H. Jacob Lager

Archive for January, 2012|Monthly archive page


In FBAR, Offshore Accounts, Tax Crime on January 31, 2012 at 12:34 pm

UBS clients Stephen M. Kerr and Michael Quiel have been charged with filing false tax returns and failure to file Reports of Foreign Bank and Financial Accounts (FBAR), the U.S. Justice Department announced on January 30. The indictment also charged the defendants, along with former San Diego attorney Christopher M. Rusch, with conspiracy to defraud. Rusch was arrested Jan. 29 in Miami after being expelled from Panama at the request of the U.S. government.

According to the indictment:

“Beginning in or before 2004, and continuing through at least December 2007, Kerr and Quiel obtained control of shares of stock of publicly traded domestic companies in a way that concealed their ownership of the stock. Kerr and Quiel then deposited the stock, or proceeds from the sale of the stock, to multiple undeclared bank accounts set up with the assistance of Rusch at UBS in Switzerland and at another Swiss bank. These accounts were all held in the names of nominee entities to further conceal Kerr’s and Quiel’s ownership.”

More from the Justice Department here: http://www.justice.gov/opa/pr/2012/January/12-tax-136.html


PacBell Case Highlights International Gains & Unitary Income

In Uncategorized on January 27, 2012 at 1:31 am

PacBell’s recent victory in California illustrates how international matters can impact state-level taxation. 

In Appeal of Pacific Bell Telephone Company and Affiliates (Case No. 521312), California sought tax a larger portion of the income of PacBell (a Texas taxpayer) by arguing that PacBell’s income from certain foreign investments constituted “business income.”  If upheld, such foreign income would have been subject to PacBell’s multistage apportionment and would have generated a higher California tax bill.

Got that?  California tried tax a Texas taxpayer on investment income earned in Belgium,  Denmark, Switzerland, Taiwan, Canada, and Mexico.  

According to the state, PacBell’s  investments were acquired in the course of, and so related to, its overall global telecommunications business that the dividends and capital gains arising from these investments constituted business income.   PacBell countered that income from foreign investments is nonbusiness income unless the investments “are so interwoven into the fabric of its business operations that the foreign investments become ‘indivisible’ or inseparable” from its domestic telecommunications business and both receive operating value from the relationship.  According to PacBell it was merely a regional domestic provider during the audit years and the foreign investments did not materially contribute to its domestic business. 

Unfortunately, the Board’s sparse decision does not divulge which particular fact or law ultimately persuaded the panel to side with PacBell.  A comprehensive issue briefing can be found at this link.  


Nevertheless, clients with investments abroad in related industries (particularly those with influential positions) should take care when structuring these relationships.  It’s all too easy for a state taxing authority to saddle a passive investor with the responsibilities of an owner/operator.



New 871(m) Regulations Issued on US-Sourced Dividend Equivalents

In Uncategorized on January 16, 2012 at 1:23 am

The Treasury Department just released temporary regulations for Section 871(m), governing nonresident aliens and foreign corporations holding notional principal contracts which provide for payments determined by reference to the payment of US sourced dividends.

These rules treat as “dividend equivalents” arrangements that provide for a payment contingent upon or determined by reference to a U.S. source dividend.  These Section 871(m) regulations aim to apply the dividend withholding regime of sections 1441, 1442, and 1461 to these types of dividend substitutes.    

For payments made after March 18, 2012, any NPC will be a “specified NPC” unless Treasury and the IRS determined that the contract is of a type which does not have the potential for tax avoidance.

The new regulations do not adopt a safe harbor.  Indeed, the preamble notes that, notwithstanding the temporary regulations, the IRS may challenge transactions that are designed to avoid these rules under applicable judicial doctrines and may assert that an NPC other derivative is, in fact, an equity ownership interest.

 In sum, the proposed regulations:

  • Define which payments are US sourced dividend equivalents;
  • Define a “specified NPC” and allow a transition period for pre-1/1/2013 payments;
  • Set forth rules for what constitutes a “specified NPC” for post 1/1/2013 periods;
  • Define the term “underlying security”;
  • Amend the 1441 regulations to require a withholding agent to withhold tax owed on a dividend equivalent;
  • Treat dividend equivalents as income from investments in stock under section 892; and
  • Treat dividend equivalents as a “dividends” to determine the appropriate rate of withholding tax under a tax treaty. 

If your US business has any non-US participants in any arrangements like a phantom stock or stock appreciation right plan, I would highly recommend reviewing such terms before payment to determine if 871(m) applies.

Recent Rulings – PLRs

In Uncategorized on January 14, 2012 at 1:24 am

PLR 201202001 Release Date: 1/13/2012

Payments to foreign bankruptcy creditors on non-subordinated notes are treated as payments on the notes, subject to Section 1446 withholding to the extent these payments are attributable to interest.


Recent IRS Rulings

In Uncategorized on January 12, 2012 at 1:08 am

Just a couple recent IRS rulings involving Subpart F and PFIC elections.

PLR 201201016  – Majority of proceeds from sale of Controlled Foreign Corporation’s banking assets not foreign personal holding company or subpart F income.  http://www.irs.gov/pub/irs-wd/1201016.pdf

PLR  201152007 – Extension for late PFIC QEF election granted. http://www.irs.gov/pub/irs-wd/1152007.pdf

GE Pays No Taxes . . . Until It Does

In Uncategorized on January 10, 2012 at 1:07 am

Followers of the “GE Pays no Taxes” meme were handed a victory by the Second Circuit this week when the panel rejected an alleged abusive tax shelter in which a GE subsidiary purported to form a partnership with two Dutch banks.

The panel rules that the partnership agreement’s intricate terms caused the General Electric subsidiary to received most of the actual partnership income but, for tax purposes only, 98 percent of the taxable income was allocated to the Dutch partners, which were not subject to U.S. income taxes.  The government argued that GE used this structure to shelter over $300 million of its income from taxes in 1993 through 1998.  The Court agreed, finding that the Dutch banks were not true partners in the venture and therefore could not be allocated any of its taxable income. 

This case serves as a good reminder not to ignore the classic “debt or equity” analysis when structuring investment participation.   If the potential volatility of your client’s carried interest is too narrow or includes a guaranteed return, your client may be treated as a debt holder.  While not determinative in this week’s ruling, the foreign status of a holder will most likely garner further scrutiny.  International tax counsel should always be consulted in such cases.

Decision can be found here

Click to access castle-harbour-ii-opinion-ca2.pdf

FATCA is Coming

In Uncategorized on January 6, 2012 at 8:58 pm

On March 18, 2010, the Hiring Incentives to Restore Employment Act of 2010 was enacted into lawbrush wring a host of new information reporting requirements imposed on foreign financial institutions, which are often referred to as the Foreign Account Tax Compliance Act rules or “FATCA.”   FATCA imposes a 30 percent withholding tax on certain outbound payments to a foreign financial institution (an “FFI”), unless the FFI agrees to provide the IRS to comply with various information reporting and withholding requirements with respect to “U.S. accounts.” 

In essence, FATCA forces each participating foreign financial institution into an information exchange arrangement with the IRS akin to tax treaties typically between sovereigns. 

FATCA is meant to bolster the Service’s ongoing effort to halt US tax evasion activities involving offshore accounts. 

For individual taxpayers, FATCA requires The disclosure of  foreign financial assets with an aggregate value exceeding $50,000 on a new form (Form 8938) attached to the taxpayer’s annual tax return.  For most taxpayers, the 2011 tax return to be filed this year will represent the first such mandated report. Failure to report may result in a penalty of up to $50,000. Underpayments of tax attributable to non-disclosed foreign financial assets will be subject to an additional substantial understatement penalty of 40 percent. 

For foreign financial institutions (“FFIs”), these institutions will have to report directly to the IRS certain information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. To comply with these new reporting requirements, an FFI must enter into a special agreement with the IRS by June 30, 2013. Under this agreement a FFI must: 

(1) undertake certain identification and due diligence procedures with respect to its accountholders;

(2) report annually to the IRS on its accountholders who are U.S. persons or foreign entities with substantial U.S. ownership; and

(3) withhold and pay over to the IRS 30-percent of any payments of U.S. source income, as well as gross proceeds from the sale of securities that generate U.S. source income, made to (a) non-participating FFIs, (b) individual accountholders who do not provide sufficient information to determine whether or not they are a U.S. person, or (c) foreign entity accountholders failing to provide sufficient information about the identity of its substantial U.S. owners.

Given the anticipated reach of FATCA, those US taxpayers with undisclosed foreign assets may want to take advantage of the IRS’s recently announced voluntary disclosure initiative.


In Uncategorized on January 6, 2012 at 1:13 am

In a case involving an Indian company’s provision of an interest-free loan and software services to its wholly owned U.S. subsidiary the Delhi Income Tax Appellate Tribunal has held that the loan was distinct from the supply of software and thus, the arm’s-length price of each transaction should be independantly determined.

 The Indian parent had argued that, when combined, the two transactions yielded a profit margin much higher than that of the average comparables for similar services.   According to the Indian parent, no comparable uncontrolled loans were available for transfer pricing study, so the intercompany loan was factored into the profit margin analysis of the software services and determined by thet axpayer to approximate arm’s length.

Nonetheless, the tribunal rejected this position and sided with the audit, ruling that the supply of software services and the provision of the loan were two distinct and separate transactions and could not be aggregated in the transfer pricing analysis.

The tribunal also ruled that uncontrolled cross-border comparables in US currency should be used to determine the arm’s-length price of the interest on the loan and requested that the audit officer and the Indian parent recompute the arm’s-length interest accordingly.