Month: August 2015

Exploring the Vexing Issues of U.S. Citizenship Based Worldwide Taxation – University of Michigan School of Law (October 8th and 9th, 2015)

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Those of us who are international tax practitioners have to deal with the messy details of the tax law.  Advising private clients on the law and its consequences and finding opportunities within the law is a large part of the practitioner’s role.  Additionally, as private tax practitioners, we find ourselves advocating for client’s best interests vis-à-vis the U.S. federal government, state governments, the Courts and other governmental agencies.

Policy makers and academics have the luxury of dedicating much of their time to exploring what they think should be the law and what changes should be made to current law.

I have the privilege of participating at an upcoming academic conference on TAXATION AND CITIZENSHIP held at the University of Michigan School of Law.  The agenda and speakers will explore numerous issues surrounding taxation and citizenship. It is set out below, for those who might find the topics of interest (and most of the participants have published extensively on the topic):

DRAFT 7/31/15


Conference Organizers: Reuven Avi-Yonah & Allison Christians

Conference Sponsors:

University of Michigan Center for Comparative and International Law

Procopio, Cory, Hargreaves & Savitch LLP

Michigan Journal of International Law

October 8, 2015

7:30-9:00 Student Panel

Gene Magidenko (University of Michigan) chair

Montano Cabezas (Georgetown)

Christine Kim (NYU)

Gianluca Mazzoni (Brescia)

Miguel Nicolas (University of Paris)

October 9, 2015

University of Michigan Law School

8:30-9:00 Registration

9:00-9:15 Welcome

Monica Hakimi, Associate Dean, University of Michigan School of Law

9:15-10:30 Panel One

Hugh Ault, (Boston College and OECD) Senior Advisor to the OECD’s Centre for Tax Policy and Administration

Reuven Avi-Yonah (Michigan), Irwin I. Cohn Professor of Law, Director, International Tax LLM Program

Constructive Unilateralism

Wei Cui (UBC), Co-Director, Tax LL.M. Program at The Allard School of Law at University of British Columbia

    • Source and Residence as Interconnected Concepts

Tessa Davis (University of South Carolina School of Law)

Of Tax Evasion and “Bad” Citizens: The Role of Tax Law in Making a Citizen

Michael Kirsch (University of Notre Dame, the Law School)

  • Citizenship-Based Taxation vs Residence-Based Taxation: Distilling the Competing Normative Arguments
  • 10:30-10:45 Coffee Break

Philip West (Steptoe), Chairman

Allison Christians (McGill), H. Heward Stikeman Chair in Tax Law

    • 10:45-12:20 Panel Two
  • Uncle Sam Wants Who?
  • The Need for Consistent Tax Treatment of All Individuals Residing Overseas
  • Defining the National Community
    • Linneu Mello (Bichara)
  • How the Brazilian IRS keeps an eye on Brazilian residents and what FATCA has to do with it
  • FATCA: Problems and Potential in the Developing World

12:20-1:30 Lunch Break

1:00-1:30            Keynote: Elise Bean, Co-Director of the Levin Center at Wayne Law School, Former Chief of Staff, US Senate Permanent Subcommittee on Investigations

1:30-2:45 Panel Three

Ed Zelinsky,  Benjamin N. Cardozo School of Law – Yeshiva University

Ajay Mehrotra (Director of American Bar Foundation)

 The Problems of Defining Residence: The U.S. Experience

Jane Frecknall-Hughes (University of Hull)

  • Tax and the citizen: the philosophical underpinnings

Christine Harlen (University of Leeds)

  • Making America Exceptional: Perfectionist Civic Republicanism and the Taxation of Americans Abroad in the Progressive Era, 1890-1920

Sagit Leviner (Ono Academic College)

  • Citizenship Transcended

2:45-3:00 Coffee Break

Allison Christians (McGill), chair

3:00-4:15 Panel Four

    • Is the Expatriation Tax Constitutional? Mark to Market and the Macomber Conundrum

Adam Rosenzweig (Washington University Law, St. Louis)

  • Once a US Person, Always a US Person
  • Taxing Potential Community Members’ Foreign Source Income
  • Citizenship Overreach and FATCA

4:15-5:00 Concluding Panel 

 Hugh Ault, Reuven Avi-Yonah, Allison Christians, Ajay Mehrotra and Philip West

Letter from Your Non-U.S. Bank Regarding Chapter 4 of Subtitle A of the U.S. Internal Revenue Code – aka – “FATCA”

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Financial institutions, outside the U.S. have been taking numerous steps to advise their U.S. born clients and U.S. resident clients about the reporting of their account information to the U.S. Internal Revenue Service.

These letters take various forms, depending upon the institution.  In short, they normally say that as a result of the “Foreign Account Tax Compliance Act” (aka – FATCA, which comes from the newly created Chapter 4 of Subtitle A of the Internal Revenue Code, Title 26) they will be providing various account information to the U.S. Internal Revenue Service.

Some institutions are accelerating the information provided to include the account number, account holders/owners, balances and income from all sources.  FATCA does not require all of this information until it is fully phased in over the next couple of years.

Many U.S. born individuals who have resided virtually all of their lives outside the U.S., often find out for the first time they are U.S. income tax residents by virtue of their birth and the 14th amendment of the U.S. Constitution.  See, Co-author. Tax Simplification: The Need for Consistent Tax Treatment of All Individuals (Citizens, Lawful Permanent Residents and Non-Citizens Regardless of Immigration Status) Residing Overseas, Including the Repeal of U.S. Citizenship Based Taxation,”  by Patrick W. Martin and Professor Reuven Avi-Yonah, September 2013.

In many cases, I have seen and advised individuals who are first learning of these obligations when they open new accounts and the financial institution outside the U.S. requests an IRS Form W-9 with a U.S. taxpayer identification number, i.e., the social security number for U.S. citizens.  See an older post (23 July 2014) –  Why do I have to get a Social Security Number to file a U.S. income tax return (USCs)?

The financial institution will have them certify under penalty of perjury their status as a U.S. person or not.  If the individual was born in the U.S., they will necessarily be a U.S. person unless (i) they were born to diplomatic parents who were on diplomatic assignment in the U.S., or (ii) they renounced their U.S. citizenship and obtained a Certificate of Loss of Nationality from the U.S. Department of State.  See, The Importance of a Certificate of Loss of Nationality (“CLN”) and FATCA – Foreign Account Tax Compliance Act

These FATCA letters are no longer just for U.S. taxpayers with non-U.S. accounts.  Countries throughout the world are using the exchange of information agreements between the U.S. Treasury and other countries, the Intergovernmental Agreements to notify their taxpayers that soon information about their U.S. accounts will be made available to their tax authorities.  See, recent Mexican articles released including August 26, 2015, in the El Siglo de Torreón, titled Preparan SAT y EU auditorías:  ”

“El Servicio de Administración Tributaria (SAT) realizará el primer intercambio de información con Estados Unidos en septiembre para las primeras auditorías de personas con cuentas bancarias en Estados Unidos a partir del próximo año, aseguró Aristóteles Núñez, jefe del fisco.

“Vamos a poder conocer quiénes tienen cuentas en Estados Unidos y con ello empezar a revisar quién ha pagado sus impuestos y si no lo ha hecho habrá auditorías.”

FATCA Driven (Even More . . . ) – New IRS Forms W-8BEN versus W-8BEN-E versus W-9 (etc. etc.) for USCs and LPRs Overseas – It’s All About Information and More Information (Part III)

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Information and more information is the mantra of revised IRS Forms as a result of FATCA.  See,  FATCA Driven – New IRS Forms W-8BEN versus W-8BEN-E versus W-9 (etc. etc.) for USCs and LPRs Overseas – It’s All About Information and More Information

U.S. citizens residing outside the U.S. along with lawful permanent residents (“LPRs”) are not the onlyW-8IMY p1 persons who need to understand the IRS forms referenced above.  Indeed, all entities and institutions, whether they are small privately held companies or large and traditional financial institutions are required to complete and have signed a range of IRS forms.

The forms can be either the actual IRS form, or a satisfactory substitute form.  Many individuals are of the erroneous view that if they are not financial institutions, they do not need to concern themselves with these classifications.

Unfortunately, that is not the case.  Also, these classification rules apply to the surprise of many, if there are (or are not) U.S. persons involved.

In addition to a basic understanding of U.S. laws, it is also crucial that the parties see if their country has entered into an IGA.  For instance, if we examine the tiny little country of Liechtenstein which has a relatively large financial sector, it is necessary to first classify the type of entity.

All of this is necessary in order to properly determine which IRS form is to be required to be completed (e.g., IRS Form W-8BEN-E o W-8BEN o W-9 or W-8IMY or W-8EXP, etc.).  In addition, each of these classifications will help determine how to complete such forms. 

For instance, if it is a Liechtenstein Stiftung, it will probably (but not necessary) be a trust and not a corporation. See the IRS Memorandum from 2009 that provides that a Liechtenstein Stiftung will be classified as a trust, if its primary purpose is to protect or conserve the property transferred to the Stiftung for the Stiftung’s beneficiaries and is usually not established primarily for actively carrying on business activities.[1]

[1] See Memorandum Number: AM2009-012, dated October 16, 2009, issued by the Office of Chief Counsel, Internal Revenue Service.

Next, in this example, with a Liechtenstein Stiftung, the country of Liechtenstein has entered into an Intergovernmental Agreement (“IGA”).

Hence, the terms of the IGA are most important.  Under the IGA, as is the case generally for FATCA, the entity has to be either an Foreign Financial Institution (“FFI” or “FI”) or a Non-Financial Foreign Entity (“NFFE”).Deutsche  Sample W-9 p2

1)         Definition of Financial Institution (“FI”)

A financial institution is any entity that:

  • Accepts deposits in the ordinary course of a banking or similar business (“Depository Institution”);[1]
  • Holds, as a substantial portion of its business financial assets for the benefit of one or more other persons (“Custodial Institution”);[2]
  • Is an investment entity; or
  • Is an specified insurance company or holding company that is a member of an expanded group;[3]

[1] See Article 1(i), IGA.

[2] See Article 1(h), IGA.

[3] See Article 1(k), IGA.

Generally a private Liechtenstein Stiftung would not satisfy any of these requirements (although it could conceivably be the case that one could be an “investment entity”).  Hence, it would generally be an NFFE and not an FI.

NFFEs can be passive or active. The kind of compliance obligations varies depending on the type of NFFE (passive or active).

  1. Passive NFFEs

 A passive NFFE is an NFFE which is not an active NFFE or a withholding foreign partnership or withholding foreign trust.[1]

There are several criteria under which a NFFE can be classified as an active NFFE. The following explain the most relevant criteria.

  1. Active NFFEs

Among the criteria that the IGA establishes, under which a NFFE can be considered as an Active NFFE, are the following:

1)                If less than 50% of the NFFE’s gross income is passive income and less than 50% of the assets held by the NFFE are assets that produce or are held for the production of passive income during the preceding calendar year.  A

2)                Substantially all of the activities of the NFFE consist of holding (in whole or in part) the outstanding stock of, or providing financing and businesses other than the business of a Financial Institution.

Sometimes trusts or Stiftungs will also participate in or hold interests in companies, some of which may engage in active trades or businesses or simply hold passive investments. On the contrary, the companies/subsidiaries only hold other assets from which they derived passive income (e.g., dividends, interests, rents, royalties, etc.).[2]

This will determine if a Stiftung will be classified as a Passive NFFE or not under FATCA regulations and the IGA.

[1] It also can make a difference if the trust (or Stiftung in this example) is a so-called “withholding” foreign trust; which generally requires an agreement with the IRS.

[2] Treas. Reg. § 1.1472-1.

Not surprisingly, the above analysis is complex, because the rules are complex.  Accordingly, it has been the author’s experience, that many institutions around the world which request one or more of the above IRS Forms have great difficulty in even implementing these rules.  Most of their employees seem to have little understanding of what is a very complex area of law, even when their resident country has issued extensive regulations or guidance about how the terms of the IGA are to be implemented.

How Many of the 5,211 Former U.S. Citizens (who Renounced in 2014 and 2015) are Still U.S. Taxpayers?

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CORRECTION TO THIS POST:  If you renounced your U.S. citizenship, you may think you cease to be a U.S. taxpayer.  This depends upon when the termination of citizenship occurred.

More posts will follow addressing these issues.

Unfortunately, the law is not that simple, regardless of your wealth, income, assets or future inheritances or gifts.IRS Form 8854 Part IV- Including Certification

The way the federal tax law works, is that the U.S. “expatriation tax law” applies to the poorest former U.S. citizen (and certain long-term LPRs), wherever they reside if they do not comply with the certification requirements of Section 877(a)(2)(C). See, Why “covered expat” (“covered expatriate”) status matters, even if you have no assets! The “Forever Taint”!

The law continues to obligate certain former U.S. citizens to be subject to the U.S. taxation laws on a worldwide bases, unless and until they notify the IRS and certify under penalty of perjury.  This depends upon the time of the renunciation.

Part II: U.S. Department of State has Allowed (Starting in at least 2013) USCs to Keep their U.S. Passports After Oath and Prior to Receiving CLN

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See the first post on this topic:  U.S. Department of State has Allowed (Starting in at least 2013) USCs to Keep their U.S. Passports After Oath and Prior to Receiving CLN, Posted on March 17, 2015

A U.S. citizen is required to have a U.S. passport to enter the U.S., according to the immigration law regulations 22 CFR § 53.1 require that a U.S. citizen have a U.S. passport to enter or depart the United States.  US PassportThe relevant part of the regulations is § 53.1(a) which provides as follows:

Passport requirement; definitions.

(a) It is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid U.S. passport.
These regulations were first published in 2006, and rely in part on a Presidential Executive Order made by President Bush (Jr.).  See a prior post, USCs without a . . . Passport . . . Cannot Travel to the U.S., Posted on May 17, 2015. In that post and a later post, I explained how a social security number is currently not an indispensable requirement for U.S. citizens who wish to travel to the U.S. and need to apply for a passport.
This background is relevant for U.S. citizens who take the oath of renunciation.  Previously, many U.S. embassies and U.S. Consulates around the world would physically take the U.S. passport of the individual upon taking the oath of renunciation and completing U.S. Department of State Form DS-4080.  See, a prior post, Documents to Request the Consular Officer When Renouncing U.S. Citizenship, Posted on May 28, 2014, which provides as follows:

The U.S. Department of State does not always provide any specific document, e.g., a certified copy of any of the following documents, after you take the oath of renunciation:

Form DS-4080, Oath of Renunciation of the Nationality of the United States. 

Not having a U.S. passport can of course be problematic if the individual needs to travel in or out of the U.S. for a period of time after taking the oath, but before receiving the CLN.  See,  The Importance of a Certificate of Loss of Nationality (“CLN”) and FATCA – Foreign Account Tax Compliance Act, Posted on June 1, 2014

Fortunately, I have been told by several Chiefs of American Citizen Services in different U.S. Consulates and U.S. Embassies that they have been advised from Washington that they are NOT required to physically take the U.S. passport, until after the issuance of the CLN.  This now seems to be consistent practice throughout the world, and most all  Chiefs of American Citizen Services use this approach, based upon my personal experience with different clients.

Timing Issues for Lawful Permanent Residents (“LPR”) Who Never “Formally Abandoned” Their Green Card

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The “tax expatriation” statutory provisions are fraught with ambiguity and incomplete answers for those individuals who have cases that span different time periods.  This is because the law has been changed numerous times over the last several years and ad hoc concepts added, including the technical concept of “long-term residents” for the first time in 1996.  As has been previously explained, the first “expatriation tax” law was not adopted until 1966 as part of the  The Foreign Investors Tax Act of 1966 (“FITA”) – The Origin of U.S. Tax Expatriation Law   (Posted on April 6, 2014).New LPR Abandonment Form P1

Next, 1996 amendments kept the basic regime but added a number of key concepts, including “long-term residents”.  The changes in the law in 2004 made significant changes and in 2008 the first “mark to market” regime was adopted.   Each time, the concept of “long-term residents” was maintained, but without clear thought as to the meaning and timing of “expatriation” in various cases.   See, Timeline Summary of Changes in Tax Expatriation Provisions Since 1996, (Posted on April 9, 2014)

Unfortunately, none of these amendments to the law over the years carefully incorporated transition and timing rules for cases where the individual has lived in (or had U.S. citizenship or LPR) during one more of these time periods:

  • 1966-1996
  • 1996-2004
  • 2004-2008
  • 2008-present

There are many inconsistent concepts among the law and one clear example is demonstrated by an individual who became a lawful permanent resident prior to 1996 and prior to amendments in the definition of a “resident alien” which was adopted generally in the federal tax in the law in 1984.  This 1984 definition was not part of any specific “expatriation tax” provisions.

Remember, the technical definition of who is a “resident alien” is the basic definition of who is generally subject to U.S. income taxation on their worldwide income.  See, Co-author. Tax Simplification: The Need for Consistent Tax Treatment of All Individuals (Citizens, Lawful Permanent Residents and Non-Citizens Regardless of Immigration Status) Residing Overseas, Including the Repeal of U.S. Citizenship Based Taxation,”  by Patrick W. Martin and Professor Reuven Avi-Yonah, September 2013.

Prior to 1984, a LPR was not necessarily an income tax resident of the U.S.  This concept of LPR (i.e., a “green card”) driving U.S. income tax residency was adopted in 1984, long before Congress became obsessed with U.S. individual tax expatriation.  For background in the law, see the 1985 Penn State Law Review Article – Internal Revenue Code 7701(b): A More Certain Definition of Resident

The Joint Committee on Taxation report on the 1984 changes in the tax law (“General explanation of the revenue provisions of the Deficit Reduction Act of 1984 : (H.R. 4170, 98th Congress; Public Law 98-369)“) addressing the tax residency test of “lawful permanent residency” rules provides the following language:

. . . The Act defines “lawful permanent resident” to mean an individual who has the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, if such status has not been revoked or administratively or judicially determined to have been abandoned. Therefore, an alien who comes to the United States so infrequently that, on scrutiny, he or she is no longer legally entitled to permanent resident status, but who has not officially lost or abandoned that status, will be a resident for tax purposes. The purpose for this requirement of revocation or determination is to prevent aliens from attempting to retain an apparent right to enter or remain in the United States while attempting to avoid the tax responsibility that accompanies that right.

The logic of the LPR test is clear based upon this explanation.  If one has the right to live in the U.S., they cannot avoid the tax responsibility that accompanies that right.  However, as immigration lawyers will explain, there is no right to enter the U.S. after you have abandoned your LPR status and moved outside the U.S. on a permanent basis.

At the same time, there is other discussion in the report that would support the position that these provisions only apply for the years 1985 and thereafter (long after many individuals obtained LPR status, but who moved out of the country – e.g., in cases where individuals obtained LPR in the 1970s and left before 1985).  Specifically, the explanation in the Joint Committee of Taxation is as follows:

. . . The purpose of this effective date rule is to delay tax resident status for only new green cardholders for a short time. Congress understood further that an alien may acquire lawful permanent resident status for immigration purposes before U.S. presence. Congress sought to impose tax resident status on all lawful permanent residents once they arrive in the United States. The Act does not affect the determination of residence, even for green card holders, for taxable years beginning before January 1, 1985.

Of course, the report by the Joint Committee on Taxation (“JCT”) is not the law and does not bind the IRS or the taxpayer.  However, the JCT usually get their explanations of the law right.

Why is all of this important for LPRs who never formally abandoned their “green card”?  The IRS might well try to argue they never terminated their U.S. federal income tax residency for purposes of the “tax expatriation provisions”, as later versions of the statute impose an obligation to notify the IRS.  If the individual never notified the IRS, the government might ar

See, for instance Section 7701(b)(6)  with specific rules for LPR individuals who live in a country with a U.S. income tax treaty.   Importantly, the definition of a lawful permanent resident for tax purposes (as defined in Section 7701(b) ) is not identical to the definition for immigration law purposes as the legislative history to the 1984 amendments to the law explains.

See, Oops…Did I “Expatriate” and Never Know It: Lawful Permanent Residents Beware! International Tax Journal, CCH Wolters Kluwer, Jan.-Feb. 2014, Vol. 40 Issue 1, p9.

Finally, the information required as part of the process of formal abandonment is much more extensive than in the past.

A prior post discussed the published  USCIS immigration form I-407 for LPRs who must now use it when formally abandoning LPR status.  See,  More Information and More Information: USCIS Creates New Form for Abandonment of Lawful Permanent Residency

See, new I-407 Form requires that much more information and is 2 pages in length.

Will 2015 Be a Record Year for Citizenship Renunciations?

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The First Quarter of 2015 saw a large number of published names of former U.S. citizens:  1,335 total for the first quarter.

In addition, the second quarter saw a total of 460, for a Expatriates US citizens renounced chart through 2014cumulative total for the year (mid way through the year of 1,795).  At this pace, the year 2015 could be a slight record of U.S. citizenship renunciations compared to the record year of 2014.

See,  New Record of U.S. Citizens Renouncing – The New Normal

The names of each citizen can be located in the list published in the Federal Register.

There are a number of key considerations and strategic decisions that most all U.S. citizens need to consider prior to renouncing citizenship.  See, for instance –

 U.S. Citizens Overseas who Wish to Renounce without a Social Security Number will Necessarily be a “Covered Expatriate”

The “Hidden Tax” of Expatriation – Section 2801 and its “Forever Taint.”US Passport

Can the U.S. Federal Government Bar Entry into the U.S. to a U.S. Citizen without a U.S. Passport?

Global Entry, SENTRI and NEXUS after Renouncing – the “Trusted Traveler Programs” – SAFE TRAVELS!