of the worldwide affiliated group bears to all the assets of the worldwide affiliated group, over
(ii)
the interest expense of all foreign corporations which are members of the worldwide affiliated group to the extent such interest expense of such foreign corporations would have been allocated and apportioned to foreign source income if this subsection were applied to a group consisting of all the foreign corporations in such worldwide affiliated group.
(C)
Worldwide affiliated group
For purposes of this paragraph, the term “worldwide affiliated group” means a group consisting of—
(i)
the includible members of an affiliated group (as defined in section
1504
(a), determined without regard to paragraphs (2) and (4) of section
1504
(b)), and
(ii)
all controlled foreign corporations in which such members in the aggregate meet the ownership requirements of section
1504
(a)(2) either directly or indirectly through applying paragraph (2) of section
958
(a) or through applying rules similar to the rules of such paragraph to stock owned directly or indirectly by domestic partnerships, trusts, or estates.
(2)
Allocation and apportionment of other expenses
Expenses other than interest which are not directly allocable or apportioned to any specific income producing activity shall be allocated and apportioned as if all members of the affiliated group were a single corporation. For purposes of the preceding sentence, the term “affiliated group” has the meaning given such term by section
1504 (determined without regard to paragraph (4) of section
1504
(b)).
(3)
Treatment of tax-exempt assets; basis of stock in nonaffiliated 10-percent owned corporations
The rules of paragraphs (3) and (4) of subsection (e) shall apply for purposes of this subsection, except that paragraph (4) shall be applied on a worldwide affiliated group basis.
(4)
Treatment of certain financial institutions
(A)
In general
For purposes of paragraph (1), any corporation described in subparagraph (B) shall be treated as an includible corporation for purposes of section
1504 only for purposes of applying this subsection separately to corporations so described.
(B)
Description
A corporation is described in this subparagraph if—
(C)
Treatment of bank and financial holding companies
To the extent provided in regulations—
(i)
a bank holding company (within the meaning of section 2(a) of the Bank Holding Company Act of 1956 (12 U.S.C. 1841
(a)),
(ii)
a financial holding company (within the meaning of section 2(p) of the Bank Holding Company Act of 1956 (12 U.S.C. 1841
(p)), and
(iii)
any subsidiary of a financial institution described in section 581 or 591, or of any such bank or financial holding company, if such subsidiary is predominantly engaged (directly or indirectly) in the active conduct of a banking, financing, or similar business,
shall be treated as a corporation described in subparagraph (B).
(5)
Election to expand financial institution group of worldwide group
(A)
In general
If a worldwide affiliated group elects the application of this subsection, all financial corporations which—
shall be treated as described in paragraph (4)(B) for purposes of applying paragraph (4)(A). This subsection (other than this paragraph) shall apply to any such group in the same manner as this subsection (other than this paragraph) applies to the pre-election worldwide affiliated group of which such group is a part.
(B)
Financial corporation
For purposes of this paragraph, the term “financial corporation” means any corporation if at least 80 percent of its gross income is income described in section
904
(d)(2)(D)(ii) and the regulations thereunder which is derived from transactions with persons who are not related (within the meaning of section
267
(b) or
707
(b)(1)) to the corporation. For purposes of the preceding sentence, there shall be disregarded any item of income or gain from a transaction or series of transactions a principal purpose of which is the qualification of any corporation as a financial corporation.
(C)
Anti-abuse rules
In the case of a corporation which is a member of an electing financial institution group, to the extent that such corporation—
(i)
distributes dividends or makes other distributions with respect to its stock after the date of the enactment of this paragraph to any member of the pre-election worldwide affiliated group (other than to a member of the electing financial institution group) in excess of the greater of—
(ii)
deals with any person in any manner not clearly reflecting the income of the corporation (as determined under principles similar to the principles of section
482),
an amount of indebtedness of the electing financial institution group equal to the excess distribution or the understatement or overstatement of income, as the case may be, shall be recharacterized (for the taxable year and subsequent taxable years) for purposes of this paragraph as indebtedness of the worldwide affiliated group (excluding the electing financial institution group). If a corporation has not been in existence for 5 taxable years, this subparagraph shall be applied with respect to the period it was in existence.
(D)
Election
An election under this paragraph with respect to any financial institution group may be made only by the common parent of the pre-election worldwide affiliated group and may be made only for the first taxable year beginning after December 31, 2020, in which such affiliated group includes 1 or more financial corporations. Such an election, once made, shall apply to all financial corporations which are members of the electing financial institution group for such taxable year and all subsequent years unless revoked with the consent of the Secretary.
(E)
Definitions relating to groups
For purposes of this paragraph—
(i)
Pre-election worldwide affiliated group
The term “pre-election worldwide affiliated group” means, with respect to a corporation, the worldwide affiliated group of which such corporation would (but for an election under this paragraph) be a member for purposes of applying paragraph (1).
(ii)
Electing financial institution group
The term “electing financial institution group” means the group of corporations to which this subsection applies separately by reason of the application of paragraph (4)(A) and which includes financial corporations by reason of an election under subparagraph (A).
(F)
Regulations
The Secretary shall prescribe such regulations as may be appropriate to carry out this subsection, including regulations—
(6)
Election
An election to have this subsection apply with respect to any worldwide affiliated group may be made only by the common parent of the domestic affiliated group referred to in paragraph (1)(C) and may be made only for the first taxable year beginning after December 31, 2020, in which a worldwide affiliated group exists which includes such affiliated group and at least 1 foreign corporation. Such an election, once made, shall apply to such common parent and all other corporations which are members of such worldwide affiliated group for such taxable year and all subsequent years unless revoked with the consent of the Secretary.
(g)
Allocation of research and experimental expenditures
(1)
In general
For purposes of sections
861
(b),
862
(b), and
863
(b), qualified research and experimental expenditures shall be allocated and apportioned as follows:
(A)
Any qualified research and experimental expenditures expended solely to meet legal requirements imposed by a political entity with respect to the improvement or marketing of specific products or processes for purposes not reasonably expected to generate gross income (beyond de minimis amounts) outside the jurisdiction of the political entity shall be allocated only to gross income from sources within such jurisdiction.
(B)
In the case of any qualified research and experimental expenditures (not allocated under subparagraph (A)) to the extent—
(i)
that such expenditures are attributable to activities conducted in the United States, 50 percent of such expenditures shall be allocated and apportioned to income from sources within the United States and deducted from such income in determining the amount of taxable income from sources within the United States, and
(ii)
that such expenditures are attributable to activities conducted outside the United States, 50 percent of such expenditures shall be allocated and apportioned to income from sources outside the United States and deducted from such income in determining the amount of taxable income from sources outside the United States.
(C)
The remaining portion of qualified research and experimental expenditures (not allocated under subparagraphs (A) and (B)) shall be apportioned, at the annual election of the taxpayer, on the basis of gross sales or gross income, except that, if the taxpayer elects to apportion on the basis of gross income, the amount apportioned to income from sources outside the United States shall at least be 30 percent of the amount which would be so apportioned on the basis of gross sales.
(2)
Qualified research and experimental expenditures
For purposes of this section, the term “qualified research and experimental expenditures” means amounts which are research and experimental expenditures within the meaning of section
174. For purposes of this paragraph, rules similar to the rules of subsection (c) of section
174 shall apply. Any qualified research and experimental expenditures treated as deferred expenses under subsection (b) of section
174 shall be taken into account under this subsection for the taxable year for which such expenditures are allowed as a deduction under such subsection.