Post by Sapphire Capital on Oct 29, 2008 20:39:02 GMT 4
US Inbound: New section 877A significantly alters expatriation tax regime
On June 17 2008, President Bush signed into law the Heroes Earnings Assistance and Relief Tax Act of 2008 (the HEART act). The HEART act contains a new expatriation tax regime that applies to individuals who expatriate from the US on or after June 17 2008. As explained by the senate finance committee, Congress intends for the new expatriation rules to tighten the rules so that certain high net worth individuals cannot renounce their US citizenship or terminate their long-term US residency in order to avoid US taxes. Congress expects that the new expatriation rules will raise $411 million over the next 10 years.
The new mark-to-market tax
The new provisions impose a mark-to-market tax on individuals who are "covered expatriates." A covered expatriate is subject to US federal income tax on the net unrealised gain in his or her property as if the property had been sold for its fair market value on the day before the expatriation or termination of US residency. Any net gain in excess of $600,000 (as adjusted for inflation after 2008) on the deemed sale is recognised. A taxpayer may elect to defer payment of the mark-to-market tax until the taxpayer actually disposes of the property. Interest accrues on the unpaid tax and the taxpayer must post adequate security. In the case of a resident alien, property held by an individual on the date the individual first became a resident of the US is treated as having a basis on such date of not less than its fair market value (unless the individual elects otherwise).
In general, a covered expatriate is defined with reference to prior law. A covered expatriate is an expatriate (1) whose average annual net income tax for the five taxable years preceding expatriation exceeds $139,000 (as adjusted in 2008 for inflation); (2) whose net worth is $2 million or more on the date of expatriation; or (3) who fails to certify under penalty of perjury that he or she has complied with all US federal tax obligations for the five preceding taxable years or fails to submit such evidence of compliance as the IRS may require. Certain dual citizens and persons who relinquish US citizenship before reaching 18.5 years of age are not treated as covered expatriates.
In turn, an expatriate is a US citizen who relinquishes his or her citizenship, or any long-term resident (in other words, an individual who is a lawful permanent resident of the US in at least eight of the 15 taxable years ending with the taxable year in which the individual terminates US residency) of the US who ceases to be a lawful permanent resident of the US.
Under the new rules, an individual ceases to be a lawful permanent resident of the US for all tax purposes if he or she revokes or abandons his or her green card or if he or she (1) commences to be treated as an resident of a foreign country under a tax treaty between the US and that foreign country; (2) does not waive the benefits of the treaty applicable to residents of the foreign country; and (3) notifies the IRS of the commencement of such treatment.
Deferred compensation items and interests in trusts
The mark-to-market tax does not apply to interests in certain deferred compensation items. In the case of certain "eligible" deferred compensation items, the payor must deduct and withhold 30% of a taxable payment made to a covered expatriate. In the case of deferred compensation items that are not eligible, an amount equal to the present value of the item is generally treated as having been received by the covered expatriate on the day before expatriation.
The mark-to-market tax applies to assets held by a portion of a trust for which the covered expatriate is treated as the owner under the grantor trust provisions of the code. In contrast, a 30% withholding tax applies to direct or indirect distributions from the portion of any trust of which a covered expatriate is a beneficiary but not a grantor.
In this case, the trustee must deduct and withhold from the distribution an amount equal to 30% of the distribution that would be includible in the gross income of the covered expatriate if such person continued to be subject to tax as a US citizen or resident. Further, if the fair market value of the property exceeds its basis in the hands of the trust, gain must be recognised by the trust as if the property were sold to the covered expatriate at fair market value.
New rules on gifts and bequests
The new rules subject US citizens and residents who receive certain gifts or bequests from a covered expatriate to a transfer tax of 45%. This new transfer tax represents a significant departure from the general rules under which donees and heirs do not normally pay tax on the receipt of gifts or bequests. The transfer tax applies to property directly or indirectly acquired by gift from an individual who, at the time of the transfer, is a covered expatriate, or to any property directly or indirectly acquired by reason of the death of an individual who was a covered expatriate immediately before death. The tax is reduced by any foreign gift or estate taxes paid in connection with the property.
Reporting requirements
Covered expatriates must provide an information statement to the IRS for any year in which the covered expatriate has any obligations under the new rules. The IRS will impose a penalty of $10,000 for failure to comply with these reporting requirements in a timely manner, unless the covered expatriate can show that such failure is due to reasonable cause and not wilful neglect.
Source: ITR / Alston & Bird
Edward Tanenbaum (edward.tanenbaum@alston.com), New York; Diana Wessells (diana.wessells@alston.com), Washington, DC +1 212 210 9425
On June 17 2008, President Bush signed into law the Heroes Earnings Assistance and Relief Tax Act of 2008 (the HEART act). The HEART act contains a new expatriation tax regime that applies to individuals who expatriate from the US on or after June 17 2008. As explained by the senate finance committee, Congress intends for the new expatriation rules to tighten the rules so that certain high net worth individuals cannot renounce their US citizenship or terminate their long-term US residency in order to avoid US taxes. Congress expects that the new expatriation rules will raise $411 million over the next 10 years.
The new mark-to-market tax
The new provisions impose a mark-to-market tax on individuals who are "covered expatriates." A covered expatriate is subject to US federal income tax on the net unrealised gain in his or her property as if the property had been sold for its fair market value on the day before the expatriation or termination of US residency. Any net gain in excess of $600,000 (as adjusted for inflation after 2008) on the deemed sale is recognised. A taxpayer may elect to defer payment of the mark-to-market tax until the taxpayer actually disposes of the property. Interest accrues on the unpaid tax and the taxpayer must post adequate security. In the case of a resident alien, property held by an individual on the date the individual first became a resident of the US is treated as having a basis on such date of not less than its fair market value (unless the individual elects otherwise).
In general, a covered expatriate is defined with reference to prior law. A covered expatriate is an expatriate (1) whose average annual net income tax for the five taxable years preceding expatriation exceeds $139,000 (as adjusted in 2008 for inflation); (2) whose net worth is $2 million or more on the date of expatriation; or (3) who fails to certify under penalty of perjury that he or she has complied with all US federal tax obligations for the five preceding taxable years or fails to submit such evidence of compliance as the IRS may require. Certain dual citizens and persons who relinquish US citizenship before reaching 18.5 years of age are not treated as covered expatriates.
In turn, an expatriate is a US citizen who relinquishes his or her citizenship, or any long-term resident (in other words, an individual who is a lawful permanent resident of the US in at least eight of the 15 taxable years ending with the taxable year in which the individual terminates US residency) of the US who ceases to be a lawful permanent resident of the US.
Under the new rules, an individual ceases to be a lawful permanent resident of the US for all tax purposes if he or she revokes or abandons his or her green card or if he or she (1) commences to be treated as an resident of a foreign country under a tax treaty between the US and that foreign country; (2) does not waive the benefits of the treaty applicable to residents of the foreign country; and (3) notifies the IRS of the commencement of such treatment.
Deferred compensation items and interests in trusts
The mark-to-market tax does not apply to interests in certain deferred compensation items. In the case of certain "eligible" deferred compensation items, the payor must deduct and withhold 30% of a taxable payment made to a covered expatriate. In the case of deferred compensation items that are not eligible, an amount equal to the present value of the item is generally treated as having been received by the covered expatriate on the day before expatriation.
The mark-to-market tax applies to assets held by a portion of a trust for which the covered expatriate is treated as the owner under the grantor trust provisions of the code. In contrast, a 30% withholding tax applies to direct or indirect distributions from the portion of any trust of which a covered expatriate is a beneficiary but not a grantor.
In this case, the trustee must deduct and withhold from the distribution an amount equal to 30% of the distribution that would be includible in the gross income of the covered expatriate if such person continued to be subject to tax as a US citizen or resident. Further, if the fair market value of the property exceeds its basis in the hands of the trust, gain must be recognised by the trust as if the property were sold to the covered expatriate at fair market value.
New rules on gifts and bequests
The new rules subject US citizens and residents who receive certain gifts or bequests from a covered expatriate to a transfer tax of 45%. This new transfer tax represents a significant departure from the general rules under which donees and heirs do not normally pay tax on the receipt of gifts or bequests. The transfer tax applies to property directly or indirectly acquired by gift from an individual who, at the time of the transfer, is a covered expatriate, or to any property directly or indirectly acquired by reason of the death of an individual who was a covered expatriate immediately before death. The tax is reduced by any foreign gift or estate taxes paid in connection with the property.
Reporting requirements
Covered expatriates must provide an information statement to the IRS for any year in which the covered expatriate has any obligations under the new rules. The IRS will impose a penalty of $10,000 for failure to comply with these reporting requirements in a timely manner, unless the covered expatriate can show that such failure is due to reasonable cause and not wilful neglect.
Source: ITR / Alston & Bird
Edward Tanenbaum (edward.tanenbaum@alston.com), New York; Diana Wessells (diana.wessells@alston.com), Washington, DC +1 212 210 9425