When All Else Fails

Americans who swap passports

by Philip Dru, NWOTruth

At the US Embassy in London, there is a waiting list that none of the officials likes to discuss. On the list are Americans hoping to give up their citizenship, as they seek shelter from the Internal Revenue Service.

One lawyer fighting for her clients’ right to do so is Suzanne Reisman, a former civil rights lawyer, who is now a private-client lawyer in Mayfair, central London.

“You make a lot of sacrifices when you have to pay US taxes and live outside the country for a long time. But you also make a lot of sacrifices when you give up your passport,” she says.

Having lived in London since 1998, Ms Reisman herself has considered giving up her US passport. But she probably won’t. “I don’t think I want to die in the UK,” she says.

With many executives living away from their countries of origin, the reasons to change citizenship range from clarifying tax status, making it easier to cross borders, particularly in the case of passport holders from emerging markets who find themselves working in countries such as the US for a prolonged period of time, or discovering that over time their allegiances have changed.

While any individual will need to weigh the pros and cons of any change in status, both in terms of the hassle it can entail but also the long-term consequences, it also poses challenges for employers.

The backlog at the US Embassy, where no appointments are available until February, stems from a rise in the number of American expatriates living in the UK who have been seeking to escape paying US tax on their worldwide income and capital gains since the simplification of US tax laws in 2008.

The rules are far less complicated than they were. A one-off exit tax is levied on all income and capital gains – this applies to those holding assets of more than $2m and includes pensions, deferred compensation, unrealised gains from properties and investments and interests in foreign trusts.

If you have less than $2m (€1.5m, £1.3m), you escape most penalties. “If you can get below that $2m net-asset-value snapshot, it’s fairly easy. You escape the exit tax,” says Richard Cassell, a partner at Withers, the law firm. “But few people want to write the cheque if they have more than that. It becomes painful.”

A few advantages are gained by forfeiting US citizenship, accountants say. Chief among them is that doing so widens one’s investment choices. “It removes the possibility of a super-complicated life of having to juggle two different tax systems,” says Alex Jones, a director at Deloitte, the professional services firm.

“Being American presents you with a very particular and peculiar set of problems from a tax perspective and over the next few years, it could get worse for the wealthy,” he adds.

By comparison, the tax positions of Britons who move to the US are somewhat less complicated. British citizens do not face double-taxation in the US as they escape UK taxation on most types of income while abroad. But shares in investments such as unit trusts and ISAs could draw US tax at a higher rate if sold, so advisers often encourage expatriate Brits to avoid cashing them in while abroad.

Current UK tax laws also muddy the tax positions of Americans who have lived in the UK for the past seven years as HM Revenue & Customs is now entitled to tax their worldwide income and gains. The only alternative is to pay a £30,000 ($48,000, €36,000) annual fee to keep assets not brought into the UK out of Revenue & Customs’ reach.

The reporting requirements for “non-domiciled” individuals who live in the UK could become stricter still. The coalition government’s review of taxation has yet to be completed, but Mike Warburton, tax director with Grant Thornton, the accountancy firm, suspects the rules may change again.

Weighing up the decision

Pros of renouncing American citizenship

?No yearly US tax filing.

?No payment of US tax on worldwide income and capital gains.

?Helps if you are looking to acquire a domicile in a country with more tax advantages.

?Exit tax must be paid on all income and gains if you have more than $2m in net assets.

?It is difficult to reverse your decision – you would be treated like all other applicants if you reapply for US citizenship.

?You face the prospect of never living or working permanently again in the US.

?Upon surrendering a US passport, UK nationals are only entitled to spend a maximum of 90 days on each visit to the US. They are also required to register with the US Department of Homeland Security.

“That’s a distinct risk. It’s definitely something that’s on the government’s radar,” he says.

Giving up a US passport helps some longtime residents of the UK get round these new non-dom rules. If you have, say, residency status in the UK and a second passport from a country which does not tax citizens on worldwide income and gains such as Australia and Ireland, you might attempt to change your domicile to either country, as you would then only face UK tax.

If an American chooses to become British, after years as an investment banker in the City or a marriage to a British subject, he or she gains a number of advantages. The most obvious benefit is that Brits can work in Rome, Geneva, Dublin or elsewhere with ease but manage to stay outside the UK tax net for the most part.

“The UK authorities would still look at me very carefully if I try to go abroad for a short spell, but if I wasn’t generating income in the UK, they would not care about me until I came back,” says John Whiting, tax policy director with the Chartered Institute of Taxation.

Expatriating also helps if you have a British passport and are looking to acquire a UK domicile, which may have some inheritance tax benefits, particularly if you are married to a Brit.

The tax difficulties faced by US executives pose challenges for their employers. And the steady rise in expatriations by Americans in the UK also creates additional work for human resources departments. “It cuts both ways,” says Mr Cassell. “For some companies, it might be good if their employees expatriate. It’s an expense for an employer to post US citizens to a European country which has a worldwide tax system. But then again, if they give up their US passport, it’s more difficult to move them in and out of the US.”

Not every American who seeks to renounce US citizenship does so for tax reasons. A number of those signed up on the US embassy’s waiting list consider themselves “accidental” citizens who were either born in the US or have an American parent, but have spent little time across the Atlantic.

Others do so for political reasons. “I have one client who gave up her US passport because she was still mad about the McCarthy hearings,” laughs Mr Cassell.

People are tied to their country of birth in deep and complex ways, and severing these links has consequences. If you grow to regret your decision to resign as an American, advisers warn that is difficult to become one again as you will be treated like any other non-resident alien of the US.

“The cons are clear,” concludes Deloitte’s Mr Jones. “If you give up a US passport, you take the chance that you will never be able to go back to live and work in the US again.”