LITMIR.BIZ

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Location of Assets: you must eliminate or minimize holding any assets that would be subject to federal or state gift or death taxes

      • Timing: the timing of various acts must be carefully considered (for example, you might sell your family home before you leave but try to postpone receipt of foreign-source income until after you go)

      • Status of Beneficiaries: several special factors must be considered if your spouse or any of your other intended beneficiaries will remain US citizens or residents

      More than a million US residents become US citizens each year but, at least until recently, fewer than 1,000 Americans per year have given up US citizenship. Many of those who have done so were returning to a country in which they were born (such as South Korea) that does not permit them to retain another citizenship. Many countries permit dual citizenship, but some do not.

      If you expatriate, the new US exit tax law enacted in 2008 aims to make you promptly pay an exit tax on most of your previously untaxed worldwide gains and deferred income. In those cases where this tax is permitted to be postponed, the IRS (Internal Revenue Service) makes sure that you cannot escape the exit tax or reduce it by using tax treaties. Finally, a nasty new special income tax is imposed on any US citizens or residents who receive gifts or bequests from you exceeding US$14,000 a year at any time in the future. The bottom line: the new rules are designed to remove most or all of the tax benefits you might derive by leaving. The government wants to encourage you to stay and pay.

      The US Congress didn’t enact the first constitutional income tax on individuals until 1913. The US income tax rates in early years were generally quite low. The US Supreme Court decided in 1924 that it was OK to apply the income tax to US citizens living abroad as well as to everyone residing in the US. Despite the fact that the case involved less than US$1,000 and the result was questionable, it is almost inconceivable that either Congress or the courts will ever change it. Today, the US is the only developed country in the world that taxes not only its residents but also its citizens, even those who have never lived in the US or who have lived abroad for many years.

      Having or acquiring another citizenship is a practical necessity for anyone seeking to reduce or eliminate US federal, state and local taxes that are becoming more confiscatory each year. Some Americans acquire a second citizenship through ancestry or by marriage; others do so through a citizenship program such as that of St. Kitts and Nevis. Dual citizenship does not eliminate US taxes if one of these is US citizenship.

      Are you a US citizen? For many of those reading this the answer is obvious. They were born in the US or have been naturalized, and they have never done anything to lose their American citizenship. However, US citizenship is also acquired by birth abroad if at least one of your parents was a US citizen and has met minimum US residence requirements. These rules have been changed several times and your actual citizenship will normally depend on the law in effect at the time you were born.

      A child born in the US to a mother who is an alien simply visiting the US at that time is a US citizen. A child born in the US whose parents are illegal aliens is also a US citizen. Anyone born in the US and “subject to its jurisdiction” is a US citizen by birth even if neither of his or her parents were US citizens or US residents. The only children born in the US who are not subject to its jurisdiction are the children of ambassadors or other representatives of foreign countries.

      A child born abroad is a US citizen at birth if both parents are US citizens when the child was born and at least one of them had resided in the US sometime before the child’s birth. If only one of the parents is a US citizen, the child born abroad is a US citizen if the citizen parent was physically present in the US for at least five years and at least two of those years were after he or she was 14 years old.

      In the US 2010 Census, the government made every possible effort to count all individuals in the country, including illegal aliens. It did not count any US citizens who live abroad. Geneva-based American Citizens Abroad has estimated that there may be as many as seven million US citizens living abroad. No one, including the government, really knows. US citizens are not required to obtain identity papers nor are they required to have US passports. Most Americans living abroad do not register with a US Embassy; they are not required to do so.

      A single (not married) US resident or citizen (including one living abroad) is not required to file an annual income tax return if he or she has less than US$9,750 of gross income per year. The amount is less than US$3,800 if he or she is married and filing separately.

      A US citizen must relinquish (or renounce) his or her US citizenship in order to leave. If you do leave the US, you must also take into account the income and capital transfer taxes imposed by the US state and community in which you last lived or in which you own any property.

      Until 1966, the US made no serious effort to keep Americans from giving up citizenship for tax reasons. The first US anti-expatriation rules enacted in 1966 were generally unenforceable, but they have been beefed up several times during the next four decades. Since 1995, most anti-expatriation rules have also applied to long-term resident aliens, those who have held green cards in eight of the last 15 years. The rules have never been applied to those who do not hold green cards, even those who have been fully subject to US income taxes for many years because they were deemed to be US residents under the substantial presence test (because they spent an average of more than four months a year in the US).

      After more than a decade of unsuccessful attempts, Congress finally passed an exit tax in 2008. Anyone who gave up US citizenship or long-term residence before 17 June 2008 is covered by old rules. Most of these old rules have been replaced for persons covered by the new rules. Those who have expatriated after that date are covered by the new rules. They do not generally face continued US taxation or tax returns for ten years after expatriation. The new rules apply to US citizens who give up US citizenship and to departing aliens who have held a green card for eight of the last 15 years. Anyone who leaves after holding a green card even one day more than seven years risks becoming a covered expatriate subject to the exit tax and a new punitive death and gift tax regime.

      The new US exit tax law is quite complex, and it contains numerous cross-references to other sections of the US tax law. This explanation is necessarily over-simplified. Anyone seriously interested in exploring possibly giving up US citizenship or a green card should obtain competent professional advice.

      The new exit tax does not apply to everyone who expatriates. It applies to you if you meet either of two monetary tests, one of which can change each year because it is indexed for inflation. You must also certify to the IRS under penalties of perjury (on IRS Form 8854) that you have complied with all of your US tax obligations for the last five years. If you meet either an income tax test or a net worth test, or if you do not make the required certification, you are a covered expatriate and you are subject to all of the negative aspects of the new exit tax law.

      If you expatriate during 2014, the income tax test will be based on the average of your US federal income tax liability after foreign tax credits for the five years 2009-2013. If your average net income tax liability during these years was more than US$157,000 a year, you are a covered expatriate. This amount is indexed for inflation annually and will probably be increased in future years.

      The other test is based on your net worth on the day immediately before your expatriation date. If your net worth is at least US$2 million on that date you are a covered expatriate. That amount is not indexed for inflation.

      If you don’t meet either monetary test and you make the required certification, you are not a covered expatriate and you are not subject to the exit tax. If you are a covered expatriate, the next step is to calculate the amount of your exit tax.

      Certain assets are excluded when you determine your net gain subject to the exit tax. These include your interests in non-grantor trusts and in eligible deferred compensation items such as qualified pension plans, profit sharing plans or qualified annuity plans. An alternative tax system applies to these properties. You will be required to send

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