Section 6039G and the quarterly list of expatriates
A recent comment asked a question that is worth answering here as a full blog post. In the comment, the reader said:
You mention that “6039G is the infamous rule that triggers the quarterly publication of names of people who renounce U.S. citizenship”.
Aha! So the numbers that are oft-mentioned, such as 1,001 in 2014 Q1, are really only the ***covered expatriates**? Then surely, there must be an even greater number who expatriate by renouncing, but are not covered (such as the dual-citizen foreign-residing teenager entrepreneur), or who are relinquishing.
Is there any report or estimate of the number of people filing Form 8854 each year? Might the true number of people giving up US citizenship be hugely greater than is reported in the quarterly publication, perhaps more than 100,000 per year?
This is a really interesting question. What does Section 6039G really mean? Here is what the law says, at Section 6039G(a):
Notwithstanding any other provision of law, any individual to whom section 877(b) or 877A applies for any taxable year shall provide a statement for such taxable year which includes the information described in subsection (b).
So what does it mean to say you are an individual to whom Section 877A “applies”? Does it mean that Section 877A only applies to you if you must pay the exit tax imposed by Section 877A? If so, then Section 877A only applies to “covered expatriates” and if you are not a “covered expatriate” then we have an interesting possibility: Section 6039G doesn’t apply to you because it is triggered only by Section 877A being applicable to you. I don’t know the answer to that, but I suspect that the U.S. government would strongly argue to the contrary. The IRS eats paper and if they don’t get all the paper in the world they get hungry and grumpy.
But I digress.
The specific information-reporting requirement is found in the flush language at the end of Section 6039G(d):
Notwithstanding any other provision of law, not later than 30 days after the close of each calendar quarter, the Secretary shall publish in the Federal Register the name of each individual losing United States citizenship (within the meaning of section 877 (a) or 877A) with respect to whom the Secretary receives information under the preceding sentence during such quarter.
The “notwithstanding any other provision of law” language is the lazy Congressional staffer’s preferred method of writing laws. “I am too lazy to go and look to see if what I am doing is in conflict with other provisions of the law, so I am just throwing down this card and declaring it to be the ace of trump.” (Interesting question: what happens when two “notwithstanding any other provision of law” sentenced collide? Irresistible force meets immovable object. Let’s leave that for law school professors. How many angels can dance on the head of a pin?)
But I re-digress. Your question can be answered without medieval metaphysics.
The reporting requirement simply says “look at all of the people who lost citizenship as defined in Section 877 and 877A and publish a list of them.” It does not tie this reporting requirement to covered expatriate status.
Presumably this also includes long-term residents who abandon their green cards. I will pull out the lazy blogger card and throw it down, declaring that I am too lazy to follow the logic trail in Section 877A that says “long-term residents giving up green cards are the same as U.S. citizens giving up citizenship.” Yes, I self-declare as lazy.
I too have heard that the list published quarterly is woefully incomplete. Let us say this is true. What is the reason? I am inclined to follow Hanlon’s Razor: “Never attribute to malice that which is adequately explained by stupidity.” Bureaucracy is an exercise in subtractive intelligence. Two heads are not better than one for government work, because the brains involved are pulling in different directions.
The IRS should be following the requirements of Section 6039G(d). It should be publishing an accurate quarterly list of people who relinquish U.S. citizenship or who abandon their long-term resident status.
Invoking Hanlon’s Razor, we can explain possible *ahem* discontinuities in the quarterly expatriate list reporting by the failures of bureaucracy.
Or, invoking Robert Heinlein’s variant — “Never attribute to malice that which can be adequately explained by stupidity, but don’t rule out malice” — we might take a look at the Lois Lerner show. And how the IRS has had stunningly convenient and well-targeted IT system failures to protect itself against claims that the Service has morphed into a political tool rather than the even-handed collector of tax revenue for the Federal Government that it once was.
Valuation date for expatriate’s balance sheet
The Internal Revenue Code contains unnecessary complexity, which — if you are not careful — can trip you up. Here is one such item, triggered by an email from reader G. My “off the cuff” answer to him was wrong. Here is the right answer.
The moral of this story is: always look at the law before answering a question.
When someone renounces U.S. citizenship, the law requires them to (among other things) give the U.S. government a balance sheet showing assets and liabilities. You’re taking a snapshot of your financial situation. The question is at what moment in time you take that snapshot?
The exit tax rules have two different “moments in time” built into the law. Remembering which moment matters is the problem.
Section 6039G: Useless
The Instructions to Form 8854 tell you that the balance sheet information is required under Internal Revenue Code Section 6039G. Let’s start there.
Section 6039G is the infamous rule that triggers the quarterly publication of names of people who renounce U.S. citizenship. In addition to requiring the publication of this list, it also specifies information that must be provided by people terminating their U.S. citizenship.
One of those items required? A balance sheet. Specifically, the taxpayer is required to provide:
information detailing the income, assets, and liabilities of such individual[.]
See Section 6039G(b)(5).
Section 6039G does not specify the effective date for when you should take a snapshot of your income, assets, and liabilities. Let us now go in search of something specific, elsewhere in the Internal Revenue Code.
Balance Sheet: The Day You Renounce
For purposes of filling in the balance sheet on Form 8854, the values of your assets and liabilities must be computed as of the day you renounce your citizenship.
Section 877A(g)(1)(A) says you are a “covered expatriate” if you satisfy one of the tests in Section 877(a)(2).
Section 877(a)(2)(B) is one of the three tests found at Section 877(a)(2). It is the net worth test. After you parse through the clumsy cross-referencing from Section 877A to Section 877, it says that someone is a covered expatriate if:
the net worth of the individual as of such date is $2,000,000 or more[.]
In order to figure out what they mean by “such date”, we have to look at the paragraph immediately above Section 877(a)(2)(B). This is where the Internal Revenue Code defines the net income tax test for expatriation purposes, and the paragraph refers to a time period that ends before a specific date:
the date of loss of United States citizenship[.]
Since Section 877(a)(2) is written as one giant, clumsy, convoluted sentence broken up into bits and pieces, my 6th Grade grammar says that the reference to “such date” should logically refer to the immediately preceding definition of a date in the long, convoluted sentence.
Therefore I conclude that the the Internal Revenue Code asks you to determine your net worth as of the date that you lose your U.S. citizenship.
This is consistent with the Instructions to Form 8854. You are told to use values as of your expatriation date:
List in U.S. dollars the fair market value (column (a)) and the U.S. adjusted basis (column (b)) of your assets and liabilities as of . . . [y]our expatriation date if you expatriated on or after June 17, 2008.
Confusion: Mark to Market Date
The confusion comes in when you look at the “mark-to-market” rules. These are the rules that apply to covered expatriates. The mark-to-market rules pretend that you sold everything you own on the day before your expatriation date:
All property of a covered expatriate shall be treated as sold on the day before the expatriation date for its fair market value.
There are similar rules for deferred compensation, specified tax deferred accounts, and interests in trusts. For computing your exit tax, Section 877A pretends that certain events occur on the day before your expatriation date. This, after all, is the very last day on which you are a full-blown U.S. taxpayer, subject to all of the tax rules.
Not Much Difference
There’s not much difference, really. The only people who might conceivably care about the difference (“Do I use values on the expatriation date or the day before?”) are those who are really, really close to the $2,000,000 net worth threshold for becoming a covered expatriate, and who own highly volatile assets.
I personally wouldn’t cut things that close. If your status as a covered expatriate depends on the markets — you’re heavily invested in futures or commodities, for instance — then I think the prudent thing to do is to cash out, expatriate, then re-enter the market. Why allow outside forces to dictate whether you become a covered expatriate?
Renunciation Interviews Not So Intense
The State Department justifies the new $2,350 user fee for renunciation by saying “Hey, it’s a lotta work. It’s intense. You have to pay me more.” Here is a recent email I received from someone who just went through the process in London. This person was underwhelmed by the State Department’s “intense” interviews:
I had my renunciation interview on 14 August, at which time they took $450 off me. When I applied for this interview no mention was made of the planned increase in charges, which could have meant, should my interview have been delayed by 3 weeks, that the fee would have been five times as much. (Even though I am now retired, and have never earned a salary which attracted tax, I am confident that renunciation would be financially worth while within a few years, even at the higher cost, thanks to the expense of preparing US tax forms and the opportunity cost of foregoing tax efficient investments in the UK.)
Emphasis added. My correspondent understands something that the IRS and State Department have yet to grasp. The email continues:
Also, despite what the State Department says, I did not have “two intensive interviews”, unless two interviews at a window open to view of all waiting in the Passport Section at the London Embassy count. These were to make sure, first, that everything was correct on the (many) forms I had sent in, and, second, that I understood the seriousness of the step I was taking and finally to swear/affirm my renunciation. I thought it was all rather less intensive than it should have been, considering the seriousness with which I had approached it.
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.)
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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.
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 Tuesday there will be another expatriation-related question and answer. Send yours in.