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Archive for the ‘Academic’ Category

2014 Feb 28 – Christians

Allison Christians
FATCA in Canada: constitutional challenge mounting
Tax, Society & Culture (28 Feb 2014)


Law professor Christians identifies Canada’s core FATCA problem as “serious mismatch between the goals targeted and what will be attained by FATCA when law on the books meets law in practice.”

Written by usxcanada

28 February 2014 at 6:00 am

2013 Dec 8 – Christians

Allison Christians
FATCA Q & A – a work in progress
Tax, Society & Culture (8 Dec 2013)


An academic tax law expert summarizes detail on FATCA and its implementation in a succinct question-and-answer format.

Written by usxcanada

8 December 2013 at 6:00 am

Posted in Academic, Uncategorized

2013 Nov 26 – Mishory

Eliezer Mishory
Is the OVDP a good deal? Assessing the OVDP in terms of FBAR willfulness
Social Science Research Network (26 Nov 2013)


This 65-page academic examination of willfulness as applied to FBAR reporting failure concludes that present tendency toward finding FBAR violation willful may render OVDP participation more desirable than that action would appear.

Written by usxcanada

26 November 2013 at 6:00 am

Posted in Academic, Uncategorized

2013 Aug # – Nightingale

Kevyn Nightingale / David Turchen
The US implications of a tax free savings account
Wealth Management Times no. 77 (Aug 2013)


31 footnotes. “Most of the larger accounting firms are taking the conservative position that a TFSA is not treaty-protected. … The IRS has not pronounced on this question, and the issue has not yet been litigated.” [This article first appeared in the CCH newsletter Tax Topics No. 2146 (April 25, 2013).]

Written by usxcanada

1 August 2013 at 6:00 am

2013 July 4 – Marino

Alexander Marino
Renouncing your US citizenship: failed amendment may signal that now is the time to get out!
Moodys Gartner (4 July 2013)


14 footnotes. Recent failed legislative attempt to bar “covered” expatriates from entering the United States indicates that “the issue of renouncing one’s US citizenship is again front and center on Congress’s radar and the only guarantee moving forward is that any potential changes will not make things any easier to get out.”

Written by usxcanada

4 July 2013 at 6:00 am

2013 Mar # – Miller

Michael J. Miller / Ellen S. Brody
Expats live in fear of malevolent time machine
International Tax Journal (March 2013?)


This article reviews how US citizenship may be lost; outlines expatriation rules set out in key legislation of 1966, 1996, 2004, and 2008; and explores implications of a 2003 document issued by Joint Committee on Taxation. In view of the absurdities generated by “a poorly drafted statute,” the authors call on the IRS to issue clarifying written guidance. [23 endnotes]

Written by usxcanada

1 March 2013 at 6:00 am

Posted in Academic, Uncategorized

2012 Oct 1 – Schneider

Bernard Schneider
The end of taxation without end: a new tax regime for U.S. expatriates
Virginia Tax Review 32:1 (1 Oct 2012) 1-76


Among other things, this comprehensive article with 392 footnotes will serve as a bibliography to previous literature on the topic. Schneider concludes that the obvious resolution, cessation of extraterritorial taxation of U.S. person, is not “politically viable,” and then moves to propose an exit tax. Review of the existing situation covers (1) history of citizenship-based taxation (2) numbers of persons affected and tax involved (3) types of expatriates (4) current tax treatment of nonresidents (5) increasing compliance cost of being a U.S. taxpayer abroad (6) arguments for and against worldwide taxation of expatriates (7) compliance and enforcement (8) current exit tax regime.

Written by usxcanada

1 October 2012 at 6:00 am

2012 Sept 1 – Chisti

Muzaffar Chisti / Faye Hipsman
Renouncing US citizenship: a new trend?
Migration Information Source (Sept 2012)


“The trend of [increasing] citizenship renunciation is evident. … Many lawyers and interest groups who represent US expatriates believe that the combination of the scaled-up IRS enforcement and legislative and regulatory changes are providing the impetus for increased renunciation of US citizenship.”

Written by usxcanada

1 September 2012 at 8:00 am

Posted in Academic, Uncategorized

2012 Sept # – Stiller

Martin Stiller
Statelessness in international law: a historic overview
DAJV Newsletter 37:3 (Sept 2012) 94-99


[99 footnotes] This article includes the following distinction between nationality and citizenship: “At the international level, the concept of nationality is the only important criterion constituting an international affiliation between individual and state. It should be noted that the question of citizenship does not bear on the issue, as citizenship is only a qualified status of nationality, a status designed to confer rights – mostly political – to the citizen.” (II.1, page 95)

Written by usxcanada

1 September 2012 at 5:00 am

Posted in Academic, Uncategorized

2012 July 9 – Mopsick

Steven J. Mopsick
Tax justice for Americans abroad
Tax Notes (9 July 2012) 189-196


A federal tax attorney with long experience within the IRS details the problems currently faced by U.S. persons living outside the United States. He usefully categorizes the options — “few good”! — available to “those with reasonable cause arguments” and reduces them from an apparent six to three that he sees as “realistically viable.” He illustrates difficulties with a substantial hypothetical case study of an extended family that has generations of history in Vancouver, British Columbia. “Responsible people in the government must see the absurdity of how citizenship-based taxation affects expatriates and the bizarre fact that the United States is the only country that taxes its citizens on their worldwide income.” Mopsick proposes a “facts and circumstances test” as a potentially useful “commensense approach” (p. 193), but irrationally persists in privileging the fact of birth abroad in designating persons who have had “no meaningful economic connection to the United States” over a period of many years. [14 footnotes]

Written by usxcanada

9 July 2012 at 6:00 am

2012 May # – Sheppard

Hale E. Sheppard
The new duty to report foreign financial assets on Form 8938: demystifying the complex rules and severe consequences of noncompliance
International Tax Journal 38:3 (May-June 2012) 11-32

http://www.chamberlainlaw.com/assets/attachments/Form 8938 Article.pdf

“Confusion about Code Sec. 6038D and Form 8938 can trigger a series of negative results for taxpayers, including new information-reporting penalties, increased accuracy-related penalties, criminal charges, extended assessment periods, and a fight with the U.S. government on three fronts simultaneously.” [160 endnotes]

Written by usxcanada

1 May 2012 at 5:00 am

2012 April # – Dentino

William L. Dentino / Christine Manolakas
The exit tax: a move in the right direction
William & Mary Business Law Review 3:2 (Apr 2012) 341-418


[619 footnotes] This article aims to follow “the history and evolution of IR.C. section 877.” Seven sections cover: (1) How the U.S. taxes (2) History of U.S. taxation based on citizenship (3) Foreign Investors Tax Act of 1966 (4) Health Insurance Portability and Accountability Act of 1996 (5) American Jobs Creation Act of 2004 (6) Heroes Earning Assistance and Relief Tax Act of 2008 (7) Continuing Problems. A major conclusion is that “the [current] mark-to-market regime still violates the tax equity objectives of horizontal and vertical equity.”

Written by usxcanada

1 April 2012 at 6:00 am

Posted in Academic, Uncategorized

2012 Jan 8 – Spiro

Peter Spiro
FATCA Fallout: Mass Renunciations?
Opinio Juris (8 Jan 2012)


If you have permanently relocated … US citizenship doesn’t do you much good. In the past, it didn’t do you much harm, either, but now it poses some significant costs. … So rational Americans abroad might just ditch the citizenship.”

Written by usxcanada

8 January 2012 at 6:00 am

Posted in Academic, Uncategorized

2011 Dec # – Kellogg

Leslie R. Kellogg
Renouncing US citizenship?
Canadian Tax Highlights 19:12 (Dec 2011)

No link available.

Written by usxcanada

1 December 2011 at 7:00 am

2011 Oct 17 – Michel

Scott D. Michel / Mark E. Matthews
OVDI is over — What’s next for voluntary disclosures?
Tax Notes 133 (17 Oct 2011) 369-378


“The essence of OVDI was to leverage a civil penalties deal into the VDP.” In the OVDI programs, “stereotypical offshore tax cheats” were few in number. A large group in OVDI 2009 had accounts gifted by or inherited from parents or other relatives. A large group in OVDI 2011 had lived abroad for many years, had routine foreign financial accounts, and complied with taxation in country of residence. Unwillingness to become US tax compliant manifests “most dramatically in Canada, with its hundreds of thousands of U.S. citizens.” [Footnote 5 details a “significant increase” in persons seeking to expatriate.] The article closes with eight specific recommendations for future disclosure, and recognizes that implementation of FATCA may render the issue irrelevant. Nine footnotes.

Written by usxcanada

17 October 2011 at 6:00 am

2011 Oct 3 – IRS Going

IRS going after Canadian-American citizens
Queen’s University (3 Oct 2011)


Queen’s University law professor and tax expert Art Cockfield proposes that Canada consider “retaliatory legislation that imposes the exact same enforcement regime on U.S. financial institutions that deal with Canadian ‘tax’ residents.”

Written by usxcanada

3 October 2011 at 7:00 am

2011 Sept # – Bernstein

Jack Bernstein
Obligations of US green-card holders and citizens
Canadian Tax Highlights 19:9 (Sept 2011) 9-10

For a Canadian, a US green card or US citizenship entail “a lifetime of weighty US tax responsibilities.” Ten specific points are enumerated and briefly discussed. FATCA and FBAR are included.

Written by usxcanada

1 September 2011 at 7:00 am

2011 Sept # – Frew

Erin L. Frew / S. Natasha Reid
US tax collection in Canada
Canadian Tax Highlights 19:9 (Sept 2011) 1-2

Ramifications in law of collection by Canada of U.S. taxes, interest, and penalties, with reference to the Canada-US treaty and selected relevant case law.

Written by usxcanada

1 September 2011 at 6:00 am

2011 Sept # – Ward

Robert E. Ward
Advising US citizens and long-term residents on expatriating
STEP journal (Sept 2011)


STEP = Society of Estate and Trust Practitioners. This article with 75 footnotes is structured as a script of 23 questions with succinct summary of considerations. The meaty content may serve as detailed preparation for consultation with a professional. A confident do-it-yourselfer who is able to assess the information and their own competence may find that this substitutes, at least with regard to specific questions.

Written by usxcanada

1 September 2011 at 5:00 am

2011 July # – Bernstein

Jack Bernstein
Tax tsunami for non-U.S. tax compliant Canadian residents who are U.S. citizens or green card holders
Tax profile [0827-3677] 28:7 (July 2011) 1-3


A succinct and authoritative account of tax compliance issues faced by Canadian residents, published by Commerce Clearing House Canadian.

Written by usxcanada

1 July 2011 at 6:00 am

2011 May # – Zelinsky

Edward A. Zelinsky
Citizenship and worldwide taxation: citizenship as an administrable proxy for domicile
Iowa Law Review 96:4 (May 2011) 1289-1350


[281 footnotes] Zelinsky astonishingly concludes that ease of administration by the federal government justifies U.S. taxation based on citizenship rather than domicile — even though the asserted benefits of such citizenship are found to fail to withstand scrutiny under three separate models:

In the final analysis, the benefits rationale for citizenship-based taxation is unpersuasive. That rationale has been part of our constitutional tradition since Cook. However, it does not survive scrutiny in light of the minimal legal benefits associated with U.S. citizenship; the absence of a convincing link between the psychological utility of citizenship and worldwide taxation; the lack of mobility among nations, which precludes active shopping among alternative citizenships; and the divergent tax prices the Code currently assesses different citizens for the same benefits of citizenship. (1320)

Written by usxcanada

1 May 2011 at 5:00 am

Posted in Academic, Uncategorized

2011 Feb # – Kahn

Jeffrey Kahn
The extraordinary Mrs. Shipley: how the United States controlled international travel before the age of terrorism
Connecticut Law Review 43:3 (Feb 2011) 819-888


[389 footnotes] Career civil servant Ruth B. Shipley acted as chief of the Passport Division of the U.S. State Department from 1928 to 1955. Shipley personally reviewed every passport application, and prior to 1958 Supreme Court decision, her actions were subject to no judicial review. Shipley denied passports to Paul Robeson, Arthur Miller, Linus Pauling, and “many other” Americans during the 1950s. Kahn’s article explores how Shipley acquired such power and how the US passport became an instrument to prevent rather than permit travel. A backgrounder opening (825-842) provides a history of travel controls from 1789 to the Shipley era. Originally the passport was “a document [issued by the country that the traveler sought to enter] that granted a foreigner permission to pass into or out of a country’s ports” (825) — the opposite of what it came to be. Kahn concludes that current administration of U.S. citizens has achieved the Shipley effect through authority “diffused among intelligence analysts in multiple agencies who now compile watchlists of people deemed too dangerous to travel.” In this environment, judicial review is crippled by “the traditional deference accorded to national security and the sometimes secret processes by which that government interest is secured” (887).

Written by usxcanada

1 February 2011 at 6:00 am

Posted in Academic, Uncategorized

2010 Apr 12 – Bissell

Thomas St.G. Bissell
An “exit tax” enters the U.S. tax lexicon — §877A and guidance under Notice 2009-85
Tax Management Memorandum 51:8 (12 Apr 2010) 123-135

No link available.

A technical article with 51 footnotes by a tax lawyer. The IRS Notice estimated an annual renunciation of “approximately 100 taxpayers.” The new rules introduced by the HEART Act of 2008 apply “to an individual whose ‘expatriation date,’ as specially defined in the law, is after June 16, 2008.” The new Form 8854 applies to expatriations subject to §877 before 17 June 2008 as well as to expatriations after that date subject to §877A.

Written by usxcanada

12 April 2010 at 6:00 am

2010 Mar # – Packman

Kevin E. Packman / Summer A. LePree
IRS provides some guidance on the new expatriation exit tax
Journal of Taxation 112:3 (Mar 2010) 145-153

Not online.

The Heroes Earnings Assistance and Relief Tax Act of 2008 ended subjection of citizenship renouncers to “an alternate U.S. income tax regime for ten years following the date of expatriation. … It is clear that the U.S. intends to expand the tax base by using all available estate tax inclusion provisions and denying the use of any provisions that otherwise would reduce the tax base.”

Written by usxcanada

1 March 2010 at 6:00 am

Posted in Academic, Uncategorized

2009 Oct # – Kwong

Yu Hang Sunny Kwong
Catch me if you can: relinquishing citizenship for taxation purposes after the 2008 Heart Act
Houston Business & Tax Law Journal 9:3 (Fall 2009) 411-444.

No link available.

This seven-part article features 281 footnotes. Parts: (1) Brief introduction (2) Cultural and financial aspects of tax-motivated expatriation (3) History of relevant law (4) Present circumstances (5) Essence of the problem (6) Possible improvements on current legislation (7) Conclusion.

The history in part 3 covers: (a) Early history (b) Expatriation Act of 1868 (c) IRC §877 and Foreign Investors Tax Act of 1966 (d) Health Insurance and Portability and Accountability Act of 1996 (e) American Jobs Creation Act of 2004 (f) Legislation 2004-2008 (g) Heroes Earnings Assistance and Relief Tax Act of 2008.

Part 4 covers different tax categories (income, gift, estate, exit, succession) as well as considerations relating to immigration law.

Kwong addresses “the difficulty of enforcing the United States’ system on wealthy taxpayers with enormous resources, patience and influence.” Yet strong “cultural resistance towards tax-driven expatriates” ensures that legislators will continue to persist in attempting to close loopholes.

Kwong concludes: “The only reliable way to remove the incentive to the expatriates is to adjust the expatriation tax regime so that it is revenue neutral.”

Written by usxcanada

1 October 2009 at 6:00 am

2009 Sept # – Sardar

Michael Sardar
The FBAR and the Fifth Amendment
Journal of Taxation 111:3 (Sept 2009) 180-182


10 footnotes. Sardar concludes: “It appears that in certain circumstances a taxpayer can make a persuasive argument — distinguishing the Sixth Circuit’s decision in Sturman on the grounds discussed above — that the filing of an FBAR would amount to self-incrimination in violation of the Fifth Amendment, and that the failure to file an FBAR is therefore justified.”

Written by usxcanada

1 September 2009 at 6:00 am

2009 April # – Green

Nancy L. Green
Expatriation, expatriates, and expats: the American transformation of a concept
American Historical Review 114:2 (April 2009) 307-328


Much documentation is provided through 66 footnotes for this essay on the place of expatriation in United States history. Green distinguishes four periods: (1) Migrants to America participating in the building of a new country — Declaration of Independence (2) Newcomers reassured that their status in the United States would stand against claims from countries of birth — Expatriation Act of 1868 (3) Departers from the United States subject to loss of citizenship — Expatriation Act of 1907 (4) Voluntary intent of an individual as determinative — 1967 Afroyim v. Rusk U.S. Supreme Court ruling. Green concludes: “Late-twentieth-century ideas about expatriation [make] it more and more difficult to dissolve the ties of citizenship, not to mention the taxes, that bind. … The language of intent assumes perpetual belonging unless there is proof otherwise.”

Written by usxcanada

1 April 2009 at 6:00 am

Posted in Academic, Uncategorized

2009 Jan # – Singer

Paula N. Singer
Ten common tax return errors foreign nationals should avoid
View from the crow’s nest 6:1 (Jan/Feb 2009)


Excerpted and updated from articles four articles by the author previously published in 2006 and 2007. This succinct and useful outline of issues is produced by a tax law partner “over 25 years of experience providing advice and compliance services to individuals and their employers, and payers on cross-border matters.”

Written by usxcanada

1 January 2009 at 6:00 am

2006 June # – Kirsch

Michael S. Kirsch
The tax code as nationality law
Harvard journal on legislation 43:2 (summer 2006) 375-436


In the context of the recent passage of the American Jobs Creation Act of 2004, Kirsch
“addresses the extent to which the special definitions of citizenship for federal tax purposes violate customary international law and constitutional limitations” and concludes that “Congress should return to a uniform definition of citizenship for both tax and nationality law purposes.”

Written by usxcanada

1 June 2006 at 6:00 am

Posted in Academic, Uncategorized

2006 # # – Sheppard

Hale E. Sheppard
Evolution of the FBAR: where we were, where we are, and why it matters
Houston Business and Tax Journal 7:1 (2006) 1-41


“Congress amended the law in late 2004, introducing new penalties for non-willful FBAR violations and more stringent penalties for willful violations. To implement this strengthened law, the U.S. Treasury Department delegated full investigatory and enforcement authority to the IRS.” [229 footnotes]

Written by usxcanada

1 January 2006 at 6:00 am