26 USC 877 - Expatriation to avoid tax

U.S Code last checked for updates: May 12, 2024

§ 877.

Expatriation to avoid tax

(a)

Treatment of expatriates

(1)

In general

(2)

Individuals subject to this section

This section shall apply to any individual if—

(A)

the average annual net income tax (as defined in section 38(c)(1)) of such individual for the period of 5 taxable years ending before the date of the loss of United States citizenship is greater than $124,000,

(B)

the net worth of the individual as of such date is $2,000,000 or more, or

(C)

such individual fails to certify under penalty of perjury that he has met the requirements of this title for the 5 preceding taxable years or fails to submit such evidence of such compliance as the Secretary may require.

In the case of the loss of United States citizenship in any calendar year after 2004, such $124,000 amount shall be increased by an amount equal to such dollar amount multiplied by the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting “2003” for “1992” in subparagraph (B) thereof. Any increase under the preceding sentence shall be rounded to the nearest multiple of $1,000.

(b)

Alternative tax

A nonresident alien individual described in subsection (a) shall be taxable for the taxable year as provided in section 1 or 55, except that—

(1)

the gross income shall include only the gross income described in section 872(a) (as modified by subsection (d) of this section), and

(2)

the deductions shall be allowed if and to the extent that they are connected with the gross income included under this section, except that the capital loss carryover provided by section 1212(b) shall not be allowed; and the proper allocation and apportionment of the deductions for this purpose shall be determined as provided under regulations prescribed by the Secretary.

For purposes of paragraph (2), the deductions allowed by section 873(b) shall be allowed; and the deduction (for losses not connected with the trade or business if incurred in transactions entered into for profit) allowed by section 165(c)(2) shall be allowed, but only if the profit, if such transaction had resulted in a profit, would be included in gross income under this section. The tax imposed solely by reason of this section shall be reduced (but not below zero) by the amount of any income, war profits, and excess profits taxes (within the meaning of section 903) paid to any foreign country or possession of the United States on any income of the taxpayer on which tax is imposed solely by reason of this section.

(c)

Exceptions

(1)

In general

(2)

Dual citizens

(A)

In general

An individual is described in this paragraph if—

(i)

the individual became at birth a citizen of the United States and a citizen of another country and continues to be a citizen of such other country, and

(ii)

the individual has had no substantial contacts with the United States.

(B)

Substantial contacts

An individual shall be treated as having no substantial contacts with the United States only if the individual—

(i)

was never a resident of the United States (as defined in section 7701(b)),

(ii)

has never held a United States passport, and

(iii)

was not present in the United States for more than 30 days during any calendar year which is 1 of the 10 calendar years preceding the individual’s loss of United States citizenship.

(3)

Certain minors

An individual is described in this paragraph if—

(A)

the individual became at birth a citizen of the United States,

(B)

neither parent of such individual was a citizen of the United States at the time of such birth,

(C)

the individual’s loss of United States citizenship occurs before such individual attains age 18½, and

(D)

the individual was not present in the United States for more than 30 days during any calendar year which is 1 of the 10 calendar years preceding the individual’s loss of United States citizenship.

(d)

Special rules for source, etc.

For purposes of subsection (b)—

(1)

Source rules

The following items of gross income shall be treated as income from sources within the United States:

(A)

Sale of property

(B)

Stock or debt obligations

(C)

Income or gain derived from controlled foreign corporation

Any income or gain derived from stock in a foreign corporation but only—

(i)

if the individual losing United States citizenship owned (within the meaning of section 958(a)), or is considered as owning (by applying the ownership rules of section 958(b)), at any time during the 2-year period ending on the date of the loss of United States citizenship, more than 50 percent of—

(I)

the total combined voting power of all classes of stock entitled to vote of such corporation, or

(II)

the total value of the stock of such corporation, and

(ii)

to the extent such income or gain does not exceed the earnings and profits attributable to such stock which were earned or accumulated before the loss of citizenship and during periods that the ownership requirements of clause (i) are met.

(2)

Gain recognition on certain exchanges

(A)

In general

(B)

Exchanges to which paragraph applies

This paragraph shall apply to any exchange during the 10-year period beginning on the date the individual loses United States citizenship if—

(i)

gain would not (but for this paragraph) be recognized on such exchange in whole or in part for purposes of this subtitle,

(ii)

income derived from such property was from sources within the United States (or, if no income was so derived, would have been from such sources), and

(iii)

income derived from the property acquired in the exchange would be from sources outside the United States.

(C)

Exception

(D)

Secretary may extend period

(E)

Secretary may require recognition of gain in certain cases

To the extent provided in regulations prescribed by the Secretary—

(i)

the removal of appreciated tangible personal property from the United States, and

(ii)

any other occurrence which (without recognition of gain) results in a change in the source of the income or gain from property from sources within the United States to sources outside the United States,

shall be treated as an exchange to which this paragraph applies.

(3)

Substantial diminishing of risks of ownership

For purposes of determining whether this section applies to any gain on the sale or exchange of any property, the running of the 10-year period described in subsection (a) and the period applicable under paragraph (2) shall be suspended for any period during which the individual’s risk of loss with respect to the property is substantially diminished by—

(A)

the holding of a put with respect to such property (or similar property),

(B)

the holding by another person of a right to acquire the property, or

(C)

a short sale or any other transaction.

(4)

Treatment of property contributed to controlled foreign corporations

(A)

In general

If—

(i)

an individual losing United States citizenship contributes property during the 10-year period beginning on the date the individual loses United States citizenship to any corporation which, at the time of the contribution, is described in subparagraph (B), and

(ii)

income derived from such property immediately before such contribution was from sources within the United States (or, if no income was so derived, would have been from such sources),

any income or gain on such property (or any other property which has a basis determined in whole or part by reference to such property) received or accrued by the corporation shall be treated as received or accrued directly by such individual and not by such corporation. The preceding sentence shall not apply to the extent the property has been treated under subparagraph (C) as having been sold by such corporation.

(B)

Corporation described

A corporation is described in this subparagraph with respect to an individual if, were such individual a United States citizen—

(i)

such corporation would be a controlled foreign corporation (as defined in section 957), and

(ii)

such individual would be a United States shareholder (as defined in section 951(b)) with respect to such corporation.

(C)

Disposition of stock in corporation

(D)

Anti-abuse rules

The Secretary shall prescribe such regulations as may be necessary to prevent the avoidance of the purposes of this paragraph, including where—

(i)

the property is sold to the corporation, and

(ii)

the property taken into account under subparagraph (A) is sold by the corporation.

(E)

Information reporting

(e)

Comparable treatment of lawful permanent residents who cease to be taxed as residents

(1)

In general

(2)

Long-term resident

(3)

Special rules

(A)

Exceptions not to apply

(B)

Step-up in basis

(4)

Authority to exempt individuals

(5)

Regulations

(f)

Burden of proof

(g)

Physical presence

(1)

In general

(2)

Exception

(A)

In general

In the case of an individual described in any of the following subparagraphs of this paragraph, a day of physical presence in the United States shall be disregarded if the individual is performing services in the United States on such day for an employer. The preceding sentence shall not apply if—

(i)

such employer is related (within the meaning of section 267 and 707) to such individual, or

(ii)

such employer fails to meet such requirements as the Secretary may prescribe by regulations to prevent the avoidance of the purposes of this paragraph.

Not more than 30 days during any calendar year may be disregarded under this subparagraph.

(B)

Individuals with ties to other countries

An individual is described in this subparagraph if—

(i)

the individual becomes (not later than the close of a reasonable period after loss of United States citizenship or termination of residency) a citizen or resident of the country in which—

(I)

such individual was born,

(II)

if such individual is married, such individual’s spouse was born, or

(III)

either of such individual’s parents were born, and

(ii)

the individual becomes fully liable for income tax in such country.

(C)

Minimal prior physical presence in the United States

(h)

Termination

(Added Pub. L. 89–809, title I, § 103(f)(1), Nov. 13, 1966, 80 Stat. 1551; amended Pub. L. 93–406, title II, § 2005(c)(8), Sept. 2, 1974, 88 Stat. 992; Pub. L. 94–455, title XIX, § 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L. 95–600, title IV, § 421(e)(5), Nov. 6, 1978, 92 Stat. 2876; Pub. L. 96–222, title I, § 104(a)(1), (4)(H)(v), Apr. 1, 1980, 94 Stat. 214, 217; Pub. L. 99–514, title XII, § 1243(a), Oct. 22, 1986, 100 Stat. 2580; Pub. L. 102–318, title V, § 521(b)(31), July 3, 1992, 106 Stat. 312; Pub. L. 104–188, title I, § 1401(b)(11), Aug. 20, 1996, 110 Stat. 1789; Pub. L. 104–191, title V, § 511(a)–(d), (f)(1), Aug. 21, 1996, 110 Stat. 2093–2098; Pub. L. 105–34, title XVI, § 1602(g)(1)–(4), (h)(3), Aug. 5, 1997, 111 Stat. 1095, 1096; Pub. L. 108–357, title VIII, § 804(a)(1), (2), (c), Oct. 22, 2004, 118 Stat. 1569, 1570; Pub. L. 109–135, title IV, § 403(v)(1), Dec. 21, 2005, 119 Stat. 2628; Pub. L. 110–245, title III, § 301(c)(2)(A), (d), June 17, 2008, 122 Stat. 1646; Pub. L. 113–295, div. A, title II, § 213(c)(2), Dec. 19, 2014, 128 Stat. 4034; Pub. L. 115–141, div. U, title IV, § 401(a)(153), Mar. 23, 2018, 132 Stat. 1191.)

cite as: 26 USC 877