Tomorrow’s the big day! Will there be something for us in tomorrow’s Ways & Means Committee bill? Lots of hints suggest something is there. Most seem to expect a shift to territorial taxation for individuals. That’s a great start! There are still likely to be lots of issues remaining and this comment from the Isaac Brock Society lays it out.
This is not meant to be negative in any way. However, to expect that suddenly ALL of our issues will simply disappear is extremely unlikely. Better to have a reasonable expectation to offset disappointment! But, who knows? Tomorrow will tell….
November 1, 2017 at 9:26 am
I’m sorry, but anything that truly makes life easier for US persons abroad is fine by me. I have been skeptical of TTFI, and dream of true simple RBT. But frankly, at this point, if the US says what you do abroad stays abroad, I’ll take it.
I wonder if TTFI would do away with FBARs. After all, if they don’t need to look at your income abroad, they don’t need to look at your accounts abroad. Well, I know that’s not true — they want to make sure people aren’t spiriting funds abroad to hide them there.
Fred (IMHO) they will NEVER get rid of FBAR. The FBAR statute in its purest form requires any person who enters the USA on business to report his/her foreign bank accounts. The original purpose of FBAR was not primarily about taxation. Treasury has considered getting rid of FBAR for Americans abroad and declined to do so. Recent events make it clear that FBAR is an effective tool of intimidation … Mr. FBAR embodies what it means to be an American.
A move to “territorial taxation” (what income is subject to U.S. taxation) has nothing to do with (1) the definition of “tax resident” (what persons are subject to the U.S. tax system) and (2) the FBAR requirements found in Title 31.
It follows from this that a move to “territorial taxation” (absent further legislative change) would in no way affect:
– FBAR rules
– the FATCA IGAs (which are based on the U.S. definition of “tax resident”)
– Chapter 4 of the IRC (Sections 1471 – 1474 which are FATCA)
– the requirement to file a tax return and other information returns
– the draconian “Exit Tax” rules
– gift tax rules
– estate tax rules (unless the estate tax is abolished)
and much more.
ONLY a move to RBT can affect the above …
Of course a move to “territorial taxation” is helpful to Americans abroad. But, (without additional changes) it is only a beginning.
What a move to “territorial taxation” would probably achieve is, that foreign source income would not be subject to U.S. taxation. I would think (but wouldn’t count on) that territorial taxation would lead to the elimination of certain information return requirements: 8938 and 8621 (which have already been eliminated for Green Card holders who make a treaty election).
But, these are just some thoughts. Who knows what the final product will look like? It’s possible to move to “territorial taxation” for individuals and retain A LOT of the pain for Americans abroad. On the other hand, a lot of the pain could be removed.
Neither RO nor ACA has proposed the elimination of CBT. The RO proposal makes CBT more tolerable for Americans abroad. The ACA proposal reinforces CBT, but allows a “buy out” for specified individuals (and is ultimately better for those who can take advantage of it).
DA has yet to make a specific proposal. But, in the DA worldview, CBT is essential to ensure that a small group of people don’t escape paying their “fair share”. For this reason, DA does NOT really support RBT – time for the loyal Democrats to stop drinking the “Kool Aid”.
The ONLY proposals for RBT are found in the some of the individual submissions to House Ways and Means (2013) and Senate Finance (2015).
But on the other hand: We don’t know what the proposed legislation will look like. It could incorporate various suggestions from various proposals and could actually be RBT. But, given the fact that there has been no organized support of RBT, I think this is unlikely.
Our big news broke yesterday and in spite of the fact it is not actually confirmed, many are
counting on this to become reality. Discussions are covering quite a range of issues/reactions;
2 comments from the Isaac Brock Society deserve a post of their own.
On October 26, 2017 at 6:25 am USCitizenAbroad says says
The title of the article (presumably) comes from the Financial Times authors and NOT from Rep Brady. It’s very important to stay supportive of the main message and not be distracted by small aspects that one doesn’t like.
The White House does not write the legislation. Unless the White House actively opposes changes for the taxation of Americans abroad, it’s response is not as important as the response of Congressional tax writing committees.
When you read the complete article you will see it has been reported that a change in tax policy for Americans Abroad appears to be supported (or at least not opposed by):
1. Mark Mazur of Obama Treasury fame
2. American Chamber of Commerce
3. It appears that Brady is saying that the lawmakers supporting that area of the tax code have also made the change for RBT (which suggests that the 2013 and 2015 submissions have done their work).
4. The White House sees no problem with it (maybe)
5. RO is mentioned as having brought the signatures to the White House
Appears that the collective work of a lot of people/groups, over a period of years, may be paying off. I think that the most significant support (from the perspective of change) may be from Homelanders: the American Chamber of Commerce and perhaps Mark Mazur.
Assuming the truth of this article, the biggest hurdle has been crossed. Congress is acknowledging and considering the issue (I suspect that this may already have been written into the draft legislation).
Considering that the effects of CBT cannot be understood by those who have never lived it, this is a tremendous achievement – which reflects the work of large numbers of people (and organizations) since 2011.
It’s vitally important that those large number of people and organizations, come together in support of change.
What unites all people affected by this issue (the end of “place of birth” taxation) is far more important than the specific aspects of what divides them (RBT vs. Territorial, etc.).
On October 26, 2017 at 7:39 am USCitizenAbroad says says
My worry is that any advantageous changes made to the tax code now could just as easily be undone when the next tax reform comes along. It is nerve-wracking not knowing where you stand and what to expect in respect to year-to-year filing obligations. What US person can possibly live a normal life abroad with that uncertainty hanging over them? I just reliquished my citizenship in August this year and the feeling of relief is enormous. Even if these tax reforms pass, I’m glad I’ll never have to waste another thought on whether I am compliant with the US/IRS in every conceivable way.
Those who have lived with the US/Obama/FATCA/FBAR/ Condor enforced assault on Americans abroad since 2009 (this is when the rollout began) would agree with you. Interestingly, this experience has put people to some hard thinking of what U.S. citizenship is really worth. For those who have another “First World Passport”, U.S. citizenship is clearly more of a liability than a benefit.
Yes, I think it makes a lot of sense for those who can easily renounce to renounce. Good decision.
From a practical perspective, the people most affected by this are those who have been U.S. tax compliant. What has become clear is that the only Americans who can live outside the United States are those who do NOT file U.S. taxes. Filing U.S. taxes is (whether known at the time or not) always the first step toward renunciation. It’s not the taxes, it’s not even the reporting. It’s that U.S. tax compliance means that one cannot integrate into the retirement and financial planning programs of other countries. And then (as you point out) there is the constant fear and anxiety.
Actually, U.S. citizenship-based taxation is okay, except for the following four points:
1. Totally Unjust: It’s extremely unjust. Why should people be taxed just based on “place of birth”:?
2. Completely incomprehensible: It’s so complicated that Americans abroad can’t understand what is required of them. For example, when it comes to the forms, there is a lack of agreement in the tax compliance community.
3. Compliance is impossible: Even it U.S. tax compliance for Americans abroad could be understood, it is basically impossible to comply with.
4. Escape is impossible: And finally: Even though it’s unjust, incomprehensible and impossible to comply with, there is no way to to escape without paying lots of fees and in the case of many a a Nazi and Soviet style “Exit Tax”. (The U.S. “Exit Taxes” are far more comprehensive than any Exit Tax imposed by any other country.)
But, other than those four things, U.S. “citizenship-based taxation” really isn’t so bad!
OCTOBER 24, 2017 FATCA IGA legislation/FATCA litigation update.
Canadian (Alliance for the Defense of Canadian Sovereignty [ADCS] is the “client”) FATCA IGA legislation lawsuit:
We are suing (since 2014) the Government of Canada (specifically Justin Trudeau’s Attorney General and Revenue Minister), in Federal Court for rounding up Canadians having a U.S. taint and turning them over to a foreign government. We argue that this violates Canada’s sovereignty as an independent nation and its Charter of Rights that is meant to protect all Canadians.
As to next steps, it now appears likely that most, if not all, of our brave lay witnesses, who provided written affidavits demonstrating harm, will NOT be examined by the Government lawyers. This is good news as it means that we will get to trial “sooner”. We do expect, however, that our expert witnesses will be cross-examined by Government next.
We have not yet received all of Government’s affidavits (e.g., from their experts). When we do, our legal team will need to decide whether they need to cross examine any of the affiants. We are moving forward but I am sorry but I cannot give you a time frame on this.
It is the “job” of the Case Management Judge, who supervises our case, to keep our litigation “moving”.
U.S. Republicans Overseas (RO, the client) FATCA, IGA, and FBAR lawsuit:
Mark Crawford, Senator Rand Paul, Roger Johnson, Daniel Kuettel, Stephen Kish, Donna-Lane Nelson, and Marc Zell are Plaintiffs, Republicans Overseas is the client. The lawsuit is in the U.S. Court of Appeals for the Sixth Circuit.
From the petition: “This case challenges FATCA, the IGAs unilaterally negotiated by the U.S. Department of the Treasury (“Treasury Department”) to supplant FATCA in signatory countries, and the Report of Foreign Bank and Financial Accounts (“FBAR”) ad- ministered by the U.S. Financial Crimes Enforcement Network. These laws and agreements impose unique and discriminatory burdens on U.S. citizens living and working abroad.”
U.S. Government lawyers have been arguing, so far successfully, that none of the Plaintiffs have the necessary “standing” to go to trial. The RO attorney however, argues in part that a “certain” threat of harm/prosecution is not necessary, but that a “credible” threat of prosecution should suffice for standing.
On August 30, 2017, Plaintiffs filed a petition for rehearing to the 6th Circuit Court of Appeals, arguing that the original panel’s Opinion conflicted with two decisions of the United States Supreme Court. Plaintiffs asked that the original panel reconsider the case under correct standards, and absent such action by the original panel, we asked that the full Court consider the case en banc to establish and apply standing rules compliant with existing Supreme Court decisions.
The 6th Circuit has now denied rehearing. Plaintiffs’ next step will be to file (which they will) a certiorari petition to the United States Supreme Court, asking them to review the decision of the lower court on standing. This petition is due on Monday, December 25, 2017.
— I mention the U.S. negative court decisions on Plaintiff standing as I personally suspect that this general issue will be brought up by Government attorneys in the Canadian FATCA IGA legislation lawsuit — Mr. Trudeau’s Ministers arguing that there has been no “FATCA harm” caused to any Canadian. I personally dispute this as Government admits that the Canadian FATCA IGA legislation has directly resulted in over 100,000 Canadians (now up to 500,000?) being turned over to a foreign country — a clear harm that is a Charter and Constitutional violation.
Alliance for the Defeat of Citizenship Taxation (ADCT) litigation efforts in United States:
An aim of ADCT is to defeat by litigation in U.S. court citizenship-based taxation and related laws that we believe, in part, violate the U.S. Constitution. ADCT is not moving forward with any lawsuit in U.S. Court until the US tax reform legislation is passed by Congress (probably in 2018) and our legal claims can be clarified in light of that legislation (or absence of legislation) and established at that time as being reasonable to pursue.
8 DAYS LEFT TO SPEND JUST ONE MINUTE OF YOUR TIME TO SEND TTFI PETITION TO U.S. CONGRESS AND MAKE A CHANGE
Having renounced, I cannot be a Republican, but I do support the effort of hardworking Republicans Overseas (RO) to end citizenship-based taxation and establish TTFI (territorial taxation for individuals).
See below the 10/10/2017 letter emailed to me from RO’s Michael DeSombre.
— The key time sensitive point of this post is that although our letters and petitions (1744) have already been delivered and discussed with White House and some legislative staff, WE ASK FOR YOUR HELP IN OBTAINING EVEN MORE (at least 5000 total) PETITIONS — TO BE DELIVERED DIRECTLY TO CONGRESS BY OCTOBER 22, 2017.
Please take one minute to fill out the petition HERE.
The letter from RO:
“One of the most important items discussed [at the White House meeting] was Republican Overseas’ political strategy for having TTFI included in tax reform. These discussions provided significant positive feedback and insight. With this new information, RO will tailor its lobbying strategy going forward to maximize our chances of ending citizenship based taxation.
The three most important meetings with regards to ending CBT were with Samantha Zager, White House Associate Political Director, and with Matt Stross, Legislative Counsel to Congressman George Holding (North Carolina), and Congressman David Schweikert, a key member on the House Ways and Means Committee.
Ms. Zager was impressed with the letters and the volume of petitions. The White House supports our grassroot efforts to reach out to Congress and to lobby for the inclusion of TTFI. Ms. Zager will help to facilitate meetings with individual members in both the White House and Congress who can help with TTFI inclusion.
While we have White House support, only Congress makes law. We need to ensure that any tax reform bill sent to the President includes TTFI. Congress needs to hear from overseas Americans directly.
What you probably want to know now is: “Have we done it? Is CBT a thing of the past? Is this double taxation nightmare over?” Unfortunately, CBT is not gone yet, but we are definitely in the process of consigning CBT to history.
The next step is to take our fight to Congress.
We are setting up meetings with key members of the House Ways and Means Committee and the Senate Finance Committee on October 23-25, 2017. Republicans Overseas has three goals for this second phase:
— Deliver a petition requesting the inclusion of TTFI in the tax reform package with 6400 signatures from overseas Americans. Our petition campaign will continue until October 22, 2017 in order to gather the necessary signatures.
— Deliver 10-20 letters that will be included as testimony into the Congressional hearings on tax reform.
— Meet with key people who are drafting the tax reform package and ensure that they have heard your voices and understand that TTFI tax reform will benefit America as well as benefiting overseas Americans.
We need your help! Here is what you can do to support TTFI:
— Please sign the petition if you haven’t already done so. I assume all of you have already done so, but if not, please do so right away. The campaign will run until October 22, 2017, and we have a new landing page for the petition. We have your signature if you have already signed—no need to sign again.
— Please go out again to your mailing list or friends and ensure they have all signed the petition. -Ensure you hit both Democrats and Republicans.
— Become a paid member (e.g., Associate level) of Republicans Overseas HERE. RO is entirely self-funded, and your membership fees will be used to continue the legal and political battle against FATCA as well as to fund the political efforts to end citizenship based taxation.
Thank you for your ongoing support! We can’t do it without you. We will continue to fight for the end of citizenship based taxation.
FYI -01 OCT 2017 I submitted my letter 1 hour late/on Oct 1 and it was accepted. Please keep them coming
In the last few weeks there has been a plethora of posts, comments and articles about tax reform, and whether or not the issues of non-resident Americans have been addressed. There have also been calls for letter-writing campaigns; the response has been disappointing. Many reasons have been suggested as to why more have not contributed to this effort. The prevailing point of view seems to be that it won’t do any good, it’s pointless, etc. Nobody understands this feeling better than those who have spent countless hours working to promote change. Please think about that for one moment. Would it be acceptable for the visibly active people to just decide, “well, this isn’t doing any good so I will just not bother anymore.” The problem with this way of thinking is that it is based only upon an expected result. Of course anyone who is engaged in an effort wants to see their goals reached. But that is rarely what happens in life; anyone who is married or has children well knows the compromise required, the sacrifices that have to be made to make a household run, for children to thrive, for a family to function well in the world. Life is messy, random and confusing.
I think the value of this post lies in it’s recognition that this process is not perfect. It is not predictable down to the nth degree. It is not instant. It is definitely not easy. But without it, there cannot be a result that achieves change. THAT is why your letters are needed. They will pave the way for the shift to begin. There is no substitute for it no matter how well-written a submission is, how many hours someone puts in presenting meetings, etc. What is needed is your signature on a petition and a letter that Solomon and Michael can deliver to the White House on Tuesday. You can even just sign the pre-made letter-what counts here more than anything, is numbers. Crass? Maybe, but it is what it is. There is still time to sign the dotted line on these two items. Please help by doing these two simple things.
If you need inspiration, please read and digest the post below. If you came to the expat movement later, you may be unaware of all that has been done. The post speaks to what HAS been accomplished in the last 5 years and what must continue. Giving up on this hideous, painful and expensive situation is simply not an option. We have built a community, a grassroots movement which is making history. We will likely not see another opportunity like this one for a long time. It is so very important not only for our sakes but for our kids and our adopted countries. Please don’t take a back seat now.
I found a quote from J.R.R. Tolkien today which made me dream a little dream of anarchy. I’m sick to death of control, no matter who or what is the purveyor and/or enforcer of it.
“The most improper job of any man is bossing other men. Not one in a million is fit for it, and least of all those who seek the opportunity.”
We can’t just sit back and wish for freedom though. There may only be a slim chance of anything of significance to us coming out of US tax reform but if we don’t push our particular concerns forward in whatever manner is made available to us, slim becomes zero.
Solomon and Michael need petition signatures and letters. I hope they get enough in time.
The comments in this thread have reflected a diverse collection of views. The RO proposal has been severely criticized for various reasons (mostly revolving around the taxation of nonresident aliens). It’s true that the RO proposal has many flaws.
That said, I think it’s important to recognize that in broad terms, the RO proposal will change the impact of CBT as it currently stands. In that respect the proposal is at least a start and that start is described as “Territorial Taxation For Individuals”. It is possible (and I think advisable) to support the broad principle of changing CBT without necessarily agreeing with every aspect (or any aspect) of the specific RO proposal. Some of you may have read the most recent ACA proposal which does a good and interesting job of explaining what “territorial taxation” (borrowing from the language of the RO proposal) could mean for individuals. (Interestingly what “territorial taxation” COULD mean for individuals is what most of us think of as “residence-based taxation”.)
The Isaac Brock Society began in 2011. Since that time, the following things have happened or are happening. All this would have seemed to be nothing more than a fantasy in 2011.
– 2012 FATCA Forum in Toronto (transcripts & vidweos at this link) While naysayers wrote this off since it did not draw crowds, this meeting brought together a set of people whose influence has been enormous. It paved the way for the testimonies given at the Canadian FINA hearings-setting an example for others, spreading information in spite of the fact our politicians did not/would not listen.
All of these achievements (and believe each and every one of these things is a HUGE achievement) involved the tireless efforts OF A VERY SMALL GROUPS OF INDIVIDUALS. But, these SMALL GROUPS OF INDIVIDUALS RECEIVED THE WIND IN THEIR SAILS FROM A LARGER GROUP OF PEOPLE WHO SUPPORTED THESE INDIVIDUALS. This support can from encouragement. This support came from small individuals, who did small things, often by writing small letters (see for example: http://fatca.eu.pn). This support came from the willingness to do the small things that are necessary to make the big things possible!
I am not a fan of the U.S. Government. I am not a fan of their tax policies. I am not a fan of their abuse of Americans abroad. But, (for the most part) I don’t think the U.S. Government has been fully (or in some cases) even partially aware of the effects of the combination of their tax and reporting rules. (They don’t even understand these rules let alone how they impact Americans abroad).
A necessary condition to change these laws is to make those involved in Tax Reform:
1. Aware of what these laws are
2. How these laws actually impact Americans abroad
3. Aware that there is significant awareness and opposition to these laws.
On October 2 two members of RO have made it clear that they will be having direct interaction with those who can make a difference in tax reform. They are asking for your support in doing ONE THING. That ONE THING is to write and “support territorial taxation for individuals”. You don’t have to support their specific proposal to support “territorial taxation for individuals” (which in its most basic terms is a move away from CBT). The purpose of the exercise is to make it clear (awareness point 3) that the current tax policies are a problem. Without this awareness NOTHING is possible.
Even with the awareness, change will be difficult. Change will involved compromises. Change will be time consuming and frustrating. Unfortunately, that’s what the democratic process is about. You/we have lived with the problems of CBT. The lawmakers don’t even know that that CBT exists (let alone the problems). For RO to be able to personally deliver these letters could be a huge step in educating the lawmakers. It’s NOT that the lawmakers are supportive of CBT. The lawmakers don’t even know that CBT exists. On this point, think of Rep Connolly in the FATCA hearings where he said something to the effect that: “All countries tax their citizens” (obviously equating citizens with residents).
I am NOT defending the behavior of U.S. law makers or the administration (few have been more critical than I have been and continue to be). I am simply trying to argue that change will require education. Education will require engagement. Engagement requires personal interaction.
Your sending a letter and/or signing the petition will help RO achieve the personal interaction that they need to engage and educate. If you care about this issue at all, then you must participate.
I don’t believe that the mere fact of sending letters or signing petitions will make a difference. But, I do believe that WITHOUT YOUR EFFORTS and support that NO CHANGE IS POSSIBLE. Therefore, you are really deciding whether you want to act in a way that makes change possible or if you choose to act in a way that makes change not possible. It’s your choice. This is NOT about supporting a specific proposal. This is about behaving in a way that opens the door to discussion about change.
If it matters, I am not a Republican. I am not a Democrat. To the extent that I am political, I would be an independent. I am not primarily a U.S. citizen. So, these comments are not partisan. But, I am deeply committed to the struggle to getting these unjust laws changed. Furthermore, I believe that change can happen ONLY if all those affected create a united front in opposition to CBT. It is the opposition to CBT that unites ALL Americans abroad.
It’s very simple really. Where laws are made through a democratic process: If you don’t make your view known you can’t expect change.
Your participation may or may not make a difference. But, your NONPARTICIPATION will make a difference because it will ensure that no change will happen.
The lack of response to the request for letters makes it clear that Americans abroad are NOT willing to support this important move towards the abolition of CBT. Why not? You don’t have to support every aspect of the RO proposal to support this RO initiative.
This is not a political issue! It is a human rights issue that can be remedied through the political process!
I wrote this introduction for a program to be presented to tax professionals outside of North America back in March 2017. It was only meant as a general guide for those who might have been completely unaware of our grassroots movement as well as several attempts made by Congress to study our situation. It was not meant to be a complete discussion of the entire history of all our efforts but simply to inform them that we exist. To stimulate them to be more than paper-pushers and blind parrots for the IRS.
I still have a hard time believing effective tax reform for our dilemma will happen. Partially because awareness is not “new.” Since Dave Camp and the W&M call for submissions 4 years ago, there have been no less than 9 different studies, drafts etc and up to now, no real progress, no change. In addition, the general dysfunction of Congress (they can’t get health reform right) and the Trump Administration continues. It is now nearly September. There will be a huge effort needed to deal with Hurricane Harvey.
Will we or won’t we see tax reform?
Can this situation be tolerated as is for years to come?
What do YOU think?
The recent history of tax reform in the United States, as pertaining to American citizens abroad is quite a back-and-forth sort of acknowledgement of the issues with recommendations followed by a complete lack of concrete action to address the problems. A short introduction of the intervening factors is truly necessary in order to evaluate the effectiveness of any tax reform for this unique population of “Americans.”
Once the Swiss bank debacle resulted in successful litigation by the Department of Justice, Americans abroad were swept up in the attempts to gain access to all offshore accounts. The IRS created and tried to steer everyone into the Overseas Voluntary Disclosure Programs/Initiative. (The current 2014 OVDP is derived from the 2012 program). The tax compliance community and the media pushed this avenue of action in spite of the fact that the program was designed for criminals, has no legal basis, and should never have included those who had foreign accounts in order to function where they live. It is despicable that many who had lost U.S. citizenship decades ago and those who were “Accidental Americans,” were told they must enter this “amnesty” program.
Due to serious issues with OVDP, expats became very vocal about their concerns of exhorbitant penalties. Then-US Ambassador to Canada Jacobson had promised relief. Instead, the IRS issued Fact Statement of 2011-13. It outlined how non-compliant expats could file and claim “reasonable cause” for not filing FBARs. (I filed this way with no issues). Some in the compliance community and some expats were disappointed as there was “nothing new” about FS 2011-13. It was simply the way things had always been done. Then Streamlined Program, which appeared on September 1, 2012 was fraught with difficulties. The newer version of Streamlined Streamlined allows filing with strong expectation of no penalties.Based upon direct statements by IRS Commissioner John Koskinen and and then-Acting Assistant Attorney General Caroline Ciraolo, there are some concerns that as more become aware of the requirement to file, the Streamlined Program will be discontinued. This may or may not be a scare tactic, after all, what is required by law is simply to file and reasonable cause (which is what Streamlined uses to mitigate penalties) has always been available to abate penalties. It will likely be impossible to undo the level of fear created by the IRS, the tax compliance community and the media should it become necessary for people to file outside of Streamlined.
The signing of the FATCA IGAs followed by implementing legislation passed in a majority of the world’s countries exacerbated the situation for expatriates. The U.S. government including the IRS and CI departments of Treasury Department, the State Department, the House Ways and Means Committee and the Senate Finance Committee are well aware of these problems. There is now a great deal of pressure on the current Congress to include some relief for Americans living outside the United States. It must take into account an incredibly complicated interplay of U.S. citizenship and taxation law to try and mold into meaningful reform. In addition, non-resident Americans experience different tax laws overall, due to their residence in other countries. Regardless of the U.S. government’s assertion that the tax code “treats all Americans the same” in reality, this cannot be true and is not true.
RESPONSES/DEVELOPMENTS WITHIN THE EXPATRIATE COMMUNITY
Historically, American Citizens Abroad is credited as the primary group lobbying for these non-resident citizens. Of special note are the late Roger Conklin & his testimony before Ways and Means and Jacqueline Bunion and her many excellent submissions & videos.Democrats Abroad , FAWCO and AARO are sister groups located in Europe; all support FATCA as well as a move to Residence-Based-Taxation. A main emphasis has been on the “Same Country Exception”,which would allow tax-compliant Americans abroad to be exempt from FATCA reporting for accounts located in the country they reside in. The Treasury Department recently denied SCE. These measures would have protected approximately 1 million tax-compliant expats from FATCA but would not address the more complicated problems of the other approximately 7 million living abroad.
Republicans Overseas created a set of Resolutions which they intended to be included in the Party Platform. They are the primary backers of the FATCA Legal Action group, funding the “Bopp Lawsuit” which is currently preparing for an appeal (and has since been denied).
After the Isaac Brock Society insistence upon independent research concerning compliance and renunciation, the renunciation numbers began to rise as more and more expatriates realized the true financial risk of remaining American without a matching effort of the U.S. (who cannot seem to find a way to apply procedures that enable discovery of, identification and collection from Homelanders with foreign accounts for the purpose of evading tax versus Americans outside the United States who have legitimate foreign accounts for the purpose of living). The huge amount of non-compliance of this second group, coming to light in 2009 with a much larger wave in 2011, simply speaks to the lack of due diligence on the part of the American government, to educate this population as to their tax obligations and more importantly, their reporting obligations. It is no small thing that FBAR was unenforced for 40 years. Perhaps longer for “regular” filing. There is no excuse for the threatening and punitive campaign pursued by the IRS for this second group.
In addition to the efforts of expatriates, there has been consistent strong support from the Taxpayer Advocate, Nina Olson. She has repeatedly brought attention to the problems in the Annual Reports to Congress .
On May 9, 2013 a paper Senate Finance Committee Staff Tax Reform Options for Discussion was released. This report suggested non-resident Americans could be taxed the same as non-resident aliens; that an exit tax could be implemented and advocated repeal of the FEIE.
Coming quite late in the tenure of the 113th Congress, was The Tax Reform Act of 2014. Regrettably, none of the issues of expats were addressed in this legislation (which failed to pass). For an interesting discussion of the approaches considered that do not necessarily address expat issues see: here & here .
In December 2014, a very favorable report was released by the Republican Staff Committee on Finance United States Senate. A primary consideration was to tax non-resident citizens only on U.S. sources.
On February 2, 2015 the Obama Administration tried to address some of the problems involved for “Accidental Americans. In the “General Explanations of the Administration’s Fiscal Year 2016 Revenue Proposals”also called the “Green Book,” it was proposed that certain dual citizens could renounce their US citizenship without the fear of penalization, particularly with regard to being“covered” and liable for the Exit Tax. While not tax reform per sé, it represents awareness on the part of the government. It also, for better or worse, raised the hopes of expats everywhere that something was going to be done. The same proposal was put forward a year later, adjusted for changed dates.
On March 11, 2015, the Senate Finance Committee established five working groups to address reform one of which was the International Group chaired by Senator Rob Portman (R-Ohio) & Senator Chuck Schumer (D-N.Y.). Expatriate submissions are < href=http://fatca.eu.pn/ ). The committee report was released in July 2015. It contained a
mere two paragraphs with no specific recommendations.
In June 2016, Republican members of the Ways & Means Committee created a working paper “The Better Way.” It is expected that this will lay the foundation for new legislation. One aspect of this paper is the intent of the GOP to repeal the estate tax and the GST but does not address the gift tax. A concern is that an individual could gift an asset to someone in a lower bracket before a taxable event and have it returned once the income been taxed. It also does not say that a capital gains tax should apply at death (due to no estate tax). The blueprint fails to mention eliminating the step-up basis to FMV that is now available at death nor is there a carry-over provision that would make tax due once an heir sells the property. Whether this is what the Committee intends is not clear.
Unfortunately for expats, this paper has only one sentence pertaining to expats which does not tend to suggest that many of the much-discussed possibilities are likely to find way into actual tax reform legislation
SOME DESCRIPTIONS FROM TAX REFORM PROPOSALS OUTLINING MAJOR NEEDS OF AMERICANS ABROAD
3. U.S. citizens residing abroad – Numerous comments were received that relate to the taxation of U.S. citizens living abroad. These comments include the following recommendations:
Repeal or revise the Foreign Account Tax Compliance Act (“FATCA”);
Provide an unlimited foreign-earned income exclusion for permanent residents of a foreign country;
Expand the foreign-earned income exclusion to include passive as well as earned income;
Repeal the special rules on passive foreign investment companies;
Repeal the provisions imposing tax responsibilities on those who expatriate by relinquishing U.S. citizenship or residency, including the ban on issuance of visas to expatriates who avoid payment of taxes;
Adoption of residence-based taxation (see below);
Residence-based taxation should not include a provision for imposing 30 percent withholding tax on U.S.-source pensions;
Any move to residence-based taxation implies the need to eliminate the savings clause from new and existing tax treaties;
Creation of a bipartisan commission responsible for studying the impact of Federal laws and policies on U.S. citizens living abroad, especially those provisions and administrative programs that require disclosure of financial information. The Commission would report to Congress with recommendations and submit a follow-up report on any remedial administrative response to the report.
The Working Group also received technical comments related to the computation of income tax when a portion of income is excluded under the foreign-earned income exclusion. Adoption of residence-based taxation. Many comments proposed adopting a residence-based tax system to treat certain U.S. citizens domiciled abroad in the same manner as foreign persons, applying withholding taxes to U.S.-source income earned by such U.S. citizens and taxing effectively connected income as under the present law rules. The proponents of a residence-based tax system suggest the following elements:
U.S. citizens that meet certain requirements could continue to be taxed under the rules of present law or could elect into residence-based taxation.
1. Provide an election to citizens who are long-term nonresident citizens to be taxed as nonresident aliens if they meet certain conditions (Schneider, “The End of Taxation Without End: A New Tax Regime for U.S. Expatriates,” 2013; similar to the law in Canada)
a. Require a minimum period of residence abroad
b. Impose an exit tax on electing taxpayers where deemed to sell all assets at the time of election
2. Repeal the foreign-earned income exclusion (H.R.2 (108th Congress), Jobs and Growth Tax Relief and Reconciliation Act of 2003, sponsored by Rep. Thomas)
Whereas, In 2010 Congress passed the Foreign Account Tax Compliance Act (FATCA) in an effort to catch tax evaders; but this Act has inadvertently ensnared every United States Citizen living overseas due to its overzealous invasion of privacy and punitive taxation and enforcement; Whereas, The United States is one of the only two countries in the world that taxes foreign income of its citizens living abroad who already pay taxes where they reside; Whereas, FATCA creates enormous reporting burdens for American taxpayers living overseas and puts them a great risk for even the slightest innocent mistake; Whereas, FATCA requires foreign financial institutions, to enter into an agreement with the Internal Revenue Service (IRS) to identify their U.S. account holders and to disclose the account holders’ names, taxpayer IDs, addresses, and the accounts’ balances, receipts, and withdrawals (sometimes in violation of foreign privacy laws); Whereas, FATCA has resulted in Americans living and working overseas finding themselves, and their companies, shut out from access to banks, insurance loans and investment opportunities, as many foreign financial services providers have concluded that doing business with Americans is simply too much trouble thus decreasing America’s competitiveness overseas; Whereas, FATCA’s primary mechanism for enforcing compliance of foreign financial institutions is a punitive withholding levy on U.S. assets, creating a strong incentive for foreign financial institutions to divest (or not invest) in U.S. assets, resulting in capital flight, hurting the U.S. economy; Whereas, Time magazine reported a sevenfold increase in Americans renouncing U.S. citizenship between 2008 and 2011 and has attributed this at least in part to FATCA and another surge in renunciations in 2013 to record levels has been reported in the news media, with FATCA cited as a factor in the decision of many of the renunciants; and Whereas, FATCA forces Americans living abroad to make a horribly unfair choice between renouncing their citizenship and abandoning their businesses abroad because foreign financial institutions won’t handle their transactions or accounts; therefore be it RESOLVED, The Republican National Committee hereby presents this Resolution to each Member of Congress and urges the U.S. Congress to repeal FATCA and to allow those U.S. citizens who renounced their citizenship under FATCA to regain their citizenship; RESOLVED, The Republican National Committee urges the IRS to cease inflicting damage on the United States and on the global financial system in an attempt to vindicate FATCA’s misguided approach to tax enforcement; RESOLVED, The Republican National Committee by presenting this Resolution to each Member of Congress urges them to increase the competitiveness of Americans overseas and remove inappropriate invasions of American citizens’ privacy; and RESOLVED, The Republican National Committee hereby presents this Resolution to each Ambassador and Representative from every foreign nation and warns them that the privacy rights of their own citizens are at risk due to reciprocal agreements.
Comprehensive Tax Reform for 2015 and Beyond
By Republican Staff Committee on Finance United States Senate
The United States needs to rethink its taxing rules for nonresident U.S. citizens.
If a U.S. citizen is living and working abroad with some permanence, and the primary nexus the individual has to the United States is citizenship, we think it makes sense to tax the individual, as a general rule, only on income from U.S. sources.
A test would need to be developed to determine at what point a U.S. citizen is considered a nonresident of the United States and then at what point the U.S. citizen is considered to be a resident again.
Some factors that may be considered include:
*the permanence and purpose of the stay abroad,
*residential ties to the United States,
*residential ties to the foreign country, and
*regularity and length of visits to the United States.
The test could be adopted, in some part, from the existing rules that are used to determine residency of alien individuals, i.e., those individuals who are not U.S citizens.
In addition, an exit tax could be applied when the U.S. citizen is considered a nonresident and no longer subject to U.S. worldwide taxing jurisdiction
Proposal Under the proposal, an individual will not be subject to tax as a U.S. citizen and will not be a covered expatriate subject to the mark-to-market exit tax under section 877A if the individual:
1. became at birth a citizen of the United States and a citizen of another country,
2. at all times, up to and including the individual’s expatriation date, has been a citizen of a country other than the United States,
3. has not been a resident of the United States (as defined in section 7701(b)) since attaining age 18½,
4. has never held a U.S. passport or has held a U.S. passport for the sole purpose of departing from the United States in compliance with 22 CFR §53.1,
5. relinquishes his or her U.S. citizenship within two years after the later of January 1, 2016, or the date on which the individual learns that he or she is a U.S. citizen, and
6. certifies under penalty of perjury his or her compliance with all U.S. Federal tax obligations that would have applied during the five years preceding the year of expatriation if the individual had been a nonresident alien during that period.
F. Overseas Americans
According to working group submissions, there are currently 7.6 million American citizens living outside of the United States. Of the 347 submissions made to the international working
group, nearly three-quarters dealt with the international taxation of individuals, mainly focusing on citizenship-based taxation, the Foreign Account Tax Compliance Act (FATCA), and the Report of Foreign Bank and Financial Accounts (FBAR). While the co-chairs were not able to produce a comprehensive plan to overhaul the taxation of individual Americans living overseas within the time-constraints placed on the working group, the co-chairs urge the Chairman and Ranking Member to carefully consider the concerns articulated in the submissions moving forward.
The Foreign Account Tax Compliance Act (FATCA) and the Foreign Bank and Asset Reporting Requirements result in government’s warrantless seizure of personal financial information without reasonable suspicion or probable cause. Americans overseas should enjoy the same rights as Americans residing in the United States, whose private financial information is not subject to disclosure to the government except as to interest earned. The requirement for all banks around the world to provide detailed information to the IRS about American account holders outside the United States has resulted in banks refusing service to them. Thus, FATCA not only allows “unreasonable search and seizures” but also threatens the ability of overseas Americans to lead normal lives. We call for its repeal and for a change to residency-based taxation for U.S. citizens overseas.
In addition to these important reforms that will create a modern international tax system for businesses, the Committee on Ways and Means will consider the appropriate treatment of individuals living and working abroad in today’s globally integrated economy
The “imposition of direct taxation” on the “citizen/residents of other nations” evolved from “citizenship-based taxation”. “Citizenship-based taxation” was originally conceived as a “punishment” for those who attempted to leave the United States and avoid the Civil War. I repeat, it’s origins are rooted in PUNISHMENT and PENALTY and not as sound tax policy.
In 1924, the U.S. Supreme Court in Cook v. Tait upheld the U.S. practice of “citizenship-based taxation”. This means only that (assuming the validity of the decision almost 100 years later), the U.S. has the right to impose “punishment and penalty” (Justice McKenna actually said that “government by its very nature benefits its citizens”) in the form of “citizenship-based taxation”. This does NOT mean it’s a good idea to do so. Cook v. Tait should be considered in terms of (1) the evolution of citizenship and (2) the evolution of taxation.
The United States has (at least in theory) been imposing direct taxation on Americans abroad (who are mostly the citizen/residents of other
countries) for over 100 years. During this period, there has been no serious discussion about ending this unfair and destructive practice.
See the following article in the New York Times (from the Titanic era) – March 7, 1914.
“See no evil”: Few people even know about U.S.
“citizenship-based taxation”. What you can’t see you can’t know.
1. Almost NOBODY (including – some but not all – U.S. based tax
professionals) even knows that the U.S. imposes taxation based U.S.
citizenship (which is conferred by a U.S. place of birth”). It is simply unknown to the overwhelmingly majority of Americans (how could their country do something as stupid as this?). For a country where citizens are defined primarily as taxpayers (“taxation-based citizenship”), there is little attempt to educate the masses.
2. Citizenship-based taxation is NOT explicitly required anywhere in the Internal Revenue Code. It’s true. The Internal Revenue Code mandates taxing “individuals”
and taxing “nonresident aliens” (“nonresident aliens on U.S.
source income only). (This suggests that “nonresidents” are NOT required to pay tax to the USA.) It is ONLY through “Treasury regulation”, that “individual” is defined as “citizen or resident”. I kid you not. Read the Internal Revenue Code yourself.
3. Those who do know that the U.S. imposes taxation based on “citizenship” often, equate “citizenship” with “residency”. They think
“citizens are residents” and that “residents are citizens”
“All countries tax their citizens” when he really meant “All countries tax their residents”.
In other words, the U.S. population and Congress actually believe the United States has “residence-based taxation”! Well, everybody knows that “U.S. residents” are subject to U.S. taxation. But few know (and it would never occur to them), that U.S. citizens who establish residence in another country, are still required to pay taxes to the United States!
“Hear no evil”: Those who know about “citizenship-based taxation” don’t know how CBT actually operates – by subjecting people who live in a “foreign country” to the Internal Revenue Code – as though they live in the United States.
4. “Citizenship-based taxation” is discussed ONLY by academics. I have yet to see A SINGLE paper written by a U.S. based “academic” who understands or even mentions the “Alphabet Soup” list of problems faced by Americans abroad which include: FBAR, FATCA, CBT, PFIC, CFC and Forms 5471, 8621, 8938, 3520/3520A, etc. At most they have some “vague idea” that “citizenship” should include the requirement to pay U.S.
taxes. They do NOT discuss this issue in practical terms that hint at what it really means.
In other words: Those who know of or advocate citizenship-based taxation simply do not understand the problems that it causes.
5. Those who support or tolerate “citizenship-based taxation”, see the problem in terms of Americans leaving the United States (if they have the “wherewithall”) and NOT as Americans leaving the United States and then having becoming subject to BOTH the U.S. tax system and the tax system of their country of residence. In many cases they don’t even seem to understand that all countries require you to pay tax if you live there! In other words, they see this as a “mobility issue” and NOT as “trying to live your life issue outside the USA issue”.
6. “Expatriate taxation” is a narrow and highly specialized area of practice. It is complex and has a long “learning curve”. It is therefore not surprising that many U.S. based tax professionals do NOT understand its practical implications. Many of them do not have the skills to inform and advise Americans abroad.
“Speak no evil”: It is almost impossible to get anybody to “listen to” and “speak about” the problem. It is hard to get the attention of Congress
7. Those impacted by CBT (“Homelanders abroad” and the “citizen/residents” of other nations) do not have political representation in the United States. (Of course it is questionable whether Homeland Americans have political representation either. Such is the reality of a two-party system that dominates the political process.) For the most part, legislative change in the USA is accomplished ONLY through “lobbying” and “money”.
Bottom line – U.S. legislators fall into two
First, those who don’t know what CBT is – that the U.S.
is imposing taxation on “Homelanders abroad” and the “citizen/residents of other countries”; and
Second, those who are not “paid to care” whether the U.S. is imposing taxation on “Homelanders abroad” and the “citizen/residents of other countries”.
8. The U.S. political system makes it difficult to pass any law. This means that it is both hard to pass new laws and hard to get rid of old bad laws.
9. Congress and Treasury are completely indifferent to “Homelanders abroad” and the “citizen/residents” of other countries. (Indifference being one of the worst forms of abuse.) Therefore, when Congress makes a law or Treasury makes a regulation there is NO consideration given to the effects on persons outside the United States. This indifference would be reasonable if U.S. tax laws did NOT have “extra-territorial application”. But, the indifference is unreasonable when U.S. tax laws do have “extra-territorial application”.
10. The “tax compliance community” is uniquely positioned to advocate for the repeal of “citizenship-based taxation”. Yet it does not do so.
(The repeal of “citizenship-based taxation” would hurt their business
interests.) I am not aware of any tax professionals who have or are actively lobbying for (not even letters to House Ways and Means in 2013 and Senate Finance in 2015) for a move to “residence-based taxation”.
Perhaps “clients” should pressure their “tax professionals” to lobby (either individually and/or through their professional associations) for the repeal of U.S. “extra-territorial taxation”.
Is a Congressional change in the law really needed?
Why is the United States imposing full U.S. taxation on the Canadian incomes of Canadian citizens living in Canada?
The Internal Revenue Code mandates that ALL “individuals” , EXCEPT “non-resident aliens”, are subject to full taxation, on their WORLDWIDE income, under the Internal Revenue Code. The word “individuals” includes U.S. citizens regardless of where they live and regardless of whether they are citizens and residents of other countries where they also pay tax. This means that, by its plain terms, the United States imposes full taxation on the citizens and residents of other nations, because they are also (according to U.S. definitions) U.S. citizens. The United States is the only country in the world that has a definition of “tax residency that mandates full taxation based ONLY on citizenship.
How “U.S. citizenship” and U.S. “taxation” interact
Principle 1: The United States is one of the few countries in the world that confers citizenship based SOLELY on birth on its soil.
Principle 2: The United States is the ONLY country in the world that imposes full taxation ON THE WORLD INCOME of its citizens, REGARDLESS OF WHERE THE U.S. CITIZEN LIVES IN THE WORLD.
Bottom line: The United States is the ONLY country in the world that imposes full taxation, on WORLDWIDE income, based ONLY on the “place of birth”!
Therefore: What academics and government officials refer to as “citizenship-based taxation” (they really don’t understand its practical effects) is PRIMARILY “place of birth taxation” and therefore a convenient way to impose U.S.
taxation on the citizens and residents of other countries. As a blog devoted to “citizenship taxation” (noting the difference between the theory and reality) points out:
“A supporter of citizenship taxation is someone who THINKS about “citizenship taxation”. An opponent of citizenship taxation is anybody who has tried to LIVE under citizenship taxation.”
How did this happen? It certainly didn’t start this way!
Furthermore, as people become more and more mobile, it is not unusual for somebody to have been “Born In The USA” but live outside the USA.
Global mobility is now the rule, rather than the exception.
The evolution of U.S. taxation and the Internal Revenue Code
The Internal Revenue Code has become more and more complex and impacts more and more activities of daily life.
Because “U.S. citizens” (even though they are citizen/residents of other
countries) are subject to U.S. taxation, they have been tremendously impacted by the “creeping complexity” of the Internal Revenue Code (which applies equally to ALL Americans wherever they may live).
This “creeping complexity” has evolved slowly through the years. The problems have been exacerbated because Congress does NOT consider that when amending the Internal Revenue Code they are impacting the lives of tax paying residents of other nations (who happen to be U.S. citizens).
Congress is “indifferent” to the plight of Americans abroad (indifference being one of the worst forms of abuse).
Through the years, slowly and consistently …
The evolution of the Internal Revenue Code combined with ease of retaining U.S. citizenship has built a “fiscal prison” (legislative brick by legislative brick), in which to keep the tax paying residents of “OTHER NATIONS”, who just happen to have been born in the United States.
Tax Reform 2017
The United States is “making noises” about “tax reform”. Senator Orrin Hatch requested submissions from “steak stake holders” on what should be included in tax reform. He has clearly received (as did the Ways and Means Committee in 2013 and the Senate Finance Committee in 2015) many suggestions advocating the repeal of “citizenship-based taxation”.
THE SITE IS WIDELY READ BY TAX PROFESSIONALS AND WE SHOULD LET THEM KNOW WHAT WE THINK ABOUT THIS
by John Richardson
It’s tax reform season and Senator Orrin Hatch wants to hear from you (again).
As reported on the Isaac Brock Society and other digital resources for those impacted by U.S. taxes, you have until July 17, 2017 to tell Senator Hatch what you think needs to be changed in the Internal Revenue Code. After great deliberation, it occurred to me that people who either are (or are accused of being) U.S. citizens or Green Card holders living outside the United States, might want the USA to stop taxing them. After all, they already pay taxes to the countries where they reside. This is your opportunity to “Let your voices be heard” (well maybe).
Speaking of “tax reform”: Introducing Jackie Bugion
Jackie Bugnion is a U.S. citizen who has lived in Switzerland for many years. She has been a tireless advocate for “residence based taxation”. She worked with “American Citizens Abroad” for many years and has recently retired. She was recently honoured with the Eugene Abrams award by ACA – an event that was the subject of a post at the Isaac Brock Society – that described her many achievements (over a long career).
Jackie has returned with her 2017 submission to Senator Hatch.
Submission to Chairman Hatch’s request for tax reform proposals
Adopt residence-based taxation (RBT) for Americans resident overseas
The Senate Finance Committee and the House Ways and Means Committee have both cited the need to review the way that the United States taxes its citizens and green card holders who reside overseas. The current policy known as citizenship-based taxation (CBT) is increasingly called into question as it taxes Americans on their worldwide income irrespective of their residence, domestic or overseas. I am an American citizen who has resided overseas for 52 years, as my husband is a foreigner. I have personally observed the devastating consequences of CBT on Americans abroad and strongly urge Congress to adopt residence-based taxation (RBT).
What is RBT? Under RBT, the U.S. would tax its citizens and green card holders who reside abroad the same way that the U.S. currently taxes non-resident aliens, i.e. through taxation of U.S.-source income only. FDAP (Fixed, Determinable, Annual, Periodic) income would be taxed largely through withholding at source by the paying agent. Effectively connected U.S.-source earned income would be reported on Form 1040NR and taxed under U.S. income tax rules. Foreign-source income would not be taxable.
RBT would apply to all bona-fide overseas residents. RBT would be immediate and automatic, but would not be open to residents of Puerto Rico or to military and diplomatic personnel stationed abroad. As an obvious anti-abuse measure, RBT would not be available to residents of designated tax havens. RBT would not be compulsory; Americans abroad for a short period of time, such as academics on sabbatical, may opt to stay under CBT.
The rules for RBT are already in place as they apply to foreigners with U.S.-source income. Withholding taxes on FDAP U.S.-source income would lead to automatic, efficient tax collection. In fact, withholding tax at source would in certain circumstances shift taxation from foreign countries to the U.S.
Shifting from CBT to RBT would be close to tax revenue neutral. Analysis of the IRS 2555 statistics, relating to the foreign earned income exclusion reported by overseas Americans, shows that a significant share of wages and salaries of the highest income groups is U.S.-source, and hence would continue to be taxed by the U.S. under RBT. The top 1% income group account for more than 50% of all taxes paid. In addition, the U.S. today under CBT renounces most claim on tax liability on foreign earned income, by allowing foreign tax credits and the foreign earned income exclusion. These two factors and few minor ones, lead to a neutral tax revenue situation. Any possible difference between CBT and RBT would be utterly insignificant in the U.S. budget – less than 0.001% – so small that it could swing either way.
IRS enforcement costs under the current international tax system are disproportionate to revenue. The international tax forms create burdensome filing costs for taxpayers and create heavy administrative costs for the IRS; this is terribly inefficient when the vast majority of overseas taxpayers owe no U.S. tax.
Tax collected currently under CBT, other than that linked to U.S.-source income, comes from unacceptable instances of double taxation. Incompatibilities between the U.S. tax code and foreign tax systems lead to double taxation. The outrage of Boris Johnson, at the time Mayor of London, when the U.S. taxed the capital gain on the sale of his U.K. home illustrates this issue very well. There are numerous examples of differences between U.S. and foreign tax systems which penalize Americans abroad. To cite just a few:
IRS does not recognize foreign pension funds and therefore taxes all contributions; it treats income generated over the years as coming from a PFIC fund, guaranteeing a negative return.
U.S. legislates double taxation in the cases of the NIIT and the Additional Medicare Tax since neither allow foreign tax credits. This is particularly cynical since these taxes aim to finance U.S. medical care; Americans abroad pay into their foreign health programs and are excluded from the Affordable Care Act.
Some countries have a wealth tax on all net assets instead of a capital gains tax on securities investments. The U.S. taxes the capital gains, but does not allow foreign tax credits against this income.
Definitions of what is an income tax and what is a social security tax varies enormously from country to country, with onerous tax consequences for U.S. citizens abroad.
All OECD countries, except the U.S., have replaced sales taxes by VAT, which can range up to 20% of the price of goods and services purchased. The U.S. does not recognize VAT paid as compensation for the U.S. tax liability, even though it does accept deduction of U.S. state sales tax.
Entrepreneurs in countries without a totalization agreement are subject to double contributions to social security, in the foreign country and in the U.S.
Beyond the immediate issue of taxation, moving from CBT to RBT would have major advantages for Americans abroad, at essentially no cost or lost revenue to the U.S.:
CBT tax law and related FATCA asset and revenue reporting requirements amount to a bank lockout for Americans abroad. FATCA reporting rules imposed by the U.S. on foreign financial institutions, accompanied by draconian penalties for non-compliance, strongly discourage foreign banks from accepting American citizens as clients. In addition, the U.S. Patriot Act know-your-client requirements have effectively cut off Americans abroad from access to U.S. financial institutions. It is difficult to function without a bank account in today’s world.
FBAR and Form 8938 reporting requirements shut off employment and investment opportunities for Americans abroad. The FBAR requirement to report bank accounts with only signature authority eliminates jobs in financial positions. Foreign employers refuse to have their accounts reported to the United States, and such reporting is illegal in many countries. Form 8938 requires foreign companies in which an American holds 10% ownership to report this ownership to the IRS. This measure has shut out entrepreneurial and partnership opportunities for Americans overseas.
Consequently, the number of renunciations of U.S. citizenship is skyrocketing from a few hundred in 2008 to well over 5,000 in 2016. And this is just the tip of the iceberg. The blatant discrimination and unfair treatment of Americans abroad at the hand of their own government has created massive anger and frustration in the overseas community of more than 8 million Americans. The financial burden of compliance is far in excess of reporting requirements for U.S. residents and easily runs into the thousands of dollars, which is all the more ludicrous when the vast majority have no U.S. tax liability.
Adopting RBT meets three of the four tax reform objectives cited by Senator Hatch.
First, it provides relief to middle-class individuals and corrects major unfairness.
Second, it removes impediments and disincentives for savings and investments.
Third, it makes Americans abroad and therefore the United States more competitive in the global economy while preserving the tax base.
I thank you for your attention to the above.
This was the very first post at the Isaac Brock Society, published there on December 10, 2011 by the founder of Brock, Petros. At the time, there was outright terror in the expat community. Horror stories from the 2009 OVDP were coming out. Threats from Shulman (then IRS Commissioner), the media and primarily, the tax compliance industry were non-stop. Confusion and fear reigned and it was like being in a perpetual OMG moment……….
Over 5 years later there is little to suggest much has changed. It would take a major shift, such as passing tax reform that included a switch to RBT for me to even consider the U.S. government has anything less than outright malice for Americans living outside the country. The year is half-over and health care reform is still the focus. There will be no hope for change in 2018 due to the midterm elections.
There have been a few minor concessions-Streamlined was improved and offers foreign filers penalty-free filing as long as there is “reasonable cause.” However, we now have passport revocation for unpaid taxes of $50k and over; extended OVDP with the in-lieu of penalty of 27.5% of the highest aggregate value of OVDP assets (50% if the foreign financial institution is already under investigation by the IRS); attempts to pass the EXPATRIOT ACT; adjustment resulting in increase of FBAR penalties to reflect inflation (without similar treatment for the $10k threshold); two years of FATCA reporting have taken place; threats that the Streamlined Program will be discontinued; collection agencies are coming after us, the list goes on and on.
Though this comment will provoke the compliance community, one thing apparent now, is the IRS seems to have no real way to collect unless one comes forward. And we can see those who have done so, are the ones hurt the most. It is obvious that the majority of expatriates are NOT filing (out of a total of 9 million, approximately 1 million are). There are situations where some can remain hidden, depending to a point on one’s risk-tolerance. Outward resistance remains; the Canadian IGA suit is moving toward the second trial; the Bopp suit will be refiled; ADCT is on hold until we see whether there is RBT or not. And the Accidental Americans in France have begun their fight to bring forth litigation there and/or in the EU courts.
At any rate, I have always considered the post below to be a sort of rallying cry, a call to wake up to the fact that the U.S. government is indeed a predator to be dealt with…..
This entire story is and continues to be sickening. I too am so grateful to have renounced several years ago and to have been able to completely extricate myself from this web of nightmares. Sadly, friends and business contacts haven’t been so lucky and many of them are now embroiled in protracted legal cases, with demands that they pay millions, even though they, in two cases, have never lived in the United States and were total “accidentals” one having spent twelve days there after birth and never returned, the other only five days! Still, the corrupt system has gone after them both and they are fighting it as hard as they can. One thing both of them have said is that thy won’t pay anything, no matter what the threats. One, who has business interests in no less than sixteen countries will cut off all activity with the U.S. and stop all investment from his associates into the U.S. arm of their business.
If I didn’t witness all of this for myself I wouldn’t believe that it could be possible, but then, look at the U.S. today and the state of how it is governed. Who could believe that is possible? The best advice, stay away from that place and advise others to do the same.
Honest US citizens are being turned into prey by the IRS, the victims a hunt for tax evaders. It is the natural, if lamentable, product of the urge to power our Founders warned us against.
More than two centuries ago, George Washington stated:
Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.
Over the years, General Washington’s prescience has been demonstrated as government usurped and abused power. The myth that government serves the people should be shattered by now. Increasingly, government behaves as the master, not as the intended servant.
Oppression abounds, but nowhere is the raw abuse of power and coercion more possible and evident than in the Internal Revenue Service. They are the most dangerous member of the government gang. Now they have another tool to bully and expropriate wealth from innocents — US citizens living abroad.
Early in his presidency, Barack Obama pledged to add 800 new IRS agents to punish tax evaders with overseas accounts. In an effort, presumably designed to curtail and punish tax evasion on the part of wealthy Americans, legislation aimed at criminals now threatens the income and savings of the law-abiding.
The Bank Secrecy Act became law in 1970 and implemented the Foreign Bank Accounts Report (FBAR) to monitor money laundering. The FBAR law required that US persons owning or having signing authority over foreign bank accounts report this information to the US Treasury Department. It was not much enforced for the obvious reason that a criminal does not willingly divulge incriminating information. During the first three decades of FBAR, there was widespread ignorance and disregard for the law.
In 2003, the Treasury Department handed over enforcement to the IRS. In 2004 non-willful non-compliance increased to a $10,000 fine per account per annum. Willful non-compliance allows criminal charges, a prison sentence, and fines of $100,000 or 50% of bank account’s contents, whichever is more (see Shepherd, p. 10).
The IRS has implemented two Voluntary Disclosure Programs I (2009) and II (2011), in which they waive criminal charges provided that all back taxes and penalties have been paid, along with an FBAR penalty of 20% (in 2009) or 25% (in 2011) of the account’s highest balance over the last six years. The penalty is lower (12.5%) for balances under $75,000. Persons who were unknowingly US citizens face a 5% penalty (see FAQ 52).
In 2010, Congress passed FATCA (Foreign Account Tax Compliance Act) which forces foreign banks to report on American clients, even if doing so would violate the banking and privacy laws of their country. Implementation of FACTA will be coerced by withholding 30% of US income from banks not in compliance.
The arrogance and brutality of the legislation is apparent. The penalties are severe and disproportionate. Economic blackmail of foreign banks is disgraceful. All of these actions will have repercussions, probably not intended.
US Citizens Abroad
US citizens living abroad must open a foreign bank account because commerce is done in the local currency. All who do are potentially in violation of the FBAR law. Most were unaware of the FBAR requirements; but now that the IRS has rattled its FBAR saber, taxpayers abroad are in a quandary.
Wealthier citizens spend thousands of dollars on accountants and tax lawyers to try to put themselves into compliance with the least financial damage. The average citizen not in compliance has limited options. His choices include:
Do Nothing The IRS doesn’t know about you, so continuing to keep a low profile and ignore the law might be the best route. This option may become impossible once FACTA comes into force.
File FBAR Forms IRS FAQ 17 of the 2011 Voluntary Disclosure Program states that filers who have complied with all taxes and filing requirements except FBAR should not enter the program but simply file the delinquent forms by August 31, 2011 with a letter of explanation. They promise that no penalties will apply to such persons. But given the severe threats of punishment issued to anyone failing to comply, many wonder whether the IRS will accept the excuse of ignorance of the FBAR requirement.
Enter 2011 Voluntary Disclosure Program: Some US citizens who entered the 2009 Voluntary Disclosure Program and were otherwise in compliance with US tax laws, found that the IRS intended to apply to them the full 20% penalty (see, e.g., hereand here).
Renounce Citizenship Many US citizens living overseas have lives fully integrated into their new country. They comply with the local tax laws and often possess dual citizenship. Compliance with US tax laws and FBAR are a nuisance and liability that they may be able to live without.
Renunciation of citizenship is not riskless. Such a decision will set citizens free from future liability, but may subject them to IRS penalties for prior non-compliance. In addition, for covered expatriates, those having two million in assets or $145,000 in average annual tax liability over the last five years, an exit tax is also required.
To appreciate the uncertainty and duress faced by US citizens living abroad, a couple of hypothetical situations are useful. International tax lawyer Phil Hodgen partly inspired the following hypothetical cases:
Hypothetical Case 1: Jim lives in a foreign country and has dutifully filed a US income tax return each year, but was unaware of FBAR filing retirements. Jim operates eight accounts: four retirement accounts (which he reported on his annual tax returns), two trading accounts, a checking account and a high interest savings account. The highest balance in these accounts is $1,000,000 over the last six years. His current balance is $800,000 after the market dip.
Jim doesn’t know what to do. After great worry, he enters the Voluntary Disclosure Program. The IRS assesses Jim a $250,000 FBAR penalty. In order to pay the penalty, Jim must withdraw funds from his retirement accounts forcing an additional tax liability of $100,000 on the income. Jim is no longer able to retire because his $800,000 has been reduced to $450,000, solely as a result of IRS capriciousness.
Hypothetical case 2: Nancy is a teacher and mother of three, married to a citizen of the foreign country where she has lived for fifteen years. She dutifully filed her taxes in the US, but never knew about FBAR. A friend entered the Voluntary Disclosure Program and was assessed $14,000. She contemplates the renunciation of American citizen, because her foreign husband owns a successful business and Nancy is a signer on business accounts. She fears exposing her husband’s business to the IRS and also fears that upon her death, the IRS will seek its pound of flesh from her estate. She renounces citizenship, though it breaks her heart.
Abuse Of the Law
FBAR was initially a harmless and little known embarrassment for the United States. It began as an ineffective attempt to stop money laundering. Like so many other laws (RICO, Homeland Security, etc.), it began with what some believed noble purposes, only to morph into a tyranny imposed upon law-abiding citizens. It is now a tool capable of arbitrary and oppressive expropriation of the wealth of millions of US citizens living abroad.
An insolvent government is a dangerous government. It is akin to a wounded and cornered animal. When conditions become really difficult, it is likely to do anything to survive. Arbitrariness in the interpretation of any law is dangerous to freedom, but especially so when government’s primary concern is survival rather than justice.
There are many reasons to be critical of FBAR. The following two will illustrate:
Excessive fines: Ayn Rand said “The severity of the punishment must match the gravity of the crime.” This basic principle of human rights, enshrined in the Eighth Amendment, forbids excessive fines. It is immoral for the IRS to intimidate innocent citizens. Any law so uncertain that it could result in a loss of 50% of your wealth, depending upon the whims of the IRS, is not a law. It is government-sanctioned extortion.
Guilt Presumed: The Fourth Amendment protects (or was supposed to) citizens against arbitrary fishing expeditions by government. Probable cause is required. The FBAR requirements circumvent this Fourth Amendment right, in effect saying: “You will volunteer to open the door to your house and let us look inside. If you don’t, we will fine and/or imprison you.” The IRS demands bank information based on a presumption of guilt even though holding funds in a foreign bank account is no crime.
The term unintended consequences, a convenient euphemism for stupid policy or law, is appropriate. Some of the foreseeable outcomes are the following:
Foreign banks and investors may decide doing business with the US is not worth the trouble of compliance with FACTA, particularly as the US economy collapses and the global economy shifts to the East.
US Citizens abroad already find it challenging to open bank accounts both in US and in their countries of residence. This annoyance makes it more difficult for American companies and their employees to engage in foreign missions, business and trade.
The Bank Secrecy Act, passed in 1970, is an example of law designed for one purpose being expanded to be used against innocent citizens. Regardless of its good intentions, it is now a tyranny used to extort wealth from otherwise legal, law-abiding US citizens living abroad.
It represents a classic case of how government usurps freedom. What level of morality must government have to think they are entitled to shake-down hard-working citizens?
Monty Pelerin has never lived abroad or had a foreign bank account. He has friends who do and hopes that exposing this State plunder will cause it to cease in this and other parts of our lives.
NB: The preceding article appeared first at the American Thinker on April 5, 2011, then at Monty Pelerin’s World. Monty Pelerin is a retired economist who writes under a pen name. In March, I approached Monty asking if he would publish under his pen name an article on FBAR. He agreed and then we co-wrote the article and he kindly gave me no credit because I feared the long arm of the IRS. Then, Monty submitted it to the American Thinker. Now that I am out in the open with my IRS concerns, I’ve decided I can reproduce it here. So I want to thank Monty for his extraordinary help when nearly no one in the mainstream media or even conservative blogs were talking about this injustice which the IRS has afflicted upon millions of Americans – Petros