美国个人所得税制之欧阳体创编

1. Income Tax
The United States imposes a net income tax on individuals.
See also:
Topical Analyses
•Private Investment Income section 1.1.
1.1. Taxable persons
US citizens and residents are subject to taxation on their worldwide income even if they reside outside the United States. Foreign nationals are subject to US income tax if they become US residents or if they derive certain types of income from US sources. Foreign nationals are treated as US residents if they are lawful permanent residents of the United States (i.e. hold a US green card) or if they meet a substantial presence test. The substantial presence test is met if the person is present in the United States for (1) at least 31 days during the current calendar year, and (2) for at least 183 days during the current calendar year and prior 2 years determined by counting each day of presence in the current year as 1 day, each day of presence in the first prior year as one third of a day, and each day of presence in the second prior year as one sixth of a day.
(1) married persons filing joint tax returns that combine all their income and deductions;
(2) heads of household, i.e. persons who maintain a household that is the principal place
of abode of a dependent child or other dependent for at least one-half of the taxable year;
(3) unmarried individuals, i.e. single taxpayers; and
(4) married persons filing separate returns, with each spouse reporting their own income
and deductions on a separate return.
the taxable year in which their spouse dies and for the 2 succeeding taxable years if they maintain a household that is the principal place of abode of a dependent child.
Children are required to file an income tax return and pay tax on their own income. For the tax rates applicable to children who are
under the age of 18 and who have unearned income above an annual threshold amount, and for an election by a parent to include the income of a child on the parent’s income tax return, see section
1.9.1.1.
1.2.2. Exempt income
Categories of income exempt from taxation include the following:
- amounts received under life insurance contracts;
- gifts and inheritances;
- interest on bonds issued by US states and municipalities for qualified public purposes; - foreign earned income (see section 6.1.1.); and
- certain amounts received as compensation for injuries or sickness.
An exclusion of USD 250,000 applies (USD 500,000 in the case of married persons filing a joint return) to gains from the sale of a home
date of sale.
1.3. Employment income
1.3.1. Salary
Income received as salary and wages is subject to personal income tax. Expenses directly related to employment income and not reimbursed by the employer may be deducted. Commuting costs are not deductible.
Moving expenses are deductible if paid in connection with the commencement of work as an employee or as a self-employed individual at a new principal place of work. The new principal place of work must be at least 50 miles farther from the former residence than was the former principal place of work or, if there was no former place of work, at least 50 miles from the individual’s former residence. In addition, time-in-employment requirements must be met at the new principal place of work.
1.3.
2. Benefits in kind
1.3.
2.1. Employer provided benefits
Benefits received in kind from an employer constitute taxable income unless expressly excluded by statutory provision. These benefits are referred to in the United States as fringe benefits. Exclusions are provided in the following cases:
(1) services provided to the employee that are the same as that offered by the employer
to customers in the ordinary course of the employer’s business, if no substantial
additional cost is incurred by the employer in providing such service to the employee;
(2) qualified employee discounts in the purchase of goods or services sold by the
employer;
(3) benefits provided that are part of the working conditions, for example, the use of a
company car for business purposes;
(4) fringe benefits that are de minimis in value;
(5) qualified transportation fringe benefits, for example transit passes or parking spaces
that do not exceed in value specified monthly amounts;
(6) reimbursed amounts for qualified moving expenses;
(7) qualified educational tuition reductions;
(8) meals and lodging furnished for the convenience of the employer; and
(9) benefits provided under dependent care assistance programs.
1.3.
2.2. Stock options
There are three types of stock options available to employees in the United States:
(1) Qualified stock options (also referred to as Incentive Stock Options, or ISOs), which
are non-taxable at the time of grant or exercise provided that the statutory
requirements concerning the option plan and the options granted are satisfied. The employee will receive capital gain treatment if the stock is sold after being held for at least 2 years from the date the option is granted and at least 1 year from the date the stock is acquired.
(2) Non-qualified options (also referred to as non-statutory options), which are non-
taxable at the time of grant provided the option does not have a readily ascertainable fair market value on the date of grant. The employee will be taxed at ordinary income tax ratesat the time the option is exercised if the fair market value of the stock
exceeds the exercise price of the option. If the stock is held for more than 1 year after the option is exercised, the employee will receive capital gain treatment.
(3) Options granted under employee stock purchase plans which meet certain statutory
requirements are non-taxable at the time of grant or exercise provided that the
statutory requirements concerning the option plan and the options granted are
satisfied. If the stock is held by the employee for at least 2 years from the date the option is granted and at least 1 year from the date the stock is acquired, the
employee will receive capital gain treatment when the stock is sold.
For all three types of stock options, the options can be exercised for the stock of the company issuing the option or for the stock of its
Distributions are taxable in a manner similar to annuities, i.e. the pro rata amount of each payment that represents the employee’s contribution to the plan, if any, can be excluded from taxation. Individuals may establish an individual retirement account (IRA). The maximum amount that may be contributed to an IRA for the 2012 tax year is USD 5,000. Taxpayers who are aged 50 and over at the end of a taxable year are permitted to make an additional “catch-up” contribution of USD 1,000. If the individual is an active participant in a qualified employer plan, the IRA contribution limit is reduced to the extent that the taxpayer’s adjusted gross income exceeds certain threshold amounts.
The taxation of distributions from an IRA depends on the type of IRA. In a “Regular IRA”, contributions by the individua l are deductible for the taxable year they are made, and all distributions from the IRA are fully taxable. In a “Roth IRA”, the contributions are non-deductible, and distributions are not taxed provided they are made after the taxpayer has reached the age of 59 1/2 years or are made for certain qualified purposes. A 5-year holding period must also be met. The 5-year holding period requires that distributions should not be made until after the end of the 5-year period that begins with the first taxable year for which a contribution was made to the Roth IRA.
1.3.4. Directors’ remuneration
Remuneration received by members of a corporate board of directors is subject to personal income tax as compensation income. There are no special tax rules applicable to dir ector’s income.
1.4. Business and professional income
Business and professional income is subject to personal income tax. Ordinary and necessary business expenses are deductible provided they are not reimbursed by the employer.
Restrictions apply to the deduction of entertainment expenses, expenses incurred to attend conferences or seminars outside the United States, and the business use of a home as an office.
See also:
Topical Analyses
•Private Investment Income section 1.2.2.
•Private Investment Income section 1.2.3.
1.5. Investment income
Individual taxpayers are taxable on investment income, including dividends and interest. Interest income is fully taxable unless it is received on bonds issued by the US states and municipalities for qualified public purposes. Such interest is exempt. Rental income from real property is fully taxable.
Dividends received by individuals are taxed at the same rates applicable to long-term capital gains, i.e. 15% (or 5% or 0% in the case of taxpayers in the 10% or 15% tax brackets for ordinary income, see section 1.9.1.2.). The reduced rates are effective for dividends received in taxable years beginning after 31 December 2002 and on or before 31 December 2012.
The reduced rates apply to dividends received from domestic corporations and from qualifying foreign corporations. Dividends from foreign corporations are eligible for the reduced rates if the foreign corporation is eligible for benefits under a comprehensive income tax treaty with the United States (other than the treaty with Barbados) which the Treasury Department determines to be satisfactory and that includes an exchange of information programme. Dividends from a foreign corporation also qualify if its stock is readily tradable on an established securities market in the United States.
To qualify for the reduced tax rate on dividends, the shareholder must meet a holding period requirement. In the case of common stock and most preferred stock, the holding period requirement is that the stock must be held for at least 61 days during the 121-day period that commences 60 days prior to the date the stock becomes ex-dividend (i.e. the date the stock is tradable without the right to the
dividend attached). In the case of preferred stock paying a dividend attributable to periods in excess of 366 days, the required holding period is 91 days during the 181-day period that commences 90 days prior to the date the stock becomes ex-dividend. The reduced rate is not available to the extent that the taxpayer is obligated to make related payments with respect to positions in substantially similar or related property.
Expenses related to the production of investment income are deductible to the extent of the income received. Expenses related to the production of tax-exempt income are non-deductible.
For the treatment of losses and credits from business activities in which the taxpayer does not materially participate, see section 1.8.3. For the treatment of losses from activities subject to the “at risk” rules, see section 1.8.4.
See also:
Topical Analyses
•Private Investment Income section 1.2.4.
1.6. Capital gains
Gains and losses from the sale of capital assets are subject to special treatment. See sections 1.8.2. and 1.9.1.2.
Rollover relief is provided in the following circumstances:
- where business or investment property is exchanged for property of a like-kind (Section 1031 transactions), but this does not apply to stocks, securities or property held for sale; and
- where property which compulsorily or involuntarily converted (e.g. by eminent domain) into property which is similar or related in service or use (Section 1033 transactions). In these transactions, the gain is deferred until the replacement property acquired in the transaction is disposed of. See section 1.2.2. for the exclusion of gain from sale of a home used as a principal residence.
1.7. Personal deductions, allowances and credits
1.7.1. Deductions
Two types of deductions are permitted in computing taxable income: deductions that are taken from gross income to arrive at adjusted gross income (AGI), and deductions taken from AGI to arrive at taxable income.
1.7.1.1. Deductions from gross income
The principal categories of deductions that may be taken from gross income to arrive at adjusted gross income (AGI) are as follows:
- trade or business deductions, other than those incurred by an employee;
- trade or business deductions of an employee if reimbursed by the employer;
- losses from the sale or exchange of property;
- deductions, including depletion, attributable to property held for the production of income;
- contributions to a pension, profit-sharing, or annuity plan by a self-employed individual; - contributions to a regular IRA (see section 1.3.3.);
- alimony payments;
- moving expenses (see section 1.3.1.); and
- contributions to a qualified Medical Savings Account.
For an individual who can be claimed as a dependent on another taxpayer’s return, the stand ard deduction for 2012 is the lesser of (1) USD 5,950 and (2) the greater of (i) USD 950 or (ii) the sum of the
(b) Itemized deductions
For taxpayers who elect to itemize their deductions, the primary categories of deductions include the following:
- mortgage interest on a primary and secondary residence up to a total mortgage amount of USD 1 million, plus USD 100,000 for home equity loans;
- state and local income taxes (see section 2.1.) or in lieu thereof state and local general sales taxes;
- state and local real estate taxes;
- charitable contributions;
- medical expenses to the extent such expenses exceed 7.5% of the taxpayer’s adjusted gross income (AGI); and
- casualty losses not reimbursed by insurance to the extent such losses exceed 10% of AGI.
Certain itemized deductions (referred to as “miscellaneous”) are subject to a floor amount equal to 2% of the taxpayer’s AGI. Only miscellaneous itemized deductions with an aggregate total in excess of the 2% floor may be deducted. All itemized deductions are treated as miscellaneous unless excepted by the statute. The major exceptions are the following: interest, taxes, casualty losses, wagering losses, charitable contributions, and medical expenses. These items are not subject to the 2% floor.
Itemized deductions are also subject to an overall limitation for upper income taxpayers. Taxpayers with an AGI above a threshold amount are required to reduce their itemized deductions by the lesser of (1) 3% of the AGI in excess of the threshold amount or (2) 80%
of their total itemized deductions. The overall limitation on itemized deductions will not apply to the 2010, 2011, and 2012 tax years, i.e. to any taxable year beginning after 31 December 2009 and before 1 January 2013.
1.7.
2. Allowances
Taxpayers may claim a personal exemption allowance for themselves, their spouse if a joint return is filed, and each dependent child under the age of 19, or under the age of 24 if the child is a full-time student.
The amount for each personal exemption that can be claimed for 2012 is USD 3,800. The personal exemption amount is adjusted by the IRS each year to reflect the change in the US Consumer Price Index.
The personal exemption amounts are phased out for upper income taxpayers. The phase-out is a reduction of 2% for each USD 2,500 (or fraction thereof) by which adjusted gross income (AGI) exceeds a threshold amount. The phase-out of personal exemptions will not apply to the 2010, 2011 and 2012 tax years, i.e. to any taxable year beginning after 31 December 2009 and before 1 January 2013.
1.7.3. Credits
Individuals are entitled to claim a foreign tax credit (FTC) for taxes paid on foreign source income. For a description of the FTC
Losses from certain activities may not be deducted if they exceed the amount that the taxpayer is considered to have at risk with respect to the activity. A taxpayer is considered to be at risk in an activity to the extent that he has contributed money or property (to the extent of the tax basis of such property), or has borrowed amounts that he is personally liable to repay. The activities to which the at-risk rules apply are the following: holding, producing or distributing motion picture films or video tapes, farming, leasing depreciable personal property or certain defined real property, exploring for or exploiting oil and gas resources, or exploring for or exploiting geothermal deposits as a trade or business or for the production of income. Losses that are not deductible under the at-risk rules may be carried forward to succeeding taxable years.
1.8.5. Wash-sale rule
A loss from the sale or disposition of stocks or securities will be disallowed if the taxpayer acquires, or has entered into a contract or option to acquire, substantially identical stocks or securities within the 60-day period that begins 30 days prior to the sale or disposition and ends 30 days after the sale or disposition. This is referred to as the wash-sale rule. It is designed to prevent the claiming of a tax loss when the taxpayer re-establishes his position in the stock or security within a limited time period.
Children are generally required to file an income tax return and pay tax on their own income. Children who have unearned income in exce ss of a specified amount are subject to tax (the “kiddie tax”) at the highest tax rate applicable to their parents. The income threshold for the kiddie tax for 2012 is (1) USD 950 plus (2) the greater of (i) USD 950 and (ii) the sum of the itemized deductions applicable to the child’s unearned income if the child itemizes his or her deductions. The kiddie tax applies to (i) children up to the age of 18 and (ii) children up to the age of 19 (or children up to the age of 24 who are full-time students) whose earned income does not exceed one-half of their support.
A parent may elect to include the income of a child on the tax return of the parent if the only income of the child is from interest and dividends, if the child has no earned income, and if the interest and dividends of the child are above a threshold amount and below a ceiling amount. The threshold amount for 2012 is USD 950 and the ceiling amount for 2012 is USD 9,500.
1.9.1.
2. Capital gains
Gains from the sale of capital assets held for more than 12 months (long-term capital gains) are subject to a reduced rate of tax. The maximum tax rate on capital gains is 15% for capital assets disposed of after 6 May 2003 and before 1 January 2013. For individuals in the 10% and 15% tax brackets for ordinary income, the maximum rate is reduced to 5% during this period. The 5% rate will be reduced to 0% for capital assets disposed of after 31 December 2007.
The foregoing rates for capital gains are scheduled to expire for taxable years beginning after 31 December 2012, and at that time the maximum rates will revert to the prior law rates of 10% for individuals in the 10% and 15% tax brackets for ordinary income and 20% for all other taxpayers.
Gains from the sale of capital assets held for 12 months or less (short-term capital gains) are subject to tax at the ordinary income tax rates (see section 1.9.1.1.).
Individuals are permitted to claim a limited exclusion for gain from the sale of qualified small business stock. The stock must be acquired at original issue and held for at least five years. The exclusion is equal to a defined percentage of the gain from the sale of the stock, subject to a limitation equal to the greater of (1) ten times the taxpayer’s basis in the stock or (2) USD 10 million. The defined percentage for the exclusion is 75% for qualified small
business stock acquired after 17 February 2009 and on or before 27 September 2010. The defined percentage is 100% for stock acquired after 27 September 2010 and before 1 January 2012.
1.9.1.3. Alternative minimum tax
Individual taxpayers are subject to an alternative minimum tax (AMT) if such tax exceeds the amount of the regular tax. The tax base for the AMT requires an add-back to the taxable income base of certain expenses and deductions that are granted favourable treatment under the regular tax provisions.
Alternative minimum taxable income (AMTI) in excess of an exemption amount is taxed at the rate of 26% for AMTI up to USD 175,000 above the exemption amount and 28% on the excess. If the amount of the AMT exceeds the taxpayer’s regular tax liability, then such excess amount must be paid as additional tax.
The regular AMT exemption amounts for 2011 are: USD 74,450 for married taxpayers filing joint tax returns and surviving spouses, USD 48,450 for single taxpayers, and USD 37,225 for married taxpayers filing separate tax returns. The AMT exemption amounts for 2012 are subject to legislation. The AMT exemption amounts are phased out for upper income taxpayers.
The AMT exemption amount for 2011 for children who are subject to the kiddie tax is the lesser of (1) the sum of the child’s earned
income plus USD 6,800 or (2) the regular AMT exemption amount for single taxpayers for 2011.
The AMT exemption amount for 2012 for children who are subject to t he kiddie tax is the lesser of (1) the sum of the child’s earned income plus USD 6,950 or (2) the regular AMT exemption amount for single taxpayers for 2012.
See also:
Topical Analyses
•Private Investment Income section 1.3.1.
•Private Investment Income section 1.3.2.
1.9.
2. Withholding taxes
Wages and salaries are subject to withholding tax, which is collected by the employer. Social security tax is also collected by withholding. The withholding taxes apply to both residents and non-residents. Withholding taxes do not represent the final determination of tax liability, but are offset against the amount of tax owed at the time the tax return is filed.
Withholding taxes are not collected on investment income paid to US citizens and residents. For withholding taxes imposed on non-residents, see section 6.3.1.3.
1.10. Administration
1.10.1. Taxable period
Taxpayers compute their income and tax liability using the calendar year or a fiscal year. A 52-53 week year may also be adopted if the taxpayer regularly keeps his books on that basis. (A 52-53 week year is an annual accounting period that always ends on the same day of the week that is closest to the end of a calendar month.) Taxpayers who do not keep books of account or who do not use a permitted annual accounting period are required to use the calendar year as their taxable period.
1.10.
2. Tax returns and assessment
The United States used the self-assessment system whereby all taxpayers are required to complete a tax return and compute their own tax liability. Individual tax returns are due on or before the 15th day of the 4th month following the close of the taxable year (15 April for calendar year taxpayers). An extension of 6 months will be granted if the taxpayer files a request with the IRS on or before the due date of the original return and makes a proper estimate thereon of the tax due. The extension will not extend the time for payment of the tax, which remains due on the original date. For US citizens and residents whose tax home is outside the United States, the due date of the return is the 15th day of the 6th month following the close of the taxable year (15 June for calendar year taxpayers).
1.10.3. Payment of tax
The full amount of tax owed for the year is required to be paid on or before the due date of the tax return (without extensions). In addition, estimated tax payments are required to be made on a quarterly basis during the year in an amount equal to 25% of the required annual payment. The total amount of the quarterly payments must be equal to at least the lesser of (1) 90% of the tax shown on the final return
to be due for the current year, or (2) 100% of the tax shown on the final return for the immediately preceding taxable year.
Penalties apply if the payments are less than these safe-harbour amounts. If the adjusted gross income of the individual shown on the return for the preceding year exceeds USD 150,000, the safe-harbour payments under clause (2) must be equal to at least 110% of the preceding year’s tax liability.
1.10.4. Rulings
Advance rulings may be obtained from the IRS on most tax issues. See Corporate Taxation section 1.8.4.
Citation: J.G. Rienstra, United States - Individual Taxation sec. 1., Country Surveys IBFD (accessed 8 Mar. 2012)。