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Archive for John Richardson

Does The United States Provide Americans Abroad Any Benefits?

americans abroad benefits: taxconnections

This question was presented in May 2020 on Quora with some interesting comments from Americans Abroad. This post is about the question “Does the United States provide Americans Abroad any benefits? This post presents the questions, answers and my answer to the question. If you are an American Abroad reading this post your comments and experiences are most appreciated.

As a defender of American “freedom”, how do you justify the fact that US citizens have to pay taxes to the US even if they live and work abroad (even if they have never been to the US but got their citizenship through their parents)?

I along with others attempted to answer the question. What follows is the readers question and my answer.

Some of the most interesting analysis comes from the comments to the answers. See the following answer and comment. I have turned David Johnstone’s comment into a post.

One of the answers to the question included the suggestion that:

If someone lives and works abroad as an American citizen, he or she must be enjoying SOME benefits or they would logically renounce their US citizenship instead of paying US taxes. That would be a good solution for anyone facing this question. Just go!
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The S. 911 Foreign Earned Income Exclusion: It’s Origins, Journey, Opportunities And Limitations

John Richardson

I recently participated in a podcast discussing both the opportunities and limitations associated with the Section 911 FEIE (“Foreign Earned Income Exclusion”). It is short and explains why the FEIE is not the answer to the problems experienced by Americans abroad. You can listen to it here:

https://prep.podbean.com/e/us-taxation-of-americans-abroad-do-the-foreign-tax-credit-rules-work-sometimes-yes-and-sometimes-no/

The podcast was the subject of a post at American Expat Finance. That post prompted me to explore more deeply, the origins of the FEIE. When was it enacted? What was it designed to do? I found a fantastic article that I thought I would/should share.

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CARES ACT: How U.S. Citizen Taxation Leads To Sending Relief Money To Individuals Outside The United States And Denies Relief Money To Individuals Inside The United States

Cares Act Effect On Expatriates

Introduction

This post is based on my Quora answer to the question: “Do you agree with the policy of not issuing checks to US citizens who jointly file taxes with someone who has an ITIN?

The Quora answer was rewritten with the generous technical assistance of CPA Olivier Wagner of 1040 Abroad.

Part I – Objective Analysis

This post focuses on the class of individuals entitled to relief. It does not discuss how the relief is administered.

The statute authorizing the relief is found in Section 6428 or Subtitle F (the Procedure And Administration section of the Internal Revenue Code). The following sections specify WHO is entitled to the relief:
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Analysis Of The CARES ACT From Professor Francine Lipman

John Richardson- Cares Act

I received the following from Professor Francine Lipman who is on the faculty of the UNLV School of law. It is a statement of how the CARES Act operates to provide funds to Americans in need.

With her permission, I have simply reproduced her email as the post.

To be clear, what follows is a post written by Professor Francine Lipman.

________________________________________________________________________________________

Dear Passion Warriors for Justice:

I hope this is helpful to you and your colleagues. The CARES Act was just signed into law, including a number of individual income tax provisions.

Here are some details on the Recovery Rebate Tax Credit:

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Recent Economic Upheaval Creates Expatriation Opportunities For “US Persons” Living Abroad

JOHN RICHARDSON

As you know the US Section 877A Expatriation Tax applies to U.S. citizens and “Long Term Residents”. A “Long Term Resident” is an individual who has had a Green Card (as defined by the rules in Internal Revenue Code Section 7701(b)(6) for at least eight of the fifteen years prior to expatriation). This has become a serious problem for Green Card holders who simply move from the United States and and don’t take formal steps to sever their U.S. tax residency. (They must either file the I-407 or use a tax treaty tie breaker election to expatriate. Otherwise they may be in a situation where they have no right to live in the United States (having lost the immigration status) but are taxable on their worldwide income (still being tax citizens).

That said, whether you are a U.S. citizen wishing to renounce U.S. citizenship or a Long Term Resident wishing to sever U.S. tax residency, you do NOT want to be a “covered expatriate“. Generally, (unless one is subject to two exceptions – dual citizen from birth or expatriation between 18 and 181/2 – that are beyond the scope of this post), one is treated as a “covered expatriate” if one meets any one of these three tests:
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Why Are These Senators Attempting To Reverse Treasury Regulations That Affect Americans Abroad?

John Richardson on GILTI

Prologue

Americans abroad who are individual shareholders of small business corporations in their country of residence have been very negatively impacted by the Section 951A GILTI and Section 965 TCJA amendments. In June of 2019, by regulation, Treasury interpreted the 951A GILTI rules to NOT apply to active business income when the effective foreign corporate tax rate was at a rate of 18.9% or higher. Treasury’s interpretation was reasonable, consistent with the history of Subpart F and consistent with the purpose of the GILTI rules. Now, Senators Wyden and Brown are attempting to reverse Treasury’s regulation through legislation. This is a direct attack on Americans abroad.

Introduction

As many readers will know the 2017 US Tax Reform, referred to as the Tax Cuts and Jobs Act (TCJA), contained provisions which have made it difficult for Americans abroad to run small businesses outside the United States. In the common law world a corporation is treated as a separate legal entity for tax purposes. In other words the corporation and the shareholders are separate for tax purposes, file separate tax returns and pay tax on different streams of income. The 2017 TCJA contained two provisions that basically ended the separation of the company and the individual for U.S. tax purposes. In other words: there is now a presumption (at least how the Internal Revenue Code applies to small business owners) that active business income earned by the corporation will be deemed to have been earned by the individual “U.S. Shareholders”. To put it another way: individual shareholders are now presumptively taxed on income earned by the corporation, whether the income is paid out to the shareholders or not!
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A Thoughtful Proposal Regarding Expatriates Foreign Trusts And Retirement Savings: Will Treasury Listen?

Foreign Trusts - John Richardson

TaxConnections is posting this thoughtfully written comment on an article titled “Treasury Exempts Applicable “Tax-Favored Foreign Trusts” From The Form 3520… And Therefore Form 3520A Requirement” written by John Richardson. Here is a recommendation for Treasury to consider as posted by a David Johnstone.

John,
Excellent post. Based on my reading of the Revenue Procedure, as well as feedback from practitioners in the UK or Australia, I have grave reservations about the claim that this Revenue Procedure will help “many” Americans abroad. Perhaps this is an example of an attempt to simplify things from a legal perspective that in practice – once one does the math – may lead to greater complexity and help a very small number of people at best.
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Treasury Exempts Applicable “Tax-Favored Foreign Trusts” From The Form 3520… And Therefore Form 3520A Requirement

Form 3520 And Form 3520A

Introduction – A small step for forms, one giant leap for “formkind”

It’s true. Many Americans abroad will no longer have to file Form 3520 and Form 3520A to report their lives abroad! Early indications appear that many Americans will (assume their retirement vehicle does qualify as a trust) be required to report on Form 3520. This new initiative from Treasury a positive step in the right direction.

I have long thought that Treasury could solve many of the problems experienced by Americans abroad. Here is a wonderful example of Treasury taking the initiative to clarify the obvious:

Americans abroad do NOT use non-U.S. pension plans and non-U.S. tax-advantaged investing accounts to evade U.S. taxes. Hence, there is NO reason for the Form 3520 reporting requirement. This is an example of the tax compliance industry sitting down with Treasury, explaining a problem and getting a resolution. I suggest (and hope) that the same can be done for PFIC (Form 8621), Small Business Corporations (Form 5471) and other penalty-laden forms.

Yes, this announcement from Treasury in the form of RP 20-17 is a great achievement. Although it certainly doesn’t solve all the problems, it’s:

A small step for forms, one giant leap for “formkind”

The background to this problem – It starts in 1996 (same year as the beginning of the Exit Tax)…

Since 1996 Internal Revenue Code 6048 has required extensive reporting of almost any interaction with a foreign trust. Treasury has required that the reporting take place on Forms 3520 and 3520A. The forms are complex and subject to the draconian penalty regime described in Internal Revenue Code Section 6677. In order for an entity to be a foreign trust, it must be a trust. A “trust” for IRS purposes is defined by the Treasury Regulations as:

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Understanding United States Tax Residency

United States Tax Residency

The United States uses a form of “deemed tax residency“.
The Internal Revenue of the United States deems that all “individuals” (wherever they live in the world – including citizens and residents of other countries) except “nonresident aliens” are subject to taxation in the United States on their world wide income.

One qualifies as a “nonresident alien” unless one is a:
1. A U.S. citizen
2. A U.S. resident as defined by Internal Revenue Code Sec. 7701(b)

Interestingly, the Internal Revenue Code neither defines citizenship, nor specifically mandates “citizenship-based taxation“. (By imposing taxation on all individuals, the United States imposes taxation on all citizens.)

Internal Revenue Code S. 7701(b)
Section 7701(b) describes the conditions under which one who is NOT a U.S. citizen becomes a “resident” of the United States for tax purposes. It defines the degree of physical connection one must have with the United States to become a “tax resident”. At the risk of oversimplification, a “non-citizen” becomes a “resident” and subject to “worldwide taxation” if he/she:

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Exercising Broad Regulatory Authority, US Treasury Has Clarified The Meaning Of “Resident” For FBAR Purposes

John Richardson On FBAR

Introduction – Looking For Mr. FBAR

What’s new?

I haven’t written a post about Mr. FBAR for quite some time. But, a post about the recent Boyd Case at Tax Connections, by Darlene Hart got me thinking about FBAR again. For those interested – where the IRS successfully argued that it was appropriate to impose penalties on each individual account – here is the case:

Those who know little about Mr. FBAR might find this introduction to FBAR – although written in 2012 – helpful. Incidentally, it’s pretty obvious that Russia’s Foreign Bank account reporting laws were based on an admiration of Treasury’s success with the FBAR rules.

The purpose of this post
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TaxConnections Member John Richardson Interviews Monte Silver: On Confiscatory Taxation On U.S. Citizen Shareholders Of Small Business Corporations

Gilti Tax - John Richardson

In December 2017 the U.S. Tax Cuts and Jobs Act imposed confiscatory taxation on the U.S. citizen shareholders of many small business corporations located outside the United States. Canadian residents have been severely impacted by this. Monte Silver is a U.S. citizen tax lawyer based in Israel who has been very active in both tax advocacy on behalf of Americans abroad and litigation.

On December 24, 2019 his lawsuit against U.S. treasury achieved a major victory in the ongoing quest for “tax justice” for individuals living outside the United States who are also U.S. citizens. This is the fourth time that John Richardson has interviewed Monte Silver on these issues. This story is far from over!

Watch This You Tube Video

You Should Also Read This Blog By John Richardson.

Coming to America? Welcome To The Land of FBARs

Green Cards And Taxes

Thoughts From A Conversation About Green Cards And Taxes

The purpose of this is to reinforce some very simple points. I find that people always have more trouble remembering what’s simple.

Moving to America

1. Taxation of income from your remaining “non-U.S. assets”
You will be shocked to find that many of your “foreign assets” will be subject to particularly punitive U.S. taxation.

2. Reporting of your “non-U.S. assets”
If you are moving to America, you are moving from another country. You will very likely retain financial assets and bank accounts in that country. From a U.S. perspective, these assets are “foreign” and therefore a “fertile ground” for taxation and penalties.

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