Taxation and Renouncing Citizenship: Part II

Let’s say that you were born in Brazil. Your family was wealthy. Due to safety concerns (such as the risk of kidnapping), they moved you to the United States when you were young. You grew up in a southern and international city – perhaps Miami. You went to Harvard. While there you met and bankrolled a cantankerous near-friendless computer genius who came up with the next great social media idea. He tried to boot you out of the fledging company, but after a lawsuit and hard feelings, you kept about 4% or so of the shares. Much to your delight, the company went recently went public and made you a multibillionaire. Prior to that, you met with high-powered attorneys and tax advisors. You renounced your U.S. citizenship and are now living in Singapore. Where is Singapore? Think Vietnam, and then turn south. It is a former British colony, and you like pasties and room-temperature beer. Seems a fit.

Why would you do this?

Let’s go over several tax reasons. We need numbers in this conversation. Let’s use the following:

            Proceeds from IPO                          $ 4.0 billion

            Expected annual salary                     $ 7.5 million

            Expected annual dividends               $ 40 million

            Expected capital gains                      $ 25 million

What are your U.S. 2013 taxes if you remain a U.S. citizen?

(1)   Your salary may be taxed as high as 39.6% next year. Let’s say that it will be. The federal tax would be $7,500,000 times 39.6% equals $2,970,000.

(2)   If your dividends are “qualified” dividends, you would pay a 15% tax rate this year. The President’s proposed 2013 budget would increase this to 39.6%. In previous budgets, however, he has proposed 20%. What rate should we use? Let’s use 20%.  Your tax would be $ 40,000,000 times 20% equals $8,000,000.

(3)   The capital gains are a wild card. Let’s say that you will be selling stock periodically to fund your lifestyle. What amount? Let’s say $25 million annually. Let’s also say that your basis is so low that any sale is virtually all gain. The long-term capital gains rate is currently 15%, but everyone expects this rate to go up. Unless Congress acts, the rate will increase to 20% in 2013. Let’s use 20%. Your tax would be $5,000,000.

(4)   Starting in 2013, there is a new surtax on investment income if your income exceeds either $200,000 or $250,000, depending on filing status. You have clearly blown past that speed bump like Steven Tyler’s new Hennessey Venom GT Spyder. That new tax is 2.9% and will cost you $1,885,000.

(5)   Starting in 2013, there is a Medicare surcharge for persons earning more than $200,000. The surcharge is 0.9% and will cost you $67,500.

What are your 2013 taxes in Singapore?

(1) The top tax rate in Singapore is 20%. Taxes on your salary will be $1,500,000.

(2) Taxes on your dividends will be $8,000,000.

(3) There are no taxes on your capital gains.

OK, let’s look at the scorecard. A quick back-of-the-envelope calculation shows:

            United States              $ 17,922,500   

            Singapore                   $  9,500,000

Is there more? Well, yes.

(1) Let’s say that you invested in mutual funds to obtain those dividends. Chances are these funds will be considered PFIC’s (“pea-fics”) and carry some heavy U.S. tax disapproval.

The best you can do with a PFIC is make a QEF election and pay taxes every year on your share of income, whether distributed to you or not. This requires the PFIC manager to want to go to the trouble of assembling this information for you, as the PFIC tax is an American concept. A fund manager in Hong Kong, for example, might be less than interested in IRS mandates. In any event, the U.S. wants to accelerate your tax without regard to whether you received any cash.

If the fund manager is unwilling, you go to an ugly place in U.S. taxation. Without belaboring this, it may require you to go back and recalculate your prior year taxes on an “as if” basis. You will then write a real check to the IRS for that “as if” calculation. You also have to pay the IRS interest for not having paid taxes in the earlier “as if” tax year.

(2) Don’t forget your FBAR filing every June 30.

You have financial accounts overseas, so you will have an FBAR filing.

Penalties for failure to file an FBAR border can be severe. Penalties begin at $10,000 for each non-willful violation. If willful, the penalty goes to the greater of $100,000 or 50% of the account for each violation. Oh, each year is considered a separate violation. And the IRS gets to decide what is willful.

You got it: if the IRS considers your violation to be willful for two years, you have wiped-out the account.

(3)   You have to file the new Form 8938 disclosing foreign financial assets.

This is the FATCA and its reason for existing reads like a bad dream. In essence, the IRS felt that it was not getting enough information from the FBAR, and it really wanted more information. Think about this. The FBAR is mailed to the U.S. Treasury, and technically the IRS is part of the U.S. Treasury. One would think that the IRS and Treasury would speak, perhaps weekly for breakfast. Treasury did not upgrade the FBAR, nor did it replace the FBAR with the IRS Form 8938. No sir, the IRS created a new form and they kept both filing requirements. Well, it is one more opportunity to confuse the populace and maximize those penalty dollars. Brilliant!

Penalties can be rough: $10,000 for each failure to file. If you both fail to file the 8938 and fail to pay tax on the foreign income, there is a super-penalty of 40% on the tax underpayment. Don’t do that.

(4)   Should you leave family behind, gifting to them will certainly be a problem. These transfers will be picked up under the expatriation rules of Section 877 and trigger tax at the maximum gift tax rate. That rate is currently 35% but is expected to increase to 55% next year.

You read that right: Uncle Sam is your biggest beneficiary. More so than your mom, son or daughter. 

You may want to take them with you.  Singapore has no gift tax.

(5)   Should you remain a U.S. citizen, consider hiring an experienced tax attorney and/or CPA to navigate all this. It is another expense, but least you can write-off the professional fees on your taxes. Oh, wait. No you can’t. Chances are the fees will not exceed 2% of your income. If you are in the AMT, they will not be deductible in any event.

There are reasons other than taxation to renounce. There are many expatriates overseas who have no intention of returning to the U.S. They have lives, spouses, children, jobs and friends there. Perhaps they will return, but it will be at some unknown and distant date.

It is unfortunate to renounce citizenship over tax reasons. The U.S. does press your hand by taxing you on your worldwide income, irrespective of where you live, work or maintain family. The U.S. is virtually alone in the world with this type of taxation. If this ever made sense, does it still make sense? Leaving the U.S. doesn’t mean that you leave its mandates. You have to renounce.

What would you do?

Taxation and Renouncing Citizenship: Part I

Why would Eduardo Saverin renounce his U.S. citizenship?  Saverin is one of the Facebook insiders and presently is unbelievably wealthy.

Saverin was not born here. His family is from Brazil, and they were wealthy before Mark Zuckerberg starting working on a networking site from his Harvard dormitory. Saverin became a citizen in 1998 and is now expatriating to Singapore.

A possible reason is U.S. tax policy. The U.S. will tax a citizen or permanent resident (think green card) no matter where you are on planet earth, how long you have lived there or whether you have any intention of ever returning to the U.S. I have family, for example, that has lived outside the U.S. since the 80s, yet the IRS expects to receive a tax return from them annually. If they have over $10,000 in a foreign bank account, Treasury expects an FBAR every June 30^th. If they have accumulated enough assets over the last 30-something years, they are subject to the new IRS “specified foreign financial asset” filings. Their bank may even have to report their banking activity to the U.S. under the new FATCA rules. That is assuming the bank doesn’t close their account to avoid having to deal with these U.S. mandates.

Does this sound even remotely reasonable? Do we wonder why someone would renounce his/her citizenship?

Let’s go over the general rules in this area. The U.S. tax system differentiates between U.S. citizens and permanent residents, on the one hand, and nonresident aliens (NRAs) on the other. We can further differentiate the tax system between income taxes and estate and gift (i.e., transfer) taxes.

INCOME

A  U.S. citizen or permanent resident is taxed on his/her worldwide income. It doesn’t matter where you earned the income (you could be mining ore from the ocean floor) or whether you have or have not been in the U.S. since elementary school. That citizenship will follow you like a bad tattoo.

A nonresident alien (NRA) is a different matter. How an NRA pays income tax is generally based on one key question: is there a business activity involved? The tax term is “effectively connected.”

·         If no, then figure on a flat 30% tax rate

·         If yes, then the NRA gets the same graduated tax rates that you or I use

ESTATE AND GIFT

You can guess the drill at this point. A U.S. citizen or permanent resident is taxed on everything, wherever located, whether in the sky above or the earth below, in days past or yet to come. 

In contrast that NRA is subject to estate tax only on property located in the U.S.

There is an odd rule that stock of domestic corporations is treated as property located in the U.S. I have never quite understood that one. Fortunately, that tax overreach can be stymied by relatively easy tax planning, such as putting the stock in a foreign entity.

The gift tax applies to an NRA to the extent of tangible personal property or real estate located in the U.S. That definition excludes most stock from the reach of the gift tax.

EXPATRIATION

Let’s clarify terms. Any American who lives overseas is an expatriate. It doesn’t mean the one has renounced his/her citizenship. However, renouncing also uses the term “expatriate.” Unfortunate, somewhat like the track record of Bengals linebackers and the court system. We will use the term “expatriate” to refer to renouncing citizenship for the balance of this article.

Pre-2004

Back when, a person renouncing citizenship was subject to tax for the succeeding 10-year period, unless he/she could show that expatriation did not have as one of its principal purposes the avoidance of taxes.

The expatriate was subject to income tax on income from sources within the U.S. or effectively connected with the U.S. There were convoluted rules to slow down the tax planners, such as shutting-down nontaxable exchanges of property and outbound transactions with a controlled foreign corporation.

It didn’t take much to prompt the government to think that one was tax-driven:

(1)     Average income (not tax) for the last 5 years exceeding $100,000, or

(2)    Net worth of $500,000

The estate tax continued to apply, but it was generally limited to assets located in the U.S.

The gift tax however was expanded to include gifts of stock.

One could contest the government’s presumption that one was tax-motivated. One would request and pay for a tax ruling. I presume that everyone did so.

Also, one had to send-in an annual Christmas card to the U.S. government which included one’s address, the foreign country of residence as well as information on one’s assets and liabilities.

After-2004

The IRS found it very difficult to determine tax motivation as previously required under the tax Code. Interestingly, it also found that it could not keep up with the number of people requesting rulings. Congress in response changed the determination standard from a subjective to an objective test.

If one met the new income and asset thresholds, one was now presumed guilty of tax avoidance.

At least they increased the thresholds:

(1)    Average tax of $124,000 for the last 5 years

(2)    Net worth of $2 million

An expatriate under those limits would not be taxed under the expatriate rules even if the motivation was tax-driven. Conversely, one over those limits would be taxed, even if there was no tax motivation. Congress removed the option to request a ruling from the IRS to exempt the expatriate from taxation.

The annual Christmas card was revised to include one’s annual income and the number of days physically present in the U.S. The expatriate could not be present in the U.S. for 30 days in any one year, or one would be treated for tax purposes as a citizen and taxed on all worldwide income.

NOTE: This is pretty harsh stuff, and the U.S. may have been alone among advanced countries with this extraterritorial tax reach. Obviously, you do not spend 30 days in the U.S., for any reason.

2008 and the Heart Act

The current expatriation regime came into the Code in 2008, and it was a revenue-raiser intended to “pay” for other tax provisions of the Heart Act.

INCOME TAX

Let’s add one new threshold:

(1)    Average tax of $124,000 for the last 5 years

(2)    Net worth of $2 million, or

(3)    Fail to certify that one has complied with all tax requirements for the preceding five years

If one falls into one of these categories, one is a “covered” expatriate. Generally speaking, in taxation the adjective “covered” is bad.

There is a brand-new mark-to-market income exit tax.  The tax applies to the unrealized gain in the expatriate’s property as if the property had been sold for its fair market value. One is granted an exemption of $600,000, adjusted for inflation.

NOTE: This “make believe” sale may be surprising, but other countries – for example, Australia and Denmark – do it with their expatriates.

So you now pay tax on the way out.

The covered expatriate can defer tax on property by posting a bond or other security acceptable to the government. This is an election, and the election is irrevocable. One can elect on a property-by-property basis. The deferred tax is due the year the covered expatriate sells the property. 

There are special rules for deferred compensation, trusts and such matters which do not concern us here.

ESTATE AND GIFT

The key here is whether the “covered expatriate” transfers to a U.S. resident or permanent resident. These transfers are called “covered” gifts or bequests and have their very own special transfer tax. The rate will be the maximum estate or gift tax rate at the time.

If the transfer is made to a domestic trust, then the trust has to pay the tax. If made to a foreign trust, the tax is payable when distributions are made to a U.S. citizen or permanent resident.

  

The transfer tax appears to be in addition to existing estate and gift tax. One already had to pay transfer tax on property located in the U.S. This new tax also pulls-in transfers of property located outside the U.S., if the transfers are to a U.S. citizen or permanent resident.

So if my wife and I renounce but our daughter stays in the U.S., we would have a problem transferring assets to her. Those would be “covered” transfers and trigger tax at the maximum rate. I suppose our daughter will have to renounce with us to avoid that “covered” problem.

WHAT ISSUES HAVE BEEN CREATED BY THIS NEW TAX REGIME?

In truth, the new regime is an improvement - in many ways – over the previous system. The potential tax is now calculated once, although its payment may be deferred. The previous system required monitoring for 10 subsequent years and was very difficult to administer. In addition, this regime is not based on one’s ability to live on non-covered assets for 10 years. That of course was a previous way to wait-out the tax and favored the uber-wealthy over the merely wealthy.     

Expect disagreement with the IRS over the valuation of difficult-to-value assets. Here is an example: Eduardo Saverin’s pre-IPO stock in Facebook. The stock was restricted and non-tradable. What do you think it was worth, before its IPO, when Saverin renounced? I’ve got nickels-to-dollars that the IRS will come-in with higher numbers than Saverin does.

Another issue is when to expatriate. If one has assets that are going to appreciate significantly and soon, one wants to leave immediately. Why? Because there is little or no present appreciation in the asset, but the clock is ticking. An example would be land where a new interchange or mall will be built, or Facebook pre-IPO stock. Compare this to prior law where one would still be subject to U.S. tax for 10 years.

What if you have a big inheritance? Same incentive. The inherited asset received a step-up to fair market value at the date of death. If it is appreciating and fast, it is in one’s interest to exit as soon as possible.

NEXT

We will talk more about Eduardo Saverin and his expatriation in another post.

Taxpayers Keep Leaving The United States

The number of expatriates continues to increase. The number for 2011 was 1,781 and represents more than a 15% increase from 2010.

Not all expatriates are wealthy and seeking to sidestep what they perceive as harsh and confiscatory government policies. The IRS itself estimates that up to seven million U.S. residents reside abroad. I have family overseas, for example, and they have no intention of returning. They must nonetheless file a U.S. tax return annually, file a FBAR and, assuming that they have not spent every nickel they ever earned, have to deal with FATCA reporting. Did you know that there are tax restrictions on a U.S. citizen marrying a non-U.S. spouse? Does that make sense to you?

The most recent assault by Treasury on non-U.S. financial institutions, such as UBS, has had the perverse effect of these institutions dropping U.S. clients – and certainly not accepting new ones. I am not condoning the uber-wealthy hiding their income and assets from the U.S., but it is a far reach to argue back that a U.K. bank should report electronically on the bank activity and balances of my family.

Here is a chart on the number of expatriates over recent years. Kudos to Andrew Mitchel for the graph. Draw your own conclusion, if a conclusion is there to be drawn.

               

FATCA Filing Season

This past Saturday the IRS released the final version of Form 8938, Statement of Specified Foreign Financial Assets, and on Monday released the instructions. This form is in response to FATCA, and represents a further tightening of reporting requirements for foreign income and assets.

What do you have to report? The easy answer is overseas bank accounts and securities accounts. It gets a little trickier with hedge and private equity funds. It will also pick up your loan to Grandma Gretchen. This is reporting for foreign assets, not just foreign bank accounts.

Here are the dollar amounts if you live in the U.S.:

·         If single or married filing separately

o   $50,000 on the last day of the year or $75,000 at any time during the year

·         If married filing jointly

o   $100,000 on the last day of the year or $150,000 at any time during the year

Here are the dollar amounts if you live overseas:

·         If single or married filing separately

o   $200,000 on the last day of the year or $300,000 at any time during the year

·         If married filing jointly

o   $400,000 on the last day of the year or $600,000 at any time during the year

Are the dollar thresholds ridiculously low? Of course.

Form 8938 does not replace the FBAR (TD-F 90.22.1), which is filed separately from your income tax return and is due in Detroit by June 30^th every year.

Eventually the IRS intends for Form 8938 to also apply to domestic entities, but for right now the IRS is limiting its reach to only individuals.

My take?

We used to expect that the IRS would not assess penalties unless tax was due. That in turn meant that we did not overly fear information returns - that is, returns with numbers on them but no line that said “tax due.” There were some exceptions, such as W-2s and 1099s, of course; otherwise, this rule of thumb worked reasonably well.

No longer. There are penalties to these forms even if there are no taxes due or all taxes have been reported.  Congress has taken umbrage on Americans having assets overseas. I am at a loss why a married couple (say my wife and I) would draw Congress’ attention solely by having $100,000 overseas. That is not enough money to get a starring role next to Michael Douglas in Wall Street II. It is not enough money to get me invited to a White House dinner, and certainly not enough to join a presidential vacation.

If you are even close to the dollar limits, please see a professional. Do not fool around with this, as the penalties can be severe.

New Reporting For Foreign Bank And Other Financial Accounts

I have mentioned on this blog that I have in-laws overseas (England). My wife and I have discussed buying property and retiring (some day!) overseas. She e-mailed me something recently on property in Ecuador that caught her eye. I only recall that the average temperature was not equal to the surface of the sun, which surprised me. (It’s called Ecuador because it is on the equator.)

Let’s say that my wife and I retire overseas. We would be expatriates. Nope, this is not a bad word. It means a person who lives outside his/her country of citizenship.

What tax issues should an expatriate know about? There are many, but today I want to talk about the HIRE Act, FATCA and the brand-new IRS Form 8938 Statement of Specified Foreign Financial Assets.

Congress passed the Foreign Account Tax Compliance Act ("FATCA") as part of the HIRE Act in 2010. The intent was to make it difficult for US taxpayers to evade tax by hiding assets overseas. FATCA requires US persons to file yet another form (Form 8938) to report foreign financial assets.

Form 8938 is out in draft. Interestingly, its instructions are NOT out. Form 8938 will be attached for the first time to your 2011 tax return.

Please note that this form is IN ADDITION to Form TD 90-22.1 (the "FBAR") you may already be filing with Treasury by June 30th of every year. The FBAR is required when you have more than $10,000 in foreign financial accounts.

Form 8938 is primarily geared but not necessarily limited to financial accounts.  You have to report (as I read it) foreign rental property, for example, as long as it is income-generating.  This is an issue for a couple of our clients, so I intend to go back and verify this point.

Form 8938 does have a higher reporting threshold - $50,000 – than the FBAR.

Form 8938 may require substantial time to prepare. Part I is relatively straightforward and asks you to disclose your overseas bank accounts. Part II asks you to disclose foreign financial interests (other than bank accounts) and their maximum value during the year. Depending on the financial interest, you may also have to disclose mailing addresses and other information. Part III requires the disclosure of “tax items” attributable to foreign interests previously disclosed. “Tax items” are interest, dividends, royalties and such other income, so you will (effectively) be tracing the income from the disclosed assets to a specified line on your individual income tax return.

The IRS did realize that some of this information is being disclosed on other tax filings already in their possession. Foreign corporations, for example, file Form 5471.  Foreign partnerships file Form 8865. Foreign trusts file Forms 3520 and 3520A. Part IV allows you exclude these financial interests from 8938 reporting. You do however have to provide some information on how many and what type of filings the IRS will receive on your behalf. Presumably there will be computer matching for the IRS to double-check that it has all these filings.

My take on all this? Does it seem reasonable to you that this level of reporting kicks-in at $50,000? Why not $10 or $15 million – a more reasonable threshold if in fact it is the “fat cats” that FATCA is going after?