Expatriation Numbers Soar

Expatriation Numbers Soar in 3Q 2016 and donations to Donor Advised Funds Soar in 4Q 2016

Expatriation Numbers:  Whether it was a result of the pending presidential election or part of something greater, the IRS released figures that in 3Q 2016, greater numbers of U.S. Citizens were renouncing their citizenship and expatriating.  See this Press Release announcing the former U.S. Citizens expatriating.  A total of 1,380 individuals expatriated, the second highest total ever for a quarter, and for the first 3 quarters of 2016, there have been a total of 3,046 individuals that have expatriated.  See this blog for a chart of the number of Expatriations in 2016.

This leads to the question of why so many people are expatriating from the U.S.  One explanation might be increased enforcement by the IRS and U.S. Treasury in offshore bank account reporting as a result of the Swiss banking fiascos (UBS, Credit Suisse) and Foreign Account Tax Compliance Act ("FACTA").  See this CNBC article n 2015, trying to explain the surge in expatriation.

So what are the costs for expatriation?  See this article.  See also this Forbes article.

1. You must file a document with the State Department. Which raised the price from $450 to $2,350 in 2014 (Note: here is the State Department information for Renunciation of Citizenship, and a listing of fees if renouncing through the UK embassy).
2. Show 5 years of tax compliance (filing returns and taxes paid).
3. Exit Tax if your net worth is greater than $2,000,000 or annual average income in the last 5 years is greater than $157,000. (Note: The exit tax is calculated as if you sold all your assets at market value and after an exemption of $693,000, you would pay capital gains taxes on the remaining value).  See IRS form 8854 for more information at calculating the exit tax.
4. Then pay a gift/estate tax for any transfer of your US assets at the existing gift/estate tax.

For a comparison of Donor Advised Funds and Private Foundations, see the National Philanthropic Trust's website outlining the difference between the two.

One Recent Notable Expatriation:  In 2011, Eduardo Saverin, Co-founder of Facebook, expatriated and paid the expatriation tax, estimated to be 15% of (53 million shares of Facebook at $50/share) or an estimated $397,500,000.  However, the Wall Street Journal estimated that Saverin saved about $700 million in taxes otherwise due to the U.S. Government by expatriating.

Donor Advised Funds:  Additionally, as noted by the Wall Street Journal, there is an increase level of activity by Americans prior to the close of the year.  In summarizing the WSJ article, Paul Caron's TaxProfBlog states that donors associated with Schwab Charitable have put more than $693 million into new and existing accounts between Thanksgiving and December 18, which represents a 20% increase over the same period in 2015.

The WSJ article speculates that the cause is President-elect Donald Trump and Republicans' proposal to limit the value of charitable deductions in 2017 and onward by either lowering tax rates or limiting the deductibility of charitable gifts.  The WSJ also notes that a recent boost to markets may also have contributed to this recent surge.

So what is a Donor Advised Fund?  IRS describes the Donor Advised Fund as: 

“a separately identified fund or account that is maintained and operated by a section 501(c)(3) organization, which is called a sponsoring organization. Each account is composed of contributions made by individual donors. Once the donor makes the contribution, the organization has legal control over it. However, the donor, or the donor’s representative, retains advisory privileges with respect to the distribution of funds and the investment of assets in the account.”

— Internal Revenue Service

IRS has in the past warned against using Donor Advised Funds because promoters of Donor Advised Funds had allowed taxpayer to misuse the Donor Advised Funds to claim charitable deductions while retaining control over the donated property.  See 2005 IRS Dirty Dozen.  Since this pronouncement and the passage of Pension Protection Act of 2006 (which Congress legally defined donor-advised funds and provided the IRS with tools to enforce the usage of Donor Advised Funds) IRS has since removed the Donor Advised Funds from its Dirty Dozen Lists, but lists fake charities as a Dirty Dozen for 2016.

Conclusion:  So why are people leaving the U.S. in record numbers and donating to their Donor Advised Funds in record numbers?  Simple, to avoid taxes, or to preserve deductions prior to the new administration's removal or reduction of the charitable deduction.

If you know anyone that has expatriated but has failed to pay their exit tax, in excess of $2,000,000, or is misusing their Donor Advised Fund to take charitable deductions that they are not otherwise permitted to in excess of $2,000,000, you should consider filing a tax whistleblower claim.  Or if you know of someone who isn't paying their taxes in excess of $2,000,000 you should also consider filing a claim.  Contact us to discuss filing your claim.  As a reminder, the IRS is willing to pay 15-30% of the tax, penalties, interest, and other amounts collected based on a whistleblower's substantial and credible information.

Tax Crimes Roundup

Tax Crimes Roundup: Two professionals that should have gotten their tax problems right.

Case 1:

The first case is an update of former Tax Court Judge Kroupa's case.  As previously discussed in this blog, the former Tax Court judge and her husband were indicted on charges for filing fraudulent tax returns and conspiracy to defraud the U.S.

In September 2016, Kroupa's husband, Robert E. Fackler, pled to obstructing an IRS audit.  In his plea agreement and testimony, Mr. Fackler pled to the following facts:

• Between 2002 and 2012, Fackler and Kroupa conspired to obstruct the Internal Revenue Service (IRS) from accurately determining their joint income taxes.
• As part of the conspiracy, Fackler and Kroupa worked together each year to compile numerous personal expenses for inclusion as supposed "business expenses" for Grassroots Consulting in their joint tax return such as: rent and utilities for the Maryland home; utilities, upkeep and renovation expenses of the Minnesota home; pilates classes; spa and massage fees; jewelry and personal clothing; wine club fees; Chinese language tutoring; music lessons; personal computers; and expenses for vacations to Alaska, Australia, the Bahamas, China, England, Greece, Hawaii, Mexico and Thailand.
• From 2004 through 2010, the defendants fraudulently deducted at least $500,000 of personal expenses as purported Schedule C business expenses.
• At times, Kroupa prepared and provided to Fackler handwritten summaries of personal expenses falsely described according to business expense categories.  On other occasions, Kroupa herself compiled and provided to their tax preparer the fraudulent personal expenses.
• Fackler and Kroupa made a series of other false claims on their tax returns, including failing to report approximately $4,520 that Kroupa received from a 2010 land sale in South Dakota by falsely claiming financial insolvency to avoid paying tax on $33,031 on cancellation of indebtedness income.
• During the second audit in 2012, Fackler and Kroupa caused false and misleading documents to be delivered to an IRS employee in order to convince the IRS employee that certain personal expenses were actually business expenses of Grassroots Consulting.
• After the IRS requested documents pertaining to their tax returns, Kroupa removed certain items from their personal tax files before Fackler gave them to their tax preparer because the documents could reveal they had illegally deducted numerous personal expenses.  Fackler and Kroupa together concocted "false explanations" justifying payments questioned by the IRS.
• Later, when they learned the 2012 audit might progress into a criminal investigation, Kroupa instructed Fackler to lie to the IRS about her involvement in preparing the portion of their tax returns related to Grassroots Consulting.

Finally on or about October 21, 2016, Kroupa pled to conspiring to defraud the U.S.

Kroupa's and Fackler's cases raise serveral questions:

• Why would two relatively smart people consciously circumvent paying their taxes in such a manner that would cause criminal charges when the tax code is ripe with plenty of allowable exclusions of income on their tax returns?  Maybe they were too greedy and as the business saying goes, "pigs get fat, hogs get slaughtered", they figured that they could get away with deducting expenses that are personal in nature and not business related.
• What is the appropriate punishment for defrauding the U.S.? Also, should they be held to a higher standard because she was a Tax Court judge and should have known better?

Sentencing of Kroupa and Fackler will be interesting, but based on the Federal sentencing guidelines, a defendant who is found guilty of conspiracy to impede, impair, obstruct or defeat tax gets a base score of 10, and there can be adjustments to 12 or 14, depending on the circumstances.  With a base score of 10, the sentence would be 6-12 months, assuming this is Kroupa's and Fackler's first offenses.  A 12 would translate to 10-16 months, and 14 would be 15-21 months.  Note:  most tax crimes are based on tax loss, and in this case had Kroupa and Fackler not pled to conspiracy, the sentence for tax loss of $450,000 would be a base score of 18, with possible increases.  The score of 18 is equal to 27-33 months, again assuming this is Kroupa's and Fackler's first offenses.

Case 2

Similar to the Kroupa/Fackler case, a professor of business administration in New York pled to conspiring with others to defraud the US and to submitting a false expatriation statement to the IRS.

• Dan Horsky, 71, is a citizen of the United States, the United Kingdom and Israel and was employed for more than 30 years as a professor of business administration at a university located in New York.
• Beginning in approximately 1995, Horsky began investing in numerous start-up businesses through financial accounts at various offshore banks, including one bank in Zurich, Switzerland.
• Horsky created "Horsky Holdings," a nominee entity, to hold some of the investments and he used Horsky Holdings account, and later, other accounts at the Zurich-based bank, to conceal his financial transactions and financial accounts from the IRS and the U.S. Treasury Department.
• Horsky made investments in Company A through the Horsky Holdings account using his own money, money provided by his father and sister, and margin loans from the Zurich-based bank.
• Eventually, Horsky amassed a four percent interest in Company A's stock.  In 2008, Company A was purchased by Company B for $1.8 billion in an all cash transaction.  Horsky received approximately $80 million in net proceeds from the sale of Company A's stock, but disclosed to the IRS only approximately $7 million of his gain from that sale and paid taxes on just that fraction of his share of the proceeds.
• In 2008, and in subsequent years, Horsky invested in Company B's stock using funds from his accounts at the Zurich-based bank and by 2013, his investments in Company B, combined with other unreported offshore assets, reached approximately $200 million.
• Horsky directed the activities in his Horsky Holdings and other accounts maintained at the Zurich-based bank, despite the fact that it was readily apparent, in communications with employees of the bank, that Horsky was a resident of the United States.
• Bank representatives routinely sent emails to Horsky recognizing that he was residing in the United States.
• Beginning in at least 2011, Horsky caused another individual to have signature authority over his Zurich-based bank accounts, and this individual assumed the responsibility of providing instructions as to the management of the accounts at Horsky's direction. This arrangement was intended to conceal Horsky's interest in and control over these accounts from the IRS.
• In 2013, the individual who had nominal control over Horsky's accounts at the Zurich-based bank conspired with Horsky to relinquish the individual's U.S. citizenship, in part to ensure that Horsky's control of the offshore accounts would not be reported to the IRS.
• In 2014, this individual filed with the IRS a false Form 8854 (Initial Annual Expatriation Statement) that failed to disclose his ownership of foreign assets, and falsely certified under penalties of perjury that he was in compliance with his tax obligations for the five preceding tax years.
• Horsky also willfully filed false 2008 through 2014 individual income tax returns which failed to disclose his income from, and beneficial interest in and control over, his Zurich-based bank accounts.
• Horsky agreed that for purposes of sentencing, his criminal conduct resulted in a tax loss of at least $10 million. In addition, Horsky failed to file Reports of Foreign Bank and Financial Accounts (FBARs) up and through 2011, and also filed false FBARs for 2012 and 2013.

The DOJ press statement states: "Horsky faces a statutory maximum sentence of five years in prison, as well as a period of supervised release and monetary penalties.  As part of his plea agreement, Horsky paid a penalty of $100 million to the U.S. Treasury for failing to file and filing false FBARs, which is separate from any restitution that the court may order."  Had Horsky not pled, the sentencing guidelines for $100 million in tax losses would have been a score of 30 with possible increases, and would equate to 97-121 month (8-10 years) for a first time offender.

This second case also raises the following questions:

• Why didn't Horsky just pay his taxes and report the foreign accounts holding over $200 million?  Even assuming his company owned taxes on the full $200 million, the tax liability at 35% would have been $70 million.  Likely less than this because the gains were likely capital gains and if held for more than one year could have qualified for the 20% tax rate or $40 million.  It seems like paying the tax and reporting the accounts would have been cheaper than $100 million and up to 5 years imprisonment.
• What/Who alerted the IRS to Horsky's accounts and his false filings?  Did Horsky's case have todo with the Panama Papers or UBS/Swiss Bank disclosures?
• Why isn't the IRS and DOJ going after US Multinational Corporations for shifting profits to their low tax jurisdictions subsidiaries?

NOTE:  FBAR filings are returns that state ownership in foreign bank accounts and must be filed every year in which a US person owns or is the beneficiary of a foreign bank account. The IRS has been cracking down on FBAR filers that have not properly filed their FBAR, introducing two voluntary compliance programs in which taxpayers can get a break on the tax liability and penalties paid as a result of owning but not reporting their foreign bank accounts.  There is now even a streamlined filing procedure.  Forbes outlines the success of the voluntary disclosure programs from 2003-2011.  Additionally, the Tax Court has held that FBAR penalties are including in the calculation of collected proceeds for determining an award payable to a whistleblower.  See Whistleblower 21276-13W v. Comm'r, (August 3, 2016).

If you know anyone not reporting their taxes in excess of $2,000,000, contact our office to discuss filing a tax whistleblower case.  The IRS is paying awards to whistleblowers that provide specific and credible information of unpaid tax, interest, and penalties in excess of $2,000,000.

 

Apple and the EU

Apple and the EU:  Summary of the EU's latest ruling against Apple and the EU's proposed reforms of corporate taxation.

As previously covered in this blog, the EU ruled against Ireland granting tax benefits of up to €13 billion to Apple in violation of the State aid rules.  In their law review article, "Apple State Aid Ruling: A Wrong Way to Enforce the Benefits Principle?", Professor Reuven S. Avi-Yonah (Michigan Law) and Gianluca Mazzoni (SJD Candidate, Michigan) detail how Apple was able to utilize Ireland in reducing its tax liabilities.  The most notable facts of Apple's Irish arrangement as uncovered by the article are:

• Apple's market capitalization as of October 7, 2016 was $614.61 billion dollars (or $612.66 billion as of the third quarter of 2016)
• Apple used cost sharing agreements to shift profits from U.S. Developed intangibles to its Irish subsidiaries.
  • The article briefly discusses how cost sharing agreements (as used in pharmaceutical companies) should deter transfer pricing/revenue shifting because in pharmaceutical companies it is a gamble as to whether a particular drug will be a blockbuster drug and the pharmaceutical companies would risk losing R&D costs shifted to its offshore subsidiary if the drug didn't have profits generated in the offshore subsidiary.
  • The article states that this is not the case in technology companies, like Apple, because of Apple's track record of producing blockbuster technological products.
• Apple utilized licenses of Apple's brand and intellectual property by its Irish subsidiary's (Apple Sales International, ASI's) subsidiary retail locations throughout Europe to shift royalty payments from the retail locations to ASI instead of paying taxes on the income in the European countries.
  • The article notes that the profits from other EU nations are paid to the Irish subsidiary as royalty fees for licensing Apple's logo and branding to the EU subsidiaries.

The article also discusses the reason why Apple was able to utilize its Irish structure to shield income from taxation.  The primary reason for Apple's ability to set up this structure are as follows:

• Ireland and EU's lack of withholding tax on receipts fro EU member states.
  • The article highlights that the commentary regarding EU's position to not implement a withholding tax on receipts from EU member states could create a tax haven for EU profits to be shielded from tax because the countries where the profits are earned do not impose a withholding tax on the profits leaving that country and coupling that with certain countries (Ireland and Cyprus) that do not tax money not directly earned in that country's borders allows a sophisticated company to avoid tax on profits made in EU countries.
• In 1997 U.S. adoption of Check the Box regulations.
  • The article points out that in 1997 under the direction of the U.S. Treasury and the Clinton Administration, Congress adopted the "check the box" regulations.  Check the box regulations allowed U.S. multinational corporations to treat (for US tax purposes) foreign subsidiary corporations as transparent and not separate taxable entities.  This also allowed the foreign subsidiaries to transfer royalties and interest payments between each other without generating tax (called Subpart F) on the transfers.
  • The article also makes the point that at the adoption of the check the box rules, the U.K. and Germany objected to this position because it would allow U.S. multinational corporations to utilize earnings stripping to reduce taxable income in their respective countries.  Congress at the urging of the U.S. multinational companies (namely the argument that reducing the taxable income in foreign countries would lead to larger amounts of tax paid in the U.S.) enacted the check the box regulations.
  • The article also, with the advantage of hindsight, makes the argument that the check the box regulation over time has shown that the U.K. and German objections were warranted because U.S. multinational corporations have stripped earnings from EU countries and have not resulted in more U.S. taxes paid by the sameU.S. multinational corporations.
  • The article points out that the check the box regulations created such a huge loophole (estimated $86.5 billion over a ten year period) that early on President Obama and the U.S. Treasury advocated for the reformation of the check the box regulation.  However, after intense lobbying by business associations, the Obama administration has since abandoned the check the box regulation reforms and extended the check the box regulation treatment for another 5 years.
• Exploitation of difference between Irish and U.S. tax residency rules
  • As stated in the article, Irish laws taxes corporations for only income earned in Ireland.  U.S. law taxes income earned worldwide for companies that are resident in the United States.  This creates a gap in taxation for an Irish company with income earned outside Ireland, which as the article points out was exploited by Apple by also negotiating a corporate rate of less than 2% for its Irish income.

Finally, the article discusses how the EU Commission reached its determination that Ireland provided improper state aid by granting Apple such a sweetheart deal. The article summarizes the EU Commission position as follows:

• Was there state aid provided by Ireland to Apple?
  • The EU Commission concluded yes, because a benefit was conferred on Apple, and was not conferred on all other companies.
• The article states that the EU Commission found fault with the Irish determination because it was a result of a negotiation and not merely a summary of the comparable transactions.
• The article also stated that the EU Commission questioned the methodology (Transactional Net Margin Method) chosen to determine the appropriate transfer price because the terms were not defined.
• The article then stated that the EU Commission questioned the inconsistencies in the transfer methodology selected by Apple; and
• The article stated that the EU Commission challenged the open ended duration of the ruling in Apple's favor.

Note: Apple has utilized this structure since the 1980s and as Tax Justice discusses, Apple continues to use this structure in 2016 to shield income from taxation in the U.S. based on Apple's most recent quarterly earnings report.

However, there might be a change to this structure starting in 2020, as Ireland has passed legislation in 2013, which took effect in 2015 for newly incorporated companies and in 2020 for existing companies, that in order to incorporate in Ireland the company must also be a resident of Ireland (meaning that the income received by Apple's Irish subsidiaries from its EU subsidiaries would be taxed in Ireland at 12.5%). See this Guardian article.

Additionally, the EU Commission has also proposed corporate tax reforms to address continued tax avoidance by multi-national corporations.  The EU Commission's proposals are as follows:

• Common Consolidated Corporate Tax Base
  • The EU Commission is proposing to treat all profits earned in EU countries as one taxable base, so that multi-national won't be taxed separately by each EU member nation.  This proposal purportedly allows a corporation to offset losses in one EU country with profits in another EU country and provides one joint tax on the profits. This proposal also attempts to address profit shifting from one EU country to another in an effort to seek a lower or advantageous tax rate.
• Improved Mechanisms to resolve double taxation disputes
  • Currently the EU has a double taxation dispute resolution only addressing transfer pricing.  This proposal by the EU Commission hopes to provide a timely response to companies seeking relief from EU members double taxing the same income in both EU member nations.
• Measures to tackle tax loopholes with non-EU countries.
  • EU Commission proposes to address tax gaps between EU nations and non-EU nations which have been exploited by companies to reduce tax.  One key example is the Irish-US tax gap implemented by Apple to avoid taxation on its EU revenues.

Whether these proposals will curb aggressive tax avoidance by multi-national corporations is questionable. But the real question is: What are Congress and the IRS/U.S. Treasury proposing to address the existing tax gap (much of which is due to U.S. multinational corporations and their profit shifting (earnings striping)/transfer pricing/base erosion/inversions practices)?

If you have specific and credible evidence of a corporation's use of transfer pricing to avoid paying its tax liabilities you should consider filing a tax whistleblower claim.  Contact us to see if your information would permit you to receive a 15-30% award of the amount of taxes, penalties and interest collected by the IRS on your transfer pricing tax whistleblower claim.