The Financial Crimes Enforcement Network (FinCEN) has issued a final rule regarding beneficial ownership reporting under the Corporate Transparency Act (CTA). Starting January 1, 2024, domestic (U.S.) and foreign (non-US) companies are subject to novel reporting requirements concerning beneficial owners. The rule intends to protect U.S. national security while strengthening the integrity and transparency of the U.S. financial system. It will aid in detecting criminal actors such as oligarchs, kleptocrats, drug traffickers, human traffickers, and those who would use anonymous shell companies to hide their illicit proceeds.

The final rule has an extended timeline for implementation. The rule goes into effect on January 1, 2024. Reporting companies established or registered before January 1, 2024, will have until January 1, 2025, to file their initial reports. However, any reporting companies established or registered after January 1, 2024, will have 30 days to file their initial reports. Following the initial report’s filing, current and new reporting companies must provide updates within 30 days of any change in beneficial ownership information. FinCEN is dedicated to enforcing these statutory duties and imposes significant penalties for non-compliant reporting companies.

The final rule defines” reporting companies “as domestic and foreign corporations registered to do business in any state or tribal jurisdiction in the United States.

Cryptocurrency brokers, including exchanges and payment processors, would have to report new information on users’ sales and exchanges of digital assets to the Internal Revenue Service (IRS) under a proposed U.S. Treasury Department rule published recently. The rule is part of a broader push by Congress and regulatory authorities to crack down on crypto users who may be failing to pay their taxes.

A proposed new tax reporting form called Form 1099-DA is meant to help taxpayers determine if they owe taxes and would help crypto users avoid having to make complicated calculations to determine their gains, the Treasury Department said.

Under the proposal, the definition of a “broker” would include both centralised and decentralised digital asset trading platforms, crypto payment processors and certain online wallets where users store digital assets. The rule would cover cryptocurrencies, like bitcoin and ether, as well as non-fungible tokens. Brokers would need to send the forms to both the IRS and digital asset holders to assist with their tax preparation.

The Treasury proposed that the rules would be effective for brokers in 2025 for the 2026 tax filing season.

The IRS currently requires crypto users to report on their tax returns many digital asset activities, including trading cryptocurrencies, regardless of whether the transactions resulted in a gain. Users are required to make that calculation themselves, and the platforms on which digital assets trade do not give the IRS that information.

Portugal plans to scrap tax breaks for foreigners who become Portuguese resident by spending more than 183 days a year in the country. Launched in 2009, the schemes benefits include a special 20% tax rate on Portuguese- sourced income derived from high value added activities, such as doctors and university teachers. Other benefits of the scheme are the Non- Habitual Resident regime which include tax exemptions on almost all foreign income if taxed in the country of origin and a 10% flat tax rate on foreign pensions. These benefits were also available to Portuguese citizens who have lived abroad for at least 5 years.

It was originally introduced to attract investors and professionals to Portugal which had suffered greatly from the financial crisis. However now the prime minister, Antonio Costa, has promised to close the scheme for new applicants in 2024, saying the scheme had “inflated the housing market” and calling it a “fiscal injustice that is no longer justified”.

The scheme will remain in place for those who have already qualified for it. The announcement follows on from the decision made earlier this year to abolish the ‘golden visa’ programme. The next budget announcement should give more details about this and what this will mean for individuals who want to live in Portugal.

On 22 November 2017, HM Treasury gave notice that the scheme would close. This means the Certificate of Tax Deposit scheme closed for new purchases on 23 November 2017.

HMRC will continue to honour existing certificates until 23 November 2023.

The value on HMRC’s books is £89m and Certificates need to be used by 23 November 2023. The deadline for using a certificate of tax deposit (CTD) to settle a tax bill is 23 November 2023.

After that date, the normal process for making a withdrawal will apply. However, HMRC is encouraging certificate holders to withdraw their deposits well before the scheme closes on 23 November 2023 if they are not planning to use their deposit to settle a tax liability. The current value of outstanding CTDs not yet resolved, or in the process of being resolved, is £89m.

HMRC has written to each holder of a CTD. The outstanding balance suggests that many holders still need to take action.

The Finance Act 2022 included legislation to reform the way trading profits are allocated and taxed. The purpose of the legislation is so that profits are time apportioned to the tax year instead of the accounting date. This reform affects individuals who are self-employed, including partners in trading partnerships, if their accounting periods are not aligned to the tax year (dates from 31 March to 5 April inclusive are treated as aligned to the tax year for this purpose). The changes will take effect from the 2024/25 tax year, with transitional rules applying in 2023/24.

Special rules apply for the first year of a trade – where the individual will be allocated profits from when the trade commenced up to the end of the tax year.

Individuals and partnerships may consider if changing their accounting period to align with the tax year is beneficial. This may help to save on additional accounting and associated costs.

Where additional liabilities are generated in the transitional year, there is potential relief by spreading the additional profit over a 5 year period.

The Upper Tribunal has overturned a First-tier Tribunal decision that allowed a taxpayer to utilize the “exceptional circumstances” provision regarding the UK’s Statutory Residence Test. Last year, a case (A Taxpayer v HMRC) saw the taxpayer argue that certain days spent in the UK during a tax year should be disregarded due to exceptional circumstances. However, the Upper Tribunal ruled that the circumstances were not truly “exceptional,” making the taxpayer a UK tax resident for that year.

The “exceptional circumstances” provision allows ignoring up to 60 days for SRT purposes under specific conditions. The recent judgment clarified that this provision must be objectively verified, emphasizing that circumstances must truly prevent the taxpayer from leaving the UK, not merely hinder them. Additionally, moral or conscientious inhibitions don’t qualify as exceptional circumstances.

The ruling raises questions about when moral obligations may constitute exceptional circumstances, creating a challenge for taxpayers dealing with circumstances affecting family members. The Tribunal’s decision suggests a stringent interpretation of exceptional circumstances, requiring clear evidence for each day a taxpayer seeks to discount. Practitioners should warn clients that HMRC may challenge claims based on moral obligations, emphasizing the importance of comprehensive record-keeping for substantiating exceptional circumstances claims. Despite the judgment’s implications, further discussions and debates are expected to reconcile tensions between the Tribunal’s remarks and existing legislation or HMRC guidance. Taxpayers and advisors should be prepared for thorough scrutiny of exceptional circumstances claims by HMRC.

This is a link to an article written by Nomaan Ilyas, published in the American Magazine in July 2023

The IRS recently released guidance on ‘non-fungible tokens’ (NFTs) and published their intent to issue guidance related to the taxation of certain NFTs as ‘collectibles’ in order to determine whether a gain from a sale of an NFT is taxed at the maximum capital gains tax rate of 28% or at a rate more favourable to assets that are not collectibles.

The IRS are looking to implement the ‘look-through rule’ to determine whether an NFT classifies as a collectible for US federal income tax purposes by looking through to the underlying associated right or asset, and use the results to state whether such ‘associated right or asset’ constitutes as a collectible; and therefore be taxed at a maximum of 28% if a capital gain were to be made at a sale.

If the IRS were to find, via the look-through rule, that an NFT does not classify as a collectible by analysing it’s underlying associated right or asset then the proceeds from the sale of such NFT will be subject to a maximum 20% long-term capital gain tax rate.

Please contact our team if you require further information.

For those of you who have considered renouncing your US citizenship may know that it has become ever more difficult to do so. A process that used to take a few months is now taking well over a year. Post covid, the US Embassy in London had only started to take requests for the renunciation interview last summer. There is no given time frame of when you will receive your appointment date, but we know it is taking longer than a year for the interview confirmation to come through. Due to this many who had considered renouncing their citizenship have since changed their mind. Others who are desperate to give up their citizenship have even considered travelling abroad to make an appointment with a US consular service that have a quicker turnaround.

There has however been some positive news for those still considering renunciation. Following the ongoing case against the US Department of State by the Paris based Association of Accidental Americans, the US state Department announced that it intends to reduce the fee is charges for renunciation to $450. The current fee is $2,350 and is the highest fee charged by any nation for the voluntary renunciation of citizenship, with some countries charging nothing for the right to expatriate. It is not yet clear when the change of fee will be implemented. Fabien Lehagre, founder, and president of the Association of Accidental Americans commented: “The State Department’s statement is extremely encouraging and tacitly acknowledges that this legal challenge has and will accomplish what it set out to do. By lowering the fee to $450, the U.S. government is showing that the right of voluntary expatriation is not to be trifled with and deserves the utmost protection. Time will tell how the government will formulate and develop the new fee and my organization intends to continue to campaign against any fee or restriction on this sacred right of renunciation.”

On 29 November 2022, Brazil and the UK signed a Double Taxation Agreement (DTA) which will enter into force when the relevant legislative procedures are completed. The DTA will establish the following withholding tax rates or source country taxation..

Dividends (Article 10):

10% of the gross number of dividends paid to a company (the beneficial owner) that holds directly at least 10% of the capital of the payer company throughout a period of 365 days. In all other cases, the rate will be 15%.

Interest (Article 11):

7% of the gross amount of interest paid to a bank or insurance company on a loan that was granted for at least a five-year period to finance infrastructure projects and public utilities.

10% of the gross amount of interest from: loans granted by banks, bonds that are regularly traded on a qualified stock exchange and a sale on credit paid by the purchaser of equipment to the seller.

For all other cases, the rate will be 15%.