Author Archives: Admin

Part 52 – December 5, 2023 – The Supreme Court Hearing In Moore v. United States

1 Reply

Moore v. United States – December 5, 2023

https://www.supremecourt.gov/oral_arguments/audio/2023/22-800

Audio of the actual hearing:

This podcast is an audio of the actual argument that took place before the court. The relevant link to the Supreme Court site is:

https://www.supremecourt.gov/oral_arguments/audio/2023/22-800

Significantly a transcript of the argument is available at:

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-800_9ol1.pdf

The audio of the argument is also available at:

https://prep.podbean.com/e/moore-v-united-states-december-5-2023-the-argument-before-the-court/

_______________________________________________

SEAT President Dr. Laura Snyder attended the hearing. A fascinating podcast discussing her observations (right after the hearing ended) is available here.

https://prep.podbean.com/e/december-5-2023-debriefing-the-moore-case-what-happened-at-the-hearing/

SEAT along with AARO authored an amicus brief which explained the how the 965 transition tax impacted Americans abroad.

IRS Medic hosted a podcast both before, during and after the Supreme Court hearing. A link to that podcast is here:

Interested in Moore (pun intended) about the § 965 transition tax?

Read “The Little Red Transition Tax Book“.

John Richardson – Follow me on Twitter @Expatriationlaw

Part 51 – Twas The Night Before Moore – SEAT Members Discuss What They Expect In Moore Hearing

Leave a reply

December 2, 2023 – Participants include:

Dr. Karen Alpert – @FixTheTaxTreaty

Dr. Laura Snyder – @TAPInternation

John Richardson – @Expatriationlaw

SEAT members Dr. Karen Alpert, Dr. Laura Snyder and John Richardson discuss their predictions on how the Supreme Court will grapple with the difficult decisions in Moore. The SEAT/AARO amicus brief is here.

Prologue:

Twas the Night before Moore Poem

Twas the night before Moore, when all through the court
Not a justice was stirring, not even a clerk.
The issues were hung in the briefs with care,
In hopes that the justices soon would be there.

The tax profs were nestled all snug in their beds,
While visions of fake-income danced in their heads.
And Kathleen in ‘kerchief, and Charles in cap,
Had just settled their brains for a retroactive tax.

Interested in Moore (pun intended) about the § 965 transition tax?

Read “The Little Red Transition Tax Book“.

John Richardson – Follow me on Twitter @Expatriationlaw

Americans Abroad Aren’t Denouncing Because They Want To. They Are Renouncing Because They Feel They Have To

1 Reply

Introduction/background:

Denunciation of U.S. Citizenship – From the perspective from a U.S. Senator

Renunciation of U.S. Citizenship – From the perspective of a U.S. journalist

It’s hard to have a discussion about why Americans abroad are renouncing U.S. citizenship. There are many different perspectives about renunciation. There is very little “shared reality”. Tax academics (who have the resources to know better), “pensioned intellectuals”, politicians and most journalists see this from a “U.S. resident perspective”. They don’t understand the reality of the lives of Americans abroad. But, Americans abroad are NOT a monolith. The ONLY thing they have in common is that they live outside the United States. Their circumstances vary widely. There is little “shared reality” among Americans abroad of what the issues are. AT the risk of oversimplification, I have attempted to divide “Americans abroad” into four categories (as defined below). The categorization will explain why different groups of “Americans abroad” experience the U.S. extra-territorial tax regime differently.

Hint: Americans abroad aren’t renouncing U.S. citizenship because they want to. They are renouncing U.S. citizenship because they feel they have to.

Politicians, tax academics, “pensioned intellectuals” and many journalists deal in the world of opinions. The opinions they hold are often “myths”. They are not “facts”. They are entitled to their opinions (as misguided and ignorant as they may be). They are NOT entitled to their “facts”.

This post is to describe the facts about how the extra-territorial application of the Internal Revenue Code and the Bank Secrecy Act pressure many Americans abroad to renounce U.S. citizenship. Interestingly a large percentage of those renouncing owe ZERO taxes to the U.S. government. They renounce anyway!

First, a bit of background to the problem – what is the problem and who is affected?

They do NOT meet the test of being “nonresident aliens” under the Internal Revenue Code

As SEAT cofounder, Dr. Laura Snyder explains, in the first of her 16 “working papers” describing the problems of Americans abroad:

The people most affected by the U.S. extraterritorial tax system are not a monolithic group. Some left the United States recently, some left years or decades ago. Some left as adults (some young, some middle-aged, and some retirees), while others left as children (with their families), and some have never lived in the United States (they are U.S. citizens by virtue of the U.S. citizenship of at least one parent). Some intend to live in the United States (again) in the near or distant future, while others do not intend to ever live in the United States (again). Some identify as Americans while others do not. Many are also citizens of the country where they live (dual citizens) while others hold triple or even quadruple citizenships. In referring to this group, there is no one term that sufficiently reflects its full diversity. What unites them is that they do not meet the test of “nonresident alien” under the Internal Revenue Code. Depending upon the context, this series of papers will use terms such as “persons,” “individuals,” “affected individuals,” and “overseas Americans.” The latter term has a drawback, however: it emphasizes connections to the United States while minimizing the important connections that such persons have to the countries and communities where they live.

That said, what divides Americans abroad may be greater than what unites Americans abroad!

Continue reading →

Canada’s Underused Housing Tax May Violate The Non-discrimination Clause In Tax Treaties

Leave a reply

Purpose and summary of this post:

Because Canada’s Underused Housing Tax treats nonresidents of Canada differently, based on their citizenship, the tax may violate the non-discrimination Article in many of Canada’s tax treaties (including the Canada U.S. tax treaty). Nonresidents of Canada are treated differently depending on whether or not they are Canadian citizens. For example a Canadian citizen who is a nonresident of Canada is “excluded” from the tax. But, a U.S. citizen who is a nonresident of Canada is “affected” by the tax. This appears to violate paragraph 1 of Article XXV of the Canada U.S. tax treaty (and other Canadian tax treaties).

Paragraph 1 of Article XXV of the Canada U.S. tax treaty:

1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith that is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, particularly with respect to taxation on worldwide income, are or may be subjected. This provision shall also apply to individuals who are not residents of one or both of the Contracting States.

The question is what is meant by “in the same circumstances”. Relevant commentary from the OECD and from U.S. Treasury underscores that the words “particularly with respect to taxation on worldwide income” include whether the individual is taxed as a tax resident of the country or as a nonresident of the country.

Arguably all “nonresidents” of Canada are “in the same circumstances” (in relation to Canada’s tax system). Hence, “nonresidents” should not be treated differently depending on their citizenship.

Discussion and analysis follows.

___________________________________________________________________

Introduction – The Hypocrisy Of Representative Brian Higgins Continues

“Good Americans should NOT have a Canadian tax imposed on them!”

This is a recent statement from Congressman Brian Higgins. Click on the following tweet to listen to a recent interview with the Congressman.

The background …

As discussed here, Canada has a number of “Vacant Home Taxes“. Canada’s Underused Housing Tax is taxation based on citizenship and/or immigration status. (It is NOT based on “tax residency” and “tax residency” is irrelevant.) Notably the United States is the only major country in the world that makes citizenship and/or immigration status a sufficient condition for “tax residency”. In fact the United States imposes worldwide taxation and FATCA compliance on a approximately one million Canadian residents. Nevertheless, Congressman Higgins is certain of the injustice of Canada’s imposition of a citizenship based tax on U.S. residents. (The fact that the tax is based on property located in Canada appears to him to be irrelevant.) Furthermore, he seems intent on NOT acknowledging that:

“Good Canadians should not have an American tax imposed on them”.

Apparently what’s okay for the USA is somehow not okay for Canada.

But, hypocrisy aside …

Congressman Higgins’s objections hopefully will generate a discussion of the injustice of citizenship taxation generally. While ignoring the fact that the U.S. citizenship tax regime imposes direct U.S. taxation on the Canadian source income of millions of Canadian residents, Congressman Higgins is certain that Canada’s tax (which affects at most a few thousand Americans) violates the U.S. Canada tax treaty. In other words, Congressman Higgins’s hypocritical position appears to include:

“Only the United States has the right to impose taxation on the residents of other countries under the principle of citizenship taxation“.

In the spirit of affirming that Canada’s citizenship tax on Americans is in violation of the principle that only the United States has the right to engage in citizenship taxation, Congressman Higgins appeared as a witness before a Canadian Parliamentary Committee to discuss Canada’s Underused Housing Tax. The hearing took place in June 2023. During the hearing he raised the spectre of two possible legal challenges to Canada’s threat to the (presumptive) U.S. monopoly on citizenship taxation. The claim that Canada’s Underused Housing Tax violates the “non-discrimination” Article of the Canada U.S. tax treaty (and other Canadian tax treaties) is the subject of this post.

Food for thought:

The non-discrimination clause in the standard tax treaties suggests that certain kinds of citizenship taxation may be inappropriate. (How this reality bears on the question of U.S. citizenship taxation generally will be the subject of a separate post.)

Outline:

Part A – About Canada’s Underused Housing Tax
Part B – Representative Brian Higgins June 5, 2023 testimony to Canadian Parliamentary Committee – Includes “potential violations”
Part C – Thinking about the “non-discrimination” clause – A basic analysis
Part D – What does U.S. Treasury’s Technical Explanation suggest?
Part E – What about Canadian tax treaties with other countries? – Considering the Canada UK treaty
Part F – Appendixes – Various Tax Treaties

Part A – About Canada’s Underused Housing Tax

The statute and regulations are here. S. 2 of the statute deems certain individuals to be “excluded owners” of residential property. Those “excluded” from the application of the Act are defined to include:

(b) an individual who is a citizen or permanent resident, except to the extent that the individual is an owner of the residential property in their capacity as a trustee of a trust (other than a personal representative in respect of a deceased individual) or as a partner of a partnership;

To put it simply: Canadian “citizens” and those with the legal status of being “permanent residents” of Canada are excluded from the application of the statute. They are not subject to the tax. Those who are NEITHER Canadian citizens NOR permanent residents of Canada are (depending on the occupancy of the property) subject to the tax. This means that (in general) U.S. citizens, living in the United States, are subject (as”affected” owners) to the statute and may (depending on the occupancy of the property) be required to pay the tax.

To simplify the application of the law:

Canadian citizens and permanent resident owners (regardless of whether they are tax residents of Canada) are not subject to the tax.

U.S. citizens (who are neither Canadian citizens nor permanent residents) are subject to the tax.

To simplify the context:

Imagine four neighbors living in Buffalo, New York. They all drive Ford trucks. They all drink Budweisers. They all watch the Buffalo Bills on Sundays. They all work for the same company. They all file taxes jointly with their spouses. They all own seasonal homes (in their names only) located in Fort Erie Ontario, Canada (where they become “neighbours” instead of “neighbors”. Interestingly and completely arbitrarily, Canada’s Underused Housing Tax may or may apply to them. Let’s see how the tax might affect each of them.

Neighbor 1: Neither a Canadian citizen nor permanent resident of Canada – subject to the tax

Neighbor 2: A dual citizen of Canada and the United States – NOT subject to the tax

Neighbor 3: A U.K, citizen who has the legal status of “permanent resident” of Canada, but also a U.S. Green Card holder – NOT subject to the tax

Neighbor 4: A U.K. citizen living in the United States on an L visa – subject to the tax.

Notice that all four of these neighbors live in Buffalo, New York and are NOT tax residents of Canada. Neighbor 2 (Canadian citizen) and Neighbor 3 (permanent resident of Canada) are NOT subject to the tax. Neighbors 1 and 4 (neither Canadian citizens nor permanent residents of Canada are subject to the tax).

Part B – Representative Brian Higgins June 5, 2023 testimony to Canadian Parliamentary Committee – Includes “potential violations”

Excerpt from his testimony:

Continue reading →

Part 49 – 2012 Report Of Congressional Research Service Suggests @USTransitionTax May Be Unconstitutionally Retroactive

Leave a reply

Introduction and purpose

In an earlier post I argued that in the Moore appeal the Supreme Court should consider the retroactive nature of the MRT AKA transition tax. My argument was based my interpreting the law to be that retroactive legislation might be unconstitutional if it:

1. Was retroactive for an extensive period of time (in this case the period of retroactivity was 31 years); and

2. Was new legislation

After writing that post, I came across this 2012 Congressional Research Report which suggests that tax legislation could be unconstitutionally retroactive based on the same two principles.

A relevant excerpt from the report follows.

The 2012 Congressional Research Report: CRS Report for Congress Prepared for Members and Committees of Congress Constitutionality of Retroactive Tax Legislation

The following excerpt is of interest and relevance to the Moore appeal

Period of Retroactivity

The most common potential concern with respect to substantive due process is the length of the retroactivity. The Supreme Court has made clear that a modest retroactive application of tax laws is permissible, describing it as a “customary congressional practice” required by “the practicalities of producing national legislation.”9 As a result, tax legislation that is retroactive to the beginning of the year of enactment has routinely been upheld against due process challenges.10 There does not seem to be any serious question as to whether such a period of retroactivity is constitutional.

What then happens with periods of application that go beyond the year of enactment? The Court has upheld several tax laws where the period of retroactivity extended into the preceding calendar year.11 For example, in United States v. Carlton, the Court upheld the retroactive application of a federal estate tax provision that limited the availability of a recently added deduction for the proceeds of sales of stock to employee stock ownership plans. The deduction was added by the Tax Reform Act of 1986, which had not included a requirement that the taxpayer own the stock immediately prior to death. The lack of such a requirement essentially created a loophole that Congress fixed with the 1987 amendment. The Tax Reform Act of 1986 was enacted in October 1986, and the amendment was enacted in December 1987, to apply as if incorporated in the 1986 law. In upholding the 1987 law, the Court explained that the period of retroactivity was permissible since it was only slightly more than one year, as well as noting that the IRS had announced its concern with the original law as early as January 1987 and a bill to make the correction was introduced in Congress the very next month.12

However, it does appear that due process concerns may be raised by a more extended period of retroactivity. In Nichols v. Coolidge (one of the few cases where the Supreme Court struck down a retroactive tax on due process grounds),13 the Court disallowed the retroactive application of an estate tax provision that changed the tax treatment of a transfer 12 years after the transfer had occurred.14 The Court later unfavorably compared the 12-year period with periods where the “retroactive effect is limited.”15 This suggests that due process concerns are raised by an extended period of retroactivity. However, it is not clear how long a period might be constitutionally problematic. The Court has recognized retroactive liability for periods beyond one or two years in non-taxation contexts,16 but it is not clear how a similar situation arising under the tax laws would be addressed.

Reliance and Lack of Notice

One issue often raised is that it may seem unfair to change the tax laws once a taxpayer has done something based on the law as it existed at the time. The fact that taxpayers may have concluded a transaction in reliance on prior law is generally not important to the analysis as “reliance alone is insufficient to establish a constitutional violation.”17 As the Court has made clear, “[t]ax legislation is not a promise, and a taxpayer has no vested right in the Internal Revenue Code.”18 In other words,

Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process….19

Additionally, lack of notice of the retroactive effect of a tax law is not dispositive of whether due process has been violated.20 Lack of notice may, nonetheless, be a concern when the retroactive legislation enacts a wholly new tax. This was the issue in two cases where the Court struck down retroactive tax legislation on due process grounds—Blodgett v. Holden and Untermyer v. Anderson.21 Both dealt with the constitutionality of retroactive application of the Revenue Act of 1924, which enacted the gift tax. The legislation was introduced in February 1924, enacted that June, and applied to gifts made after January 1, 1924. The taxpayer in Blodgett made a gift in January 1924, and the taxpayer in Untermyer made a gift in May 1924, while the bill was in conference. The plurality in Blodgett and the majority in Untermyer held the retroactive application was unconstitutional because it was arbitrary as the taxpayers made gifts without knowing they would subsequently be subject to tax.22 In such a situation, a taxpayer has “no reason to suppose that any transactions of the sort will be taxed at all.”23

The Court in later cases has clearly distinguished the two cases on the basis that they dealt with the “creation of a wholly new tax” and therefore “their authority is of limited value in assessing the constitutionality of subsequent amendments that bring about certain changes in operation of the tax laws.”24 Thus, while lack of notice is not dispositive, the Court has suggested that lack of notice may violate due process if the retroactive law creates a “wholly new tax.”

Since the two cases dealing with the creation of the gift tax, it does not appear the Court has found any other situations where lack of notice was an issue.25 In some instances, the Court determined the retroactive tax provision was not a wholly new tax, as with the provision in Carlton, which amended a new estate tax deduction that was enacted 14 months prior as part of a major overhaul of the tax code.26 Even in a case with what looked like a brand new tax—a tax on silver under the Silver Purchase Act—the Court upheld a 35-day period of retroactivity.27 In that case, the law was enacted on June 19, 1934, retroactive back to May 15, 1934. In upholding the law’s retroactive application, the Court suggested that taxpayers had sufficient notice since there had been pressure for legislation for months, the President had sent a message to Congress encouraging such a tax on May 15, and the bill that became the act was introduced on May 23. This suggests that it would be rare for a tax provision to be characterized as a “wholly new tax” so long as taxpayers were on some kind of notice that a tax might be imposed.

The full report is available here:

https://sgp.fas.org/crs/misc/R42791.pdf

A pdf of the full report is here:

Retroactive Tax R42791

Interested in Moore about the § 965 transition tax?

Read “The Little Red Transition Tax Book“.

John Richardson – Follow me on Twitter @Expatriationlaw

Part 2 – Citizenship Matters: Elvis, Casablanca, Citizenship and Immigration: When Art Imitates Life

Leave a reply

My day at the movies …

This post is a continuation of of my first post about Joe Grasmick’s “Free Trade Professionals” conference that took place in September of 2023 in Mexico City. The first post described the conference and why “citizenship matters”. The morning after the conference ended I boarded a plane for a long flight. I was still thinking about citizenship and immigration.

Usually I don’t watch movies on flights. This time (who knows why) I went through the movie selection and saw two movies where “citizenship/immigration status” played a huge role (whether directly or indirectly) on the lives of individuals. (I didn’t realize this until I watched both movies.) The new 2022 movie “Elvis” and the 1942 old movie “Casablanca” were on the menu. I watched both. Some thoughts on each …

“Elvis” the movie:

A great movie. Sure, it’s about the life and times of Elvis Presley. But, the story of Elvis also includes the role of his manager’s status as an illegal alien in the United States. A partial description includes:

Afterwards, Elvis headlines at the largest showroom in Las Vegas, the International Hotel, and resumes concert tours. Parker’s control of Elvis’ life tightens as he refuses Elvis’ request for a world tour. Motivated by gambling debts, Parker manipulates Elvis into signing a contract for a five-year Las Vegas casino residency. Elvis’ problematic behavior and prescription drug addiction overtake him, and a despondent Priscilla divorces him on his 38th birthday, taking their daughter Lisa Marie with her. After discovering that Parker cannot leave the country because he is a stateless illegal immigrant, Elvis attempts to fire him. Parker subsequently informs Vernon that the family owes him an $8.5 million debt accumulated over the years and convinces Elvis of their symbiotic relationship; though the pair rarely see each other afterward, Parker continues as his manager

https://en.wikipedia.org/wiki/Elvis_(2022_film)

How might the life of Elvis Presley been different if Colonel Tom Parker had either been a U.S. citizen or had a Green Card? Would Elvis’s career have unfolded differently? For that matter would he have died at such a young age? Clearly he would have toured outside the United States.

But, enough on Elvis. The more interesting story of the role of citizenship and immigration (and how they relate to Americans abroad) is found in the 1942 classic movie “Casablanca”.

.
“Casablanca” the movie:

Casablanca is a true classic. Classics (whether books, movies or art) are interpreted in different ways, by different people at different stages in their lives. As the flight took off, I was still thinking about immigration and how everybody is an immigrant or alien somewhere. How certain people (because of their lack of citizenship are subject to a form of “citizenship apartheid“. Because my mind was in the world of immigration and because I had clearly been a “foreigner” in Mexico City, I saw Casablanca in a completely different light. As described by Wikipedia

“Casablanca is a 1942 American romantic drama film directed by Michael Curtiz, and starring Humphrey Bogart, Ingrid Bergman, and Paul Henreid. Filmed and set during World War II, it focuses on an American expatriate (Bogart) who must choose between his love for a woman (Bergman) and helping her husband (Henreid), a Czechoslovak resistance leader, escape from the Vichy-controlled city of Casablanca to continue his fight against the Germans. The screenplay is based on Everybody Comes to Rick’s, an unproduced stage play by Murray Burnett and Joan Alison. The supporting cast features Claude Rains, Conrad Veidt, Sydney Greenstreet, Peter Lorre, and Dooley Wilson.”

Although Casablance may be in part a “romantic drama film” it is certainly a story about oppression, refugees, human mobility, citizenship, chance, injustice and human survival. Coming off the immigration conference, I interpreted the movie largely through the lens of circumstance, citizenship, fortune driven by the accident of birth and how little is required to disrupt the life any person. As the movie makes clear from the outset, people came to Casablanca because they were fearing and trying to escape from tyranny and were generally trying to get to “the Americas” (the safe haven of the time).

This is the trailer.

It’s a great movie. It’s great entertainment for people of all ages. But, seen through the perspective of citizenship and immigration it exhibits many parallels to the lives of Americans abroad.

What follows are some clips that exhibit analogies to common scenarios.

__________________________________________________________________________

Some meaningful clips from the movie Casablanca ..

A: Rick experiences an “Oh My God Moment”: On random events – sometimes bad things happen to good people…

B: About U.S. Citizenship and taxation – “It’s based on the circumstances of birth”

C: About the forced imposition of citizenship – Reminds me of the Accidental Americans – “I have never accepted tha privilege. I am now on French soil.”…

D: About the importance of the visa, passport and mobility documentation – It’s all relative … One way or the other, “citizenship matters”. Apparently Rick is always free (from an immigration and citizenship perspective) to return to the USA

E: “To renounce of not to renounce, that is the question”: On the meaning of the decision (including the renunciation decision) – If you don’t get on that plane (renounce), you’ll regret it …

F: Here’s looking at you kid – The U.S. extra-territorial tax regime (although a big problem is a “first world problem”)

G: I finally understood the origins of the title of the Wood Allan movie “Play It Again Sam” …

John Richardson – Follow me on Twitter @Expatriationlaw

Appendix – The trailer for “Play It Again Sam”

Part 1 – Citizenship Matters: How The Lives Of “Free Trade Professionals”, Americans Abroad And Casablanca Overlap

Leave a reply

Mexico City – September 2023 – A reminder that citizenship matters

Last month I attended an Immigration Conference in Mexico City. It was organized by Buffalo immigration lawyer Joe Grasmick and focussed on the USMCA, CUSMA (formerly called the NAFTA Free Trade Immigration Visa- TN Visa). The conference highlighted the opportunities available to citizens of Canada, Mexico and the USA to live in any one of these three countries performing certain professional services for which they are qualified.

In a nutshell the “Free Trade Immigration” visa is an opportunity for:

1. Citizens of the United States, Canada and/or Mexico who have the status of being certain kinds of professionals (who they are and their professional qualfications); to accept

2. Certain kinds of employment (what will they actually be doing).

The devil is certainly in the details. Immigration under the “Free Trade Professional” category has its own nuances. It is certainly more difficult than it appears (and is described).

The conference was a “sobering” reminder that “citizenship matters”!

Continue reading →

American expats urged to comment on State Dept fee reduction plan by 1st Nov deadline

Leave a reply

October 29, 2023 By Helen Burggraf – American Expat Financial News Journal

Advocates for fairer tax treatment of American expats by their government, including both the Republicans Overseas and Democrats Abroad, are urging such expats not to hesitate in posting comments on a U.S. State Department proposal to lower the fee currently charged those seeking to renounce their U.S. citizenships, the deadline for which expires in less than three days. 

Continue reading →

Bonjour Part 2 – US Citizens Living In France Can Use French Tax As A Credit To Offset The Obamacare Surtax!

Leave a reply

A Quick Synopsis

Congratulations to lawyers Stuart Horwich & James Lieber for their work and success in achieving this result for Americans abroad.

Because of the specific provisions of the France/U.S. tax treaty, U.S. citizens who are resident in France are eligible to use French income tax paid as a tax credit against the 3.8% Obamacare surtax. Depending on the terms of the tax treaty in their country of residence, it is possible that U.S. citizens residing in other countries may be able to use taxes in their country of residence as a tax credit against the 3.8% Obamacare surtax.

As described below, I expect that to be able to use foreign taxes paid as a credit against the 3.8% Net Investment Income Tax, the “Double Taxation” article in the relevant tax treaty must include a specific provision for “U.S. citizens residing in the country of residence”. (Canada comes to mind. But, I will have to some more research …)

Note that it is very possible that this decision will be appealed. The US government will be unhappy with this decision.

For more detail and analysis, keep reading. This post in organized into the following parts:

Part A – Introduction – Background
Part B – Before moving to another country, pay special attention to the tax treaty between the US and that country!
Part C – MATTHEW AND KATHERINE KAESS CHRISTENSEN V. UNITED STATES – Why does the US/France tax treaty work for them?
Part D – Not all tax treaties are the same! What kind of tax treaty provision create the eligibility to use foreign tax credits to offset the Obamacare surtax?
Part E – It’s great that I am entitled to a foreign tax credit. But, how is the tax credit to be calculated?
Part F – The Question: I live in country X. May I use foreign tax credits to offset the Obamacare surtax?
Part G – Dang! Can I get a refund? It appears that refunds ARE available to those who improperly were charged the Obamacare surtax!
Appendix – ARTICLE 24 Of the 1994 France/US Tax Treaty with the later protocols taken into account

Continue reading →

Part 50 – Moore: The Government And The Tax Academics Strike Back

Leave a reply

Introduction

The U.S. Supreme Court will hear the case of Charles G. Moore v. United States on December 5, 2023. It is certain to be the most closely watched oral argument ever. I had originally considered travelling to DC to observe the spectacle in person. But, I have no desire to stand in a long line. I will have to settle for listening to audio online.

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-800.html

The government’s reply was filed on October 16, 2023. It has been supported by (so far) a relatively small number of amicus briefs from various tax academics (law professors). The purpose of this post is to offer my impressions of what I have read so far. There is a saying that two good trial lawyers are like two ships passing in the night (each with a different theory of the case). This is also descriptive of the briefs (collectively) in support of the Moores and the briefs (collectively) in support of the government.

Outline

Part A – A Review – What is the Moore case actually about?
Part B – Some preliminary questions – in the context of understanding the 16th amendment:
Part C – The government’s reply and the “tax academic” supporters are notable in that they:
Part D – An attempt to consolidate what the government and tax profs are saying …
Part E – Retroactivity – An Uncomfortable Truth
Appendix – The Tax Law Center

_____________________________________________________

Continue reading →