Some U.S. taxpayers have used foreign accounts to hide income subject to U.S. taxes. As a result all U.S. taxpayers, and many non-U.S. financial institutions, must comply with information reporting and withholding rules related to accounts outside of the States.
Ronald Reagan was known for quoting a Russian proverb to the Soviet leader: “Doveryai, no proveryai.” In English, “Trust, but verify.” The U.S. Treasury and the IRS have taken a similar approach when it comes to taxpayers holding accounts and transacting business outside of the United States. Those who hold accounts or send money out of the U.S. need to know about the related reporting and withholding rules or risk encountering an enforcement “bear in the woods.”
This discussion requires serving a large bowl of abbreviation alphabet soup, so we’ll make that the appetizer before we get to the main course.
FBAR: Refers to the “Report of Foreign Bank and Financial Accounts” that U.S. taxpayers file to identify financial accounts held outside of the States.
FATCA: Stands for “Foreign Account Tax Compliance Act.” Enacted in 2010, fully effective in 2014, this law expands the types of foreign assets and related income that U.S. taxpayers have to report. Through a series of inter-governmental agreements (IGAs), this law also requires financial institutions in many other countries to provide information to the IRS about accounts and assets held abroad by U.S. taxpayers.
FDAP: This stands for “fixed, determinable, annual or periodic” income, which, if you think about it, is pretty much all income. It applies primarily to foreign persons and businesses earning income in the U.S. Reports that relate to FDAP are used to track payments that leave the U.S. for reasons other than investment or deposit in foreign countries.
In short, FBAR, FATCA and FDAP reporting requirements form the backbone of the “trust” end of the equation. Each of these concepts includes at least some element of self-reporting by U.S. taxpayers on payments made and corresponding withholding, amounts held in foreign accounts and income earned outside of the country. (For more information on FBAR, please see Susan Steblein’s post from July 2015.) (For more information on FDAP, please see my post from March 2015.)
Of the three, FATCA holds down the “verify” side of the equation. Through a network of intergovernmental agreements, the U.S. has actually managed to place reporting requirements on foreign financial institutions. While those financial institutions may not be wild about the idea, they comply because they value the opportunity to do business with the U.S. and its taxpayers. As a result, many foreign financial institutions now regularly report information about assets of U.S. taxpayers that they hold. In some instances, the agreements require foreign institutions to withhold 30% of payments made to U.S.-held accounts if circumstances warrant. The IRS has gone so far as to levy penalties against some covered institutions that have failed to comply with the rules. In addition, financial institutions are now sending account holders reports with detailed account information that they have supplied to the IRS, giving a reality check to the process.
The IRS estimates that the U.S. loses approximately $450 billion per year in taxes on assets held and income generated overseas by U.S. taxpayers. With that kind of money in play, it seems pretty reasonable to expect that enforcement in this area is a high priority for the Service now and for the foreseeable future. The good news is that if you are a U.S. taxpayer who has failed to comply, there are opportunities to mitigate potential penalties by coming forward voluntarily. These voluntary disclosure programs will not last forever, and taxpayers who are audited by the IRS lose the opportunity to reduce penalties if they don’t initiate the process on their own.
If you have tax obligations in the U.S. and hold accounts or conduct business outside of the country, it’s important to make sure that you are in compliance with these rules. For help in figuring out what obligations you might have, please contact us.View full article
Many people who receive income from passive foreign investment companies, or “PFICs,” have no idea that they hold an interest in an investment that may trigger additional filing requirements and tax payments on their U.S. returns.
Most Americans work hard to file accurate tax returns and pay the correct amount owed to the government. They may not be happy about taxes, they may complain about them, but some combination of patriotism and fear of consequences keeps most taxpayers in line.
One of the most serious tax problems that can arise for people who make an honest effort to comply with U.S. tax obligations is a tax that they didn’t know existed. Passive foreign investment companies, or “PFICs,” provide an excellent example of this problem and the steps you can take to protect yourself against it.
What Is a PFIC?
A PFIC is a business or fund based outside of the United States that generates passive investment income to its owners/shareholders. If the business or investment meets either of 2 tests, it should be treated as a PFIC for U.S. tax purposes.
- The first test is an “income test.” The investment meets the income test if 75% or more of the income it generates in a given year is passive income, such as dividends, interest, rents and royalties.
- The second test is an “asset test.” The investment meets the asset test if more than 50% of the business’ average asset value consists of assets held to produce passive income.
The most common type of PFIC that causes problems for U.S. taxpayers is a foreign, or non-U.S., mutual fund. When a mutual fund is based in the U.S., the government requires it to report information about what it pays to its investors in order to match that against the tax returns those investors file. The government also maintains certain requirements on what the funds must distribute annually. Non-U.S. mutual funds aren’t subject to these reporting and distribution requirements. So, in an effort to avoid income deferral, these foreign mutual funds are treated as PFICs for U.S. tax purposes. Therefore, taxpayers who own foreign mutual funds may be subject to additional taxation and reporting under the PFIC regime.
Who Has to File?
The first requirement is that the taxpayer needs to be a “U.S. tax person,” as discussed in a previous post, Know Before You Go—The 3 Ways That Nonresidents Incur U.S. Tax Obligations. An individual or business that qualifies as a U.S. person then needs to determine if they have ownership of any companies or investments that meet either of the two tests discussed above. If yes, the taxpayer may be subject to additional reporting requirements and taxation.
There are some exceptions to PFIC reporting. For example, in some circumstances there may be an exception to the annual reporting requirements if the total value of all PFICs owned is $25,000 or less ($50,000 or less for married filing jointly) at the end of the year. Other exceptions exist, including an exemption for the first year of a corporation that might otherwise be treated as a PFIC, if certain conditions are met. This exception helps certain start-up businesses that begin operations with a significant investment but have yet to spend as much capital on operating assets as planned by the end of the tax year. Without this exception, these businesses might be PFICs under the asset test because cash is considered to be a passive asset under the test.
What Has to Be Filed?
The short answer to this question is, if you think that you might have a filing requirement based on the discussion above, you should probably consult a tax professional with experience in the area before trying to figure out this part of your tax return. The information you report and the calculation of any tax you might owe can be very complicated. There are several different ways a PFIC may be taxed depending on elections that can be made for treatment of the PFIC.
If you believe that you may have an obligation related to a PFIC, you should contact our International Tax Team at Freed Maxick for additional information about these rules.View full article
If you or your business qualifies as a U.S. tax person, you might have to file tax returns and you might have to pay taxes. Or you might not.
In a previous post, we focused on the 3 ways an individual business can qualify as a “U.S. person” for tax purposes. Once someone crosses that threshold, there are 3 important questions to answer:
- Am I required to file anything in the U.S. and if so, what?
- Am I required to pay anything to the U.S. and if so, how much?
- If I’m not required to file and pay in the U.S., is there any reason I would still choose to do so?
Filing Obligations in the U.S.
Once you show up on the Internal Revenue Service’s radar as a “person” for U.S. tax purposes, what do you have to file? That can vary based on individual circumstances and is best determined by consulting with a tax professional familiar with your specific situation. Here are a few possibilities, but this list is by no means exhaustive.
- An application for some type of tax i.d. number. The U.S. system cannot function on names alone. Anybody who needs to file tax forms in the States will need to have some type of identifying number registered with the IRS in order to track filings and payments accurately.
- An income tax return. Keep in mind that there is a difference between filing an income tax return and paying income tax. That will be discussed in the next section. For now, understand that your main interaction with the U.S. tax system is likely to be through the filing of income tax forms, regardless of whether income tax is owed or not.
- Information reports. If you’re required to file a tax return in the U.S., you may very well be subject to information reporting requirements regarding non-U.S. bank accounts. This report goes through the “Financial Crimes Enforcement Network” (“FinCEN”) on the network’s form 114, “Report of Foreign Bank and Financial Accounts” (FBAR). The general rule states that U.S. persons, including individuals and businesses, must file an FBAR if:
- The U.S. person has a financial interest or signature authority over at least one financial account located outside the U.S., and
- The aggregate value of all financial accounts in number 1 above exceeded $10,000 at any time during the calendar year reported.
Payment Obligations in the U.S.
Not everybody who is required to file forms in the U.S. incurs an obligation to pay taxes there. You might meet the requirements for filing a U.S. income tax return but not have the necessary income to owe taxes. This list describes some (but not all) of the common types of taxes owed once you meet the thresholds:
- Income taxes. The U.S. system allows a credit for taxes paid in foreign countries. It’s not unusual for a business or individual to meet the requirements to be a U.S. tax “person” and to report income in the states, but to wind up owing nothing in the U.S. due to tax obligations in another country.
- Payroll Taxes. If you hire U.S. employees and withhold federal income, social security and Medicare taxes from their wages, the government expects the money withheld to be paid to the Treasury in relatively short order. Depending on the number of employees or the amounts withheld, an employer may be required to pay as frequently as every 2 weeks.
- Penalties. This area is perhaps the biggest “trap for the unwary.” A failure to file any tax form required by the government can lead to the assessment of a penalty. Often the penalty is calculated based on a percentage of the amount owed, so those who don’t have a balance due may not accrue significant obligations in this area. Failure to file an FBAR, however, can lead to penalties up to $10,000 for non-willful violations or $100,000 or more in the case of willful failures to file.
Filing When Not Required
In most cases, people don’t want to file any tax form that they don’t have to. In the U.S. tax system, there is a situation that might make the filing of an income tax return worthwhile even if it’s not required. Non-U.S. taxpayers who invest in U.S. businesses, particularly partnerships, might get an information report back that says the partnership lost money. The taxpayer might not meet any requirement for filing a U.S. income tax return under those circumstances, but the U.S. system allows for losses that cannot be deducted in a particular year to be carried forward. So even though the only entry on the tax form is a report of the loss from the partnership, that loss can serve to reduce taxable income in future years if and when the investment starts to make money.
In addition, we often advise businesses that have sales in the U.S. but no other significant presence to begin filing returns proactively even before required. It’s important to establish a track record of compliance from the earliest days of your presence in the U.S.
The key to effective tax compliance for non-U.S. businesses and individuals is solid advice and planning from the start. If you’re contemplating starting operations in the U.S., it’s never too early to contact a tax professional who is familiar with the intricacies of the tax obligations facing non-U.S. taxpayers.View full article
In 2015, two new sets of published tax rules provided several favorable developments for U.S. taxpayers claiming the research and development (R&D) credits. Many taxpayers, including for example those who developed software interface for third parties to engage in business through the internet, could benefit from these rules.
Proposed treasury regulations, released on January 16, 2015, clarified the types of activities for developing internal use software (IUS) that are eligible for the credit. In addition, the “Protecting Americans from Tax Hikes” Act (PATH Act) enacted on December 18, 2015 established laws that promoted the ability of most taxpayers, including start-up businesses, to claim the credit.
Under the PATH Act, the following provisions were enacted into law:
- The Credit is Now Permanent. The R&D credit, which had expired for amounts paid or incurred after December 31, 2014, was retroactively reinstated and made permanent. Fiscal year taxpayers whose tax year ended in 2015 might want to file amended returns to claim the credit for amounts paid or incurred on or after January 1, 2015, and before the end of their fiscal year.
- Certain Small Businesses Can Use the Credit to Offset Alternative Minimum Tax. Beginning with the 2016 tax year, eligible small businesses (ESB) and their owners can claim the R&D credit against the alternative minimum tax liability. An ESB includes partnerships, sole proprietorships, and privately held corporations whose average annual gross receipts for the three-tax-year period preceding the tax year for claiming the credit does not exceed $50 million.
R&D credits determined for a partnership or S corporation are not treated as ESB R&D credits by any partner or shareholder unless that partner or shareholder also meets the gross receipts test for the tax year in which the credits are claimed.
- Certain Small Businesses Can Use the Credit to Offset Payroll Tax. Beginning with the 2016 tax year, a qualified small business (QSB) can elect to use the R&D credit against the employer’s old-age, survivors and disability insurance liability (i.e., FICA taxes). The election can be made for up to five tax years.
The R&D credit is allowed to offset payroll taxes for the first calendar quarter which begins after the date on which the taxpayer files their tax return with the election. A QSB doesn’t include tax exempt organizations.
Generally, the portion of the credit eligible to offset payroll tax is limited to the lesser of $250,000, the current year credit, or for regular corporations, the amount of the credit carryforward from the tax year determined without regard to the election.
The credit does not reduce the amount of the FICA payroll expenditure otherwise allowed as a deduction.
Generally, a QSB is a company that has less than $5 million in gross receipts for the current tax year and no gross receipts for any tax year before the five tax year period ending with the current tax year.
The proposed regulations on internal use software included the following guidance:
- IRS Noted the Increasing Importance of Computer Software for Businesses. The government explicitly narrowed the application of the IUS rules to general and administrative (backroom) functions. Activities associated with IUS have a much higher threshold and by limiting their application this effectively expanded the software activities eligible for the credit.
- Website Design Costs. Many businesses develop websites to interface with third parties which may qualify for the credit. The IRS acknowledged that certain of these costs were never subject to the much more narrow IUS rules. As a result, taxpayers may have an opportunity to claim more credit. They should review their web design/third party interface costs for prior open years and file amended returns if they determine these costs were eligible for credit under the standard, less restrictive R&D credit rules.
If your company has a U.S. subsidiary, you will most likely have some transfer pricing considerations that need to be addressed. Transfer pricing can be one of the more complex tax issues affecting multi-national businesses. The goal for this post is to educate you about some of the transfer pricing related issues and terms and some of the documentation you’ll want to have on hand.
What is Transfer Pricing?
Transfer pricing principles apply to related company transactions that cross borders. These principles try to align the value and the income from operations within a jurisdiction where the relevant functions are performed and risks taken. Perhaps one of the clearest examples is to compare two companies that assemble, finish and sell wooden furniture.
Company 1 is located entirely in the U.S. and buys the wood that it will assemble and finish from unrelated companies. Company 2 is the U.S. subsidiary of a Canadian parent and it buys all of the wood that it assembles and finishes at its U.S. location from the parent company. Assuming that Canadian tax rates are lower than U.S. tax rates, Company 2 would seek to minimize its income in the U.S. to reduce its global tax burden.
This could be accomplished by having the Canadian parent supply the wood to them at a high cost, resulting in a high cost of goods sold in the U.S. that would reduce taxable income there.
Transfer pricing rules are designed to ensure that the price the Canadian parent charges its U.S. subsidiary is comparable to the price that its U.S. subsidiary would pay had it purchased wood from an unrelated party in an “arm’s-length” transaction.
Transfer pricing principles stipulate that the U.S. subsidiary would be required to have on hand contemporaneous documentation that the price it paid for the wood from its foreign parent was comparable to an arm’s-length price.
While this very basic example focused entirely on cost of goods sold, these same rules apply to all related party transactions such as charges for administrative support, royalties, interest and similar types of charges between a foreign parent and its U.S. subsidiary. Additionally, these rules work in alternate situations where the transactions are between a U.S. parent and a foreign related entity.
Transfer Pricing: Theory and Practice
In theory, transfer pricing is about making sure that income and value are recorded in the country and localities where the corresponding operations of the business are performed.
In practice, the U.S. and foreign governments audit transfer pricing with an eye toward making sure that multi-national businesses have apportioned profits related to operations in a manner that ensures these businesses pay the full amount required in their respective countries. Businesses, on the other hand, focus on managing international operations to minimize the amount of profits generated in higher tax countries.
The critical point for businesses is not that you should try to contort your numbers in order to minimize your U.S. tax burden when you file a return. More than anything else, you need to consider the possibility of cross-border commerce from the start of your business. Plan growth in a manner that provides optimal support for operations in other countries while minimizing income that could be apportioned to high tax jurisdictions. If transfer pricing is not considered until your tax preparer is working on your U.S. tax return, you won’t be able to do much to manage the impact in the current year.
The U.S. rules require that the rationale for your related party transaction pricing be documented thoroughly at the time the return is filed. That documentation is not sent with the return, but it must be made available to the IRS in the event of an audit.
What’s at Stake If a Transfer Price Is Revised?
In addition to owing additional income tax related to the adjustment from the transfer price, U.S. law also provides for penalties in this area. Penalties for inaccurate transfer pricing can range from 20% to 40% of the tax related to the understatement of the income that resulted from the transfer prices used by the taxpayer. In addition, depending on tax treaties or the tax policy in the parent company’s home country, the changes could result in double taxation of certain income. If the U.S. determines that more income should be subject to tax in America, the parent company’s home country may not accept a corresponding decrease in taxable income calculated there.
The analysis, calculations and documentation required to accurately set and support transfer pricing policies within a company should always be performed or supervised by a professional with considerable experience in the field. Given the significant penalties that can be assessed if transfer prices are determined to be inaccurate, few businesses can afford to run the risk of miscalculating these numbers.
Documenting a Transfer Price
U.S. tax regulations provide a specific list of the documentation needed to support a transfer price calculation. The rules do not require that all of this information be filed along with the tax return, but they do require that the calculation of the transfer price and the creation of the related documents occur during the process of preparing the tax return. If your return is selected for audit, the IRS will ask for these documents and the rules require that you provide them within 30 days of the request.
Proper documentation for a transfer price calculation on a U.S. tax return includes:
- An overview of the taxpayer’s business.
- A description of the taxpayer’s organizational structure covering all related parties engaged in transactions that may include transfer pricing.
- Any documents specifically required by regulations.
- A description of the transfer pricing method selected and an explanation of why it was selected.
- A description of alternative transfer pricing methods that were considered and an explanation of why they were not selected.
- A description of the transactions between the parent and controlled parties.
- A description of how the transfer price was compared to relevant alternatives.
- An explanation of the economic analysis and projections used to develop the transfer pricing method.
- A description or summary of any relevant data obtained by the taxpayer after the end of the tax year and before the filing of the return that would help determine if the taxpayer selected and applied the transfer pricing method in a reasonable manner. And,
- A general index of the principal and background documents and a description of the recordkeeping system used for cataloging and accessing those documents.
Charter schools are part of a broad movement in public education toward results based accountability, and began operating in New York through the New York Charter School Act of 1998. Although charter schools have been in operation across the U.S. for nearly 15 years, much of the current knowledge base is about the financing of charter schools (including state charter school finance systems, funding streams, and facilities funding) rather than the financial management within them.
Auditor comments within a management letter help address deficiencies with financial reporting so that board members and management can make proper business decisions - with the ultimate goal being to strengthen the collection of data for financial reporting.
Children’s education and the strengthening of the educational system is important, so it should be a primary focus to be able to provide the best tools and resources for students to succeed. With the understanding that charter school boards vary in size and qualifications, the average board comprises ten people and at least one person with a background in financial management. Charter boards have primary responsibility over budgeting and financial reporting, but are less likely to have final control over human resources, staffing ratios, and purchasing.
These challenges can make it difficult to obtain the right staffing to reduce severe deficiencies. Incorrect reporting of financial data can impede the progress of the future success of the educational system. With the use of state aid, it’s doubly important that schools are being fiscally responsible. The benefits of an auditing consultant can help reduce the burden of meeting the fiscal recommendations of management letters.
Our consulting firm focuses primarily on:
- Quarterly reviews of the financial data,
- Being an intermediate level of oversight between the auditor and the board,
- Analyzing contract costs,
- Performing assessment reviews and recommendations of internal operations and,
- Assisting with financial projections.
We understand the challenges that charter schools face with staffing limitations and can help provide remediation. If you would like help with your next audit or management letter consulting please contact us.View full article
Important Opportunity for U.S. Employers with Employees in Canada
Some employers may benefit by acting before March 1.
(Extended from previous deadline of February 1.)
Under current Canadian law, U.S. employers are required to withhold and remit Canadian income tax for employees who work in Canada, no matter how short the assignment. Withholding is required even though there may be an exemption under the Canada-U.S. Tax Treaty.
There’s good news, though. The Canadian Government has proposed legislation in place (expected to become law in 2016) for a new exception to its withholding rules. Here are the qualifications for the exception:
- The employee working in Canada has to meet the criteria of a tax treaty with Canada to be exempt from income tax in Canada.
- The employee works in Canada for less than 45 days in the calendar year of the payment or for less than 90 days in any 12-month period that includes the time of the payment.
- The employee is employed by a non-resident Canadian employer, e.g. a U.S. employer.
- The employee is not seconded to Canada to work for a Canadian employer.
- The employee is not an economic employee of a Canadian employer.
- The U.S. employer must not carry on business in Canada through a permanent establishment.
- The U.S. employer must be certified by the Canada Revenue Agency (CRA) at the time that the payment is made.
Even though the new rule is not officially law yet, the Canadian Revenue Agency (CRA) released a form, RC 473, that nonresident (U.S.) employers can use to obtain certification. Nonresident (U.S.) employers should file the form with the CRA at least 30 days before the employee begins working in Canada. To be certified effective January 1, 2016, a nonresident employer should file form RC 473 by March 1, 2016. (This is an extension of the February 1 deadline that CRA had previously announced for certification effective January 1, 2016.) If approved, the CRA will inform the nonresident employer by letter. The approval may be granted for up to two years.
The CRA has indicated that if approved, a qualifying nonresident (U.S.) employer must:
- Track and record the number of days a qualifying employee is either working or present in Canada.
- Determine whether the employee is resident in a country with which Canada has a tax treaty (For U.S. employers, a U.S. resident employee is a resident of a country with which Canada has a tax treaty).
- File a Form T4 Summary and Information Return for employees working in Canada (not required for those earning less than C$10,000).
- Obtain a Canadian business number and a program account number if required to remit amounts to the Canadian Government.
- File all applicable Canadian income tax returns for the calendar years in which the employer is certified by CRA.
You may think you’re just friends with Uncle Sam, but he may have a deeper commitment in mind…
We spend a lot of our time talking with non-U.S. residents who spend significant amounts of their time in the United States. Far too often, we wind up talking with people who incurred some type of U.S. tax or filing obligation without knowing it. Those conversations frequently include statements like, “Well, it’s not like I obtained my citizenship, or pledged allegiance or anything. I just spent the winter in Florida!” In some cases, that can be enough.
Are You a U.S. Tax “Person”?
To figure out whether you are required to file a U.S. tax return, you first need to determine if you are a “person” for U.S. tax purposes. Federal law describes 3 categories of individuals that qualify as “persons” for U.S. taxes:
- U.S. Citizens—You would think that most people who incur a U.S. tax obligation because they are U.S. citizens would know that up front, and for the most part that’s true. However, every now and then, we do encounter people who may have been born in the U.S. and lived out of the country most of their lives, or someone with a parent who has U.S. citizenship. In some cases, these people may have an obligation without even realizing it.
- U.S. Green Card Holders—One of the most frequently asked questions from non-U.S. citizens who hold Green Cards is, “Do I have to file a U.S. tax return?” Basically, unless you relinquish the Green Card, you still need to file a Federal return even if you leave the U.S. You may not owe money, but the government will still be looking for a return from you as long as you hold the card.
- The Substantial Presence Test—Most non-U.S. citizens who unknowingly incur a tax obligation in the States qualify under this category. To meet the test, you must be physically present in the U.S. on at least:
- 31 days during the current year, and
- 183 days during the 3-year period that includes the current year and the 2 years immediately prior.
The calculation of the 183 days is weighted toward the most recent days in the measurement period by counting:
- All the days you were present during the current year,
- 1/3 of the days you were present in the first year before the current year, and
- 1/6 of the days you were present in the second year before the current year.
Even if you meet the substantial presence test, it is possible that you may still not qualify as a U.S. tax “person.” Depending on the purpose of your visit and your visa status, you may qualify as an “exempt individual” on some or all of the days you were physically present in the U.S. Also, under certain conditions, you may be eligible for treatment as a nonresident alien if you qualify for an exception given to individuals with a “closer connection to a foreign country” or by reason of a treaty.
If you spend significant time in the United States, or you’re planning to do so in the near future, you should consult a tax professional who is familiar with the filing obligations of non-residents before you go. If you have spent significant time in the U.S. previously and haven’t filed any income tax returns, you should consult a tax professional who is familiar with U.S. rules quickly. People who have a filing obligation in the States but do not file a return or other informational filings that may be required, such as FBARs, can be subject to penalties and interest that grow larger over time.
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It’s important to understand the basics before you or your business crosses borders
In today’s economy, many businesses wind up crossing international borders much sooner than they expected—often without even realizing it. It’s not uncommon for growth-oriented entrepreneurs to charge ahead believing that it’s easier to ask for forgiveness than permission, but that philosophy can lead to fines, penalties and taxes that could have been avoided when it comes to international taxes. If you understand these basic concepts about income tax treaties, you’ll be better equipped to understand when to ask permission and how to do it.
- Tax Treaties Have 2 Main Goals: In short, tax treaties provide guidance regarding potential tax benefits and reporting requirements when residing or doing business in a foreign country.
- Avoiding Double Taxation: This may be hard to believe, but not every government thinks it’s entitled to tax all of your income. Nations negotiate tax treaties in order to determine where income should be taxed and to make sure that the same income is not taxed both at home and abroad.
- Avoiding Tax Evasion: This goal sounds more like what you expect from governments. While treaties may ease a tax burden by preventing double taxation, they will almost always assign some sort of information reporting obligation to an individual or business when in a foreign country. A treaty also typically includes protocols that govern the sharing of tax information between governments.
- Residency: Step 1 when it comes to figuring out where you have to report information or file taxes is figuring out where you are a resident. Spoiler alert— For individuals, it’s not always where you live.
- Individuals: Most treaties determine if an individual is a resident for tax purposes by counting the number of days spent in the country. At the same time, a treaty can also describe specific exceptions that allow someone to live abroad and maintain tax residency in the country that they think of as home. For example, Canadians who spend significant time in Florida may become U.S. residents for tax purposes, but the treaty between the countries will allow for a “closer connection” exception if one follows certain rules and files certain forms.
- Businesses: Corporations and other types of businesses typically follow a more incremental process toward tax residency. Many enterprises first cross a border when they ship a product or deliver a service electronically into another country. Others might send a salesperson to a trade show in another country where that person closes deals on site. This can be followed by warehousing product in the second country, employing citizens of the country to manage operations there, and eventually opening an office or outlet that might establish tax residency for the business in the foreign country. A treaty can detail the obligations of the business at each of these stages.
- Immigration: Corporations rarely face immigration issues applicable to the business, but they almost always face immigration issues when employees work in other countries. A tax treaty can spell out what special visas and work permits may be needed in order for an employee to work in the host country. As for acquiring those visas and permits, an attorney who focuses on immigration issues may be the best resource for a business sending workers into another country.
The United States currently has tax treaties with about 60 countries. If you are a businessperson in the U.S. or one of those countries, it’s critical to understand the requirements of the relevant treaty before doing business that crosses the border. If you have operations in a country without a U.S. treaty, it’s important to understand how the Internal Revenue Code will treat the income you generate--both in the U.S. and abroad. As noted above, this is an area where engaging professionals before you start can save you money and hassles, while seeking forgiveness after the fact can lead to significant fines and penalties in addition to taxes. A consultation with an international tax professional is a must for any business with plans to operate across borders.