The expatriation tax provisions under Section 877 of the Internal Revenue Code (IRC) apply to US citizens who have renounced their citizenship and long-term residents (as defined in IRC 877(e)) who have ended their US resident status for federal tax purposes. In 2004, the expatriation rules changed. If you expatriated on or before June 3, 2004 one set of rules apply. In accordance with the significant changes made to IRC 877 by the American Jobs Creation Act (AJCA) of 2004, if you expatriated after June 3, 2004 another set of rules apply.
Expatriation after June 3, 2004
The American Jobs Creation Act (AJCA) of 2004 amends Section 877 of the Internal Revenue Code (IRC), which provides for an alternative tax regime for certain, expatriated individuals. Amended IRC 877 eliminates the tax avoidance criteria for imposition of the expatriation tax on certain types of income for 10 years following expatriation, and creates objective criteria to impose the tax on individuals with an average income tax liability of $127,000 for tax year 2005 (or higher amount for later years) for the 5 prior years or a net worth of $2,000,000 on the date of expatriation. In addition, it requires individuals to certify to the IRS that they have satisfied all federal tax requirements for the 5 years prior to expatriation and requires annual information reporting for each taxable year during which an individual is subject to the rules of IRC 877. Further, expatriated individuals will be subject to U.S. tax on their worldwide income for any of the 10 years following expatriation in which they are present in the U.S. for more than 30 days, or 60 days in the case of individuals working in the U.S. for an unrelated employer. Finally, even if they do not meet the monetary thresholds for imposition of the IRC 877 expatriation tax, the new law provides that individuals will continue to be treated as U.S. citizens or long-term residents for U.S. tax purposes until they have notified the Secretary of the Department of State or of Homeland Security of expatriation or termination of residency. The implementation date of this provision is retroactive and applies to expatriations occurring after June 3, 2004. The expatriation is not effective until the notification and tax satisfaction certifications are filed with the IRS and the Department of State or of Homeland Security.
Form 8854, Initial and Annual Expatriation Information Statement (PDF), has been revised to permit individuals to meet the new notification and information reporting requirements imposed by AJCA. In particular, Form 8854 has been expanded so that it functions as both the initial and the annual expatriation information statements required by AJCA. Revised Form 8854 and its instructions (PDF) also address how individuals should certify (in accordance with the new law) that they have met their federal tax obligations for the five preceding taxable years and what constitutes notification to the Department of State or the Department of Homeland Security.
IRS Notice 2005-36 provides special rules for individuals who file the revised Form 8854 by June 15, 2005. Treasury and the IRS recognize that until the revised Form 8854 was released, individuals who lost U.S. citizenship or terminated long-term resident status after June 3, 2004 did not know how to meet the new notification and information reporting requirements imposed by AJCA. Accordingly, Notice 2005-36 provides that if an individual who loses U.S. citizenship or terminates long-term resident status after June 3, 2004 files the revised Form 8854 by June 15, 2005, the individual will be treated as having met his or her reporting obligations on the date on which the taxpayer provided the requisite notice to the Department of State or the Department of Homeland Security.
Expatriation On or Before June 3, 2004
The expatriation tax provisions (prior to the AJCA amendments) apply to U.S. citizens who have renounced their citizenship and long-term residents who have ended their US residency for tax purposes, if one of the principal purposes of the action is the avoidance of U.S. taxes. You are presumed to have tax avoidance as a principle purpose if:
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Your average annual net income tax for the last 5 tax years ending before the date of the action is more than $124,000, or
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Your net worth on the date of the action is $622,000 or more.
If you meet either of the tests shown above, you may be eligible to request a ruling from the IRS that you did not expatriate to avoid U.S. taxes. You must request this ruling within one year from the date of expatriation. For information that must be included in your ruling request, see Section IV of Notice 97-19. If you receive this ruling, the expatriation tax provisions do not apply.
The expatriation tax applies to the 10-year period following the date of the expatriation action. Individuals that renounced their US citizenship and long-term residents that terminated their US residency for tax purposes on or before June 3, 2004 must file an initial Form 8854, Initial and Annual Expatriation Information Statement. For more detailed information refer to Expatriation Tax in Publication 519, U.S. Tax Guide for Aliens.
CAUTION! Legislation which took effect in 2004 amended sections of the Internal Revenue Code which deal with the Expatriation Tax for individuals who renounced their US citizenship and long-term residents who have ended their US resident status for federal tax purposes after June 3, 2004. Refer to Expatriation after June 3, 2004 above.
What to do if you haven't filed a Form 8854
Individuals that renounced their US citizenship or terminated their long-term resident status for tax purposes on or before June 3, 2004 must file a Form 8854 to comply with the notification requirements under IRC 877. For more detailed information refer to Expatriation Tax in Publication 519, U.S. Tax Guide for Aliens..
Individuals that renounced their US citizenship or terminated their long-term resident status for tax purposes after June 3, 2004 must file a Form 8854 to effect the expatriation tax provisions under IRC 877. Furthermore, pursuant to new IRC 7701(n), until such individuals both files a Form 8854 with the IRS and notifies either the Department of State or of Homeland Security of their expatriation or termination of long-term resident status for tax purposes, such individuals will continue to be treated as if they were still US citizens or residents for tax purposes.
For such individuals that expatriated after June 3, 2004 and have not filed an initial Form 8854 refer to IRS Notice 2005-36, Form 8854 and Expatriation Reporting Rules, for important transition information effective through June 15, 2005.
Also, for individuals that expatriated after June 3, 2004, IRC 6039G requires annual information reporting for each taxable year during which such an individual is subject to the rules of IRC 877. The annual Form 8854 is due on the date that the individual’s U.S. income tax return for the taxable year is due or would be due if such a return were required to be filed.
Form 8854, Initial and Annual Expatriation Information Statement, has been revised to permit individuals that expatriated after June 3, 2004 to meet the new notification and information reporting requirements under IRC 6039G.
For more detailed information on how, when and where to file Form 8854, refer to the Instructions for Form 8854.
What to do if you haven't filed an Income Tax Return
Among the various new requirements contained in IRC 877 (as outlined in the Expatriation after June 3, 2004 section above), individuals that renounced their US citizenship or terminated their long-term resident status for tax purposes after June 3, 2004 are required to certify to the IRS that they have satisfied all federal tax requirements for the 5 years prior to expatriation. If all federal tax requirements have not been satisfied for the 5 years prior to expatriation, even if the individual does not meet the monetary thresholds in IRC 877, the individual will be subject to the IRC 877 expatriation tax provisions.
Individuals that have expatriated should file all tax returns that are due, regardless of whether or not full payment can be made with the return. Depending on an individual’s circumstances, a taxpayer filing late may qualify for a payment plan. All payment plans require continued compliance with all filing and payment responsibilities after the plan is approved.
For more detailed information on what to do if you have not filed your required federal income tax returns, refer to Haven't Filed an Income Tax Return? Here's What to Do.
Significant Penalty Imposed for Not Filing Expatriation Form
The Internal Revenue Service reminds practitioners that anyone who has expatriated or terminated his U.S. residency status must file Form 8854, Initial and Annual Expatriation Information Statement (PDF). Form 8854 must also be filed to comply with the annual information reporting requirements of Internal Revenue Code section 6039G, if the person is subject to tax under Section 877 of the Code. A $10,000 penalty may be imposed for failure to file Form 8854 when required.
IRS is sending notices to expatriates that have not complied with the Form 8854 requirements, including the imposition of the $10,000 penalty where appropriate.
The Instructions for Form 8854 (PDF) provide details about the filing requirements, related definitions and line-by-line instructions for completing the form. Failure to file or not including all the information required by the form or including incorrect information could lead to a penalty.
For further information refer to Notice 2005-36, found in Internal Revenue Bulletin 2005-19 provides legal guidance about the changes to Form 8854 and the Expatriation Reporting Rules.
References/Related Topics
Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.
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