Video: Robert Wood speaks with Scott Drake on loss of U.S. citizenship

Another video I came across today on the subject of taxation of U.S. Persons in non-U.S. jurisdictions, and specifically on giving up U.S. citizenship — Robert Wood talking with Scott Drake on the Legal Broadcast Network. Looks like renounceuscitizenship beat me to it and wrote about this one a few weeks ago over at his own blog! Anyway, for those of our readers who are hard of hearing or just too impatient to watch a whole video, I’ve written up a transcript — you can click “continue reading” below to see the transcript, along with my own comments. Be forewarned: you will probably find the level and tone of discussion in this video to be rather disappointing.


0:13/Scott Drake, host: The following is a service of AGT Trust. Tax law journalist Robert Wood joins us to discuss his recent article in Forbes: “Ten Facts about Tax Expatriation“. As recently as the 1960s, you could conceivably leave the U.S. permanently and avoid paying some taxes. Over the last 20 years or so, Congress has made that option increasingly more difficult. Rob, welcome back!

0:37/Robert Wood: Thanks Scott, nice to be here.

0:38/Drake: Hey, wealthy Americans have been trying this for years with some success, although the last 20 years or so — as I said in the intro — it’s becoming increasingly more difficult. Can you talk about the article and what the restrictions are now?

0:55/Wood: Sure. Well first of all, I have to say this is one of those questions that gets asked a lot, but I think relatively few people act on it. It becomes tempting, I suppose, after some big event in Congress — a tax increase, or some other legislation that makes you think you want to move to a desert island. I think everyone has those kinds of feelings at one point or another in their lives, but relatively few people do it, and relatively even fewer people probably do it for tax reasons.

1:29/Wood: So the basic rules are, up until — and this is kind of a bright-line date in the article — up until June 17, 2008, there was basically a ten-year rule, so that if you left the U.S., and if you were a long-term resident or a U.S. citizen, and if you lef the U.S., that you would still be subject to U.S. tax for 10 years. There were ways to get out of that; one of the principle ones was that if you could show your leaving the country wasn’t tax motivated.

2:11/Wood: Suffice it to say, it’s sort of a ten-year recognition period. It wasn’t a bright line where you could just leave the country. The rules got a lot tougher after that date, Essentially. after June 16, 2008, if you expatriate then, tax motivation isn’t important anymore — that’s significant. And essentially, even more punitive than a ten-year recognition period is, in general the current rule is, you are treated as selling all of your assets for their fair market value the day you leave the country, calling it an exit tax. So the current rule is that.

2:59/Drake: Well I guess in many cases, the government can tax income worldwide, whether or not you’re in the U.S. or not — as long as you’ve been a citizen, it becomes really difficult.

3:09/Wood: Actually, that’s true. And that’s a good place to start, which is — sort of for any of this to make sense, you have to start from the premise that as a U.S. citizen, or a permanent resident — and that’s generally someone who has a green card — as a U.S. citizen, or permanent resident of the U.S. [inaudible] — you’re subject to tax on your worldwide income. That’s very different from a lot of countries. I mean, our system is such that it doesn’t matter whether you have income in foreign countries. There’s no restriction under U.S. law — although of course recently in the last year there’s or so been a lot of hubbub about Swiss bank accounts [camera fades to shot of UBS exterior]. It’s perfectly legitimate to have those, it’s just that you have to declare them in the U.S., and report them, and you have to pay tax on that income.

4:09/Wood: So you start with that premise — I would just say, the major group of people I see these rules really tripping up, would be not U.S. citizens, but people who’ve been living in the U.S. with a green card for a long time, and then they may be particularly surprised by this new set of rules.

4:35/Drake: Yeah that seems particularly confusing, and as you said, punitive. If someone has established residency in the U.S. with a green card, for them to leave maybe to go back to their home country, they then are still subject to U.S. tax law.

4:51/Wood: Yeah, now that’s right. And I would just say that there is one thing — one thing that if you read this Forbes article will become clear, although I tried to make it as simple as I can — the rules are very complicated. And I mean, even for tax law they’re very complicated. So there are certain things one can do. One of them, for example, is a way of posting a bond or other security, even if you are subject to this new exit tax, you can — provided that the IRS feels secure that it’s going to get its money later — you can avoid this deemed sale. The idea being that you are giving them security that they will get their tax when and if you ever sell your property. So there are some things you can do, and there are a few little exceptions, but they’re darned small and far between.

5:44/Drake: It sounds like deciding to expatriate really doesn’t have any big tax benefits. You’re giving up U.S. citizenship, you really do have to leave, but it doesn’t sound like you’re getting much of a benefit, if any, tax-wise.

6:03/Wood: Yeah, that’s right. I guess to take the other perspective — if you really wanted to leave, for perhaps other reasons, and didn’t mind giving up U.S. citizenship, and have citizenship in another country, or could easily get acquire it — I suppose it would be, if you are worth $10 million today, and you think that five years from now, you’re going to be worth $100 million, then that appreciation wouldn’t be subject to tax in the U.S. But I mean, you’re quite right, it’s a big, big step; relatively few people even think about it.

6:44/Wood: I guess my favorite example of somebody who just played really clever cards — and I should stress that this was in the 1990s, and this was before these current rules, even before the 10-year rule took place, as I recall — and that was a fellow who, one of the Dart family, very wealthy family, who left the U.S., expatriated, and was able to come back as a non-U.S. citizen ambassador from the country of Belize, which is where he had moved to — which is sort of a tax haven — and he came back to live in the U.S., in the U.S. embassy, which had just been opened for him in his previous hometown of Florida, where he had lived as a U.S. citizen. And if that doesn’t sound like a very clever tax scam, my name isn’t Rob Wood.

7:41/Drake: [chuckling] Well regardless of the issue, it’s a good idea to get professional help to navigate complicated waters such as these. Rob, it’s always a pleasure to have you talking with us, and you just keep writing there.

7:57/Wood: I’ll do my best. Thanks for having me.

8:00/Drake: Robert Wood is a tax lawyer. He has a nationwide practice. He is the author of more than 30 books, including Taxation of Damage Awards and Settlement Payments. He can be reached, with other articles and content and publications, at woodporter.com. He is also the host of the Tax Law channel here on the Legal Broadcast Network. I’m Scott Drake. This was, once again, a service of ATG Trust. Thanks for watching.

I hate to be critical of Robert Wood, who has done a far better job of covering this issue in other contexts — especially in his columns in Forbes, such as the one which Just Me blogged about on Friday. And to be fair, this video is from a couple of years ago, and no doubt his understanding of the issues has become more nuanced since then. But when talking off-the-cuff on video, he too ends up contributing to the assumption that renunciation is primarily an issue of “tax avoidance” by onshore persons. Wood does not in the slightest deserve the accusations of malice or ignorance that we have thrown at other professionals and journalists who write about this topic. He’s simply talking from his experience — and by the nature of what he does for a living, the majority of his acquaintances who have to deal with the U.S. insane rules for taxation of “foreign income” are his clients: U.S.-resident whales who are consciously trying to push the limits in order to minimise their U.S. tax bills, and not U.S.-non-resident minnows who are tax-compliant in the countries where they live and certainly don’t have enough left over to pay a tax lawyer an appropriate rate for his hard-earned professional knowledge.

Similarly, if you’ve ever tried to talk with your own friends and family back in the homeland about tax compliance issues faced by Americans abroad, you’ll find that many of them just don’t get it at a gut level, even if they’re aware of the issues intellectually. It’s too far outside of their everyday experience, so they fall back on what I call the “default American assumption” that gets pounded into everyone by the incessant background drumbeat of American jingoistic journalism — that the U.S. is the only place you can get rich, that overseas income means “passive income” hidden in Swiss banks, that “leaving the country” and “renouncing citizenship” are simultaneous and synonymous acts, and that the only people who need to worry about any of the above are the idle, undeserving rich with seven-and-eight-figure trust funds.

This is another reason why I and some other participants here on the Isaac Brock Society have little faith that lobbying the U.S. Congress or getting the U.S. media involved in this issue will bring us any meaningful redress of our grievances — at best these are stop-gap measures to prevent the situation from getting worse while we each try to make our own decisions about our citizenship issues. Certainly there are a variety of legitimate ways of engaging with this problem, and even I can’t help but salute and support the tireless efforts of organisations like American Citizens Abroad in this regard. But my personal opinion is that the best return on our time comes instead from getting this issue in front of government officials and journalists of the places where we live — making FATCA, FBAR, and all Congress’ other garbage laws into an issue of foreign relations, rather than internal partisan politics where it will inevitably get drowned in populist calls to hunt down domestic “tax evaders who are offshoring American dollars and American jobs”.

One last point worth noting: Wood and Drake’s comments at 4:09 through 4:51. Neither’s words evince much sympathy for American citizen emigrants, but in contrast both demonstrate concern over the unfairness and incomprehensibility of US tax laws to immigrants. This suggests an obvious framing tactic for people who want to get these issues in front of the U.S. media: stop mentioning emigrants at all (since, as is well known, we’re all fat-cat traitors sipping piña coladas on tax-haven beaches), and instead start bringing up the copious FBAR, foreign trust, and FATCA horror stories faced by immigrants and children of immigrants.

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7 thoughts on “Video: Robert Wood speaks with Scott Drake on loss of U.S. citizenship

  1. Eric…

    Excellent commentary Eric, and a fair reading of Robert Woods comments, I think…

    I am slowly coming to your view about how to approach the problem. More Expats need to get their country of residency involved in resistance, just like the Canadians are doing. After watching the two recent hearings in Congress with Geithner and Shulman, I see that Expats living abroad are the target. US Congressman care not a whit about our problems. There is no appreciation of the harm the US citizenship taxation is doing to us, or in turn, America’s trade deficit as Roger so often points out. You comments about friends in the US not getting it, is exactly my experience.

    The Immigrant side of this problem and the harm that is being done them really bothers me almost more than what happened to me. Maybe it is because I have an Australian wife who has a greencard, and understood why the US system of taxation was so incomprehensible to her when I tried to explain what I had discovered back in 2009.

    I think of immigrants arriving in this country with fresh hope for the American Dream and having no idea of the tax complexity and problems awaiting them. There is no one explaining to them of the foreign reporting requirements for family trusts and joint accounts they have left back in their home countries. They have never been provided even the most basic advice about FBARS, foreign income reporting rules and now the IRS via the OVDI is quite happily taking significant portions of life savings from them, without regard to its failure to provide even the most rudimentary educational outreach. John Doe has done an excellent job pointing this out in very complete detail in this blog thread…

    http://federaltaxcrimes.blogspot.co.nz/2012/03/opting-out-2-3212.html

    Over the past year, I have heard their agony and pain of discovery many times at Jack’s blog, and while we as Expats, have ACA which tries the best they can to represent our interests with direct lobbying efforts with Congressman, I have often wondered who speaks for them? The answer, no one!

    The Expat story has had some limited journalist attention, but there has been nothing in the press about the immigrants problems. Theirs is the bigger untold and unheard story, I would bet.

    Now, you will see ij, Anon123, Moby and John Doe occasionally show up here, and one or two others to comment once in an while. But they are on the fringes mostly, and there are probably many others lurking, reading, trying to gather information on what to do, but too bashful or afraid to comment.

    They have been caught out by this IRS offshore trap, and are fearful of the financial pain that awaits them with no easy way to become compliant. I wished there was someway to better help them, but sadly, some have even lost even more of their savings by taking bad advice from practitioners whose charges to “help them” become compliant has doubled the cost as they struggle to understand and come current with the tax complexity requirements. I often wonder how many skilled immigrants are voting silently with their feet and walking down jetways and heading home as the IRS jihad continues unabated. They don’t have to renounce, and it is much easier for them return home without all the complications that Robert Wood talks about for US Citizens.

    Knowing what you and I know now, would you ever recommend to anyone to get a Greencard now, or become a US citizen? I certainly would not, unless you are truly a refugee with nothing left in your homeland, and no desire to ever reside overseas again.

  2. @Eric…

    After suggesting that you read John Does comments on Jack’s blog, I went over and started reading myself. I am a bit behind, as no one is asking me questions any more over there, and so for the past week I haven’t been reading. I started catching up from March 20th on, and if you really want to hear the immigrants plight, you get a full dose of it now. You Canadians think you are angry, spare a few moments to feel the immigrants pain!

    http://federaltaxcrimes.blogspot.co.nz/2012/03/opting-out-2-3212.html

  3. @Eric

    Thanks for putting this transcript together. You have far more patience for this than I ever could.

    @JustMe

    Great comments – more of your collected wisdom.

    @Eric

    I want to focus on this part of your comment:

    “Similarly, if you’ve ever tried to talk with your own friends and family back in the homeland about tax compliance issues faced by Americans abroad, you’ll find that many of them just don’t get it at a gut level, even if they’re aware of the issues intellectually. It’s too far outside of their everyday experience, so they fall back on what I call the “default American assumption” that gets pounded into everyone by the incessant background drumbeat of American jingoistic journalism …”

    You are absolutely right. There is only one group of people who “get it”. These are the people who are living this nightmare. It is possible for people to understand this intellectually (some but not all of the U.S. lawyers). But, they cannot and cannot be expected to understand this issue on a “gut level”. Interestingly I thought Mr. Wood made it clear that few people renounce over tax issues. In addition, I experience Mr. Wood as one of the very few U.S. lawyers who actually considers FBAR, FATCA, ctizenship-based taxation, etc. to be real issues (as opposed to just a vehicle to bleed people of their savings). But, there is no way that he can feel this.

    I would add that it is not just Americans living in the U.S. who don’t get this. I have spent a lot of time with Canadians (not dual citizens) who also can’t get this. At the same time, that I describe how the Obama administration is literally destroying the lives of (and I put it this way): “Canadian citizens who just happen to have been born in the U.S.”, they reiterate how much they admire Obama. I try as hard as I can to maintain friendships with these people (reminding myself, that there is no way they can understand), but it is tough. This is one of the great things about the Isaac Brock Society – there are people who understand out there somewhere!

    It’s as though (in general) there are two groups of people: those who are living the nightmare and those who aren’t.

    (An exception to the general rule would be Jim Flaherty. I am amazed at the way he has taken this cause on. I really believe that for him this is a matter of great principle. I don’t see anything in this for him on the issues of the FBARs and 1040s.)

    Right from the early days of this nightmare (for most beginning in 2011), I have been of the opinion that the only solution is to renounce and to renounce as quickly as possible. If this problem is to be solved, it is unlikely to be solved before the “problem of U.S. citizenship” completely destroys the lives of many on this board. There may be a few victories along the way, but if the war is to be won, it will be won by the next generation. We are sowing the seeds of victory. But, it will be the next generation to reap the benefits.

    You don’t have a right to a long life. You don’t have a right to a fair life. Furthermore, you need to do what is best for you and your families.

    On a postive note – you don’t live in the United States. I pity the people there who can’t see how their government is stripping them of their rights and turning the country into a police state.

    As I have said many times:

    “Renounce and rejoice”.

  4. @Renounce, @Eric, @Just Me

    Thanks for putting into words the phenomenon of “It’s as though (in general) there are two groups of people: those who are living the nightmare and those who aren’t.”

    “Getting it,” both in the US and in Canada (as well as all the other countries of the world) is almost an insurmountable task unless you are living it.

  5. The central theme that I don’t think ANYONE in America “gets” is that we face tax liabilities where we LIVE, which usually happen to be greater than what we would face living in America. Ask MarkPineTree or Roger what happens when we owe the “União” money !! (Union / aka Federal Government) They can basically put a lien on anything you own– or what I see the most here, is they confiscate your possessions outright and later auction them off! If they put a lien on something you own and you sell it, you will go to jail. This is one of the few things people actually can go to jail here for.

    Some of the highest paid non-political Federal Jobs here are tax inspectors. There are 2 federal and 1 state tax inspectors in my family, and I know several more through friends and acquaintances. Why do you think? Because the government loves tax money!

    The point I’m trying to make here, especially for any US-based persons who may be reading this is: US laws create a conflict between where we live, and where we were possibly born, and maybe even the nationality of our parents. In either case, we didn’t ask to be US Citizens.

    Rob Wood is 100% correct – for most people there is no tax advantage gained by renouncing, especially for some simple middle-class person like me. What he hasn’t mentioned yet is the FATCA and how banks refuse US Citizen clients, even though we don’t live in the US. When I look at the sheer money that I have spent on creating my life here (paying for lawyers, accountants, even doing driving school from scratch just to get my drivers license here), $450 seems very small in exchange for not having to lose this investment and being forced to capitulate and return to America.

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