Month: December 2023
2023: The Judiciary Takes Center Stage; Professor – Mindy Herzfeld’s article in Tax Notes International –
Professor Herzfeld has an excellent article posted the 18th of December 2023. You can access it here with a paid subscription – titled: 2023: The Judiciary Takes Center Stage. She has lots to cover regarding recent international tax law decisions by the U.S. federal courts (United States Tax Court, Federal District Courts & Court of Federal Claims).
- Tax Treaties
Professor Mindy Herzfeld discusses our recent case Aroeste v United States – Order (Nov 2023), which I have discussed at some length in recent posts. See, Federal District Court Rules in Favor of Mexican Citizen – Aroeste vs. United States (LPR) – Tax Treaty Applies: Government’s Motion for Summary Judgment is Denied. It was a pleasure for me to represent Mr. Aroeste over several years and see the favorable outcome of the federal district court that obligates the government to respect the terms of substantive tax treaty law.
She covers Christensen v. United States, which is another tax treaty case regarding the ability to take a foreign tax credit against the Section 1411 tax on net investment income; authored by Judge Marion Blank Horn of the Court of Federal Claims. Judge Horn is no stranger to important international tax issues. She authored the 2002 decision of Estate of Jack vs. United States regarding “domicile” for U.S. estate tax purposes and the impact of the Canadian decedent’s visa status. More recently the Estate of Margaret J. Jones vs. the United States (2022) was a lengthy case of Judge Horn’s denying the Estate a refund. This Estate of Margaret J. Jones is also Canadian citizen (decedent) case; but addressed a very different issue – re: the 5% “miscellaneous offshore penalty” she paid that is identified by the IRS’ rules they created in the “Streamlined Domestic Offshore Procedures” instructions (it is not a treaty case).
- TCJA, U.S. Trade or Business – SCOTUS & Moore
The Professor also addresses Moore v. United States (which she has written about before) and Altria Group Inc. v. United States and the subpart F rules under the TCJA.
The recent U.S. Tax Court (USTC) case of YA Global Investments LP v. Commissioner, is discussed by Professor Herzfeld regarding U.S. trade or business activities. Of course, another key USTC case regarding Section 6038 penalties is reviewed which has been appealed by the government – Farhy v. Commissioner. See, Six Weeks, Three International Information Reporting Decisions –
The SCOTUS decision near and dear to my heart (as I personally worked on the ACTEC amicus brief) of Bittner v. United States, is also reviewed briefly by Professor Herzfeld. In that case the SCOTUS held penalties are limited to $10,000 per year for a non-willful violation of the statute (not $2.72 million as the government asserted based upon each account).
She reviews some important transfer pricing cases Coca-Cola Co. v. Commissioner and 3M Co. v. Commissioner.
Do read Professor Herzfeld’s article when you get a chance. More details about her background and how to follow her is set out below:
Mindy Herzfeld is professor of tax practice at University of Florida Levin College of Law, counsel at Potomac Law Group, and a contributor to Tax Notes International. Follow Mindy Herzfeld (@InternationlTax) on X, formerly known as Twitter.
Never in my 30 year career practicing international tax law have I seen the judiciary so active in international tax matters – particularly when you take into consideration various SCOTUS cases.
IRS Form W-8 or W-9? “Green Card” Holders (LPRs) – Certifications Re: Tax Status after Aroeste v. United States
The author has extensively discussed the appropriate IRS Form for individuals to sign under penalties of perjury when dealing with their banks and third parties, irrespective of the banks’ location. The choice between IRS Forms W-8 and W-9 hinges on the U.S. income tax residency status of the individual. Forms W-8 and W-9 serve the purpose of conveying the tax residency status of the individual to third parties. The correct (or incorrect form) can have a range of different tax and legal consequences to the individual. A non-resident is generally not subject to income taxation in the United States, except for on limited types of income. In contrast, a resident (for federal income tax purposes) is subject to taxation on their worldwide income. If an income tax resident of the United States falsely certifies their status using Form W-8, severe adverse legal consequences can follow. See e.g., W-8s for U.S. Citizens Abroad: Filing False Information with Non-U.S. Banks (2016)
- IRS Forms W-8 or W-9 (or Other)?
For U.S. citizens, the process is straightforward—they must sign IRS Form W-9. However, for individuals without U.S. citizenship, the situation becomes more intricate. The following posts delve into critical legal considerations surrounding IRS Form W-8BEN.
See, IRS Releases New IRS Form W8-BEN. * U.S. citizens and LPRs beware of completing such form at the request of a third party (2014/2015)
Also, W-8s for U.S. Citizens Abroad: Filing False Information with Non-U.S. Banks (2016)
These comments provide in-depth insights into the legal consequences of filing and signing specific IRS forms (or their equivalents produced by financial institutions: W-8 vs. W-9). Notably, UBS’s explanation titled “UBS One Source Understanding tax forms—non U.S. taxpayers” sheds light on the efforts foreign financial institutions need to dedicate to assist clients who are not “United States persons” for federal tax purposes, ensuring compliance with U.S. federal tax laws.
- Green Card Holders Living Abroad Have Further Analysis to Consider
The complexity heightens for “Green Card” holders living abroad, especially those residing in countries covered by an income tax treaty with the United States. See, Aroeste v. United States, Case No. 22-cv-00682-AJB-KSC. Aroeste v United States – Order Nov 2023, emphasizes a 5-step analysis for Green Card holders who have not formally abandoned their status. The ultimate test is whether the individual is entitled to be treated as a resident of a foreign country under a tax treaty.
- Aroeste v. United States: Decision’s Impact on LPR Individuals
The decision could potentially affect millions of Green Card holders living outside the U.S. Aroeste Court’s 5-step analysis becomes crucial for the 3+ million LPRs residing abroad, determining whether they qualify as “United States persons” under the law.
- LPR Individuals Living in 66 Different Countries Could Be Impacted by Aroeste vs. U.S.
The United States has a total of 58 income tax treaties that covers 66 countries. See, Countries with U.S. Income Tax Treaties & Lawful Permanent Residents (“Oops – Did I Expatriate”?) (2014); ironically reflecting the same tax treaties in force in 2023 as of 2014. The 1973 U.S. – U.S.S.R. income tax treaty applies to Armenia, Azerbaijan, Belarus, Georgia, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, and Uzbekistan.
- Importance of Figuring Out your Residency Status if you Never Formally Abandoned your Green Card and Live in an Income Tax Treaty Country.
The impact of the Aroeste v United States decision presents a dual scenario for individuals who have not formally abandoned their “lawful permanent residency” status. On the positive side, there is an opportunity to inform the Internal Revenue Service (IRS) of their non-resident status by utilizing the applicable income tax treaty. There are specific steps to take as explained by the Court in Aroeste vs. United States. This action can relieve them of U.S. federal income tax filing obligations and Foreign Bank Account Report (FBAR) filing requirements, helping to steer clear of potential penalties and taxes that might otherwise be owed. The Court in Aroeste concluded such late filings could subject the individual ” . . . to penalties pursuant to I.R.C. § 6712(a) equal to $1,000 per failure to timely report his Treaty position. . . “
Aroeste v United States – Order Nov 2023Download
- Potential Downside for “LPRs” Living in an Income Tax Treaty Country.
However, on the flip side, this termination of U.S. income tax residency status may lead to the individual “cease[ing] to be a lawful permanent resident of the United States (within the meaning of section 7701(b)(6)).” Such a shift can trigger adverse U.S. tax consequences, affecting not only the individual but also extending to children, spouses, family members, and friends who could receive “covered gifts” or “covered bequests.” This classification may result in the individual being deemed a “covered expatriate” under the expatriation tax law, as outlined in IRC 877A(g)(3). See, IRC 877A(g)(3). Potentially severe adverse tax consequences can follow from this edge of the sword. The Court in Aroeste vs. United States did not address these adverse tax consequences as they were not at issue.
See, Patrick W. Martin, 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
Important resources for United States international tax rules for those considering renouncing or relinquishing United States citizenship or abandoning lawful permanent residency
This Blog is intended to provide general information about tax expatriation legal concepts under U.S. law to help readers better understand often very complex issues within the U.S. international tax field for citizens and lawful permanent residents. General legal information is not the same as legal advice, that is, the concrete application of law to a specific case with unique and particular facts.
Legal advice also should include strategic planning and advice to a particular case. A legal adviser should be able to assist an individual in taking important decisions and steps, related to the specific goals of the individual, while understanding the legal and tax consequences of each step. There are a range of consequences that the “U.S. tax expatriation” laws impose upon different types of transactions, transfers, reorganization of assets, etc. None of these items are discussed in this Blog.
Although the author has taken great care to make sure that the information contained herein is accurate and useful, it is necessary that you consult an experienced attorney to address any particular situation. Most importantly, if you are contemplating renouncing (or proving relinquishment) of U.S. citizenship or formally abandoning your LPR status, you must get legal advice. This is a very important decision with a range of complex legal consequences.
Invalid IRS Notices – the APA – and the 6th Circuit (+Southern District of California, Federal Court in Aroeste v. United States)
The 6th circuit found in 2022 that IRS Notice 2007-83 was not valid. In Mann Construction, Inc. v. United States, 27 F.4th 1138 (6th Cir. 2022), the court concluded that the Notice failed to comply with the APA’s notice-and-comment procedure. Specifically, the Court stated:
Several taxpayers complain about the Internal Revenue Service’s enforcement of an administrative regulation that requires them to report transactions involving cash-value life insurance policies connected to employee-benefit plans. The taxpayers claim that the IRS failed to meet a reporting requirement of its own by skipping the notice-and-comment process before promulgating this legislative rule. If individuals “must turn square corners when they deal with the government,” the taxpayers insist, “it cannot be too much to expect the government to turn square corners when it deals with them.” Niz-Chavez v. Garland , ––– U.S. ––––, 141 S. Ct. 1474, 1486, 209 L.Ed.2d 433 (2021). We agree with the taxpayers and reverse the district court’s contrary decision.
Mann Constr., Inc. v. United States, 27 F.4th 1138 (6th Cir. 2022)
The IRS Notice referenced in the Aroeste v. United States case was about a different federal tax issue, i.e., “tax expatriation” matters – IRS Notice 2009-85.
On the same day of the Aroeste decision, the 6th Circuit issued a follow-on decision –Mann Construction, Inc. v. United States, No. 23-1138 (6th Cir. 2023) The appellate court’s Chief Judge. Sutton, noted:
When the Internal Revenue Service levied tax penalties against Mann Construction and its owners under one of its regulations, technically a Notice, the taxpayers replied that the IRS violated the Administrative Procedure Act. In a prior opinion, we held that the Notice violated the APA. The IRS voluntarily refunded the penalties to the plaintiffs and agreed not to apply the Notice to the taxpayers in the future. Even so, the district court on remand proceeded to invalidate the regulation nationwide. Because the dispute is moot, we vacate the district court’s decision.
Importantly, in the Mann decision – The IRS refunded the past penalties with interest, abated the unpaid penalties, and agreed not to apply the Notice to these taxpayers or anyone else within the Sixth Circuit. See I.R.S. Announcement 2022-28, 2022-52 I.R.B. 659 (Dec. 27, 2022).
How the IRS will respond to the Notice issue in Aroeste remains to be written:
Federal Court Determines IRS “Guidance for Expatriates Under Section 877A” – IRS Notice 2009-85: “Is Not Binding Authority”
The Federal District Court made numerous key legal findings in its Order on November 20, 2023; in Aroeste v. United States, Case No. 22-cv-00682-AJB-KSC. One of the more significant findings was that IRS Notice 2009-85 is not binding authority. This blog is dedicated to tax expatriation related matters under U.S. law.
- IRS Notice 2009-85 is Not Binding Authority per the Court
See, Federal District Court Rules in Favor of Mexican Citizen – Aroeste vs. United States (LPR) – Tax Treaty Applies: Government’s Motion for Summary Judgment is Denied. Please read through the case in detail.
The author along with his Chamberlain Hrdlicka, Attorneys at Law colleagues have been representing Mr. Aroeste throughout this District Court case. The author of tax-
expatriation.com has represented him for several years throughout the IRS audits and the on-going U.S. Tax Court cases along with his wife.
While many may consider this case to be a Title 31/FBAR case (which it is), it has greater ramifications under the tax expatriation laws in the author’s view. The finding by this Court regarding IRS Notice 2009-85 is significant with far reaching implications. The IRS Notice 2009-85 is broad in its scope and is more than 60 pages in length. It notes that, “Section 877A(i) provides that the Secretary shall prescribe such regulations as may be necessary or appropriate to carry out the purposes of section 877A.” (p.4)
- No Treasury Regulations Ever Issued – After 15 Years of IRS Notice 2009-85
The Treasury Department never issued regulations under 877A, which is now 15 years old. The notice provides the historical background as follows:
Notice 2009-85 PURPOSE Section 301 of the Heroes Earnings Assistance and Relief Tax Act of 2008 (the “Act”) added new sections 877A and 2801 to the Internal Revenue Code (“Code”), amended sections 6039G and 7701(a), made conforming amendments to sections 877(e) and 7701(b), and repealed section 7701(n) with respect to individuals who on or after June 17, 2008, relinquish U.S. citizenship or cease to be lawful permanent residents of the United States. This notice provides guidance for individuals who are subject to section 877A.
IRS Notice 2009-85., p. 1.
The Court in Aroeste concluded that Mr. Aroeste ceased to be a lawful permanent resident.
Specifically, the Court finds Aroeste . . . ceased to be treated as a lawful permanent resident of the United States because he commenced to be treated as a resident of Mexico under the Treaty, did not waive the benefits of such Treaty, and notified the Secretary of the commencement of such treatment.
Aroeste v. United States, p. 17.
- Case Law from – Aroeste v. United States_- Clarifies Key Concepts in the Law
Many practitioners have questioned the accuracy and validity of many of the conclusions asserted in the 2009 notice; such as the timing of when someone becomes a “covered expatriate”. How and why they become a “covered expatriate” by the concepts introduced in the 2009 notice. The multiple examples presented, reflecting various tax outcomes according to the IRS, were never commented on by the public.
Another question many have raised is the effectiveness of IRS Form 8854? Throughout the notice, the IRS uses the word “must” some 88 times regarding the individual who ceased to be a U.S. citizen or a “lawful permanent resident” (or in some instances references to third parties). Does the IRS imply that if any of these “must”/conditions imposed under the notice are not satisfied, the individual is necessarily a “covered expatriate” with the adverse tax consequences that might follow?
Are their other adverse tax consequences that might follow? For instance, can the IRS repeatedly assert international information penalties regarding the individual’s
- companies in her own country,
- beneficiary rights of a trust or an estate in her own country, or
- other investment assets or financial accounts in her country of residence that might be deemed a “specified foreign financial asset” if the individual is a United States person”?
Can the IRS in perpetuity assert such information penalties regarding other code sections such as 6038D, 6038, 6039F, 6048, etc.? See, Three Precedent Setting Cases in International Information Reporting (“IIR”) in 6 Weeks: * Aroeste, * Bittner, and * Farhy: all Interconnected via Title 26, Title 31 and U.S. Income Tax Treaties
For instance, the 2009 notice provides that a “covered expatriate” must file a “dual status return” and file a Form 1040NR with a 1040 attached as a schedule for the “year of expatriation”. See, IRS Notice 2009-85, p. 49.
The IRS goes on to say in that notice that individuals “must file Form 8854 in order to certify, under penalties of perjury, that they have been in compliance with all federal tax laws during the five years preceding the year of expatriation.” Id., p. 50. The government asserts that if this condition is not satisfied, the individual will necessarily be treated as ” . . . covered expatriates within the meaning of section 877A(g) whether or not they also meet the tax liability test or the net worth test.“
These would be pretty damning consequences to an individual, if they otherwise met the statutory test of certifying compliance with the tax laws for the preceding five years.
Importantly, the Court in Aroeste v. United States concluded as a matter of law that 2009-85 is not binding authority as it fails to comply with the Administrative Procedures Act (“APA”). It concluded Mr. Aroeste did not need to file Form 8854 with his amended returns. He had filed Form 8833 – treaty based reporting.
The court cited to ” . . . Green Valley Investors, LLC v. Comm’r of Internal Revenue, 159 T.C. No. 5, at *4 (Nov. 9, 2022)) (under the APA, agencies must follow a three-step procedure for “notice-and-comment” rulemaking, but this requirement does not apply to “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.”).) The Court agrees. In Mann Construction, Inc. v. United States, 27 F.4th 1138 (6th Cir. 2022), the court found that Notice 2007-83 failed to comply with the APA’s notice-and-comment procedure. Similarly here, because Notice 2009-85 has not been subject to a notice-and-comment procedure, it does not comply with the APA and thus is not binding. As such, Aroeste was not required to file Form 8854 with his amended returns.”
None of these comments represent legal advice. Complex laws applied to specific facts require a legal expert to opine on the consequences and recommended courses of action. It is worth noting that individuals who have a “green card” and who have not previously articulated the application of a U.S. income tax treaty, should consider taking proactive steps to protect their rights under the law. Also, United States citizens who formally renounced their citizenship, who may never have taken specific tax reporting positions should consider taking proactive steps to help avoid the risk the IRS might assert substantial penalties or conclude the individual became a “covered expatriate”.