New "Heroes" Law May Be Villain for Expatriating U.S. Citizens and LPRs Who Surrender Green Cards

New legislation known as the Heroes Earnings Assistance and Relief Tax Act of 2008—or the Heroes Act—provides a number of pay and employee benefits to military personnel. However, the Heroes Act also contains provisions that radically change the rules for U.S. citizens and lawful permanent residents who relinquish, respectively, their citizenship or permanent resident status.

Under the act, high-net-worth individuals may face significant financial consequences by renouncing U.S. citizenship or surrendering their green cards.

Before making a decision to expatriate, citizens and long-term permanent residents should understand the full impact of the Heroes Act, including its implications for immigration, income tax, and estate and gift taxes. The following article explains what affected parties can expect under the new law—and how they should prepare for the potentially significant financial consequences of expatriation.

Background

The Heroes Act, Public Law Number 110-245, became effective on June 17, 2008. Providing targeted tax relief to members of the military and their families, the act pays for these benefits by (1) imposing significant new taxes on certain high net-worth expatriates; (2) treating foreign subsidiaries of U.S. companies as U.S. employers for employment tax purposes if they are providing services under a U.S. government contract; and (3) increasing the minimum penalty to $135 for failure to file a timely individual tax return.

This first category of the "pay for" provisions, namely, the tax implications for expatriates can present harsh realities for unwary or uninformed individuals. In addition to U.S. citizens, affected parties may include executives with U.S. permanent residence who wish to retire to their country of citizenship or to accept a new assignment in another country.

Extended Reach of Expatriate Tax Rules

The U.S. generally taxes citizens and lawful permanent residents—often referred to as "green card" holders—on their worldwide income. Over the years, certain individuals sought to end that worldwide tax exposure at the high U.S. rates, even if it required renouncing their U.S. citizenship or surrendering their green cards to do so.

A former tax regime in Section 877 of the Internal Revenue Code of 1986, as amended, established a series of rules and extended U.S. tax reporting for these expatriates for up to10 years after the expatriating event. In recent years, the reach of these rules and tax reporting obligations were extended to apply to certain high net-worth citizens and long-term permanent residents who relinquished citizenship or permanent resident status, regardless of whether the individual had any intent to avoid U.S. taxation.

With the enactment of the Heroes Act, those who relinquish U.S. citizenship or cease to be permanent residents after the act's effective date are confronted with a variety of draconian new rules, such as:

• Deemed sale of their property the day before the expatriation date (and consequent U.S. tax liabilities on such "gains" in excess of $600,000)
• Gift tax obligations, imposed on the recipient, on gifts and bequests from such expatriates in excess of $12,000
• Changes in the definition of and process for "termination" of citizenship
• Special rules for certain relinquishing dual citizens

Covered Expatriates

For purposes of the Heroes Act, an expatriate includes any U.S. citizen who relinquishes his citizenship and any long-term lawful permanent resident who ceases hold such status. A covered expatriate is an individual who, as of the date of expatriation meets one of the following requirements: (1) had an average annual net income tax of more than $139,000 (subject to increases for inflation after 2008) for the immediately preceding period of five taxable years; (2) had a net worth of $2 million or more, or (3) fails to certify that he met the requirements of the Internal Revenue Code for the five preceding taxable years or fails to submit evidence of compliance.

A long-term permanent resident is an individual who is a lawful permanent resident of the U.S. in at least eight taxable years during the period of 15 taxable years ending with the date of expatriation. There are limited exceptions.

Expatriating Events

An individual expatriates as of the date he relinquishes U.S. citizenship or, in the case of a long-term permanent resident, the date on which he ceases to be a lawful permanent resident.

In the case of a U.S. citizen, relinquishment will be effective on the earliest of: (1) the date the individual renounces his citizenship before a U.S. diplomatic or consular officer; (2) the date the individual provides the U.S. State Department with a signed statement of voluntary relinquishment of citizenship; (3) the date the U.S. State Department issues to the individual a certificate of loss of nationality; or (4) the date a federal court cancels a naturalized citizen's certificate of naturalization.

A permanent resident will cease to be a resident as of the date his status is revoked or administratively or judicially abandoned. Additionally, a permanent resident shall cease to be treated as a lawful permanent resident if he starts to be treated as a resident of a foreign country under a tax treaty between the U.S. and that country; does not waive the benefits of such treaty; and notifies the IRS of the commencement of such treatment.

Deemed Sale of Property

The Heroes Act enacts a deemed sale, "mark-to-market" approach for expatriates, replacing the former expatriation approach in the Internal Revenue Code with a new section (877A). The new law treats expatriates as having sold all their property for fair market value the day before the expatriation date. The deemed gain from those "sales"—in excess of $600,000, an amount that is indexed for inflation in future years—is to be taken into account for the taxable year in question. For purposes of this expatriation gain calculation, expatriates are allowed a basis step up to the then-fair market value of the property owned at the time they first became a U.S. resident.

Certain types of "property" that would otherwise appear to be caught by the deemed sale rules of Section 877A may actually be subject to different treatment, including the following:

"Eligible deferred compensation items." These "items" include receivables such as deferred compensation, foreign pension or similar retirement plans, property to which the individual is entitled for the performance of services which has not previously been taken into account according to Section 83, etc. In order for these types of items to be excluded from the deemed sale provisions, the U.S. payor/obligor must receive a notice from the covered expatriate and the expatriate must irrevocably waive any reduced withholding rate under any U.S. tax treaty. If the required formalities are met, these excluded "items" are subject instead to a 30 percent gross withholding tax, to be collected and paid over by the U.S. payor when the deferred item is actually paid out.

Other deferred compensation items. Deferred compensation items not eligible for treatment described above are subject to the deemed sale/mark-to-market regime under Section 877A. In these cases, the covered expatriate is treated as receiving a distribution equal to the present value of the accrued benefit—and that amount is taxable immediately in accordance with Section 877A.

Liability for tax under Section 877A in these cases arises even if the cash or property to which the expatriate is entitled under the plan has not yet actually been paid or made available to the expatriate. The expatriate may therefore have to come up with or liquidate other assets with which to pay this tax obligation, as is generally the case with other types of "property" caught by Section 877A—though in many of these other cases, the expatriate at least has possession of the property and can determine which assets to sell or liquidate.

"Specified tax deferred accounts." Special rules apply to IRAs, qualified tuition programs, HSAs, Coverdell education savings accounts, and Archer MSAs. Interests of covered expatriates in these types of accounts are treated as being fully distributed the day before the expatriation date, although without any early distribution tax being applicable. These deemed distributions are taxable under Section 877A, even though "appropriate adjustments" are to be made when actual distributions are made later.

Interests as a beneficiary of a trust. Rights as a trust beneficiary held by the expatriate are also subject to the rules under Section 877A. Direct or indirect distributions from trusts (other than so-called "grantor trusts") to the expatriate are subject to a flat 30 percent gross withholding tax obligation on the taxable portion, which the trustee is required to collect and pay over. Furthermore, to the extent the fair market value of property distributed by the trustee exceeds the trust's adjusted basis in such property, gain is recognized by the trust as if the property were sold to the expatriate at such value. The expatriate is treated under these rules as having waived any claim to any reduced withholding rate under a tax treaty.

Gift and Estate Tax Implications

Certain "covered gifts or bequests" from an expatriate to a U.S. citizen are subject to tax under the Heroes Act. A covered gift or bequest includes (1) property acquired by gift directly or indirectly from an expatriate and (2) property acquired directly or indirectly by reason of an expatriate's death. It does not include any property reported by the expatriate on a gift or estate tax return, nor does it include gifts or bequests to the expatriate's spouse or to charity that would qualify for a deduction under Section 2055, 2056, 2522 or 2523.

The tax is imposed at the highest estate tax rate under Section 2001(c)—currently 45 percent—or, if greater, the highest gift tax rate under Section 2502(a).

The burden of paying the tax is on the recipient of the covered gift or bequest; however, the tax only applies to the extent the gift or bequest exceeds the applicable annual exclusion amount under Section 2503(b) (currently $12,000). And the tax is reduced by the amount of any tax paid to a foreign country on the gift or bequest.

For covered gifts or bequests made to a domestic trust, the trust must pay the tax imposed by the Heroes Act. A covered gift or bequest made to a foreign trust is also subject to tax to the extent distributions attributable to such gift or bequest are made from the trust to a U.S. citizen. In the case of such a distribution from a foreign trust, the recipient U.S. citizen may claim a tax deduction for the amount of tax paid under the Act with respect to the distribution included in his or her gross income.

Traps for the Unwary or Uninformed

Expatriation by U.S. citizens is, in the vast majority of cases, a voluntary act taken only after considerable forethought. However, a relatively large number of high net-worth, long-term permanent residents may face much more significant issues without adequate knowledge of the consequences.

For example, a U.S. permanent resident executive may decide he is ready to retire to his country of citizenship or to accept a new assignment in another country. In either case, the executive does not intend to return to the U.S. in the future. Under these circumstances, such individuals often choose to surrender their green cards as they depart the U.S., thereby invoking an administrative determination of abandonment of U.S. residence. But now those actions may trigger substantial tax liability under the Heroes Act, in both the income tax and the estate and gift tax areas.

In another example, a U.S. permanent resident may accept a temporary position outside of the U.S. with his multinational employer. Due to the requirements of or complications with the position overseas, the individual may only able to return to the U.S. for a few days at a time following long absences of many months, over a period of several years. On return to the U.S. following one such extended absence, a Customs and Border Protection officer might challenge the employee's status as a permanent resident and pressure the individual to either sign a form voluntarily acknowledging abandonment of such status or to go into administrative proceedings. Signing of such a form results in an administrative determination of abandonment and will again result in tax liabilities under the Heroes Act.

Summary

It is critical that U.S. citizens and permanent residents understand the consequences of expatriation under the Heroes Act. Even decisions to surrender green cards for conventional reasons, such as lifestyle and employment changes, may have unexpected consequences under new Section 877A. Today, as a result of the Heroes Act, renunciation of U.S. citizenship or surrendering a green card impacts multiple areas of law, including immigration, income tax, and estate and gift taxes. In addition, expatriation could cost individuals substantial amounts of money to pay the taxes triggered by such decisions—money they may or may not have in liquid form.