Lawful Permanent Residents
The answer to the above question will only matter, for purposes of “tax expatriation” if the LPR plans on living and moving outside the U.S. The law defines a “’long-term resident’ as any individual (other than a citizen of the United States) who is a lawful permanent resident of the United States in at least 8 taxable years during the period of 15 taxable years.” See, IRC Section 877 (e)(2.
Importantly, there are key concepts of who satisfies these requirements, which is not as simple as it seems on its face. See, for instance Section 7701(b)(6) with specific rules for 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.
The importance of LPR status for tax purposes in the expatriation context is crucial. Its the saying “black or white” or “night or day” when thinking about the U.S. “expatriation” tax consequences to LPRs. In short, a LPR who never becomes a “long-term resident” as that technical term is defined in IRC Section 877 (e)(2) can avoid the various taxes that arise from otherwise being a “covered expatriate”. The future heirs and beneficiaries who receive assets from this LPR (who never was a “long-term resident?) can also avoid a major tax; currently 40% of the value of the gift or bequest. See, Revisiting the consequences of becoming a “covered expatriate” for failing to comply with Section 877(a)(2)(C).
The reason it is so important, is that if a LPR never becomes a “long-term resident”, he or she can never cause themselves to “expatriate” as that term is defined in IRC Section 877A(g)(2).
If a LPR never can “expatriate” under the tax law, he or she can never become subject to a range of adverse (some would say draconian) tax consequences that apply. See the following post for a further explanation of the various adverse tax consequences: Why “covered expat” (“covered expatriate”) status matters, even if you have no assets! The “Forever Taint”!
If there is no way in these circumstances for the LPR to “expatriate” there can be no “mark to market” tax and no future tax on covered gifts or covered bequests. 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
Obviously, this is a very good result for a LPR to never become a “long-term resident”. Planning for it is another task; particularly given the personal living arrangements of each particular individual.
The determination of if or when one becomes a “long-term resident” is highly complex, due to different cross-provisions in the tax law. Specifically, Section 7701(b)(6) has a provision that can have unintended consequences for the unwary LPR. See, for instance, LPR status can be abandoned for tax purposes (since 2008 tax law changes) by merely leaving and moving outside the U.S. in some cases?