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Between 1993 and 1998 several companies were designated as regional centers. These companies all competed for foreign capital from the foreign investors involved in the EB-5 Visa program. The competition that existed for the foreign capital and the newness of the EB-5 Visa program led to abuses of the system. Most of the companies didn't offer sound investments and were really in business to collect fees rather than to fund an ongoing business. Many investment opportunities didn't raise the full $500,000 investment capital or hire the required number of employees.
Top Tax Rate (2009): 45%
A gift of U.S. real estate is subject to gift tax (Treas Reg §25.2511-3(b)(1)).
The EB-5 Visa investment may be a passive investment, requiring no active business management. With a green card via an EB-5 investment visa investors have the flexibility to take any job, run any business, retire and live anywhere in the USA, with the benefits enjoyed by U.S. citizens including property ownership or education.
Income that is “effectively connected” to a U.S. trade or business.
These treaties provide for “competent authority” resolution for tax disputes (and information exchange), address double taxation by tax credits, and may provide a U.S. Estate Tax deduction for property passing to a Surviving Spouse.
(2) History EB-5 Program
U.S. Source “FDAP Income” i.e., Fixed or Determinable Annual or Periodical Income (e.g., salaries, wages, interest, rents, dividends and royalties).
If an alien is classified as both a U.S. tax resident and a resident of its treaty partner (“dual resident”), the tax treaties contain “tie-breaker” provisions which determine the dual resident’s tax residence status as follows:
Under U.S. domestic tax rules, the U.S. retains the right to tax gains realized by a non-resident from the sale of U.S. real property holding companies (IRC §897). Gains realized by a non-resident from the sale of personal property are “foreign source” and not taxable by the U.S. (IRC §865).
Under the Model Treaty, the U.S. as the country of residence provides its citizens and residents with a credit for income taxes imposed by a treaty partner to release double taxation. The creditable taxes are listed in the treaty (Art 23(1)). The U.S. statutory foreign tax credit rules determine the amount of the tax credit (U.S. Model Treaty Article 23). The U.S. will allow a foreign tax credit pursuant to the treaty credit article, even if a credit would not otherwise be available under the U.S. statutory foreign tax credit rules.
Non-Resident Alien: U.S. Tax Resident
(2) Effectively Connected Income
A gift of U.S. intangible personal property is not subject to gift tax (IRC §2501(a)(2)).
Introduction
Administrative Provisions
A non-resident alien is subject to gift tax when he makes a gift of real or tangible personal property situated in the U.S. (IRC §2501(a)(1), §2511(a); Treas Reg §25.2511-1(b)).
The investment required the creation of 10 jobs.
If the non-resident alien is a resident of a country with which the U.S. has an income tax treaty, the treaty may reduce or eliminate U.S. federal income tax on effectively connected income.
Income earned through a fiscally transparent entity (i.e., partnership, limited liability company, grantor trust) will be considered to be derived by a treaty resident if the residency country considers that person as deriving the item of income.
U.S. Estate Tax (Non-Resident Aliens)
Generation Skipping Tax
Non-resident aliens are not entitled to the unified credit ($1M in gifts exempt from tax).
Non-resident aliens are entitled to:
In 2002, Congress passed a new law to protect the pre-1998 investors. Also, in 2002, in a case commonly known as "Chang" the 9th Circuit Court of Appeals ruled that CIS may not apply their new rules retroactively. In August of 2003, CIS began approving regional center and EB-5 Visa petitions for the first time since 1998.
The treaties contain special tax rules which may reduce the alien’s U.S. Federal estate and gift tax liability. The treaties are designed to prevent double taxation on the transfer of the same asset (which is the subject of the estate or gift tax).
U.S. Estate Tax Treaties are either non-comprehensive (Estate Tax only) or comprehensive (Estate & Gift Tax).Non-Comprehensive Treaties
“FDAP Income” includes:
Non-resident aliens are subject to the generation skipping tax but only on gifts subject to gift or estate tax (e.g., no gift tax on lifetime “skips” of intangible property).
(1) Introduction
The EB-5 Visa program was started in 1991. In 1991, the Investor for an EB-5 Visa was required to make an investment of a minimum:
The United States has 18 estate & gift tax treaties (see below). To qualify for the treaty tax benefits, an alien must be domiciled in either the U.S. or a U.S. Treaty Country i.e., country of origin (or choice), at the time of his death or at the time of the gift.
Non-resident aliens are entitled to:
In the case of non-grantor trusts and estates, treaty “residency” (i.e., the liability for income tax) is determined by the domicile, residence, place of management of the estate or trust. The trust or estate is liable for tax in the treaty per the country (not whether income is liable to tax in the “hands” of the trust/estate or its beneficiaries).
The CIS is constantly continuing their efforts to expedite and organize the EB-5 program. Up until January 2009, there were three different filing locations for visa and/or regional center petitions. Currently the CIS has established a unit at the California Service Center and utilizes it as the sole location to file for the EB-5 program. This center is comprised of specially-trained adjudicators dedicated to EB-5 adjudications. By consolidating adjudications at the center, USCIS believes that it will be able to reduce overall processing times and better monitor EB-5 related adjudications.
The investment may be made in one of three forms with the EB-5 Visa:
CIS rightly wanted to stop these abuses of the program. In 1998, CIS wrongly applied their revised rules retroactively to people who already had approved petitions. CIS attempted to revoke these visa petitions. This started the litigation. The litigation that ensued put the program on hold from 1999-2002.
Comprehensive Treaties address both Estate & Gift Taxes, determine primary taxing jurisdiction and Decedent’s residence (based on domicile). Location determines primary taxing jurisdiction for real estate, business assets of a permanent establishment, and a fixed base for the performance of personal services.
A non-resident alien, who is engaged in a U.S. trade or business, is subject to U.S. federal income tax on his “effectively connected income”, at same tax rates as U.S. citizens and resident aliens (IRC §871(b)).
A non-resident alien is subject to U.S. estate tax on their taxable estate assets situated in the U.S. (IRC §2101(a), 2106(a)).
Personal Services
Substantial Presence Test
Under U.S. Federal Estate & Gift Tax Laws, an alien is taxed as a U.S. Estate & Gift Tax Resident once he establishes a U.S. domicile. An alien acquires a U.S. domicile by living in the U.S. (for even a brief period of time) with the requisite intention to indefinitely remain (Treas Reg §20.0 – 1 (b)(1) Treas Reg §25.2501 – 1(b))
For a non-resident alien, engaging in a U.S. trade or business is not the basis for U.S. income tax. U.S. income tax is imposed if a non-resident alien owns a business through a permanent establishment in the U.S., i.e., a fixed place of business, (e.g., place of management, a branch, an office, a factory).
U.S. Income Tax Treaties
(3) U.S. Tax Issues – Non-Resident Aliens
Special treaty residency issues are presented by U.S. citizens and aliens admitted for permanent residence in the United States (i.e., “green card holders”). The United States taxes its citizens and residents on their world-wide income, wherever they reside. Such individuals may be U.S. Income Tax residents (for tax treaty purposes) even when physically residing outside the U.S.).
An alien who meets the substantial presence test may avoid being classified as a U.S. tax resident if:
A non-resident alien who relies on a U.S. tax treaty for an exemption from U.S. tax that is effectively connected with a U.S. trade or business is required to file IRS Form 8833 to disclose the tax exemption reliance (IRC §6114; Treas Reg 301.6114-1).
Non-resident aliens are subject to U.S. Income Tax on U.S. source: (1) FDAP Income, (2) Effectively Connected Income.
In the 21st Century, world globalization has produced the following results:
An alien satisfies the “substantial presence test” for any calendar year (the “current year”) if:
An alien, who establishes a U.S. domicile, is subject to:
Capital Gains
The U.S. Model Income Tax Treaty (Art 4(1)) defines “resident of a contracting state” as “any person who, under the laws of that state is liable for tax in the state, by reason of his domicile, residence, citizenship, place of management, place of incorporation”.
An alien is classified as a resident alien (U.S. tax resident) if:
If an “employer” corporation provides the entertainer/athlete’s services, the income may be taxed in the country in which the activities are exercised unless the contract pursuant to which the personal services are performed allows the Employer Corporation to designate the individual who is to perform the personal activities (U.S. Model Tax Treaty 16(2)).
Non-comprehensive treaties deal exclusively with Estate Taxes, providing “situs rules” for specific assets and determining which country has jurisdiction to impose tax on the assets. Estate tax deductions (and specific exemptions) are allowed under the law of the country imposing the tax.
The U.S. currently has 61 Income Tax and 18 Estate & Gift Tax Treaties (see, below). A Tax Treaty is a bi-lateral agreement, between two (2) countries, in which country modifies their tax laws for reciprocal benefits.
Athletes & Entertainers
The source country retains the right to tax all compensation from dependent personal services. If three (3) conditions are satisfied, dependent personal services income is exempt from source country taxation:
“Substantial Presence Test”: Closer Connection Exception
Estate Tax Treaties provide tax credits to eliminate double taxation. Each country allows a credit against its Estate Tax, in accordance with a formula specified in the treaty, with respect to property situated in either country or both countries.
On November 2, 2007, the Wall Street Journal published an article: “Got $500,000? The U.S. Awaits (Government’s EB-5 Program Offers Foreign Investors Green Cards for Job Creation)”.
The United States has 61 income tax treaties (see below). To be eligible for the benefits of an income tax treaty, an individual must qualify as a resident of either the U.S. or the other country that is a party to the treaty (“the contracting state”).
A non-resident partner of a U.S. partnership (trade or business in the U.S.) is taxable by the U.S. in the partner’s share of partnership income (under the branch profits article of a U.S. income tax treaty). Any gains from the sale of such a partnership interest will be taxable by the U.S. to the extent the gains are attributable to business assets of the partnership (Donroy v. U.S. 301 F.2d 200 (9th Cir 1962), Unger v. Commr 936 F.2d 316 (D.C. Cir. 1991), aff’g T.C. Memo 1991-15; Rev. Rul. 91-32 1991-1 C.B. 107).
Income tax treaties may reduce or eliminate the 30% flat tax on the FDAP Income.
Under the U.S. Model Income Tax Treaty Art 16(1), performance income of an athlete or entertainer may be taxed by the source country if gross receipts paid by the entertainer or athlete exceed $20,000 for the taxable year. If gross receipts exceed $20,000, the full amount paid the athlete or entertainer may be taxed (not just the excess over $20,000). Tax may be imposed under Article 16 even if the performer would have been exempt from tax under Article 17 (Business Profits) or Article 14 (Income from Employment) of the U.S. Model Income Tax Treaty.
Co-authored by Jordan L. Eftekari, Esq.
Income tax treaties seek to prevent double taxation by:
In January 2005, to improve and expedite EB-5 regional center related applications USCIS established an Investor and Regional Center Unit, (“IRCU”). The unit is the sole adjudicative jurisdiction for Regional Center applications pursuant to the Immigrant Investor Pilot Program for purposes of approval, denial and Requests for Evidence (RFE's). The unit also monitors and follows up on the actions of approved Regional Centers to ensure compliance with the terms, scope, and conditions of their approval/designation relative to their approved business plans and indirect job creation methodologies. Finally, the unit develops and proposes EB-5 program, policy, and regulation changes or improvements to USCIS management.
An investor (and immediate family) can now obtain green cards (Permanent US Residency) with an EB-5 Visa by investing $500,000 into a Government approved Regional Center (currently, over 30 Regional Centers). Investors receive the security of permanent US residence without repeated visa applications. Citizenship may be obtained after five years.
As of 2002, Investors may invest $500,000 in a regional center (in a targeted unemployment area) without the necessity of creating 10 jobs. For the $500,000 investment, an investor receives a “conditional green card.”
For employees, compensation for personal services (i.e., dependent personal services) may be taxed by the employee’s residence country and by the source country, to the extent the services are performed in the source country (see U.S. Model Income Tax Treaty Art. 14(1)).
A non-resident alien is subject to U.S. federal income tax on FDAP income at a flat 30% tax rate (without the benefit of any related deductions) IRC §871(a), 873(a). The flat 30% income tax is withheld at the income source (IRC §1441).
The EB-5 Visa Program was amended in 2002 by the following statute (Pl 107-273 Sec. 11037 – 2002):
Under U.S. Federal Income Tax Laws, an alien is either taxed as a resident alien (subject to U.S. Income Tax on world-wide income) or a non-resident alien (subject to U.S. Income Tax on U.S. source income).
Income Tax treaty benefits are available only to a “resident” of a country and special rules may apply to determine residency of trusts, estates, flow-through and hybrid entities. Relief from double taxation is afforded a treaty resident by specific provisions allocating taxing jurisdiction over items of income between the two countries that are parties to a treaty, and by a “treaty” tax credit provision. Administration provisions, providing for mutual agreement procedure and for exchange of information and assistance in collection are intended to prevent tax avoidance and evasion.
Comprehensive Treaties
For the first two years the program was only set up for those who were willing to invest and create their own business that would produce at least ten jobs. However, in 1993, the government began to designate certain businesses as regional centers. Original businesses that existed in an area where the unemployment rate exceeds the national average by 150% or the rural population is less than 20,000 fit within the regional center designation and were then eligible to be duly approved by the CIS (formerly the INS).
U.S. Estate & Gift Tax Treaties
U.S. Gift Tax (Non-Resident Aliens)
For U.S. estate tax, both stock of a U.S. corporation (IRC §2104) and U.S. real estate (Treas Reg §20.2104-1(a)91)) are “situated” in the U.S.
A person who acquires property from a non-resident alien decedent will receive a “stepped-up” basis in the property (i.e., a basis equal to the fair market value of the property at the date of the decedent’s death) regardless of whether the property was includible in the non-resident alien’s gross estate for estate tax purposes (IRC §1014(b)).
International investors in the U.S. face immigration issues (i.e., legal presence) and Income, Estate & Gift Tax issues, potential “double taxation” (in the U.S. and their country of citizenship), potential “triple taxation” (if they have a third country of residence).
Estate & Gift Tax Treaties (18)
Income is deemed to accrue to the Employer Corporation if it controls or has the right to receive gross income in connection with the performer’s services (Article 16).
“A regional center shall have jurisdiction over a limited geographic area, which shall be described in the proposal and consistent with the purpose of concentrating pooled investment in defined economic zones. The establishment of a regional center may be based on general predictions, contained in the proposal, concerning the kinds of commercial enterprises that will receive capital from aliens, the jobs that will be created directly or indirectly as a result of such capital investments, and the other positive economic effects such capital investments will have.''
The $500,000 investment is the least expensive way to satisfy the visa requirements in order to receive the permanent green card after the two-year period. Although the first two types of investment lead to permanent green card status, they require an additional showing that at the end of the two year period, ten qualified individuals have maintained jobs in the targeted employment area.
Morrie Berez, chief of the EB-5 program at USCIS, stated: “The opportunity is truly beautiful to individuals who want to live and contribute their energy in the United States, and it creates economic growth and especially jobs for Americans.”
If a treaty contains a savings clause, the U.S. may tax a Decedent’s Estate, or donor’s gift, as though the treaty was not in effect.
The minimum period of the investment is approximately three years. Once an investor emigrates they may apply to have ‘conditions’ removed after 1 year and 9 months in the USA. Processing takes up to six months. ‘Conditions removal’ means that the investment is no longer tied to the EB5, and the investor is then free to sell the investment.
Since 1976, a unified tax rate is applied to assets transferred for both estate and gift tax (tax free gifts up to $1M, tax free estate up to $3.5M (2009), which includes gifts).
Under U.S. Income Tax treaties, source country taxation is preserved for real estate income (i.e., the source country has the primary taxing right). The source country does not have the exclusive taxing right; avoidance of double taxation depends upon the residence country granting a tax credit for source country tax.
U.S. Income Tax (Non-Resident Aliens)
(1) “FDAP” Income
There are 10,000 EB-5 Visas available every year, and only 867 issued in 2007. Based on the favorable currency arbitrage (Euro/Dollar, UK Pound/Dollar) the EB-5 Visa is a cost-effective, time-efficient way to immigrate to the U.S.
Income from employment may be taxed in the country of residence. Income from furnishing personal services (i.e., not employee services) is taxed by the source country as “business profits” derived from furnishing personal services. Income that may be taxed as business profits includes all income from the performance of the personal services carried on by the partnership and any income from ancillary activities to the performance of these services.
(4) U.S. Tax Treaties
Under U.S. Income Tax treaties, interest, royalties (intellectual property: copyrights, patents, trademarks) is taxable by the owner’s country of residence (i.e., the source country attributes the income to owner’s country of residence).
Under a treaty’s savings clause, the United States reserves the right to tax its citizens and residents (as determined under a treaty) as if the treaty had not entered into force. As a result, U.S. citizens and residents may not use a U.S. Income Tax Treaty to reduce U.S. Income Tax.
Income Tax Treaties (61)
Tax Treaties have three (3) objectives:
A Federal program known as EB-5 (Immigrant-Investor Visa), administered by the U.S. Citizenship & Immigration Services (“USCIS”), encourages foreign investors to invest their way to living in the U.S.A.
Foreign Tax Credits
Non-resident shareholders of U.S. corporations are subject to a 30% statutory withholding tax on U.S. source dividends that are not “effectively connected” business income and paid to a non-resident (IRC §871(a), 881(a), 1441(a)). The withholding rate may be reduced by treaty.
“FDAP Income” does not include:
An alien who claims the benefit of a treaty, to be classified as a non-resident, will still be subject to U.S. federal income tax as a non-resident alien.
U.S. Income Tax Treaties grant permission to authorities of each country to deal directly with each other to resolve taxation disputes, to exchange information and assist each other in tax collection (Model Treaty Art. 25: Mutual Agreement Procedures, Art 26: Exchange of Information).
A non-resident alien must file IRS Form 8833 to disclose reliance on a U.S. tax treaty for an exemption from U.S. tax on “effectively connected income.”
Under U.S. tax treaties, gains from the sale of real property are taxable by the country in which the real property is located. The source country has the primary taxing right which is not an exclusive right. Avoidance of double taxation will depend upon whether the resident country grants a credit for source country taxes.
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