Category Archives: savings clause

Part 2: OECD Common Reporting Standard (“CRS”): “tax residence” and the “tax treaty tiebreaker”

This is Part 2 – a continuation of the post about “tax residency under the Common Reporting Standard“.

That post ended with:

Breaking “tax residency” to Canada can be difficult and does NOT automatically happen if one moves from Canada. See this sobering discussion in one of my earlier posts about ceasing to be a tax resident of Canada. (In addition, breaking “tax residency in Canada” can result in being subjected to Canada’s departure tax. I have long maintained that paying Canada’s departure tax is clear evidence of having ceased to be a “tax resident of Canada”.)

Let’s assume that our “friend”, without considering possible “tax treaties” is or may be considered to be “ordinarily resident” in and therefore a “tax resident” of Canada.

Would a consideration of possible tax treaties (specifically the “tax treaty residency tiebreaker) make a difference?

This question will be considered in Part 2 – a separate post.

What is the “tax treaty residency tiebreaker”?

It is entirely possible for an individual to be a “tax resident” according to the laws of two (or more countries). This is a disastrous situation for any individual. Fortunately with the exception of “U.S. citizens” (who are always “tax residents of the United States no matter where they live), citizens of most other nations are able to avoid being “tax residents” of more than one country. This is accomplished through a “tax treaty tie breaker” provision. “Treaty tie breakers” are included in many tax treaties. (Q. Why are U.S. citizens always U.S. tax residents? A. U.S. treaties include what is called the “savings clause“).

Some thoughts on the “savings clause”

First, the “savings clause” ensures that the United States retains the right to impose full taxation on U.S. citizens living abroad (even those who are dual citizens and reside outside the United States in their country of second citizenship).

Second, the U.S. insistence on the “savings clause” ensures that other countries agree to allow the United States to impose U.S. taxation on their own citizen/residents who also happen to have U.S. citizenship (generally because of a U.S. place of birth.)

Where are “tax treaty tie breakers” found? What do they typically say?

Many countries have “tax treaty tie breaker” provisions in their tax treaties. The purpose is to assign tax residence to one country when a person is a “tax resident” of more than one country.

As explained by Wayne Bewick and Todd Trowbridge of Trowbridge Professional Corporation (writing in the context of Canadian tax treaties):

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Green card holders, the “tax treaty tiebreaker” and reporting: Forms 8938, 8621 and 5471

Before you read this post!! Warning!! Warning!!

Before a “Green Card” holder uses the “Treaty Tiebreaker” provision of a U.S. Tax Treaty, he/she must consider what is the effect of using the “Treaty Tiebreaker” on:

A. His/her immigration status under Title 8 (will he/she risk losing the Green Card?)

B. His/her status under Title 26 (will he expatriate himself under Internal Revenue Code S. 7701(b)) and subject himself to the S. 877A “Exit Tax” provisions?

Now, on to the post.

The “Treaty Tiebreaker” and information reporting …

The Internal Revenue Code imposes on “U.S. Persons” (citizens or “residents”):

1. The requirement to pay U.S. taxes; and

2. The requirement to file U.S.forms.

All “U.S. Persons” (citizens or residents) are aware of the importance of “Information Returns” AKA “Forms” in their lives.

What is a U.S. resident for the purposes of taxation?

This question is answered by analyzing Internal Revenue Code S. 7701(b). If one is NOT a U.S. citizen, a physical connection to the United States (at some time or another) is normally required for one to be a “tax resident” of the United States..

What happens if one is a “tax resident” of more than one country?

The “savings clause” ensures that U.S. citizens are the only people in the world who have no defence to being deemed a tax resident of multiple countries. U.S. citizens (“membership has its privileges”) are ALWAYS tax residents of the United States. U.S. citizens who reside in other nations, may also be “tax residents” of their country of residence.

In some cases, a U.S. “resident” (which includes a Green Card holder) may be deemed to be a “nonresident” pursuant to the terms of a U.S. Tax Treaty. A Green Card holder “may” be able to use a “Treaty Tiebreaker” provision to be treated as a “nonresident”.

Warning!! Warning!!

Before a “Green Card” holder uses the “Treaty Tiebreaker” provision of a U.S. Tax Treaty, he/she must consider what is the effect of using the “Treaty Tiebreaker” on:

A. His/her immigration status under Title 8 (will he/she risk losing the Green Card?)

B. His/her status under Title 26 (will he expatriate himself under Internal Revenue Code S. 7701(b)) and subject himself to the S. 877A “Exit Tax” provisions?
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Green card holders: the “tax treaty tiebreaker” rules and taxation of Subpart F and PFIC income

Before you read this post!! Warning!! Warning!!

Before a “Green Card” holder uses the “Treaty Tiebreaker” provision of a U.S. Tax Treaty, he/she must consider what is the effect of using the “Treaty Tiebreaker” on:

A. His/her immigration status under Title 8 (will he/she risk losing the Green Card?)

B. His/her status under Title 26 (will he expatriate himself under Internal Revenue Code S. 7701(b)) and subject himself to the S. 877A “Exit Tax” provisions?

Now, on to the post …

The Internal Revenue Code of the United States imposes (1) requirements for taxation (determining how much tax is payable by various individuals) and (2) requirements for information reporting returns. For “U.S. Persons Abroad” the “information reporting requirements” are far more onerous.
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More #Americansabroad will pay capital gains tax on sale of principal residence in Canada

The price of Toronto real estate continues its upward trajectory.

This morning I met with yet another (who could have known) Canadian resident who wishes to renounce U.S. citizenship. This person is completely compliant with his U.S. tax obligations. He is renouncing for a very common reason.

The reason for renouncing U.S. citizenship is to:

Protect the tax free capital gain, which results from the sale of his Canadian principal residence in Canada.
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US Taxation of the Australian Superannuation? – No, #DontMessWithTheSuper!

I recently engaged in a discussion with people who are worried that they might be “U.S. Persons” living in Australia. Their primary concern (and understandably so) is the possible U.S. taxation of their Australian Superannuations. For many, the “Super” is considered to be their most important retirement planning asset.

In a FATCA world, where  possible “USness” is now an issue, one must consider whether U.S. tax laws, effectively disable a group of Australians from effective retirement planning. But, hey! Even Americans should have the right to plan for retirement? Shouldn’t they?

There have been a number of recent articles attempting to understand the possible U.S. taxability of the Australian Super. I don’t know whether this is good or bad.

Most of these articles (what would you expect?) attempt to analyze the issue from the perspective of U.S. law – specifically the Internal Revenue Code. Rightly or wrongly, this approach assumes that the USA has the right to impose taxation on the retirement plans created by other nations. I don’t believe that this should be assumed!

In any event, what follows is a presentation that I created to discuss this issue. It is NOT intended to be a legal analysis. (If you want trouble, call up a lawyer!) It is intended to be a “contextual” and “common sense” analysis. Sooner or later, all laws (if they are to survive) must move towards “common sense”.

My message to residents of Australia is this:

Your Superannuation is far too important to be left in the hands of the tax professionals!

You will find “my thoughts” by clicking on the following:

The Australia Superannuation For Dummies

Feel free to leave “your thoughts” as comments to this post.

John Richardson

Tax residency vs. physical presence: The four questions you must ask before making a country your home

An introduction to “tax residency” …

Most people equate residency with physical presence. They assume that where you are physically presence determines where you live. They further assume that where you live is where you pay your taxes. Conclusion: The country where you live is the country where you must be “tax resident”. Not necessarily!

There is no necessary correlation between where one lives and where one is a “tax resident”. In fact, “residency for tax purposes” may be only minimally related to “residency for immigration (where you live) purposes”. It is possible for people to live in only one country and be a tax resident of multiple countries. The most obvious example is “U.S. citizens residing outside the United States”.

The concept of “tax residency” is fundamental to all systems of taxation. The fundamental question, at the root of all tax systems is:

“what kind of connection to a country is required to assume tax jurisdiction over an “individual”, over “property” or over an “entity”?”

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Around the world in 192 pages: Experiences of #Americansabroad in an #FBAR and #FATCA world

Here it is:

richardsonkishcommentsamericansabroadapril152015internationaltax-2

This is one of seven parts of the Richardson Kish submissions to the Senate Finance Committee in April of 2015. I thank Patricia Moon for her unbelievable effort in putting this document together!

And speaking of Americans abroad in an FBAR and FATCA world, you might like to read:

The message is:

When In Rome, Live As A Homelander

#YouCantMakeThisUp!

John Richardson

 

“A Proposal for Fair US Tax Treatment of Foreign Pensions” from @JackieBugnion and Paula Singer

Even in retirement Jackie Bugion writes the best arguments against citizenship taxation ever“. Other references to Ms. Bugnion’s work are here.

In this new post published on May 30, 2016 at Tax Analysts, Ms. Bugnion collaborates with U.S. tax lawyer Paula N. Singer to explain the problems experienced by Americans abroad who have pensions in their country of residence.

This new article explains:

1. The problem – how U.S. tax laws destroy the value of the “foreign pension” as a “pension” at all

2. The treatment of non-U.S. pensions under various U.S. tax treaties (underscoring now tax treaties are very different)

3. The proposal – how the Internal Revenue Code can be simply amended to fix this simple but painful problem.

Below you will find the PDF of this must read article. Please note that this article appears on CitizenshipSolutions.ca under the following conditions:

Permission is for this one use and is contingent on properly crediting the article to the respective authors and to Tax Analysts as the original publisher. Using the PDF attached above covers proper attribution. Any other requests would need to be addressed separately.

Bugnion-Singer (05-30-2016)

John Richardson

Analyze the new 2016 US Treasury Model Tax Treaty – What does it mean for your country?

The post referenced in the above tweet appeared at the Isaac Brock Society. You can read the post directly on their site. I am (with their kind permission) reproducing the post here. The primary value of the post is in the comments. I strongly suggest that you read the comments and add to this “treasure chest” of thoughts.

____________________________________________________________________________________________

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Reporting a “Treaty based position” – Internal Revenue Code S. 6114 using Form 8833

Introduction and summary

1. Internal Revenue Code 6114 creates a general requirement to “report” when a taxpayer takes the benefit of a tax treaty.

2. Reporting takes place on Form 8833 which is an “information return”.

3. Not all “treaty positions” are required to be reported.

4. The failure to report the “treaty position” (if it must be reported) does NOT mean that one does NOT benefit from the treaty position. (The treaty benefit is NOT dependent on it being reported.)

5. Internal Revenue Code 6712 creates a $1000 penalty for failing to report a “treaty position” that is required to be reported.

Now on to the explanation

The United States has many tax treaties with many nations. A comprehensive list is here. As a general principle the “savings clause” prevents Americans abroad from having the benefit of treaty provisions. That said, there are situations where a U.S. citizen abroad can benefit from the specific provisions of a specific treaty. In some cases the benefits are found ONLY in the Treaty. In some cases the Internal Revenue Code specifically references a possible treaty benefit (example resourcing income to create a “foreign tax credit” under IRC S. 904). A second (and very relevant) example of the Internal Revenue Code referencing the benefits of a treaty in S. 877A(d) of the Internal Revenue Code, where with respect to an “eligible pension”, the taxpayer: “makes an irrevocable waiver of any right to claim any reduction under any treaty with the United States in withholding on such item”.

As always, we begin with the code …

Subtitle F (Procedure and Administration) is where the requirement to report the treaty position is found …

26 U.S. Code § 6114 – Treaty-based return positions

(a) In general Each taxpayer who, with respect to any tax imposed by this title, takes the position that a treaty of the United States overrules (or otherwise modifies) an internal revenue law of the United States shall disclose (in such manner as the Secretary may prescribe) such position—

on the return of tax for such tax (or any statement attached to such return), or
if no return of tax is required to be filed, in such form as the Secretary may prescribe.

(b)Waiver authority

The Secretary may waive the requirements of subsection (a) with respect to classes of cases for which the Secretary determines that the waiver will not impede the assessment and collection of tax.

Note that S. 6114 became law in 1988. Treaties have existed since before 1988. S. 6114 creates a requirement to report a treaty position. In general, the applicability of the treaty based position is NOT dependent on having complied with S. 6114. That said, Internal Revenue Code S. 6712 authorizes a $1000 penalty (subject to reasonable cause) which may be assessed for failure to disclose the position.

Form 8833 – the mechanism to comply with S. 6114

Form 8833 is how the treaty based position is disclosed “(in such manner as the Secretary may prescribe)”. Interestingly, the IRS is using form 8833 for:

Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b)

It is common for the IRS to use one form to comply with the reporting requirements of multiple sections of the Internal Revenue Code.

Form 8833 and the instructions:

f8833

Are you required to file form 8833 to get the benefit of the treaty?

The answer is NO. Form 8833 is an “information return”. The treaty benefit exists whether the treaty position if disclose on Form 8833 or not.

Internal Revenue Code 6114 is a relatively new provision in the Internal Revenue Code. In fact, it was first enacted in 1988.

Pub. L. 100–647, title I, § 1012(aa)(5)(D), Nov. 10, 1988, 102 Stat. 3533, provided that:
“The amendments made by this paragraph [enacting this section and section 6712 of this title and renumbering former section 6114 as section 6115 of this title] shall apply to taxable periods the due date for filing returns for which (without extension) occurs after December 31, 1988.”

Internal Revenue Code 6114 allows Treasury to exempt certain things from Form 8833 reporting

Internal Revenue Code 6114(b) specifically states:

(b) Waiver authority
The Secretary may waive the requirements of subsection (a) with respect to classes of cases for which the Secretary determines that the waiver will not impede the assessment and collection of tax.

The exercise of that “waiver authority” is found in the Regulations that describe situations where “reporting is specifically waived“.

Bottom line: Not all “treaty positions” need to be reported on a Form 8833.

Penalty for failure to report (file Form 8833) when it is required

This is a $1000 penalty and is found in Internal Revenue Code 6712.

(a) General rule
If a taxpayer fails to meet the requirements of section 6114, there is hereby imposed a penalty equal to $1,000 ($10,000 in the case of a C corporation) on each such failure.
(b) Authority to waive
The Secretary may waive all or any part of the penalty provided by this section on a showing by the taxpayer that there was reasonable cause for the failure and that the taxpayer acted in good faith.
(c) Penalty in addition to other penalties
The penalty imposed by this section shall be in addition to any other penalty imposed by law.