From the Hale Stewart Tax Law Blog we read: When planning and constructing a transaction, merely complying with the technical provisions of the code is insufficient. For example, the tax code allows a specific deduction for interest (26. U.S.C. 163). But the debt used in a transaction claiming the deduction must comply with certain factors in order for the transactional instrument to be recognized at law. All tax code sections contain this added layer of depth with which each element of the transaction must comply. This is the lesson learned from the myriad tax shelters promoted by large accounting firms in the 1990s that followed the letter of the law to a "T" but had no corporate substance (see this Senate report (from the 108th Congress) on the US tax shelter industry).
All of the transactions listed in this report (BOSS, son of BOSS, OPIS, BLIPs and many others) began with an extremely technical analysis of a particular code provision -- or even a much smaller sub-section of the code. A structure was then built around this particular analysis and sold to clients. The inherent problem with this methodology is it completely ignores the particular client's situation and moreover assumes a uniformity of structure and need between potential clients that does not exist. The proper way to construct a transaction is the exact opposite: begin with an analysis of a client's overall situation and stated goals then develop a solution which complements that situation. While it sounds cliche' (and perhaps a bit like a legal inside joke) the individual facts and circumstances of each circumstance really are unique and should be considered in their respective entirely to craft a unique solution to each situation.
When looking at the legislative intent (or substance) of the tax code, one fact stands out very clearly, rising to the stature black letter law: the US' tax code intends to tax US citizens on their world wide income. This is derived from two sources, the first of which is a plain reading of 26 U.S.C. 61 which states, "gross income means all income from whatever source derived, including (but not limited to) the following items." Theaccompanying Treasury Regulations use the exact same phrase: "Gross income meansall income from whatever source derived, unless excluded by law." And finally, Treasury Regulation 1.1-1(b) states, "In general, all citizens of the United States, wherever resident, and all resident alien individuals are liable to the income taxes imposed by the Code whether the income is received from sources within or without the United States."
Regarding foreign earned business income, earnings from various foreign corporations is included in the income of certain US shareholders under the controlled foreign corporation statute (sections 951-965 of the tax code). These rules were added to the tax code in the early 1960s as a way to prevent the then growing practice of forming a corporation offshore and then transferring family wealth to the newly formed foreign corporation. The assumption in this section of the code is that certain offshore structures are prima facie evidence of tax evasion. Offshore partnership income is assumed to flow through to US taxpayers via general partnership law tax principles and the code sections listed in the previous paragraph clearly and indisputably apply to personally earned income. Certain income from offshore trusts are also included in US taxpayer's income under specific grantor trust rules. Finally, the US tax code uses a foreign tax credit system, offsetting US taxes with foreign taxes paid.
The legislative intent could not be clearer: the code defines income in the broadest terms possible, and then specifically excludes various categories of income, all contained inChapter 1, Subchapter B of the tax code. The locus of the earning activity is not relevant; it is included unless specifically excluded. Put more directly, the substance of the tax code when read in its entirely is that all income earned by US citizens is taxable by the US. Moving offshore for the sole purpose of avoiding US taxation runs counter to legislative intent and the substance of the tax code when read holistically. And complying with the technical requirements of code -- especially in small section level pieces -- is insufficient legal grounds for a transaction to be recognized at law.
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Sunday, June 16, 2013
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That is true as far as it goes, but when a person has moved, bag and baggage abroad or, even more interestingly (like London Mayor Boris Johnson who is viewed as a possible future Tory Prime Minister) was born by chance in the USA and never lived or worked there and has had no apparent assets there, one can predict a real clash of wills between the USA and a foreign country for primacy in taxation and control of assets.
Switzerland may have capitulated, and the UK and the EU too, in matters of mass exchange of (tax) information but that does not mean that any of those countries will (as some have in extradition matters relating to terrorism, cyber crime and financial fraud) extradite willy-nilly and perhaps seize assets on behalf of the USG.
There are serious problems and thus far unresolved conflicts due to the exorbitant extension of US tax law and reporting requirements, only recently and sometimes resolved by tax treaties (as with recent articles relating to pension funds). I cannot imagine the UK Government assisting the USG in, for example, the pursuit of a parent over a "Child Trust Fund" funded, as they were before being replaced by Junior ISAs, by the British Government itself, where a 529 account would not be useful for the child -- but the child will have the same needs at college age in the UK. Or the Canadian Government assisting the USG in cracking down on a Registered Disability Savings Plan for a disabled child. These are trivial examples of more serious cases of double taxation (as when, for a decade until the Third Protocol resolved it, the USG did not acknowledge or credit Canadian taxation of deemed capital gains at death).
I've collected cases of double taxation exceeding the capital amount involved and, all of a sudden with OVDP it's become easy to find such cases. But the USG does not (at least not any longer and not now) appear directly in foreign bankruptcy proceedings so it will be interesting to see the results of US tax debts "discharged" abroad: i.e., immunized against collection activity in the country where the assets are located since a discharge only extinguished the remedy, not the debt, unless the "proper law" of the claim/debt is the same as that of the bankruptcy proceeding.
So, first of all don't you mean "US Person" not just citizen? Hasn't the IRS redefined the term in its regulatory application?
Secondly, from a practical matter, the US can not make the case of "intent" very easily and apply it to U.S. Persons long gone or accidental Americans living abroad. People move or live abroad for all sorts of reasons, and this generalization implied that moving abroad might have the "intent" of avoiding US taxation, just is offensive at a minimum and ethically and morally bankrupt in the extreme.
So does the US want to construct the new Berlin Wall of taxation control for all departing U.S. Persons to be sure they don't escape some chattel right of life time taxation and control? A security fence to keep illegal immigrants out, and a FATCA tax compliance wall to keep them in? .
Is the US via FATCA, going to make the assertion, that all discovered US Persons having accounts in the countries of their current resident, but not yet reporting to the International Revenue Service on a FBAR and FATCA form, therefore must be offshore by intent to avoid taxation? If so, good luck with that hubristic assertion. Just how far will the US go to try to make its extradition case that such a person is guilty by "intent" of tax evasion and thus should be rounded up, assets confiscated, and brought home for prosecution?
Accidental Americans unaware of your Citizenship and the US assertion of taxation rights over you, be WARNED! Uncle Sam wants you and your taxes and penalty revenue. But, if you hurry up and apply for the OVDP, before FATCA discovery, the graciousness and benevolent IRS has provided you with a benefit of only a 5% penalty on your high aggregate balance. But do it quickly! Pay some compliance attorney big bucks, and join the current OVDP (See FAQ 52) QDs not allowed.
King George III would have been proud of such assertions and such wonderful leniency.
This corrupting idea of Citizenship based taxation (CBT) rights regardless of residency around the world has to end, and be replaced by a residency based model (RBT) like the rest of the world. http://1.usa.gov/15bJe5m
In a practical way, CBT puts the US in conflict with EVERY other country in the world by asserting its taxation rights over its Citizen in supremacy of that countries own residents and citizens. Are the governments in Europe that complacent to this issue and care not a whit about their own dominant Citizenship rights by way of residency? Maybe so!
It does seem that they are all stumbling all over each other to capitulate to FATCA via an IGA of dubious legal pedegree ( http://bit.ly/WZKphF ) Now, via statements now in G8 and G20 meetings seem to want to expand on it to some grand scheme of a global automatic data-exchange (GATCA). However, as a practical matter, it is yet to be seen, if they will be willing to hand over their own resident Dual Citizens to the US Empire that is required by the "holistic reading" of the IGA.
If so, the time is coming where the number of U.S. Citizens living abroad, will be next to zero.
BTW, when the US gets FATCA data, to add to the NSA storage facility in Utah, they will have EVERYTHING. And that is the mission! Total information awareness including all financial activity in addition to that cell phone Mega Data and all internet communication, (including this one) that the NSA has been collecting and storing.
http://rt.com/news/utah-data-center-spy-789/
Orwell must be spinning in his grave right now.
Thanks for your comment.
No, nothing preempts U.S. Citizenship. It is god's will, you know! :)
The US double taxation treaty does not allow a US citizen to avoid income tax submission and the FWhat? form filing requirements (FBAR and FATCA) with serious penalties for failure. Also as a practical matter seldom do countries class income tax in exactly the same way or with similar deductions or credits. (There is no preferential qualified dividend rate in New Zealand, for instance, nor is there any deductions for interest payments for home ownership as another example.)
Also, qualified IRA like savings products in one country, are not considered 'tax sheltered' 'by the US and so subject to U.S. taxation. Worse still, they are considered Trusts, and require completion of complex form 3520A and taxed on a 'mark to market' basis on phantom gains yearly.
Also, the reality is, that any savings clause that is supposed to eliminate double taxation, in actually adds another big expense (a tax in a way) on folks who have to pay large fees for expert help to file their forms and bring their US income tax liability back to a low level. The National Tax Advocate in her reports to Congress has spoken eloquently about these problems but no one listens or cares. For the very Rich, this is just a small 'rent' that is not even felt, but for middle class folks it can represent a significant portion of a monthly salary. Basically it is a sin tax for having the audacity to live distant from U.S. hallowed shores without without driving a military tank to make the world safe for U.S. Corporations, Uh.. Freedom and Democracy.
Additionally, there are many other taxes you pay in the country of your residence that you get no credit or adjustment for on your U.S. taxes, (like VAT or GST taxes) where Citizens back in the homeland would be able to take as sales tax credits.
Anyway, without a change to a Residency Based Taxation system,(like the rest of the world) Americans abroad are stuck with being classed together with homeland offshore tax evaders by the simple nature of having banking accounts in the country they live. With Treasury determined to "Out" all of these U.S. Persons by FATCA imposition on the globe, and with the willing capitulation of Europeans to the demands of the U.S., the future is not bright. How far the IRS will go in its assertion of penalties and attempts to collect has yet to be seen. Time will tell. However, given their practices in the OVDP, there is an ample example of how egregious the IRS can be in their assertions of their "tribute" demands. They are very good at extortion, as the FFI's of the world can attest with the 30% withholding threats if the bully doesn't get is way.
American Citizens (Sole, Dual or Accidental) plus Greencard holders living abroad have real reasons to be concerned. Some might even want to become compliant now, pre FATCA round up, but the onerous penalties and catch 22 obstacles the IRS throws in their way, send many to the Consulates to renounce, stick their heads in the sand, go under ground or heaven forbid make the mistake of taking Tax Practitioner advice to enter the OVDP to be ground up by the IRS for fish fertilizer in a 2 year plus processing factory designed for homeland tax evading whales. Quiet Disclosures (QD) are discouraged, and the GAO recommends that the IRS go after those that do, to collect the penalties (revenue) that they think the IRS has left on the table by not aggressively searching out those who might be escaping detection for past failures. The IRS accepted that recommendation without qualification!
So, if non compliant Americans abroad, now want to be compliant with Citizenship taxation, given the new found enthusiasm since the Obama administration for the offshore jihad, there is no way to do it without serious penalty extraction risk. What a despicable way to treat a diaspora, IMHO.
(As it happens, it seems that under international law a state may impose its nationality upon a person without his or a parent's consent only at birth or adoption (formerly also upon marriage). That seems to be the reason for the Rev. Rul. I cited.)
One problem is that the tax law on 'expatriation' does not relate to US nationality alone. I've mentioned a person I knew who gave up a green card to become a staff member of an international organization, with diplomatic privileges, and later left the US completely to take up a senior position with his own government. I suspect that Boris Johnson if a British PM (and a certain Canadian minister too) would not be forced to use a US passport on an official US visit. Diplomatic pragmatism often trumps law:http://www.uniset.ca/other/news/wp_ronaldanderson.html
Garry Davis http://www.linkedin.com/pub/garry-davis/9/b40/239 renounced his US nationality in favor of his invented "world citizenship" but he eventually decided to come back to the US and apparently got an immigrant visa to do so. I suspect that many or most expatriates and accidental Americans will, unlike Garry, stay away.
For me the interesting question is this: how far will foreign governments go in practice to assist the USG in pursuing claims against dual nationals who have fully complied with their other country's laws and paid all tax, and at higher rates than the US imposes: meaning that the IRS claim would be for 'penalties'.
The USG, by the way, is not alone in exorbitant, or at least surprising, claims of taxability. The Robert Gaines-Cooper case is a harbinger of what's to come:http://www.guardianwealthmanagement.com/uk-taxman-successfully-takes-on-british-expats-over-non-dom-90-day-rule/