This is a continuation of the post “Part 9: Responding to the Sec. 965 “transition tax”: From the “Pax Americana” to the “Tax Americana”
cross-posted from citizenshipsolutions by John Richardson
The first portion of the post was published Nomad Capitalist, in 212 AD the Roman Emperor Caracella expanded Roman citizenship by bestowing Roman citizenship on all free men. A listing in Wikipedia suggests that:
The Roman jurist Ulpian‘s Digest stated, “All persons throughout the Roman world were made Roman citizens by an edict of the Emperor Antoninus Caracas” (D. 1.5.17).
The context of the decree is still subject to discussion. According to Cassius Dio, the main reason Caracalla passed the law was to increase the number of people available to tax. In the words of Cassius Dio: “This was the reason why he made all the people in his empire Roman citizens; nominally he was honoring them, but his real purpose was to increase his revenues by this means, inasmuch as aliens did not have to pay most of these taxes.” It should, however, be noted that Cassius Dio generally saw Caracalla as a bad, contemptible emperor.
Another goal may have been to increase the number of men able to serve in the legions, as only full citizens could serve as legionaries in the Roman Army. In scholarly interpretations that followed a model of moral degeneration as the reason for the fall of the Roman Empire, notably the model followed by Edward Gibbon, the edict came at the cost to the auxiliaries, which primarily consisted of non-citizen men, and led to barbarization of the Roman military
Clearly Rome was not the last empire to associate “citizenship” with “taxation”.
Part E: Empire and taxation: As goes taxation, so goes civilizations
As the late Charles W. Adams wrote in his classic book – “For Good and Evil: The Impact Of Taxes On The Course Of Civilization” – the evolution of civilizations is a function of the tax policies of the civilization. Presumably as “civilizations expand into empires”, the tax policies of an empire are more likely to expand beyond the borders of the nation and into other nations. What the United States calls “citizenship-based taxation” (making it seem patriotic) is really the policy of imposing “worldwide taxation” on the “tax residents” of other countries. It is explainable as a part of the creation and expansion of empire. FATCA is the way that the American Empire has forced other nations to (1) impose U.S. taxation on the residents of those countries and (2) force those other countries to bear the cost of so doing.
Canada is probably the number one victim of U.S. “extra-territorial taxation”.
Part F: Public Perception of Empire
Former Canadian Liberal Leader Michael’s Ignatieff writing on American Empire – 2003
THE AMERICAN EMPIRE; The Burden https://t.co/AEBir4qTSj
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) April 16, 2018
Former Canadian Liberal Leader Michael Ignatieff was a Harvard Professor when he was recruited by the Federal Liberals to return to Canada and lead the Liberals from the “waste land” to the “promised land”. Mr. Ignatieff was kind of a “public intellectual” who quickly learned that the “hard knocks” of political life were harder than the comforts of his academic appointments. In any case, Mr. Ignatieff recognized American Empire and wrote a fascinating article about it (which appeared in the New York Times in 2003 just prior to the Bush invasion of Iraq.) It’s a fascinating article. Well worth the read. It includes:
America’s empire is not like empires of times past, built on colonies, conquest and the white man’s burden. We are no longer in the era of the United Fruit Company, when American corporations needed the Marines to secure their investments overseas. The 21st century imperium is a new invention in the annals of political science, an empire lite, a global hegemony whose grace notes are free markets, human rights and democracy, enforced by the most awesome military power the world has ever known. It is the imperialism of a people who remember that their country secured its independence by revolt against an empire, and who like to think of themselves as the friend of freedom everywhere. It is an empire without consciousness of itself as such, constantly shocked that its good intentions arouse resentment abroad. But that does not make it any less of an empire, with a conviction that it alone, in Herman Melville’s words, bears ”the ark of the liberties of the world.’‘
In other words, the United States is a country that believes that all of its policies, actions and ambitions are cloaked in righteousness simply because it is the United States.
Part G: Empire and taxation: If you were to ask your friends the following question:
Q. Do you think that the United States would impose more punitive taxation and compliance requirements on: (1) U.S. citizens living in the United States or (2) certain Canadian citizens living in Canada?
A. The probable answer would be: Don’t be absurd. Of course the United States imposes more punitive taxation on U.S. citizens living in the United States than on Canadian citizens living in Canada.
Wrong! Wrong! Wrong!
To put it simply: The Internal Revenue Code of the United States imposes taxes, sanctions and penalties on certain Canadian residents that are not imposed on Homeland Americans at all. The point its is that “non-residents” are subjected to a harsher set of U.S. tax rules than are U.S. residents.
One answer to the question includes …
I know the answer to this question. I filed one year using TurboTax (and a host of paper filings since TurboTax falls way short of being sophisticated enough for a foreign return) and it had a helpful function at the end where you could compare your US tax liability against others in a similar income band. My US tax liability was 2.5x the average bill in the same income band. That’s not 2.5% but 2.5x. My “fair share” was more than twice as much for the same level of income as the homelander “fair share”.
Thankfully, the out of pocket cost was limited by the taxes I had already paid in the UK. But, it shows the cost of not living a life optimised for the rules of the US tax system can be enormous. If you live in the US, there are tax no brainers. If you live in the UK, there are tax no brainers. But if you’re subject to both systems at the same time, you can’t benefit from the tax no brainers since, by and large, the other country takes what the other giveth.
As I’ve said before, the US tax system includes on the basis of citizenship but excludes on the basis of physical location since participation in the tax no brainers is limited by things like US source earned income which you can, generally, only get when you live in the US.
Q. How does the U.S. tax bill of a U.S. tax subject living OUTSIDE USA (@taxresidency in another country) compare to U.S. tax bill of a U.S. tax subject living INSIDE the USA? A. Hard to believe but, non-US residents mostly taxed more than U.S. residents! https://t.co/JwGs5Ru37k
— John Richardson – lawyer for "U.S. persons" abroad (@ExpatriationLaw) April 16, 2018
U.S. taxation of residents of other Canada and other countries: It’s really “territorial taxation” in reverse
As Charles Bruce (ACA Legal Counsel) describes it:
Ironically, this is a prime example of “upside down” territoriality. Under a territorial approach, such as, residency-based taxation, the taxpayer is expressly not taxed on foreign income. Here, the taxpayer – say, an American abroad – for sure will be fully taxed on foreign income, whereas his or her cousin in the States who earns domestic business income will enjoy the 20% deduction.
Part H: 12 examples (in addition to the “transition tax”) which U.S. residents can “laugh about” and Canadian citizens can/should “rage about”:
1. Templeton Mutual Fund bought in the U.S. by a U.S. resident is NOT subject to PFIC confiscation. The same mutual fund (with exactly the same securities) bought in Canada by a Canadian resident is subject to PFIC confiscation. Furthermore, the Canadian resident is required to report his ownership in his Canadian mutual fund on Form 8621 – check it out here.
2. A U.S. resident who invests in a ROTH IRA has automatic “tax deferral” and is not subject to U.S. taxation. A Canadian resident who invests in an equivalent TFSA does not have “tax deferral” and is subject to U.S taxation on the income on TFSA even though he is not subject to taxation on the income in Canada.
3. A U.S. resident who invests in an ABLE plan (Achieving a Better Life Experience Act) has automatic tax deferral. A Canadian resident who invests in an RDSP (equivalent “special needs plan”) is subject to U.S. taxation on that income. Furthermore, the Canadian resident is required to report his ownership of his RDSP on Form 3520 – check it out here.
4. A U.S. resident who invests in a S. 529 “education plan” has automatic tax deferral. A Canadian resident who invests in an RESP (equivalent “education plan”) does not have “tax deferral” and is subject to U.S. taxation on that income. Furthermore, the Canadian resident is required to report his ownership in his RESP on Form 3520 – check it out here.
5. A U.S. resident who receives distributions from a 401K plan is not subject to the 3.8% Obamacare surtax. A Canadian resident who takes a distribution from an (equivalent) Canadian RRSP is subject to the 3.8% Obamacare surtax. Furthermore, the Canadian resident is required to report his Obamacare surtax on Form 8960 – check it out here.
6. A U.S. resident is not required to report his local U.S. bank accounts to U.S. Financial Crimes. A Canadian resident is required to report his Canadian bank accounts to U.S. Financial Crimes. This is a very special category of “form crime” -see information about Mr. FBAR.
7. A U.S. resident is not required to report his U.S. financial assets annually to the IRS on Form 8938. A Canadian resident may be required to report his Canadian financial assets annually to the IRS on Form 8938. Form 8938 is an extremely intrusive, time consuming form. Check it out here.
8. A U.S. resident is NOT required to treat his activities in the USA as foreign and subject to penalties and reporting. Certain Canadian residents are required to treat their business activities in Canada as foreign and subject to penalties and reporting. Check out Form 5471 and From Form 8865.
9. A U.S. resident married to a U.S. citizen spouse is allowed to make unlimited gifts to his spouse. A Canadian resident married to a Canadian citizen spouse is NOT allowed to make unlimited gifts to his spouse. Furthermore, the Canadian resident is required to report certain gifts to his spouse on Form 709 – check it out here.
10. A U.S. resident who renounces U.S. citizenship will not have his U.S. pension plan subject to confiscation because of the Section 877A Exit Tax. A Canadian resident who renounces U.S. citizenship would have his Canadian pension plan subject to confiscation because of the S. 877A Exit Tax. It’s because it the pension is NOT a “U.S. pension”, but is a “Canadian pension”.
11. The TCJA includes a provision that allows U.S. residents to deduct property taxes on their U.S. principal residences, but specifically does NOT allow a Canadian living in Canadian to deduct property taxes on his Canadian principal residence.
12. The TCJA provided allows a deduction of up to 20% of passthrough income for specified service business owners with income under $157,500 (twice that for married filing jointly) for certain income effectively connected with the conduct of the trade or business within the US. A U.S. resident operating a U.S. business is entitled to the deduction. A Canadian resident carrying on a small unincorporated business in Canada is NOT entitled to the 20% reduction.
An “unintended consequence” or “willful”?
The vast majority of U.S. residents and Congressmen neither understand this nor know that this is taking place. That said, some members of the Treasury clearly do understand that:
Part I: It’s the “Tax Americana” – a “form” (pun intended) of “tax colonization”
In any case – the “Tax Americana” must first be understood and then end:
The time has come for the United States to stop imposing “worldwide taxation” of people who are “tax residents” of other countries and do NOT live in the United States”.
The time has come for other countries to recognize the “Tax Americana” and realize how the “Tax Americana” is eroding the sovereignty of other nations!
The next post in this series will explore the question of:
What could the Canadian Government do (without U.S. agreement) to stop the U.S. from taxing Canadian residents (who are also U.S. citizens)?
The first eight posts in my “transition tax” series were:
Part 1: Responding to The Section 965 “transition tax”: “Resistance is futile” but “Compliance is impossible”
Part 2: Responding to The Section 965 “transition tax”: Is “resistance futile”? The possible use of the Canada U.S. tax treaty to defeat the “transition tax”
Part 3: Responding to the Sec. 965 “transition tax”: They hate you for (and want) your pensions!
Part 4: Responding to the Sec. 965 “transition tax”: Comparing the treatment of “Homeland Americans” to the treatment of “nonresidents”
Part 5: Responding to the Sec. 965 “transition tax”: Shades of #OVDP! April 15/18 is your last, best chance to comply!
Part 6: Responding to the Sec. 965 “transition tax”: A “reprieve” until June 15, 2018
Part 7: Responding to the Sec. 965 “transition tax”: Why the transition tax creates a fictional tax event that allows the U.S. to collect tax where it never could have before
Part 8: Responding to the Sec. 965 “transition tax”: This small business thought it was saving to invest in business expansion – Wrong, they were saving to be robbed by America!
I think this would be good ammo for anyone who wishes to try and overturn Cook v. Tait, since it goes to show that CBT does not (and cannot) put Americans living abroad in a “similarly situated” position as Homelanders.
Since we are quoting Romans, here is an ageless quote:
An honest man will pay more taxes on the same income than a dishonest man.
Proof that the progressive Income Tax has always been an invitation to skim and cheat the treasury.
The FairTax can have cheaters, but not to the extent of the progressive tax.
Thank you for making it seem pretty simple – citizens are subject to US taxation merely because of citizenship, and discriminated against merely because we don’t live in the homeland.
There has to be a more reasonable way for citizens to pay tribute to the Empire.
Could you use this “work in progress” by Allison Christians as an excuse to ask her whether she will be analyzing the Transition Tax and how it affects overseas/across-border USC individuals with businesses? Maybe she would go up to bat for us on this one too. I envision a paper titled “Retroactively Taxing Phantom Income Where Value Was Created Outside the USA”.
I did contact Prof Christians some months ago re the Transition Tax, and although she thought it was outgragous she seemed resigned to it and didn’t seem too interested in taking any bats up over it.
Thanks for trying though. Thank goodness John Richardson is still picking up bat after bat after bat. His Transition Tax articles have been terrific. And then there’s Karen Alpert too with her awesome understanding of the Transition Tax. The more bats the better. It’s sad when outrageous becomes so common it registers as ho-hum to some.