What good is it to have a destination if you don’t know how to get there? With this truism in mind, Let’s Fix the Tax Treaty! has long formally documented out strategy and action plans and made this document available to our membership at fixthetaxtreaty.org for public reference, comments and feedback.
However, this plan, last updated in 2018, badly needed an update. Importantly, we wanted to refresh and update our 2021 action plans and objectives / scorecard. So in the 2nd half of 2020 we launched a Strategy Refocus exercise, running a number of Focus Groups from our membership to get feedback and input on our strategy, priorities and action plans.
We’ve taken this input on board and refreshed our Strategy Roadmap document, including 2021 objectives and action plans.
Our Strategy Roadmap serves a number of important purposes, as it documents
The taxation challenges we face
How our group is structured and governed
The strategy framework, including
what needs to change (note there is a useful comprehensive table in this section listing all known tax treaty issues),
advocacy priorities, and
who needs to implement these changes (targets) or might assist (influencers)
Key messaging themes for those seeking change
Our annual objectives (scorecard) and actions plans
Despite the considerable FTT group growth (our Facebook group is nearly 1300 members now!) and the growing realisation and interest in our huge taxation challenges, only a small team of volunteers on the Steering Committee (Karen Alpert, Christine Burk Roberts and Carl Greenstreet) currently drive these activities forward. By necessity, we have to be realistic as to the scale of our advocacy activities.
In 2021, we hope to be more outward in our advocacy efforts and we are planning two campaigns that will require wide support by our membership if they are to be successful.
We will be detailing these further in due course but, for now, there is further information in the Strategy Document.
I encourage all members to take the time to read this important document as it may help you comprehensively understand the taxation challenges we face as well as how we might go about affecting positive change. Feedback is extremely welcome and please consider getting involved as a volunteer!
Focus and simplicity…once you get there, you can move mountains.
— Steve Jobs —
Fix the Tax Treaty! (FTT) advocates for the Australian Government to renegotiate the underpinning legacy Australia-US tax treaties and intergovernmental agreements to provide a fair go for all Australians.
Sure, our group also provides other services like educating our members on US-Australian taxation issues and pitfalls, providing a wiki-style knowledge base and maintaining a private forum where members can seek advice and share experiences.
Nevertheless, our core purpose is all about effecting positive change here in Australia. As a grass-roots volunteer organisation, FTT seeks to
find solutions to the many adverse impacts resulting from the US practices of citizenship-based taxation,
target its efforts in our home country of Australia, and
provide a vehicle for organised collective action.
Our group membership has grown to over 1,200 members in only four years and we are proud to provide help to those in need. However, group administration demands have increasingly occupied our small Steering Committee leaving little time to actually pursue our core change agenda. You may not be aware but our group has long had a strategy roadmap, albeit several years old and in need of updating.
To address this, we are attempting to refocus our strategy and develop an achievable forward action plan. Any initiatives must focus on key issues, emphasise greater group involvement and leverage the strengths of our membership.
What better way to start this process than to seek input and feedback directly from our group membership? As such, we recently ran four focus group sessions (via Zoom VC) with volunteers from our group – huge thanks to those members who took the time to meet with us and contribute!
The purpose of these focus groups was to:
double check to see if we are focusing on the right issues and seek to prioritise them
get membership ideas on how we might approach the change process, and
solicit input on how we might translate this into an action plan.
You can view the introductory slides used at the Focus Groups at the end of this blog.
Pleasingly, we weren’t blindsided by any of the discussion content, with most of the key issues already recognised by the Steering Committee and previously documented in our initial strategy roadmap, blog posts, etc.
To summarise the focus group outcomes, I’ve grouped the outcomes into themes below with a brief discussion synopsis:
Top-3 “Pain” Issues
Double taxation of retirement accounts (Super, but also ATO taxation of US retirement accounts)
Taxation on sale of personal residence
Investments taxation restrictions (PFICs)
What was particularly helpful was prioritising the key taxation issues to those few critical issues that impact most of our membership. The number one issue was clearly the taxation of retirement accounts, where current taxation laws results in double taxation while preventing expatriates from fully taking advantage of their country of residence’s retirement savings incentives. In short, there is a huge need to reform both US and Australian taxation treatment of retirement accounts in order to provide retirement account portability, facilitate labour mobility and minimise economic leakage.
Similarly, US taxation on the sale of personal residences in Australia becomes a major issue as high housing costs force Australian residents to tie up a large proportion of their savings in their home with the expectation that these illiquid savings can be “unlocked” during retirement through downsizing or other mechanisms such as reverse mortgages, home equity lines of credit, etc.
Finally, the investment opportunities available to Australian residents are severely limited by US taxation laws such as PFIC legislation and regulations that punitively tax a wide variety of common non-US investments.
Focus & simplicity
Wrap up in over-arching themes; eg economic advantages of retirement portability / labour mobility
Focus on messages that will resonate with our elected representatives
Simple messaging formats;
Provide appropriate level of supporting analysis but avoid analysis paralysis
All focus groups were strongly of the view that in order to be more effective, we need prioritisation, increased focus and simplicity in our efforts. Framing our requests into over-arching themes such as “effective labour mobility” and “retirement portability” is recommended. Importantly, we need to focus on justification that will resonate with the key decisions makers, our elected representatives. For example, we should aim to educate politicians that these changes will actually provide economic opportunities as Australia recovers from the COVID-19 recession.
Messaging needs to be simple and direct; Infographics were recommended as an effective communication tool for both politicians and media. Of course, some level of supporting analysis may be required to provide important quantification such as economic metrics, but this does not and should not be exhaustive or hugely time consuming as we need to avoid analysis paralysis.
Develop and conduct sustained campaigns on key issues
Focus groups all agreed on the need to develop clear, ongoing and sustained campaigns on key issues. Specifics however are challenging with no group consensus emerging. Further work will certainly be required in this area.
Seek to identify develop key alliances with political and Industry groups
Focus groups also recognised the need for alliances that would share our objectives and ideally have greater resources and lobbying connections. Further work is required but potential allies could be State and Industry Development Groups, Australian Super or Investment organisations, etc.
So what comes next? We’ll be updating our Strategy Roadmap and seeking to develop action plans and sustained campaigns around these simplified and prioritised objectives. If you missed the focus groups, it’s not too late to provide input into our revised strategy – just drop Karen (firstname.lastname@example.org) or me (email@example.com) an email with your thoughts. We are particularly interested in thoughts around how we might conduct effective campaigns on our key issues (Item 3 in the themes summary).
As always, “many hands make light work.” To bring about positive change, we must leverage our group as a volunteer resource. Please get involved!
In my last blog post I discussed how Australia taxes distributions from US retirement accounts. But that’s only half of the picture because the US may also tax these distributions. For US citizens, the US tax treatment is clear and well known. But, what if you’re not a US citizen (or green card holder) when you withdraw your US retirement savings?
These issues were the subject of a series of three podcasts I recorded with John Richardson last week (links below). The purpose of this post is to summarise the key points covered in those podcasts.
For those who have moved between the US and Australia, access to and tax treatment of retirement accounts is a common issue. We’ve covered the US taxation of superannuation in several posts, but the tax treatment by both countries of 401k and IRA accounts held in the US is also important. Today’s post will cover the Australian side of this equation. My next post will discuss what happens to your US retirement accounts when you renounce US citizenship (or for Australian expats returning from the US).
This morning I participated in two short podcasts hosted by John Richardson covering the basics of the Foreign Earned Income Exclusion (FEIE) and Foreign Tax Credit (FTC). Keith Redmond, Laura Snyder and Suzanne Herman also participated.
We discussed persistent myth that these two US tax provisions “fix” the problems that arise due to the US practice of taxing the residents of other countries under the fiction that all US citizens are US tax residents.
Each of these podcasts is a short 15-minute introduction to the complexities surrounding US tax compliance for non-resident US citizens.
Edited to add:
Here’s the third podcast we recorded today – it discusses more of the interplay between US tax and your local tax system.
Several of us participated in a conversation today about the issues that must be considered when deciding how to deal with the extraterritorial impact of US citizenship based taxation. For those who are just realising that the US requires ALL citizens to comply with US tax obligations, we discussed the various considerations that come into play when deciding how (or whether) to comply. We also discussed the issues that must be considered when deciding whether it is time to renounce US citizenship. As with many momentous life decisions, there is no one-size-fits-all prescription – US citizenship and tax compliance are individual decisions that will depend on personal circumstances, country of residence, future plans, and personal temperament.
The conversation, hosted by John Richardson, included Keith Redmond, Laura Snyder, David Johnstone and Karen Alpert. It is available here:
There has been much speculation among American expat groups
about how the recently
passed US tax rebates / stimulus will impact Americans living outside of
the United States. After all, the US claims the right to tax based on
citizenship rather than residence – so shouldn’t the US provide tax rebates
based on citizenship as well? As you will see in this post, the complexity
introduced by taxing non-residents is not well understood, even by the tax
writing committees in Congress. There appear to be some unintended consequences
in this bill – though for once, some of these consequences benefit rather than
harm non-resident US citizens. All the
more reason for US tax rules to stop at the border – like every other country,
the US should tax on the basis of residence and source, not citizenship.
Many Americans abroad have non-American spouses. While most
will file their US taxes as “Married Filing Separate”, many find it advantageous
to take advantage of the election available under §6013 (g) to
file a joint return with their nonresident alien spouse. Making this election
means that the spouse agrees to be taxed by the US on their worldwide income. Certainly,
that ought to be sufficient to qualify for the $1200 stimulus payment as a US
taxpayer? But no, the §6013(g) election treats the spouse as a US tax resident
for the purpose of computing tax, but not for the stimulus payment.
Another issue that I haven’t seen any analysis on is the
interaction of this credit with the Foreign Earned Income Exclusion (FEIE). My
take is that, since the FEIE reduces Adjusted Gross Income (AGI), and the CARES
Act rebate is phased out at higher levels of AGI, taking the FEIE would
increase the amount of CARES Act rebate. Someone earning more than US$75,000
can exclude foreign earned income, reducing AGI below US$75,0000. I haven’t
seen any analysis of this, but if I am correct, then I’m sure this is an
unintended consequence – but an example of an unintended consequence that actually
US expats will also have to consider how this payment will
be treated by the tax authorities where they live. This may vary country to
country. Some countries may treat this as a tax credit, reducing any US tax
available as a credit against local country income taxes, while others may
treat it as taxable income. Best to consult a qualified tax adviser where you
The bottom line is that the US government should be taking
care of the US economy – not the economies of the countries where US citizens happen
to live. US tax rules should stop at the US border – for both tax liability and
for tax benefits. And, for those who have been sitting on the fence, worrying
about whether they should start complying with US tax law when they are a tax
resident of another country, the stimulus payment will barely cover their
compliance costs – and certainly won’t cover their losses going forward due to
both compliance costs and the cost of
President Trump has now signed the CARES Act, and there is much speculation on how this impacts tax-compliant US expats.
I’ve had a quick read of the relevant portion of the legislation and here’s how it works in a nutshell:
The bill creates a new refundable credit for 2020 tax returns with an advance refund of that credit now (or as soon as the IRS can implement it). This means that eligible taxpayers will receive a refund now from the IRS, then on their 2020 tax return they show the credit reduced by the payment they receive now. The credit is available to US citizens and residents with social security numbers and does not appear to be contingent on having any taxable income.
The amount sent out now is based on the numbers in your 2019 tax return (or 2018 if 2019 hasn’t been filed). Those collecting Social Security who do not have a US tax filing obligation will also receive payments based on the amounts shown on Form SSA-1099.
If your income in 2020 qualifies you for a larger credit than what you receive this year, then you get the additional amount when you file the 2020 return. If your income in 2020 qualifies you for a smaller credit than what you receive now, then the net credit you show on the 2020 return is zero (not negative) – that is, you don’t have to pay back the excess.
So – if you’re not currently in the US tax system, what does this mean for you? The amount of the rebate may be just enough to pay for filing under the streamlined program – but once you file, you are in the system and continued compliance will add costs (not just compliance costs, but the opportunity costs of not being able to invest or save in the same ways as other Aussies). If you’re a temporary expat – planning on returning to the US in future – then this may present a good opportunity to come into compliance. If you’re a permanent expat, then you should be very wary of entering into the US tax system, even with the promised tax credit.
The Revenue Procedure provides taxpayers with a safe harbour from trust reporting on Form 3520. For plans that meet the requirements, it is no longer necessary to determine whether the plan actually constitutes a trust under US tax rules (see Reg §301.7701-4) because trust status will not change the US tax compliance required. For plans that don’t meet the requirements, nothing has changed – if the plan does not meet the definition of “trust” in the regulations, then form 3520 is not required.
I am concerned that the restrictions placed by Rev Proc 20-17 on what constitutes a “Tax-Favored Foreign Retirement Trust” are too restrictive to be of much use. To qualify, the foreign retirement plan must:
Be exempt from tax or otherwise tax-favored in the country where it is organised. (Rev Proc 20-17 Section 5.03(1)).
Provide (either directly or via the plan participants) annual information reporting to the relevant tax authority. (Rev Proc 20-17 Section 5.03(2))
Permit only contributions with respect to earned (personal service) income. (Rev Proc 20-17 Section 5.03(3))
Have contributions limited by either a percentage of earned income, by US$50,000 per year, or by US$1,000,000 over the lifetime of the plan participant. (Rev Proc 20-17 Section 5.03(4))
Allow withdrawals only upon reaching a specified age, or on death or disability – or early withdrawal penalties must apply. Withdrawals for certain limited purposes (e.g. education, hardship, home purchase) are allowable. (Rev Proc 20-17 Section 5.03(5))
With regard to Australian superannuation accounts – Australian law allows non-deductible contributions of up to A$100,000 per year that are not conditioned on having earned income (as long as the participant is below age 65). While the vast majority of superannuation members do not make any contributions in excess of the government mandated 9.5% contribution by employers, the ability to make these extra contributions means that a superannuation account will not qualify for the safe harbour provided by Rev Proc 20-17.
Essentially, the IRS is saying that any retirement plan that is similar enough to US retirement plans will qualify as “Tax-Favored.” But, the limits given are actually LOWER than the contribution limits for similar US plans (the limitation for defined contribution plans under §415(c)(1)(A) is $57,000 in 2020). Each country designs its retirement savings rules based on what works best in their own culture, economy and tax system. It is ironic that the US does not recognise Superannuation as a “Tax-Favored Retirement Plan” because the contribution limits are too generous, and Australia does not recognise US retirement plans as “Foreign Superannuation” because the withdrawal provisions are too generous.
So, how many countries have retirement plans that will benefit from Rev Proc 20-17? If you have a foreign retirement account, you can help collate this information by responding to an anonymous informal survey. And please share your stories either in the comments below, or over at CitizenshipSolutions.
Thanks to a follower of this site who has urged their MP to submit Questions in Writing about the Australia/US Tax Treaty and the impact of FATCA on Australian residents claimed by the US as “US Persons.” As I’ve written elsewhere, allowing the US to tax the Australian-source income of Australian residents drains money from the Australian economy. Even if the US tax liability is offset by credits for Australian tax paid, the cost of compliance and the constraints placed on financial planning are real.
Today, Rebekha Sharkie, MP for the electorate of Mayo in South Australia submitted the following question:
312 MS SHARKIE: To ask the Treasurer—
(1) Why was superannuation excluded from the 2001 revision of the USA-Australia tax treaty.
(2) Is it a fact that the 2001 revision of the treaty was focused on businesses rather than on individuals.
(3) Has the Treasurer received any advice on revising the treaty to address issues with taxation of superannuation; if so, can the Treasurer provide any such advice (or if not possible, can a summary of each advice be provided to the House).
(4) Is the Treasurer aware of changes in the past decade in US practices in the enforcement of the Foreign Account Tax Compliance Act as it applies to ‘US persons’ that are also residents of Australia for tax purposes, or Australian citizens that reside in Australia and are subject to Australian taxation.
(5) Has the Government been advised of any such changes by the US Government; if so, could the Treasurer provide the advices (or if not possible, can a summary be provided of each of these advices to the House).
(6) Has any such change in US practice increased the costs to Australian citizens and tax residents that are required to comply with US tax rules; and what is the estimated total cost of treaty and extra-territorial US tax compliance for Australian citizens and Australian tax residents over the forward estimates broken down by financial year.
(7) Under the treaty and related instruments: (a) under what circumstances would Australian citizens and tax residents be paying both US and Australian taxes (however arising); (b) can the Treasurer detail each of these circumstances; and (c) has the Treasurer received any advice concerning any of these circumstances, or concerning the potential or reality of double taxation under current treaty arrangements more generally; if so, can these advices be provided (or if not possible, can a summary of these advices be provided to the House).
(8) What is the number of: (a) Australian citizens; and (b) Australian tax residents; that pay US taxes on Australian income (however arising, including salary, superannuation contributions and distributions, home ownership, business ownership, and any other investments).
(9) Broken down by financial year over the forward estimates, what is the: (a) total cost from the treaty to Government revenue; and (b) total capital removed from Australian superannuation accounts and the Australian economy due to extra-territorial taxation by the US Government (including Australian superannuation contributions and distributions).
(10) What review and monitoring mechanisms does the Government have in place to identify issues arising out of the operation of the treaty.
(11) To date: (a) what concrete steps have been agreed to in order to resolve the issues identified in the US-Australia tax treaty; and (b) what are the deadlines for completing each of these steps.
(12) In tabular form, can a list be provided of the notifications (and a brief description of each individual notification) provided by the US and received by Australia pursuant to Article 2, Paragraph 2 of the treaty.
(13) Will the Government commit to a renegotiation of the treaty; if not, why not; if so, in which year does the Government: (a) expect to commence those negotiations; and (b) intend to conclude negotiations.
Any MP can direct Question in Writing to the appropriate Minister. There is no requirement that the question be answered, but it remains on the list of unanswered questions until it has been answered, withdrawn, or Parliament is dissolved. If a question is left unanswered for 60 days, then the MP who asked the question can ask why there is a delay.
I will be quite interested to hear how the Treasurer answers this question.
FATCA – the full employment act for the tax compliance industry…
Bloomberg Tax is reporting a nearly 50% increase in the number of Enrolled Agents with foreign addresses. The article is troubling on many levels, starting with the title: “U.S. Tax-Dodging Crackdown Overseas Brings Foreign-Adviser Surge.” Apparently, the editorial team at Bloomberg has different ideas, because today they published “Stop Treating American Expats Like Tax Cheats.”
FATCA is truly the full-employment act for the tax compliance profession. Below the fold, I’ll examine the following issues raised by the increase in US tax compliance professionals outside of the US:
Has the IRS really “gone global”?
What support does the IRS provide international taxpayers?