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Archive for John Richardson

Naomi Osaka Does Not Automatically Relinquish U.S. Citizenship By Choosing Japanese Citizenship

John Richardson Japanese Citizenship

Citizenship is becoming more and more interesting. In my last post I wrote about Canada’s Conservative leader Andrew Scheer’s U.S. citizenship. Theoretically, on October 21, 2019, Canada could have it’s first U.S. citizen Prime Minister. (Think of the extra pressure that the United States could bring to bear on Canada.)

The newsworthiness of U.S. citizenship continues. There has been much discussion of citizenship as a prerequisite to compete for countries in the Olympic games. It is being reported that tennis star Naomi Osaka , a dual Japan/U.S. citizen is complying with a Japanese law that requires her to choose either U.S. or Japanese citizenship. A number of media outlets are reporting that Ms. Osaka is relinquishing U.S. citizenship. Is this really true? Interestingly the Toronto Globe and Mail initially reported that:

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Lawsuit Alleges Section 965 Transition Tax Is Unconstitutional

John Richardson On Sec 965 Transition Tax

A lawsuit alleging that the Section 965 transition tax is unconstitutional affords the opportunity to write Part 33 in my series of posts about the U.S. Transition Tax.

Part 22 of this series included a discussion of a paper by Sean P. McElroy which argued that the Section 965 repatriation tax was unconstitutional for the following reasons explained in the abstract:


In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings.

First, this Essay argues that Congress lacks the power to directly tax wealth without apportionment among the states. Congress’s power to tax is expressly granted, and constrained, by the Constitution. While the passage of the Sixteenth Amendment mooted many constitutional questions by expressly allowing Congress to tax income from whatever source derived, this Essay argues the Mandatory Repatriation Tax is a wealth tax, rather than an income tax, and is therefore unconstitutional.

Second, even if the Mandatory Repatriation Tax is found to be an income tax (or, alternatively, an excise tax), the tax is nevertheless unconstitutionally retroactive. While the Supreme Court has generally upheld retroactive taxes at both the state and federal level over the past few decades, the unprecedented retroactivity of the Mandatory Repatriation Tax — and its potential for taxing earnings nearly three decades after the fact — raises unprecedented Fifth Amendment due process concerns.

It appears that the plaintiffs in this case are making precisely these two arguments.

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Presumptions Of Tax Residency In A FATCA World

John Richardson

Introduction – All The World Is A Multiple Choice Test

Q.1 – A tax resident of the United States is taxable on his worldwide income. According to the Internal Revenue Code of the United States, which one of the following is NOT a tax resident of the United States of America?

(A) A Congresswoman “Born In The USA”, head of her household, who does not and has never had a U.S. Passport
(B) An unmarried Green Card Holder who has never filed an FBAR who lives in El Paso Texas
(C) A fifty year old U.S. citizen who is divorced has never set foot in the United States, doesn’t have a U.S. Social Security Number and lives in and pays full taxes in Germany
(D) A citizen of only Canada who lives four months a year in Florida with his U.S. citizen wife, in a house he owns where he parks a car he owns with Florida license plates
(E) A citizen of Grenada who lives full time in the USA with an E1 visa operating a fast food franchise

For help in finding the answer see …

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IRS Provides Limited Tax Relief For Certain Individuals Renounced(ing) After March 18, 2010

John Richardson On Renouncing U.S. Citizenship

In what appears to be a response to how FATCA issues affect “accidental Americans” living outside the United States, the IRS has introduced a procedure providing limited tax relief, penalty relief and certainty for accidental Americans who need to renounce U.S. citizenship in a FATCA world. The problem is described in this recent article by Helen Burggraf at American Expat Finance. Note that March 18, 2010 was the date that the HIRE Act (of which FATCA was a revenue offset) was enacted – making it clear that this relief is tied to FATCA and NOT to “citizenship-based taxation” per se.

In a nutshell, it appears (I will read this in more detail again) to say that Individuals who:

1. Have NEVER filed a 1040 U.S. tax return

2. Have relinquished/renounced U.S. citizenship after March 18, 2010

3. File the five tax years in the year prior to relinquishment

4. File a tax return in the year of relinquishment

5. Have a net worth of less than 2 million USD at the time of relinquishment AND at the time of filing

6. Have a total of less than $25,000.00 in U.S. tax liabilities over the five year period

7. Certify that their failure to file was non-willful.

can file, avoid paying the U.S. taxes owed and NOT be a covered expatriate.

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Be Form Warned And Form Armed: The Easiest Way To Receive A Form 3520A Penalty Would Be To File A Form 3520

John Richardson

There is evidence from both tax practitioners and from individuals that Americans abroad are suffering from a “Form 3520A” penalty epidemic. Some of the best discussion of both the scope and technicalities of this problem may be found at Tax Connections. See particularly the posts herehere and here. (Mr. Carter’s original post was also reproduced at American Expat Finance.) The posts have attracted commentary from a number of tax professionals. The IRS Taxpayer Advocate has been invited to intervene.

“Tax Compliant” Americans Abroad are just a penalty waiting to happen!

Americans abroad are potentially required a very large number of IRS forms. My point is simple. It’s the “possible” requirement to file International Information Returns that makes Americans abroad so vulnerable to the IRS penalty regime. As I commented at Tax Connections:

The only reason that the Form 3520A penalty was imposed was because a Form 3520 was filed!

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The Newest 2019 IRS Expatriation Compliance Campaign

John Richardson

On July 19, 2019 the IRS announced six new compliance initiatives.

Of particular interest to U.S. citizens and permanent residents (Green Card holders) is what is described as:


U.S. citizens and long-term residents (lawful permanent residents in eight out of the last 15 taxable years) who expatriated on or after June 17, 2008, may not have met their filing requirements or tax obligations. The Internal Revenue Service will address noncompliance through a variety of treatment streams, including outreach, soft letters, and examination.

What is expatriation?

From a tax perspective, expatriation is the process of ceasing to be a “tax resident” of the United States. Both U.S. citizens and permanent residents are taxable by the United States on their worldwide income. A U.S. citizen expatriates by relinquishing U.S. citizenship. A permanent resident expatriates by either surrendering their Green Card or making an appropriate election under a tax treaty.

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The Moore Case – A Recent Form #T1135 Taxpayer Victory In Canada

John Richardson Form T1135

This post has been submitted by Toronto, Canada lawyer John Richardson and is about the recent Moore Case in Edmonton, Alberta, Canada. Mr. Richardson states “It is a great example of taxpayer victory in resisting the draconian and unreasonable Form T1135 penalties in Canada.”

The taxpayer was employed by GE Capital Canada and participated in their employer sponsored share purchase plan as provided by the company. When GE Capital Canada was acquire by Wells Fargo Canada this ended the taxpayers participation in the share purchase plan. Mr Moore was given the option to sell his shares or place them into a Canadian Brokerage firm. He chose the brokerage firm. It was only after this change that he learned he should be filing a Form T1135.

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Failure To File Canada Foreign Property Returns – Form T1135 – Penalties And Voluntary Disclosure

John Richardson

Introduction – Form T1135 is a “Penalty Jackpot” for the Canada Revenue Agency


This provides information (including a table of penalties and frequently asked questions) about penalties for late or improperly filed forms and information returns.

Failing To File

The penalty for failing to file a return is $25 per day for up to 100 days (minimum $100 and maximum $2,500). This penalty does apply to Form T1142.

When failing to file is done knowingly or under circumstances amounting to gross negligence, the penalty is $500 per month for up to 24 months (maximum $12,000), less any penalties already levied. This penalty does not apply to Form T1142.

After 24 months, the penalty is 5% of whichever of the following resulted in the requirement to file the information return, less any penalties mentioned above already levied:

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A Canada Form T1135 Primer – Parsing The Language And Understanding The Basic Reporting Requirement

John Richardson

This is a post about Canada’s foreign asset reporting requirements. Previously, I introduced Canada’s Foreign Asset Reporting Requirements. This post will focus specifically on Form T1135 as it applies to individuals. Individuals are disadvantaged because they may or may not use professional tax advisers.

Form T1135 is a “compliance trap” and can lead to serious penalties for inadvertent noncompliance. (The case of Takenaka v AGC, 2018 FC 347 will be of great interest to U.S. citizens moving to Canada who retain their home in the United States and fail to report its use as a rental property. Ditto for certain U.S. life insurance policies.)

This post is for the purpose of helping individuals understand Form T1135 and the reporting obligations it implies. Obviously this is general discussion and not advice specific to your situation. Form T1135 reporting requirements are surprisingly complex. The Canada Revenue Agency is surprisingly unforgiving for “foot faults” in relation to this form.

Part A: Parsing the language – what is the basic Form T1135 reporting requirement?

If you want to understand the law it’s a good idea to begin with reading the law (make a note of that point). In this case the text of the law is found in Section 233.3 of the Income Tax Act of Canada (a not particularly obscure statute).

This post will guide you through the statute. Please note that all words in italics (whether bolded or not) are my personal commentary/explanation.

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Like FBAR, Form 8938, Form 3520 And Form 5471 – Canada Has Its Own Foreign Asset Reporting Rules

John Richardson


Last week I received a call from one of the many Americans abroad living (not hiding out) in Canada. He did NOT know about his U.S. tax obligations. Therefore, he has not been filing U.S. taxes. Interestingly, he had a portfolio of U.S. stocks (foreign to Canada) which were providing him with a consistent dividend stream. He (naturally) had been reporting all of the these “U.S. dividends” on his Canadian tax return. He had never heard of Form T1135 and the relatively new requirement that he report certain “foreign assets” to the Canada Revenue Agency.

Looks like he may have been headed for “double trouble”.

Form Crimes: They’re not for everybody – but they could be for you!

I’ve been told, but I don’t know, that single citizenship Canadians are sometimes jealous of dual U.S./Canada citizens. Those dual U.S./Canada citizens living in Canada, are sometimes thought to have more opportunities than “pure Canadians”. With all the media attention on the United States imposing worldwide taxation on (U.S. citizen) Canadian residents, many Canadians pay more attention to how the U.S. tax system affects them, than on how Canada’s tax system affects them. “Pure Canadians” are often in awe of the “form related” penalties to which their dual citizen neighbours are subject. Think of it: A U.S. citizen in Canada can be fined hundreds of thousands of dollars for failing to report (to U.S. financial crimes) his local Canadian bank account. But, this is just one of many opportunities for penalties.

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Proposed U.S. Japan Tax Treaty Enhances Ability Of U.S. To Enforce Taxation On Americans Abroad In Japan

John Richardson Proposed U.S. Japan Tax Treaty

Prologue – Tax Enforcement And The Revenue Rule

The common law revenue rule was designed so that one country will not enforce tax debts owed to another country. There is general agreement that the “revenue rule” is gradually disappearing. Specifically, the United States has negotiated tax treaties with at least five countries (Canada, Denmark, France, Sweden and the Netherlands) which abrogate the revenue rule. To learn more about the Revenue Rule, see the “Appendix” below.

I have previously suggested how the “assistance in collection provisions” facilitate U.S. citizenship-based taxation. My 2016 comment on “assistance in collection provisions” suggested that U.S. citizenship-based taxation gives the United States strong incentives to end the revenue rule. Specifically …

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For The Duke And Duchess Of Sussex And Baby Archie Harrison Mountbatten-Windsor Tax Life Is Complicated

John Richardson Toronto Lawyer

The marriage of Meghan Markle to Prince Harry has generated an awareness of the regulatory requirements on U.S. citizens who live outside the United States. This is only part of the problem. To focus on how U.S. citizenship-based taxation affects ONLY U.S. citizens is selfish and misguided. After all, by marrying Prince Harry, Meghan Markle is now part of a family which includes non-resident aliens.

How do the rules of U.S. “citizenship-based taxation” affect people who are not U.S. citizens, but have chosen to interact with U.S. citizens?

Forget Meghan and the baby. Time to ask: How might being the father of a U.S. citizen and the husband of a U.S. citizen create a link between Harry and the IRS? “American expats hoping global spotlight on royal baby’s U.S. tax affairs will drive change.

My thinking along these lines began with:

What about Internal Revenue Code Section 318? This would deem “Baby Sussex” to be (for IRS purposes) the owner of any the shares of any U.K. corporations that Harry might own. This is only one of many instances where (to put it simply) the U.S. citizenship of one family member can become a problem for the whole family. In any event, this series really needs a post, describing what could happen, when a U.S. citizen becomes part of what is otherwise, a family of “non-resident aliens”.

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