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ABCast Episode 9
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International Tax Planning

Janathan Allen discusses issues such as what constitutes a “US Person” under the IRS rules and who has to file a US tax return. The answers may surprise you. Most Americans don’t realize the US taxes all income worldwide. Many foreign nationals who live and work in the United States may not also realize they have an obligation to file a US tax return. Janathan discusses a broad range of international tax issues such as the impact of FATCA, FBAR reporting as well as other forms associated with the reporting of international income.

Jan

Welcome to AB cast integrating legal tax accounting and business solutions. I’m Janathan Allen. This episode is about international tax planning.

Neil

Jan, as we begin our conversation about international tax, I think the first thing that’s most important to understand is how does the US government and the IRS look at income and a US taxpayer.

Jan

We are one of the few countries in the world that actually tax its citizens on their worldwide income. So it’s not just income that you earn domestically here in the states or while you’re in the United States. But if you’re an expat and you’ve moved overseas and you are earning income overseas and you’re not living in the US, that same income is still taxed in the US. It’s known as the worldwide income concept. And it’s the, one of the first things that you learn as you’re doing taxes is that the code will tax you as an American citizen on your worldwide income

Neil

And in all of the IRS communications and the code itself, it always refers to US persons. How would you define what a US person is?

Jan

Well, this is not just applicable to you. And I, for example, as human beings, when I think of persons, I think most people would presume that that would mean a living, breathing, human being, right, but the code doesn’t define persons that way persons can include businesses, partnerships and corporations trusts and estates. So the actual definition of persons is far broader than I think most people would initially ascertain when they read that term persons

Neil

And the term US person doesn’t apply to citizenship at all. Does it

Jan

Not at all

Neil

How does it apply to foreign nationals and non-US citizens? How do they qualify as a US person from a tax perspective

Jan

In order to qualify as a US person, there is the citizenship test. There is a green card test, but more importantly, there is a physical presence test as well. So for example, if you are in the United States, whether or not you are a citizen or a green card holder, and you’re in the United States for over 183 consecutive days, then essentially you are deemed to be a resident of the United States and hence taxable on your income worldwide.

Neil

Interesting. And so a lot of people mistakenly believe one way to hide income and therefore pay less taxes, avoid taxes is to have an international strategy. And that’s just not going to work in these days. Is it?

Jan

Well, frankly, it’s never worked, there’s a lot of misinformation on the web relating to, I think some of the biggest misnomers are the trusts and people putting their assets into foreign trusts and presuming that somehow they’re going to be able to avoid any sort of, um, litigation, consequence or taxes. And that’s just simply not the case.

Neil

And I think cryptocurrency is starting to fall into that same bucket. Is it not?

Jan

Cryptocurrency is sort of an odd duck. Crypto can be a, a US asset, but there are also crypto exchanges out there that are not based in the US. And of course, if there’s crypto, that’s not based in the US, then you’re dealing not only with income worldwide issues, but you’re also dealing with foreign income reporting as well.

Neil

Wow. So before we really get into the deep international business and personal issues of taxation, I think we gotta start our conversation with a, just a really brief overview of FATCA. FATCA is a piece of legislation, a policy that really changed the worldwide dynamic. Can you just give us a brief overview of FATCA please?

Jan

Well, FATCA was a policy that was implemented by treasury and what it essentially did was it went out to other countries, other first world countries and said, we want to go back and we want to enter into a partnership. And the essence of this partnership is really to go back and obtain information about US citizens and their assets outside of the United States in return. The IRS promise that if there were citizens from that country, living in the United States, that the US would go back and report on the assets held by that foreign individual in the US so that there is really this immediate reciprocity or exchange of information relating to the citizens of each country. So what it did was it allowed the US and the accepting country to go back and exchange information relating to these foreign assets that were held outside of the physical boundaries of the country of residents and citizenship of each country.

Neil

And basically this applies to almost every country in the civilized world, the banks, the investment houses, financial accounts, anything that has a US taxpayer they’re reporting the presence of that account, who it’s tied to, and even transactional data directly to the IRS in an electronic format. So there’s no hiding anymore. Correct?

Jan

That would be true. Assuming that the foreign country understood that the individual that they’re reporting on is a US citizen or a US resident in terms of the citizenship question. Now, when you go to a bank, if you’re outside of the United States and you attempt to open an account, one of the first questions they will ask you, particularly if you have a US passport is whether or not you’re a US citizen and it’s made banking relations for US citizens outside of the US, almost impossible because most of the foreign banks in the world do not want to go back and deal with the informational exchange of information because of the complexity and the amount of information that has to be maintained and then submitted to treasury. So what you’ll find is that most US citizens have a great deal of difficulty, just simply opening a foreign bank account.

Neil

And as a result of FATCA and the IRS’s focus on tracking down and getting a better handle on and reporting of and taxation collection of international business and assets, the FBAR was created. Can you tell us just basically what the FBAR is and what type of assets need to be reported now on that form to the IRS?

Jan

Well, FBAR is really the reporting of foreign currency cash type assets. And what it does is the FBAR is reported on form 114 of the tax package, if you’re an individual. And what it does is it goes back and requires the information relating to the name of the bank, the address of the bank, the date that the account was opened and the highest amount held in that account during the calendar year, for which the FBAR is reporting. So the FBAR essentially goes through and reports all of your cash mutual funds, savings, things of that liquid nature that are required to be reported because of the financial liquidity with which the asset is held.

Neil

And as of 2022 cryptocurrency? Crypto is included in FBAR reporting?

Jan

Yes.

Neil

So Jan, in addition to FBAR, what are some of the other forms that are common that go along with international tax planning?

Jan

Oh my gosh, those are several and many, I guess is the way I would put it akin to the FBAR form 114. There’s another form called form 8938. And that’s a statement of other specified foreign financial assets. Its threshold is different than FBAR. The FBAR threshold is if you have accumulation of accounts, savings accounts, et cetera, in excess of $10,000, you’re required to report those on form 114 form 8938 has a different reporting limit. And it’s dependent on whether or not you’re married or single, but the FBAR limit is 75,000 for a single individual and 150 for a married couple. And what form 89 38 does, is it expands the types of assets that are required to be reported to include, for example, foreign pensions, foreign insurance, think of social security in a foreign country, things of that nature that are not included on the FBAR because of the liquidity, the difference in liquidity.

So it can be pension plans, insurance plans, those types of assets that are then reported on form 8938. There’s an additional form, um, form 86 21, which is an informational return by a shareholder, uh, that goes back and reports the investment in a, for example, a foreign mutual company, the foreign mutual companies and the assets themselves are not reported overseas the way they are here in the states. So if you remember forms 1099 that you get at the end of the year, for example, if you have a chase or, or a B of A or Wells Fargo, uh, holdings, then you’ll know that those end of year statements will have a breakout of interest dividends earned. Um, if any, on the assets that are held by that institution and capital gains and losses, and that’s because the United States goes back and taxes, gains and losses and interest and dividends on a yearly basis.

Whereas in Europe, the capital gains and losses are not reported until the asset is actually sold. So the distinction between the US and the rest of the world is when it is the US taxes, the gains realized or unrealized here in the states, for example, in mutual funds, Hmm. There are other types of forms. If you hold interest, for example, in a foreign company and you hold more than 5% interest in that company, then an individual may be required to file form 5471. And that far in 5471 goes back and essentially outlines what the financial statement for the year end for that company would say. And then it takes the proportional interest that that individual owns in that company and whether or not there is an net income or net loss that net income or loss is attributed on a pro rate of percentage basis to that individual shareholder, which means that you can have a deemed dividend earned from a corporation, not having any distribution, not having any payment from it, but still deemed income here in the United States, simply by owning the stock and that entity.

Neil

So to summarize international tax filing and compliance is a complex legal and financial matter. And that’s why it’s so important to seek the advice in council of Allen Barron. When, if you have international investments, foreign ownership, trusts corporations, those types of things.

Jan

Absolutely. It is a very complex area of the law simply because of one just going back and translating the documents, the foreign documents themselves. For example, if you have a bank statement from pick a country, Hong Kong pick, uh, Singapore, Germany, Croatia, you have to have the means and the ability to go back and translate these documents so that you know what you’re looking for. So, yes, we’ve developed a process here at Allen Barron, Inc, to go back and make the ease of filing these foreign statements far easier than I think other firms would find it.

Neil

And speaking of common clients to have foreign tax issues, we work with a lot of expatriates. What are some of the common challenges that an expatriate faces and what do they need to know about US tax exposure?

Jan

Well, I think what expats need to understand is that simply because they’ve left the United States, their obligation to file a tax return has not abated. In other words, if you pick up and you leave the United States and you’ve moved for a job for marriage, for whatever, and you’re living outside the United States, you are still required to file a US tax return. And I think that’s the thing that I hear most often is that they presume that simply because they’re outside of the US and earning foreign income, that they don’t have to file a tax return and that’s not true.

Neil

And there’s an exclusion that they can make so much money without having a tax exposure is they’re not

Jan

Well, there is, there are a couple of ways to go back and report foreign earned income when you are an expat. And one of those is you can take the income exclusion as the United States goes back, and it allows for a certain amount of income to be excluded from your US income tax return. And what that does is it eliminates in most instances the issue of double taxation. So for example, if you’re living in the UK and you’re earning income there, if you go back and you report that income on your US tax return, you can use the foreign income exclusion to go back and eliminate most of that income so that there is no tax on your US tax return. But I have to reiterate that does not mean you don’t file a US tax return, right? The other way to go back and mitigate the issue of double taxation when you’re earning income in a foreign country is the utilization of the foreign income tax that’s paid in that country against your US income tax.

So for example, if you were living in a high tax rate country and you can pick most anywhere in Europe, their individual income tax rates are generally far higher than ours here in the United States. So if you’re earning income, for example, let’s pick the UK and you go back and you file your US income tax return. Instead of using the earned income exclusion, you can go back and you can utilize the tax that’s paid in the UK as a credit against your US income tax. And because the proportional rate is higher, generally again, you end up not paying US income tax return on that foreign income.

Neil

So Jan, let’s talk about international corporate ownership and subsidiaries. Basically there’s a two-pronged strategy here. One is how the corporate entity itself or the constellation of corporations is structured and then how it realizes income and therefore generates tax exposure. Can you talk to me a little bit about the services we provide and the types of issues that international corporate entities face?

Jan

Well, there’s two separate types of corporate ownership. One would be if I were investing for example, in a foreign stock market, and that would be corporate ownership, but I think the types of corporate ownership that we see that we deal with on a daily basis is where an individual goes back and starts a company or becomes a shareholder or perhaps is a member of a foreign corporation because of the types of work that they’re doing. So they can be working for the corporation. They could have started it. And when I say corporation, I don’t mean that exclusively. I want to include limited companies, which are limited by shares, which are not quite the equivalent of an LLC here in the United States, but are similar. And it’s that foreign ownership by an individual of stock that is in a non-public domain that goes back and creates additional tax reporting requirements and issues for the individual holding that foreign stock.

Neil

And then the categories of tax are based upon basically the percentage of interest a person holds in a given international company or the increase in their holdings as a share of the overall outstanding shares. Is that correct?

Jan

Well, the percentage of ownership goes back and is directly related to the reporting requirements on form 5471 form, 5471 is a multipage return, which is essentially a foreign corporate tax return. That is recast in terms of the way the US goes back and looks at corporate tax here in the US. So what that form effectively does is it outlines to the internal revenue service, any income that the corporation may have owned. And based on that income, how much, if any of that income will be taxed to the US shareholder simply by virtue of the total amount that they hold pro rata in terms of percentage of stock ownership. So for example, if you go back in, if an individual owns 10% or more of a foreign corporation, then there will be certain filing categories that he or she will have to go back and file on form 5471. And if there’s net income on that 5471 from the foreign corporation, it is highly likely that the 10% times the net income of that corporation will be taxable to the US individual. So the individual that has foreign ownership of a corporation will find themselves required and potentially paying tax on income. That’s not distributed from that foreign corporation to them since they have a pro rata percentage share of ownership in that entity.

Neil

It’s another common international tax issue is associated with, what’s known as a PFIC, a Passive Foreign Investment Company. What do our listeners need to understand about PFIC type investments?

Jan

PFIC type investments can occur in a couple of situations. Probably the most common that people would be aware of are the ownership of foreign mutual funds and foreign mutual funds are by definition, a passive foreign income entity, because it holds investments for investment purposes. In, in other words, for passive purposes, not for active ongoing operations. So when most people think of a PFIC computation, it’s in relation to a foreign mutual fund, but by the same token, if an individual has ownership in a foreign corporation, that foreign corporation could go back. And for example, if it has savings and it’s earning interest on that savings account, there could be a PFIC computation relating to the passive investment that is being earned by that corporation. That’s wholly unrelated to its overall day to day operations. So it can occur in a couple of ways, but I think it’s important that a US individual, a US filer understand the potential for filing requirements based on the passive investment, either outright in a mutual fund or within an entity that they may have ownership in as well.

Neil

And how does PFIC taxation compare to any other form of international investment?

Jan

Well, again, the PFIC computation is going back and taking how income is earned overseas and recasting it in the way that we report it here in the states. So the PFIC computation really forces US as tax compliance individuals to do the computation that the foreign financial institutions and banks haven’t done because they don’t report it in Europe or the rest of the world, the way we report it here. So we are the ones that go back and compute what the interest is, what the dividends are, and more importantly, the gain or the loss on every individual transaction that that particular entity may hold. It can be very long and complicated. It is quite expensive for individuals that are unaware of the types of investments that they have and the tax ramifications that may have here in the United States because of their holdings.

Neil

So another common client that we have are those that have interests and income resulting from a foreign trust or an offshore partnership. How is income from a foreign trust or offshore partnership taxed?

Jan

Well, an offshore partnership is not as difficult a computation as the trust is. And I think one of the things that we see and that I get queried about a lot is individuals that want to go back and place their assets into a foreign trust. And my advice is simply this, you can get onto the internet and you can read a lot of information about foreign trust and the inclusion of that into your estate planning may help you avoid additional taxes and any sort of litigation discovery. And the fact is that that’s not true. And as a matter of fact, foreign trusts are taxed at a higher tax rate for any income that’s earned within those foreign trusts than they are here in the states. So for example, the highest tax rate that an ordinary individual generally utilizes on their tax returns is 36%. If you have income coming from a foreign trust, that income is taxed at 55%. So what we want to be careful of is how it is and why it is. We are creating entities outside of the United States in order to protect our assets and understand the actual tax ramifications of protecting your assets and what that may mean.

Neil

So, Jan, we often talk about transactional planning and it’s a core service that we provide to our clients. So how does transactional planning apply to international personal and business finances?

Jan

Tax transactional planning is really the creation of an overarching strategy that looks to efficiency and risk mitigation as to how individuals should own assets. So for the US person who may have foreign holdings, whether it’s real estate, corporate stock, uh, membership in a limited company, whatever the ownership is, whether domestic or internationally, where we provide the service, where we put those types of assets into order, so that one can understand what the tax ramifications will be simply by virtue of how they hold it. And I’ll give you an example, if you have an individual and they own, for example, real estate here in the United States, if an individual’s going to hold real estate, and I want to do the two mantras that we go back and we strive to achieve here in this office, which is risk mitigation and tax minimization, then chances are, I would go back and put real estate into a limited liability company.

And the reason that I would do that and not hold it directly as an individual is because it provides me a layer of protection because I have the opportunity to utilize an entity rather than myself as owner of the real estate, think of a slip and fall. For example, if I have a corporation or an LLC, and I go back and there’s a slip and fall because I have a business that’s being run out of real estate, that is anywhere in the domestic US then essentially because of the entity that slip and fall will be litigated against the entity and not me as an individual. So there are processes and plans that we put together utilizing differing types of entities that go back and achieve this risk mitigation and tax minimization. And that includes both domestically here in the US and worldwide.

Neil

So Jan, this has been a really fascinating introductory conversation, international tax. We’ll come back to some of these topics in more depth in the future podcast. And we just want to say, thank you so much for sharing with us today.

Jan

You’re more than welcome.

Learn more about our integrated legal tax accounting and business solutions and visit Alan barren.com or call (866) 631-3470 to schedule a free consultation.

 

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