Steve Leimberg's Income Tax Planning Email Newsletter - Archive Message #71

Date:  08-Jul-14

David Neufeld & IRS Amnesty for Certain US Taxpayers with Offshore Income and Assets

On June 18, 2014 the IRS in IR-2014-73 modified its ‘Streamlined’ program for certain US taxpayers who have failed to properly file tax returns or foreign bank account reports, offering the closest thing to a total amnesty practitioners could have predicted.  Those that qualify could find it very beneficial; most significantly the program permits the potential waiver of most or all penalties.  

Ultimately the determination of whether it is available to those otherwise qualified is based on whether the IRS decides a taxpayer’s past non-compliance was willful. Depending on how one guesses the Service will come out on that tells taxpayers what they should do; if they feel they can make a good case for non-willfulness they should embark on this new program, but if not then they might consider either entering the Offshore Voluntary Disclosure Program, opting out or doing a ‘quiet disclosure.’ 

For the right taxpayer the Service has exhibited unusual generosity by waiving most if not all penalties and limiting the liability for past taxes to three years. But a detailed analysis is required to be certain one is the right taxpayer, as a mistake can be terribly costly.” 

David Neufeld provides members with important commentary that reviews the benefits of the modified “Streamlined” Offshore Filing Program that the Service recently announced. David’s commentary includes a handy flow chart that explains the program’s eligibility requirements, and is available exclusively to LISI members. 

David S. Neufeld is a tax and T&E lawyer in Princeton, NJ.  He represents clients throughout the world, doing both planning and controversy work (administrative and Tax Court).  David is also an expert witness in civil cases around the country arising from 419 plans.  Most notably, David represents the government of the Island of Nevis, for which he has drafted several laws, including the Nevis LLC Ordinance and recent proposed amendments to permit series LLCs and cell captive insurance companies.  For more, go to www.DavidNeufeldLaw.com 

Here is his commentary: [click on "Read More" to the right] 


 
 
If it is your business to know about the latest version of the IRS' offshore compliance program for "non-willful non-compliant" taxpayers with foreign accounts and income then this flow chart will make your life a whole lot easier.  It is available for download in the "Article Downloads" page, just request a password and it is yours.
 
 
Perhaps the silliest chapter in US tax law administration came to a close on June 12, 2014 and with it goes the ubiquitous “Circular 230 Notice” on emails and every other type of writing.

Several years ago, by administrative fiat, someone at the IRS decided that those tax practitioners wishing to practice before the IRS had to declare that any writing issued that could be deemed to be a tax opinion was not unless it was.  And with that, tax lawyers and CPAs included the appropriate statement at the bottom of each email.  Failure to do so exposed the practitioner to certain penalties.  Those reading this blog have likely used it and if not have certainly seen it.  Heck, it was even on this website.  This author’s first thought that fateful day some years back was that he and likely everyone else would put it one everything out of caution and it would soon become worthless.  And that is what happened, almost immediately.

Tax lawyers did it for professional correspondence as did CPAs. Then it migrated to non-tax professionals, like insurance agents and stock brokers, who never had to worry about practicing before the IRS, but they did it anyway not understanding why they did it.  Then it appeared on emails about little league practice and bridal showers and landscaping estimates.  Clearly it reached ridiculous levels.

Its purpose was to put on notice taxpayers intent on abusing the system and then avoiding penalties if caught with the tax version of “the devil made me do it,” i.e. my tax lawyer said it was OK, that there were times when this shield might not work.  Instead it became just more digital background noise that no one paid any attention to due to its ubiquity.  Well, no more.  Ding dong the Circular 230 Disclaimer is dead, destined to live on perhaps only at the bottom of those emails announcing cake in the break room sent by folks who not only don’t know why it’s there and may never know that it need not be there any longer.

 
 
There  are those who observed James Gandolfini’s passing in the context of his acting career, particularly his iconic role as Tony Soprano.  They are called fans.  Then  there are those who saw it as a chance to peak into his estate planning and  critique it.  They are called estate planners.

It has been reported in various news reports, the first being the New York Daily News, that Gandolfini’s estate was worth $70 million and that those who come out with the largest shares will be the government, his sisters and his infant daughter. Bemoaning this as an estate planning fiasco these observers claim that the big loser will be the estate generally, his current wife and his son from his first marriage.  While that may be true at some level this also may be simplistic, ignoring the possibility that this may be just what Gandolfini intended or that he may have left many millions to family members outside of his estate. The truth is he probably could have achieved the same result and left more to those family members he intended to benefit and less to the government if he wanted, but the magnitude of the mistake or whether it was a mistake at all is currently unknown.  Whatever else it is this is an object lesson in being thoughtful and careful in one’s estate planning regardless of level of wealth and being explicit in one’s intent.  For the sake of his attorneys, I hope he was and I hope they have that proof in their files.
Here’s what we are being told and how it seems to plays out (I have not seen any document or anything other than news reports which lack detail and require much speculation): 

1.    80% of his assumed $70 million estate, or $56 million, is left to his sisters and 9 month old daughter, the latter in a trust that distributes at 21.  The other 20% goes to his wife, yielding a marital deduction of $14 million.  (I am assuming away the $5.25 million exclusion as either utilized for lifetime gifts or based on the fact that we are
assuming round numbers anyway.)  At a combined federal and state tax rate of about 55% on the taxable $56 million, this means that the government gets $31 million and the entire family shares what’s left, $39
million.  With more careful planning the government’s share could have been reduced, but given that he died at 51 it is not unusual that even wealthy people put off the necessary planning when death seems so remote.
If there were a mistake here it was not foreseeing the inevitability of death if not the timing of it.

 
 
According to a post on their website, this past weekend  The International Consortium of Investigative Journalists published a database purporting to name individuals from around the world using offshore companies and trusts that they claim “will help begin to strip away this secrecy across 10 offshore jurisdictions.”

The Offshore Leaks Database “allows users to search through more than 100,000 secret companies, trusts and funds created in several offshore locales. . . .” According to the site, the Offshore Leaks web app, developed by La Nación newspaper in Costa Rica for ICIJ, displays graphic visualizations of offshore entities and the networks around them, including, when possible, the company’s true owners.

The database includes entities incorporated in 10 offshore jurisdictions:
·        British Virgin Islands
·        Cayman Islands
·        Cook Islands
·        Singapore
·        Hong Kong
·        Samoa
·        Seychelles
·        Mauritius
·        Labuan
·        Malaysia. 
 
According to the site the information comes from two offshore service firms: Singapore-based Portcullis TrustNet and BVI-based Commonwealth Trust Limited (CTL).

The ICIJ points out that using offshore entities is not in and of itself illegal, nor is it indicative of illegal activities.  For those compliant taxpayers desiring confidentiality it must be kept in mind that confidentiality is not airtight and choice of service provider and jurisdiction is critical.


 
 
So if you're like me you're reading the blogs and news reports that says that the estate tax law is virtually unchanged and the chaos predicted last year has not come to pass.  Well, being technical as I am I don't believe all I read without verification.  I pulled up the text of the law--the American Taxpayer Relief Act of 2012 (even though passed in 2013)--and found section 101(c) that tells us that the top estate and gift tax rate is now increased from 35% to 40%, kicking in at $1,000,000 and that there is a technical correction to the DSUEA.  But where does it say that the applicable exclusion is still $5,000,000 plus the inflation increase ($5,120,000 in 2012)?  It is not apparent on a first read without a bit of digging.  But digging does yield pay dirt.

For those who need to trace it out, like me, here you go...Section 101(a)(2) of the 2012 Act says that section 304 of the 2010 Act (the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act) is stricken.  Section 304 of the 2010 Act says that section 901 of the EGTRRA of 2001 shall apply to Code section 2010, among others.  What does section 901 say?  It says, among other things, that the tax provisions in the 2001 Act shall sunset for deaths and gifts after December 31, 2012.  So, put it all together and the applicable tax provisions from the Bush era in 2001--including the $5 million applicable exclusion amount--are now permanent, except the top rate is now 40%.


 
 
David Neufeld, along with Jan Dash of the Nevis law firm Liburd & Dash, just published an article in Offshore Investment magazine describing newly proposed amendments to the Nevis' corporate, LLC and insurance laws.  As draftsman of the Caribbean island's amendments, David provides unique insights to laws that will likely be available to global investors and businesses early in 2013.  While wide ranging, of particular note are the provisions that will place Nevis among those first tier jurisdictions that permit protected cell captive insurance companies to employ the greater protections and flexibility inherent in series LLCs.  Other provisions will strengthen the Nevis LLC's charging order limitations and will add a fraudulent transfer provision modeled on Nevis' highly regarded international trust law.

This project is the latest in David's ongoing work with the government of Nevis, having begun in 1995 as author of the Nevis LLC ordinance.

The article is available on www.DavidNeufeldLaw.com as well as at www.OffshoreInvestment.com 

 
 
In some respects you should want your taxes to go up next year and every year if it reflects higher income.  As a rule of thumb, for every dollar your federal income tax goes up your income will have gone up three to four dollars.  To quote Jimmy Fallon in a currently running TV commercial, who wouldn’t want more money? But it is frustrating (to understate it) when your taxes go up without an increase in your income.   That is the fate that will befall many next year as the revenue raising portion of the Health Care Act kicks in…but there are ways to mitigate it.

Whatever other changes Congress has up its sleeve in either direction (which means even more in a Presidential election year) we know that 2013 will begin with  two additional tax raisers.  There is the additional 3.8% surtax on certain types of investment income and gains (Code section 1411), and the additional .9% Medicare tax for certain earned income (not to mention the excise tax on those without health insurance and on those with too much health insurance…I mean that…I am not mentioning these in this article).  If you wish to view this tax as rational, then the way to explain it is to see it as a way to increase the Medicare contribution made by some higher income taxpayers by either subjecting investment income (i.e. income on capital), currently not subject to the Medicare portion of FICA, to that tax or by increasing the existing Medicare tax on earned income (i.e. income from labor) for those same taxpayers.

ADDITIONAL INVESTMENT INCOME TAX

There are three concepts you need to get a handle on. 
    ·         The first concept is “Modified Adjusted Gross Income” or MAGI for short, although this is one MAGI that bears no gifts.  For the most part this really just means adjusted gross income; the modification to which it refers relates only to those American taxpayers working overseas who are permitted to exclude from income up to $92,900 (as of 2011).  For those working overseas taking this exclusion a portion is added to AGI; for those not working overseas MAGI is just your AGI.

 
 
We are happy to announce that David Neufeld has again been listed on Super Lawyers, a peer-rated listing that is limited to the top 5% of New Jersey trust and estate counsel as determined by Super Lawyers magazine.  This follows closely on the heels of his renewed designation by Martindale-Hubbell as an "AV Preeminent Lawyer," also a peer rated listing, based on ethics and skill.