July 15, 2014

I.R.S. Announces Major Changes to Amnesty Programs

July 15, 2014/ Web Admin

The I.R.S. announced major changes to its amnesty programs last month. These changes can be broken into two parts: changes to the 2012 Offshore Voluntary Disclosure Program (“O.V.D.P.”), which can be to referred to as the 2012 Modified O.V.D.P. or the 2014 O.V.D.P., and changes to the streamlined procedures (“Streamlined Procedures”). As the requirements for the latter are relaxed, the requirements for the former are tightened.

The changes in the amnesty programs reflect the new I.R.S. approach for addressing taxpayers with offshore tax issues. The new approach provides one path for willful taxpayers, with steeper penalties but certainty, and another path for taxpayers who believe their conduct was non-willful, with reduced penalties but uncertainty to the extent their conduct is subsequently proven willful.

CHANGES TO O.V.D.P.

The major changes to the 2012 O.V.D.P. include the following:

Changes to Preclearance Process

Under the 2012 O.V.D.P., all that was required was to submit a preclearance request was a fax to the I.R.S. O.V.D.P. department that contained the taxpayer’s name, social security number, date of birth, address, and if the taxpayer was represented by an authorized party, an executed power of attorney (P.O.A.).

July 15, 2014

Using the U.K. as a Holding Company Jurisdiction: Opportunities and Challenges

July 15, 2014/ Web Admin

Read Publication

INTRODUCTION: AN IDEAL HOLDING JURISDICTION?

At a time when a quintet of septuagenarian comics attempt to revive former glories with a final run of a live show of Monty Python in London, it is worth reflecting on the Holy Grail of the international tax practitioner: to find the perfect international holding company jurisdiction.

In this, the holding company jurisdiction needs certain characteristics:

The possibility of returning profits to shareholders with minimal tax leakage;
The ability to receive profits from underlying subsidiaries without taxation at home;
The ability to dispose of investments in the underlying subsidiaries without triggering a tax charge on any profit or gain;
A good treaty network to ensure that profits can be repatriated to the holding company from underlying subsidiaries, whilst minimizing local withholding taxes; and
Low risk from anti-avoidance measures that profits of subsidiaries will otherwise be taxed in the holding company jurisdiction.

The U.K. has emerged over the last decade as an increasingly viable holding company jurisdiction, particularly for investments in countries within the European Union.

June 15, 2014

Expatriation the Transatlantic Way: Overview of the French and the U.S. Regimes

June 15, 2014/ Web Admin

Over the past years, both France and the United States have recorded a growing number of individuals expatriating as a tax planning device. In order to discourage these tax exiles, the French government introduced an exit tax in the late 90’s. The regime was later invalidated by the C.J.E.U. and reborn, in modified form, in 2011. Like France, the U.S. is no longer a tax paradise for those wishing to expatriate. In this article, guest author Nicolas Melot of Melot & Buchet, Paris, and Fanny Karaman compare the French and American exit tax regimes by giving an overview of their respective scopes and effects. For both U.S. and French purposes, the exit tax constitutes an important element in determining whether or not to expatriate.&

May 15, 2014

Swiss Trustees and Board Members of Foundations Have to Prepare for F.A.T.C.A.

May 15, 2014/ Web Admin

Read Publication

BACKGROUND

Trusts are unknown under Swiss law and family foundations are not commonly used because their purpose is very limited by law. Consequently, many Swiss trust companies, family offices or lawyers act as trustees of non-Swiss trusts or as members of family foundations. It is not uncommon for trustees, trusts or foundations, and underlying companies to be established under the laws of different jurisdictions, and typically Liechtenstein is used.

Foreign trusts and foundations, foreign trustees and underlying holding companies that invest in the U.S. must determine their classification under the Foreign Account Tax Compliance Act (“F.A.T.C.A.”) and possibly a relevant intergovernmental agreement (“I.G.A.”). In the case of Switzerland, a Model 2 I.G.A. exists.

The determination must be made prior to the end of June 2014, even if no U.S. owners or beneficiaries are involved. The reason is that, by 1 July 2014, a foreign entity that is a Foreign Financial Institution (“F.F.I.”) must register on the I.R.S. F.A.T.C.A. portal and receive a G.I.I.N. The I.R.S. has announced that the last date to register and receive a G.I.I.N. prior to 1 July 2014 is 5 May. Registration is required unless the F.F.I. is a certified deemed-compliant F.F.I. or a Non-Financial Foreign Entity (“N.F.F.E.”). An exempt F.F.I. could be a sponsored investment entity, a sponsored closely held investment vehicle, or an owner-documented F.F.I. In each of those fact patterns, another entity is engaged to carry out the F.A.T.C.A. reporting. An N.F.F.E. is an entity that is formed outside the U.S. that is not an F.F.I.

Recent Articles

The Corporate Records Nobody Thinks About Until Someone Asks For Them

Forming a Delaware corporation or limited liability company (“L.L.C.”) is remarkably easy. Remembering what to do with its internal records afterwards can be another matter. Corporate attorneys are frequently asked to form corporations and limited liability companies for use as blockers, holding companies, or acquisition vehicles in connection with a transaction. The entity itself may be only a small part of a much larger transaction, with most of the attention being paid to the purchase agreement, financing documents, or other agreements that is entered into by the newly formed entity. Once the transaction is completed, however, the internal corporate records of the newly formed entity can easily become an afterthought. The issue often resurfaces months or years later when a lender, purchaser, investor, or foreign counsel asks to see them. In his article, Simon Prisk looks at the various ancillary documents that are executed and then frequently ignored by clients that do not have an internal legal department. Examples include (i) certificates of formation, (ii) bylaws, (iii) subscription agreements, (iv) amendments to reflect changes to formal ownership records, and (v) a physical or digital minute book.

The I.R.S.’s Multifaceted Scrutiny of Partnership Basis-Shifting Transactions

Over the past several years, the I.R.S. has targeted tax-free partnership transactions designed to shift tax basis to property in a way that will yield tax savings for the partner, the partnership, or both. The goal of these transactions is to use the interplay of rules governing inside basis and outside basis to shift tax basis from assets where it is less beneficial for income tax purposes to assets where a higher basis provides greater benefits, i.e., because the asset offers greater cost-recovery deductions or smaller taxable gains when sold. Regulations were adopted in final form during the last days of the Biden Administration, but were withdrawn in Notice 2025-23, with effect as of the date of their issuance. In his article, Wooyoung Lee (i) observes that, while the regulations were withdrawn, the I.R.S. has not withdrawn Rev. Rul. 2024-14, which accompanied the proposed regulations when issued in 2024 and explains the three types of basis-shifting transactions that, in the view of the I.R.S., fail the economic substance doctrine that is codified in Code §7701(o).

Form 5472 and Foreign-Owned U.S. Entities: The New Chief Counsel Guidance

Foreign owners of single member U.S. limited liability companies (“L.L.C.’s”) are often told that an L.L.C. with one member is a disregarded entity for U.S. tax purposes. They assume that it means exactly that: disregarded. The assumption is understandable. It was true in almost every relevant respect for many years. It is still true for U.S. income tax purposes. A single-member L.L.C. generally files no income tax return of its own. Its income, deductions, and assets belong to its owner. But the assumption is wrong in one important respect. Since 2017, a foreign-owned single-member L.L.C. has been treated as a domestic corporation for purposes of the reporting and record-maintenance obligations under Code §6038A, involving transactions between the L.L.C. and its foreign related parties. The reporting mechanism is Form 5472 (Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business.) The I.R.S. instructions confirm that a reporting corporation includes a ≥25% foreign-owned U.S. corporation, including a foreign-owned U.S. disregarded entity. On April 24, 2026, the I.R.S. released Chief Counsel Advice 202617012 (“C.C.A.”). The C.C.A. addresses when the reasonable cause exception to the Code §6038A penalty applies and, in particular, what it means for the I.R.S. to apply that exception “liberally” for certain small corporations. In her article, Galia Antebi explains (i) Code §6038, (ii) the reasonable cause standard in Treas. Reg. §1.6038A-4(b), and (c) how that standard was applied in the C.C.A. While the C.C.A. may not be used or cited as precedent, it serves to illustrate how the I.R.S. evaluates reasonable cause at the time of the C.C.A.’s issuance.

Beyond Form W-7: Practical Lessons From the Front Lines of I.T.I.N. Compliance

For many non-U.S. individuals, obtaining a U.S. Individual Taxpayer Identification Number ("I.T.I.N.") represents their first substantive interaction with the U.S. tax system. At first glance, the process may appear relatively straightforward: complete Form W-7, provide the required supporting documentation, submit the application to the I.R.S., and await issuance of the I.T.I.N. In practice, however, the process is considerably more nuanced. All of these steps must be coordinated through an I.R.S. Certifying Acceptance Agent ("C.A.A."), assuming the individual does not wish include his or her passport in the packet of documents sent to the I.R.S. In his article, David te Boekhorst, the Founder and the Director of Angularis Global Services Inc., offers practical observations drawn from true life experience working in coordination with legal and tax advisors to assist international clients in navigating the administrative and compliance-related dimensions of the I.T.I.N. application process. He addresses (i) the purpose of the I.T.I.N. program, (ii) the role and responsibilities of the C.A.A., (iii) common misconceptions surrounding I.T.I.N.’s, and (iv) practical lessons learned from guiding foreign individuals through the application process.

Taxation of Trusts and Foundations in the Netherlands

Legal systems regarding taxation differ significantly between jurisdictions, and legal vehicles used to attain a specific goal often must be revised when a border is crossed. A clear illustration of this is the discretionary trust, which is a common estate planning tool in the U.S., but is often associated with tax avoidance schemes in the Netherlands. For that reason, assets, liabilities, and income of a discretionary trust are attributed to the contributor under the Afgezonderd Particulier Vermogen (“A.P.V.”) regime. An A.P.V. is defined as a segregated estate that is intended to serve a private interest that is more than incidental. In their article, Stan Stevens, a Partner at HVK Stevens Tax and Legal in Amsterdam, and Sandra Singh, a Director at the same firm, explain the rules and how they are applied in troublesome fact patterns, including unexpectedly harsh treatment if (i) a contributor of a trust moves to the Netherlands, (ii) a nonresident contributor arranges for the trust to have Dutch source income, (iii) a nonresident contributor owns Dutch situs assets at the time of death, or (iv) a Dutch expat individual dies within ten years from the date of expatriation.

The French 3% Tax on Real Estate: A Guide to Treading in Perilous Waters

No rule is more easily ignored than one no one seems to have heard of, and few provisions of French tax law make the point as neatly as the annual 3% tax on the fair market value of French real estate held by legal entities (taxe annuelle sur la valeur vénale des immeubles). Indeed, while having a very broad scope – the 3% tax is never far away where a French real estate property is not owned directly by an individual – it seems to be often overlooked by international investors, exposing them to significant tax risks. The 3% tax was initially conceived as a tracking device to seek out individuals attempting to avoid wealth tax or registration duty. Assessment of the tax is not time-barred until the end of the sixth year following the year involved, leading in the most egregious case to a 21% tax based on the real estate value. In their article, Xenia Lordkipanidze, a Partner in the Tax Department of OVERSHIELD Avocats, Paris, and Clement Pere, a Senior Associate in the Tax Department at the same firm, take a deep dive into the rules, explaining (i) how the tax is computed when a chain of corporations stands between the individual and the property, (ii) the persons who a deemed to be authorized to receive notices from the French Tax Authority, (iii) the 30-day grace period to file late that is offered to first time offenders, (iv) seven applicable exemptions to the 3% tax, (v) adverse case law for persons and entities that challenge the tax, and (vi) several items of practical guidance for affected individuals.

Belgium Makes Progress on its Long-Awaited Tax Reform

With a coalition government in office for 19 months, Belgium is making progress on the implementation of the ambitious tax reform that was announced when the new government was about to be sworn in. Although progress is real, it is taking shape piece by piece instead of one massive overhaul. In their article, Werner Heyvaert, Of Counsel at Advisius Tax & Legal in Brussels, and Yannick Vandenplas, an Associate at the same firm, explain the myriad of changes adopted earlier this year, including (i) the introduction of a broad capital gains tax on financial assets for Belgian individual taxpayers, followed up in administrative guidance that was issued in July, (ii) stricter rules for the dividends received deduction for Belgian corporations and for the dividend withholding tax exemption allowed to nonresident corporations, (iii) changes to the company exit tax regime, allowing for taxation of the “Liquidation Bonus” realized by individual shareholders, (iv) the adoption of a special tax regime for “carried interests,” (v) an overhaul of the tax regime for newly arrived expats, (vi) a revision to the Investment Deduction regime, a tax incentive allowing Belgian businesses to deduct a notional portion of the purchase price or investment cost of qualifying fixed assets made during the year, and (vii) the adoption of mandatory digital invoicing.

Insights Vol. 13 No. 3: Updates & Other Tidbits

This month, Nina Krauthamer and Wooyoung Lee look briefly at two recent developments in tax. The first addresses pied-à-terre homes in New York City. Following tax policies adopted by certain cities in Canada, a yearly property tax surcharge will be imposed on New York City homes worth $5 million or more when (i) the home is not used as a primary residence for the owner or for a family member or (ii) is not rented out on full-time basis to an individual who uses the unit as a primary residence. The second development is reported by an anonymous source in contact with an unnamed immigration lawyer. According to the source, the I.R.S. is considering a change to Form 1040 (U.S. Individual Income Tax Return) to add two check boxes to the form. One will be used to indicate (a) whether the resident filer is or is not a U.S. citizen. The second will be used to identify w

I.R.S. Offers New Settlement For Easement Tax Shelters

In May, the I.R.S. announced a settlement offer for partnerships involved in disputes concerning “syndicated conservation easements.” The dispute involves the value of charitable deductions claimed in regard to the grant of an easement that prevents the owner from developing land. An easement is a legal right that allows one party to use a specific portion of someone else’s property for a specific, limited purpose without actually owning the land. The grant purportedly becomes a tax shelter when (i) multiple unrelated investors (ii) pool their money in a partnership or syndicate (iii) that is formed to acquire various parcels of undeveloped land (iv) for the principal purpose of contributing development rights to a land trust, (v) that allows the investors to claim charitable contribution deductions at purportedly inflated values far in excess of the investment in the land. In their article, Stanley C. Ruchelman and Wooyoung Lee explain the history of this typically U.S. centric tax shelter to readers outside the U.S.

Q.S.B.S. Stacking: Is the Clock Ticking?

“Q.S.B.S.” is a tax related acronym in the U.S. for Qualified Small Business Stock. When a start-up corporation meets certain conditions enumerated in Code §1202, noncorporate investors are offered the opportunity to derive tax-free capital gains by holding the investment for a period of time prior to a liquidity event. The greater of $10 million of gain or 10 times the taxpayer’s basis in the Q.S.B.S. – referred to as “basis loading – may be exempt from tax on exit. The tax benefit can be enhanced by creating multiple irrevocable nongrantor trusts, each formed for the benefit of a specific family member. Each trust is entitled to its own capital gain exemption, so long as the multiple trust rule of Code §643(f) is not triggered. Under that rule, multiple trusts having (i) the same grantor, (ii) substantially the same primary beneficiaries, and (iii) an income tax avoidance purpose are treated as a single trust.. Among savvy investors, the tax plan is known as “stacking.” In her article, Galia Antebi reports that Treasury Assistant Secretary for Tax Policy Kenneth Kies recently signaled that Treasury does not like stacking. The bad news is that forthcoming Q.S.B.S. guidance is expected to limit taxpayers’ ability to multiply the benefit. The good news is that basis loading is not a target – at least for now.

Cross-Border Wealth Planning – Five Questions to Answer When Planning a Move to Italy

When individuals consider moving their tax residence to Italy, the first conversation almost always begins with a specific question. How will I be taxed in Italy? It is a question that comes most naturally to clients who have read about Italy’s special regimes. But is it the only question that should be considered? In her article, Giada Mazzola, Senior Counsel at Caldara & Associati in Milan, cautions that an adviser who treats the first conversation as a tax-rate conversation will produce an answer that may be technically correct, but may be problematic for practical reasons related to the way the client chooses to live. A more useful approach is one that asks the five questions that all begin with the letter “W” – Who? What? When? Where? and Why? An adviser will be able to fashion a tax plan and a life plan that meets the needs of the client over the long haul only when those five questions are asked by the adviser and answered by the client (i) fully, (ii) completely, and (iii) honestly.

Beneficial Ownership Reporting Update in B.V.I. – From Filing Obligations to Enforcement Risks

In the past year, the British Virgin Islands (“B.V.I.”) beneficial ownership information (“B.O.I.”) reporting regime moved from consultation and transition to implementation and enforcement in ways that may affect more than companies and their beneficial owners. Areas of the law that are potentially affected, include (i) beneficial and legal ownership and title, (ii) proprietary rights, (iii) shareholder disputes, (iv) creditor rights and secured lending, (v) fiduciary obligations, (vi) registered agent duties, (vii) privacy, (viii) cross-border confidentiality, and (ix) potential public law challenges to administrative decision-making.that may affect more than companies and their beneficial owners. In his article, Joshua Mangeot, a leading advisor on the implementation of the B.V.I. economic substance and beneficial ownership reporting requirements, points out that these are areas of the law that areprovides an update on the B.V.I. position, focusing on points most likely to matter to international tax advisors, family offices, corporate and fiduciary service providers, trustees, private banks, fund managers, litigators, and end-clients using B.V.I. companies or limited partnerships in cross-border structures. It raises potential issues regarding (i) beneficial and legal ownership and title, (ii) proprietary rights, (iii) shareholder disputes, (iv) creditor rights and secured lending, (v) fiduciary obligations, (vi) registered agent duties, (vii) privacy, (viii) cross-border confidentiality, and (ix) potential public law challenges to administrative decision-making. Clearly, the adoption of the B.O.I. reporting regime can be viewed to be the equivalent of the proverbial camel’s nose under the tent.

Browse all →

Publications

Other Publications

Insights

Publications

I.R.S. Announces Major Changes to Amnesty Programs

CHANGES TO O.V.D.P.

Using the U.K. as a Holding Company Jurisdiction: Opportunities and Challenges

INTRODUCTION: AN IDEAL HOLDING JURISDICTION?

Expatriation the Transatlantic Way: Overview of the French and the U.S. Regimes

Swiss Trustees and Board Members of Foundations Have to Prepare for F.A.T.C.A.

BACKGROUND

RUCHELMAN

services

Resources

news & events