Cost Segregation and Buying a Business

Have you heard of cost segregation studies? This is an engineering-based study, usually conducted in tandem with an accounting firm, to break-out the cost of real estate and improvements into more tax-advantaged asset categories. For example, a sidewalk can be depreciated faster than a building. It would therefore be tax-advantageous to separate the cost of the sidewalk from that of the building and claim the faster depreciation. A virtual cottage industry has sprung up in the profession to do these cost segregation studies.

What if you buy a business and simultaneously do a cost segregation study? Sounds like the perfect time to do one. What if you buy a business and do the study later?

Let’s talk about Peco Foods Inc (Peco).

Peco is the parent of a consolidated group engaged in poultry processing. Through subsidiaries, Peco acquired its Sebastopol, Mississippi plant in 1995.  Peco and the seller agreed to allocate a $27,150,000 purchase price among 26 asset categories, including:

·         Processing plant building

·         Hatchery real property

·         Waste water treatment plant

·         Furniture and equipment

·         Machinery and equipment

Peco obtained an appraisal in connection with this acquisition. The appraisal listed more than 750 separate assets.

Peco acquired a second plant in Canton, Mississippi for $10,500,000 in 1998. This time Peco and the seller allocated the purchase price across only three asset categories:

·         Land

·         Land improvements

·         Machinery, equipment, furniture and fixtures

Peco obtained an appraisal on Canton after-the-fact. The appraisal included more than 300 separate assets. 

In 1999 Peco hired Moore Stephens Frost (MSF) for a cost segregation study of the two plants.  According to the study, Peco was entitled to additional depreciation expense of $5,258,754 from 1998 through 2002.

            NOTE: I will pass on saying that $5.2 million is not chicken feed.

Peco was now required to alert the IRS that it was changing its depreciation. It was changing what it earlier called a “building” to “machinery” or “equipment” or whatever. It had to attach a form - Form 3115 – to its tax return. Peco explained that it was breaking-out the Sebastopol and Canton depreciation schedules into more categories.

The IRS nixed the whole thing.

Why? There are special rules when someone acquires enough assets of another business to constitute the purchase of that business. This is referred to as an “applicable” asset acquisition, and the seller and buyer have to alert the IRS of how the purchase price is to be allocated. Here is Code Section 1060:

If in connection with an applicable asset acquisition, the transferee and transferor agree in writing as to the allocation of any consideration, or as to the fair market value of any of the assets, such agreement shall be binding on both the transferee and transferor unless the Secretary determines that such allocation (or fair market value) is not appropriate.

Each party’s argument is straightforward:

         IRS:    Taxpayer has to allocate according to the acquisition agreement.
           Peco:  No, I don’t because the wording is vague.          

The Court pointed out that the Sebastopol agreement used the phrase “processing plant building.” The inclusion of the word “building” was important. The Court even read the description of “building” from the Merriam Webster College Dictionary.  Equipment inside a building is not the same as the building. Why would Peco use the word “building” if it did not in fact mean a building?

The Court went through the same exercise with the Canton property.

The Court pointed out that – for it to set aside the written agreement – it would have to hold that the language was vague and ambiguous. Problem is, the Court did not think the language was vague or ambiguous at all. The Court observed that Peco had an appraisal prior to entering into one of the contracts, but it saw no need to further detail or reword its asset acquisition schedule. The second schedule was even more restrained, having only three categories. The Court observed that Peco did not seem to have any trouble with its schedules and categories until after it met Moore Stephens Frost (MSF), who clued them in on the advantages of cost segregation. The Court hinted its disapproval over retroactive tax planning, and it decided that it could not determine that the allocation was inappropriate. That meant that Peco was bound by the documents it signed. 

What is the moral of the story? The first of course is the importance of words in tax practice. Sometimes there is no room for “you know what I mean.” This is one of those areas.

The second moral is cynical. Had there been no written allocation of the assets, or even an incomplete allocation, then Peco might have won the case. Why? Because both sides would not have named every dollar in the deal. This would have left unclaimed ground, and Peco could have claimed that ground.

To be fair, the IRS is not keen on cost segregation. It is aware of the cottage industry that has sprung up after Hospital Corporation of America. It is one thing to be tracking the cost breakout as a building is being constructed or renovated. It is another to have an engineer come in and submit “what-if” numbers on an existing building or land improvement. Notice that the IRS did not contest the validity or credibility of MSF’s cost segregation study. All it did was hold Peco to its own (and) earlier cost allocation when it purchased the two businesses. That was enough.

Senate Wants to Increase IRS Funding

Last Friday I had a meeting with an IRS Appeals officer downtown. Her name is Fran and I like her. I understand that she and I sit on opposite sides of the table, but she does and has done – in my opinion - a fair job balancing the interests of the government and taxpayers.

Fran is retiring this year. Presently there are two people in Cincinnati Appeals. This means that soon there will be one. There are a number of reasons for this, and one is the IRS budget.

I saw this morning that the Senate Appropriations Subcommittee on Financial Services and General Government has marked up an appropriations bill that would increase IRS funding by 6%.

Perhaps I have been at this too long, but I take this as good news. Doing this every day, I have seen the decline of IRS administration. We have talked previously of IRS brain drain and the difficulty of working with their green and inexperienced replacements. We have also pointed out the blizzard of CP notices, which process often doesn’t work well and results in large amounts of wasted taxpayer (and my) time. Trying to settle an issue with ACS sometimes feels like the search for a starting New York Jets quarterback.

IDEA: Don’t issue these notices unless there is enough money to justify the time.

Collections can also do a better job. We have clients who have been laid-off and are now working where they can, perhaps as independent contractors. This creates the problem of making less money but owing more tax. Many times what they do earn is unpredictable. They are uncomfortable agreeing to a fixed monthly payment plan because they do not have reliable cash flow. Collections has a difficult time with a variable payment plan – one fluctuating as one’s income fluctuates. We presently have two of these clients in CDP Appeals.

OBSERVATION: This further increases the workload of Appeals, which will soon be down to one person in Cincinnati.

One of my non-profits received an $8,000 penalty notice for filing their Form 990 untimely. They have reasonable cause, as their bookkeeper became very ill and passed away. The Board did not know what to do, and by the time it came to us the return was late. I feel comfortable that the penalty will be abated. However, does $8,000 – for a small charity – seem reasonable to you?

OBSERVATION: If the penalty is not abated, we will go to Appeals, which again will soon be down to one person in Cincinnati.

On the other hand, I recognize the downside of increased IRS funding. This means they can look at more taxpayers, and I pay taxes too. Hopefully some of it will go to improved staffing and more experienced personnel.

I wish you the best, Fran. Enjoy your retirement.

CPAs Blow Their Own Tax Planning

Here is one of my favorite tax quotes thus far in 2012:

                That an accounting firm should so screw up its taxes is the most remarkable feature of the case.”

You can be sure that language isn’t going to make it to the firm’s brochure.

What happened? It started with compensation. There is a CPA firm in Illinois with three senior partners. These partners were making pretty good jack, enough so that they did not want the other partners to know the actual amounts. Considering that they are – you know, a CPA firm – that could be a tall order. So the three senior partners in turn started three other companies.

EXAMPLE: Let’s say you, me, and the guy in the elevator form three companies to hide our good fortunes from our partners. Let’s say company 1 paints and wallpapers CPA offices, company 2 shreds CPA firm files and company 3 provides door-to-door transportation to CPAs during busy season.  We will have our firm “pay” these companies for services and then we will split it up – behind the scenes, of course. Brilliant! What could go wrong?

The firm and tax case is Mulcahy, Pauritsch, Salvador & Co. They had approximately 40 employees and revenues between $5 and $7 million during the years at issue. The firm was organized as a C corporation. This technically made the partners “shareholders,” and the existence of a C corporation allowed for the possibility of dividends. The three shareholders had the following ownership:

                Edward Mulcahy                              26%

                Michael Pauritsch                            26%

                Philip Salvador                                  26%

For the years at issue they received W-2s as follows:

                                               

                                                              2001                       2002                       2003

                Mulcahy                           106,175                 103,156                 102,662                    

                Pauritsch                            99,074                  96,376                   95,048                         

                Salvador                           117,824                 106,376                 112,086

The firm paid consulting fees to the three companies of:

                2001                                   911,570                

                2002                                   866,143

                2003                                   994,028

The three companies then paid the three shareholders according to the hours each worked during the year.

The IRS comes in and asks the obvious question: what consulting services were provided?

Back to our example:

               

                IRS:  Steve, how many paints and wallpapers did you do?

                Me:  Er, none.              

                IRS:  How many files did you shred?

                You: None.

                IRS:  How many transportation clients did you drive?

                Elevator guy: None.

Truly folks, it does not require graduate school and years of study and practice in taxation to guess the IRS’ reaction. They disallowed the deduction and said that it was a disguised dividend to the three shareholders.

MPS is upset. If it is not consulting, they argue, then it is compensation.

The IRS says: please show us the W-2, the 1099, anything which indicates that this is compensation. MPS argues that it is “like” compensation. Heck, at the end-of-the-day the three companies paid the shareholders based on their hours worked. Doesn’t that sound like compensation? “Sounds like” is a childhood game, says the IRS, and is not recognized as sound tax planning. Surely MPS would know this, being a CPA firm and all.

MPS goes to Tax Court. MPS argues that its intent was to compensate, therefore the tax consequence should follow its intent. It brought in experts to prove that the shareholders were undercompensated, malnourished and in need of more sunshine. The Court listened to the argument, gave it weight and said the following:

               

There is no evidence that the ‘consulting fees’ were compensation for the founding shareholders’ accounting and consulting services. If they had been that—rather than appropriations of corporate income—why the need to conceal them?”

There is an important point here. There is a long-standing tax doctrine that you may select any form and structure you wish for a transaction, but once you do you are bound by that form and structure. The CPA firm was a C corporation and was transacting with its shareholders. A C corporation transacts in one of two ways with its shareholders: as compensation or as dividends/distributions. If the compensation was disallowed, you have the possibility of a dividend.

The Court did try to work with MPS. It noted that two tests for compensation are that (1) it must be reasonable and (2) it must be for services performed. This brought in the “independent investor test” of Exacto Spring, which precedent the Tax Court had used in the past. The idea is easy: what return would you need on your investment to pay someone a certain amount of compensation?

EXAMPLE: A hedge fund manager receives 20% of the fund’s capital gains. This is referred to as the “carry.” Why would an investor agree to this? What if the manager was returning 20% to 30% to you annually – even after deducting his/her 20%? Would you agree to this? Uh, yes.

So the Court looks at MPS’ taxable income for the years at issue:

                2001                                    11,249

                2002                                   (53,271)

                2003                                      -0-

The Court observed that the firm had money invested in its offices, technology, furniture, etc. It noted that – according to normal market expectations – that invested capital required a rate of return. It did not think that taxable income of zero was a reasonable rate of return. The Court was aware that the firm was zeroing-out its taxable income by paying consulting fees. This indicated to the Court that the firm was not concerned with a reasonable return on invested capital. MPS could not meet the Exacto standard. Without meeting that standard, the Court could not weave “compensation” out of “consulting fees” whole cloth. This was an unfortunate result because the firm received no deduction for dividends but the shareholders had to pay taxes on them. That is the double taxation trap of a C corporation. It is also a significant reason why many planners – including me – do not often use C corporations.

Let’s go tax nerd for a moment. I believe that MPS would have substantially prevailed had it deducted the payments as compensation (and included on the W-2) and the IRS in turn argued unreasonable compensation. Why? Because I believe the Court might have disallowed some of the compensation but permitted the rest. MPS instead came from the other direction: it had to argue that the payments were compensation rather than something else. This changed the dynamic, and it now became an all-or-nothing argument. MPS lost the argument and got nothing.

MPS appealed the case but with the same result. It is here that the Seventh Circuit Court of Appeals gave us the quote:

                That an accounting firm should so screw up its taxes is the most remarkable feature of the case.”

The taxes were almost $980,000. Remember, the personal service corporation lost its deduction (and paid taxes) and the shareholders received dividends (and paid taxes). The penalties alone exceeded $190,000.

MY TAKE: This tax strategy borders on the unforgivable. There were so many ways to sidestep this result.  One way would have been working with disregarded entities, also known as single-member LLCs. The three shareholders performed services for and received W-2s from the accounting firm. The Court however did not agree that their three companies performed services for the accounting firm. A disregarded entity would have avoided that result by having the member’s activities attributed to the SMLLC.

How could the firm pay entities that provided no services? Was nobody in that tax department paying attention? I presume they were steamrolled by the three senior shareholders.

I was brought up with the technique of draining professional service corporation profit to zero by using year-end bonuses. That technique has frayed over recent years as new doctrines – such as Exacto Spring– have appeared. It is as though these MPS guys were stuck in a time warp.

Another way, and the obvious, would be to have just paid the founding partners more compensation. Yes, that would have given away the amount of actual compensation to the senior partners. Then again, this case has also given away that information.

Taxpayer Loses Charitable Deduction for Lack of Appraisal

Joseph Mohamed seems a good sort. He and his wife live in Sacramento, California. He is a successful real estate professional. In 1998 they formed the Joseph Mohamed Sr. and Shirley M. Mohamed Charitable Remainder Unitrust II. Tax pros call this a “CRUT.”

QUESTION: What is a CRUT? This is a special trust involving a charity. You can guess that a purpose of the trust is to make a charitable donation. In a CRUT, an annuity goes to the donor (in this case, Joseph and Shirley) for a period of years. At the expiration of that period, the remainder goes to a charity. In the Mohamed’s case, that period is twenty years. Why would you do that in place of simply donating twenty years out? Because the CRUT allows you to claim the charitable deduction now.

In 2003 and 2004 the Mohameds donated several properties to the CRUT. The properties were worth somewhere between $18 million and $21 million. Joseph Mohamed prepared his own taxes. This means he ran into Form 8283 to report the property donations. He did not read the instructions though, as he did not think he had to. The form seemed straightforward enough.

Form 8283 has several parts. Part 1 Section B required a description of the donated property and “can be completed by the taxpayer and/or appraiser.” It also had the following text:

“If your total art contribution deduction was $20,000 or more you must attach a complete copy of the signed appraisal. See instructions.”  

Mohamed was contributing real estate, not art. He read that to mean that he did not have to attach an appraisal. He did attach all types of statements and documentation to his return, including his own valuation of the real estate.

The return gets audited (who is shocked?). The IRS was displeased that Mohamed had self-valued such a large dollar donation of property. The IRS first goes after the valuation. Makes sense. Mohamed then gets an independent appraisal which shows that the properties are worth more than he claimed.

The IRS then pulls back and realizes something. Regulation 1.170A-13(c) requires the following for donations of this nature and amount:

1.      A qualified appraisal must be made not more than 60 days before the donation and no later than the due date of the return.

2.      It must be signed by a qualified appraiser, who cannot be the donor or person claiming the deduction.

3.      The qualified appraisal must contain defined information, such as a description of the property, its basis and fair market value.

Mohamed had a problem. You see, he did not have a qualified appraisal. That requires an independent appraiser, and he obtained that after the filing of his return. There was of course no signature, as there was no qualified appraisal. While he attached numerous statements to his return, they did not completely address the litany of questions that the IRS wanted in Reg 1.170A-13(c).

The IRS disallowed the donations. Mohamed goes to Tax Court and raises three arguments:

1.      The extreme result indicates that the Regulations are invalid.

2.      The IRS-designed Form 8283 misled him.

3.      He substantially complied with the documentation requirements.

The Court quickly dismissed arguments 1 and 2. It went through an analysis (which we will skip) and concluded that the Regulations were valid and reflected Congressional intent. The IRS, for example, was ordered by Congress to issue Regulations requiring appraisals for donations of property in excess of $5,000. A Regulation that implements Congressional intent is difficult to rule invalid. The Court was sympathetic to argument 2, but it pointed out that the form is not the tax law. The Court even added that “a taxpayer relies on his private interpretation of a tax form at his own risk.”

Now we get to argument 3. What does “substantially comply” mean? There was a previous case (Bond) where the Court found substantial compliance, but succeeding cases have ever compressed the reach of that decision. The Court determined that substantial compliance meant complying with the “essential requirement” of the statute. Problem is, the “essential requirement” of the statute is the need to obtain a qualified appraisal. With that verbal loop, there was no way that Mohamed could substantially comply.

Here is the Court:

We recognize that this result is harsh – a complete denial of charitable deductions to a couple that did not overvalue, and may well have undervalued, their contributions – all reported on forms that even to the Court’s eyes seemed likely to mislead someone who did not read the instructions.”

MY TAKE: I am sympathetic to the Mohameds, but I am also confused. They must have used a tax professional in the past to establish the CRUT. They then make a near-$20 million donation but do not hire a pro to walk it through? It doesn’t make sense to me.

In both Mohamed and Durden there was no question that contributions were made; there were also no question as to the amounts. The taxpayer may have felt comfortable thinking: what are they going to do, put me in jail? No, they won’t put you in jail, but they will take away your charitable deduction. Don’t think that a court will bail you out, as there may be limits to what a court can do.

What is the answer? I would encourage the use of a tax professional if there is even a whiff of a question on your return. I know – it costs money. The problem is that you may not know you have hit a slick spot until after the IRS contacts you. As Mohamed and Durden have shown, that may be too late.

A Church Contribution Story: Durden

Our next two blogs discuss tax fails involving charitable contributions.

What each has in common is congressional resolve to address an area considered subject to tax abuse. How so? How many times has someone overvalued a Goodwill clothing donation, for example? Congress therefore placed restrictions – primarily documentation requirements – on one’s ability to deduct contributions. The general tax rule is simple: no documentation equals no deduction.  The key is to understand what Congress considers documentation, as your understanding may be different from theirs.

Let’s talk about Durden.

David and Veronda Durden contributed $25,171 in 2007 to the Nevertheless Community Church. With the exception of five checks (totaling $317), all checks were over $250.

FIRST RULE: Under Code Section 170(f)(8)(A), no deduction is allowed for any contribution of $250 or more unless taxpayer has contemporaneous written acknowledgment of the contribution by the charity organization that meets specified requirements.

The Durdens cleared the first rule, as they had a letter from the church dated January 10, 2008.

SECOND RULE: Under Code Section 170(f)(8)(B), the charity must state in the acknowledgment whether it provided any goods or services as consideration for the contributed property or cash. If so, it must include a description and good faith estimate of the value of any goods or services provided.

There is a problem: the church did not include language “no goods and services have been provided” in their letter.

The Durdens obtained a second letter dated June 21, 2009 containing the same information found in the first letter, plus a statement that no goods or services were provided in exchange for the contributions.

THIRD RULE: Code Section 170(f)(8)(C) considers the acknowledgment as contemporaneous if obtained on or before the earlier when the tax return is due or the actual filing date.

The IRS disallowed all but $317 of the charitable deduction for insufficient documentation. The Durdens go to Tax Court. Their argument is reasonable: we substantially complied with the spirit of the law. We had a letter. It might not be exactly the letter the IRS wanted, but we had a letter. When the IRS wanted more, we got them more. The IRS went too far in disallowing the deduction when everyone knows we gave to the church. We even showed them cancelled checks.  The wording in Code Section 170(f)(8)(C) is only one way – a safe harbor maybe – of meeting the “contemporaneous” standard.

The Tax Court disagreed. It noted that Congress intended to tighten the rules in this area and placed specific language in the Code requiring and defining “contemporaneous.” This was not the IRS’ doing; it was Congress’ doing.  The Court in the past had been lenient in cases involving substantial procedural compliance. This was not procedure. This was legislative compliance, and the matter was outside the Court’s hands.

The Durdens did not have the correct letter when they filed their return. That is the last possible date according to the law. There is no deduction. The Court did let them deduct $317, however. Since those individual contributions were under $250, those didn’t require a letter.

MY TAKE: I can understand Congress passing near-incomprehensible tax law to address complex and sophisticated tax issues. Those taxpayers are likely to have expert tax advisors and planners. This is not one of those issues. This is someone donating to a church. I strongly disapprove of routine activities triggering tax rules that make no sense to an average person.  

Congress should have included a “sanity” clause in this statute. They could have given the IRS discretion to accept “other but equal” documentation. True, the IRS could refuse to do so, but at least there would be a chance that the IRS – or a court reviewing the IRS – could blunt the capriciously sharp edge of this tax law.

Next time we will talk about Mohamed.

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.