The Interaction of Immigration and Tax

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The Interaction of Immigration and Tax A Discussion of Visa Options, Green Cards, and US Citizenship and the Corresponding Tax Consequences Florida Bar Tax Section Presentation November 2, 2016 Abrahm Smith Laura Garvin Baker & McKenzie Compliance Consulting LLC provides compliance management and support services and does not provide legal advice or services. Baker & McKenzie Compliance Consulting LLC is a corporation wholly owned by Baker & McKenzie LLP, a member firm of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a "partner" means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an "office" means an office of any such law firm. 2016 Baker & McKenzie Compliance Consulting LLC

US Person Income Tax 1. US Citizenship 2. US Green Card 3. Substantial Presence Test (i.e., 183 day test) 2016 Baker & McKenzie Compliance Consulting LLC 2

US Person Citizen By Birth By Naturalization Puerto Rico 2016 Baker & McKenzie Compliance Consulting LLC 3

US Citizenship Special Situations 1. Accidental Americans born in the US but live outside the United States 2. Dual citizens from birth living outside the United States 3. Acts of Expatriation 2016 Baker & McKenzie Compliance Consulting LLC 4

Voluntary Relinquishment of Citizenship Presumption Against Expatriation By Action Voluntary and Intentional By Formal Application before Consular Officer Intent and Capacity Certificate of Loss of Nationality 2016 Baker & McKenzie Compliance Consulting LLC 5

US Person Lawful Permanent Resident (Green Card) Family Sponsored Employment Based 2016 Baker & McKenzie Compliance Consulting LLC 6

US Green Cards Special Situations 1. 8+ years 2. Treaty Positions / Expatriation 3. Domicile (Estate Tax) 4. Expired Green Card Continue to be taxed as US income tax resident 2016 Baker & McKenzie Compliance Consulting LLC 7

Abandonment of Residency Application Surrender green card at a US Consulate or Port of Entry Voluntary and knowingly Action Absence of more than one year No clear objective intent to resume residency 2016 Baker & McKenzie Compliance Consulting LLC 8

Substantial Presence Test 1. Present in the US at least 31 days 2. Formula Current year x 1 = 1 st preceding year x 1/3 = 2 nd preceding year x 1/6 = Total 183 or more 2016 Baker & McKenzie Compliance Consulting LLC 9

Substantial Presence Test Any part of a day counts US transit days not counted to see day counts: https://i94.cbp.dhs.gov/i94/#/home 2016 Baker & McKenzie Compliance Consulting LLC 10

Substantial Presence Test 2 Outs 1. Closer connection exception a) less 183 days current year b) tax home and closer connection to foreign country 2. Treaty Tie Breaker 2016 Baker & McKenzie Compliance Consulting LLC 11

Nonimmigrant Status Temporary Visitor Status B1/B2 Visa Generally, 10 year multiple entry validity Entry for up to 6 months No work authorization Visa Waiver Program ESTA authorization Entry for up to 90 days No work authorization 2016 Baker & McKenzie Compliance Consulting LLC 12

Nonimmigrant Status F-1 Academic Student ICE approved institution Full course of study Temporary intent Employment authorization limited 2016 Baker & McKenzie Compliance Consulting LLC 13

Nonimmigrant Status L-1 Intracompany Transferee Qualifying employment abroad Related employment entities Managerial/executive or specialized knowledge role 5/7 year limitation 2016 Baker & McKenzie Compliance Consulting LLC 14

Nonimmigrant Status E-2 Investor Relevant treaty Substantial and at risk investment Active role Bona fide commercial enterprise No time limitation 2016 Baker & McKenzie Compliance Consulting LLC 15

Special Rules Special Visas Days do not count 1. Student (F) 2. Foreign government related individuals 3. Teacher 4. Certain professional athletes participating in charitable event 2016 Baker & McKenzie Compliance Consulting LLC 16

Special Rules F (Student) Visa Days not counted for Substantial Presence Test BUT if present 183+ days, US source gains taxed at 30% 2016 Baker & McKenzie Compliance Consulting LLC 17

Special Rules Treaty Tie Breaker Reg 301.7701(b) 7(a)(3) income tax liability non-us person all other purposes US person Reporting (FBAR, 5471, 8938, etc.) No guidance from IRS 2016 Baker & McKenzie Compliance Consulting LLC 18

Special Rules Form 8854 (Expatriation Form) Correcting late filed Form 8854 2016 Baker & McKenzie Compliance Consulting LLC 19

US Person - Domicile Gift and Estate Tax different test Domicile 2016 Baker & McKenzie Compliance Consulting LLC 20

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