Monthly Archives: October 2018

Part 22 – The 16th amendment authorises an Income Tax – but the @USTransitionTax is a wealth tax!

Part 1: The constitutional authorisation for the US income tax


As explained in a recent post at Tax Connections:

Written by TaxConnections Admin | Posted in TaxConnections
IRS- First Tax Return Form In 1913
Origin Of Internal Revenue Service
The roots of IRS go back to the Civil War when President Lincoln and Congress, in 1862, created the position of commissioner of Internal Revenue and enacted an income tax to pay war expenses. The income tax was repealed 10 years later. Congress revived the income tax in 1894, but the Supreme Court ruled it unconstitutional the following year.
16th Amendment
In 1913, Wyoming ratified the 16th Amendment, providing the three-quarter majority of states necessary to amend the Constitution. The 16th Amendment gave Congress the authority to enact an income tax. That same year, the first Form 1040 appeared after Congress levied a 1 percent tax on net personal incomes above $3,000 with a 6 percent surtax on incomes of more than $500,000.
In 1918, during World War I, the top rate of the income tax rose to 77 percent to help finance the war effort. It dropped sharply in the post-war years, down to 24 percent in 1929, and rose again during the Depression. During World War II, Congress introduced payroll withholding and quarterly tax payments.
1913 Form 1040 (PDF 126KB, 4 pages, including instructions)
A New Name
In the 50s, the agency was reorganized to replace a patronage system with career, professional employees. The Bureau of Internal Revenue name was changed to the Internal Revenue Service. Only the IRS commissioner and chief counsel are selected by the president and confirmed by the Senate.
Today’s IRS Organization
The IRS Restructuring and Reform Act of 1998 prompted the most comprehensive reorganization and modernization of IRS in nearly half a century. The IRS reorganized itself to closely resemble the private sector model of organizing around customers with similar needs.

(Note that even in 1913, the most prominent part of the 1040 was the Penalty Provision.)
1913
Part 2: Taxation must be constitutional. Is the transition tax an income tax?


A new paper by Sean P. McElroy titled: “The Mandatory Repatriation Tax Is Unconstitutional” suggests that:

Abstract
In late 2017, Congress passed the first major tax reform in over three decades. This Essay considers the constitutional concerns raised by Section 965 (the “Mandatory Repatriation Tax”), a central provision of the new tax law that imposes a one-time tax on U.S.-based multinationals’ accumulated foreign earnings.
First, this Essay argues that Congress lacks the power to directly tax wealth without apportionment among the states. Congress’s power to tax is expressly granted, and constrained, by the Constitution. While the passage of the Sixteenth Amendment mooted many constitutional questions by expressly allowing Congress to tax income from whatever source derived, this Essay argues the Mandatory Repatriation Tax is a wealth tax, rather than an income tax, and is therefore unconstitutional.
Second, even if the Mandatory Repatriation Tax is found to be an income tax (or, alternatively, an excise tax), the tax is nevertheless unconstitutionally retroactive. While the Supreme Court has generally upheld retroactive taxes at both the state and federal level over the past few decades, the unprecedented retroactivity of the Mandatory Repatriation Tax — and its potential for taxing earnings nearly three decades after the fact — raises unprecedented Fifth Amendment due process concerns.

Here is a copy of the paper …
SSRN-id3247926
The point is that the transition tax is not a tax on income. It is a tax on “fake income”. It is “fake income” on two levels:
First, by definition it is not based on income. It is based on a pool of capital that was not subject to taxation when it was earned.
Second, Sec. 965 deems it to be income precisely because it not actual income which is based on any realisation event.
Is this the simplest argument for why the Section 965 transition tax mayh be unconstitutional?
John Richardson

Part 21 – @ACAVoice makes presentation at October 22/18 IRS @USTransitionTax hearing – argues both that Regulatory Flexibility Act should apply and/or that de minimis rule be created

Introduction


This is Part 21 of my series of posts about the Section 965 transition tax.
The Section 965 “Transition Tax” saga continues. Americans abroad may have political differences. They may have philosophical differences. They may live in different countries with different tax treaties. But, opposition to the Section 965 Transition Tax and GILTI appear to have unified all Americans abroad.


To put it simply: The application of the Section 965 transition tax to the small businesses operated by Americans Abroad is the most unjust, most punitive, most egregious and most unjustified piece of legislation over to come from the Homeland (assuming – which I doubt – that it was every intended to apply to Americans abroad in the first place). Significantly, the transition tax is a benefit to Homeland Americans but can confiscate the retirement plans of Americans abroad. In other words, the transition tax is one more punishment that America is meting out to its citizens who dare to leave the United States.
Boldly Go, where no fictitious tax event has gone before …
The transition tax is also a direct attack on the tax base of the countries where Americans abroad live. To put it simply: the transition tax is a fictional tax event, that allows the United States to take a preemptive tax strike against the tax base of other countries. By so doing, the transition tax allows the United States to siphon tax revenue from other countries, that it could never siphon before. (Well, the S. 877A Exit Tax rules also create a fictitious tax event that allows the United States to siphon capital from other countries.) The impact of the transition tax on Canadian residents (who are also U.S. citizens) has been explored in CBC reporter Elizabeth Thompson’s series of posts about the transition tax.
The Transition Tax when applied to Americans abroad is:

The retroactive taxation of undistributed earnings of a non-US corporation, based on NO event that generates taxable income, which almost certainly subjects Americans abroad to double taxation.

The parts I have bolded provide arguments for why the “transition tax” violates numerous tax treaties.
In Part 20 I explored the arguments for why/how the Treasury Regulations are not compatible with the Regulatory Flexibility Act. Part 20 included a discussion of the arguments made by ACA for why the Regulatory Flexibility Act should apply to the regulations.
In Part 21 (this post), I am highlighting the submission of American Citizens Abroad (ACA), who argues IN ADDITION (this is a no brainer) that there should be a threshold level of undistributed earnings before the Section 965 confiscation can apply – period.
Thanks to ACA (“American Citizens Abroad”) for taking the time to organize these arguments and present them at the October 22, 2018 IRS hearing on the “transition tax”.
What follows is the email I received from ACA – I strongly suggest that you follow the links. ACA has done a superb job of demonstrating how the Treasury can exempt Americans abroad from this particularly draconian and confiscatory piece of legislation.
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Part 20 – The failure of Treasury to comply with the requirements of the "Regulatory Flexibility Act" make the Sec. 965 @USTranstitionTax subject to judicial review


If you don’t want to reach this post, then just watch the above video.
If you do want to read the post …
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Considering renouncing US citizenship? @Expatriationlaw information sessions Fall 2018

FATCA, U.S. citizenship-based taxation (which includes much more than taxation) and restrictions on financial and retirement planning are causing many Americans abroad to renounce their U.S. citizenship.
The US Government is well aware of the problem that FATCA (coupled with US “citizenship-based taxation) has caused for Americans abroad.
The proof comes from the following two tweets:
1. 2014 – Don Beyer (currently a Member of Congress) was the US Ambassador to Switzerland from 2009 – 2014. In this interview he acknowledges some of the problems of FATCA (incredibly acknowledging that FATCA has led to divorces.


2. September 24, 2018 – A comment by a Foreign Service Officer in Frankfurt acknowledging the problems the United States has caused for its citizens living living abroad. He also acknowledges  that people are renouncing their valued U.S. citizenship. I have linked directly to his comment. But, I suggest that you take the time to watch the whole video. You will see “heart breaking” stories of people who feel that they can no longer remain U.S. citizens. (Thanks to Solomon Yue for his tireless efforts in advocating for tax changes to “Save U.S. Citizenship” for Americans abroad!)


The United States would rather have FATCA than have Americans living abroad.
FATCA is a tool to enforce (what the United States refers to as) “citizenship-based taxation”. In practice (as patriotic as it sounds), “citizenship-based taxation” is actually the U.S. policy of:
Imposing “worldwide taxation” on people who are “tax residents” of other countries and who do not live in the United States.
 
I will be conducting information sessions (some formal presentations and some informal discussions) during the next few weeks as follows:
Bangalore, India – October 22
Brisbane, Australia – October 25 (with Karen Alpert) – 19:00 – 21:00
Auckland, New Zealand – October 31
Sydney, Australia – November 1 – 19:00 – 21:00 The address is 58A Macleay Street – Entrance near Baroda Street – Potts Point NSW 2011 – There is a train you can get to Kings Cross Station.
Dubai, UAE – November 4
Limassol, Cyprus – November 7
Who: John Richardson, B.A., LL.B., JD (Toronto based lawyer)
When: 19:00 – 21:00
Cost: Free, but preregistration is required for all sessions except the October 25 session in Brisbane (where you can just appear)
Registration: Please send an email to: citizenshipsessions at citizenshipsolutions.ca
This post will be updated as further information becomes available. Feel free to check back!
Topics discussed:
Although there will be variation from location to location, the topics covered are likely to include:
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Part 19 – Comments from those with @TaxResidency in other countries about the effects of @USTransitionTax & #GILTI

Designed for Google and Amazon and applied to individual Americans abroad …


ADCS Press Release on the Transition Tax and GILTI: The Alliance For The Defence Of Canadian Sovereignty issued a press release on the impact of the “transition tax and GILTI” on people with tax residency in other countries. Although issued in November of 2017, it attracted a number of comments. These comments provide insight into how U.S. citizenship-based taxation damages people in other countries.
Comments made in November 2017 (before the world heard about the transition tax)
The comments (from November of 2017 which is well before the Section 965 transition tax was understood) are here.
Comments in September/October 2018
As described in this post, U.S. Treasury has been seeking comments about the Sec. 965 transition tax. The deadline for comments is October 9, 2018. You can read the comments here.
Comments that are particularly noteworthy are:
From American Citizens Abroad – on behalf of all Americans abroad


From James Gosart an individual

To: United States Department of the Treasury
Subject: Re: Proposed Regulations under Section 965 [REG 104226-18]
The transition tax is a killer for small American owned overseas businesses.
I am a small business owner of a consulting company in Hong Kong. Around the world, I’m sure there are thousands of small American business owners like me.
I formed the company in 2011 after spending more than 25 years based in China and Asia as an expat employee of a major US corporation. During the 7 years the company has been in operation, I have helped US companies and investors with their China and Asia strategies, ultimately growing their businesses in Asia and contributing to US based employment. My company paid corporate taxes annually in Hong Kong. I have now relocated to the US and I’m in the process of shutting the business down.
The new transition tax is so burdensome and complex that there is no way I would start such a business today. Nor would I recommend it to anyone else. For the US to decide to retroactively tax retained earnings of small US owned overseas businesses is so draconian and unprecedented that it will seriously impact the survival of countless numbers of such businesses. Even if a US owned overseas business is capable of making this payment, and many will not be able to, how can any business survive when faced with a 17.5% tax that their non-US owned competitors do not have? In addition, many thousands of Americans who use lawful local corporate entities as retirement savings vehicles will see their lifelong retirement savings decimated.
The Commerce Department has long estimated that for every $1 billion of business done by American business abroad 5,000 domestic US jobs are supported. Based on my own anecdotal experience I agree with that. No doubt the transition tax will cause thousands of American owned small businesses to close, or fail to start in the first place, will cause the loss of many thousands of US based American jobs, and will damage the lives of countless numbers of Americans living abroad.
I do not believe the transition tax for small business can be made fair or workable. It must simply be dropped altogether.

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And on the Home front …


The FATCA Canada lawsuit continues: The Alliance For The Defence Of Canadian Sovereignty announces the filing of its Memorandum of Fact and Law. The trial is expected to be heard in January of 2019.
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More on the U.S. “Transition Tax”
This is Part 19 of my series of posts discussing the Section 965 U.S. Transition Tax. This has been reposted with permission from Americansabroadfortaxfairness.org.

#FATCA Trial to take place in January 2019. Plaintiff's Memorandum of Fact and Law in @ADCSovereignty FATCA Lawsuit Filed

Happy Thanksgiving!
As we move into Thanksgiving Weekend, I am pleased to report that the we have reached an important milestone in the ADCS FATCA lawsuit. As you know, ADCS is suing the Government of Canada for enacting a foreign law – the US Foreign Account Tax Compliance Act (“FATCA“) – on Canadian soil. By so doing Canada violated numerous rights found in the Canadian Charter of Rights and Freedoms.  These are Charter rights guaranteed to all Canadians, regardless of where they happened to have been born.
Please take the time to read this important document – the Memorandum of Law – prepared by our lawyers.
2018 10 03 Plaintiffs’ Memorandum of Fact and Law_summary trial_FINAL
We expect the hearing to take place in Vancouver in January of 2019.
The history of our FATCA lawsuit to date
The Government of Canada signed a FATCA IGA with the United States in February of 2014. FATCA became operational in Canada on July 1, 2014. Our lawsuit was also launched in 2014.
1. This video which explains the background leading leading up to Canada’s signing the FATCA IGA

2. See the  FATCA – @ADCSovereignty Book of Posts that I have written which describes the background to and evolution of the lawsuit.
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Thanks to all of you have made this possible!
Our FATCA lawsuit would never have been possible without each of  you. I would like to specifically recognize …
– the generosity of our numerous donors. Incredibly, this has been possible through the donations of ordinary Canadians who have given what they can. Although the amounts donated have been significant to the individual donors, we have not had a single “deep pockets” or Corporate Donor. Thank you again!
– the witnesses and the people who have contributed countless hours of their valuable time
– our plaintiffs: Gwen and Kazia – it takes tremendous courage and conviction to volunteer your name and circumstances to a lawsuit of this type
– our lawyers who have been with us since the beginning
On behalf of the Board of the Alliance For The Defence of Canadian Sovereignty I wish you the best.
John Richardson

Passport Revocation: The new weapon in the US war on Americans abroad

Circa 2015:


The logical progression continues …
I just got off the phone with someone who has just received a letter from the IRS stating that:
1. He had a “seriously delinquent” tax debt; and
2. That notice of the “seriously delinquent” tax debt was being forwarded to the State Department.
(In 2016 I did a presentation on this topic just a few months after the law came into force. You may view the presentation here.)
It is clear that the letters from the IRS have started to go out. The purpose of this post is to explain in simple terms what this means for Americans abroad.
To put it simply:
1. If you have received the notice and you do NOT have a current U.S. passport then:
The State Department cannot issue you a passport.
2. If you have received the notice and you DO have a current U.S. passport then:
The State Department may revoke your passport but is not required to revoke your passport.
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