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US International Tax Lawyer Lectures at Alliance Française on Offshore Reporting

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On December 7, 2016, Mr. Eugene Sherayzen, the founder of Sherayzen Law Office and a US international tax lawyer, gave a lecture at the Minneapolis chapter of Alliance Française. The topic of the lecture was an introduction to reporting of foreign income and foreign assets for individual taxpayers in the United States. The lecture was well-attended and raised a lot of interest among the participants.

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US International Tax Lawyer Explained the US Tax Residency Requirements

Mr. Sherayzen first focused on defining the crucial term of “US tax resident”. As he explained during the lecture, the starting point for legal analysis of any US international tax lawyer is often the determination of whether his client is a US person.

During the lecture, Mr. Sherayzen covered three categories of US tax residents – US citizens, US Permanent residents and individuals who met the requirements of the Substantial Presence Test.

He also distinguished the immigration-law concept of US permanent residency (i.e. green-card holders) from the tax concept of US tax residency. The US international tax lawyer also discussed certain exceptions to the Substantial Presence Test, focusing on F-1 and J-1 visas.

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US International Tax Lawyer Emphasized Worldwide Income Reporting Requirement

Then, Mr. Sherayzen explained to the audience that US tax residents are required to disclose and pay US taxes on their worldwide income, even if this income was already disclosed on foreign tax returns.

At that point, the US international tax lawyer observed that the worldwide income reporting requirement is one of the most violated laws. Mr. Sherayzen distinguished three groups of US tax residents who are not in compliance with this law.

The first group consisted of US tax residents who were born overseas and were not aware of the worldwide income compliance requirement due to their prior experiences in their home countries (especially those which adopted the territorial model of taxation).

The second group was described as a small group of persons who were aware of the requirement and willfully violated it.

Finally, Mr. Sherayzen distinguished a third group of individuals who knew about the worldwide income reporting requirement, attempted to comply with it to the best of their ability, but failed to do so due to their lack of sufficient knowledge of US tax laws. The US international tax lawyer specifically referenced the Assurance Vie accounts as a representative case for such violations due to huge differences between the US and the French tax treatment of these accounts.

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US International Tax Lawyer Described Top Three Reporting Requirements with Respect to Foreign Bank and Financial Accounts

The third part of the presentation was devoted to the discussion of the FBAR, Form 8938 and Form 8621 (PFIC passive foreign investment company) requirements with respect to reporting foreign bank and financial accounts. The discussion concerned the types of accounts that needed to disclosed, the reporting thresholds, the due dates and how the forms needed to be filed. Some history of the forms was provided; due to time limitations, however, only a limited introduction to FATCA was provided to the audience.

This discussion produced a lively Q&A exchange between the US international tax lawyer and the audience.

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US International Tax Lawyer Discussed the Reporting of Foreign Gifts and Inheritance

The fourth part of the discussion concentrated on the Form 3520 reporting of foreign gifts and inheritance, including the filing threshold and the penalties associated with the form. Mr. Sherayzen also explained that, in certain circumstances, Form 8938 may be applicable to foreign gifts and inheritance for the purpose of annual tax compliance.

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US International Tax Lawyer Introduced the Hypothetical to Illustrate How These Forms Might Apply in a Real-Life Situation

The final part of the presentation was devoted to the analysis of a hypothetical to demonstrate how all of these information returns could apply in a real-life situation. The focus of the hypothetical was on the French and French-Canadian issues. Mr. Sherayzen also invited the audience to participate in the legal analysis of the hypothetical which was enthusiastically welcomed by the audience.

The presentation concluded with an additional fifteen-minute Q&A session.

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Foreign Investment in Real Property Tax Act | US Real Estate Tax Attorney

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Foreign Investment in Real Property Tax Act (also referred to as “FIRPTA”) is the most important tax law for foreign investors in US real estate. Not only does FIRPTA determine the tax treatment of the gains on the real estate owned by nonresident aliens, but it also establishes the famous FIRPTA tax withholding mechanism that is important not only to foreign investors, but also to the entire US real estate industry as well as the US buyers of real estate.

In this article, I intend to provide a general introduction to Foreign Investment in Real Property Tax Act. In the subsequent articles, I will provide a more detailed exploration of each individual part of FIRPTA.

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Foreign Investment in Real Property Tax Act: Legislative Background

Prior to 1981, nonresident aliens were largely exempt from US capital gain taxes produced by the sales of US real estate. The Foreign Investment in Real Property Tax Act of 1980 was enacted as part of the Omnibus Reconciliation Act of 1980 (Pub. L. No. 96-499, 94 Stat. 2599, 2682 (Dec. 5, 1980)) and dramatically changed this situation.

In essence, FIRPTA forced the nonresident aliens to recognize gain upon disposition of the so-called “US real property interest” (a term of art specifically defined in the Treasury regulations), though a number of exceptions remained. In addition, FIRPTA established a powerful tax withholding mechanism by requiring buyers to act as a withholding agent and withhold 10% of the gross sales price from the payment to a nonresident alien seller.

Obviously, FIRPTA was intended to protect the US purchasers from a flood of foreign investors who could drive up the prices of US real estate. However, over the years, an opposition arose to FIRPTA, especially as the IRS expanded the reach of FIRPTA in its rulings.

The Protecting Americans from Tax Hikes Act (the PATH Act) passed in 2015 was a compromise decision which was meant to encourage certain foreign investment in US real estate while adjusting the withholding rate higher to make up for lost revenue as well as to put it in line with the higher US capital gains tax rate. The PATH act generally increased the tax withholding rate to 15% from the prior 10%, exempted certain qualified foreign pension funds from FIRPTA tax withholding, increased the exemption threshold for publicly traded stock exception, introduced certain changes to domestically-controlled REITs and modified the eligibility criteria for the so-called FIRPTA cleansing rule.

Foreign Investment in Real Property Tax Act: Nonresident Alien Gains from Disposition of US Real Property Interest is Treated as ECI

As I already stated above, the most important part of the Foreign Investment in Real Property Tax Act is the imposition of tax on the disposition US Real Property Interest (the “Disposition”). However, FIRPTA goes further than just subjecting nonresident aliens to a new tax. It actually treats any gain or loss from such a Disposition as income effectively connected with a US trade or business.

In other words, under the Foreign Investment in Real Property Tax Act, the gain or loss from a Disposition is treated according to the regular US income tax laws, including progressive tax rates in some situations and capital gain tax rates in others. This means that, if it is a property directly owned by a nonresident alien, the Disposition gains will generally be taxed at the rate of 15% to most likely 20% (depending on the tax bracket of the nonresident alien). On the other hand, if the nonresident alien owns the real property through a US corporation, the Disposition will generally be taxed at 35% corporate tax rate. Obviously, the exact rates are subject to change due to future changes of the US tax law and the potential variations within the ownership structure.

Foreign Investment in Real Property Tax Act: The Tax Withholding Regime

The Foreign Investment in Real Property Tax Act also generally requires the withholding of 15% of the gross sales price on the Disposition by a non-resident alien. There are a number of exceptions available to the tax withholding rule, but the buyer needs to make sure that all of the requirements for an exception are met (otherwise, he himself may end up being liable for the failure to withhold the tax with penalties and interest).

It is important to understand that the FIRPTA tax withholding acts as a credit against the capital tax due. In other words, a non-resident alien can later file Form 1040NR to claim a tax refund if the FIRPTA withholding exceeds the actual tax due.

Contact Sherayzen Law Office for Help with Foreign Investment in Real Property Tax Act

If you are involved in a transaction where a seller of a US real property interest is a nonresident alien, you may be facing the enormously complex FIRPTA requirements. The introduction provided in this article is merely the tip of the FIRPTA iceberg. Numerous tax reporting requirements, complex tax forms and tax withholding compliance traps make FIRPTA one of the most dangerous US tax laws for almost all parties involved in a disposition of a US real estate property interest by a nonresident alien.

Contact Sherayzen Law Office for Professional Help with the Tax Requirements of the Foreign Investment in Real Property Tax Act!

Bitcoin Offshore Abusive Tax Scheme | FATCA International Tax Lawyer

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Bitcoin Offshore Abusive Tax scheme is now at the center of the new war against offshore tax noncompliance. The IRS started this war on November 17, 2016, with the John Doe Summons petition against Coinbase, Inc., the largest US bitcoin exchanger. In this petition, the IRS Revenue Agent David Utzke details one variation of the Bitcoin Offshore Abusive Tax scheme that seems to be the main target of the IRS battle against Coinbase. Let’s discuss it in more detail.

Traditional Offshore Abusive Tax Scheme

In the petition, the IRS first provided a description of a common traditional offshore abusive tax scheme based on a real-life example of “Taxpayer 1″. In this scheme, Taxpayer 1 retained the services of a foreign promoter who set up a controlled foreign corporation which was merely a shell corporation. The corporation first diverted the taxpayer’s income to a foreign brokerage account and, then, to a foreign bank account. After the funds were transferred to a foreign bank account, Taxpayer 1 was able to repatriate the funds as cash (US dollars) through an ATM machine.

Obviously, this scheme had a number of disadvantages. First, it was not cheap: Taxpayer 1 had to retain foreign attorneys and engage in various other regulatory expenses.

Second and most importantly, the entire scheme was done in US dollars and, hence, ran a relatively high risk of the IRS detection. If the IRS discovered the scheme, it would not be difficult to trace it directly to Taxpayer 1. The weakest point of the scheme was the repatriation in US dollars of the hidden income.

Bitcoin Offshore Abusive Tax Scheme

When Taxpayer 1 discovered bitcoins, he adopted a new model which I will call a Bitcoin Offshore Abusive Tax Scheme. The first two steps (i.e. the diversion of income) were the same – a controlled foreign shell corporation was set up and the funds were diverted to a foreign account.

The difference between the schemes was really in the repatriation process. Under the Bitcoin Offshore Abusive Tax Scheme, the funds from a foreign account were moved to a bank which worked with a virtual currency exchanger (such as Coinbase), converted to bitcoins and placed in a virtual currency account. Then, the taxpayer used the bitcoins to anonymously purchase goods and services without ever converting the hidden income into US dollars. Under this process, Taxpayer 1 had hoped to avoid the IRS detection of the repatriation of funds.

Bitcoin Offshore Abusive Tax Scheme Protects the Taxpayer From IRS Detection During the Repatriation Process

The biggest advantage of the Bitcoin Offshore Abusive Tax Scheme is its ability to protect a taxpayer from the IRS detection when he tries to repatriate the undisclosed income back to the United States. Since bitcoin ownership and purchases are done anonymously and without conversion to US dollars, the IRS may never be able to detect tax noncompliance.

Revenue Agent Utzke himself states in the petition that “because there is no third-party reporting of virtual currency transactions for tax purposes, the risk/reward ratio for a taxpayer in the virtual currency environment is extremely low, and the likelihood of underreporting is significant”.

Indeed, it appears that Taxpayer 1 was highly successful in his Bitcoin Offshore Abusive Tax Scheme. The discovery of that scheme was only made possible due to the voluntary disclosure of Taxpayer 1 to the IRS (most likely Taxpayer 1 prudently decided to enter the OVDP).

Bitcoin Offshore Abusive Tax Scheme Begins to Dominate Offshore Tax Noncompliance

These advantages of the Bitcoin Offshore Abusive Tax Scheme led to its increasing popularity among noncompliant US taxpayers. In fact, it appears that the Bitcoin Offshore Abusive Tax Scheme now dominates this market. Even Agent Utzke admitted that virtual currencies have now largely replaced “traditional abusive tax arrangements as the preferred method for tax evaders”. The John Doe Summons Against Coinbase is Aimed at the Bitcoin Offshore Abusive Tax Scheme.

Given this fact, it is little surprise that the IRS decided to begin a war against abusive tax schemes involving virtual currencies and, especially, bitcoins. The John Doe Summons Petition against Coinbase is the first battle of this war against the Bitcoin Offshore Abusive Tax Scheme.

Given the IRS victory in its battle against Swiss banks, it is very likely that, in one form or another, the IRS will prevail against Coinbase and the virtual currency industry in general. This victory will result in the exposure of noncompliant US taxpayers who will then face a litany of draconian IRS penalties, including possibly criminal penalties and jail time.

Noncompliant US Taxpayer Engaged in a Bitcoin Offshore Abusive Tax Scheme Should Consider Voluntary Disclosure

Given this precarious legal environment and the significant risk of the IRS detection, noncompliant US taxpayers should consider doing a voluntary disclosure while they have the ability to do so. Once the IRS identifies noncompliant taxpayers and commences investigations against them, these taxpayers may lose forever the ability to do a voluntary disclosure to avoid criminal penalties and reduce civil penalties.

This is why these taxpayers urgently need to contact an international tax lawyer to consider their voluntary disclosure options.

Contact Sherayzen Law Office for Legal Help with Bitcoin Tax Noncompliance

If you are a US taxpayer who has engaged in a Bitcoin Offshore Abusive Tax Scheme or any other tax noncompliance involving bitcoins, contact Sherayzen Law Office for professional help as soon as possible. Our legal and accounting team has helped hundreds of US taxpayers with their voluntary disclosures and we can help You!

Contact Us Today to Schedule Your Confidential Consultation!

First Quarter 2017 Underpayment and Overpayment Interest Rates

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On December 5, 2016, the IRS announced that the First Quarter 2017 underpayment and overpayment interest rates will remain the same from the Fourth Quarter of 2016.

This means that, the First Quarter 2017 underpayment and overpayment interest rates will be as follows:

four (4) percent for overpayments (two (3) percent in the case of a corporation);
four (4) percent for underpayments;
six (6) percent for large corporate underpayments; and
one and one-half (1.5) percent for the portion of a corporate overpayment exceeding $10,000.

Under the Internal Revenue Code, the rate of interest is determined on a quarterly basis. For taxpayers other than corporations, the overpayment and underpayment rate is the federal short-term rate plus 3 percentage points. Generally, in the case of a corporation, the underpayment rate is the federal short-term rate plus 3 percentage points and the overpayment rate is the federal short-term rate plus 2 percentage points. The rate for large corporate underpayments is the federal short-term rate plus 5 percentage points. The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus one-half (0.5) of a percentage point.

The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus one-half (0.5) of a percentage point.

The First Quarter 2017 underpayment rates are relevant not only for simple amended tax returns (with amounts due), but also for a number of other different reasons. Here, I would like to emphasize two particular reasons for the importance of the first quarter 2017 underpayment rates. First, it is used to calculate interest for the US taxpayers who participate in the OVDP or the Streamlined Domestic Offshore Procedures.

Second, the first quarter 2017 underpayment rates will be relevant to future PFIC interest calculation on any excess distributions (for default Section 1291 PFICs).

IRS seeks Bitcoin Accountholder Data from Largest US Bitcoin Exchanger

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On November 17, 2016, the IRS and the US Department of Justice (the “DOJ”) opened a new front against offshore tax evasion – bitcoin accountholder data. On that day, the DOJ filed a petition (accompanied by the IRS memorandum) in the U.S. District Court for the Northern District of California seeking permission to serve a John Doe Summons on bitcoin exchanger, Coinbase Inc. (“Coinbase”), in order to obtain bitcoin transaction records and bitcoin accountholder identities. Coinbase already indicated in its blog post that it will oppose the petition for the bitcoin account holder data in court based on the issues related to its customers’ privacy.

Bitcoin Background Information

Bitcoin is a cryptocurrency and a payment system; its unique nature is in the fact that it is the first decentralized cryptocurrency. It is also the largest virtual currency on the market and the one that has been recognized by users and merchants in many countries (though others have banned it).

The Anonymity of the Bitcoin Accountholder Data Poses a Problem for the IRS

The IRS sees a big problem with bitcoins. While all of the bitcoin transactions are publicly recorded, the actual identity of a bitcoin owner is completely anonymous. The IRS memorandum in support of the John Doe Summons petition is expressly stating the IRS concerns regarding US taxpayers who do not report taxable income from bitcoin transactions and bitcoin trading. Additionally, the IRS (in its aforementioned memorandum) pointed out that bitcoins can be used for creation of non-existing deductions to reduce taxable income.

Offshore Tax Compliance is at the Heart of the IRS Attack on the Bitcoin Accountholder Data

Furthermore, it is no accident that the IRS memorandum that accompanied the DOJ petition was written by Mr. David Utzke, a senior revenue agent with the IRS’s offshore compliance initiatives program. This demonstrates that the IRS views the anonymity of the bitcoin accountholder data not merely a domestic, but also an offshore tax compliance issue. Mr. Utzke expressly states his concerns that bitcoin transactions now replace the more traditional abusive offshore tax schemes.

We also should remember that, in its Notice 2014-21, the IRS treats convertible virtual currency as property for federal tax purposes. This first means that a taxpayer must report any capital gains and losses on his tax returns even if the bitcoin sales occur overseas.

Moreover, this potentially means (though the IRS has not yet expressly stated so) that bitcoins purchased overseas are reportable foreign assets subject to potentially FATCA and FBAR requirements (depending on how they are held – bitcoin wallets can potentially be treated as foreign accounts). The other side of this conclusion is that a bitcoin held overseas may draw FBAR and Form 8938 penalties if it is not timely and properly disclosed. This is indirectly confirmed by Notice 2014-21 which specifically singles out penalties associated with the failure to file an information return under IRC Sections 6721 and 6722.

Sherayzen Law Office Can Help You With Your Bitcoin US Tax Compliance Issues

If you own bitcoins overseas and you have unreported bitcoin income, contact Sherayzen Law Office to help you with your US tax compliance as soon as possible. Time is of the essence; if your identity is disclosed to the IRS and the IRS commences an investigation, you may be precluded from conducting a voluntary disclosure with respect to your bitcoins. In this case, the IRS may impose its draconian tax penalties on unreported income and assets.

Contact Us Today to Schedule Your Confidential Consultation!