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Title 26 — Internal Revenue CodeRelease 119-73

§879 Tax treatment of certain community income in the case of nonresident alien individuals

Title 26 › Subtitle Subtitle A— - Income Taxes › Chapter CHAPTER 1— - NORMAL TAXES AND SURTAXES › Subchapter Subchapter N— - Tax Based on Income From Sources Within or Without the United States › Part PART II— - NONRESIDENT ALIENS AND FOREIGN CORPORATIONS › Subpart Subpart A— - Nonresident Alien Individuals › § 879

Last updated Apr 6, 2026|Official source

Summary

When a married couple includes one or both nonresident aliens and they have community income, the law tells how to assign that income for tax purposes. Earned pay (not including business income or a partner’s share) is treated as the income of the spouse who did the work. Business income and a partner’s share follow the rule in section 1402(a)(5). Income that comes from one spouse’s separate property is treated as that spouse’s. Any other community income is handled under the applicable community property law. These rules do not apply for any tax year when an election under section 6013(g) or (h) to treat a nonresident spouse as a U.S. resident is in effect. “Community income” means whatever the community property laws say is community income. “Community property laws” means those of a State, a foreign country, or a U.S. possession. Marital status is determined under section 7703(a).

Full Legal Text

Title 26, §879

Internal Revenue Code — Source: USLM XML via OLRC

(a)In the case of a married couple 1 or both of whom are nonresident alien individuals and who have community income for the taxable year, such community income shall be treated as follows:
(1)Earned income (within the meaning of section 911(d)(2)), other than trade or business income and a partner’s distributive share of partnership income, shall be treated as the income of the spouse who rendered the personal services,
(2)Trade or business income, and a partner’s distributive share of partnership income, shall be treated as provided in section 1402(a)(5),
(3)Community income not described in paragraph (1) or (2) which is derived from the separate property (as determined under the applicable community property law) of one spouse shall be treated as the income of such spouse, and
(4)All other such community income shall be treated as provided in the applicable community property law.
(b)Subsection (a) shall not apply for any taxable year for which an election under subsection (g) or (h) of section 6013 (relating to election to treat nonresident alien individual as resident of the United States) is in effect.
(c)For purposes of this section—
(1)The term “community income” means income which, under applicable community property laws, is treated as community income.
(2)The term “community property laws” means the community property laws of a State, a foreign country, or a possession of the United States.
(3)The determination of marital status shall be made under section 7703(a).

Legislative History

Notes & Related Subsidiaries

Editorial Notes

Amendments

1986—Subsec. (c)(3). Pub. L. 99–514 substituted “section 7703(a)” for “section 143(a)”. 1984—Pub. L. 98–369, § 139(b)(1), substituted “nonresident alien individuals” for “a resident or citizen of the United States who is married to a nonresident alien individual” in section catchline. Subsec. (a). Pub. L. 98–369, § 139(a), substituted in provision preceding par. (1) “married couple 1 or both of whom are nonresident alien individuals” for “citizen or resident of the United States who is married to a nonresident alien individual”. 1981—Subsec. (a)(1). Pub. L. 97–34 substituted “section 911(d)(2)” for “section 911(b)”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1986 AmendmentAmendment by Pub. L. 99–514 applicable to bonds issued after Aug. 15, 1986, except as otherwise provided, see sections 1311 to 1318 of Pub. L. 99–514, set out as an

Effective Date

Transitional Rules note under section 141 of this title.

Effective Date

of 1984 Amendment Pub. L. 98–369, div. A, title I, § 139(c), July 18, 1984, 98 Stat. 677, provided that: “The

Amendments

made by this section [amending this section] shall apply to taxable years beginning after December 31, 1984.”

Effective Date

of 1981 AmendmentAmendment by Pub. L. 97–34 applicable with respect to taxable years beginning after Dec. 31, 1981, see section 115 of Pub. L. 97–34, set out as a note under section 911 of this title.

Effective Date

Section applicable to taxable years beginning after Dec. 31, 1976, see section 1012(d) of Pub. L. 94–455, set out as an

Effective Date

of 1976 Amendment note under section 6013 of this title.

Reference

Citations & Metadata

Citation

26 U.S.C. § 879

Title 26 — Internal Revenue Code

Last Updated

Apr 6, 2026

Release point: 119-73