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The IRS’s Large Business and International (LB&I) division has released a process unit on using a withholding agent’s electronic systems to evaluate the reliability of the information provided by foreign payees on Forms W-8.  
A withholding agent is a U.S. or foreign person that has control, receipt, custody, disposal, or payment of any item of income of a foreign person that is subject to withholding. (Code Sec. 1473(4)).  Generally, a payment is subject to withholding if it is U.S. source income that is fixed or determinable annual or periodic (FDAP) income. FDAP income is all income included in gross income, including interest (and original issue discount), dividends, rents, royalties, and compensation.
When a withholding agent determines that a payment is withholdable, the withholding agent  must obtain a Form W-8 from the payee to determine whether the payee is a foreign person subject to withholding. Generally, a withholding agent making a withholdable payment must withhold at the 30% rate unless the withholding agent can reliably associate the payment with a Form W-8 or a withholding exemption.

As part of an audit of a withholding agent, an examiner selects payments made by a withholding agent to foreign payees for evaluation against the withholding agent’s filed Forms 1042-S. The examiner performs this evaluation by reviewing foreign payees’ Forms W-8, Certificate of Foreign Status, on file with the withholding agent.
Many withholding agents collect and store Forms W-8 in electronic format. Therefore, an examiner must determine whether the withholding agent has systems and procedures for creating, collecting, and storing Forms W-8 that are reliable.

According to the process unit, before the examination begins, an examiner should obtain and review any of the withholding agent’s data and records that are maintained by the IRS. This review should include any Forms 1042-S submitted by the withholding agent. An examiner should use Forms 1042-S to identify foreign persons receiving large amounts of U.S. source income with small amounts of withholding tax or any administrative inconsistencies, such as reporting and residence address mismatches.  
If the withholding agent uses a system for payees to electronically furnish Form W-8, the examiner should ask the withholding agent whether the system properly authenticates and verifies users and, if yes, how that authentication and verification is accomplished. The should also explain how incorrect and/or incomplete Forms W-8 are handled. 

The process unit also discusses how an examiner should review Forms W-8 the withholding agent received from a third party on behalf of a payee. In a case where the withholding agent has an agreement to use a shared electronic system for furnishing and authenticating Forms W-8, the process unit notes that all Forms W-8 and authenticating documents collected by the shared electronic system should be readily available to the withholding agent and consequently should be available for inspection by an examiner. 

An examiner should select and analyze a test sample of Forms W-8 to determine whether the information they contain is reliable. If the examiner is satisfied that the information collected resulted in properly prepared Forms W-8, then no further investigation is necessary. However, if material errors appear in the sample, further investigation will be required. 

     

According to Trident Trust Company the BVI’s Economic Substance Rules, which govern the practical application of the Economic Substance (Companies and Limited Partnerships) Act, 2018, have now been finalized.

The Rules were published by the BVI International Tax Authority (ITA) at the beginning of October 2019 and will come into force at the same time as the latest amendments to the BVI's Beneficial Ownership Secure Search System Act, 2017. 

The amendments to the Act were gazetted on 31 October and are expected to take effect soon.
Trident's Latest Briefing Materials

• The full text of the Rules can be accessed here.  
• Trident's memo on the Rules summarizes the changes made to them prior to them being finalized.
• For more comprehensive information on economic substance in the BVI, please read our new Guide to Economic Substance in the BVI, which provides a detailed overview of the jurisdiction's substance rules.

 
 

According to Foreign Affairs, Dutch officials really don’t like it when someone calls their country a tax haven.

In 2009, the Obama administration did just that, naming the Netherlands as one of a number of countries where scores of major American firms had established subsidiaries in order to avoid paying U.S. taxes. In a press briefing, the White House also noted that, taken together with Bermuda and Ireland, the Netherlands claimed nearly a third of all foreign profits reported in 2003 by U.S. corporations.

These statements provoked outrage in the Netherlands and a protest from the Dutch ambassador in Washington. “We’re not happy,” said Jan Kees de Jager, the Netherlands’ finance secretary.

After all, the Dutch response seemed to suggest, everyone knows that those places and others, such as the Cayman Islands and Switzerland are tax havens, and to lump the Netherlands in with them was apparently a profound insult.

Shortly afterward, de Jager claimed that the Americans had agreed to stop describing the Netherlands in those terms. Doing so might have been justified by a desire to placate an aggrieved U.S. ally. But the truth is that the Netherlands absolutely belonged on a list of major tax havens—and still does, today.

In 2017, foreign direct investment in the Netherlands totaled $5.2 trillion. But the vast majority of that money wasn’t invested at all: only $836 billion actually entered the Dutch economy.

As such numbers should indicate, this isn’t the work of a few shady players trying to hide their illicit gains: some of the biggest players in the global economy are in on the game.

Google and IBM are among the many U.S. companies that have established operations in the Netherlands in order to reduce their tax bills back home. Most people consider Fiat Chrysler an Italian-American multinational; technically, however, it is a Dutch company, having decided for tax purposes to establish its official headquarters in Amsterdam in 2014.

In 2016, the Netherlands, with a population of barely 17 million, accounted for 16 percent of all foreign profits claimed by U.S. companies. Needless to say, that is not because American firms just happen to sell an extraordinary amount of goods and services to the Dutch.

Rather, it’s because the Netherlands lets those companies park the money they make elsewhere in Dutch subsidiaries or shell companies, or move those profits through “letterbox” entities in the Netherlands, from which it can be sent on to other tax havens.  

The Dutch government has always contended that things weren’t meant to work out this way. All those shell companies and all that money, officials have claimed, are just the accidental byproducts of innovative tax politics that intend merely to give Dutch companies a leg up in a hypercompetitive global economy.

Despite these protestations, the truth is that for decades the Netherlands has deliberately established itself as a tax haven at the direct expense of its European neighbors, the United States, and developing countries. And until recently, the Dutch have gotten away with it. But in the last few years, more and more journalists and researchers have started to sound the alarm.  

The fourth quarter 2018 citizenship renunciation numbers have been published by the Office of the Federal Register. What these numbers mean and how they differ from recent trends.

Why Do Expats Care About Citizenship Renunciation?

Every quarter, the Federal Register publishes an update of American citizens who have renounced their citizenship. Citizenship renunciation is an issue that especially affects expat since they are faced with the lifelong burden of reporting American expatriate taxes (and sometimes, depending on the amount of income the expat generates, a tax paying burden as well!). Currently, the only way to rid themselves of this requirement is to renounce citizenship – a very permanent decision.

For a long time, expats have wanted to have a bigger say in the political sphere about tax fairness, but have felt ignored by politicians and are stuck with a requirement to pay or report American expatriate taxes.

The stakes are particularly high for expats, who are often unaware of the lingering filing requirements and can have their passports revoked if they are too far behind on filing American expatriate taxes.

Recently, the Tax Fairness for Americans Abroad Act was proposed, which would exempt expats’ foreign earned income from US taxation. Though this is good news, the bill is still far from becoming law, and for now, renunciation is the only recourse to what many feel are unfair taxation and financial reporting requirements.

A Brief History of Citizenship Renunciation Numbers

In 2017, the breakdown of the 5,132 renunciation numbers was as follows:

• Q1: 1,313
• Q2: 1,758
• Q3: 1,376
• Q4: 685

In 2018, the 4,050 renunciation numbers were:

• Q1: 1,168
• Q2: 1,093
• Q3: 1,104
• Q4: 685

Overall, in 2018 the numbers were lower than 2017 by around 20 percent, so it seems that, in general, we’re experiencing a return to more normal renunciation rates.

However, the fourth quarter drop off occurred again, suggesting that expats and American residents in general don’t renounce as often in the fourth quarter, whatever their reasons may be.

Perhaps the last three months of the year are so holiday-laden that Americans worldwide find their wallets light and the expense to renounce too much to bear. The cost to renounce is $2,350 after having undergone a 422% increase in 2015, which is the highest fee in the world. Plus, if you meet certain thresholds, you may also have to pay the exit tax, which can be extremely costly. The thresholds are met if any of the following are true:

• Your average annual net income tax for the five years before the date you renounce exceeds a certain amount that is adjusted for inflation each year (in 2018, the amount is $165,000).
• Your net worth is $2 million or more on the date of your expatriation.
• You did not certify on Form 8854 that you are fully compliant with your US tax obligations for the five years prior to your expatriation.

The way the exit tax is calculated is by deeming all your assets sold on the day before you expatriate; you would then be taxed on the associated capital gain, which can be taxed at a rate as high as 23.8%. But for some, this is still the best option in order to bypass the reporting and financial headaches that come along with American expatriate taxes.