Cross Border Tax News 2022 (Update June 3, 2022)

2
6876



Here you’ll find updates on cross border tax issues for 2021. Please check back often for updates as this page will be revised for new cross border tax news items from month to month.

Update June 3, 2022

On April 7th, 2022 the Treasury inspector general for tax administration issued their report on recommendations to address non-compliance under the Foreign Account Tax Compliance Act (FATCA).

Within their report were recommendations on how to handle the significance of delinquent 8938 reporting by US taxpayers:

In the report they outline that more than 300,000 US taxpayers have failed to properly file form 8938 and potential penalties of $3.3 billion would still be on the table.

Long story short, if you haven’t filed your 8938 forms it’s time to caught up quickly before the IRS starts sending out letters.

Update May 17th, 2022

This week I received confirmation from the competent authority that they are allowing individuals to file late ROTH IRA elections assuming the election under Article XVIII of the Canada-US treaty is not yet “tainted” because of a contribution to the plan after moving to Canada or after the election rules can into place.

You can view the confirmation of the late ROTH IRA election here.

Update May 17th, 2022

Interesting excerpt from the TREASURY INSPECTOR GENERAL FOR TAX ADMINISTRATION where they compare the cost of paper vs. efiled returns. If you do the calculations the extra costs to administer the 1040s alone is over $130,000,000.

They didn’t specifically calculate the difference in cost between efile and paper filed returns, so I spent the time to work out the potential cost savings:

The total additional costs to process paper filed returns is over $230,000,000. Likely worth the transition to more electronic filings especially considering they already have the infrastructure. You can see why CRA moved so aggressively a few years ago with the requirements for Canadians to paper file most Canadian tax filings.

Also, they recommended a priority list of forms to be considered for efile. Some forms that we continue to file manually that should definitely be available for efile include:

  • SS-4 for EINs
  • W7 for ITIN requests
  • 1042-S for payments to non-residents
  • 3520 information returns
  • 5472 forms
  • 8288-B

Given the current backlog of paper-filed returns at the IRS I would expect the digitization of a large percentage of returns be implemented by next year. That being said, I’ve been hopeful before. Only time will tell if they can make this happen.

Update December 5th, 2021

New Tax Change Proposals

As we wind down 2021 the Senate has yet to pass the “Build Back Better Act” and many are skeptical that the Senate can get it done before the end of the year. That being said, many do not think there will be significant changes to the tax provisions contained in the proposals that were passed by the house. Some of these tax changes are as follows:

  • New wealth tax of 3% and 5% on income over $10,000,000 and $25,000,000 respectively
  • Extension of child tax credits through 2022
  • Limit on IRA contributions for IRAs over $10,000,000
  • Extend Net Investment Income Tax to certain active business income
  • 15% minimum corporate tax rates for certain corporations with profits over $1 billion
  • Some new changes to GILTI include
    • reduction of GILTI to 15%
    • changes to GILTI foreign tax credit rules

Running for the kids!

As many of you know I’ll be running as many KMs as I can for the month of December to help raise money for the Children’s Hospital Network. Through the amazing support and donations of my family, clients, friends and network we’ve already raised over $6,500 already.

A huge thank you to everyone that has already supported the kids and their families. As we come into the holiday season we are reminded that not all families share the same fortunes. Some will need to spend time in the hospital over the holidays and we should do our best to help support these families through tough times. If you haven’t yet donated please do so. You can read more and donate here:

http://kmforkids.ca

To everyone that has already supported the cause, thank you!

Featured on Global News

I’ve recently been featured on Global News via one of their financial newsletters. It’s a short Q&A, however given it related to US social security received by a Canadian resident it may be worth a read. You can read the article here.

Update November 10th, 2021

The IRS released Federal income tax rates and brackets today. The 2022 rates and brackets are as follows:

For married filing jointly:

  • 10%: Taxable income up to $20,550
  • 12%: Taxable income between $20,550 to $83,550
  • 22%: Taxable income between $83,550 to $178,150
  • 24%: Taxable income between $178,150 to $340,100
  • 32%: Taxable income between $340,100 to $431,900
  • 35%: Taxable income between $431,900 to $647,850
  • 37%: Taxable income over $647,850

For married filing single:

  • 10%: Taxable income up to $10,275
  • 12%: Taxable income between $10,275 to $41,775
  • 22%: Taxable income between $41,775 to $89,075 
  • 24%: Taxable income between $89,075  to $170,050 
  • 32% Taxable income between $170,050 to $215,950
  • 35%: Taxable income between $215,950 to $539,900
  • 37%: Taxable income over $539,900

Other items announced include:

Standard deduction for MFJ, MFS/Single and Head of household taxpayers are $25,900, $12,950 and $19,400 respectively.

Update October 28, 2021

Crossing the 49th Tax and wealth management podcast is officially up!

Episode 6 just went live and I finished filming episode 7 yesterday. To keep current on cross-border tax and financial planning matters please make sure to follow and subscribe to the podcast on the following channels:

On Thursday the White house unveiled their “Build Back Better” plan that includes the following proposed tax changes:

  • Raising the global minimum tax to 15% to ensure US companies with international operations and income are “fairly” taxed
  • Big budget injection to the IRS of $400 Billion to help the department with enforcement of tax debt, collections and tax audits
  • A 15% minimum tax on corporations that earn over $1 Billion dollars of profits per year.
  • New tax on “wealthy business owners”
  • New personal surtax of 5% on income over $10 million and 3% on income over $25 million
  • New tax on corporate share buybacks

Update January 23, 2021

Updates on 3520 and 3520-A filings for TFSA accounts – Our colleague at Polaris tax, Max Reed has posted an update on an IRS appeals resolution regarding TFSA accounts and 3520 and 3520-A filings. The report outlines that the IRS agreed with the view that TFSAs held by US tax residents should not be considered “foreign trusts” for purposes of these filings, and therefore penalties assessed could be abated. This is great news for those that are currently filing 3520 and 3520-A disclosures for their TFSAs.

Note, however, although this does confirm that 3520 and 3520-A are not required for TFSA holdings, the income earned within the TFSA is still taxable for US purposes. Therefore if you don’t have enough “passive foreign tax credits” from other Canadian source investment income you’ll likely end up paying some additional US tax on your TFSA income going forward.

Increase in stimulus payments to Americans to $2,000 – Under the new President Biden administration, US stimulus payments will be increased to $2,000 and include $600 per dependent. Stimulus payments are subject to income thresholds that start at $87,000 for single taxpayers and $124,500 for married couples.

New proposed Biden tax planPresident Biden’s tax plan is currently being rolled out and we’ve outlined some of the main changes in the linked article above. Some notable changes include:

  • tax increases on income above $400,000
  • payroll tax increases on high-income earners
  • repeal of high-income earner 2017 Tax Cuts and Jobs Act components
  • increase the highest marginal tax rate to 39.6%
  • increase the capital gains tax rate to 39.6% for income above $1,000,000
  • increase in the dependent child tax credit to $3,000
  • new clean energy tax provisions
  • re-established first-time homebuyers tax credit
  • revise estate and gift tax exemptions back to 2009 levels

Update November 28, 2020

New Medical mileage rates announced

The IRS recently released new instructions related to the Itemized deductions schedule A. Other than some changes the qualified contributions the only other change was related to IRS mileage rates. For 2020 the mileage deduction rate for medical related travel is reduced to 17 cents per mile. The mileage rate for volunteer services remain at 14 cents per mile.

New Podcast episode released

I’ve released a new podcast episode outlining the issues around and how to complete form T1135 – Foreign income verification reporting for Canadian tax residents. For those that are interested I’ve also written a comprehensive guide to T1135 reporting here.

New Canadian Wealth Tax Vote

I recently wrote on the potential for the Canadian government to establish a new wealth, estate or inheritance tax to help fund the current and future spending deficits.

On November 16th the Conservatives, Quebec Bloc and the Liberals voted down the NDP’s proposal to apply a 1% wealth tax on those with a new worth in excess of $20,000,000. We expect further revised proposals to come forward in the coming months including estate and inheritance tax proposals.

Where’s the second stimulus cheque payments?

We’ve updated the blog on the progress of the second US stimulus package and prospective stimulus payments. Not surprisingly the Republicans and Democrats are having a tough time agreeing on a relief bill that will satisfy both sides. We’re staying tuned for any new news on a possible stimulus bill.

For some great 2020 year-end tax planning tips please see here.

Update November 21, 2020

I have a few interesting things to report for November, so let’s get started…

Once again, big thanks to everyone on the Americans in Canada Facebook group for their support and engagement. We are now over 5,700 members strong and growing fast.

I’ve just started a dedicated Facebook group for American Doctors in Canada. If you’re an American Doctor living in Canada or thinking of moving to Canada please join our private group for more information on tax and financial planning updates.

The IRS has begun their enforcement of section 965 transfer tax for those that were affected by the 2017 tax legislation. The IRS will be targeting those that they believe have not properly complied with section 965 filing obligations or those that have incorrectly calculated 965 inclusions. You can read more about the initiative here. Note that only Americans living in Canada that are owners of Canadian corporations may be affected by section 965 transition tax.

New IRS audit program has been announced to review compliance requirements by Americans that have control or beneficial interest in foreign trusts. In many cases Americans with an interest in a foreign trust are required to report the trust activities on form 3520 and 3520-A. Penalties for none reporting can be significant for those that have not properly disclosed. You can view an example of a 3520-A penalty notice here. A $35,000 is nothing to take lightly.

The IRS continues to focus on US expats all over the world with respect to section 877 and 8854 income tax filings. You can read a great report here on what they’ve uncovered so far.

The IRS has removed a previous version of the delinquent international reporting form program from their website. Now they seem to be suggesting that taxpayers with late 5471, 3520, 3520-A and other international compliance forms file the forms and include a reasonable cause statement to help in the abatement of a potential penalty. We are awaiting additional information on these procedures from the department.

It’s been a long time since the first episode of the podcast, but I’m working on the second episode of our Expat Tax and Financial planning podcast. To subscribe and be updated when it’s live please visit the podcast here on our site or at Apple Podcasts here.

US Expat Tax in Canada Podcast

Update September 20, 2020

Over 2,500 leaked documents from the ICIJ have raised concerns over how global big banks have helped criminals move and launder money throughout the financial system.

FinCEN (the US financial crimes investigation network) collects information on transactions made not only in the US but also abroad.

Similar to the findings a few years ago related to Panama Papers, many are skeptical that anyone material will come of this investigation. Time will tell, however it’s about time we take the billions of dollars of criminally earned money seriously. The incentives for banks to help with these transactions is too great and we cannot rely on banks to make proper ethical decisions when faced with these types of clients.

You can read more on the ICIJ report here.

 

Update September 18, 2020

Yesterday, Expat advocate lawyer Monte Silver showcased the US government’s reply (transition brief and GILTI brief) to his final brief in support of changes to the transition and GILTI tax legislation passed a few years ago (see original submission here).

On our Expat Facebook page Monte stated:

“Yesterday, the government filed their final reply briefs in both the Transition and GILTI cases. That is it. Now we wait for the two judges to decide our fate
I read both briefs and personally, I would be ashamed to submit such documents to the court. This case should have settled long ago.”
 

Update September 12, 2020

Canadian and US tax deadline extensions

CRA has further extended the Canadian tax filing deadlines to September 30th, 2020. However note that CRA has confirmed that:

“Penalties and interest will not be charged if payments are made by the extended deadlines of September 30, 2020. This includes the late-filing penalty as long as the return is filed by September 30, 2020 (related to the 2019 tax return for individuals and the tax returns for trusts and corporations that would otherwise be due on or after March 18, 2020, and before September 30, 2020).”

Also note that we continue to experience delays in tax filings at both CRA and the IRS as a result of the Covid lock down.

We strongly suggest that if you have yet to file your 1040 US income tax return and/or FBAR filings you do so as soon as possible. The October 15th filing date will come quicker than most anticipate. And although there may be some relief beyond October 15th, 2020 for those that have not filed, it’s never worth the hassle to have to fight with the IRS over penalty abatement.

US Expats continue to receive US stimulus payments

US expats that have filed a US tax return and meet the income thresholds were eligible for the $1,200 US stimulus payment. Most of our clients who were eligible have now received their stimulus cheques. If you were eligible and have not yet received your payment please review the eligibility requirements here.

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:

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

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.

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

LEAVE A REPLY

Please enter your comment!
Please enter your name here