Renouncing U.S. citizenship after U.S. tax reform

Editor’s note: This is an updated version of a story that first ran in 2016.

The new U.S. tax rules are likely to increase the number of Canadian-resident U.S. citizens who want to renounce. U.S. tax reform did not change the rules around renunciation much, but it did expand the category of people who can renounce U.S. citizenship without paying an exit tax.

The reason: the U.S. estate and gift tax threshold has more than doubled since last year and is now US$11.2 million per U.S. citizen. This allows a U.S. citizen to reduce his or her net worth significantly to get under the U.S. exit tax threshold, meaning most U.S. citizens in Canada should be able to renounce without paying the exit tax. Renouncing is a personal decision, but there are a number of general pros and cons. Consider them first.

The pros and cons of renouncing U.S. citizenship

Put simply, the pros are:

• Form-free living. You are rid of the complex annual U.S. filings.
• Freedom from complex U.S. tax rules. There is no upside to being taxed by two countries. This is especially true if you own a business, since the new U.S. tax rules make everything more complex.
• No problems at the border. With proper advice, most people will be able to travel to the U.S. without issue after renouncing.
• No taxes on renouncing. With proper advice, most people will not have to pay taxes as a result of renouncing.
• Protection from future legal changes. The situation for those residing outside the U.S. may get worse. Renouncing now insures against this risk. As the recent U.S. tax reform shows, things can indeed get worse for expats.

The cons are:

• Loss of benefits of U.S. citizenship. After renouncing, you can’t easily move to the U.S., vote in U.S. elections, have a U.S. passport or benefit from U.S. consular services.
• Expense. The U.S. government charges a fee of US$2,350 to renounce.

For most people, it should be possible to renounce with few tax or immigration consequences.

Read: Hits and misses for cross-border clients

Renouncing without paying tax

In order to renounce U.S. citizenship without adverse tax consequences, a taxpayer cannot be a “covered expatriate.” Covered expatriates (CEs) are people who meet one or more of the following criteria:

• a net worth exceeding US$2 million on the date of expatriation;
• average annual U.S. income tax liability for the five years preceding the year of expatriation exceeding US$165,000; and
• incorrectly filed U.S. tax returns for the five years prior to expatriation.

Two classes of people can renounce without worry about their assets or average annual U.S. income tax liability:

• those who were born dual citizens of Canada and the U.S., and
• those who are under age 18 and a half.

Both exceptions require the person to have not lived in the U.S. for more than 10 of the past 15 years. Additionally, both exceptions still require that U.S. tax returns were correctly filed for the past five years. In short, to exit the U.S. tax system without issues, you need to get caught up on taxes.

Read: How the new U.S. tax law complicates life for U.S. business owners

The consequences of being a CE are expensive. They include an exit tax and future taxes on gifts and bequests by the CE to U.S. citizens. These taxes can be expensive. Take the following example of John Doe to illustrate the exit tax:

Assume John Doe owns a house now worth CA$1 million that has gone up in value by CA$500,000, an RRSP worth CA$800,000, and a stock portfolio now worth CA$800,000 that has increased in value by CA$500,000. He is a CE because his net worth is over US$2 million, and he will be subject to U.S. tax on a hypothetical sale of all his assets when he renounces.

While the first US$713,000 of gain would be tax free, the exit tax would capture the increase in value of the house and the stock portfolio. The RRSP would be taxed as if it had been withdrawn all at once. All of this is taxed at normal U.S. tax rates, but may not immediately be taxed in Canada. This can lead to double taxation, as the tax will be paid in Canada when the assets are actually sold, without a credit for the U.S. taxes already paid.

Avoiding CE status is thus key to renouncing without tax issues. Care should be taken to ensure there are no errors in a person’s tax returns for the five years prior to the renunciation. Those who are not caught up may be able to use the streamlined procedure to get caught up. Few U.S. citizens in Canada will have an average U.S. tax liability over US$165,000 because of the U.S. credit for tax paid to Canada.

The asset threshold is a different matter. With house prices at record levels in many places, many Canadian-resident U.S. citizens may be above the US$2 million threshold. These taxpayers will have to plan carefully so as not to be subject to CE status. One strategy may include making gifts to a spouse. Such gifts are generally not taxed in Canada, but may reduce the U.S. citizen’s lifetime estate and gift tax exemption. This is not much of a concern as, after renouncing, a taxpayer won’t have gift and estate tax exposure on non-U.S. assets anymore (given that they will no longer be a U.S. citizen).

Consider again the example of John Doe, but with the added twist that John’s spouse, Jane, is not a U.S. citizen. If prior to renouncing, John gifts the house to Jane, he will no longer be subject to CE status. As with complex tax matters, John should get some advice before he renounces, as there are traps to avoid when making these gifts.

Read: Clients may risk steep penalties if they don’t file U.S. tax forms

Next, let’s consider the immigration risks.

Renouncing without problems at the border

The Reed Amendment allows the U.S. government to deny entry into the United States to someone who has renounced U.S. citizenship for tax reasons. The risk of the amendment applying is low. There are four reasons for this.

• The Reed Amendment applies to those who are “avoiding taxation” rather than those annoyed by the filing obligations of dual citizenship.
• The Reed Amendment lacks regulations to guide its application and there are no details on how it should be applied.
• The Attorney General, which is tasked with enforcing the amendment, does not have the power to get the tax information required to make a determination that someone has renounced for tax purposes. By law, the IRS is prohibited from sharing tax information with the Attorney General.
• Even if the taxpayer consents for the IRS to share the information, additional barriers exist. A report released on November 30, 2015 regarding the enforcement of the Reed Amendment notes that those in charge of making the determination do not have the necessary expertise to analyze complex US. tax information.

The difficulty of applying the Reed Amendment is evidenced by the few times it has been applied. There have only been two documented invocations of the Reed Amendment to deny entry to a person between 2002 and 2015. Thousands of people renounced during this period.

As a caveat, there’s still the chance of an awkward encounter at the border. A foreign passport may identify a U.S. birthplace, which is a telltale sign of U.S. citizenship. Because a U.S. citizen is required under U.S. law to enter the United States with a U.S. passport, this may start a line of questioning regarding that person’s citizenship. A properly prepared reply should satisfy any questions.

Max Reed, LLB, BCL, is a cross-border tax lawyer at SKL Tax in Vancouver. max@skltax.com