Make the net election once

Nonresidents who have U.S. rental real estate will usually make an election to have their rental income taxed as if they were residents of the United States.

They do this because it results in lower income tax.  It results in lower income tax for a simple reason:  if they don’t make the election their rental income is taxed at 30% of gross rental income received, and no deduction is allowed for business expenses.  By making the election, they are taxed instead on their rental income AFTER deduction of business expenses.

This election is called the “net election” because it is an election to be taxed on net income (income minus expenses) rather than gross income (income without deduction of expenses).

Making the net election

You, the taxpayer, can unilaterally make this election and you do not need consent from the Federal tax authorities to do so.  Treasury Regulations Section 1.871-10(d)(1)(i) says:

A nonresident alien individual or foreign corporation may, for the first taxable year for which the election under this section is to apply, make the initial election at any time before the expiration of the period prescribed by section 6511(a), or by section 6511(c) if the period for assessment is extended by agreement, for filing a claim for credit or refund of the tax imposed by Chapter 1 of the Code for such taxable year. This election may be made without the consent of the Commissioner. Having made the initial election, the taxpayer may, within the time prescribed for making the election for such taxable year, revoke the election without the consent of the Commissioner. If the revocation is timely and properly made, the taxpayer may make his initial election under this section for a later taxable year without the consent of the Commissioner. If the taxpayer revokes the initial election without the consent of the Commissioner he must file amended income tax returns, or claims for credit or refund, where applicable, for the taxable years to which the revocation applies.

The method for making the election is described in Treasury Regulations Section 1.871-10(d)(1)(ii), which says:

An election made under this section without the consent of the Commissioner shall be made for a taxable year by filing with the income tax return required under section 6012 and the regulations thereunder for such taxable year a statement to the effect that the election is being made. This statement shall include (a) a complete schedule of all real property, or any interest in real property, of which the taxpayer is titular or beneficial owner, which is located in the United States, (b) an indication of the extent to which the taxpayer has direct or beneficial ownership in each such item of real property, or interest in real property, (c) the location of the real property or interest therein, (d) a description of any substantial improvements on any such property, and (e) an identification of any taxable year or years in respect of which a revocation or new election under this section has previously occurred. This statement may not be filed with any return under section 6851 and the regulations thereunder.

In practice this means that you attach the required statement to your tax return.  That is the first year that you get the desired tax treatment on your rental income.

You’re only required to do it once

You only need to make the election once.  From then on it is effective until you revoke it.  The authority for this is found in Treasury Regulations 1.871-10(d)(2)(i):

If the nonresident alien individual or foreign corporation makes the initial election under this section for any taxable year and the period prescribed by subparagraph (1)(i) of this paragraph for making the election for such taxable year has expired, the election shall remain in effect for all subsequent taxable years, including taxable years for which the taxpayer realizes no income from real property, or from any interest therein, or for which he is not required under section 6012 and the regulations thereunder to file an income tax return. However, the election may be revoked in accordance with subdivision (iii) of this subparagraph for any subsequent taxable year with the consent of the Commissioner. If the election for any such taxable year is revoked with the consent of the Commissioner, the taxpayer may not make a new election before his fifth taxable year which begins after the first taxable year for which the revocation is effective unless consent is given to such new election by the Commissioner in accordance with subdivision (iii) of this subparagraph.

Emphasis added by me.

We do it annually

We just completed an estate tax return for a nonresident individual who had several rental properties in the United States.  He did not have a proper holding structure and as a result his heirs paid about $750,000 of estate tax on about $4,000,000 of real estate.  And the probate and administration costs were gigantic.  The moral of THAT story?  Don’t assume that because you’re young and healthy you can get away with sloppy tax planning.

But I digress.

One of the collateral problems we faced was attempting to determine whether the deceased person had made the net election in a proper fashion.  (In order to do an estate tax return, you have to make sure that all of the income taxes are paid up, which means you need to figure out if the tax returns were done correctly).  For a couple of the properties, he had held them so long that we could not find the tax returns for the years in which he acquired the properties.  So we did not know whether the net election had actually been made.  (We were told that it had been made, and everything looked consistent with that treatment, but we couldn’t be sure).

The simple solution for this is to attach a statement to every U.S. income tax return that is filed.  Every year.  Attach the net election statement again but rewrite it in the past tense to say “The taxpayer made the net election for the following properties on his/her/its <year> income tax return . . . . ” and continue with the required information.

This can be set to automatically print as an attached statement for every year in the future in your software (we use Lacerte) and you just might save some work for someone in the future.

East West Bank comments on IRS requirement for nonresident interest reporting

The IRS wants all U.S. banks to report the amount of interest earned on bank deposits owned by nonresident aliens.

This last came up 10 years ago, and was resoundingly shot down for obvious reasons. Leadership at the IRS has revived the idea. Cue the obligatory George Santayana reference.

Today I saw in Tax Notes Today a letter from Douglas Krause, General Counsel for East West Bank. They happen to be headquartered right here in my hometown of Pasadena, California.

Mr. Krause succinctly identifies what’s wrong with the idea. I’m a total fanboi.

CC:PA:LPD:PR (REG-146097-09), Room 5203,
Internal Revenue Service
PO Box 7604
Ben Franklin Station,
Washington, DC 20044

February 22, 2011

RE: IRS REG-146097-09

Dear Sir/Madam:

California based East West Bank is the largest bank in the nation targeted at serving the Asian American communities throughout the United States of America. With over $ 20 billion in assets, and servicing more than half a million customers in five states including California, Washington, Texas, Georgia, Massachusetts and New York, our customer base, though Asian, is diverse, in education, profession, age and even nationality. With an overseas network that spans Greater China, our customers include Non-Resident Aliens (NRAs) who bank with us to provide them with a variety of financial services. We are writing to express our strong opposition to the subject proposed regulation.

Our bank, having grown by 64% in the last year, is healthy not by chance — but by watching our bottom line, coupled with a strategic expansion of our branch network as we continue to provide the most optimal service to our clients and customers. The proposed legislation would increase time and resources needed to gather, compile and report interest paid to every client that is a NRA. Current reporting of interest earned includes a single page document, as necessary for tax reporting purposes that is electronically compiled and sent to the Internal Revenue Service. Having to identify and separate the NRA account holders and prepare a 17 page document would involve multiple service hours to collect, validate and input data before the filing is completed for NRA customers. This not only puts a significant burden on our accounting and back office operations, but would have the potential to seriously hurt our bottom line by increasing cost of operations.

As we have expanded our branch network nationally and across the Pacific in Greater China, our growth has included the banking relationships with overseas clients. The profile of these customers are varied as they are diverse. It is not yet known what the impact of providing NRA interest income information to the customer’s homeland will have on the status of the accounts currently maintained with us. Furthermore, it is possible that the possible exposure of overseas accounts could potentially impact the political and social standing of the customer in their home country. As a nation dependent on bank deposits to fund development and homeownership leading to economic growth and prosperity, we should not raise the possibility of preventing inflow of deposits and investments from overseas, much less cause a mass exodus of funds already in deposit with our nation’s financial institutions. We ask that the implications and repercussions of providing such reports be considered.

Lastly, we wonder what the act of providing such information will bring to the table for the United States. In the spirit of exchanging intelligence and information, and we dare not presume knowledge nor assume any expertise in International Affairs, but without prior consensus, is this a mutually worthwhile goal, particularly where resources and revenues are concerned.

At a time when the nation is considerably lacking the funds to fuel the recovery of the economy, we sincerely and respectfully oppose the proposed regulation and ask the IRS to withdraw the proposed legislation.

Sincerely,

Douglas P. Krause
General Counsel
East West Bank
Pasadena, CA

Milestones for the nonresident investor in U.S. real estate

If you are a nonresident of the United States and are considering real estate investments in the U.S., the first thought is “Where do I start?” It is a big job to buy real estate in your home country. Investing in a faraway land adds to the complexity.

Here is a quick set of milestones to help you think through the process. This comes from an email I just sent to someone who is thinking about starting the investment process, and I edited it a bit for clarity. I hope it helps.

Your project, I think, has the following milestones:

1. Investment objectives. Tentative decision on type/location/size of investments. (You’ve done this already).
2. Management requirements. Determination of amount of management required. (Can you outsource 100% or will there be a lot of work from you or from people you trust?) Example: a major retail shopping center has scads of maintenance people, janitors, leasing agents, etc. and it is an all-the-time job to keep the place rented and maintained. Yes, you can job out the janitorial work etc. to outside firms, but you need to monitor the jobbed-out work to make sure it’s done right, so that means you have a manager or two on staff on your own payroll.)
3. Analysis and selection on holding structure. Given the type of property you want to buy, and the practical needs for hands-on management, choose how to own and operate the real estate investments. Factors involved:
• Type/location/size of investments (from above). This helps you make the cost/benefit analysis necessary for the holding structure. Bigger investments mean more complexity expense will pay off with tax savings. Smaller investments mean “keep it simple.”
• Management structure you need to carry (from above). (Translation: do you need a dedicated property management company or not?)
• U.S. and [home country] income tax considerations on rental income
• U.S. and [home country] tax consequences on sale of the property
• U.S. and [home country] tax considerations for tax if you have the bad judgment to die
• Business considerations, such as lenders — will your structure be something that a bank will lend to?
4. Create holding structure taking into consideration the factors above and a rigorous eye on cost/benefit considerations
5. Buy property. This is the fun part, right?
6. People and operations. Find key people to help you with owning/operating the real estate and holding structure — property management, bookkeeping, legal, tax returns, etc.

Estate tax sunset in 2010 applies to nonresidents

I received an email inquiry from a CPA friend about this, so I thought I would share it generally.

Question

Does the 2010 repeal of the estate tax apply to nonresidents of the United States?

Answer

Yes.  The repeal applies to residents and nonresidents alike.

Background

The estate tax disappeared on December 31, 2009.  It is designed to re-appear on January 1, 2011.  Tag that:  #politicalgames

The Tax Geek’s explanation

Section 2210(a) of the Internal Revenue Code says:

“Except as provided in subsection (b), this chapter shall not apply to estates of decedents dying after December 31, 2009.”

“This chapter” means Internal Revenue Code, Subtitle B, Chapter 11, which contains Sections 2001 through 2210.  These are the estate tax rules.  Thus, the estate tax rules are universally not applied to decedents dying after December 31, 2009.

The estate tax as it applies to nonresidents is described in Sections 2101 through 2108 of the Internal Revenue Code.  These sections are within Chapter 11.  The same Chapter 11 that does not apply to people dying after December 31, 2009.

Therefore, nonresidents are not subjected to U.S. estate taxation if they die after December 31, 2009.

Reinstatement of estate tax in 2011

The estate tax comes back in 2011, for residents and nonresidents alike.  Here’s the magic language, which is from Section 901 (Sunset of Provisions of Act) of Pub. L. 107-16, as amended by Pub. L. 107-358:

(a) IN GENERAL.–All provisions of, and amendments made by, this Act shall not apply–

(1) to taxable, plan, or limitation years beginning after December 31, 2010, or

(2) in the case of title V, to estates of decedents dying, gifts made, or generation skipping transfers, after December 31, 2010.

(b) APPLICATION OF CERTAIN LAWS.–The Internal Revenue Code of 1986 and the Employee Retirement Income Security Act of 1974 shall be applied and administered to years, estates, gifts, and transfers described in subsection (a) as if the provisions and amendments described in subsection (a) had never been enacted.

(c) EXCEPTION.-Subsection (a) shall not apply to section 803 (relating to no federal income tax on restitution received by victims of the Nazi regime or their heirs or estates).

Reinstatement means 2001 rules apply

For your purposes, Section 901(a)(1) is what matters. The “Act” (which is what put the estate tax on ice for 2010) does not apply at all after December 31, 2010. That means you look at the law as if the “Act” never existed. And that, in turn, means that you look at estate tax law as it existed in 2001 to see what the tax rules will be.

Trust me. The estate tax rules apply to nonresidents in 2011.

Branch profits tax for nonresident investors in U.S. real estate

Comment:

This little FAQ is a simple (for certain values of $SIMPLE) explanation of the branch profits tax for nonresident investors in U.S. real estate.

As a general principle it is a Very Bad Idea for nonresidents to own income-generating U.S. real estate through foreign corporations. If you live in a country that has an income tax treaty with the United States, there may be a solution to the branch profits tax via the treaty.

What is the branch profits tax?

The branch profits tax is an extra income tax imposed by the United States on foreign corporations which earn profit from their U.S. investments or U.S. business operations.

How much will the branch profits tax cost?

The branch profits tax is imposed on a non-U.S. corporation’s after-tax net profit.  Simply put, the branch profits tax works like this:

• Calculate the non-U.S. corporation’s profits derived from U.S. investments or business operations.
• Pay regular corporation income tax on that profit.
• Whatever is left over is your after-tax net income.  Pay 30% of that after-tax net income as the branch profits tax.

Example of calculating branch profits tax

Let’s assume that a non-U.S. corporation owns U.S. real estate that is rented.  At the end of the year, after paying all business expenses, the corporation has a profit of $100.

First, the corporation will pay income tax. The tax rate is on a sliding scale (higher income means higher tax rate).  But let’s use 34%, the rate that applies for income of about $350,000 and up.  After paying the regular income tax, the corporation has $66 remaining.

Then the corporation pays the branch profits tax, which is 30% of the $66 remaining after payment of the regular income tax.  The branch profits tax is $19.80.

The total tax paid is $34.00 + $19.80 = $53.80, or 53.8% of net profit.

Only foreign corporations pay the branch profits tax

The branch profits tax is only imposed on foreign corporations.  This means two things:

• The entity must be viewed as a corporation from the perspective of the U.S. tax authorities; and
• The entity must be formed under the laws of a country other than the United States.

People, then, do not pay the branch profits tax, even if they are nonresidents of the United States.  Nor do partnerships or trusts.

What is a foreign corporation?

Be careful.  Sometimes you may have an entity that is called a corporation but is treated in the United States for tax purposes as something else.  Similarly, you may have an entity that is not called a corporation, but is treated as a corporation in the United States for tax purposes.

Many countries attribute residence of a corporation to its place of management.  This does not matter for U.S. tax purposes.  A corporation is foreign if the organizing documents (Articles of Incorporation or similar) say something to the effect of “This corporation is formed under the laws of ________” and the place named is not a place in the United States.

Why the branch profits tax exists

The branch profits tax is intended to cause non-U.S. corporations (and their shareholders) to be taxed identically to U.S. corporations (and their shareholders).  The idea is that a nonresident investor should be indifferent–from a U.S. tax perspective–between investing in the United States through a non-U.S. corporation or through a U.S. corporation.

If a non-U.S. person owned a U.S. corporation which made the equivalent investment, the net profit would be taxed at 34%.  Under the example I gave, this means that the corporation would contain $66.00 after paying its income tax.  If the shareholder wanted that cash, the corporation would pay a dividend to the non-U.S. shareholder.  As the dividend money leaves the United States there is a withholding tax imposed, at a default rate of 30% of the amount of the dividend.  (It can be less if the recipient lives in a country that has an income tax treaty with the United States.)

Thus, a non-U.S. investor who used a U.S. corporation would pay two levels of tax:  the regular corporate tax calculated at 34% of income, and the 30% withholding tax on the dividend paid by the corporation to the shareholder.

Compare that to the same investment made by a non-U.S. investor through a non-U.S. corporation.  The non-U.S. corporation earns $100.  It pays the regular income tax at 34%. 

It has $66.00 remaining in its bank account.  Now the shareholder wants a dividend.  The United States cannot tax that dividend because it is paid from a non-U.S. corporation to a non-U.S. shareholder.  The second level of tax–the 30% tax on dividends–will not be paid.

The branch profits tax plugs that hole.

The branch profits tax applies automatically

The branch profits tax automatically applies if there is a profit generated in a fiscal year for the non-U.S. corporation.  Compare that to the tax on a dividend:  here the corporation controls if and when the withholding tax on the dividend will be paid, by deciding to pay (or not) a dividend.

How a non-U.S. corporation avoids the branch profits tax

The branch profits tax is imposed in an automatic and mechanical way.  There are only a few ways to eliminate it:

• Reinvest your profits in the United States;
• Find an exemption in the income tax treaty between the United States and the country in which the corporation was formed (the United Kingdom, for instance, has an exemption); or
• Completely terminate all business and investment operations in the United States (also know as “sell your assets and take your money home”).

When the branch profits tax is harmless to real estate investors

The branch profits tax is harmless to nonresident real estate investors if the non-U.S. corporation owns one piece of U.S. real estate, and that property is not producing income.  Direct ownership of land is fine.  So is direct ownership by a non-U.S. corporation of a house which is used for personal purposes.

The branch profits tax does not matter in these situations because there is no annual rental income collected.  No income means nothing to tax.

In the year of sale there will be profit and the branch profits tax will apply.  But there is a simple exception which can be used to eliminate the branch profits tax in the year of sale–the branch profits tax will not apply if the non-U.S. corporation ceases all U.S. business and investment operations in the year of sale.

When the branch profits tax applied to rental property

The branch profits tax will apply to nonresident investors in U.S. real estate who have rental income held directly by a non U.S. corporation.  The income collected (after expenses) will be subjected to the branch profits tax.

When the branch profits tax applies to multiple properties

A non-U.S. corporation which owns many pieces of U.S. real estate will have a branch profits tax problem.

If any of the properties are rented, the rental income will be subjected to the branch profits tax.

If one of the pieces of real estate is sold, the profit on sale will be subjected to branch profits tax, and the exception traditionally used to eliminate the branch profits tax (the non-U.S. corporation ceases all U.S. investment and business operations in the year of sale) cannot be used, because the corporation continues to hold other pieces of real estate.

What to do if branch profits tax is a problem

If you have an existing situation which triggers branch profits tax, consider adding a U.S. corporation to the holding structure.  Instead of the non-U.S. corporation owning U.S. real estate directly, the non-U.S. corporation will own all of the shares of a U.S. subsidiary corporation, which in turn owns the U.S. real estate.

This type of restructuring will not trigger any tax if done correctly.  It is purely a paperwork exercise.

Since the owner of the real estate is now a U.S. corporation, the branch profits tax will no longer apply.  (Branch profits tax only applies to non-U.S. corporations).