COOK ISLANDS ASSET PROTECTION TRUSTEE SUBJECT TO NEW YORK COURTS JURISDICTION

Southpac is a trust company that operates in several non-U.S. jurisdictions, including the Cook Islands and Nevis. Not by coincidence, the Cook Islands and Nevis have aggressive asset protection laws that seek to attract international asset protection trusts.

A basic planning tenant for a non-U.S. asset protection trust is to use a trust company that has no connection with the U.S., so that a U.S. court cannot obtain jurisdiction over them to compel them to turn over assets in their control. Thus, for example, the use of affiliates of banks and trust companies with U.S. offices is discouraged.

Unfortunately for Southpac, a recent New York Supreme Court case found it to be subject to New York jurisdiction in regard to a Cook Islands trust it is administering as trustee. Generally, in personam jurisdiction in the U.S. can be avoided by restricting contacts with that jurisdiction so that they do not cross the threshold of minimum contact.

Southpac believed it did not have the requisite contacts in New York. In particular, Southpac noted that it:

1) does not own, lease or have any other interest in any real property located in New York; 2) does not have an office in New York; 3) does not have a bank account in New York; 4) does not have any officers or employees in New York; 5) does not have a telephone number in New York; 6) has never filed a lawsuit in New York; 7) has no investments in any business located in New York; 8) is not licensed to do business in New York; 9) has never warehoused or stored inventory or supplies in New York; and 10) does not advertise in New York.

The case at issue involved whether the settlor of the trust fraudulently conveyed assets to the trust so as to defeat the interests in those assets of the settlor’s divorcing spouse. The court’s opinion notes several facts that it believed creates jurisdiction for Southpac in New York. It it is not clear which particular items were critical for the finding, and whether any one of them was deemed sufficient or only all together gave rise to the requisite minimum contacts. These items included:

A. That the transferred assets were originally located in New York;

B. An allegation that Southpac participated in the fraudulent conveyance;

C. That Southpac enlisted the aid of the settlor’s New York broker;

D. That Southpac has an interactive website which invites and promotes fraudulent conveyance transfers; and

E. The transfer occurred after an action with the settlor’s spouse had already commenced.

Some comments on the case:

A. If the mere existence of a website by a business is enough to subject the owner to personal jurisdiction in any jurisdiction with access to the Internet, one has to question whether the concept of in personam jurisdiction has any limitations in today’s world.

B. This is only a lower court case, and thus has little precedential value elsewhere. The finding is subject to appeal and possible reversal. Note that in New York, the “Supreme Court” is not the highest court in the state but instead is a lower court only.

C. Even if it is subject to New York jurisdiction, unless the trustee has assets in the U.S. that a New York court can reach or unless it has offices in jurisdictions that will enforce foreign (i.e., New York) judgments, as a practical matter there may be little the New York court can do to enforce its decrees against the trustee.

D. As a general matter, foreign asset protection trusts work best if they are established at a time when there are no significant pending or current creditors. If established when creditors are already on the scene, they are less effective and may create problems for those who assist in their creation.

Weitz v. Weitz, 2012 NY Slip Op 30767(U), N.Y.Sup.Ct. No. 016811-08 (March 22, 2012)

 

FOURTH DCA: A TRUST CONTESTANT MAY NEED TO CHALLENGE THE WILL, TOO [FLORIDA]

[This post was authored by Sean Lebowitz, Esq. of our office]

In Pasquale, Jr. v. Loving, et. al.,* the Fourth District Court of Appeal determined that a trust contestant must also challenge a will if the trust is incorporated by reference into the will. This is an important lesson for probate and trust litigators.

In Pasquale, the Plaintiffs were served with Notices of Administration and filed a Complaint with the Probate Court within the three month time limitation imposed by Florida Statute § 733.212. The Complaint did not specifically reference the last Will, and instead, focused on several Trust instruments which Plaintiffs were attempting to overturn for reasons of lack of testamentary capacity, undue influence and tortious interference.

The Defendants responded with Motions to Dismiss seeking the Court to dismiss, with prejudice, the Plaintiffs’ Complaint because it failed to attack the last Will within the requisite time frame and doing so was required since the Trust was incorporated by reference into the Will. In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will. The Probate Court agreed and granted Defendants’ Motions to Dismiss, with prejudice.

The Fourth District Court of Appeal reversed the Probate Court’s dismissal with prejudice. The Appellate Court agreed with the Defendants’ legal reasoning and arguments – that a trust contestant is required to timely object to the Will if the trust is incorporated by reference into the Will. However, the Appellate Court found under the facts of the case that the Plaintiffs’ Complaint contained enough language that it sufficiently constituted a will contest even though the last Will was never specifically referenced.

While, as a factual matter, the Appellate Court’s decision may be at odds with the strict limitations imposed by the Florida Probate Code as to the requirements to object to the validity of a Will, the Court appeared lenient in interpreting the Plaintiffs’ pleading in order to undo the harsh remedy of a dismissal with prejudice. The lessons learned for probate and trust litigators seeking to challenge a trust instrument are to (a) determine in a pour-over situation whether an action to challenge the Will is also needed by reason of incorporation by reference of the trust in the Will, and (b) to always be mindful of the time limitations to contest a Will which may shorter than the limitations relating to a trust challenge.

 

*Disclaimer: This law firm represents the Appellee/Defendant, CitiTrust, in its capacity as Personal Representative and Trustee in the probate and trust litigation.

Pasquale, Jr. v. Loving, et. al., 2012 WL 933030

SOME DISCLAIMER DOCTRINES YOU MAY NOT KNOW MUCH ABOUT

As a general rule, a disclaimer of property by a recipient results in the property passing under state law or an applicable instrument as if the disclaimant predeceased the transfer to him or her. A recent article discusses two legal doctrines that may apply, if the disclaimed interest is a current  income interest in a trust or a life estate in property. These two doctrines are not well known. Let’s see how these apply in the circumstances of a life income beneficiary of a trust disclaiming his or her income interest.

DOCTRINE OF ACCELERATION. This doctrine provides that if a prior interest is renounced or disclaimed (here, a current income interest), succeeding interests are accelerated, except when the circumstances manifest a contrary intent. Normally, then, when the lifetime interest holder disclaims, the remaindermen immediately succeed to the interest provided for them in the trust that would arise at the normal termination of the lifetime interest (e.g., based on what would occur at the death of the lifetime interest holder).

A circumstance when the succeeding interest may not be accelerated under the doctrine is a life estate to Steve, remainder to Karen, but if Karen is not then living, to George. In normal circumstances Karen would not be entitled to the property unless she survived Steve. If the determination date is moved up, George is eliminated even though Karen may not in fact survive Steve. Some courts may determine it inappropriate to accelerate Karen’s interest and thus cut out George just because Steve disclaimed his interest.

DOCTRINE OF THE NEXT EVENTUAL ESTATE. It is possible that with a disclaimer there is a gap in identifying who is entitled to income. For example, assume a trust provides that Steve is entitled to the income for life, and Karen gets the remainder after Steve’s death but not before she attains age 21. Steve disclaims his interest. Assume that under the Doctrine of Acceleration, Karen’s interest in the income is not accelerated.

There is now a gap as to who receives the income. Possible answers include the grantor of the trust, intestate takers, the residuary legatee, or perhaps the income is accumulated until Karen is 21. The Doctrine of the Next Eventual Estate, when applicable, generally provides that when income is not disposed of and there is no direction for its accumulation, it would pass to the persons entitled to the next eventual estate. Thus, in those states where the Doctrine is applicable, Karen would be entitled to the income after Steve’s disclaimer even if she was not yet 21.

STATE LAW. The application of these doctrines is state specific, and they are often incorporated into state property law statutes. In any case, they should be within the knowledge and lexicon of estate planners.

Unintended Effects of Disclaimers of Income Interests, by Jay A. Soled and Mitchell Gans, WG&L Estate Planning Journal, May 2012

GIANT SUCKING SOUND REPORTEDLY HEARD IN DOWNTOWN MIAMI

Back in the 1990’s, presidential candidate Ross Perot urged voters to listen for the “giant sucking sound” of American jobs heading south to Mexico should NAFTA be ratified. Interestingly,  a giant sucking sound was reportedly heard in downtown Miami earlier this week as nonresidents sucked their deposits out of U.S. banks in response to the latest information reporting requirements imposed by the IRS.

In T.D. 9584, the Treasury Department finalized regulations that have been kicking around since  2002. Under the final regulations, interest paid on U.S. bank deposits of nonresident alien individuals who reside in most countries that have an exchange of information treaty or agreement with the U.S. will have that interest income reported to the IRS. While the U.S. only automatically shares that information with one country (Canada), the information is now only one step away from being released to the home country governments of these depositors upon request.

The reporting commences for interest paid on January 1, 1013, and thereafter. Banks will report to the IRS on Form 1042-S, and can rely on residence information provided to the bank on Form W-8BEN by the depositor.

Not all countries with an exchange of information agreement will have their residents subjected to this reporting. Only those who Treasury further finds to have adequate confidentiality laws and practices will be subject to this. Rev.Proc 2012- 24 provides a listing of the applicable countries.

Note that the reporting only applies to nonresident alien INDIVIDUALS, and not foreign corporations or other entities.

Residents of countries not on the information sharing agreement list are presently breathing easy. However, the Treasury Decision notes that banks can elect to report interest payments on ALL of their nonresident alien individual depositors if they want, so as to save them the trouble of figuring out which depositors are subject to reporting! Thus, residents of non-sharing countries can get caught up in this reporting. If reporting is an issue for such depositors, then they should seek assurances from their bank that such voluntary reporting is not occurring.

Let’s talk policy for a moment. Capital, and the jobs, economic growth and prosperity that accompany capital, flow to where it is treated best. For many years, the U.S. has recognized that not taxing bank deposit interest of nonresidents, and not reporting such interest income to their home countries, has incentivized depositors to put their money into U.S. banks and branches. For both legitimate reasons (e.g., concerns about kidnappings and home country violence, general privacy concerns, and fear of oppressive or corrupt governments), and non-legitimate reasons (e.g., home country tax evasion), there are significant deposits that are here only because of lack of taxation and lack of reporting. With one Treasury Decision, the Treasury Department has reversed this policy for the sake of being able to garner reciprocal disclosures from foreign governments for U.S. persons keeping money abroad. At some point, the benefits of increasing U.S. tax revenues by forcing the disclosure of every last dollar abroad by every nefarious tax evader will be outweighed by the lost capital and opportunity costs, and compliance costs, of an oppressive reporting and compliance regime. Between the egregious FATCA reporting regime that is presently being phased in, and this type of reporting, that line has likely been crossed.

This new reporting has created quite a stir in areas with significant foreign deposits, such as South Florida. Concerns are rampant about the pending withdrawal of deposits due to this reporting. Per an article this week in the Fort Lauderdale Sun-Sentinel, Senator Marco Rubio has introduced legislation to override the new Regulations – most efforts to curtail the regulatory state fail, but perhaps Senator Rubio can rally enough support to quash this reporting before the deposits are all whooshed away.

TD 9584. Guidance on Reporting Interest Paid to Nonresident
Aliens & Rev.Proc. 2012-24.

LESS THAN 9 MONTHS LEFT TO MAKE $10 MILLION OF TAX-FREE GIFTS

[This posting was authored by my partner, Jordan Klingsberg]

This may be the best time to transfer a large amount of wealth without transfer taxes. Unfortunately time is running out on this short term opportunity because the current generous gift-tax exemptions are scheduled to expire at the end of 2012.                       

The lifetime exemption from Federal gift tax has been at its highest level the last two years. During 2011 and 2012 individuals have been able to transfer up to $5 million, or $10 million per married couple, without Federal gift tax ($5.12 million/$10.24 million in 2012). Now may be the best time to take advantage of this increased exemption for the following reasons:
   
     1.    Unless Congress and the President come to a compromise, the 2010 Tax Act will automatically expire at the end of 2012. The current lifetime estate and gift tax exemptions of $5 million plus for individuals will drop to only $1 million. The Federal estate tax rate will also increase to 55%.

     2.    In many instances, valuation discounts are allowed for closely held business interests. There exists some concern, however, that Congress could pass legislation that effectively would eliminate such discounts and other estate planning techniques.

     3.    We are presently experiencing historically low interest rates. These rates combined with depressed asset values, particularly for real estate, enhance many estate planning techniques.

     4.    The current law allows the same generous exemptions for "generation-skipping transfers" so gifts can be made to trusts for grandchildren as well as children.

     5.    Many of the transfer techniques that allow a donor to take advantage of gift, estate, and generation skipping tax savings may also provide an added level of asset protection for the assets.

To use up part or all of his or her gift tax exemption, a donor must make a completed gift of the assets, either outright or through a trust that is irrevocable, and without a retained interest. This may not be an attractive option if there is a concern that the donor may need the gifted funds in the future. Donors should be aware, however, that there are methods that may allow them to both take advantage of their gift tax exemption and retain some access to the transferred assets. One such technique is having one spouse set up an irrevocable trust for the benefit of the other spouse. This planning has its own benefits and drawbacks.

The increased lifetime exemption from gift tax effectively provides a donor and his or her spouse with the ability to remove $10 million plus, and all future appreciation on those assets, from their taxable estates. However, it is important to act now to take advantage of the current exemption levels and other laws that are set to change soon. Given the anticipated level of last minute planning activity anticipated this year, interested donors are best advised to consult with their estate planning counsel sooner rather than later.

USING TESTAMENTARY POWERS OF APPOINTMENT TO CREATE INCOMPLETE GIFTS–THE IRS THROWS DOWN THE GAUNTLET

In Chief Counsel Memorandum 201208026, the IRS has indicated its hostility to the use of testamentary powers of appointment to avoid gift tax through the creation of incomplete gifts in many circumstances.

Facts. Two donors transferred property to a trust. Their adult child is the sole trustee. The trust beneficiaries are the donors' children, other lineal descendants, and their spouses. The trust is irrevocable, and the donors have no power over income or principal. However, they do have testamentary limited powers of appointment. The trustee has absolute and unreviewable discretion to administer the trust for the beneficiaries or a charitable organization.

The Issue. Whether the retained testamentary powers of appointment resulted in incomplete gifts. More particularly, did the grantors depart with sufficient dominion and control over the transferred property to constitute a completed gift?

Treas. Regs. § 25.2511-2(b) provides the general rule as to what is a complete (or incomplete gift). It provides:

As to any property, or part thereof or interest therein, of which the donor has so parted with dominion and control as to leave in him no power to change its disposition, whether for his own benefit or for the benefit of another, the gift is complete. But if upon a transfer of property (whether in trust or otherwise) the donor reserves any power over its disposition, the gift may be wholly incomplete, or may be partially complete and partially incomplete, depending upon all te facts in the particular case.

Who Cares? Before diving into the issue, the question is who is affected? Using a power of appointment to create an incomplete gift is a popular planning device that allows a transfer of assets to an irrevocable trust without incurring a current gift tax. It is heavily used in asset protection trust planning - that is, to move assets into a trust that is protected against the donor's creditors. This protection may arise from general creditor protection principles as an irrevocable transfer that does not otherwise run afoul of fraudulent conveyance concerns. Or perhaps it involves a transfer to a creditor protection trust in a state or foreign jurisdiction that provides explicit creditor protection for the grantor, even if the grantor retains a discretionary term interest in the trust. Anyone who has used a testamentary power of appointment to avoid a current gift on such transfers has cause for concern, since what was thought to be a nontaxable transfer may now be a taxable gift.

IRS Methodology. The CCM analyzed the income and remainder interests separately. The CCM concluded that the powers of appointment only affect the remainder interests. They have no impact on what beneficiaries will receive distributions during the term interest nor which beneficiaries will receive distributions. Therefore, the portion of the gift relating to the term interest is complete.

What About Treas. Regs. §25.2511-2(b)? A major source of authority that a retained testamentary power of appointment creates an incomplete gift is Treas. Regs. §25.2511-2(b). That Regulation provides:

…if a donor transfers property to another in trust to pay the income to the donor or accumulate it in the discretion of the trustee, and the donor retains a testamentary power to appoint the remainder among his descendants, no portion of the transfer is a completed gift. On the other hand, if the donor had not retained the testamentary power of appointment, but instead provided that the remainder should go to X or his heirs, the entire transfer would be a completed gift.

This language is clear, at least if the donor as the only term income beneficiary. However, in the CCM, the donors had no retained interest in the term interest. Presumably, this was enough to distinguish away the Regulation, although the Chief Counsel Memorandum did not discuss the application (or nonapplication) of the Regulation.

But is failing to have a retained discretionary income interest in the grantor enough of a fact change to warrant the rejection of the Regulation's incomplete gift finding? On the one hand, one can argue yes. Looking at the term interest, if the donor is the sole discretionary income beneficiary, at the time of the gift it can be said with certainty that nothing will be going out to third parties during its term, so there should be no gift. While accumulated income will eventually go to the remaindermen, the remainder interest is clearly incomplete per the testamentary power of appointment. If the grantor is not the beneficiary of the term interest, then a different result like the CCM may be called for. Thus, there is an argument that the identity of the term interest beneficiaries is relevant to this analysis. However, it would seem that these matters go more towards the value of what is given away (i.e., the AMOUNT of the gift) rather then retained dominion and control (i.e., whether the gift is complete) since in either situation the grantor is not making the decisions on distributions during the term interest.

On the other hand, the Regulation provides that if there was no testamentary power of appointment, there is still a gift of the "entire transfer." The retained interest of the donor is ignored - but again, it may enter into the value of the gift. Since in that situation there is a gift of the "entire transfer," one can craft an argument that it is not the retained interest of the grantor that is relevant to a complete or incomplete gift - instead it is ONLY the presence or absence of the testamentary power of appointment that dictates whether there is a completed gift. Stated another way, the retained donor interest did not avoid a gift of that portion of the trust when there was no testamentary power of appointment, so it appears to be irrelevant to the completed gift analysis.

This retained interest of the grantor factor is relevant not just for the facts of the Chief Counsel Memorandum, but as to many asset protection trusts when the donor retains a discretionary interest in income and/or principal during the term interest, along with other beneficiaries. Since there are now other beneficiaries that share the term interest with the donor, is that enough to create a completed gift notwithstanding a testamentary power of appointment? These facts fall inbetween the Regulation where the donor is the only term interest beneficiary, and the CCM where third parties are the only term interest beneficiaries. Which analysis controls - the incomplete gift conclusion of the Regulation or the complete gift conclusion of the Chief Counsel Memorandum?

The Real Kick in the Teeth - Section 2702. While the term interest may constitute a gift under the IRS analysis, the CCM advises that the gift of the remainder interest is incomplete. This means that the taxable gift is only of the portion of the value of the transferred property allocable to the term interest - right? Well, if the trust beneficiaries are family members of the donor, then, according to the Chief Counsel Memorandum, 100% of the value of the transferred property is taxable - ugh!. The Memorandum provides:

Generally, under § 2702(a)(2), the value of any retained interest which is not a qualified interest shall be treated as being zero. Section 25.2702-2(a)(4) provides that an interest in trust includes a power with respect to a trust if the existence of the power would cause any portion of a transfer to be treated as an incomplete gift. Accordingly, under § 25.2702-2(a)(4), the Donors' retained testamentary powers are interests, and the value of their retained interests is zero. Therefore, the value of the Donors' gift is the full value of the transferred property.

What We Know. The CCM raises a lot of questions. Whether the analysis is correct under its facts, and whether the holding will also apply when the grantor also has a retained discretionary interest during the term period may require a court determination.

What we do know is that relying on a testamentary power of appointment to create an incomplete gift is more risky than it was before, except if the only term beneficiary is the grantor. Planners should include some other method to bolster the incomplete gift status. Possibilities of additional methods include a lifetime limited power of appointment in the donor or a retained power to veto trust distributions - but such powers should be squared with creditor protection objectives and relevant state law, and grantor trust rules if those are an issue.

Chief Counsel Memorandum 201208026

JUDICIAL MODIFICATION OF TRUST BARRED BY TRUST TERMS [FLORIDA]

More often than not, the resolution of a trust dispute involves a settlement agreement with changes made to a trust instrument. Such modifications may be accomplished under provisions of Florida’s Trust Code (Fla.Stats. Chapter 736) that allow the trustee and beneficiaries, or the courts, to modify a trust agreement because it is in the best interests of the beneficiary, to accomplish a grantor’s intent, or for other appropriate purposes.

What if the trust instrument contains a provision that bars a court from modifying the trust terms - can this be used to bar a court modification?

In a recent Florida court case, the answer was yes. In that case, the court reversed a trial court that had approved a settlement agreement modifying a trust instrument when the the trust included a clause that read to “the extent permitted by law, I prohibit a court from modifying the terms of this Trust Agreement.”

Does this mean that such a clause will always function to divest a court (or the trustee and beneficiaries) of the ability to modify the terms of a trust? The answer to that is no.

Chapter 736 has numerous provisions relating to the ability of a court or interested parties to modify a trust. The provisions are fairly specific about when the terms of a trust that prohibit a modification will be given effect, and when it will be ignored. Many of these provisions turn on when the trust instrument was created.

The provisions are too many and detailed to describe in depth here. Interested readers should examine Fla.Stats. §§736.0105(2), 736.04115(3)(b), 736.0413, 736,0415, 736.0416, and 736.0412(4)(b).

Bellamy v. Langfitt, McMerty, and Northern Trust N.A., 37 Fla.L.Weekly D360 (3rd DCA, February 8, 2012)

DONEE GIFT TAX LIABILITY OF A TRUST–WHO MUST PAY THE TAX?

A donor makes a gift to a grantor retained income trust (GRIT). Gift tax is due on the gift, but is not paid by the donor. The IRS seeks to impose transferee liability on the gift recipient, and collect the tax liability from that recipient.  However, at the time the IRS seeks to collect, the trust has already terminated and paid its principal out to the remaindermen. Who, then, is responsible for the tax as a transferee? Is it the income beneficiary, the trustee, the remaindermen?

In a recent District Court case, the court determined that it was the income beneficiary who should bear the transferee liability. Is that the proper result? I don’t think so, but that is based on practical aspects since there does not appear to be much precedent on the issue.

Code §6901(a)(1)(A)(iii) imposes the transferee liability on the “transferee” of property. Presumably, the trust corpus would be used to pay the tax if the trust remained in existence. The court noted as much when it provided that “gift taxes should have been paid from the corpus of the trust at the time it became clear that the donor…would not pay them.”

If the trust has terminated, then who is the transferee? The court could see “no reason why the definition of a donee for a gift tax exclusion should differ from the definition of a donee for the purposes of gift tax liability.” The court found that for purposes of Code §2503(b) and annual gift tax exclusion, the beneficiaries of the trust are considered the donees. This narrows the field of transferees to the beneficiaries. This is then further narrowed to the income beneficiary and not the remainder beneficiaries since such gifts only apply to present interests and not future interests.

The court further noted that it was the income beneficiary who benefitted from the gift to the trust, per its income interest. The remaindermen held only an uncertain interest that could have been depleted, and thus should not be considered the donees.

Here are my concerns with holding the income beneficiary responsible:

a. The distinction between present and future gifts under Code §2503(b) should have nothing to do with who is a transferee in this circumstance. That distinction arises by the express language of Code §2503(b)(1) which excludes from its reach “gifts of future interests,” and thus only has relevance to determining the scope of the exclusion from taxable gifts.

b. Since the initial gift went into corpus, one would think that the remaindermen, who ultimately received the corpus, should bear the transferee liability.

c. At worst, the increase in income actually received by the income beneficiary attributable to the gift should be computed, as well as the amount of the gift distributed to the remaindermen as corpus (by some type of analysis of appreciation or depreciation in corpus that occurred after the gift was received and before the distribution out of the trust to the remaindermen). Then, the income beneficiary and the remaindermen should bear the tax liability pro rata to the amounts of the gift effectively received by each. Since the remaindermen end up receiving corpus attributable to the gift, why should they not have to bear some part of the gift tax liability?

d. What would have happened if the gift tax sought from the income beneficiary exceeded the additional income generated for the income beneficiary from the gifted property? The case gives no indication whether this occurred here. Presumably, the income beneficiary’s liability would be limited to this increase in income received, but the case does not tell us. And if that limit sets in, can the IRS then proceed against the remaindermen for the remaining portion of the tax? It would appear not, based on the theory of liability espoused by the court’s opinion.

By the way, did you know that if a donor has an unpaid gift tax liability, and made multiple gifts to multiple recipients, the IRS can collect the total gift tax from any one or more of them (up to the amount of the gift he or she received)? That is, each donee is potentially on the hook for all the gift taxes incurred by the donor that year, and not just for the taxes attributable to the gift that donee received (although the maximum amount of tax liability of a donee is limited to the value of the gift he or she received).

U.S. v. MacIntyre, 109 AFTR 2d Para. 2012-624 (DC TX 3/28/12)

A COMMON MISCONCEPTION ABOUT INCOME TAX TREATIES

The U.S. is a party to numerous income tax treaties with various countries. These treaties provide numerous special provisions that exempt or reduce certain types of income from taxation.

Many times, U.S. citizens will note provisions of a treaty that appear to reduce their U.S. income tax. This was the case for Christina Le Tourneau, who was a U.S. citizen residing in France who worked as a flight attendant on international flights. She read Article 15, Paragraph 3, of the U.S. – France treaty, which provides: “Notwithstanding the preceding provisions of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised as a member of the regular complement of a ship or aircraft operated in international traffic shall be taxable only in that State.” Since she was a resident of France, she sought to apply this provision to avoid U.S. income tax – asserting that only France had income tax jurisdiction over her income from that employment.

What Ms. LeTourneau did not understand is that these provisions will in most cases not operate to allow a U.S. citizen to avoid U.S. income tax on any of his or her worldwide income. Instead, such a provision will operate only to exempt a resident of France who is not otherwise a U.S. citizen or income tax resident from being taxed by the U.S. on this type of income.

Indeed, the treaty specifically includes the typical general exception to the treaty provisions benefitting U.S. citizens and resident aliens as to U.S. tax. Article 29, Paragraph 2 reads: “Notwithstanding any provision of the Convention except the provisions of paragraph 3, the United States may tax its residents, as determined under Article 4 (Resident), and its citizens as if the Convention had not come into effect.”

Thus, while tax treaties may provide many benefits to U.S. persons as to reducing income taxes imposed by the treaty partner country, treaty exemptions, exclusions and rate reductions will rarely apply to reduce U.S. income taxes otherwise imposed on them.

Christina J. LeTourneau, TC Memo 2012-45