Why a “long-term” LPR can NEVER avoid “Covered Expatriate” status under IRC Section 877A(g)(1)(B) if Asset or Tax Liability Test is Satisfied!

Posted on August 21, 2014

There have been multiple posts explaining the importance of the certification requirement of Section 877(a)(2)(C).  

See for instance, Certification Requirement of Section 877(a)(2)(C) – (5 Years of Tax Compliance) and Important Timing Considerations per the Statute, also see Can the Certification Requirement of Section 877(a)(2)(C) be Satisfied “After the Fact”?

This specific act of “certifying” is a requirement under the law, that requires all individuals (whether U.S. citizens or LPRs) to satisfy the elements of the certification, in order to avoid “covered expatriate” status.

Also, there is an important exception to “covered expatriate” status set forth in IRC Section 877A(g)(1)(B).  Only certain individuals may be able to satisfy this important requirement, which provides as follows:

(B) Exceptions

(i) the individual—

(I) became at birth a citizen of the United States and a citizen of another country and, as of the expatriation date, continues to be a citizen of, and is taxed as a resident of, such other country, and 

(II) has been a resident of the United States (as defined in section 7701 (b)(1)(A)(ii)) for not more than 10 taxable years during the 15-taxable year period ending with the taxable year during which the expatriation date occurs, or . . .

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Importantly, the elements of the statute apply only to persons who “became at birth a citizen of the United States”; and in the case of lawful permanent residents (LPRs), they be definition will not have become at birth a citizen of the United States.

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Accordingly, a “long term” LPR who meets either the US$2M asset test, or average income tax liability test (currently US$157,000 for the year 2014), will necessarily become a “covered expatriate” even if they can satisfy the Certification Requirement of Section 877(a)(2)(C).

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See, Certification Requirement of Section 877(a)(2)(C) – (5 Years of Tax Compliance) and Important Timing Considerations per the Statute

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For the type of consequences that follow from being a “covered expatriate”, see for instance,  Why “covered expat” (“covered expatriate”) status matters, even if you have no assets! The “Forever Taint”!

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Accordingly,  it is important for each “long-term” LPR to understand clearly the current and future U.S. tax consequences to (i) them – the “mark-to market” tax, and (2) tax on “covered gifts” and “covered bequests” to U.S. persons.  Importantly, understanding these consequences should be long before the LPR ceases to be a LPR for tax purposes; irrespective of the immigration law consequences.

Who is a “long-term” lawful permanent resident (“LPR”) and why does it matter?

Posted on August 19, 2014 Updated on August 20, 2014

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?