The Wealth Tax Commission has released a study which calls for a one-off tax of 5% on assets above £500,000. This wealth tax could raise £260bn for public finances hard hit by the COVID-19 pandemic. The tax would also apply to all residents (including non-doms) on an individual basis rather than as a household.

The wealth tax would be based on the open market value of all of an individual’s assets, except for low value personal items (worth less than £3,000) on the basis there would disproportionate administrative costs for such assets.

The key points of the report are:

• • Tax would be calculated on the market value of an asset on predetermined dates of:

– Pensions

– Investments

– Savings

– The Primary Home

– Minus any debt, such as mortgages

• Payment of the tax in five equal instalments over five years
• Spouses or partners could pool their allowances effectively giving households more than £1M net wealth

The Commission was founded in April 2020 and, despite its name, is not a government-appointed body. The report considered a one-off wealth tax and an annual wealth tax. It concluded that a one-off tax would be fair, efficient and very difficult to avoid. It is unknown whether this is an option the government will take, however individuals should give this due consideration.

It has been forecasted that the government will need to find up to £40 billion a year to recover from the mass deficit created by the unprecedented levels of government spending during the ongoing pandemic. Inevitably, the recuperation of £40 billion a year will derive from substantial cuts or additional revenue; and possibly various forms of tax changes introduced by Rishi Sunak in the upcoming Budget due March 2021 – with a potential target being Capital Gains Tax. Following a request from the Chancellor, Rishi Sunak, the Office of Tax Simplifications (OTS) published its first report, on 11th November, into the review of capital gains tax (CGT). The main recommendations from the OTS are:

• Aligning CGT rates with income tax.
• Lower the annual exemption on CGT
• Taxing share incentives as income rather than capital gains
• Removal of the uplift to market value on assets inherited on death relief
• Reducing or eliminating entrepreneurs’ relief/business asset disposal relief.

It would be wise for investors, private equity executives and owner-directors (amongst others) as well as anyone else holding assets standing at a significant gain, to take the contents of the report into consideration and take advice on their options over the next few months.

In HMRC v Development Securities, the Court of Appeal has overruled the Upper Tribunal and agreed with the First-tier Tribunal that the relevant Jersey incorporated subsidiaries of a UK parent were resident in the UK for tax purposes by reason of being centrally managed and controlled in the UK.

While of considerable interest, it should be remembered that the question of where a company is centrally managed and controlled is principally one of fact and so different facts might yield a different conclusion.

What the Court of Appeal’s decision shows is that the line between non-UK and UK residence can be a fine one when it depends on whether the overseas company’s directors gave due consideration to the transaction as a whole or just to a small element of it, and that, accordingly, non-UK company boards should always make sure that they give proper consideration to the transaction as a whole, albeit informed by advice or recommendations that they might have received from the UK, to minimise the risk of being treated as UK resident.

The decision has yet to be appealed to the supreme court.

It has been forecasted that the government will need to find up to £40 billion a year to recover from the mass deficit created by the unprecedented levels of government spending during the ongoing pandemic.

Inevitably, the recuperation of £40 billion a year will derive from substantial cuts or additional revenue; and possibly various forms of tax changes introduced by Rishi Sunak in the upcoming Budget due March 2021 – with a potential target being Capital Gains Tax.

Following a request from the Chancellor, Rishi Sunak, the Office of Tax Simplifications (OTS) published its first report, on 11^th November, into the review of capital gains tax (CGT).

OTS Recommendations to the Treasury:

1. Aligning CGT rates with income tax.

Due to the difference in rates of income tax and CGT, taxpayers try to convert their income into capital gains; therefore, by aligning the rates of income tax and CGT it would simplify the tax rules and there would be no need to complex anti-avoidance provisions that have been implemented to police the boundary between income and capital gains.

However, a concept that needs to be taken into consideration is that if these two rates were to be aligned, there would be a need for consequential changes due to potential factors if may affect:

• • • There would be a possibility of averaging gains over the holding period of an asset. This would mean that a basic rate taxpayer does not have to pay tax at a higher rate due to a large gain that has realised in a particular tax year
    • Making some allowance for inflation
    • Allowing more flexible use of losses
    • Discouraging people from using companies as asset holding vehicles in order to access the lower rates of corporation tax compared to any increased rate of CGT

2. Lower the annual exemption on CGT; and therefore, almost doubling the amount of people who become liable to pay tax annually

Currently, the annual exemption on CGT is set at £12,300. If Rishi Sunak were to agree with the OTS’ recommendation, the exemption would be lowered to £2,000 to £5,000 which consequentially results in an increase of revenue between £500 million to £900 million as 300,000 to 400,000 more individuals would need to pay Capital Gains Tax. 

3. Taxing share sales as income

As the rates of income tax and CGT are not aligned at present, the Office of Tax Simplicity has suggested that it may be less complex if certain share sales were taxed as income; in particular share incentives for employees and retained earnings in small owner-managed businesses.

4. Share incentives

The OTS has recommended that the government should consider taxing more share-based rewards from employment as income rather than capital gains as a method to help close the £40 billion deficit gap that has been created due to the COVID-19 pandemic.

5. Owner-managed businesses

In regards to owner-managed business, the OTS believes that it must be determined whether an individual who accumulates trading profits within a company and then sells the company; which consequentially means that they will be paying capital gains on the profit on the sale, will be in a better position that someone who carries on a business in their own name and/or receives the profit as salary or dividends.

The main argument in this circumstance is that as the profits relate to the individual’s labour, they should be made subject to income tax rather than CGT.

6. Lifetime gifts and gifts on death

Removal of the “uplift on death relief – which currently allows beneficiaries to inherit an asset at market value on the date of death as opposed to the value on the date of purchase. Alternatively, an amendment of this relief so that assets are re-based to 2000, for example, rather than the date of death.

7. Entrepreneurs’ relief/business asset disposal relief

The Office of Tax Simplicity has recommended further reductions (or potential elimination) of mistargeted BADR (business asset disposal relief, formerly known as entrepreneur’s relief). Following on from this, they believe that it should be replaced with retirement relief (which was abolished in 2003 due to its complexity) as a method of business owners and managers to build up the value in their businesses as a form of pension arrangement.

8. Abolishment of Investors’ Relief

With support of the minimal evidence that individuals are utilising Investor’s Relief since it was introduced in 2016. The OTS have recommended that it should be abolished.

Next Steps

Although it remains unknown whether Rishi Sunak will implement these recommendations suggested by the OTS, it would be wise for investors, private equity executives and owner-directors (amongst others) as well as anyone else holding assets standing at a significant gain, to take the contents of the report into consideration and take advice on their options over the next few months. 

As the government will most certainly be looking for methods to raise revenue that are politically acceptable; this will inevitably include targeting the wealthy as CGT is a pathway that can be used as a way to raise tax revenue without breaking the government’s manifesto agreement.

If you require any further information on this, please do not hesitate to contact our team for further information.

– Frontier Fiscal Services

Unreported Foreign Income

A U.S Taxpayer has very specific tax and reporting requirements to the IRS. Should the taxpayer have unreported income, accounts, or assets from overseas, there are various offshore tax amnesty procedures that are available to them to either limit or eliminate penalties. However, this is only viable if the foreign income, accounts, or assets were not reported unintentionally.

Disclosing Unreported Foreign Income

As the U.S. taxes filers on their worldwide income, the taxpayer should primarily assess their foreign income sources to determine what overseas earnings they have not reported.

This applies to all U.S. Persons, whether they reside in the U.S. or overseas — and whether the income is U.S. or foreign sourced. 

Types of Unreported Foreign Income:

• Foreign capital gains receive the same long-term or short-term treatment under US tax return as if it was a US asset.
• If you are receiving dividends, then you may be able to obtain qualified dividends, but this depends on which country you have assets in.
• If you are receiving foreign interest income you still report the income on your tax return, and pay U.S. tax at your ordinary tax rate; even if it is in a country which does not tax that category of passive income such as Hong Kong or Singapore.

Foreign Tax Credits:

The intent of the Foreign Tax Credit is to avoid or limit any double-taxation on foreign income you earned abroad but already paid on

You may be entitled to a foreign tax credit if you have already paid foreign taxes on your foreign income; either by filing a foreign tax return or have money withheld from your account abroad.

Filing U.S. Tax Returns

You may be able to widen your options available to you for amnesty if you have consistently been filing your US tax returns.

If you would like to discuss this further, please contact us.

What is a Streamlined Foreign Offshore Procedure?

The Streamlined Foreign Offshore Procedures (SFOP) is a method implemented by the IRS for foreign tax residents which allows them to be brought into offshore compliance. By doing this, the taxpayer can submit amended or original tax returns for prior years; and international information returns such as the FBAR.

Following the SFOP means taxpayers can disclose previously unreported offshore bank accounts, assets, income, and investments without being penalised for past foreign account violations that they may hold. In this case, all FBAR penalties, along with other foreign asset penalties will be waived by the U.S. Government.

Eligibility for the Program

A U.S person must meet 3 main requirements to apply for the Streamlined Foreign Offshore Procedure:

• They must be non-wilful
• They must qualify as a “Foreign Resident”
• They should not be under audit

1. Non-Willful

• • If a person was unaware that there was a foreign account, foreign income, or foreign asset reporting requirement, the applicant may qualify as non-willful.

2. Foreign Resident

• • To qualify as “Foreign Resident,” you must be either a:

• • U.S. Citizen or Legal Permanent Resident (Green Card Holder) and reside outside of the United States for at least 330 days in any one of the last three; or
  • Not qualify as a U.S. Citizen or Legal Permanent Resident, and not meet the Substantial Presence Test in at least one of the last three (3) tax years) you may obtain a waiver of all FBAR and FATCA penalties.

3. Under Audit or Examination?

• • If the IRS has instigated a civil examination of taxpayer’s returns for any taxable year, regardless of whether the examination relates to undisclosed foreign financial assets, the taxpayer will not be eligible to use the streamlined procedures. (IRS)

• • A taxpayer under criminal investigation by IRS Criminal Investigation is also ineligible to use the streamlined procedures. (IRS)

It would be advisable to fulfil the SFOP if needed as the IRS have recently implemented a more aggressive approach to foreign residents with a U.S. status who have unreported offshore bank accounts, assets, income and investments by enforcing larger penalties. 

Following Streamlined Foreign Offshore Procedures allows for all penalties to be avoided.

If you would like to discuss this further, please contact us.

Long Term Resident (LTR) – is a Legal Permanent Resident (LPR) who has been an Lawful Permanent Resident (LPR) or Green Card Holder for at least 8 of the last 15 years.

However, to be a Long-Term Resident, the person is not required to live in the U.S. but the LTR is given the privilege to do so should they wish.

Lawful Permanent Resident (LPR) – is given the privilege to permanently reside in the United State, in accordance to the U.S. immigration laws.

You cannot be classified as a Lawful Permanent Resident if you:

• Commenced to be treated as a resident of a foreign country under a tax treaty.
• Profited from benefits of such treaty applicable to foreign residents
• Notified the IRS of such a position on a Form 8833 attached to a timely filed income tax return.

If a U.S. Person who is currently an LTR were to commence to be treated as a resident of another foreign treaty country, they will then be classified and treated as an expatriate.

Important notes on filing Form 8833

It would be incorrect to believe that filing a Form 8833 will automatically prevent them from being treated as a U.S Person. If the person has already met the time requirements (8 out of 15 years) to be considered an LTR, then by filing the 8833, it will be considered the expatriating act.

For this reason, to avoid serious tax consequences, it is extremely important and necessary to plan your expatriation correctly.

We have experienced tax advisors on our team who can help you prepare for your expatriation. 

If you would like to discuss this further, please contact us.

IRS Audit Campaign Targets Nonresident Alien U.S. Real Estate Activities

Two IRS audit campaigns have recently been introduced with prospect to increase NRA compliance with the extensive and complex U.S. tax rules in relation to U.S. real property transactions. 

On October 5^th, 2020, the IRS LB&I (Large Business and International Division) announced the introduction of their latest audit campaign which targets NRA’s (non-resident aliens) who do not correctly report rental income from their U.S. properties.

Another audit campaign was issued on September 14^th 2020 by the LB&I which targeted the non-compliance of NRAs in relation with the withholding of tax and reporting obligations (on the disposition of U.S. real property interests under the FIRPTA 1980)

Key reasons for the introduction of the two audit campaigns:

• Purchase of U.S. real estate by foreign nationals in a major source of investment in the United States.
• In 2019, there was a total of $78 billion of property sales to foreign buyers.
• Figures show that in recent years, the largest share of foreign residential buyers originated from China, Canada, and Mexico.

FIRPTA 1980 – Foreign Investment in Real Property Tax Act of 1980

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA 1980) was introduced to ensure that investors pay U.S. federal tax on the sale or disposition of U.S. real property interests (also known as USRPI)

U.S. Real Property Interest (USRPI)

A USRPI is an individual, other than a creditor, who holds an in interest in real property located in the U.S. 

U.S. Taxation of Rental Income

Non resident aliens are subject to a 30% U.S. withholding tax on the gross amount of rent received. This is applied on top of the FIRPTA taxation regime that applies to the disposition of the USRPI.

Conclusion

The main purpose of the newly introduced audit campaigns for U.S. real estate that targets non-resident aliens is to focus on NRA non-compliance.

The initiatives behind the two campaigns are to improve and encourage NRA compliance through guidance and examinations implemented by the IRS.

Due to the complexity of the subject, it is advisable that NRA investors seek appropriate and professional advice before the purchase of any U.S. real estate property.

We have highly experienced professionals on our team who would be happy to help. Please call for further information.

FBAR filing requirements 

The FBAR (Foreign Bank and Financial Account Reporting) is necessary for a U.S. person to report their foreign accounts and they may be penalised if they fail to report their foreign bank and financial accounts to the IRS on time.

Therefore, it would be ideal to engage with experienced tax advisors if representation is needed.

Foreign Account Representation

The FBAR Form (also known as FinCEN Form 114) is required to be filed if a U.S. person holds foreign accounts and meets the reporting threshold; the deadline to file this form is normally April 15 although it may be possible to file an extension.

A U.S. person may be subject to fines and penalties if there is a failure to file an FBAR form or filing a late and/or incomplete form and they may still be liable to penalisation if the violation is unintentional. Criminal penalties can also be applied; however, this is uncommon. 

Choosing the right tax advisors to file your FBAR:

We are experienced tax advisors:

Our tax advisors have more than 20 years of professional experience.

A key factor in offshore disclosure is the development and implementation of a legal approach and strategy; for this reason, it is crucial to find a tax advisor who specialises in this area of Tax.

FBAR disclosure experience:

Although acquiring Enrolled agent, tax and accounting qualifications may aid the case, it does not substitute for extensive offshore disclosure experience.

We are experienced tax advisors who deal with Streamlined Foreign Offshore Procedure cases continually with positive results.

If you would like to discuss this further, please contact us.

What is Expatriation?

Expatriation is the process of renouncing a U.S person’s status. 

Expatriation does not necessarily involve exit tax, and whether a person qualifies as an expatriate is not determined wholly by their net worth. If an expatriate is able to apply proper exit tax planning, they could potentially avoid, or minimise, exit tax.

Expatriation is not only for U.S. Citizens

An expatriate can also be a permanent resident as well as a U.S. citizen renouncing their U.S citizenship.

When a legal permanent resident has maintained the legal permanent resident status for a minimum of eight of the last 15 years, they are considered a long-term resident and subject to the covered expatriate analysis.

Please also note that allowing your green card to expire is not an acceptable or valid act of expatriation.

Covered Expatriates

In order to be considered a covered expatriate, the expatriate must meet one of the three tests below:

• Net income tax liability
• Net worth
• Unable to certify tax compliance for five prior years.

Expatriation Methods:

The method of which a U.S. person takes to complete the expatriating act depends on whether a person is a long-term resident or a US citizen. This needs discussion and it is likely advice will be required to complete this process.

Covered Expatriate – Post Expatriation Consequences

It is best for the expatriate to avoid covered expatriate status as even after a covered expatriate leaves the United States, there may be following issues, such as:

• Annual Form 8854 filings
• Gift tax consequences for gifts from covered expatriates to U.S. persons (which will result in an immediate tax liability to the US person).

Exit Tax: Mark-to-Market & Deemed Distribution

Just because a person is considered a covered expatriate, does not mean they will owe exit tax.

The person must evaluate their assets to determine which assets are subject to the mark-to-mark analysis on the unrealized capital, and which assets are possibly subject to the deemed distribution rules.

If you would like to discuss this further, please contact us.