The ABCs of Expatriation in These Chaotic Occasions | Holland & Knight LLP

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The ABCs of Expatriation in These Chaotic Times | Holland & Knight LLP

Highlights

  • Expatriation has increased significantly in 2020. The latest U.S. Department of the Treasury Report reflects that a record 6,047 individuals expatriated during the first three quarters of 2020. In addition, 834,000 “green card” holders became U.S. citizens in FY 2019, which reflects an 11-year high.
  • Why are so many individuals expatriating? Perhaps it is because we live in chaotic times, ranging from the pandemic to the contentious presidential election and transition, among other reasons. Further, U.S. taxpayers increasingly are considering moving a portion of their financial portfolios offshore for diversification and to facilitate global trading.
  • The increase in expatriation also has caught the attention of the Treasury Inspector General for Tax Administration (TIGTA), which, in a recent report, emphasized that the Internal Revenue Service (IRS) should have controls in place to better enforce U.S. tax and reporting provisions relating to expatriates.
  • In view of the significant uptick in expatriation activity, this Holland & Knight article reviews in Q&A format the essential elements of expatriation from an immigration and tax perspective.

As discussed in Holland & Knight’s previous alert, “TIGTA Tasks IRS with Enhanced Enforcement of Noncompliant Expatriates” (Nov. 23, 2020), expatriation has increased significantly in 2020. The latest U.S. Department of the Treasury Report reflects that a record 6,047 individuals expatriated during the first three quarters of 2020. This compares to the previous annual record in 2016, when 5,411 individuals expatriated. Interestingly, going the other way, 834,000 “green card” holders became U.S. citizens in FY 2019, which reflects an 11-year high in new oaths of citizenship.

The increase in expatriation caught the attention of the Treasury Inspector General for Tax Administration (TIGTA), which, in a report issued on Sept. 28, 2020, emphasized that the Internal Revenue Service (IRS) should have controls in place to better enforce U.S. tax and reporting provisions relating to expatriates.

Why are so many individuals expatriating? Perhaps it is because we live in chaotic times: the pandemic; the economy, social, health and climate issues; the oppressive worldwide U.S. taxation and reporting systems and the impact of the U.S. tax rules on so-called “Accidental Americans”; Foreign Account Tax Compliance Act (FATCA) and, most recently, the contentious presidential election and transition.1 Further, U.S. taxpayers increasingly are considering moving a portion of their financial portfolios offshore for diversification and to facilitate global trading.

As a result of the increase in expatriations and TIGTA’s report admonishing IRS to have better controls and enforcement of expatriations, in this article we review in Q&A format the essential elements of expatriation from an immigration and tax perspective.

I. U.S. Immigration Law Aspects of Terminating U.S. Citizenship

Q1. How Do I Terminate U.S. Citizenship?

Answer.

  • U.S. citizenship can be terminated through several methods, which include renunciation and relinquishment. This article considers only the renunciation of U.S. nationality abroad, which is the most unequivocal way by which an individual can manifest an intention to relinquish U.S. citizenship.
  • The renunciation method requires a voluntary choice and an understanding of the consequences.
  • Under this method, a U.S. citizen must appear in person before a U.S. consular or diplomatic officer in a foreign country and sign an oath of renunciation of U.S. citizenship.
  • Renunciation must be in person and cannot be done by mail, electronically or through agents.
  • A Certificate of Loss of Nationality (CLN) documents the loss of U.S. nationality. A CLN is completed by a consular official and sent to the U.S. Department of State for review and approval. U.S. citizenship is terminated only upon approval of a CLN, which is retroactive to the date of the oath of renunciation.
  • Comment. In view of the pandemic, it may not be possible to quickly or easily schedule an appointment at an embassy or consulate because of long delays in scheduling appointments, the closure of some embassies or consulates or because some embassies or consulates are not handling interviews during the pandemic. As mentioned above, renunciation must be in person.

Q2. What Are the Consequences of Terminating U.S. citizenship?

Answer.

  • Unless the former citizen possesses a valid foreign nationality or citizenship, he or she may be rendered stateless, and thus lack the protection of any government. The lack of a second foreign nationality or citizenship will also likely lead to difficulty in traveling as the individual does not have a passport from any country, and otherwise result in severe hardships.
    • Thus, prior to renunciation, ensure that the U.S. citizen lawfully obtained and still retains another nationality or citizenship. This can be done 1) by reason of birth outside the U.S., 2) through parents or grandparents (at birth or later), 3) through naturalization, or 4) through investment.
      • “Golden Visa” refers to immigration programs of countries that enable high-net-worth (HNW) individuals to obtain residence or citizenship in another country simply by purchasing a house in the country or making a significant investment or donation. If the immigrant pursues a Golden Visa, he or she must be careful to obtain what he or she expected.
      • The Organisation for Economic Co-operation and Development (OECD), after analyzing more than 100 citizenship or residence by investment schemes, cautioned that a number of these schemes pose a high risk to the integrity of the Common Reporting Standard and of tax abuse.
  • Other Consequences.
    • Termination of citizenship is irrevocable once approved, unless duress or lack of understanding can be proven.
    • Former U.S. citizens have no right to visit, work or reside in U.S. and have no advantage over other noncitizens in applying to do so.
    • Former U.S. citizens are required to obtain a visa to travel to the United States or show that they are eligible for admission pursuant to the terms of the Visa Waiver Program. If unable to qualify for a visa, a former citizen could be permanently barred from entering the U.S.
    • If the U.S. Department of Homeland Security determines that the renunciation is motivated by tax avoidance purposes, the former citizen could be found to barred from entry into the United States through the application of the so-called Reed Amendment, adopted in 1996.
      • It should be noted that poor drafting and restrictions on IRS sharing of taxpayer information have blocked implementation, since no regulations, policy guidance or procedures have been issued to implement the law.
      • Nonetheless, a number of former citizens at the border have been denied entry initially but overcame that denial; others have been interrogated about their reasons for expatriating.
      • Note, in June 2013, Sens. Chuck Schumer (D-N.Y.), Jack Reed (D-R.I.) and Bob Casey (D-Pa.) introduced amendments to the immigration reform bill to deny entry to “Covered Expatriates” who expatriated since 2008; these amendments were never enacted.
    • Impact on children
      • A child who became a U.S. citizen before the expatriation of a parent remains a U.S. citizen unless the child was born abroad and parent’s expatriation was retroactive to a date prior to the child’s birth.
      • A child born abroad to a former U.S. citizen does not obtain U.S. citizenship from the expatriated parent.
    • Names of expatriates are published in Federal Register.
    • Expatriates cannot purchase or possess firearms in the U.S.
    • Comments.
      • Prior to expatriation, it is important for the expatriating U.S. citizen to consider options for return to the U.S. in the future, such as for medical care, for career opportunities, to care for aging parents, to reside near adult children in old age or for other reasons.
      • Ensure expatriating U.S. citizen is not “excludable” from the U.S.; e.g., criminal convictions, prior immigration violations, terrorism and medical exclusion grounds (which may include arrest for driving under the influence of alcohol, even if not convicted).

II. U.S. Tax Law Aspects of Terminating U.S. Citizenship

Q1. Background: Who Is Impacted by the U.S. Expatriation Law?

Answer.

  • Expatriation tax provisions have been in the U.S. Internal Revenue Code (Code) since 1966.
  • Until 1996, expatriation tax provisions applied only to U.S. citizens relinquishing U.S. citizenship.
  • Beginning in 1996, the U.S. anti-expatriation provisions were extended to apply not only to U.S. citizens but also to certain “green card” holders classified as “long-term residents,” provided such persons are Covered Expatriates.” See Section III, infra, contains a discussion of the special expatriation rules applicable to “green card” holders and planning considerations.
  • Please note that this article discusses only the Code’s income and estate and gift tax expatriation provisions applicable to individuals who are Covered Expatriates and expatriate on or after June 17, 2008, and not to earlier expatriation provisions.

Q2. What Does the Term “Expatriate” Mean?

Answer.

  • A U.S. citizen who relinquishes citizenship. Also encompassed within that term, but not discussed herein, is the renunciation of citizenship and the loss of U.S. citizenship when a U.S. court cancels a naturalized citizen’s certification of naturalization.
  • A “long-term” resident of the U.S., who ceases to be a lawful permanent resident of the U.S.; see Section III, Q2 below.

Q3. What Are the Principal Code Sections and Precedent Dealing with Expatriation?

Answer.

  • Section 877A. The so-called “exit” tax, dealing with the income tax consequences to “Covered Expatriates,” definitions and operating rules.
  • Section 2801. Containing the gift and estate tax consequences applicable to a “Covered Expatriate.” Proposed Regulations were issued in 2015, more than seven years after Section 2801 became law.
  • Section 6039G. Containing the IRS Form 8854 compliance provisions.
  • Notice 2009-85. Providing guidance for expatriates under Section 877A.

Q4. Who Is a Covered Expatriate?

Answer.

  • A “covered expatriate,” defined in Q2 of this Section, is someone who meets any of the following three tests:
    • The Tax Liability Test. An expatriate who has an average annual net income tax liability for the five preceding taxable years ending before the expatriation date that exceeds a specified amount adjusted for inflation. For 2020, the amount is $171,000.
    • The Net Worth Test. An expatriate who has a net worth of $2 million or more, but not adjusted for inflation as of the expatriation date.
    • The Certification Test. An expatriate who fails to certify, under penalties of perjury, compliance with all U.S. federal tax obligations for the five taxable years preceding the taxable year that includes the expatriation date, including, but not limited to, obligations to file income tax, employment tax, gift tax and information returns, if applicable, and obligations to pay all relevant tax liabilities, interest and penalties. This certification is made on IRS Form 8854 and must be filed by the due date of the taxpayer’s federal income tax return for the taxable year that includes the day before the expatriation.

Comments.

      • An individual who otherwise does not meet the Tax Liability Test or the Net Worth Test nonetheless is a “Covered Expatriate” if the individual cannot satisfy the Certification Test.
      • Note, the certification of U.S. federal income tax obligations under the Certification Test are those under U.S.C. Title 26 (Internal Revenue Code).
      • Compliance with Report of Foreign Bank and Financial Accounts, so-called “FBAR” obligations arise under U.S.C. Title 31 (Money and Finance) and thus are not part of the above U.S.C. Title 26 Certification Test.
      • If a U.S. citizen or resident alien is not compliant with his or her other U.S. federal income tax obligations or FBAR filing obligations, there are various IRS programs to remediate that non-compliance.
  • Exceptions:
    • The expatriate became at birth a U.S. citizen and a citizen of another country and, as of the expatriation date, continues to be a citizen of, and is taxed as a resident of, such other country, and has been a U.S. resident for not more than 10 taxable years during the 15 taxable year period ending with the taxable year during which the expatriation date occurs;
      • To come within this foreign residency exception, the individual must be a resident of the country in which the individual was born in (and not of another foreign country).

or

    • The expatriate relinquishes U.S. citizenship before age 18½ and has been a U.S. resident for not more than 10 taxable years before the date of relinquishment.
  • Comment. There are no exceptions to Covered Expatriate status for long-term residents.

Q5. What Is the Expatriation Date?

Answer.

  • It is the date an individual relinquishes U.S. citizenship or, in the case of a long-term resident of the United States, the date on which the individual ceases to be a lawful permanent resident of the U.S.
    • For a U.S. citizen who renounces U.S. citizenship, the expatriation date is the date that the individual signs the oath of renunciation before a diplomatic or consular officer of the U.S., provided that the renunciation is subsequently approved by the issuance of a CLN.
    • For a long-term resident, the expatriation date is the date of cessation of lawful permanent residency. That can occur:
      • through an administrative revocation,
      • a judicial determination of abandonment, or
      • commencement as a resident of a foreign country under the provisions of a U.S. bilateral income tax treaty, provided that the individual waives treaty benefits, and notifies the IRS of such treatment on IRS Forms 8833 and 8854.

Q6. Income Tax Expatriation Provision: What Is the So-Called “Mark-to-Market”/Exit Tax?2

Answer.

  • General Rule. Section 877A generally imposes a “mark-to-market” income taxation regime on Covered Expatriates, which results in the deemed sale of worldwide assets (except for three categories of assets) on the day before the expatriation date. The gain is taxed at applicable ordinary or capital gains rates on gains in excess of $600,000 (indexed for inflation; $737,000 for 2020).
    • Operating Rules:
      • Any gain arising on the deemed sale is taken into account for the taxable year of the deemed sale notwithstanding any other Code provision.
      • Any loss from the deemed sale is taken into account for the taxable year to the extent otherwise provided in the Code (except for the Code wash-sale rules, Section 1091).
      • All nonrecognition deferral and tax payment extensions are terminated as of the day before expatriation.
      • The determination of ownership and valuation of assets is based on estate tax principles.
      • An expatriate can elect to defer tax on an asset-by-asset basis if “adequate security” is provided (with a 30-day cure period). Deferral continues until asset sold/transferred or taxpayer dies, if sooner. The taxpayer must agree to waive tax treaty benefits; and interest accrues on deferred tax at the Code underpayment rate.
      • Long-term residents have a basis step-up (but not basis step-down) for purposes of calculating gain under the mark-to-market taxing regime. Note, the resident individual may elect not to have this step-up in basis apply.

Q7. What Assets Are Excluded from the Deemed Sale Rule and How Are They Taxed?

Answer.

  • Deferred Compensation Items. “Deferred Compensation” is broadly defined to include all types of employer retirement plans, including qualified, nonqualified retirement plans, as well as foreign plans and the right to future property transfers that an individual is entitled to receive in connection with the performance of services to the extent that amounts were not previously includible in taxable income. Not included: deferred compensation attributable to non-U.S. services performed while taxpayer was not a U.S. resident. Retirement plan payments are excepted from early distribution penalties.
    • Taxation.
      • “Eligible Deferred Compensation” (i.e., U.S. payor): subject to 30 percent withholding tax on taxable portion under Section 871 rules.
      • “Ineligible Deferred Compensation” (i.e., non-U.S. payor): present value and includible income on day prior to expatriation date at marginal tax rates (unless non-U.S. payor elects to be treated as a U.S. payor).
  • Specified Tax Deferred Accounts. These include the following types of accounts:
      • Individual retirement plan (including rollover IRAs).
      • Qualified tuition program.
      • Coverdell education savings account.
      • Health savings account.
      • Archer Medical Savings Accounts (MSAs).
    • Taxation. On day prior to expatriation date.
  • Non-Grantor Trusts. Any trust of which taxpayer is not the grantor immediately prior to expatriation date. Includes trusts that are grantor trusts as to other person, Code Section 678.
    • Taxation.
      • Post-expatriation distribution from non-grantor trust in which taxpayer considered to have beneficial interest prior to expatriation subject to 30 percent withholding tax on the “taxable portion” under Section 871 rules; there is no time limit on the taxation of distributions.
      • Special Rules.
        • Non-grantor trust recognizes gain on distribution of appreciated property.
        • Taxpayer deemed to waive any treaty benefits, unless obtains special IRS ruling to have ascertainable value of beneficial interest includible in income on day prior to expatriation date.
        • If non-grantor trust becomes grantor trust after expatriation, deemed treatment as taxable distribution.
        • Potential foreign tax credit issues under Section 906.

Q8. What Are the Section 877A Compliance Requirements?3

Answer.

  • IRS Form 8854 (Initial and Annual Expatriation Statement). The form must be timely filed with final income tax return. If it is not, the former citizen is treated as a Covered Expatriate. Form must be filed also for eligible deferred compensation items, beneficial interests in non-grantor trusts and for taxpayers who deferred payment of tax.

On Sept. 6, 2019, the IRS announced a new procedure entitled “Relief Procedure for Certain Former Citizens,” to enable certain non-compliant U.S. citizens who relinquish their U.S. citizenship to become U.S. tax compliant. The procedure has a narrow scope applicable to non-willful former citizens who owe $25,000 or less in back taxes and with net assets of less than $2 million.4

  • IRS Form W-8CE (Notice of Expatriation and Waiver of Treaty Benefits) required to be filed in connection with items excepted from mark-to-market rule, by earlier of first post expatriation distribution or 30 days after expatriation date.
  • Income Tax Returns.
    • Year of Expatriation. A Covered Expatriate required to file a dual-status return if he/she was a U.S. citizen or long-term resident for only part of the taxable year that includes the day before the expatriation date.
      • A dual-status return requires the Covered Expatriate to file an IRS Form 1040NR (U.S. Nonresident Alien Income Tax Return) with an IRS Form 1040 (U.S. Individual Income Tax Return) attached as a schedule.
      • If the Covered Expatriate’s expatriation date is Jan. 1, then filer is not required to file a dual-status return.
    • Subsequent Years. If Covered Expatriate does not have any U.S. source income or it is fully withheld at source, there is no requirement to file IRS Form 1040NR for that particular year.

Q9. Estate and Gift Tax Expatriation Provisions: How Do They Apply?5

Answer.

  • General Rule. Under Section 2801, U.S. citizens or residents receiving “covered gifts or covered bequests” from a Covered Expatriate will be taxed at the highest applicable gift or estate rate (40 percent in 2020).
    • “Covered gift or covered bequest.” Property that is acquired directly or indirectly by gift from, or by reason of the death of, a person who, at the time of the acquisition or death, was a Covered Expatriate.
    • A gift or bequest includes a distribution from the income or corpus of a foreign trust to a U.S. person attributable to a “covered gift or covered bequest” made to a foreign trust.
    • A “covered gift or covered bequest” to a domestic trust (a U.S. citizen) is a gift to a U.S. person and taxable to the trust. Note, an election exists for a foreign trust to elect to be taxed as a domestic trust.
    • An issue arises as how the term “U.S. resident” is defined – whether that term is defined under the domicile concept of Subtitle B (Estate and Gift Taxes) or the income tax rules (“substantial presence” and “green card” tests).
    • No time limit on the imposition of gift or estate taxes to U.S. recipients under Section 2801.
  • Exceptions.
    • Amount of annual gift tax exclusion ($15,000), per person.
    • Gifts or bequests entitled to marital or charitable deductions.
    • A “covered gift “if reported on a timely filed gift tax return.
    • Property included in a Covered Expatriate’s gross estate and reported on a timely filed federal estate tax return.
    • The U.S. tax on a “covered gift or covered bequest” is reduced by any foreign gift or estate tax paid on such gift or bequest.
  • Effective Date.
    • Notice 2009-85 provided that the reporting and tax obligations for “covered gifts or covered bequests” received would be deferred, pending the issuance of guidance.
    • Proposed Regulations under Section 2801 were issued by IRS on Sept. 9, 2015 and provided that they would apply on or after the date of final publication.
  • Comment.
    • U.S. recipients have the responsibility to determine whether a gift or bequest received is a “covered gift or covered bequest” and have the responsibility of paying the tax under Section 2801.
      • A U.S. taxpayer may request that the IRS disclose the return of a donor or decedent expatriate to assist the U.S. person in determining that person’s tax obligations. If a living expatriate donor does not authorize the IRS to release his or her relevant return to a U.S. citizen or resident, a rebuttable presumption arises to the effect that the expatriate donor is a Covered Expatriate and that each gift is a “covered gift.”
    • The Section 2801 tax is not reduced by the gift tax unified credit or the estate tax unified credit.
    • There is no correlation between the amount of property subject to the “exit” tax or whether the “covered gift or covered bequest” is composed of U.S. or foreign situs property.
    • Does Section 2801 override bilateral estate or gift tax treaties? The Proposed Regulations do not expressly state that treaties are not overridden, and the legislative history is silent on this point.

III. Application of U.S. Tax Expatriation Provisions to “Green Card” Holders

Q1. Who Is a “Green Card” Holder?

Answer.

  • The following individuals are deemed to be “green card” holders:
    • An alien who has been granted authorization to live and work in the United States on a permanent basis. A permanent resident card (“green card”) is issued by the U.S. Citizenship and Immigration Service after admission and is later mailed to the alien’s U.S. address.
    • After entering the U.S. on an immigrant visa, the alien is granted Permanent or Conditional Resident status.
    • An individual in possession of a Permanent Resident Card (I-551), which is proof of lawful permanent resident status in the United States. The card also serves as a valid identification document and proof that the alien is eligible to live and work in the United States.
  • Comment. Green card holders need to be aware that taking a treaty tie-breaker position to file as a nonresident alien for U.S. income tax purposes could adversely impact their immigration status and cause an unintended expatriation.

Q2. Who Is a Long-Term Resident?

Answer.

  • Any individual (other than a U.S. citizen) who has been a lawful permanent resident of the United States (a “green card” holder) in at least eight out of the last 15 taxable years ending with the year in which the “long-term resident expatriated” (i.e.,ceases to be treated as a lawful permanent resident of the United States).

Unlike U.S. citizens, U.S. “green card” holders can expatriate involuntarily, by having their “green card” revoked for abandonment, criminal conviction or other deportable offenses.

    • Revocation for Abandonment. A “green card” holder who takes up residence abroad risks having the green card revoked for abandonment. This can occur if the “green card” holder is absent from the U.S. continuously for more than one year or absent extensively (more than 50 percent) with only short visits to U.S. Visiting the U.S. once or twice per year, owning a personal residence or bank/retirement account in U.S. does not protect against abandonment.
      • A re-entry permit preserves “green card” status while residing abroad.
      • A “treaty tie-breaker” is deemed to have expatriated as of the date of “commencement” of foreign residence under a treaty unless the individual waives treaty benefits and notifies the IRS on IRS Forms 8833 and 8854.
    • Relinquishment. A “green card” holder can voluntarily relinquish his or her “green card” by filing Form I-407 (Record of Abandonment of Lawful Permanent Resident Status) and avoid coming within the eight out of 15-year test by surrendering his/her “green card” before the first day of Year Eight.

Computation Mechanics:

      • Determine the 15-year period that ends when the “green card” is relinquished.
      • Note, if an individual is a lawful permanent resident of the U.S. at any time during the calendar year, then that individual is a lawful permanent resident for that year. For example, arrival in the U.S. on Dec. 31 counts as a full year as does departure from the U.S. on Jan. 1.
      • A “green card” holder that is a lawful permanent resident for eight out of 15 years is viewed as expatriating for tax purposes if the individual 1) voluntarily abandons his/her “green card”; 2) elects to be a resident of a foreign country under treaty tie-breaker provisions and does not waive treaty benefits; or 3) the government administratively or judicially terminates alien’s “green card” status.
  • Tax planning considerations for “green card” holders:
    • Leave U.S. and surrender “green card” by filing Form I-407 before first day of eighth year.
    • If “green card” holder desires to return to foreign home for a period of time without jeopardizing “green card” status, obtain re-entry permit in advance of trip.
    • If “green card” holder” wants to continue to reside in U.S. but wants to avoid long-term resident classification, timely surrender “green card” and obtain nonimmigrant visa status.
    • Become a U.S. citizen. A U.S. citizen can reside abroad forever without losing citizenship.
  • Comment. An alien who is in the U.S. on a nonimmigrant visa and is a U.S. resident under the “substantial presence” test cannot become a long-term resident subject to the U.S. expatriation rules.

IV. Planning Considerations

Q1. What Should You Consider Before Expatriating?

Answer.

  • Obtain timely and accurate immigration and tax advice.
  • Have a valid second nationality or citizenship.
  • Carefully identify ownership and value of all assets and liabilities.
    • Consider how property rights impact who owns which assets.
      • Pre or post-nuptial agreement?
    • Does a common law or community property regime apply?
  • Evaluate the cost of Section 877A and Section 2801 taxes compared to remaining a U.S. taxpayer.
    • Exit tax – a one-time cost.
    • Continuing as a U.S. citizen – incurs lifetime annual income taxes and potential estate tax at death.
    • How does expatriation impact multigenerational wealth planning? This is particularly important if the expatriate’s heirs intend to remain U.S. citizens.
  • If potential expatriate is not in compliance with the Certification Test, consider how to remediate non-compliance prior to expatriation (and concurrently remediate for any non-compliance with FBARs).

Q2. Some Planning Ideas

Answer.

  • Gifting to Reduce Net Worth. Reduce net worth for purposes of the Net Worth Test, but must be carefully done.
    • Consider use of unified credit prior to expatriation since credit not available post-expatriation.
    • Consider use of non-grantor irrevocable trusts. Avoid “string” provisions; e.g., estate tax retained interest and general power of appointment provisions.
    • Consider gifts to spouse before expatriation; viz., use of the unlimited gift tax marital deduction provided your U.S. citizen spouse is not expatriating, or gifting to noncitizen spouse (2020 amount is up to $157,000).
    • Carefully consider timing of gifts close to expatriation.
      • IRS Form 8854 Instructions requires furnishing balance sheet information “(i)f there have been significant changes in your assets and liabilities for the period that began 5 years before your expatriation and ended on the date that you first filed Form 8854, you must attach a statement explaining the changes.”)
    • For long-term residents planning to expatriate, consider possible planning opportunities related to different definition of resident for income tax purposes versus definition for gift tax purposes and potential for gifting.
      • Caveat: This planning idea requires careful evaluation in the overall context of the immigration and tax provisions related to expatriation.
  • Techniques to Minimize Gain or Income Under Exit Tax.
    • Exit tax is based on the fair market value (FMV) of property. Consider traditional estate planning techniques and vehicles, such as family limited partnerships, where valuation discounts may be available. Here, be sensitive to timing. Planning should be done sufficiently in advance of expatriation.
    • Sale of Residence. Consider selling residence prior to expatriation if otherwise qualify for Section 121 exclusion of $250,000 ($500,000 for certain married taxpayers).

Prior to implementing any planning ideas, it is important to consult with your immigration and tax advisors.

Conclusion

The authors acknowledge the contribution of Steve Trow, co-founder and now retired partner of Trow & Rahal, P.C., who contributed to earlier iterations of some of the content in Section I of this article.

Notes

1 See “Demand for second passports and citizenship soars,” International Investment, Dec. 1, 2020.

2 See “The Tax Rules Just Changed: Emotions Aside, Does Expatriating Make Financial Sense?,” Kevin E. Packman, Journal of Taxation, August 2008.

3 See “The IRS Approach to Dealing with the Expat Community is Schizophrenic,” Kevin E. Packman, Estate Planning Journal, January 2020.

4 See Holland & Knight’s previous alert, “New IRS Procedure Provides Favorable Path for Non-Compliant Expatriates to Become Tax Compliant,” Sept. 11, 2019.

5 See “IRS Provides Some Guidance on the New Expatriation Exit Tax,” Kevin E. Packman and Summer A. LePree, Journal of Taxation, March 2010.