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Double taxation could be thing of the past

Senator Orrin Hatch

Behind the scenes for years, there has been movement to change the rules for taxing Americans abroad, and now it appears that this may, let’s emphasise “may”, bear fruit. Since Bermuda is a zero-tax country, Americans residing in Bermuda, in particular, may “get lucky”.

Barring a legislative meltdown or some calamity — think Russian-related scandal or “bombs away” on the Korean peninsula — odds favour Congress enacting tax legislation before year end or the first part of next year.

Likely changes will include “territoriality” for corporations, meaning US corporations, which are taxed at present on their worldwide income regardless where the income is earned, will be taxable only on income earned in the United States. Americans living overseas are pushing hard to achieve the same treatment, and today it looks like Congress is more than just a little receptive.

As Congress works on “territoriality” for corporations, the door has been opened for enactment of a change for individuals from citizenship-based taxation to residency-based taxation. For individuals, residency-based taxation equates to “territorial” treatment. Led by groups such as American Citizens Abroad, efforts to make this change have steadily progressed. Since the 2016 elections, these efforts have “gone public”, with grassroots lobbying and “crowdfunding” of the costs of revenue estimates.

The US is wildly out of sync with the rest of the world in the way it taxes its citizens residing in a foreign country. If ever there was a time to fix this, now is the time. “Territoriality” is on the table and people’s minds are focused. This change can be made easily, without significant surgery on the tax code. It may be achieved without a loss of tax revenue. Loopholes can be guarded against with careful drafting.

There are an estimated nine million Americans living overseas. According to State Department figures, up to 9,000 American citizens, either solely American or dual American and something else, live in Bermuda. Many of these have lived there for many years — some for all their lives.

Remarkably, the US is the only country, other than war-torn and impoverished Eritrea, which taxes individuals based on their citizenship. As Americans in Bermuda are acutely aware, an American citizen is required to file returns and pay US taxes — regardless of the source of the income, time spent in the US, or other connections with the US.

The tax rules and forms confronting American citizens living overseas are mind-boggling, and the penalties for incorrect reporting, often because of simply not understanding the rules, can be financially ruinous.

Enactment of residency-based taxation would be straightforward. Citizens residing overseas would be removed from the category of taxpayers who are subject to US income tax and placed in the same category as foreign individuals. Like foreign individuals, they would pay US tax on most types of US-sourced income but not on the income they earn overseas.

With thoughtful choices about the drafting of the new rules, the revenue cost can be reduced to nil or near nil. Loopholes and opportunities for abuse can be foreclosed.

Plans being bandied about for reforming corporate taxes are all over the lot. House Republicans have developed a “blueprint” for tax reform that adopts a territorial approach for corporations, and it expressly raises the possibility of changes for individuals. On the Senate side, Finance Committee chairman Orrin Hatch’s proposal calls for reconsideration of the taxation of non-resident citizens. The Treasury Department and the White House, in the recently proposed budget, also expresses interest in transitioning to a territorial system.

At a congressional hearing on July 18, doing away with citizenship-based taxation was said to be on some members’ wish list.

Luckily, residency-based taxation fits comfortably alongside all the international tax reform proposals being developed. Moreover, it can attract bipartisan support. While differing on details, Democrats Abroad, Republicans Overseas, Americans for Tax Reform, the Heritage Foundation, American Citizens Abroad, a number of American chambers of commerce overseas, and other business groups, all support the approach.

All this presents a great, maybe once-in-a-lifetime, opportunity to end the taxation of Americans residing abroad. This is not a silly dream. It is a very real possibility. Work on the legislation is under way. Revenue estimates, which it is to be hoped will show little or no revenue loss, are in the making. For more information, go to the American Citizens Abroad website. Your eyes may jump out of your head! Then get involved.

Charles M. Bruce, an American attorney with Bonnard Lawson-Lausanne in Switzerland, is chairman of the American Citizens Abroad Global Foundation and legal counsel of American Citizens Abroad, Inc. The views expressed are his alone and do not necessarily represent those of any other person or group