Trading in Securities/Commodities Safe Harbor

§ 864. Definitions and special rules(a) ProducedFor purposes of this part, the term “produced” includes created, fabricated, manufactured, extracted, processed, cured, or aged. (b) Trade or business within the United StatesFor purposes of this part, part II, and chapter 3, the term “trade or business within the United States” includes the performance of personal services within the United States at any time within the taxable year, but does not include—(1) Performance of personal services for foreign employerThe performance of personal services—(A) for a nonresident alien individual, foreign partnership, or foreign corporation, not engaged in trade or business within the United States, or (B) for an office or place of business maintained in a foreign country or in a possession of the United States by an individual who is a citizen or resident of the United States or by a domestic partnership or a domestic corporation, by a nonresident alien individual temporarily present in the United States for a period or periods not exceeding a total of 90 days during the taxable year and whose compensation for such services does not exceed in the aggregate $3,000. (2) Trading in securities or commodities(A) Stocks and securities(i) In generalTrading in stocks or securities through a resident broker, commission agent, custodian, or other independent agent. (ii) Trading for taxpayer’s own accountTrading in stocks or securities for the taxpayer’s own account, whether by the taxpayer or his employees or through a resident broker, commission agent, custodian, or other agent, and whether or not any such employee or agent has discretionary authority to make decisions in effecting the transactions. This clause shall not apply in the case of a dealer in stocks or securities. (B) Commodities(i) In generalTrading in commodities through a resident broker, commission agent, custodian, or other independent agent. (ii) Trading for taxpayer’s own accountTrading in commodities for the taxpayer’s own account, whether by the taxpayer or his employees or through a resident broker, commission agent, custodian, or other agent, and whether or not any such employee or agent has discretionary authority to make decisions in effecting the transactions. This clause shall not apply in the case of a dealer in commodities. (iii) LimitationClauses (i) and (ii) shall apply only if the commodities are of a kind customarily dealt in on an organized commodity exchange and if the transaction is of a kind customarily consummated at such place. (C) LimitationSubparagraphs (A)(i) and (B)(i) shall apply only if, at no time during the taxable year, the taxpayer has an office or other fixed place of business in the United States through which or by the direction of which the transactions in stocks or securities, or in commodities, as the case may be, are effected.