Author Archives: Patricia Moon

original article in French HERE

reposted from Anmerican Expatriates Facebook Group

ACCIDENTAL AMERICAN’: I LIVE HELL. I HAD TO GIVE UP MY DUAL NATIONALITY (I.E. RENOUNCE MY US CITIZENSHIP)

Keith Redmond says:

Thank you Fabien Lehagre or making sure this injustice stays in the press! The homeland US press refused to report on it. I know Caroline and her story is one of millions where the US government is ruining the lives of people outside the US.

English translation below.

Caroline, 37, was born in the U.S. of French parents and lived there for two years. Franco-American, her dual nationality was unfavorable to her when she discovered that she had to pay taxes there. The U.S. is one of the only countries in the world to base the taxpayer’s status on nationality and not on place of residence. Stuck in a legal imbroglio, it tries desperately to regularize its situation.

Caroline says:

I was born in 1979 in Los Angeles. My parents were French, but they were expatriates in the United States for professional reasons.

All my life, I had dual French-American nationality. Even though I only lived for the first two years of my life on the other side of the Atlantic, I always found it amusing to have this double status. I was the only one of my siblings to have this peculiarity.

I remember returning to the United States when I was seven, then in 2008 with my husband. Always with my French passport since I never redone my American identity papers.

A legacy blocked because of “my clue of americanity”

Since July 2014, France and Switzerland have undertaken to disclose the tax data of their US residents. For the moment, this device is not reciprocal. As a lawyer, I had heard about the Fatca (Foreign Account Tax Compliance Act), a law to combat tax evasion, but I never thought I would be directly involved.

I have always paid my taxes in France, and since I have never really lived on American soil, why should I have had to pay taxes in the United States? I was wrong. In reality, the United States is one of the only countries in the world to base the taxpayer’s status on nationality and not on place of residence.

I understood it in September 2014, a few months after the death of my father. The succession had to be settled. I thought there would be no worry, but I received a letter from my father’s bank, BNP-Paribas, to point out that I had a “clue of americanity” because of my place Of birth. So I was concerned about the famous Fatca law.
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cross posted from citizenshipsolutions

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”.

Nobody ever said determing #TaxResidency was easy. It's not the same as physical residency (which not be required) https://t.co/aDNvPiM0nj

— Citizenship Lawyer (@ExpatriationLaw) December 15, 2016

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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Given the trend of governments requiring their citizens and residents to report nearly everything (even Russia has now begun to require duals to register their 2nd citizenship), it’s amazing no one has come forth with a requirement to file a SpouseBar. Think of the normal approach the U.S. takes to anything foreign. “Alien.” Most countries have more benign terms in use for their non-citizen residents. “Permanent resident.” “Landed immigrant.” “Alien”- as if there were no similarities between an American and a human being that just happens to be from another country. “Foreigners” – being seen as some form of animal, wild, untamable, unworthy of freely mixing with the Homelanders but somehow, needing to be contained. And what are the three aspects the US always takes toward something foreign?

• First, the US hates anything FOREIGN.
• Second, the US hates anything regarding DEFERRAL.(Remember, “if you see the word foreign, the word penalty, is sure to follow”
• Third, the US hates LEAKAGE (for anything to get outside the US tax system)

After all, without a reporting requirement, that door undoubtedly opens far and wide to tax evasion. And certainly, the richer a couple is, the greater the risk of not meeting that noble goal of “paying ones fair share.”

The citizens of no other country have that privilege. Understand these disclosures are necessary to preserve freedoms of #Americansabroad https://t.co/7DLeRGqFov

— U.S. Citizen Abroad (@USCitizenAbroad) November 24, 2016

Keeping this in mind, President-Elect Trump has finalized the main appointments that will make up his cabinet. We looked at how many FBAR marriages there are currently (and still examining earlier unions). After all, some of these people are among the richest in the world. While there is a disturbing amount of physical abuse (allegedly in some cases) committed on the part of the males, so far we have found two couples that include an “alien spouse.” First of course, is President-Elect Donald J Trump. And then, of course, just as we had TurboTaxTimmy, our new Treasury Secretary may have some tax issues he is not taking care of.

Most expats have come across the issues of the gift and estate taxes, if for no other reason when trying to figure out what the value of an asset is (gift tax) vs how it is to be taxed (estate tax). Then there is the issue of an expat trying to get under the 2 million asset-test by gifting.

Just to remind, the relevant issue here is:

• an annual exclusion amount per donee per year There is no limit on the number of people that can be gifted to. There is no gift tax involved and no need to report
• US citizens and domiciliaries can also “gift split,” allowing married donors to exclude up to twice the annual exclusion amount per donee per year. Gift splitting is not permitted if either spouse is a non-US domiciliary and of course, there is IRS Form 709 to file. After all, we’re still talking about Form Crime
• An unlimited amount can be gifted to a spouse who is a US citizen
• There is an annual exclusion for gifts to non-US citizen spouses

So how will these rules affect our incoming members of the executive branch?
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Here is the video of the meeting that took place this past Monday, December 5, 2016 at the Atwater Library in Montreal. Once again, John Richardson and Andrew Grossman meet up to discuss, analyze and muse over the situation expats find themselves thanks to the complexity to the U.S. tax code. Bizarre!

Super thanks to David Zimmerly for making the trek (through snow), setting up/videoing, and already having the finished product!

ENJOY & please share widely!

 
A set of posts form a perfect companion set to this video. On John writes:

This series of posts developed from my “Educational Outreach” program for Americans abroad. It is an effort to respond in a practical way to the questions that people have.

“When in Rome, live as a Homelander” does, when elsewhere, live as they live elsewhere.”

Chapter 5: Living Clean – How to live outside the United States in an #FBAR and #FATCA world

Results of search: "US citizens abroad come clean" https://t.co/MfcAU1EDPK … … – Q: Are #Americansabroad? Filthy, dirty, sweaty or grungy?

— Citizenship Lawyer (@ExpatriationLaw) April 19, 2015

Americans abroad are constantly told that they should “come clean”. They should file their U.S. taxes. This assumes that they are somehow “unclean” or perhaps “dirty”. The life of an “American abroad” is about three things:

1. “Thinking Clean” – The importance of “thinking clean” while living abroad.

2. “Coming Clean” – Atoning for the sins of “living abroad” and entering the U.S. tax system; and

3. “Living Clean” – Living as a Homeland American outside the United States

Whether you have yet to decide about coming into compliance or you have filed (but are unsure whether you or your tax compliance firm has actually done all that is required), check out this set of posts to get a taste of what’s involved:

“Coming Into Tax Compliance Book” – How Americans can come into U.S. tax compliance in a FATCA world

You can’t make this stuff up!

Information Session

Of particular interest is the issue of the Australian “Super.”
While all expatriates worldwide experience country-specific problems, this one is perhaps one of the worst. By law, Australians are required to contribute to their own retirement; this system is unique among government-sponsored retirement planning. Why on earth should the U.S. be able to tax these?

Online Renunciation Information Session with John Richardson – 9 Jan 2017

Presented by: John Richardson is a Toronto citizenship lawyer, the co-chairman of the Alliance for the Defence of Canadian Sovereignty as well as the Alliance for the Defeat of Citizenship Taxation. He is a member of the ACA Professional Taxation Advisory Council. He holds the degrees of B.A., LL.B., and J.D. He is a member of the Massachusetts, New York and Ontario bars. His law practice focuses on “Solving the Problems of U.S. Citizenship” including relinquishing and the “Exit Tax”. He gives programs for expats all across Canada and Europe. He writes extensively at citizenshipsolutions.ca

WHEN: Monday 9 January 2017
10:00 AM AEDT (Sydney, Melbourne);
9:00 AM AEST (Brisbane);
9:30 AM ACDT (Adelaide);
7:00 AM AWST (Perth);
UTC: Sunday 8 January 11pm. Convert to your time zone
Program will last for one hour

REGISTRATION: HERE

If you are interested, leave your email address here and in early January we will send you instructions on how to join the information session

What’s this about?

Since Australia agreed to the FATCA IGA in 2014, Australian financial institutions have been asking ALL new account holders and some existing account holders whether they are U.S. citizens. Many have no idea of the consequences of admitting to U.S. citizenship, a U.S. place of birth or being born to U.S. parents. In this one hour session, John Richardson will address the following topics:

Who is a U.S. citizen?

What about those born in Australia who
a) were registered with the consulate and have U.S. passports, but never lived in the U.S.;
b) were NOT registered with the consulate and do NOT have U.S. passports.

Look before you leap!!

• The pitfalls of entering the U.S. tax system – a brief overview of what it really means to be “U.S. tax compliant” in Australia
• Can the U.S. really tax my super?
• The ATO says tax treaties “eliminate double taxation,” so why can the U.S. tax my Australian income?
• How do I relinquish/renounce U.S. citizenship?
• Is a CLN necessary? How can I document loss of citizenship without a CLN?
• How is relinquishment different from renunciation?
• Didn’t I lose U.S. citizenship when I became an Australian citizen?
• There’s an EXIT TAX???

Other topics

• How renouncing U.S. citizenship may put your superannuation (and other savings) at risk
• How to renounce and exit the U.S. tax system cleanly and avoid being a “covered expatriate”
• I have just learned about the FATCA problem! The difference between “responding” and “reacting” – things you should NOT do!
• I thought I lived in Australia! Why do I have to follow U.S. law when I live in Australia?
• What can the U.S. do if I’m non-compliant?
• If my bank has identified me as a U.S. Person, can I satisfy the bank without entering the U.S. tax system?

 

THIS SESSION IS OF A GENERAL NATURE. IT IS NOT INTENDED TO AND SHOULD NOT BE UNDERSTOOD TO OFFER LEGAL ADVICE OF ANY KIND.

President-elect Donald J. Trump.

President Trump

The NYT title says it all:

Donald Trump Is Elected President in Stunning Repudiation of the Establishment

Donald John Trump was elected the 45th president of the United States on Tuesday in a stunning culmination of an explosive, populist and polarizing campaign that took relentless aim at the institutions and long-held ideals of American democracy.

The surprise outcome, defying late polls that showed Hillary Clinton with a modest but persistent edge, threatened convulsions throughout the country and the world, where skeptics had watched with alarm as Mr. Trump’s unvarnished overtures to disillusioned voters took hold.

I watched basically all day as I did other things. It seemed to start slowly enough but once it was clear he had won Ohio, it seemed to me, that the entire dynamic changed. You could hear the puzzlement of anchors as they spoke, realizing everything they expected to see, was not happening. It wasn’t disappointment or disapproval but more an absorption, a wonderment, as to how this could be happening. Questioning how the pollsters and pundits could have gotten it so wrong. Some had no problem allowing that to have a positive edge; you could see them mentally re-arranging their thoughts. John King was the first I heard say, long before it was a given, that things were not going well for Hillary. He seemed to have a feel for it, to see the pattern present itself and then play out, state by state. It was fascinating to watch him go through each one, accurately assessing which pockets had yet to be counted, which ones would go to Hillary but as things progressed, would still not be enough.

A long long wait to get the final counts for Wisconsin, Michigan and Pennsylvania (which earlier in the evening, had seemed clearly in the Democrat’s pocket). Trump had 244 electoral votes with 9 states to go. It was pretty obvious how it was going to work out in the end.

An ugly argument took place between Van Jones and Corey Lewandoski once John Podesta announced that there would be no announcement from Clinton’s end until all the votes were counted. In a very undignified and ungracious way, Lewandoski pounced on the fact that Trump had been roundly criticized for saying he might not accept the results of the election. He did not listen when it was suggested that if Trump were in Hillary’s shoes, he likely would have waited too, until every vote had been counted. I believe in that exchange also came the statement that Hillary would be investigated for all of her alleged issues.

That aside, the DOW fell 1000 points the last time I checked. The USD was worth $0.75 CDN. Just like that. The Senate remains Republican; thank God Chuck Schumer, will not be the Senate Majority leader. (What a nice taste of revenge for expats.) Let’s hope we see some of what was in the Republican platform, though I expect it may take some time to get to it. At least we can envision tax reform. This time, we will be speaking to a more receptive group.

So, the American people have chosen to strike down the establishment. It is not difficult to understand. In spite of some of Mr. Trump’s less-than-dignified ideas/statements about Muslims, women, Mexicans, et al, the American people said “Enough” to the useless bureaucracy of Washington. I don’t blame them.

FINALLY, IT’s OVER!

US 2 Pursue Enforcement in Spite of Foreign Laws-"OUR interest..substantially outweighs.. https://t.co/NcOtApc8SQ Who r they 2 decide?

— Patricia Moon (@nobledreamer16) November 5, 2016

Philadelphia Tax Conference Wednesday, November 2, 2016:

“We will pursue enforcement of a Bank of Nova Scotia summons when a domestic entity has dominion or control over records located outside the United States, even where the domestic entity asserts that production may be a violation of foreign law, if our interest in combatting tax evasion substantially outweighs the interest in foreign jurisdictions in allowing banks to preserve the privacy of their customers.“

 
Bank of Nova Scotia summons

V. CONCLUSION

Absent direction from the Legislative and Executive branches of our federal government, we are not willing to emasculate the grand jury process whenever a foreign nation attempts to block our criminal justice process. It is unfortunate the Bank of Nova Scotia suffers from differing legal commands of separate sovereigns, but as we stated in Field:
In a world where commercial transactions are international in scope, conflicts are inevitable. Courts and legislatures should take every reasonable precaution to avoid placing individuals in the situation [the Bank] finds [it]self. Yet, this court simply cannot acquiesce in the proposition that United States criminal investigations must be thwarted whenever there is conflict with the interest of other states.
In re Grand Jury Proceedings. United States v. Field, 535 F.2d at 410.

For the reasons stated above, the judgment entered by the district court is

AFFIRMED.

*****

I am not at all suggesting that minnows would have any need to be overly fearful. Given our government’s recent “throwing us under the bus”, I have little faith they will do anything to fight this if it becomes larger in scope.

If a bank acted outside of the tidy IGA arrangement and was involved in the exchange of private taxpayer information to the IRS (a PIPEDA violation-even if against US Persons), wouldn’t the bank open itself up to being sued?

I think it is totally possible Harden, Van deMark etc, may not be of much help given the overall shift regarding extraterritorial tax…..

********

Principal Deputy Assistant Attorney General Caroline D. Ciraolo Delivers Keynote Address at the American Bar Association’s 27th Annual Philadelphia Tax Conference
Philadelphia, PA United States ~ Wednesday, November 2, 2016
Remarks as prepared for delivery

Excerpts concerning “offshore” efforts:

In addition, since 2008, the department, working with our colleagues in IRS Criminal Investigation (IRS-CI), charged more than 160 U.S. accountholders with tax evasion and willful failure to report foreign accounts and more than 50 individuals who assisted in this criminal conduct. We also reached resolutions with nine foreign financial institutions outside of the Swiss Bank Program and continue to pursue investigations of entities located within and outside Switzerland.

Our criminal offshore enforcement efforts have encouraged participation in the IRS offshore voluntary disclosure programs, through which more than 55,000 taxpayers have come into compliance and paid nearly $10 billion in tax, interest and penalties since 2009. In addition, filing of Reports of Foreign Bank and Financial Accounts (FBARs) has increased from 332,000 reports for calendar year 2007, to over a million reports for 2015.

Our civil trial attorneys also furthered our offshore tax enforcement efforts, seeking the issuance of John Doe summonses to identify U.S. taxpayers whose identities are unknown and who are engaged in violations of the internal revenue laws and initiating summons enforcement proceedings to assist the IRS in conducting its examinations and determining the accurate tax due. The information we seek is often located in the United States; however, as we recently demonstrated in a district court in Miami, we will pursue enforcement of a Bank of Nova Scotia summons when a domestic entity has dominion or control over records located outside the United States, even where the domestic entity asserts that production may be a violation of foreign law, if our interest in combatting tax evasion substantially outweighs the interest in foreign jurisdictions in allowing banks to preserve the privacy of their customers.

Our civil trial attorneys also are actively engaged in suits involving penalties assessed for failing to file FBARs. These suits include affirmative litigation to collect unpaid penalties, and defensive litigation raising a variety of issues. We have approximately three dozen cases involving FBAR issues pending, the vast majority of which include a willfulness penalty for at least one of the years at issue. These suits have raised issues related to the computation of the penalty, burden of proof, service of process abroad, definition of a foreign account, corresponding assessments on spouses, venue, jurisdiction, and challenges under the Administrative Procedures Act.

UPDATE
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