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2019 Minsk Seminar: US International Corporate Tax Reform | GILTI & FDII

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On August 28, 2019, Mr. Eugene Sherayzen, the owner and founder of Sherayzen Law Office, Ltd, gave a seminar at Minsk City Bar Association (“MCBA”) in Minsk, Belarus. The focus of the seminar was on the 2017 Tax Cuts and Jobs Act (“2017 TCJA” or “2017 tax reform”) changes in the US international corporate tax law. Let’s discuss this 2019 Minsk seminar in more detail.

2019 Minsk Seminar: Organizational Aspects

The 2019 Minsk seminar was held at a location owned by MCBA in Minsk, Belarus. The seminar was well-attended by Minsk lawyers of various specializations, not just tax attorneys. Mr. Sherayzen conducted the seminar in the Russian language.

2019 Minsk Seminar: Structure of the Seminar

The seminar consisted of four parts: introduction to Sherayzen Law Office’s international tax practice, discussion of five important concepts of US international tax law, explanation of certain aspects of US international business tax law prior to the 2017 tax reform and the 2017 TCJA changes to US international corporate tax law. Throughout the seminar, Mr. Sherayzen made certain digressions into individual international tax law as well as general business tax law in order to better explain certain aspects of the 2017 tax reform to the audience.

2019 Minsk Seminar: Sherayzen Law Office International Tax Practice

During the seminar, Mr. Sherayzen introduced his law firm, Sherayzen Law Office, Ltd., to the audience. He explained that the focus of his practice is on US international tax law. After explaining what “US international tax law” meant, the attorney described the four main sub-areas of his practice: offshore voluntary disclosures, IRS international tax audits, annual compliance and international tax planning.

2019 Minsk Seminar: Five Concepts

After describing his practice, Mr. Sherayzen discussed in detail five relevant concepts of US international tax law. He first introduced the concept of “US tax residency” and generally described the categories of US tax residents. In response to a question from an attendee, the attorney distinguished US tax residency from immigration residency.

Then, Mr. Sherayzen discussed the principle of worldwide income taxation of US tax residents. The fact that US tax residents must report their worldwide income even if they reside overseas caused consternation among some attendees.

The discussion of the concept of income recognition resulted in a lively exchange between the speaker and the audience. At that point, Mr. Sherayzen alluded that this topic would be relevant to the his explanation of the anti-deferral regimes during the second part of his lecture.

The rest of this part of the seminar focused on the taxation powers of the US congress and the source of income rules. The attorney introduced certain general source-of-income rules, but warned about the enormous amount of exceptions in this area of law.

2019 Minsk Seminar: Pre-Tax Reform US International Corporate Tax Law

Mr. Sherayzen adopted a general historical approach to the explanation of US international corporate tax law prior to the 2017 TCJA. He commenced with a description of the progression of law since the 1920s, explaining the incentives that existed for the accumulation of cash overseas. Then, the attorney discussed the modifications to the law enacted by Congress throughout the years in order to combat tax avoidance by US corporations.

At that point, Mr. Sherayzen introduced the two main anti-deferral regimes: Subpart F rules and PFIC rules. He explained these regimes in a general manner, warning the audience that there were many specific rules and exceptions to these general rules. The attorney also discussed why these two anti-deferral regimes failed to stop tax avoidance and the continued accumulation of corporate cash in foreign subsidiaries.

2019 Minsk Seminar: 2017 Tax Reform

The discussion of the 2017 TCJA consisted of three parts: (1) reasons for the reform; (2) new rules to combat tax avoidance; and (3) tax incentives with respect to returning production to the United States and exporting from the United States.

After introducing the audience to the historical and political context in which 2017 TCJA was enacted, Mr. Sherayzen discussed the new tax avoidance prevention rules, focusing on the Section 965 tax and Global Intangible Low-Taxed Income (“GILTI”) tax. Then, the attorney explained the new tax incentives introduced by the 2017 tax reform, including lower corporate tax rates, full participation exemption and Foreign-Derived Intangible Income (“FDII”).

2019 Minsk Seminar: Conclusion

At the end of the seminar, there was an extensive Q&A session. Questions ranged from re-classification of shareholder loans during an offshore voluntary disclosure to certain aspect of the 2017 tax reform and its impact on corporate restructuring.

Panamanian Bank Accounts | US International Tax Lawyer & Attorney

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A large number of US taxpayers own Panamanian bank accounts. These taxpayers have bank accounts in Panama for a variety of reasons: personal, business, tax planning and/or estate planning. Many of these account holders still do not realize that their Panamanian bank accounts may be subject to numerous reporting requirements in the United States. In this essay, I will outline the three most common US tax reporting requirements that may apply to Panamanian bank accounts.

Panamanian Bank Accounts: Definition of a “Filer”

Each of the requirements discussed below has its own eligibility requirements – i.e. each has its own definition of “filer” who is required to comply with these requirements. Despite these differences in the definition of a filer, we can identify a certain common definition that underlies all of the requirements we will discuss in this article, even if this definition is modified for the purposes of a particular form. This common denominator is the concept of “US tax residency”.

US tax residents include the following persons: US citizens, US permanent residents, persons who satisfy the Substantial Presence Test and persons who declare themselves as US tax residents. It is important to remember that this general definition of US tax residents is subject to a number of important exceptions.

All of the US international tax reporting requirements adopt US tax residency as the basis for their definitions of a filer. Where there are differences from the definition of US tax residency, they are mostly limited to the application of the Substantial Presence Test and/or the first-year and last-year definitions of a US tax resident.

For example, Form 8938 identifies its filers as “Specified Persons” while FBAR defines its filers as “US Persons”. Yet, the differences between these two terms mostly arise with respect to persons who voluntarily declared themselves as US tax residents or non-residents. A common example can be found with respect to treaty “tie-breaker” provisions, which foreign persons use to escape the effects of the Substantial Presence Test for US tax residency purposes.

The determination of your US tax reporting requirements is the primary task of your international tax attorney. It is simply too dangerous for a common taxpayer or even an accountant to attempt to dabble in US international tax law.

Panamanian Bank Accounts: Worldwide Income Reporting

Now that we understand the concept of US tax residency, we are ready to explore the aforementioned three US reporting requirements with respect to Panamanian bank accounts.

The first and most fundamental requirement is worldwide income reporting. It is also the requirement that applies to US tax residents as they are defined above (i.e. we are dealing here with the classic definition of US tax residency in its purest form).

All US tax residents must disclose their worldwide income on their US tax returns. This means that they must report to the IRS their US-source and foreign-source income. The worldwide income reporting requirement applies to all types of foreign-source income: bank interest income, dividends, royalties, capital gains and any other income.

The worldwide income reporting requirement applies even if the foreign income is subject to Panamanian tax withholding or reported on a Panamanian tax return. It also does not matter whether the income was transferred to the United States or stayed in Panama. US tax residents must disclose their Panamanian-source income on their US tax returns.

Panamanian Bank Accounts: FBAR/FinCEN Form 114

The second requirement that I would like to discuss in this essay is FinCEN Form 114, the Report of Foreign Bank and Financial Accounts, commonly known as “FBAR”. Under the Bank Secrecy Act of 1970, the US government requires all US Persons to disclose their ownership interest in or signatory authority or any other authority over Panamanian (and any other foreign country) bank and financial accounts if the aggregate highest balance of these accounts exceeds $10,000. If these requirements are met, the disclosure requirement is satisfied by filing an FBAR.

It is important to understand all parts of the FBAR requirement are terms of arts that require further exploration and understanding. I encourage you to search our firm’s website, sherayzenlaw.com, for the definition of “US Persons” and the explanation of other parts of the FBAR requirement.

There is one part of the FBAR requirement, however, that I wish to explore here in more detail – the definition of “account”. The reason for this special treatment is the fact that the definition of an account for FBAR purposes is a primary source of confusion among US Persons with respect to what needs to be disclosed on FBAR.

The FBAR definition of an account is substantially broader than what this word generally means in our society. “Account” for FBAR purposes includes: checking accounts, savings accounts, fixed-deposit accounts, investments accounts, mutual funds, options/commodity futures accounts, life insurance policies with a cash surrender value, precious metals accounts, earth mineral accounts, et cetera. In fact, whenever there is a custodial relationship between a foreign financial institution and a US person’s foreign asset, there is a very high probability that the IRS will find that an account exists for FBAR purposes.

Despite the fact that FBAR compliance is neither easy nor straightforward, FBAR has a very severe penalty system. On the criminal side, FBAR noncompliance may lead to as many as ten years in jail (of course, these penalties come into effect in extreme situations). On the civil side, the most dreaded penalties are FBAR willful civil penalties which can easily exceed a person’s net worth. Even FBAR non-willful penalties can wreak a havoc in a person’s financial life.

Civil FBAR penalties have their own complex web of penalty mitigation layers, which depend on the facts and circumstances of one’s case. In 2015, the IRS added another layer of limitations on the FBAR penalty imposition. One must remember, however, that these are voluntary IRS actions which the IRS may disregard whenever circumstances warrant such an action.

Panamanian Bank Accounts: FATCA Form 8938

The third requirement that I wish to discuss today is a relative newcomer, FATCA Form 8938. This form requires “Specified Persons” to disclose all of their Specified Foreign Financial Assets (“SFFA”) as long as these Persons meet the applicable filing threshold. The filing threshold depends on a Specified Person’s tax return filing status and his physical residency.

The IRS defines SFFA very broadly to include an enormous variety of financial instruments, including foreign bank accounts, foreign business ownership, foreign trust beneficiary interests, bond certificates, various types of swaps, et cetera. In some ways, FBAR and Form 8938 require the reporting of the same assets, but these two forms are completely independent from each other. This means that a taxpayer may have to report the same foreign assets on FBAR and Form 8938.

Specified Persons consist of two categories of filers: Specified Individuals and Specified Domestic Entities. You can find a detailed explanation of both categories by searching our website sherayzenlaw.com.

Finally, Form 8938 has its own penalty system which has far-reaching income tax consequences (including disallowance of foreign tax credit and imposition of 40% accuracy-related income tax penalties). There is also a $10,000 failure-to-file penalty.

One must also remember that, unlike FBAR, Form 8938 is filed with a federal tax return and forms part of the tax return. This means that a failure to file Form 8938 may render the entire tax return incomplete and potentially subject to an IRS audit.

Contact Sherayzen Law Office for Professional Help With the US Tax Reporting of Your Panamanian Bank Accounts

If you have Panamanian bank accounts, contact Sherayzen Law Office for professional help with your US international tax compliance. We have helped hundreds of US taxpayers with their US international tax issues (including disclosure of Panamanian bank accounts), and We can help You!

Contact Us Today to Schedule Your Confidential Consultation!

Employee Stock Option Sourcing Rules | International Tax Lawyer & Attorney

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Employee stock option sourcing rules govern the US tax classification of income generated by stock options as US-source income or foreign-source income. In this article, I will provide a general overview of the employee stock option sourcing rules.

Employee Stock Option Sourcing Rules: Importance of Income Sourcing Rules

Income sourcing rules are very important in US international tax law for two reasons. First, for US taxpayers, these rules will determine the ability to utilize their foreign tax credit. Second, for foreign taxpayers, the issue is whether they will be taxed in the United States. For example, if a non-resident alien received stock options the income from which is sourced to a foreign country, then he may completely escape US taxation of this income.

Employee Stock Option Sourcing Rules: Qualified vs. Non-Qualified Options

There are two types of stock options relevant to the employee stock option sourcing rules – qualified options (also called Incentive Stock Options) and non-qualified options. Let’s discuss both types in more detail.

A stock option is a qualified option if it is issued pursuant to rules set forth in the Internal Revenue Code. In the vast majority of cases, if an employee exercises a qualified stock option, he will not receive income at that time. Moreover, as long as he meets the statutory holding requirements, once the employee sells the stock, he will realize a capital gain. So, when we are talking about income sourcing for qualified stock options, we really need to concentrate on the sourcing of long-term capital gain.

Non-qualified options are the options that do not qualify for the preferential tax treatment under the Internal Revenue Code. Obviously, they are taxed in a different manner than qualified stock options. Generally, the employee does not recognize any income when he receives a non-qualified stock option. Rather, he will recognize ordinary income upon the exercise of the option; this ordinary income will equal to the difference between the value of the stock received and what he paid to exercise the option. This is the income that is relevant to our discussion of the employee stock option sourcing rules.

Now that we understand both types of options and what type of income they usually generate, we are ready to apply the employee stock option sourcing rules to this income.

Employee Stock Option Sourcing Rules Concerning Qualified Options

As we have already established, an employee usually generates a long-term capital gain as a result of a disposition of stock from a qualified option. The sourcing rules in this case require that the source of income is determined in the same manner as any other gain from a security disposition. In other words, the income must be sourced to the employee’s residence.

For example, let’s suppose that Pierre, a citizen of France, worked for a few years as a business analyst in New York for a multinational corporation. On the third year of his employment, the employer rewarded Pierre with qualified stock options. Then, the employer moved Pierre back to France. In France, he exercised his options; two years later (while still in France), Pierre sold the stocks. In this scenario, Pierre’s long-term capital gain would be treated as French-source income since he resided in France when the gain was realized.

Employee Stock Option Sourcing Rules & Non-Qualified Options: General Rule

The analysis with respect to non-qualified options is a lot more complex. Our starting point is the fact which we already established – income generated from non-qualified option is treated as compensation.

Second, the IRS does not list non-qualified options as a fringe benefit. Hence, we can assume that the IRS does not wish to apply the fringe benefit sourcing rules to compensation. Rather, most likely, the general salary-sourcing rules should apply.

As I pointed out in another article, the main rule here is that the location where the employee renders his services determines whether this is US-source income or foreign-source income. If an employee works in the United States, then his salary would be considered US-source income; if he works in a foreign country, his salary would be sourced to that country. See §§861(a)(3) and 862(a)(3).

Employee Stock Option Sourcing Rules & Non-Qualified Options: Allocation

In the context of non-qualified stock options, the general rule means that we have to determine where the employee was when he earned the options. If the employee worked only in the United States or only in a foreign country, this is a very easy case.

What happens, however, if we are dealing with a cross-border employee who is paid, in part, with non-qualified options? In this case, we have to engage in the process of allocating time between the United States and a foreign country (or even various foreign countries). As I pointed out in another article, time allocation is the default method in this case, but other options are available.

Let’s use an example to illustrate the time allocation rule with respect to non-qualified options: a US corporation hired Charles to work for its UK subsidiary in 2016. As part of his compensation, the employer granted non-qualified options exercisable in 2019. The work involved working not just in London, but also in New York. In 2019, Charles exercised the options. At the same time, he determined that out of the total 1,200 days he worked during the past three years, he was in the United States for 200 days and 1,000 days in the United Kingdom. This means that one-sixth (200/1,200) of income from non-qualified options will be US-source income.

Employee Stock Option Sourcing Rules & Non-Qualified Options: Foreign Tax Credit

The real complexity comes in, however, when we include the foreign tax credit (“FTC”) considerations into our analysis. Other countries may treat non-qualified options differently from the United States and recognize the income earlier. This means that, potentially, an employee can receive bills from multiple countries at different times. The FTC calculations here will become quite complex.

Contact Sherayzen Law Office for Professional Help with Employee Stock Option Sourcing Rules

If you work in two or more countries and receive stock options from your employer, you will need to engage in complex tax calculations to correctly determine your US tax liability. This is why you need to contact Sherayzen Law Office for professional help. We have helped hundreds of US taxpayers around the world with their international tax issues, and We Can Help You!

Contact Us Today to Schedule Your Confidential Consultation!

OECD Harmful Tax Practices & FDII | International Tax Law Firm

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The Organization for Economic Co-operation and Development (“OECD”) has detailed base erosion and profit-shifting (“BEPS”) rules. Among these rules are the OECD rules for countering harmful tax practices (“OECD Harmful Tax Practices Rules”). The 2017 Tax Cuts and Jobs Act introduced a new tax concept in the US Internal Revenue Code – foreign-derived intangible income (“FDII”). FDII has become a hot topic in international tax law, especially with respect to whether FDII constitutes a violation of the OECD Harmful Tax Practices Rules.

OECD Harmful Tax Practices Rules and Preferential Tax Regimes

The OECD Harmful Tax Practices Rules require that a preferential tax regime of any OECD nation satisfies the “substantial activities requirement”. In particular, the Intellectual Property income regimes must incorporate the “nexus approach” that limits the entitlement to the preferential tax regime based on the amount of the qualifying research and development costs incurred.

European Position: FDII May Violate OECD Harmful Tax Practices Rules

The Europeans started questioning the FDII’s compliance with the OECD Harmful Tax Practices Rules almost immediately. The main reason for their concern is that the FDII regime does not adopt the nexus approach while allowing US corporations to deduct 37.5% of their deemed intangible income generated abroad by the usage of the US Intellectual Property. The end-result of the FDII rules is the reduction of the effective tax rate on the FDII to a bit over 13%.

The Europeans question whether this result and the FDII rules in general are in conformity with BEPS’ minimum standards and the EU blacklist criteria.

US Position: FDII Does Not Violate OECD Harmful Tax Practices

The Department of the Treasury officials adopted a position exactly opposite to the Europeans (which is not surprising at all). The United States believes that the FDII rules only superficially resemble harmful tax practices, but, in reality, they are very different from traditional preferential tax regimes.

The United States urges the Europeans to consider the FDII tax regime in the context of the overall tax reform that is intended to equalize minimum tax rate that applies to foreign activities of a US corporation regardless of whether the income is earned directly by the US corporation or through it subsidiary (which would be classified as a CFC).

In other words, the FDII rules have a different purpose and effect when one looks at the broader context. They are designed to take away a tax incentive to transfer IP out of the United States into a low-tax foreign subsidiary . Therefore, according to the Department of the Treasury, the FDII tax regime will not create any harm that the OECD Harmful Tax Practices Rules were designed to prevent.

FDII Compliance With the OECD Harmful Tax Practices Rules Will Continue to Be in Dispute

The FDII rules’ compliance with the OECD Harmful Tax Practices Rules will continue to be a matter of debate and conflict between the United States and the EU countries. Additionally, there are very strong objections from the Europeans to the FDII rules from the WTO perspective. This conflict will likely grow into a formal legal dispute between the two economic giants.

Sherayzen Law Office will continue to follow this new dispute between the EU and the United States.