Cross Border Tax News 2019 (Updated January 23, 2019)

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Here you’ll find updates on cross border tax issues for 2019. Please check back often for updates as this page will be revised for new cross border tax news items from month to month. You can also sign up here to receive the updates automatically.

Update January 23, 2019:

CRA has shared over $1.6 million documents with the IRS to date

CRA continues to supply information to the IRS on US Citizen owned investment and bank accounts. According to CBC CRA has already shared over $1.6 million Canadian banking records with the IRS. Even with the significant sharing of documentation we are still not seeing an increased level of new clients being contacted by the IRS. You would think that if the IRS has such a large of amount of banking information from US citizens abroad they would be enforcing compliance by reaching out to these Americans. This might be something that has yet to happen and may be on the horizon. Another good reason to get caught up with the streamlined tax program before it disappears.

New GILTI (section 951A) and 5471 forms released

As anticipated, the new GILTI tax forms and related 5471 schedules have been released in draft. As part of the new 951A rules related to CFC business income taxation, the IRS released the following new forms:

  • Form 8992 (draft) – U.S. Shareholder Calculation of Global Intangible Low-Taxed Income (GILTI) – This form reports the taxpayer’s GILTI net CFC tested income under section 951A. Included in this form is schedule A which helps reconcile a taxpayer’s tested income.
  • Form 5471 new schedules – as part of the new 951A rules the IRS has also released a new schedule I-1 – Information for Global Intangible Low-Taxed Income. This form calculates a taxpayers tested income inclusion under GILTI.

Update January 17, 2019:

We were pleasantly surprised, even as the US government shutdown continues, that the year end exchange rates were released yesterday by the US Treasury Department. For 2018 the year end FBAR and 8938 US-Canadian exchange rate is as follows:

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1 USD = 1.3620 CAD

FBAR reporting and form 114 information can be found here. Form 114 can be completed via PDF or completed online through the BSA online filing portal. For more information on how to complete the FBAR please click here.

Update January 10, 2019

Section 965 and GILTI Tax Changes

As we start the new year we can’t forget about the recent tax changes enacted by the current US administration. Starting with the 2017 section 965 tax, and leading into the 2018 tax season with the new global intangible low-taxed income (GILTI) tax, the last few years have been nothing if not complex for US citizens in Canada. Especially those that control Canadian corporations.

For those not familiar with these new changes the US administration rolled out new tax rules in 2017 and 2018 that essentially taxed previously earned retained earnings and future active business income for US citizens with ownership in controlled foreign companies. For most of our clients, this included Canadians with a controlling ownership in Canadian corporations. Although there are planning strategies to help mitigate the potential US tax effect to taxpayers, the new changes have been overwhelmingly negative for our cross border clients.

US Government shutdown

The current government shutdown as a result of the President’s insistence on funding a wall between the US and Mexico will likely lead to some slowdown at the IRS. Although the department has assured taxpayers that they will be receiving their refunds on time we expect delays in tax returns processing and general responses from the IRS.

We also expect that the December 31, 2018 year end currency rates for FBAR and 8938 purposes will also be delayed. These figure are often released by mid January, however this year they may be released much later. If pushed too far this could impact the accuracy of FBAR and 8938 filings as these forms require that the year end Treasury currency rate is used for converting foreign funds to US dollars.

The Closing of the IRS Voluntary Disclosure Program

As expected the IRS closed their offshore voluntary disclosure program September 28, 2018. In November of 2018 the IRS provided guidance on future IRS voluntary disclosures. The guidance provided that:

  • Pre-clearance will be reviewed by agents for new VDP submissions
  • The IRS will expect all disclosures to include full taxes and penalties paid
  • They expect 6 years of returns to be submitted and FBAR willful penalties will be potentially assessed
READ  FBAR and 8938 Official U.S. Treasury exchange rates for 31 December 2018

Note however that the streamlined tax filing program available to non-resident US citizens is still in place and available to those that are considering catching up on their late US tax returns.

IRS Compliance Campaigns

In 2018/2019 the IRS is expanding their compliance review in several international areas. We expect that our cross border clients will be receiving some additional review on these items. I have included a list of notable international examples below (see the full list here):


1120-F Delinquent Returns Campaign
Corporate Direct (Section 901) Foreign Tax Credit (“FTC”)
F3520/3520-A Non-Compliance and Campus Assessed Penalties
FATCA Filing Accuracy
Foreign Earned Income Exclusion Campaign
Forms 1042/1042-S Compliance
Form 1120-F Chapter 3 and Chapter 4 Withholding Campaign
Form 1120-F Non-Filer Campaign
Individual Foreign Tax Credit (Form 1116)
Individual Foreign Tax Credit Phase II
Nonresident Alien Schedule A and Other Deductions
Nonresident Alien Tax Treaty Exemptions
NRA Tax Credits
Offshore Service Providers
OVDP Declines-Withdrawals Campaign
Related Party Transactions Campaign
Repatriation Campaign
Section 965 Transition Tax

CRA Non-Resident Withholding Tax

We are seeing additional review of non-resident withholding tax from CRAs perspective. For those making payments to non-residents make sure that proper withholdings are paid to CRA on specific amounts. The maximum non-resident withholding rate to non-resident recipients is 25%, however these amounts can be reduced based on tax treaty provisions.

To assess appropriate non-resident withholding tax on payments to non-residents please use this CRA calculator.

Tax Fairness for Americans Abroad Act of 2018

On December 20th, 2018 Congress member George Holding of North Carolina introduced the Tax Fairness for Americans Abroad Act of 2018 bill into the House. This announcement garnered the attention of many US citizen taxpayers abroad for obvious reasons.

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The introduced bill outlines an alternative taxation regime for US citizens living abroad. In simple terms the bill introduces the following measures:

  • the bill would allow US citizens to be taxed based on a residency established system.
  • for those considered “non-resident citizen” current worldwide reporting and taxation to the US government would not be required (assuming proper elections are filed)
  • US Citizens would continued to be taxed on certain US source income
  • US Citizens would be taxed on any sale of property or capital property during the time they were considered “resident Citizen of the US”
  • In order to be considered a qualify “non-resident citizen” the taxpayer would need to be fully compliant for tax purposes during the last 3 years.

As many have pointed out, this is not the first attempt at introducing a bill of this nature into the House and as many professionals have pointed out, this bill is unlikely to become law.

 

2 COMMENTS

  1. Americans should only be taxed in the country they live, end of story. If I want to live in a country with no tax that is my right. That includes income from the US. They need to change their ways.

    • Jon

      I understand your point, however it may not be as simple as that. Imagine a situation (you can use any country as an example) where a resident builds a business or has grown their investments to a significant level. Under you plan they could simply move to a low or no tax country to avoid tax on these assets. Countries have to protect from this potential as many would take advantage of such a change.

      That being said, I am an advocate for simplifying the compliance requirements for US citizens abroad.

      Phil

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