Should American Expats Give Up Their U.S. Citizenship?

By Chad Creveling, CFA and Peggy Creveling, CFA

Faced with increasingly complex and burdensome U.S. tax rules, along with a renewed emphasis on compliance, many American expats are wondering if it makes sense to give up their U.S. citizenship. High-profile departures like that of Facebook co-founder Eduardo Saverin (who renounced his U.S. citizenship prior to his company's IPO) have drawn attention to a step that was once considered only by the very wealthy or criminally inclined. Global lifestyles, mixed nationality marriages, and dual citizenship, along with the increased regulatory burden on overseas Americans, are all causing a greater number of "normal" expats to consider giving up their U.S. citizenship. Yet renouncing citizenship is still a drastic step. Before making such a permanent move, it pays to know the rules and consider all the ramifications.

The Exit Tax

The laws governing the renunciation of U.S. citizenship were amended on June 17, 2008, under the Heroes Earnings Assistance and Relief Tax Act of 2008 (the HEART Act) and U.S. Treasury Notice 2009-85. These rules apply to both U.S. citizens and long-term U.S. permanent residents who have held green cards for eight of the last 15 years. Individuals in both categories who meet certain criteria are considered covered expats and are subject to an immediate exit tax on the unrealized gains of their worldwide assets.

A U.S. citizen or long-term permanent resident is considered a covered expat and subject to the exit tax if they meet any of the following criteria:

• Have a worldwide net worth of USD 2 million or more
• Had an average annual U.S. tax liability of more than USD 155,000 in the five years prior to expatriation
• Have failed to certify compliance with all U.S. federal tax obligations in the five years prior to expatriation

Exceptions apply to people who are dual nationals from birth and who have not lived in the U.S. for more than 10 out of the last 15 years. In addition, there are exceptions for those who are younger than 18½ and who have not lived in the U.S. for more than 10 years.

What Happens When You Renounce Your Citizenship

The application of the exit tax can be complicated. We strongly advise that you seek professional help if you choose this route. In general, those giving up U.S. citizenship would have to obtain citizenship in another country, physically leave the U.S. and appear before a U.S. Consul, file Form 8854: Expatriation Information Statement, and pay any exit tax due.

Some other important facts about renouncing your U.S. citizenship:

• The exit tax is applied to the net unrealized gains on the covered expat's worldwide assets (based on the assets' fair market value on the day prior to expatriation). No sale is required, but assets are valued according to the rules governing estate tax valuation.
• In 2013, the first USD 668,000 in gains are exempt from the exit tax. This exemption amount is applied pro rata to all assets. Any amount in excess of the exemption is subject to the exit tax.
• The tax is due within 90 days of giving up citizenship.
• Deferred compensation items such as pensions are subject to special rules. If the pension is payable by a U.S. payor, then it is considered an "eligible deferred compensation item." Rather than being subject to an immediate exit tax, a 30% withholding tax would be applied at the time of payment(s).
• If the payor of a deferred compensation item is a non-U.S. person or entity that does not elect to be treated as a U.S. payor, then the net present value of the deferred compensation item would be calculated as of the day prior to expatriation and reported as income on the expatriate's income tax for the year of expatriation.
• The withholding tax is not subject to reduction under any double taxation treaties between the United States and other countries.
• If a covered expatriate makes a gift or bequest after expatriation that exceeds the annual gift tax exclusion of USD 14,000 (in 2013) to a U.S. citizen or resident (other than a spouse), the recipient must withhold tax at the highest marginal estate or gift tax rate at the time of the gift. This also applies to gifts or bequests to U.S. trusts.

Other Considerations When Giving Up Your U.S. Citizenship

Aside from the exit tax, there are a number of other important things to consider before you renounce your U.S. citizenship:

• You will not be able to give up U.S. citizenship until you have obtained citizenship in another country. That may not be easy. Some countries offer the opportunity to essentially purchase citizenship, but it's not cheap. In other countries, the path to citizenship can be slow and arduous.
• Renunciation of citizenship is difficult to reverse, if not impossible.
• Your future travel to the U.S. may be restricted. You must first obtain a visa, but it can be denied.
• A person who gives up U.S. citizenship and then spends more than 120 days a year in the U.S. may be considered a U.S. tax resident and subject to U.S. income tax on worldwide income. If you have already qualified for Medicare benefits, you do not lose these benefits, but you may lose access to them. Currently, Medicare does not cover medical treatment outside of the U.S. In theory, you could return to the U.S. for treatment, but you would likely have to apply for a visa. You would also need to be careful not to exceed the number of days in the U.S. that could make you a U.S. tax resident. If you are eligible to receive U.S. Social Security and you are either a citizen of certain countries or a resident of certain countries, you may not lose your Social Security benefits. Generally, though, you will no longer be paying into the Social Security system, which may affect your ultimate benefit calculation, and if you haven’t already qualified, you may never qualify. If you are eligible and qualify to receive Social Security payments, you may be subject to a withholding tax of up to 30%, depending on your situation. Aside from potential U.S. withholding tax, you may also be taxed by your new country of residence.
• You will lose the right to federal financial aid if you ever return to the U.S. to pursue education.
• You lose the protection of the U.S. embassy in the event of trouble in your new country.
• The grass may not always be greener in your adopted country. You need to consider the country's tax regime, availability of financial services, health care and insurance, cost of living, inflation rates, legal protections and recourse, level of corruption, ease of travel, employment opportunities, and business formation costs and requirements.

For the average American expat who is frustrated with paying U.S. taxes and the increased burden of regulatory compliance, it is worth completing a careful cost/benefit analysis. You may find that the price of U.S. citizenship is not as expensive as you thought.

Not That Prevalent

Despite the media hype and initial appeal, very few actually give up their U.S. citizenship. It’s been widely reported that about 1,788 people renounced their citizenship in 2011, although the numbers reported by the IRS and State Department tend to differ. Most people who go this route tend to be green card holders, dual citizens, or have resided abroad for an extended time. The exit tax rules are extremely complex and there are a number of other issues to consider. After running the numbers, most people will probably determine that renouncing U.S. citizenship doesn't make sense. Still, if you have decided that this is the right course for you, be sure to enlist professional support.