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The IRS recently announced in Notice 2011-12 that Notice 2009-91 will not apply to wages paid after December 31, 2010.
Previously, Notice 2009-91 revised the withholding calculation rules for nonresident alien employees performing services within the United States. Notice 2009-91 revised the rules to take into account changes made in the withholding tables to reflect the section 36A Making Work Pay Credit. However, the Making Work Pay Credit does not apply to tax years beginning after December 31, 2010.
Notice 2011-12 provides that for wages paid after December 31, 2010, employers must determine the amount of income tax withheld from wages paid to nonresident alien employees for services performed within the United States using the procedures outlined in Notice 2005-76 and the current Publication 15.
Businesses should ensure that their payroll departments are aware of this change to avoid compliance issues, including under withholding, penalties and interest.