中国公民在第三国申请 F1/J1 来美是否适用中美税收协定

中国和美国之间签有税收协定，对于学生和教师有一定数额的税务减免。当然还有其他职业也有减免，不过我们最常见的是持 F1/J1 签证来美国的学生和学者。刚好有一位读者提到她是从法国来美国读博后，那么中国公民从第三国来美国，还能否使用中美 treaty 呢。我不是专业税务员，只是从中美协定谈一下我的理解。

中国公民在中国申请 F1/J1 签证来美，是可以使用中美协定减税的，详细可读这篇中国留学生和访问学者在美国享受税务减免的政策。但从第三国申请来美，应使用中美协定还是第三国和美国的协定，就比较头疼。一般有两种理解：

1. 只要是中国公民，就应该用中美协定。
2. 在第三国生活了一定时间，已成为该国的 tax resident，应使用该国和美国的协定。

目前，IRS 按第二种理解来处理。很多人的经验也是从第三国申请来美，学校不按中美 treaty 操作。

• 《中美税务协议全文（中英文）》

ARTICLE 19
(Teachers, Professors and Researchers)

An individual who is, or immediately before visiting a Contracting State was, a resident of the other Contracting State and is temporarily present in the first-mentioned Contracting State for the primary purpose of teaching, giving lectures or conducting research at a university, college, school or other accredited educational institution or scientific research institution in the first mentioned Contracting State shall be exempt from tax in the first mentioned Contracting State for a period not exceeding three years in the aggregate in respect of remuneration for such teaching, lectures or research.

ARTICLE 20
(Students and Trainees)

A student, business apprentice or trainee who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is present in the first- mentioned Contracting State solely for the purpose of his education, training or obtaining special technical experience shall be exempt from tax in that Contracting State with respect to:

1. payments received from abroad for the purpose of his maintenance, education, study, research or training;
2. grants or awards from a government, scientific, educational or other tax-exempt organization; and
3. income from personal services performed in that Contracting State in an amount not in excess of 5,000 United States dollars or its equivalent in Chinese yuan for any taxable year. The benefits provided under this Article shall extend only for such period of time as is reasonably necessary to complete the education or training.

因为读者提到了法国，我又去看了一下法国-美国税收协定（原文在此）：

ARTICLE 20
Teachers and Researchers

1. An individual who is a resident of a Contracting State immediately before his visit to the other Contracting State and who, at the invitation of the Government of that other State or of a university or other recognized educational or research institution situated in that other State, visits that other State for the primary purpose of teaching or engaging in research, or both, at a university or other recognized educational or research institution shall be taxable only in the first mentioned State on his income from personal services for such teaching or research for a period not exceeding 2 years from the date of his arrival in the other State. An individual shall be entitled to the benefits of this paragraph only once.
2. The provisions of paragraph 1 shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.

ARTICLE 21
Students and Trainees

1. (a) An individual who is a resident of a Contracting State immediately before his visit to the other Contracting State and who is temporarily present in the other Contracting State for the primary purpose of:

(i) studying at a university or other recognized educational institution in that other Contracting State;

(ii) securing training required to qualify him to practice a profession or professional specialty; or

(iii) studying or doing research as a recipient of a grant, allowance, or award from a not-for-profit governmental, religious, charitable, scientific, artistic, cultural, or educational organization, shall be exempt from tax in that other State with respect to amounts referred to in subparagraph (b).

(b) The amounts referred to in subparagraph (a) are:

(i) gifts from abroad for the purposes of his maintenance, education, study, research, or training;

(ii) a grant, allowance, or award described in subparagraph (a) (iii); and

(iii) income from personal services performed in the other Contracting State in an amount not in excess of 5,000 United States dollars or its equivalent in French francs for any taxable period.

(c) The benefits of this paragraph shall only extend for such period of time as may be reasonably or customarily required to effectuate the purpose of the visit, but in no event shall any individual have the benefits of this Article and Article 20 (Teachers and Researchers) for more than a total of five taxable periods.

(d) The provisions of subparagraph (a) shall not apply to income from research if such research is undertaken not in the public interest but primarily for the private benefit of a specific person or persons.

2. An individual who is a resident of a Contracting State immediately before his visit to the other Contracting State, and who is temporarily present in that other State as an employee of, or under contract with, a resident of the first-mentioned State for the primary purpose of:

(a) acquiring technical, professional, or business experience from a person other than that resident of the first-mentioned State, or

(b) studying at a university or other recognized educational institution in the other State, shall be exempt from tax by that other State for a period of 12 consecutive months with respect to his income from personal services in an aggregate amount not in excess of 8,000 United States dollars or its equivalent in French francs.

关于 resident 的定义，中美协定第四点提到：

ARTICLE 4
(Residence)

For the purposes of this Agreement, the term “resident of a Contracting State” means any person who, under the laws of that Contracting State, is liable to tax therein by reason of his domicile, residence, place of head office, place of incorporation or any other criterion of a similar nature.

法美协议也有类似的定义。所以，该个人在和美国签协议的国家（如中国、法国、德国、日本等）有纳税义务（liable to tax），就可叫做 resident，居民。Immediately 则指的是在入美国国境之前那一刻。协定既然用了 resident 而不是 citizen，我们应该理解成该个人在入境前那一刻是该国的居民，那么就适用于该国和美国的税务协定，而并非单纯由国籍决定。IRS 这个网页有各国和美国的 income tax treaty 可供查看。

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