26 U.S.C. § 882

Tax on income of foreign corporations connected with United States business

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(a) Imposition of tax(1) In general

A foreign corporation engaged in trade or business within the United States during the taxable year shall be taxable as provided in section 11, 55, or 59A,11 So in original. The comma probably should not appear. on its taxable income which is effectively connected with the conduct of a trade or business within the United States.

(2) Determination of taxable income

In determining taxable income for purposes of paragraph (1), gross income includes only gross income which is effectively connected with the conduct of a trade or business within the United States.

(3) [Cross reference 22 Par. (3) heading editorially supplied.]

For special tax treatment of gain or loss from the disposition by a foreign corporation of a United States real property interest, see section 897.

(b) Gross incomeIn the case of a foreign corporation, except where the context clearly indicates otherwise, gross income includes only—(1) gross income which is derived from sources within the United States and which is not effectively connected with the conduct of a trade or business within the United States, and(2) gross income which is effectively connected with the conduct of a trade or business within the United States.(c) Allowance of deductions and credits(1) Allocation of deductions(A) General rule

In the case of a foreign corporation, the deductions shall be allowed only for purposes of subsection (a) and (except as provided by subparagraph (B)) only if and to the extent that they are connected with income which is effectively connected with the conduct of a trade or business within the United States; and the proper apportionment and allocation of the deductions for this purpose shall be determined as provided in regulations prescribed by the Secretary.

(B) Charitable contributions

The deduction for charitable contributions and gifts provided by section 170 shall be allowed whether or not connected with income which is effectively connected with the conduct of a trade or business within the United States.

(2) Deductions and credits allowed only if return filed

A foreign corporation shall receive the benefit of the deductions and credits allowed to it in this subtitle only by filing or causing to be filed with the Secretary a true and accurate return, in the manner prescribed in subtitle F, including therein all the information which the Secretary may deem necessary for the calculation of such deductions and credits. The preceding sentence shall not apply for purposes of the tax imposed by section 541 (relating to personal holding company tax), and shall not be construed to deny the credit provided by section 33 for tax withheld at source or the credit provided by section 34 for certain uses of gasoline.

(3) Foreign tax credit

Except as provided by section 906, foreign corporations shall not be allowed the credit against the tax for taxes of foreign countries and possessions of the United States allowed by section 901.

(4) Cross reference

For rule that certain foreign taxes are not to be taken into account in determining deduction or credit, see section 906(b)(1).

(d) Election to treat real property income as income connected with United States business(1) In generalA foreign corporation which during the taxable year derives any income—(A) from real property located in the United States, or from any interest in such real property, including (i) gains from the sale or exchange of real property or an interest therein, (ii) rents or royalties from mines, wells, or other natural deposits, and (iii) gains described in section 631(b) or (c), and(B) which, but for this subsection, would not be treated as income effectively connected with the conduct of a trade or business within the United States,may elect for such taxable year to treat all such income as income which is effectively connected with the conduct of a trade or business within the United States. In such case, such income shall be taxable as provided in subsection (a)(1) whether or not such corporation is engaged in trade or business within the United States during the taxable year. An election under this paragraph for any taxable year shall remain in effect for all subsequent taxable years, except that it may be revoked with the consent of the Secretary with respect to any taxable year.(2) Election after revocation, etc.

Paragraphs (2) and (3) of section 871(d) shall apply in respect of elections under this subsection in the same manner and to the same extent as they apply in respect of elections under section 871(d).

(e) Interest on United States obligations received by banks organized in possessionsIn the case of a corporation created or organized in, or under the law of, a possession of the United States which is carrying on the banking business in a possession of the United States, interest on obligations of the United States which is not portfolio interest (as defined in section 881(c)(2)) shall—(1) for purposes of this subpart, be treated as income which is effectively connected with the conduct of a trade or business within the United States, and(2) shall be taxable as provided in subsection (a)(1) whether or not such corporation is engaged in trade or business within the United States during the taxable year.(f) Returns of tax by agent

If any foreign corporation has no office or place of business in the United States but has an agent in the United States, the return required under section 6012 shall be made by the agent.

(Aug. 16, 1954, ch. 736, 68A Stat. 282; Pub. L. 89–809, title I, § 104(b)(1), Nov. 13, 1966, 80 Stat. 1555; Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 95–600, title III, § 301(b)(13), Nov. 6, 1978, 92 Stat. 2822; Pub. L. 96–499, title XI, § 1122(c)(2), Dec. 5, 1980, 94 Stat. 2687; Pub. L. 97–424, title V, § 515(b)(6)(F), Jan. 6, 1983, 96 Stat. 2182; Pub. L. 98–369, div. A, title IV, § 474(r)(19), July 18, 1984, 98 Stat. 843; Pub. L. 99–514, title VII, § 701(e)(4)(F), title XII, § 1236(a), Oct. 22, 1986, 100 Stat. 2343, 2576; Pub. L. 100–647, title I, § 1012(s)(2)(B), title II, § 2001(c)(2), title VI, § 6133(a), Nov. 10, 1988, 102 Stat. 3527, 3594, 3721; Pub. L. 113–295, div. A, title II, § 221(a)(12)(F), Dec. 19, 2014, 128 Stat. 4038; Pub. L. 115–97, title I, §§ 12001(b)(14), 13001(b)(2)(L), 14401(d)(2), Dec. 22, 2017, 131 Stat. 2094, 2097, 2233; Pub. L. 117–169, title I, § 10101(a)(4)(E), Aug. 16, 2022, 136 Stat. 1822.)Editorial NotesAmendments

2022—Subsec. (a)(1). Pub. L. 117–169 inserted “, 55,” after “section 11”.

2017—Subsec. (a)(1). Pub. L. 115–97, § 14401(d)(2), which directed insertion of “or 59A,” after “section 11,”, was executed by making the insertion after “section 11” to reflect the probable intent of Congress and the amendment by Pub. L. 115–97, § 12001(b)(14). See below.

Pub. L. 115–97, § 13001(b)(2)(L), struck out “or 1201(a)” before “on its taxable income”.

Pub. L. 115–97, § 12001(b)(14), struck out “, 55,” after “section 11”.

2014—Subsec. (a)(1). Pub. L. 113–295 struck out “, 59A” after “section 11, 55”.

1988—Subsec. (a)(1). Pub. L. 100–647, § 2001(c)(2), inserted reference to section 59A.

Subsec. (b). Pub. L. 100–647, § 1012(s)(2)(B), inserted “, except where the context clearly indicates otherwise” after “foreign corporation”.

Subsec. (e). Pub. L. 100–647, § 6133(a), substituted “interest on obligations of the United States which is not portfolio interest (as defined in section 881(c)(2))” for “interest on obligations of the United States”, and struck out at end “The preceding sentence shall not apply to any Guam corporation which is treated as not being a foreign corporation by section 881(b)(1) for the taxable year.”

1986—Subsec. (a)(1). Pub. L. 99–514, § 701(e)(4)(F), inserted reference to section 55.

Subsec. (e). Pub. L. 99–514, § 1236(a), inserted “The preceding sentence shall not apply to any Guam corporation which is treated as not being a foreign corporation by section 881(b)(1) for the taxable year.”

1984—Subsec. (c)(2). Pub. L. 98–369 substituted reference to section “33” for “32” and “34” for “39”.

1983—Subsec. (c)(2). Pub. L. 97–424 struck out “and lubricating oil” after “gasoline”.

1980—Subsec. (a)(3). Pub. L. 96–499 added par. (3).

1978—Subsec. (a). Pub. L. 95–600 substituted in subsec. (a) heading “Imposition of tax” for “Normal tax and surtax” and in par. (1) heading “In general” for “Imposition of tax”.

1976—Subsecs. (c)(1)(A), (2), (d). Pub. L. 94–455 struck out “or his delegate” after “Secretary”.

1966—Pub. L. 89–809 substantially revised the income tax treatment of foreign corporations, introduced the concept of taxable income effectively connected with the conduct of a trade or business within the United States into provisions dealing with the imposition of tax, substituted a concept of gross income that included gross income derived from sources within the United States not effectively connected with the conduct of a trade or business within the United States and gross income effectively connected with the conduct of a trade or business within the United States for a concept of gross income that included only gross income from sources within the United States, and inserted provisions for an election to treat real property income as income connected with United States business, treatment of interest on United States obligations received by banks organized in possessions, and the returns of tax by agents, and inserted cross reference to section 906(b)(1).

Statutory Notes and Related SubsidiariesEffective Date of 2022 Amendment

Amendment by Pub. L. 117–169 applicable to taxable years beginning after Dec. 31, 2022, see section 10101(f) of Pub. L. 117–169, set out as a note under section 11 of this title.

Effective Date of 2017 Amendment

Amendment by section 12001(b)(14) of Pub. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, see section 12001(c) of Pub. L. 115–97, set out as a note under section 11 of this title.

Amendment by section 13001(b)(2)(L) of Pub. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, see section 13001(c)(1) of Pub. L. 115–97, set out as a note under section 11 of this title.

Amendment by section 14401(d)(2) of Pub. L. 115–97 applicable to base erosion payments (as defined in section 59A(d) of this title) paid or accrued in taxable years beginning after Dec. 31, 2017, see section 14401(e) of Pub. L. 115–97, set out as a note under section 26 of this title.

Effective Date of 2014 Amendment

Amendment by Pub. L. 113–295 effective Dec. 19, 2014, subject to a savings provision, see section 221(b) of Pub. L. 113–295, set out as a note under section 1 of this title.

Effective Date of 1988 Amendment

Amendment by section 701(e)(4)(F) of Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title.

Amendment by Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Superfund Revenue Act of 1986, Pub. L. 99–499, title V, to which it relates, see section 2001(e) of Pub. L. 100–647, set out as a note under section 56 of this title.

Pub. L. 100–647, title VI, § 6133(c), Nov. 10, 1988, 102 Stat. 3721, provided that: “The amendments made by this subsection [probably means ‘this section’, which amended sections 882 and 884 of this title] shall apply to taxable years beginning after December 31, 1988.”

Effective Date of 1986 Amendment

Amendment by section 701(e)(4)(F) of Pub. L. 99–514 applicable to taxable years beginning after Dec. 31, 1986, with certain exceptions and qualifications, see section 701(f) of Pub. L. 99–514, set out as an Effective Date note under section 55 of this title.

Pub. L. 99–514, title XII, § 1236(b), Oct. 22, 1986, 100 Stat. 2576, provided that: “The amendment made by subsection (a) [amending this section] shall apply to taxable years beginning after November 16, 1985.”

Effective Date of 1984 Amendment

Amendment by Pub. L. 98–369 applicable to taxable years beginning after Dec. 31, 1983, and to carrybacks from such years, see section 475(a) of Pub. L. 98–369, set out as a note under section 21 of this title.

Effective Date of 1983 Amendment

Amendment by Pub. L. 97–424 applicable with respect to articles sold after Jan. 6, 1983, see section 515(c) of Pub. L. 97–424, set out as a note under section 34 of this title.

Effective Date of 1980 Amendment

Amendment by Pub. L. 96–499 applicable to disposition after June 18, 1980, see section 1125(a) of Pub. L. 96–499, set out as an Effective Date note under section 897 of this title.

Effective Date of 1978 Amendment

Amendment by Pub. L. 95–600 applicable to taxable years beginning after Dec. 31, 1978, see section 301(c) of Pub. L. 95–600, set out as a note under section 11 of this title.

Effective Date of 1966 Amendment

Amendment by Pub. L. 89–809 applicable with respect to taxable years beginning after Dec. 31, 1966, see section 104(n) of Pub. L. 89–809, set out as a note under section 11 of this title.

Applicability of Certain Amendments by Pub. L. 99–514 in Relation to Treaty Obligations of United States

For applicability of amendment by section 701(e)(4)(F) of Pub. L. 99–514 notwithstanding any treaty obligation of the United States in effect on Oct. 22, 1986, with provision that for such purposes any amendment by title I of Pub. L. 100–647 be treated as if it had been included in the provision of Pub. L. 99–514 to which such amendment relates, see section 1012(aa)(2), (4) of Pub. L. 100–647, set out as a note under section 861 of this title.

Notes of Decisions

Cited in 13 cases, 1931–2014 · leading case: Hewlett-Packard Co. v. State, Dep't of Revenue, 749 P.2d 400 (Colo. 1988).

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Hewlett-Packard Co. v. State, Dep't of Revenue, 749 P.2d 400 (Colo. 1988). · cites it 4× “Under 26 U.S.C. § 882 (b) (1982), gross income of a foreign corporation includes only: (1) gross income which is derived from sources within the United States and which is not effectively connected with the conduct of a trade or business within the United States, and (2) gross…”

Kraft Gen. Foods, Inc. v. Iowa Dep't of Revenue & Fin., 505 U.S. 71 (1992). · cites it 2× “[17] See 26 U. S. C. § 882 . [18] See § 245. [19] The dissent presents the example of a subsidiary incorporated in a foreign country, but engaged in business exclusively in the United States.”

Irving Pulp & Paper, Ltd. v. State Tax Assessor, 2005 ME 96 (Me. 2005). · cites it 3× “2004), 2 it was necessary to look to the United States Internal Revenue Code, which provided that a foreign corporation’s taxable income was limited to that income connected with its business conducted in the United States, 26 U.”

Swallows Holding, Ltd. v. Comm'r, 515 F.3d 162 (3rd Cir. 2008). “26 U.S.C. § 882 (a). Deductions from income are allowed only if they are connected with the “income which is effectively connected with the conduct of a trade or business within the United States.”

Danbury, Inc. v. Olive, 627 F. Supp. 513 (D.V.I. 1986). · cites it 2× “By substituting “Virgin Islands” for the “United States” as required under the mirror theory, 26 U.S.C. § 882 provides in pertinent part: Tax on income of foreign corporations connected with Virgin Islands business (a) Imposition of Tax (1) In general — A foreign corporation…”

Danbury, Inc. v. Anthony Olive, Dir., Bureau of Internal Revenue, Gov't of the Virgin Islands, 820 F.2d 618 (3rd Cir. 1987). “26 U.S.C.A. § 882 (b) (West Supp.1987) (mirrored).”

Bizcap, Inc. v. Olive, 892 F.2d 1163 (3rd Cir. 1989). · cites it 3× “26 U.S.C. § 882 . Thus, the district court concluded, as a foreign corporation, Danbury could not be taxed by the BIR on stateside income.”

Virgin Islands Bureau of Internal Revenue v. Chase Manhattan Bank, 168 F. Supp. 2d 480 (D.V.I. 2001). “Factual Background In early 1981, Lansdale learned about a perceived tax loophole available in the Virgin Islands and derived from the interplay between section 28(a) of the 1954 Revised Organic Act of the Virgin Islands [“Section 28(a)”] and the so-called “inhabitant rule” of…”

United States v. Casablanca Motors, Inc., 863 F. Supp. 50 (D.P.R. 1994). “See 26 U.S.C. § 882 . Additionally, when Puerto Rico coiporations must pay federal employment taxes under 26 U.”

Elec. Storage Battery Co. v. McCaughn, 52 F.2d 205 (E.D. Pa. 1931). “6 of the Revenue Act of 1924 (26 USCA § 882, and § 881 note). 2. The taxes in suit were illegally assessed and collected.”

Schlumberger Tech. Corp. & Subsidiaries v. State Dep't of Revenue, 331 P.3d 334 (Alaska 2014). · cites it 3× “26 U.S.C. § 882 (a) & (b) (2012). 4 . '"'Unitary business" is defined by 15 Alaska Administrative Code (AAC) 20.”

Irving Pulp & Paper Ltd. v. Maine Revenue Servs. (Me. Super. Ct 2004). · cites it 3× “In accordance with 26 U.S.C.S. § 882 (a)(1): A foreign corporation engaged in trade or business within the United States during the taxable year shall be taxable .”

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— 26 U.S.C. § 882(a)(2) — 1 case

Irving Pulp & Paper Ltd. v. Maine Revenue Servs. (Me. Super. Ct 2004). “In accordance with 26 U.S.C.S. § 882 (a)(1): A foreign corporation engaged in trade or business within the United States during the taxable year shall be taxable .”

— 26 U.S.C. § 882(b) — 1 case

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