Phil Hodgen’s Blog

International Tax Lunch Session – Investing into California with a Foreign Company: Entry Compliance Issues

What: Investing into California with a Foreign Company
When: Friday, September 12, 2014 at 12:00PM (Pacific Time)
Where: HodgenLaw, 80 S. Lake Avenue, Suite 680, Pasadena, CA 91101
Who: Haoshen Zhong

This month’s speaker will be attorney Haoshen Zhong. He will speak on investing into California with a foreign company, and will discuss several issues that arise. What are typical scenarios? What’s the California/Delaware LLC? What are the returns to file with the IRS and FTB? How do you register with the SoS? These questions and more will be answered in this month’s tax lunch.

To register for in-person participation, click here.

*In-person participation is limited to 10 participants.

To register for conference-call participation, click here.

*Call-in participation is listen-in only, but you can email your questions to us here.

Toronto Consulate Wait Times Have Ballooned

An email from Tim S. alerted me to an interesting article by Patrick Cain about getting the difficulty of getting an appointment for expatriation in Canada

Patrick reports that wait times at the Toronto consulate have ballooned.  Here we are in August, 2014.  The earliest date that can be booked in Toronto is January 22, 2015.

Reason #1: FATCA

While the article does not explicitly say so, it appears that expatriation has become more popular since the FATCA agreement between Canada and the United States was implemented on July 1.

The FATCA rules are designed to use foreign banks to rat out U.S. taxpayers to the IRS. Foreign banks face severe penalties if they do not play along with the U.S. government and set in place reporting mechanisms designed to identify their U.S. customers.

This means that sooner or later every U.S. person will get a letter from his or her bank asking the simple question: “are you a U.S. taxpayer?” If the answer is “Yes,” there will be one of two responses from the bank:

  • “Thank you for your answer, and we’re closing your account because we don’t want to spend $10 million upgrading our IT systems just to make a foreign government happy. You’re not a profitable customer; go away.”
  • “Thank you for your answer, and while we’re happy to keep you as a customer, we’re telling the U.S. government about you. (Oh by the way, there may be some increased bank fees in your future.)”

I predict that for Americans abroad their banking choices will become more and more limited. Eventually only the juggernaut multi-national banks will be willing to work with them–the Citibanks, the HSBCs, etc. Smaller banks will simply close their doors to Americans because the compliance costs are too high.

This is something I have seen here in the United States. I recall calling the President of a bank that specializes in banking for mid-sized privately-held businesses only. I have known him for 25 years. I had a foreign client establishing business operations in the United States. He rejected the business because it would require hiring more and new compliance officers. Interesting tidbit: he figured one compliance officer adds $250,000 per year of cost. Thank you Uncle Sam for making everyday life difficult.

Reason #2: Tax Returns Are Expensive

But FATCA is just pushing everyone to wake up to the primary disincentive for holding a U.S. passport: citizenship-based tax rules. If you are a U.S. citizen, you are required to file U.S. income tax returns every year and comply with a (potty-mouth word)-load of bizarre paperwork. This adds enormous complexity and cost to a regular person’s life. Preparing U.S. tax returns is not cheap.  From TFA: 

Until recently, appointments to renounce U.S. citizenship in Toronto could be made within three to six weeks, said Toronto-based cross-border tax accountant Kevyn Nightingale, who specializes in tax advice for people giving up U.S. citizenship.

His clients are driven to divorce Uncle Sam less because of actual U.S. taxes and more because of the costly demands of the tax bureaucracy, he says:

“Almost none of them have to pay any tax – it’s just the hassle and expense of dealing with the paperwork.”

Nightingale says he charges $1,000-$1,500 for “very simple” U.S. returns.

[Note: hyperlink to Kevyn's profile at MNP added by me; it was not in the original article. MNP is a very good cross-border accounting firm.]

What the article doesn’t say: for the Canadians that Kevyn is helping, there is probably a “zero payment due” tax bill from Uncle Sam on that U.S. income tax return.

Think of it. You pay $1,000 – $1,500 for accounting fees and Uncle Sam collects no revenue. Wouldn’t that annoy you just a tiny bit?

Reason #3: The Price of Salvation

The annual upkeep cost of filing U.S. tax paperwork is one thing.

What about those U.S. taxpayers living abroad and faithfully paying tax in their home country who suddenly find out that in some way or another they have run afoul of Uncle Sam’s weird paperwork rules? They face a Pain Factory: massive penalty risks or high professional fees to fix the problem. Or something both.

Yesterday I talked to a guy who had rental income from property outside the United States. He faithfully reported all of the income on his U.S. tax returns, but missed a couple of key pieces of paper that should have been filed. His penalty risks, at my guess, exceed $100,000.

Yes, there are IRS procedures to fix these situations. And yes, he probably–if he files all of the paperwork–will have zero penalties. But the cost of doing so (in professional fees) is likely to be in the $25,000 – $30,000 range.

This is insane.

The article mentions this point as well. Another quote from Kevyn Nightingale in the article:

“If somebody comes to us and says, ‘I’m a U.S. citizen, I’ve never filed tax returns, I’ve got a pretty ordinary life, but I’ve got an RRSP, an RESP, a TFSA and some mutual funds, and can you prepare all my returns and get me ready for expatriation?’, by the time we do all that, it’s not hard to spend $15,000 or $20,000 for a fairly ordinary person.”

This is a fair estimate. The particularly galling part of the expense is driven by mutual funds. It bugs everyone in our office more than anything else.

Buying mutual funds is a normal and recommended way to invest. But foreign mutual funds must be reported on Form 8621 and are taxed as Passive Foreign Investment Companies. The work needed to satisfy these requirements is staggering, driving professional fees through the roof. It’s simply unacceptable for ordinary people living ordinary lives.

The beatings will continue until morale improves.

When we tell people about the tax risks they face because of inadvertent paperwork failures in the past–and the cost to reduce or eliminate the risk–the response is often “How can I get away quickly, quietly, and permanently from this burden?”

The Backlog Solution

Many of you will want to renounce your U.S. citizenship before year-end. You can go anywhere in the world to do it. Start calling Consulates and Embassies to see what the wait time is.

Our experience is that the Caribbean and Central American countries are often good. Southeast Asia seems to be good as well.

Very Interesting: Back to One Appointment?

One of the interesting items in the article–by far the most interesting for me, in fact–is the transition back to a one-appointment expatriation process in Toronto.

When I started doing this work, renunciation required one appointment. Show up, do the paperwork, swear a mighty oath, and you were done.

Then the State Department started requiring two appointments. You had to show up, get lectured about the perils of renunciation, then go away and think for a while. Then you’d go back for a second appointment where they would take care of business. And maybe lecture you a bit more.

Forgive me for the analogy, but it’s almost like the State Department looked at the anti-abortion people who wanted to have a system where if you want an abortion you have to go in for a doctor’s appointment then go away to consider your choice before you can have the procedure. It is psychological warfare to tip the results in your favor.

But Toronto? The article says they are back to a one-appointment process, apparently in self-defense because they have so many expatriation appointments to process.

I hope this rolls out through the rest of the system. The two appointment requirement is silly and counterproductive for the government and the would-be expatriate.

Green card holders, treaty elections, and exit tax

(This is the weekly Expatriation Only email that went out on July 22, 2014 to the subscribers. Every week I answer a technical question–usually tax–in great depth about expatriation. Subscribe to the list here, or if you want to ask a question send in your questions here. I answer these either in the email newsletter or by blog posts.)


Hi from Phil Hodgen.

You signed up for my "Expatriation Only" email list–every Tuesday you will get an email every week with a real question from a list subscriber and a real answer from me. Maybe there will be other emails, but they will only be from me, and only about expatriation-related topics.

If you want to stop getting these emails, just click on the link at the bottom of the email and you will be instantly unsubscribed.

If you want to ask a question, hit "reply" and send it to me. :-)

This Week's Question

This week's question is going to be a mini case study. This one's long, but I hope it is useful–not only for green card holders who contemplate expatriation, but for green card holders living abroad who are considering electing to be treated as nonresidents of the United States for income tax purposes.

The question comes from an accountant in another country–someone who handles cross-border clients. Thanks, S.C., for the email. Rather than quote the email (it is long!) I will summarize the key points of S.C.'s email conversation with me.

She has a citizen of that country who happens to hold a U.S. green card. The green card was issued in February, 2009. This, of course, makes the client a U.S. taxpayer for income tax purposes, taxable on his worldwide income.

The individual lived in the United States on the green card for a year or two, but has been

living in his home country more-or-less full time for the last couple of years. I'm not sure, but it sounds like the green card holder probably does not want to live permanently in the United States in the future. He has family in the United States (children and grandchildren) so visits will happen, but in terms of "where do I live?" the answer is not the United States anymore.

Because of differences in the tax laws, a particular item of income that is tax-free in that country will be taxable to her client on his U.S. income tax return.

She is thinking of having her client make an election to be a nonresident of the United States for income tax purposes for 2013. What are the consequences of making that election?

Treaty elections to be an income tax nonresident

The United States imposes income tax on U.S. citizens and green card holders regardless of where they actually live. In other words, the precise location of your corporeal being on Planet Earth is irrelevant–you must pay U.S. income tax on all of your income, no matter where it came from.

A green card holder can make a special election and get out of this tax situation–if and only if he or she is living in a country that has an income tax treaty with the United States.

All income tax treaties have a set of rules called "tie-breaker" rules. If a person can be considered a resident of the United States (under its normal tax laws) and also a resident of another country (under its normal tax laws), then in order to prevent agony and double taxation to that person, you look at the tie-breaker rules. Apply them in sequence and sooner or later you will come to a rule that definitively says you are a resident (for tax purposes) of one country and a nonresident of the other.

These provisions are typically in Article 4 of income tax treaties. A few old treaties have the tie-breaker provisions in Article 3.

You are not required to use the treaty tie-breaker rules if you are a U.S. taxpayer. The treaty is like a trump card that you can play to defeat the Internal Revenue Code. The government cannot play the trump card against you–the IRS cannot force you to make an election to apply the treaty to your situation. Only you can play the trump card.

This means that the taxpayer gets to choose the better of the two alternatives: if the tax results are better by applying the plain old Internal Revenue Code, do that; if the tax results are better by making an election to apply the income tax treaty rules, do that.

How the treaty election works

If you make the election under an income tax treaty to be a resident of the other country (where you live) and a nonresident of the United States (where you have a green card), the results are as follows:

  • You compute your income tax liability to the United States as if you are a nonresident of the United States; but
  • For all other tax filing purposes, you are a resident.

Interpreted, this simply means you can reduce or eliminate the amount of income tax you pay to the IRS, but you still have to do all of the ridiculous paperwork. Form 8938. Form 5471. Etc. All of the intrusive and privacy-destroying paperwork you can imagine will still apply to you. All of the insane penalties that the IRS throws at you? They still apply.

How to make a treaty election

The interesting thing (for tax nerds, at least) is how the treaty election is made. You simply file a tax return that is consistent with calculating your tax according to how the income tax treaty says you should calculate it. That is how you take a tax reporting position based on the treaty.

There is a form to file, of course. Form 8833. Interestingly, if you do not file Form 8833, your treaty election is not defeated. You still are allowed to compute your income tax according to the treaty rules. The worst that can happen to you is that you pay a $1,000 penalty. Cheap! :-)

This is not to say that I recommend blowing off Form 8833. By all means file it. It prevents problems.

Questions to ask yourself

Now we get to the considerations that S.C. must analyze before filing a 2013 income tax return for her clients with a claim of nonresident status under the income tax treaty:

  • Will the election to be a U.S. nonresident under the income tax treaty actually save tax?
  • Will the client happily and eagerly do all of the rest of the tax paperwork demanded from him by the IRS for the 2013 tax year?
  • Will making the election to be a nonresident for income tax purposes create any immigration risks that could trigger revocation of the green card by the U.S. government? And does the green card holder care?
  • Will making the election to be a nonresident for income tax purposes create any exit tax problems for the green card holder?
  • Are there State income tax questions to consider?

I'm going to talk about the exit tax implications. The other issues must be addressed and considered carefully before filing the 2013 tax returns, but . . . well, life's tooshort for me to exhaustively analyze everything in public. Especially for free. :-)

Exit tax implications of the treaty election

Let's talk about the exit tax implications of the treaty election by this green card holder to be treated as a nonresident of the United States for income tax purposes.

Green card holders are subjected to the exit tax rules when they abandon their green card status (by filing Form I-407) with the U.S. government, or when the U.S. government revokes their visa status. Green card holders are also subjected to the exit tax rules when they make an election under an income tax treaty to be treated as a nonresident of the United States.

That second point is the one we care about–when will an election under an income tax treaty cause a green card holder to be subjected to the exit tax rules?

The answer is simple: when the green card holder has been the proud owner of a green card for a long time. This type of person is called a "long-term resident" in the Internal Revenue Code.

How long is a "long time"? It simply means that the person has held a green card "in" at least 8 of the last 15 years (including the current year).

If the person has held a green card for fewer than that magic number, then the person is not a long-term resident and the exit tax rules do not apply at all.

For the tax nerds among you, "long-term resident" is defined in Internal Revenue Code Section 877(e)(2).

For how a long-term resident is subjected to the current exit tax rules, go look at Internal Revenue Code Section 877A(g)(2)(B). This defines who is an "expatriate" or not as a long-term resident who ceases to be a lawful permanent resident of the United States within the meaning of Internal Revenue Code Section 7701(b)(6). And ceasing to be a lawful permanent resident of the United States within the meaning of Internal Revenue Code Section 7701(b)(6) is the same as making an election under an income tax treaty to be a nonresident for U.S. income tax purposes.

If you are not a "long-term resident" you cannot be an "expatriate". If you are not an "expatriate" then Internal Revenue Code Section 877A–the exit tax rules–cannot apply to you. Section 877A only applies to "expatriates" and specifically to a particular variety of expatriates–covered expatriates.

Applying facts to the law

Let's go back to S.C.'s client. He received his green card in 2009. We are now in 2014. This means he has held a green card in the calendar years 2009, 2010, 2011, 2012, 2013, and 2014.

That's six years. Six is less than eight. I had to use an extra set of fingers in order to do the math. :-)

Since S.C.'s client has not held the green card in at least 8 taxable years out of the last 15, he does not have an exit tax risk if he makes the treaty election to be a nonresident of the United States and a resident of his home country. S.C. can file Form 8833 and cause him to make the treaty election for tax year 2013 without triggering the big Section 877A tax.

The other issues

Exit tax is not a problem. The other issues are worth a quick mention, however. S.C. will need to go deep in analyzing these before choosing to file a Form 8833 treaty election for her client.

  • Will this save actual income tax? In this situation it is pretty clear that the client will save income tax. A particular type of capital gain was recognized on sale of an asset in 2013. That capital gain is tax-free in the home country but taxable in the United States. By electing nonresident status in the United States, the taxpayer will eliminate the possibility of income tax on that capital gain.
  • The other tax filings. S.C. will need to have a heart-to-heart with the taxpayer to advise him that all of his other tax paperwork is still required. In other words, he is still going to file a big brick of a tax return with the IRS. It will still be expensive to prepare that tax return. The only good news is that he will pay less tax overall in 2013.
  • Immigration problems. Filing a nonresident income tax return as a green card holder is a definite bad thing for visa purposes. Every immigration lawyer I have ever spoken to has said "this is a bad mark and is not good to do if you want to keep the green card". S.C.'s client should be OK if he drops the green card visa status. For him, it will be no problem to enter and exit the United States as a tourist since he comes from a country that has good diplomatic relationships with the USA. It's one of the Five Eyes countries. Hello, NSA!
  • State income tax. I assume (based on the amount of time that the taxpayer has been outside the United States) that no State assumes he is a resident for State income tax purposes.

Meta

My suggestion for people in a situation like this is to drop the green card. Get rid of that visa status, because as soon as you hit that magic "in at least 8 taxable years during the period of 15 taxable years ending with [this year]" you will be subjected to the exit tax.

As a general principle it is a good idea to dump the green card unless you really, truly intend to remain a physical resident of the United States forever and ever, amen. If you harbor an intention to possibly return to your home country to live (e.g., upon retirement), staying too long in the United States might become extremely costly. The exit tax rules create a perverse economic incentive that drives successful immigrants away.

For this gentleman, it sounds like he will remain a resident of his home country and make visits to the United States to see the grandchildren. He just needs a tourist visa for that.

Dump the green card. File Form I-407 at your favorite Consulate or Embassy and be done with the IRS. This will make 2014 the last year that you have the IRS burrowed deep inside you.

Not Legal Advice

Now of course is a prudent moment to remind you that this is not legal advice. I'm probably wrong, and anyway this information is outdated ever since it was written with a quill pen while I was sailing on a clipper ship from Southhampton to Sydney, by the light of a coal oil lamp. And who knows–Congress will undoubtedly pull some election-year stunt in a shameless pandering for votes and you–an American abroad or worse yet an American giving up citizenship or resident–simply don't matter at all to a random politician in the United States.

Next Week

Next Tuesday there will be another expatriation-related question and answer. Send yours in. :-)

Phil.

International Tax Lunch: Expatriation and Covered Expatriate Status: What It Is and How to Avoid It

What: International Tax Lunch: Expatriation and Covered Expatriate Status:  What It Is and How to Avoid It

When: Friday, August 8, 2014 at Noon (Pacific Time)


Who: Debra Rudd, CPA

This month’s International Tax Lunch will be a detailed guide on how to determine whether your client who is expatriating is a covered expatriate and how to pass the certification test. Debra has prepared dozens of tax returns for expatriates.  She will talk about the different ways an individual can become a covered expatriate.  Special attention will be paid to the certification test, which is the least-understood and most problematic of the three ways to become a covered expatriate. 

 To register for conference-call participation, click here.

Expatriation between age 18 and 18-1/2

We get questions. Some of them are answered on the weekly Expatriation Only email list (subscribe!). Here is one that I’ll just answer here as a blog post. It is a followup to an earlier question from reader N.


This is for parents of wealthy children–how do you ensure that your children can give up their U.S. passports without paying a massive exit tax? Here is one method.

Background

If you are a “covered expatriate” when you renounce your U.S. citizenship, then the possibility of a massive tax bill exists. You are treated as if you sold all of your assets. Special tax rules apply to beneficial interests in trusts and other things. Other Bad Stuff Happens.

For the purpose of this blog post, just assume that “massive tax liability” is the result.

You want to avoid covered expatriate status if you can.

Minor children with wealth

Let’s consider the expatriation choices for minor children with wealth. It is difficult for a minor to renounce U.S. citizenship. Our usual recommendation is to not bother. Wait until the child turns age 18.

When a minor child has wealth it is almost always because he or she is a beneficiary of a trust. Let’s assume that the value of a child’s beneficial interest in a trust exceeds the $2,000,000 threshold, making the child a potential covered expatriate when he/she renounces U.S. citizenship.

Avoid covered expatriate status

If the child renounces citizenship between age 18 and 18 1/2, the amount of wealth held by the child (directly or in a trust) is irrelevant–he or she will not be a covered expatriate. [Warning: some conditions apply.]

The rules are in Internal Revenue Code Section 877A(g)(1)(B)(ii), which says that an individual is not a covered expatriate if both of these conditions are true:

(I) the individual’s relinquishment of United States citizenship occurs before such individual attains age 18 1/2, and

(II) the individual has been a resident of the United States (as so defined) for not more than 10 taxable years before the date of relinquishment.

The first requirement is easy to understand–just make sure the renunciation date is before age 18 1/2. If you are successful in having a renunciation before age 18 (I applaud your tenacity) you’ve met the test. If you wait until age 18 (now the State Department cannot reject your application because you are a minor), you are OK too.

The second requirement is a bit non-obvious. What you do is look at the “substantial presence test”, which is the day-counting rule that applies to determine whether a nonresident is a resident of the United States. Find this stuff at Internal Revenue Code Section 7701(b)(1)(A)(ii) and Section 7701(b)(3).

If you can show that the child was not in the United States for a sufficient number of days to qualify as a resident under the substantial presence test, then that is a taxable year that is NOT counted toward your 10 years before the renunciation date.

For a child who has lived outside the United States for most of his or her life, this is easy. It is likely that the child has spent only holiday-style quantities of days in the United States.

Conclusion

If the child has spent up to and including 10 years of his or her life in the United States as a resident under the “too many days” test, then it is possible at any time to exit the United States without covered expatriate status.

“Some conditions apply”

Yes, tax law always comes with conditions. The child who renounces citizenship with substantial wealth will not be a covered expatriate–as long as the renunciation occurs before age 18 1/2.

However, the child must still satisfy the certification test–on Form 8854 he or she must certify that the previous five years of U.S. tax obligations are neatly squared away. All forms filed, all tax bills paid. And the child must file correctly and on time for the year of renunciation. This means the final tax return and Form 8854.

In other words, don’t ^@!$!#@& up the paperwork. :-)