Publication 570 (2007), Tax Guide for Individuals With Income From U.S. Possessions

IRS Resources

2. Possession Source Income

Table of Contents

In order to determine where to file your return and which form(s) you need to complete, you must determine the source of each item of income you received during the tax year. Income you received from sources within, or that was effectively connected with the conduct of a trade or business in, the relevant possession must be identified separately from U.S. or foreign source income.

This chapter discusses the rules for determining if the source of your income is:

American Samoa,
The Commonwealth of the Northern Mariana Islands (CNMI),
The Commonwealth of Puerto Rico (Puerto Rico),
Guam, or
The U.S. Virgin Islands (USVI).

Generally, the same rules that apply for determining U.S. source income also apply for determining possession source income. However, there are some important exceptions to these rules. Both the general rules and the exceptions are discussed in this chapter.

The rules for determining possession source income are generally effective for income earned after December 31, 2004. The basis of these rules is the “U.S. income rule.”

U.S. income rule. This rule states that income is not possession source income if, under the rules of Internal Revenue Code sections 861-865, it is treated as income:

From sources in the United States, or
Effectively connected with the conduct of a trade or business in the United States.

Table 2-1 shows the general rules for determining whether income is from sources within the United States.

Table 2-1. General Rules for Determining U.S. Source of Income

Item of Income	Factor Determining Source
Salaries, wages, and other compensation for labor or personal services	Where labor or services performed
Pensions	Where services were performed that earned the pension
Interest	Residence of payer
Dividends	Where corporation created or organized
Rents	Location of property
Royalties:
Natural resources	Location of property
Patents, copyrights, etc.	Where property is used
Sale of business inventory—purchased	Where sold
Sale of business inventory—produced	Allocation if produced and sold in different locations
Sale of real property	Location of property
Sale of personal property	Seller's tax home (but see Special rules for gains from dispositions of certain property, earlier, for exceptions)
Sale of natural resources	Allocation based on fair market value of product at export terminal. For more information, see Regulations section 1.863-1(b).

Types of Income

This section looks at the most common types of income received by individuals, and the rules for determining the source of the income. Generally, the same rules shown in Table 2-1 are used to determine if you have possession source income.

Compensation for Labor or Personal Services

Income from labor or personal services includes wages, salaries, commissions, fees, per diem allowances, employee allowances and bonuses, and fringe benefits. It also includes income earned by sole proprietors and general partners from providing personal services in the course of their trade or business.

Services performed wholly within a relevant possession. Generally, all pay you receive for services performed in a relevant possession is considered to be from sources within that possession. However, there is an exception for income earned as a member of the U.S. Armed Forces.

U.S. Armed Forces. If you are a bona fide resident of a relevant possession, your military service pay will be sourced in that possession even if you perform the services in the United States or another possession. However, if you are not a bona fide resident of a possession, your military service pay will be income from the United States even if you perform services in a possession.

Services performed partly inside and partly outside a relevant possession. If you are an employee and receive compensation for labor or personal services performed both inside and outside the relevant possession, special rules apply in determining the source of the compensation. Compensation (other than certain fringe benefits) is sourced on a time basis. Certain fringe benefits (such as housing and education) are sourced on a geographical basis.

Or, you may be permitted to use an alternative basis to determine the source of compensation. See Alternative basis, later.

If you are self-employed, you determine the source of your income for labor or personal services from self-employment on the basis that most correctly reflects the proper source of that income under the facts and circumstances of your particular case. In many cases, the facts and circumstances will call for an apportionment on a time basis.

Time basis. Use a time basis to figure your compensation for labor or personal services from the relevant possession (other than the fringe benefits discussed later). Do this by multiplying your total compensation (other than the fringe benefits discussed later) by the following fraction:

	Number of days you performed services in the relevant possession during the year
	Total number of days you performed services during the year

You can use a unit of time less than a day in the above fraction, if appropriate. The time period for which the income is made does not have to be a year. Instead, you can use another distinct, separate, and continuous time period if you can establish to the satisfaction of the IRS that this other period is more appropriate.

Example.

In 2007, you worked in your employer's office in the United States for 60 days and in the Puerto Rico office for 175 days, earning a total of $50,000 for the year. Your Puerto Rico source income is $37,234, figured as follows.


175 days 235 days	×	$50,000	=	$37,234

Multi-year compensation. The source of multi-year compensation is generally determined on a time basis over the period to which the compensation is attributable. Multi-year compensation is compensation that is included in your income in 1 tax year but that is attributable to a period that includes 2 or more tax years. You determine the period to which the income is attributable based on the facts and circumstances of your case. For more information on multi-year compensation, see Regulations section 1.861-4, 2005-35 I.R.B. 429, available at http://www.irs.gov/irb/2005-35_IRB/ar14.html.

Certain fringe benefits sourced on a geographical basis. If you received any of the following fringe benefits as compensation for labor or services performed as an employee partly inside and partly outside a relevant possession, you must source that income on a geographical basis.

Housing.
Education.
Local transportation.
Tax reimbursement.
Hazardous or hardship duty pay.
Moving expense reimbursement.

For information on determining the source of the fringe benefits listed above, see Regulations section 1.861-4.

Alternative basis. You can determine the source of your compensation under an alternative basis if you establish to the satisfaction of the IRS that, under the facts and circumstances of your case, the alternative basis more properly determines the source of your income than the time or geographical basis. If you use an alternative basis, you must keep (and have available for inspection) records to document why the alternative basis more properly determines the source of your income.

Pensions. Pension income is sourced according to where services were performed that earned the pension. For example, if your entire working career was spent in the United States and then you retired to the USVI, your pension would be considered U.S. source income because all services were performed in the United States.

Investment Income

This category includes such income as interest, dividends, rents, and royalties.

Interest income. The source of interest income is generally determined by the residence of the payer. Interest paid by corporations created or organized in a relevant possession (possession corporation) or by individuals who are bona fide residents of a relevant possession is considered income from sources within that possession.

However, there is an exception to this rule if you are a bona fide resident of a relevant possession, receive interest from a corporation created or organized in that possession, and are a shareholder of that corporation who owns, directly or indirectly, at least 10% of the total voting stock of the corporation. See Temporary Regulations section 1.937-2T(i) for more information.

Dividends. Generally, dividends paid by a corporation created or organized in a relevant possession will be considered income from sources within that possession. There are additional rules for bona fide residents of a relevant possession who receive dividend income from possession corporations, and who own, directly or indirectly, at least 10% of the voting stock of the corporation. For more information, see Temporary Regulations section 1.937-2T(g).

Rental income. Rents from property located in a relevant possession are treated as income from sources within that possession.

Royalties. Royalties from natural resources located in a relevant possession are considered income from sources within that possession.

Also considered possession source income are royalties received for the use of, or for the privilege of using, in a relevant possession, patents, copyrights, secret processes and formulas, goodwill, trademarks, trade brands, franchises, and other like property.

Sales or Other Dispositions of Property

The source rules for sales or other dispositions of property are varied. The most common situations are discussed below.

Real property. Real property includes land and buildings, and generally anything built on, growing on, or attached to land. The location of the property generally determines the source of income from the sale. For example, if you are a bona fide resident of Guam and sell your home that is located in Guam, the gain on the sale is sourced in Guam. If, however, the home you sold was located in the United States, the gain is U.S. source income. However, for exceptions, see Special rules for gains from disposition of certain property, on this page.

Personal property. The term “personal property” refers to property (such as machinery, equipment, or furniture) that is not real property. Generally, gain or loss from the sale or other disposition is sourced according to the seller's tax home. If personal property is sold by a bona fide resident of a relevant possession, the gain or loss from the sale is treated as sourced within that possession.

This rule does not apply to the sale of inventory, intangible property, depreciable personal property, or property sold through a foreign office or fixed place of business. The rules applying to sales of inventory are discussed below. For information on sales of the other types of property mentioned, see Internal Revenue Code section 865.

Inventory. Your inventory is personal property that is stock in trade or that is held primarily for sale to customers in the ordinary course of your trade or business. The source of income from the sale of inventory depends on whether the inventory was purchased or produced.

Purchased. Income from the sale of inventory that you purchased is sourced where you sell the property. Generally, this is where title to the property passes to the buyer.

Produced. Income from the sale of inventory that you produced in a relevant possession and sold outside that possession (or vice versa) is sourced based on an allocation. For information on making the allocation, see Regulations section 1.863-3(f).

Special rules for gains from dispositions of certain property. There are special rules for gains from dispositions of certain investment property (for example, stocks, bonds, debt instruments, diamonds, and gold) owned by a U.S. citizen or resident alien prior to becoming a bona fide resident of a possession. You are subject to these special rules if you meet both of the following conditions.

For the tax year for which the source of the gain must be determined, you are a bona fide resident of the relevant possession.
For any of the 10 years preceding that year, you were a citizen or resident alien of the United States (other than a bona fide resident of the relevant possession).

If you meet these conditions, gains from the disposition of this property will not be treated as income from sources within the relevant possession for purposes of the Internal Revenue Code. Accordingly, bona fide residents of American Samoa and Puerto Rico, for example, may not exclude the gain on their U.S. tax return. (See chapter 3 for additional filing information.) With respect to the CNMI, Guam, and the USVI, the gain from the disposition of this property will not meet the requirements for certain tax rules that may allow bona fide residents of those possessions to reduce or obtain a rebate of taxes on income from sources within the relevant possessions.

These rules apply to dispositions after April 11, 2005. For details, see Temporary Regulations section 1.937-2T(f)(1) and Example 2 of section 1.937-2T(k).

Example.

In 2002, Cheryl Jones, a U.S. citizen, lives in the United States and buys 100 shares of stock in the Rose Corporation, a U.S. corporation. In 2005, she moves to Puerto Rico. In 2007, while a bona fide resident of Puerto Rico, Cheryl sells the Rose Corporation stock at a gain. For income tax purposes, this gain is not treated as income from sources within Puerto Rico.

The new source rules discussed in the preceding paragraphs supplement, and may apply in conjunction with, an existing special rule. This existing special rule applies if you are a U.S. citizen or resident alien who becomes a bona fide resident of American Samoa, the CNMI, or Guam, and who has gain from the disposition of certain U.S. assets during the 10-year period beginning when you became a bona fide resident. The gain is U.S. source income that generally is subject to U.S. tax if the property is either (1) located in the United States; (2) stock issued by a U.S. corporation or a debt obligation of a U.S. person or of the United States, a state (or political subdivision), or the District of Columbia; or (3) property that has a basis in whole or in part by reference to property described in (1) or (2). See chapter 3 for filing information.

Scholarships, Fellowships, Grants, Prizes, and Awards

The source of these types of income is generally the residence of the payer, regardless of who actually disburses the funds. Therefore, in order to be possession source income, the payer must be a resident of the relevant possession, such as an individual who is a bona fide resident or a corporation created or organized in that possession.

These rules do not apply to amounts paid as salary or other compensation for services. See Compensation for Labor or Personal Services , earlier in this chapter, for the source rules that apply.

Effectively Connected Income

In limited circumstances, some kinds of income from sources outside the relevant possession must be treated as effectively connected with a trade or business in that possession. These circumstances are listed below.

You have an office or other fixed place of business in the relevant possession to which the income can be attributed.
That office or place of business is a material factor in producing the income.
The income is produced in the ordinary course of the trade or business carried on through that office or other fixed place of business.

An office or other fixed place of business is a material factor if it significantly contributes to, and is an essential economic element in, the earning of the income.

The three kinds of income from sources outside the relevant possession to which these rules apply are the following.

Rents and royalties for the use of, or for the privilege of using, intangible personal property located outside the relevant possession or from any interest in such property. Included are rents or royalties for the use of, or for the privilege of using, outside the relevant possession, patents, copyrights, secret processes and formulas, goodwill, trademarks, trade brands, franchises, and similar properties if the rents or royalties are from the active conduct of a trade or business in the relevant possession.
Dividends or interest from the active conduct of a banking, financing, or similar business in the relevant possession.
Income, gain, or loss from the sale or exchange outside the relevant possession, through the office or other fixed place of business in the relevant possession, of:
1. Stock in trade,
2. Property that would be included in inventory if on hand at the end of the tax year, or
3. Property held primarily for sale to customers in the ordinary course of business.

Item (3) will not apply if you sold the property for use, consumption, or disposition outside the relevant possession and an office or other fixed place of business in a foreign country was a material factor in the sale.

For tax years beginning after October 22, 2004 (beginning with tax year 2005 if a calendar year taxpayer), any income from a source outside the relevant possession that is equivalent to any item of income described in (1)-(3) above is treated as effectively connected with a trade or business in the relevant possession.

Example.

Marcy Jackson is a bona fide resident of American Samoa. Her business, which she conducts from an office in American Samoa, is developing and selling specialized computer software. A software purchaser will frequently pay Marcy an additional amount to install the software on the purchaser's operating system and to ensure that the software is functioning properly. Marcy installs the software at the purchaser's place of business, which may be in American Samoa, in the United States, or in another country. The income from selling the software is effectively connected with the conduct of Marcy's business in American Samoa, even though the product's destination may be outside the possession. However, the compensation she receives for installing the software (personal services) outside of American Samoa is not effectively connected with the conduct of her business in the possession—the income is sourced where she performs the services.

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