26 USC 877A - Tax responsibilities of expatriation

U.S Code last checked for updates: May 19, 2024

§ 877A.

Tax responsibilities of expatriation

(a)

General rules

For purposes of this subtitle—

(1)

Mark to market

(2)

Recognition of gain or loss

In the case of any sale under paragraph (1)—

(A)

notwithstanding any other provision of this title, any gain arising from such sale shall be taken into account for the taxable year of the sale, and

(B)

any loss arising from such sale shall be taken into account for the taxable year of the sale to the extent otherwise provided by this title, except that section 1091 shall not apply to any such loss.

Proper adjustment shall be made in the amount of any gain or loss subsequently realized for gain or loss taken into account under the preceding sentence, determined without regard to paragraph (3).

(3)

Exclusion for certain gain

(A)

In general

(B)

Adjustment for inflation

(i)

In general

In the case of any taxable year beginning in a calendar year after 2008, the dollar amount in subparagraph (A) shall be increased by an amount equal to—

(I)

such dollar amount, multiplied by

(II)

the cost-of-living adjustment determined under section 1(f)(3) for the calendar year in which the taxable year begins, by substituting “calendar year 2007” for “calendar year 2016” in subparagraph (A)(ii) thereof.

(ii)

Rounding

(b)

Election to defer tax

(1)

In general

(2)

Determination of tax with respect to property

(3)

Termination of extension

(4)

Security

(A)

In general

(B)

Adequate security

For purposes of subparagraph (A), security with respect to any property shall be treated as adequate security if—

(i)

it is a bond which is furnished to, and accepted by, the Secretary, which is conditioned on the payment of tax (and interest thereon), and which meets the requirements of section 6325, or

(ii)

it is another form of security for such payment (including letters of credit) that meets such requirements as the Secretary may prescribe.

(5)

Waiver of certain rights

(6)

Elections

(7)

Interest

(c)

Exception for certain property

Subsection (a) shall not apply to—

(1)

any deferred compensation item (as defined in subsection (d)(4)),

(2)

any specified tax deferred account (as defined in subsection (e)(2)), and

(3)

any interest in a nongrantor trust (as defined in subsection (f)(3)).

(d)

Treatment of deferred compensation items

(1)

Withholding on eligible deferred compensation items

(A)

In general

(B)

Taxable payment

(2)

Other deferred compensation items

In the case of any deferred compensation item which is not an eligible deferred compensation item—

(A)

(i)

with respect to any deferred compensation item to which clause (ii) does not apply, an amount equal to the present value of the covered expatriate’s accrued benefit shall be treated as having been received by such individual on the day before the expatriation date as a distribution under the plan, and

(ii)

with respect to any deferred compensation item referred to in paragraph (4)(D), the rights of the covered expatriate to such item shall be treated as becoming transferable and not subject to a substantial risk of forfeiture on the day before the expatriation date,

(B)

no early distribution tax shall apply by reason of such treatment, and

(C)

appropriate adjustments shall be made to subsequent distributions from the plan to reflect such treatment.

(3)

Eligible deferred compensation items

For purposes of this subsection, the term “eligible deferred compensation item” means any deferred compensation item with respect to which—

(A)

the payor of such item is—

(i)

a United States person, or

(ii)

a person who is not a United States person but who elects to be treated as a United States person for purposes of paragraph (1) and meets such requirements as the Secretary may provide to ensure that the payor will meet the requirements of paragraph (1), and

(B)

the covered expatriate—

(i)

notifies the payor of his status as a covered expatriate, and

(ii)

makes an irrevocable waiver of any right to claim any reduction under any treaty with the United States in withholding on such item.

(4)

Deferred compensation item

For purposes of this subsection, the term “deferred compensation item” means—

(A)

any interest in a plan or arrangement described in section 219(g)(5),

(B)

any interest in a foreign pension plan or similar retirement arrangement or program,

(C)

any item of deferred compensation, and

(D)

any property, or right to property, which the individual is entitled to receive in connection with the performance of services to the extent not previously taken into account under section 83 or in accordance with section 83.

(5)

Exception

(6)

Special rules

(A)

Application of withholding rules

(B)

Application of tax

(C)

Coordination with other withholding requirements

(e)

Treatment of specified tax deferred accounts

(1)

Account treated as distributed

In the case of any interest in a specified tax deferred account held by a covered expatriate on the day before the expatriation date—

(A)

the covered expatriate shall be treated as receiving a distribution of his entire interest in such account on the day before the expatriation date,

(B)

no early distribution tax shall apply by reason of such treatment, and

(C)

appropriate adjustments shall be made to subsequent distributions from the account to reflect such treatment.

(2)

Specified tax deferred account

(f)

Special rules for nongrantor trusts

(1)

In general

In the case of a distribution (directly or indirectly) of any property from a nongrantor trust to a covered expatriate—

(A)

the trustee shall deduct and withhold from such distribution an amount equal to 30 percent of the taxable portion of the distribution, and

(B)

if the fair market value of such property exceeds its adjusted basis in the hands of the trust, gain shall be recognized to the trust as if such property were sold to the expatriate at its fair market value.

(2)

Taxable portion

(3)

Nongrantor trust

(4)

Special rules relating to withholding

For purposes of this subsection—

(A)

rules similar to the rules of subsection (d)(6) shall apply, and

(B)

the covered expatriate shall be treated as having waived any right to claim any reduction under any treaty with the United States in withholding on any distribution to which paragraph (1)(A) applies unless the covered expatriate agrees to such other treatment as the Secretary determines appropriate.

(5)

Application

(g)

Definitions and special rules relating to expatriation

For purposes of this section—

(1)

Covered expatriate

(A)

In general

(B)

Exceptions

An individual shall not be treated as meeting the requirements of subparagraph (A) or (B) of section 877(a)(2) if—

(i)

the individual—

(I)

became at birth a citizen of the United States and a citizen of another country and, as of the expatriation date, continues to be a citizen of, and is taxed as a resident of, such other country, and

(II)

has been a resident of the United States (as defined in section 7701(b)(1)(A)(ii)) for not more than 10 taxable years during the 15-taxable year period ending with the taxable year during which the expatriation date occurs, or

(ii)

(I)

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

(II)

the individual has been a resident of the United States (as so defined) for not more than 10 taxable years before the date of relinquishment.

(C)

Covered expatriates also subject to tax as citizens or residents

(2)

Expatriate

The term “expatriate” means—

(A)

any United States citizen who relinquishes his citizenship, and

(B)

any long-term resident of the United States who ceases to be a lawful permanent resident of the United States (within the meaning of section 7701(b)(6)).

(3)

Expatriation date

The term “expatriation date” means—

(A)

the date an individual relinquishes United States citizenship, or

(B)

in the case of a long-term resident of the United States, the date on which the individual ceases to be a lawful permanent resident of the United States (within the meaning of section 7701(b)(6)).

(4)

Relinquishment of citizenship

A citizen shall be treated as relinquishing his United States citizenship on the earliest of—

(A)

the date the individual renounces his United States nationality before a diplomatic or consular officer of the United States pursuant to paragraph (5) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(5)),

(B)

the date the individual furnishes to the United States Department of State a signed statement of voluntary relinquishment of United States nationality confirming the performance of an act of expatriation specified in paragraph (1), (2), (3), or (4) of section 349(a) of the Immigration and Nationality Act (8 U.S.C. 1481(a)(1)–(4)),

(C)

the date the United States Department of State issues to the individual a certificate of loss of nationality, or

(D)

the date a court of the United States cancels a naturalized citizen’s certificate of naturalization.

Subparagraph (A) or (B) shall not apply to any individual unless the renunciation or voluntary relinquishment is subsequently approved by the issuance to the individual of a certificate of loss of nationality by the United States Department of State.

(5)

Long-term resident

(6)

Early distribution tax

(h)

Other rules

(1)

Termination of deferrals, etc.

In the case of any covered expatriate, notwithstanding any other provision of this title—

(A)

any time period for acquiring property which would result in the reduction in the amount of gain recognized with respect to property disposed of by the taxpayer shall terminate on the day before the expatriation date, and

(B)

any extension of time for payment of tax shall cease to apply on the day before the expatriation date and the unpaid portion of such tax shall be due and payable at the time and in the manner prescribed by the Secretary.

(2)

Step-up in basis

(3)

Coordination with section 684

(i)

Regulations

(Added Pub. L. 110–245, title III, § 301(a), June 17, 2008, 122 Stat. 1638; amended Pub. L. 113–295, div. B, title I, § 102(e)(2), Dec. 19, 2014, 128 Stat. 4062; Pub. L. 115–97, title I, § 11002(d)(1)(BB), Dec. 22, 2017, 131 Stat. 2060; Pub. L. 115–141, div. U, title IV, § 401(a)(154), Mar. 23, 2018, 132 Stat. 1191.)

cite as: 26 USC 877A