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This week’s blog post is written by Withum’s International Services Group member, Phyllis Tsai.

Withum’s International Services Team recently welcomed one of our HLB International network firms from China, Baicheng Tax Consulting Services.

Beicheng has been operating as a professional tax service company since 2003. They mainly service large-scale companies and corporations in China. They are based in Shanghai and have braches in Beijing and Shandong Province. All of Baicheng’s five directors (plus one translator) came to visit Withum’s Princeton office to gain an understanding of the U.S. tax system and an introduction to Withum’s culture and various services we provide to our clients. Throughout this meeting, Baicheng also gave Withum some insight of the Chinese tax system and culture relating to marketing.

HLB baicheng

Since most of our visitors do not speak or understand English, May Du (senior tax accountant in Withum’s Princeton office) and I practiced our Chinese skills to try to translate Withum’s, culture, various industry and service niches, and social media involvement, etc. into Chinese terms our visitors would understand. Withum’s attendants also used this opportunity to practice correct business card exchange etiquette in China. The following are some points we learned from meeting our HLB friends:

  • China does not have many social media tools as we do for Baicheng to market their services. They do not have access to Twitter, YouTube, or Facebook. They have limited access to LinkedIn.
  • They have limited internet access so it is difficult for them to download HLB training materials or provide their clients training online. Therefore, they hold many conferences to provide the training to their employees and tax updates to their clients.
  • China does not have individual tax returns currently. Chinese withhold taxes from their paychecks in lieu of filing tax returns (although this policy will change soon).
  • Less than 10% of companies hire accounting firms to prepare corporation tax returns.
  • China revised their transfer pricing rules recently which would be more in line with OECD rules (Organization for Economic Co-operation and Development).
  • Some of Baicheng’s clients would like to invest abroad since Chinese government has been encouraging companies and individuals to do so.

During early 2016, it was reported by news media that due to China’s “Go Global” strategy, Chinese companies have invested more money in foreign locations in the first ten weeks of 2016, compared to all of 2015. Chinese companies invested $110 billion until mid-April 2016, compared to $108 billion in 2015.

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Nicole-DeRosaThis week’s blog post is written by Withum’s International Services Group member, Nicole DeRosa.

Who says taxes are logical? Even Albert Einstein agrees that “the hardest thing in the world to understand is the income tax.” While maybe not the easiest to understand, most taxes and tax exemptions are usually logical… except the few legitimate ones we found below.

china_round_icon_256China – Chopsticks Tax

In 2006, China introduced a 5% tax on disposable wooden chopsticks in an effort to preserve its vanishing forests. Annual production of disposable wooden chopsticks in China exceeds 45 billion pairs, which is equivalent to about 25 million trees – that is a lot of wood!

denmark_round_icon_256Denmark – Fart Tax

Yes, you read that correctly – the fart tax. In 2009, proposals to tax the flatulence of cows and other livestock was quite the hot topic in Denmark. Livestock contribute 18% of the greenhouse gases believed to cause global warming, according to the U.N. Food and Agriculture Organization.

united_states_of_america_round_icon_256United States – Tanning Tax

Much to the dismay of Jersey Shore’s Snooki, the Tanning Tax was passed in 2010 to help pay for healthcare reform and was meant to deter customers from using indoor tanning salons. The 10% tax was justified by evidence that tanning can lead to skin cancer.

mexico_round_icon_256_1Mexico – Obesity Tax

Aiming to curb unhealthy consumption habits, in 2013 Mexican lawmakers approved an 8% sales tax on high-calorie foods such as potato chips, sweets, and cereal. The controversial tax reform also targeted sugary drinks, increasing the price of sodas by one peso, approximately seven cents. Mexico isn’t the only country that has implemented such a tax. Denmark introduced a fat tax at one point on items that contained more than 2.3% saturated fat. California has implemented the first of this tax in the United States, effective January 1, 2015 called the Measure D Soda Tax which imposes a tax of one cent per ounce on the distributors of specified sugar-sweetened beverages. That’s not too sweet if you think about it!

irelandIreland – Artist Tax Exemption

Starving artists might never go hungry if they reside in Ireland! According the Taxes Consolidation Act of 1997, income earned by writers, composers, visual artists, and sculptors from the sale of their works is exempt from tax in certain circumstances.

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Clinton FoundationThe Clinton Foundation has recently been in the news for allegedly failing to report foreign-sourced contributions on its annual Federal Form 990, Return of Organization Exempt From Income Tax, dating back to 2010. In a May 19, 2015 letter to Internal Revenue Service (“IRS”) Commissioner John Koskinen, Marsha Blackburn, R-TN, along with 51 other members of Congress, requested that the IRS review the tax-exempt status of the Clinton Foundation. It should also be noted that the Clinton Foundation retained the services of a professional certified public accounting firm to audit its financial statements and prepare its Forms 990 for these years.

THE CLINTON FOUNDATION BACKGROUND

The Clinton Foundation was established in 1997 in conjunction with former President Clinton’s vision of creating a nongovernmental organization that could leverage the unique capacities of governments, partner organizations and other individuals to address rising inequalities and deliver tangible results that improve people’s lives. Its mission is to improve global health and wellness, increase opportunity for women/girls, reduce childhood obesity, create economic opportunity and growth and help communities address the effects of climate change.

FORM 990, SCHEDULE B REPORTING

Form 990, Schedule B, Schedule of Contributors, requires tax-exempt organizations to report detail with respect to certain contributions received by the tax-exempt organization that are reported in Form 990, Part VIII, Line 1. According to the Form 990, Schedule B instructions, a contributor (person) includes individuals, fiduciaries, partnerships, corporations, associations, trusts, and exempt organizations. In addition, Internal Revenue Code §509(a)(2), §170(b)(1)(A)(iv), and §170(b)(1)(A)(vi) state that organizations must also report governmental units as contributors. Contributions reportable on Schedule B include contributions, grants, bequests, devises, and gifts of money or property, whether or not for charitable purposes.

THE LETTER

In the Letter, Blackburn and her 51 colleagues cited two major issues surrounding the Clinton Foundation. First, they claim that the Clinton Foundation failed to accurately report foreign government grants received between 2010 and 2012. The Acting Chief Executive Officer of the Clinton Foundation responded by stating that “our error was that the government grants were mistakenly combined with other donations”. Former President Clinton expanded on this by stating that the omissions were “just an accident”.

Secondly, the Letter cited a Washington Post article dated May 3, 2015 which details the relationship between former President Clinton and Frank Giustra, both board members of the Clinton Foundation. The article indicates that Giustra has donated more than $100 million to the Clinton Foundation and that “Clinton has also gained regular transportation, borrowing Giustra’s plane 26 times for foundation business since 2005, including 13 trips where the two men traveled together”.

IRS EXEMPT ORGANIZATION MONITORING

The IRS has increased its awareness of the activities of tax-exempt organizations in recent years. In order to facilitate its monitoring of these organizations, the IRS welcomes the public to file complaints, which are known as referrals, of any known activities in which organizations are abusing their tax-exempt status. These referrals are sent to analysts in the IRS Exempt Organizations Classifications Office in Dallas, Texas where the IRS issues an acknowledgement of receipt of the referral. The IRS is not permitted to disclose whether or not an examination has been initiated, nor can it reveal the results of an examination to any party other than the examined organization.

Concurrent with these guidelines, the IRS responded to the Letter with a form letter dated June 3, 2015 stating that “there is an ongoing examination program to ensure that tax-exempt organizations comply with the tax law and they will consider the submitted information within that program”.

CONCLUSION

The Clinton Foundation, along with all other tax-exempt organizations, need to be careful to include all necessary disclosures in their annual Form 990 filings in order to be compliant and avoid being questioned by the public or the IRS about the validity of their tax-exempt status. In addition, potential penalties exist for failure to accurately complete a Form 990. Even when a tax-exempt organization such as the Clinton Foundation engages a professional certified public accounting firm, reporting issues, or the lack thereof, can still arise.

If you have any questions, please contact your WithumSmith+Brown professional, a member of WS+B’s International Services Group or email us at international@withum.com.

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Import-ExportForeign-Trade Zones (FTZs) are designed to generate economic growth and development in the United States by encouraging firms to site and expand their U.S. operations within the zones. Rules related to FTZs are designed to put U.S. manufacturers on equal footing with foreign competitors through special rules related to tariffs and excise taxes.

FTZs are secure areas where foreign and domestic goods can be moved in and out. They are generally located in or near U.S. ports of entry. FTZs are authorized by the Foreign-Trade Zones Board and are supervised by U.S Customs and Border Protection (CBP).

A robust set of activities are permitted within FTZ including the processing, assembly and manufacturing of goods and the storage and exhibition of merchandise. FTZs are operated by qualified public and private corporations. As the zones are seen as providing a public good, they are run as a public utility and the rates charged for services within the zones are regulated and publicly available.

While activities within FTZ are subject to local, state and federal laws, special rules related to tariffs and other ad valorem taxes apply. These rules allow importers to defer the payment of duties and take advantage of inverted tariffs and they allow exporters to accelerate their drawback of duties previously paid on goods imported into the U.S. as well as federal excise taxes related to those goods.

Foreign merchandise, brought directly into FTZs by importers, is not subject to duty or excise taxes upon entry.. The importer is free to process, assemble or manufacture goods using the foreign merchandise that they have imported. They can then choose to pay duty based on the rate applicable to the merchandise that they imported or to the finished product they produced within the FTZ. Furthermore, the payment of duty and excise tax is deferred until the finished products leave the FTZ and enter territory under CBP jurisdiction for domestic consumption. If exported from the FTZ, the finished products exit the zone duty and excise tax free.

Another benefit afforded to importers pertains to quotas. If a quota for a particular type of merchandise has been filled, an importer may bring the merchandise into a FTZ and hold it there until the quota opens or is removed. Except for certain textile products, the importer may also use the merchandise subject to the quota to produce another product that is not subject to the quota. Merchandise entering a FTZ can remain within the zone indefinitely without paying duty or excise taxes, but will be subject to storage charges. However, merchandise that is prohibited from being imported into the U.S. is also prohibited from entering FTZs.

Domestic merchandise brought into a FTZ for export can be considered as having been exported. Consequently, upon admission of the goods, exporters can submit their drawback filings in order to accelerate the process of recouping prior duties paid on imported inputs and can also initiate the process of securing excise tax rebates.

If you have any questions regarding FTZs, please contact your WithumSmith+Brown professional, a member of WS+B’s International Services Group or email us at international@withum.com.

By Richard Ingunza | 212.751.9100 | ringunza@withum.com

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A U.S. taxpayer was found ineligible for the foreign earned income exclusion under IRC section 911 with regard to his wages earned in Russia.  However, the U.S. Tax Court held that the taxpayer was not liable for accuracy-related penalties under IRC sections 6662 and 6664 with regard to the claimed exclusion.

The case involved a taxpayer who worked in the oil industry and was regularly posted to drilling locations overseas. During the years at issue, the taxpayer worked in Russia. When the taxpayer filed his U.S. tax returns, he excluded his wages earned in Russia from his gross income under IRC section 911(a).

IRC section 911(a) permits a “qualified individual” to exclude a limited amount of foreign earned income. Under IRC section 911(d)(1), a “qualified individual” must, among other requirements, maintain a tax home in a foreign country.

Under IRC section 911(d)(3), combined with IRC section 162(a)(2), an individual’s tax home is his principal place of employment. However, under IRC section 911(d)(3), an individual is not treated as having a tax home in a foreign country for any period during which the individual has his abode within the United States.

The U.S. Tax Court stated that a taxpayer’s abode is generally in the country in which the taxpayer has the strongest economic, family and personal ties, and in the present case, the taxpayer’s abode was in the United States. The U.S. Tax Court reached this conclusion on the grounds that:

  • the taxpayer owned a house in the United States;
  • while he was overseas, his first wife, his second wife and his daughter lived in the house or in his parent’s house located in the same city as his house;
  • the taxpayer regularly and frequently visited his family in the United States;
  • his business affairs were generally handled by his mother, whose address in the United States he used as his mailing address;
  • his driver’s license, voter registration, bank accounts and motor vehicles were all centered in the United States; and
  • his ties to Russia were entirely transitory and were not much beyond the minimum necessary to perform his duties there.

The U.S. Tax Court accordingly determined that the taxpayer was not eligible for the foreign earned income exclusion under IRC section 911.

However, the U.S. Tax Court declined to impose a 20% accuracy-related penalty under IRC section 6662(a) and (b)(1) because the taxpayer acted with reasonable cause and in good faith with regard to his underpayment of tax, which is an exception to the penalty under IRC section 6664(c)(1). The U.S. Tax Court found that the taxpayer reasonably relied on the advice of a competent tax professional, who advised that the taxpayer’s wages earned in Russia were eligible for the section 911 exclusion.

By Kimberlee Phelan, CPA, MBA, Practice Leader, WS+B’s International Services Group | 609.520.1188 | kphelan@withum.com

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prPuerto Rico is a beautiful island with many natural wonders, but it also has one very “unnatural” quality that is creating a haven for American citizens; it’s called, Act 22. Passed by the Legislative Assembly of Puerto Rico in 2012, Act 22 is intended to draw wealthy individuals to the island nation in hopes of spurring its sputtering economy. Act 22 is a tax incentive that essentially provides an individual exemption from Puerto Rico taxation on certain investment incomes until December 31, 2035.

The exemption is broadened to other types of income through related legislation, namely Act 20 and Act 273. Together, this legislative package allows U.S. citizens to achieve an effective tax rate of sub 4% on much of their income, all without giving up their U.S. citizenship. I’ve written about the tax benefits of Puerto Rico before (see here: http://www.withum.com/kc/fund-manager-seeks-sun-fun-low-taxes-expatriation-new-twist/ ), and you are welcome to read about such benefits there. In this article I will explore the different avenues to achieving such benefits.

The tax incentives being offered by Puerto Rico are somewhat “unnatural” because the island is a commonwealth of the United States and its residents are U.S. citizens. So how can a U.S. territory simply turn off U.S. federal taxation? Subpart D of the U.S. Internal Revenue Code seeks to synthesize and coordinate federal taxation with the taxation of U.S. possessions and Puerto Rico. Section 933 allows a specific exclusion from federal taxation for income derived by bona fide residents of Puerto Rico from sources within Puerto Rico. A similar rule is provided for the U.S. Virgin Islands and other U.S. territories. This permits the territory to institute its own tax rates for its residents – but only for income that is sourced to the same territory. For example, a bona fide resident of Puerto Rico pays Puerto Rico tax (not U.S. federal tax) on dividends from Puerto Rico companies. However, that same resident would pay U.S. federal tax on a dividend from a U.S. company, say IBM or General Electric. Normally, the difference is not material since most U.S. territories have a tax code that mirrors the U.S. tax code (in fact, they are called “mirror code jurisdictions”). While Puerto Rico is not a mirror code jurisdiction its tax rules (and rates) are not dissimilar to the U.S. mainland. This is why Act 22 is revolutionary. The Act, by introducing a 0% tax rate on certain investment income, wildly distorts the coordination of the U.S. territory tax systems.

When I explain the tax benefits available to U.S. high net worth individuals from migrating to Puerto Rico the typical response I get is, “I don’t want to live in Puerto Rico all year long.” How many days per year do you really need to live on the island of Puerto Rico in order to achieve the desired benefits? The truth is – zero! Of course, that’s extreme, but theoretically possible. If you know anything about the residency rules surrounding Puerto Rico you’re already asking yourself if the author has been spending way too much time in the sun down in San Juan. Everyone knows the rule is that you must be present on the island of Puerto Rico for 183 days or more per year in order to be classified as a bona fide resident (the “Presence Test”). However, rather than lounging on the beautiful Flamenco Beach (e-mail me, I can tell you how to get there), I’ve been toiling away in New York reading the Internal Revenue Code. In it, you will find that the 183-day rule is but only one of five different tests an individual can meet in order to satisfy the Presence Test and be deemed a bona fide resident of Puerto Rico. Of course, in order to be a true resident and achieve the tax benefits one must also meet the Tax Home and Closer Connection Tests (more on that later).

The other ways to satisfy the Presence Test include, (i) being present in Puerto Rico for 549 days in a 3-year period (with a minimum 60 days each year); (ii) being present in the U.S. 90 days or less; (iii) having U.S. earned income less than $3,000 and spending more time in Puerto Rico than the U.S.; or (iv) having no significant connections to the U.S. Of particular note, only the 183-day and 549-day tests require any actual time on the island of Puerto Rico. The last three tests have no requirement of a minimum presence within Puerto Rico (although, the third test compares your Puerto Rico time to your U.S. time). Importantly however, no matter what test one looks to, the individual cannot be present in the U.S. for 183 days or more without become subject to full U.S. taxation. That has nothing to do with Puerto Rico but is rather a general rule all non-U.S. citizens must be wary of.

People often dismiss the third test above since they obviously make more than $3,000 per year. However, the test is “U.S. earned income” of less than $3,000. If all of your income is investment earnings or you establish your management company in Puerto Rico and that is where you draw your salary from you have no U.S. earned income. Of course, for that test you still must spend more time in Puerto Rico than the U.S. which does not fit everyone’s lifestyle. Likewise, if you are fond of seeing friends or relatives often and can’t rely on them coming to visit you outside the U.S., test number two may also not be feasible since you can’t be in the U.S. more than 90 days per year. However, many people are able to strike a balance of being in the U.S., Puerto Rico and other places in the world in a manner that meets one or more of these tests.

Take the example of my client Paul and Jen Harrison (not their real names). Paul and Jen are married with three grown children and earn approximately $14 million per year. The Harrison’s had homes in the U.S., London and Singapore. The Harrisons called Manhattan their home when I first met them and were subject to roughly 50% maximum taxation on their income (federal, state and city combined). When we spoke about tax reduction alternatives I suggested the notion of changing their domicile, the Harrison’s were amenable to moving to Florida, which would significantly reduce their tax, but not Puerto Rico.

However, after reviewing their most recent three year travel log (which they kept for California residency purposes), I explained to them that with fairly modest changes they could have qualified as Puerto Rico residents and would save approximately $5 million per year (based on their particular tax situation). They spent an average of 45 days per year in London, 30 days in Singapore and another 65 days in travel destinations (primarily outside the U.S.). Thus, on average they were in the U.S. only 225 days per year. They ultimately changed their domicile to Puerto Rico and reduced their time in the U.S. to 182 days. The Harrison’s decided to qualify under test number four above by severing all “significant connections” to the U.S. Ironically, while this test sounds the harshest, it allows the Harrisons to spend up to 182 days per year in the U.S. while spending minimal time in Puerto Rico. We anticipate for 2014 they will spend 182 days in the U.S., 45 days in London, 35 days in Singapore, 56 days in Puerto Rico and 47 days traveling outside the U.S. That’s a prime example of maintaining one’s status as a bona fide Puerto Rico resident while spending only 56 days in Puerto Rico during the year. The “significant connections” with the U.S. that must be severed in order to satisfy the fourth option under the Presence Test include, (i) a permanent home in the U.S., (ii) a current voter registration in any political subdivision of the U.S., or (iii) a spouse or child under the age of 18 whose principal place of residence is in the U.S. unless the child is living in the U.S. with a custodial parent under a custodial decree or the child is in the U.S. as a student. For most people re-domiciling to Puerto Rico all “significant connections” to the U.S. would be severed simply to meet the Closer Connection Test (described below) with the exception of a U.S. residence. Thus, the only thing the Harrisons had to change was to lease or sell their New York apartment.

Of course, like many of my clients who have re-domiciled to Puerto Rico, the Harrisons are discovering that the more they stay in Puerto Rico, the more they like it. They are actually building a guest house on their property to house their visiting children and grandchildren and plan on spending significantly more time in Puerto Rico in 2015.

In deciding how to meet the Presence Test one must be cognizant of the Closer Connection Test as well as the Tax Home Test, both of which must also be satisfied in order to be considered a bona fide resident of Puerto Rico. Under the Closer Connection Test the individual must not have a closer connection to the U.S. or a foreign country than to Puerto Rico during the year. The Closer Connection Test is a facts and circumstances test that focuses on factors such as: the location of the individual’s permanent home; the locations of the individual’s family; the location of personal belongings such as automobiles, furniture, clothing, jewelry, etc.; the location of social, political, cultural and religious organizations; personal banking activities; location of business activities, driver’s license and voter registration.

The Tax Home Test states that a person’s tax home is considered to be located at his “regular or principal place of business.” If a place of business is inapplicable in a given person’s situation, the test considers the individual’s regular place of residence. Under this test, the individual must not have a tax home outside Puerto Rico during the tax year.

The Closer Connection Test and Tax Home Test are indicative of the fact that an individual can have multiple residences but only one domicile. There is only one way to test a person’s domicile – facts and circumstances to determine where the person maintains his/her permanent home, the place they always intend to return to.

Piecing the rules together it becomes clear that a U.S. individual can re-domicile to Puerto Rico and take advantage of the tax benefits afforded by Act 22 while spending minimal time on the island. For a U.S. individual living in a high tax state like New York or California, migrating to Puerto Rico can change their effective tax rate from more than 50% to below 4%. Such significant savings with the prospect of spending 183 days in the U.S. and minimal time on Puerto Rico is worth serious investigation.

If you have any questions regarding migrating to Puerto Rico or any other international tax issues, please contact your normal WithumSmith+Brown partner.


By Anthony Tuths, JD, LLM, Partner | 212.829.3203 | atuths@withum.com

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