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Tuesday, April 27, 2010

Follow up to Articles on Expatriation

The New York Times had an interesting article online today about how more and more people are giving up their citizenship. It did not surprise me that many give up their citizenship to save money on income taxes. However, I was surprised to learn that the Patriot Act is also partly to blame.

Apparently, the Patriot Act makes it very difficult for citizens to maintain bank accounts in the United States if they have lived overseas for a long time because the Patriot Act requires a United States residence. Since overseas residents cannot provide a US address, they are being treated the same as terrorists and the banks are closing the accounts.

In the short term, giving up your citizenship may make things easier, but remember, there can be serious income tax and inheritance tax ramifications to giving up your citizenship.

Wednesday, April 21, 2010

Pennsylvania (and Philadelphia)Tax Amnesty Programs

Starting April 26, 2010, Pennsylvania will offer partial amnesty for taxpayers who are delinquent in paying their taxes. The program runs through June 18, 2010. Frankly, this is an incredibly generous amnesty because Pennsylvania is agreeing to waive 100% of any penalties plus 50% of the interest.

The city of Philadelphia is also showing a little brotherly love by offering its own tax amnesty program, starting on May 3, 2010 and ending on June 25, 2010.

For those of you who owe back taxes, it is usually advisable to try and take advantage of the amnesty programs to reduce your overall tax liability and clean up your credit. Moreover, the government will frequently issue additional penalties to those who do not come forward during the amnesty.

Friday, April 16, 2010

How to Avoid Estate Litigation - Communication

Sometimes there is no preventing an estate litigation. When a family member steals items from the estate, or when the Will is poorly drafting making it confusing, litigation is sure to follow.

However, most good estate attorneys will tell you, one of the biggest reasons that unnecessary litigation results is due to family members not communicating with each other. Lack of communication by the person in charge of the estate leads the other family members to believe that the executor (or administrator) is hiding something. More often than not, the person in charge is just too busy or overwhelmed. Things get said which are better left unsaid, and then the worst of all situations arises - it no longer is about getting what you are entitled to under the Will, but about how Mom or Dad always loved the other one more.

Once the administration of an estate is no longer about getting through the difficult administration process, but about opening old family wounds, people seem more than happy to hire aggressive litigators to settle the score. In the long run, this ALWAYS costs the estate far more. It costs the estate more money in attorneys' fees and it costs the family any semblance of family unity. It is rare that siblings, or cousins, will ever get along again after there has been an estate litigation.

Many times, you do not need to hire an attorney to handle the probate and administration of a loved one's estate. However, if you find yourself overwhelmed, you must not just sit and wait. It will cost you far more than money. A qualified estate administration attorney can guide you through the process. Moreover, the person named as executor is not individually responsible for paying for the fees - it comes from the estate off the top. After all, it is in everyone's interest to make sure Mom and Dad's wishes are carried out.

Friday, April 9, 2010

Who exactly is a Covered Expatriate?

In 2008, President Bush signed the Heroes Earnings Assistance and Relief Tax (HEART) Act. One of the major provisions of the Heart Act was to collect substantial taxes from certain United States taxpayers (whether a citizen or a permanent resident alien) who expatriated from the United States after June 16, 2008. The individuals that this law applies to are known as "Covered Expatriates."

There can be harsh federal income tax and federal inheritance tax consequences if you are deemed to be a Covered Expatriate.

A person is considered a Covered Expatriate if he or she:
1) is a US citizen who renounced his or her citizenship OR a permanent resident alien who relinquishes his or her status after being a permanent resident alien for 8 of the last 15 years; AND
2) has had an average annual net income tax of more than $124,000 ($136,000 adjusted for inflation) in the preceding five years OR has a net worth equal to or more than $2,000,000 OR such person fails to certify, under penalty of perjury, that he or she has met the income and asset requirements.

Additionally, this statute does not apply to dual citizens who became a citizen of the United States by birth, but have never had substantial contacts with the United States. A person is considered to have substantial contact with the United States if he or she was ever a resident of the United States, ever held a passport OR was present in the United States for more than 30 days during any calendar year 10 years prior to the person giving up their United States citizenship. There is a slight variation on this rule for dual citizens who give up their US citizenship prior to age 18 and 1/2.

To learn more about who is a Covered Expatriate, wee Internal Revenue Code Section 2801 and Section 877A(g)(1).

Income Tax Consequences of Expatration

In this down economy, many companies are laying off employees. While this could be deeply troubling for those who get laid off, imagine if you were also subject to a huge income tax penalty as a result. This could be happening to you now if you are a permanent resident alien who decides to leave America after losing your job.

In 2008, President Bush signed the Heroes Earnings Assistance and Relief Tax (HEART) Act. This ironically named Act was designed to prevent wealthy people from leaving the United States before paying what Uncle Sam thinks they owed.

The Heart Act applies to citizens and permanent resident aliens who meet certain income and asset requirements. These individuals are known as "Covered Expatriates". To see who exactly Covered Expatriates are, read here.

The Heart Act created Section 877A of the Code. Section 877A takes a snapshot of your assets the day before you expatriate. Then, on the day you expatriate, you are then immediately taxed on the net built in gain which is in excess of $600,000 (indexed for inflation - so this amount is $627,000 in 2010). So, if you are a Covered Expatriate and own several real estate properties with built in gain of $1,000,000, there would be a deemed gain of $363,000, and you would have to pay a tax on that gain.

In the case of an IRA, but not most other retirement accounts, expatriates are also deemed to have received a distribution equal to their entire interest. Luckily, there is no early distribution penalty unless you actually do take the money out early. For most qualified and non-qualified retirement accounts, the IRS will continue their existing practice of requiring the employer to withhold 30% when the money is actually distributed from the account.

Perhaps the only positive feature of this law for those affected is that it does allow certain taxpayers to defer making payments on their tax obligations.

Note: There is an open question about whether Section 121 of the Code, which allows a capital gains tax exclusion on sale of primary residence, still applies to Covered Expatriates. It would probably be advisable to sell your primary residence before expatriating to avoid this issue and also to avoid having to obtain a valuation report for the property.

There is a Federal Inheritance Tax?

It's true. Most people think that the United States only has a federal estate tax (and yes, I know that technically there is no federal estate tax this year). However, the United States also has an inheritance tax that taxes certain inheritances that are received by United States citizens and permanent resident aliens if the inheritance came from a "Covered Expatriate". To see who exactly a Covered Expatriate is, see my article here.

Moreover, the inheritance tax can be an extremely expensive tax as it is taxed at the highest federal gift or estate tax rate. Currently the highest rate is 35%, but this could potentially go as high as 50% after 2010. Unlike the estate tax, which has a large exemption amount (i.e. you can pass on a lot of money before the tax hits), the inheritance tax exemption amount is minimal. You can only pass on an amount equal to the maximum amount that a person can gift annually under Section 2503(b) of the Internal Revenue Code, currently $13,000.

The federal inheritance tax became law when the Heart Act was passed in 2008. The Heart Act created Section 2801 of the Internal Revenue Code to try to collect a tax on the inheritance that United States persons received from wealthy relatives who had fled the United States for tax avoidance reasons.

Since this is an inheritance tax, the tax is paid by the recipient, not the estate. This was done for jurisdictional reasons. It should be noted, however, that the recipient of the inheritance can receive a credit if an estate or inheritance tax was paid in another jurisdiction.

Spouses and charities are specifically exempt from paying this tax, so this tax is mainly going to apply to the children of wealthy parents who have expatriated from America. Due to the number of permanent resident aliens who are returning to their native country in this economy, and leaving adult children in America, it may actually affect a lot of people.

It should be noted that you can not simply get around this tax by giving money to a trust (foreign or domestic). Moreover, indirect gifts and bequests will also be taxed. It is a far reaching act that can also have massive income tax repercussions. To see more about this, read Income Tax Consequences of Expatriation.

If you are thinking about expatriating from the United States, there is some planning that can be done to avoid being treated as a Covered Person. At a minimum, there is planning that you can do to lessen the tax burden.

Wednesday, April 7, 2010

IRA Planning in Light of Robertson v. Deeb

In December of 2009, the Florida Court of Appeals concluded in Robertson v. Deeb, 16 So. 3d 936 (Fla. 2d DCA 2009), that the beneficial interest that a person owns in an inherited IRA may be subject to garnishment. In other words, an IRA that you inherit may be taken by your creditors. This is different from an IRA that you establish yourself, or a retirement plan like a 401(k) or 403(b), which are all protected against creditors.

The result itself did not surprise me much until I read and article by Kristen M. Lynch and Linda Suzzanne Griffin in the April 2010 Florida Bar Journal. Intuitively, it made sense that a creditor can go after an asset that you inherit. Usually, the rule of thumb is that unless an asset is specifically exempted, a creditor can sue to get it.

What made this case unusual, and what I was not aware of, is the fact that there was a specific statute on point, F.S. Section 222.21, which seems to indicate that money payable to the "beneficiary" of an IRA is exempt from all claims of creditors. The Court, however, stated that a beneficiary who inherits an inherited IRA is not entitled to the same protection as a beneficiary who contributes to his or her own IRA.

I do not wish to argue the merits of the Court's decision, but I will point out that as a result of this case, anyone who has a substantial IRA should seriously consider establishing a trust for their loved ones which has "stretch" and asset protection provisions.

For many people, their IRAs are their biggest asset.
It is clear, now more than ever, that if you wish to protect your IRA from creditors, you cannot simple name your loved ones as the beneficiaries without risking it being taken. Moreover, you cannot simple name a traditional trust as the beneficiary without incurring large income taxes. You need to do comprehensive IRA planning.