One of the more confusing areas of international tax law is determining when withholding is required. Getting it wrong can have dire consequences.
Currently, U.S. international withholding provisions can be found in Chapters 3 and 4 of the Internal Revenue Code. Chapter 3 contains the withholding provisions that are intended to approximate a foreign person’s U.S. federal income tax liability. Chapter 4, on the other hand, deals with withholding provisions put in place by the Foreign Accounts Tax Compliance Act of 2010 and is primarily aimed at obtaining information regarding account holders of foreign financial institutions and owners of certain foreign entities.
In this post, we’ll focus on Chapter 3 withholding, setting aside Chapter 4 for another time.
But first . . .
Why International Tax Withholding?
On December 21st of 2018, the Internal Revenue Service (hereinafter the “Service”) issued new administrative guidance in the form of Rev. Proc. 2019-08 governing expense deductions and depreciation measures in connection to real property as enacted by the 2017 Tax Cuts and Jobs Act, Pub. L. No. 115-97, (hereinafter the “TCJA”’). It should be duly recalled, the TCJA enacted the subsequent tax law amendments including, but not limited to:
- I. R.C. § 179 by modifying the definition of “Qualified Real Property” that may be eligible as I.R.C. § 179 property pursuant to I.R.C. § 179(d)(1);
- I. R.C. § 168 by requiring certain property held by an electing real property trade or business and reducing the recovery period under the Alternative Depreciation System (hereinafter “ADS”) from 40 years to 30 years for commercial residential real estate property; and
- I. R.C. § 168 by requiring certain property held by an electing farming business to be depreciated under the ADS.
Last week, we issued the National Taxpayer Advocate’s annual report to Congress. As some of you probably noticed, we also issued the first-ever edition of the National Taxpayer Advocate “Purple Book.” In this week’s blog, I will explain why we developed the Purple Book and what it’s intended to accomplish.
Section 7803(c)(2)(B) of the Internal Revenue Code requires the National Taxpayer Advocate to issue an annual report to Congress that, among other things, proposes legislative recommendations to resolve systemic taxpayer problems. Read More
The new Tax Cuts and Jobs Act (TCJA) amends Internal Revenue Code Section 165further restricting our ability as individual taxpayers to write off CASUALTY LOSSES going forward solely to ‘disaster areas’ as declared by the POTUS.
Say whaaaat ?!?!?!?!?!?!?!?
Effective immediately this new restriction detailed in the US Tax Code WILL HARM ANYONE who falls victim to any tragedy that does not rise to a less than fully clear standard set by our beloved Twitter-In-Chief, aka #StableGenius (presently ‘trending’). Read More
The Senate Finance Committee has posted its 515 pages of new Internal Revenue Code language for a vote within 10 days. Relevant text passages for base erosion and profit shifting are excerpted below.
Everyday people misinterpret the tax code. It does not matter if you are a bookkeeper, accountant, unlicensed tax practitioner, Enrolled Agent, CPA, tax attorney, or even a Tax Court Judge, the tax code is complicated and confusing and many of us struggle understanding it, much less applying it in practicality.
The advent of the OECD Common Reporting Standard (CRS) has illuminated the issue of tax residency and the desire of people to become tax residents of more tax favorable jurisdictions. It has become critically important for people to understand what is meant by tax residency. It is important that people understand how tax residency is determined and the questions that must be asked in determining tax residence. Tax residency is NOT necessarily determined by physical presence.
Justin Fundalinski of Jim Saulnier & Associates, who I met while volunteering time for the betterment of the Financial Planning Association, asked me a procedural question about a fascinating situation he encountered regarding depreciation and disposition of residential rental real estate, causing pause. Tax questions that cause me to pause are the spice of life.
The Treasury Inspector General for Tax Administration (TIGTA) issued a report concluding that the IRS’s lax enforcement of backup withholding requirements is potentially causing billions of dollars in lost revenue (TIGTA Rep’t No. 2016-40-078).
The United States has many tax treaties with many nations. As a general principle the “savings clause” prevents Americans abroad from having the benefit of treaty provisions. That said, there are situations where a U.S. citizen abroad can benefit from the specific provisions of a specific treaty.
This post is a continuation to my recent post: “The Internal Revenue Code does not explicitly define “citizen”, “citizenship” or require “citizenship-based taxation“.
It is widely understood that the United States Internal Revenue Code requires that “U.S. citizens” are subject to U.S. taxation wherever they may live in the world. Although this is true, the Internal Revenue Code:
- Does NOT explicitly say that U.S. citizens are subject to U.S. taxation on their world income wherever they reside; and
- Does NOT explicitly define the term “citizen” or “U.S. citizen”. (This contrasts with the the terms: “U.S. Person”, “Permanent Resident”, “Substantial presence”, etc. that ARE explicitly defined in the Internal Revenue Code.) This means that the starting point for the definition of “U.S. citizen” is in the 14th Amendment of the Constitution and the United States Immigration and Nationality Act.
Some thoughts on each of these points…