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Seriously now, who’s GILTI? Senators Wyden and Brown attempt to reinforce the punishment of GILTI Americans abroad

Introduction and July 2021 update …

There is wide agreement that the United States needs to improve its infrastructure. This will require massive spending. All spending necessitates a discussion of taxation. Since March 25, 2021 the Senate Finance Committee, Ways and Means Committee and the Biden administration have been exploring ways to increase taxation to pay for this. A series of SEAT submissions to the Senate Finance Committee is available here.

The community of Americans abroad has also recognized that any major tax reform creates an opportunity for a consideration of the United States transitioning to residence-based taxation. Although everybody claims to want residence-based taxation, the devil is in the details. As I have previously explained the words “residence-based taxation” mean different things to different people. The shared objective (of residence based taxation) is that the United States would cease imposing taxation on the non-US source income received by Americans abroad. That said, there are two broad ways that goal can be achieved. One way completely severs Americans abroad from US tax jurisdiction. The other leaves Americans abroad subject to US tax jurisdiction (forcing them to live in fear of every legislative change).

1. Pure residence-based taxation: Ending US tax jurisdiction over individuals who do NOT live in the United States. This would mean that Americans abroad would simply NOT be part of the US tax base. This is what residence-based taxation means in every other country of the world. In other words: you are not subject to US worldwide taxation because you don’t live in the United States. This is what I call “pure residence based taxation”. It is the only form of residence-based taxation that will solve the problems of Americans abroad. (This is what is advocated by SEAT.)

2. Citizenship-based taxation with a carve out: Continuing US tax jurisdiction over individuals who do NOT live in the United States, but relaxing the requirements that would apply to them. This proposal is what I call citizenship-based taxation with a carve out for certain people. Under this proposal, ALL Americans abroad would continue to be subject to US tax jurisdiction, but their non-US source income would (presumably) not be taxed by the United States. (This citizenship-based taxation with a carve out was the basis of the 2018 Holding bill and appears to what is being proposed by various groups. Further discussion of the Holding bill is here. It is essential that whenever a group announces that it is working toward residence based taxation that you ask them to clarify what they mean. Under the proposal, will Americans abroad remain subject to US tax jurisdiction? Will they still be defined as tax residents of the United States?)

(A more complete discussion about the difference between pure residence taxation and citizenship taxation with a carve out is here. A proposal for changes in the Internal Revenue Code that would result in pure residence-based taxation is here.)

Why completely ending US tax jurisdiction over Americans abroad (moving to pure residency-based taxation) is essential!!

The US tax code is incredibly complicated. The existence of citizenship-based taxation means that many changes in the tax code can impact Americans abroad even when the legislators are not considering the impact on Americans abroad. Since March of 2021 the Senate Finance Committee has been conducing hearings discussing tax reform for US corporations. The truth is that these proposals will affect many more individuals than corporations. Yet, Senate Finance never discusses the impact on individuals generally and individual Americans abroad in particular.

It is impossible for Americans abroad to survive when any change in the tax code could impact them without the legislators remembering that they even exist.

Let’s be clear! When it comes to Americans abroad:

It’s not that Congress doesn’t care about them. It’s that they don’t care that they don’t care!

This is why it is essential that ALL Americans abroad support and only support a movement toward “pure residence based taxation” which will ensure that nonresidents are NOT part of the US tax base.

If Americans abroad are left subject to the US tax based (citizenship-based taxation with a carve out) they will always be subject to being affected by any and all changes in US tax law.

A particularly egregious example of this in the following post. What follows is long, comprehensive and technical. Most will NOT want to read it.

But, the following post (written in 2020) is proof that ONLY pure residence-based taxation will solve the problems of Americans Abroad!



Americans abroad who are individual shareholders of small business corporations in their country of residence have been very negatively impacted by the Section 951A GILTI and Section 965 TCJA amendments. In June of 2019, by regulation, Treasury interpreted the 951A GILTI rules to NOT apply to active business income when the effective foreign corporate tax rate was at a rate of 18.9% or higher. Treasury’s interpretation was reasonable, consistent with the history of Subpart F and consistent with the purpose of the GILTI rules.

Now, Senators Wyden and Brown are attempting to reverse Treasury’s regulation through legislation. This is a direct attack on Americans abroad. Senators Wyden and Brown are living proof of the principle that:

When it comes to Americans abroad:

It’s not that Congress doesn’t care. It’s that they don’t care that they don’t care!


As many readers will know the 2017 US Tax Reform, referred to as the Tax Cuts and Jobs Act (TCJA), contained provisions which have made it difficult for Americans abroad to run small businesses outside the United States. In the common law world a corporation is treated as a separate legal entity for tax purposes. In other words the corporation and the shareholders are separate for tax purposes, file separate tax returns and pay tax on different streams of income. The 2017 TCJA contained two provisions that basically ended the separation of the company and the individual for U.S. tax purposes. In other words: there is now a presumption (at least how the Internal Revenue Code applies to small business owners) that active business income earned by the corporation will be deemed to have been earned by the individual “U.S. Shareholders”. To put it another way: individual shareholders are now presumptively taxed on income earned by the corporation, whether the income is paid out to the shareholders or not! The effect of this on individual Americans abroad has been discussed by Dr. Karen Alpert in her article: “Callous Neglect: The impact of United States tax reform on nonresident citizens“.

The expansion of the Subpart F Regime

The Subpart F rules were established in 1962. The principle behind them was that individual Americans should be prevented from, using foreign corporations to earn passive income, in jurisdictions with low tax regimes (or tax regimes that have lower taxes than those imposed by the United States). The Subpart F rules have (since 1986) included a provision to the effect that investment income (earned inside a foreign corporation) which was subject to foreign taxation at a rate of 90% or more of the U.S. corporate rate, would NOT be subject to taxation in the hands of the individual shareholder.

To put it another way (with respect to investment income):

1. It was mostly investment/passive income that was subject to inclusion in the incomes of individual shareholders as Subpart F income; and

2. Passive income that was subject to foreign taxation at a rate of 90% or more of the U.S. corporate tax rate (now 21%) would NOT be considered to be Subpart F income (and therefore not subject to inclusion in the hands of individual shareholders).

To coordinate my background discussion with the Arnold Porter submission described below, I will refer to exclusion of investment income subject to a 90% tax rate as “HTKO” (High Tax Kick Out).

The basic principle was (and continues to be):

If passive income earned in a foreign corporation is taxed at a rate of 90% or more of the U.S. corporate tax rate, that there was no attribution of that corporate income to the individual U.S. shareholder.

In its most simple terms, the Subpart F rules are found in Sections 951 – 965 of the Internal Revenue Code. They are designed to attribute income earned by the corporation directly to the U.S. shareholder, without regard to whether the corporate profits were paid to the shareholders as a dividend. Note that many developed countries have similar rules. Many developing (from a tax perspective) countries (for example Russia) are adopting Subpart F type rules. The U.S. rules are more complicated, more robust and (because of citizenship taxation) apply to the locally owned companies of individuals, who do not live in the United States.

Punishing them for their past and destroying their futures – The expansion of the Subpart F Regime to active business income

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