A new 3.8% tax, commonly known as the “Medicare tax,” is scheduled to take 
effect for taxable years following December 31, 2012.
The tax is imposed on the lesser of net investment income (“NII”) or the excess of a taxpayer’s modified adjusted gross income over a threshold amount. For married taxpayers filing jointly, the threshold is $250,000; filing separately, $125,000; and for single taxpayers, $200,000.
NII is defined in IRC §1411(c)(1) as the excess of (A) the sum of (i) gross income from interest, dividends, annuities, royalties, and rents, (ii) other gross income derived from a trade or business which is a passive activity with respect to the taxpayer or which trades in financial instruments or commodities, and (iii) net gain attributable to the disposition of property over (B) properly allocable deductions.
Gain and income for purposes of IRC §1411 is generally recognized when recognized for federal income tax purposes. However, income inclusion and distributions from CFCs, PFICs, and QEFs are treated differently under the proposed regulations.
For purposes of IRC §1411, however, income inclusions from CFCs or QEFs are not included in NII.
Instead, income, previously included in gross income by a taxpayer after December 31, 2012 under the CFC or QEF rules, will be included in NII only when cash is actually distributed to the taxpayer.
Net gain from the disposition of stock in a CFC or QEF will be included in NII.
There is no similar addback of possessions-source income that is excluded under §931 for residents of American Samoa or under §933 for Puerto Rican residents. Thus, a resident of those possessions would only be subject to the §1411 tax if he realized substantial income from sources outside the possession where he is resident.
The regulations clarify that, in the case of residents of the other three U.S. possessions, all of which have so-called “mirror” Codes; Guam, the U.S. Virgin Islands, and the Northern Marianas, the §1411 tax will not apply because it has not been imposed by Congress on those three possessions, and because residents of those possessions pay income tax on their worldwide income to the government of the possession where they are resident.
Section 1411(e)(1) exempts a “nonresident alien” from the §1411 tax. The proposed regulations confirm that the term “nonresident alien” is determined in accordance with the “resident alien” definitional rules of §7701(b). However, the regulations give no guidance on how to apply §1411 when an individual is a U.S. citizen or resident alien for part of the year, and a nonresident alien for the balance of the year.
The regulations do not discuss the status of so-called “treaty tie-breaker aliens” who are classified as resident aliens under §7701(b), but who are also classified as income tax residents of a country having an income tax treaty with the United States under the “tie-breaker” rules of the treaty. Regs. §301.7701(b)-7(a)(1) provides that a tie-breaker alien will be classified as a nonresident “for purposes of computing that individual’s United States income tax liability under the provisions of the Internal Revenue Code and the regulations thereunder … .” Thus, whether a treaty tie-breaker alien is exempt from the §1411 tax probably depends on whether the §1411 tax is an “income tax” within the meaning of U.S. income tax treaties.
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