With state income taxes on a constant increase, many taxpayers are looking for ways to protect themselves from double (federal and state) taxation. With the combination of federal and state income taxes, in states like California and New York, individuals could be subject to taxes as high as 50% to 60%.  The same rates would apply to trusts and beneficiaries of trusts. One of the options gaining popularity is creating trusts in states that do not impose an income tax.

In a grantor trust, the individual who creates the trust maintains certain powers over the trust and continues to pay income tax on the assets of the trust. In the event that the trust becomes a non-grantor trust, i.e. the grantor relinquishes power over the trust, the tax responsibility will shift to the beneficiaries of the trust.

However, another option is available for grantors who wish to maintain some power and responsibility over the trust yet reduce or eliminate the burden of double taxation.  The No State Income Tax trust (NSIT) offers the grantor the opportunity to maintain some power over the trust, which prevents the transfer to the trust from being treated like a completed gift, yet relieves the grantor of complete control, which changes the income tax treatment of the trust to non-grantor.  (As an aside, don’t get bogged down with the name of this trust.  We are simply using a descriptive name, and others have slapped various marketing terms on this type of trust.  Names carry no substance.)

With an NSIT, the state income tax on the trust, especially for high tax states, can be reduced or completely avoided by establishing the trust as a separate taxpayer and moving the trust to a no-income-tax state such as Delaware, Florida, or Nevada.

By establishing the trust as a separate taxpayer in a no or low income-tax state, the grantor is no longer viewed as the owner of the trust and is no longer liable for the state income tax on the trust.

However, for this strategy to work, the grantor must make sure that the trust is recognized not only as a separate taxpayer but also as a resident of the desired state, and not a resident of the grantor’s home state. There are several factors that affect the recognition of a trust as a resident in the desired state.

-          The residence of the grantor/trustee when the trust was created or became irrevocable

-          Where the trust was administered

-          Where the trust or the assets associated with the trust operate

Here is a common example of how the trusts may be used.

Jones is planning on selling his business in a few years for $20 million. Jones is a California taxpayer and has zero basis in the business.  On the sale, he will have a California income tax liability of approximately $2.5 million.  Assume that today, when the business is worth only $10 million, Jones sells the business to a non-grantor trust established by a family member in Delaware.  The sale is for a promissory note and a down-payment, so the vast majority of the tax liability is deferred.  The California tax liability on this sale is approximately $1.25 million and will be due when the promissory note is paid off. In a couple of years the business is sold for $20 million.  The Delaware trust, as the new owner of the business, will be taxed on the gain on the sale (the difference between $20 million sale price and the trust’s purchase price of $10 million).  No state income tax is due when the business is sold.  Jones saved himself $1.25 million in state income taxes.  As the assets of the trust continue to generate taxable income, that income will only be subject to the federal income tax, and not the state income tax.

Like most structures of this kind there are lots of nuances, and this type of planning does not work for everyone.  If you are interested, call us and we can explore whether you too can be like Jones and avoid state income taxes.

China, the world’s second largest economy, has taken several steps to battle the issue of cross-border tax evasion. As of 2013, China formed agreements with 46 nations to share tax information.

Leading the efforts is tax Commissioner Zhang Zhiyong, who said that China has a responsibility to strengthen its international tax collection efforts.

As of 2011, China was losing approximately US$134billion each year in tax revenue, making it the world’s 8^th largest tax loser, only 7 steps ahead of number 1, the United States, who reported approximately US$billion in lost taxes.

China along with the rest of the G20 nations signed an agreement to increase efforts to prevent tax evasion through fraudulent conveyance.

The agreement stipulated that the 20 strongest economies including the United States, will maintain a collaborative sharing relationship in order to fight international tax crime. The efforts will focus not only on foreign investment in China (companies/multinationals) but also, Chinese citizens living overseas. Like the U.S., China taxes its citizens on worldwide income.

China in general has been a preferred spot for foreign investors due its economic stability, good infrastructure, skilled workforce, and of course, a very large population.

Since joining the World Trade Organization (WTO) in 2001, China has steadily seen an increase in foreign direct investment. Foreign investment rose by 5% in 2013 from the previous year, netting a total of almost US$billion.

However, with the renewed focus on international taxation by the Chinese government, the questions that come up are: will the new tax efforts on cross-border transactions be enough to discourage multinationals from investing in the China? And what will this mean for Chinese nationals living and working abroad?

U.S. citizens are currently experiencing the effects of FATCA (Foreign Account Tax Compliance Act). FATCA, implemented to discourage tax dodging by U.S. citizens living abroad, requires foreign banks and financial institutions to report information of all U.S. account holders (individuals and businesses) to the United States treasury. To read more about FATCA, view our previous blog, F-Day Confirmed. 

Chinese nationals and permanent (long-term) residents are liable to be taxed on income earned outside the country. For Chinese nationals living in the U.S., double taxation of income will be avoided through the U.S. – China income tax treaty.

Non-permanent residents (non-domiciles) who reside in China for a full year within a calendar year are also liable for taxation on income earned outside the country provided that the income is paid by a Chinese entity.

As 46 countries continue to share banking information of Chinese individuals and businesses, China’s enforcement of cross-border tax laws are yielding strong results. In 2013, the country recovered US$899M in lost taxes, 37% more than was recovered in 2008.

The Internal Revenue Service (IRS) has finally weighed in on the topic of the taxation of Bitcoin.  Below is a list of questions and answers provided by the IRS.

Q-1:  How is virtual currency treated for federal tax purposes?

A-1:  For federal tax purposes, virtual currency is treated as property.  General tax principles applicable to property transactions apply to transactions using virtual currency.

Q-2:  Is virtual currency treated as currency for purposes of determining whether a transaction results in foreign currency gain or loss under U.S. federal tax laws?

A-2:  No.  Under currently applicable law, virtual currency is not treated as currency that could generate foreign currency gain or loss for U.S. federal tax purposes.

Q-3:  Must a taxpayer who receives virtual currency as payment for goods or services include in computing gross income the fair market value of the virtual currency?

A-3:  Yes. A taxpayer who receives virtual currency as payment for goods or services must, in computing gross income, include the fair market value of the virtual currency, measured in U.S. dollars, as of the date that the virtual currency was received.  See Publication 525, Taxable and Nontaxable Income, for more information on miscellaneous income from exchanges involving property or services.

Q-4:  What is the basis of virtual currency received as payment for goods or services in Q&A-3?

A-4:  The basis of virtual currency that a taxpayer receives as payment for goods or services in Q&A-3 is the fair market value of the virtual currency in U.S. dollars as of the date of receipt.  See Publication 551, Basis of Assets, for more information on the computation of basis when property is received for goods or services.

Q-5:  How is the fair market value of virtual currency determined?

A-5:  For U.S. tax purposes, transactions using virtual currency must be reported in U.S. dollars.  Therefore, taxpayers will be required to determine the fair market value of virtual currency in U.S. dollars as of the date of payment or receipt.  If a virtual currency is listed on an exchange and the exchange rate is established by market supply and demand, the fair market value of the virtual currency is determined by converting the virtual currency into U.S. dollars (or into another real currency which in turn can be converted into U.S. dollars) at the exchange rate, in a reasonable manner that is consistently applied.

Q-6:  Does a taxpayer have gain or loss upon an exchange of virtual currency for other property?

A-6:  Yes.  If the fair market value of property received in exchange for virtual currency exceeds the taxpayer’s adjusted basis of the virtual currency, the taxpayer has taxable gain.  The taxpayer has a loss if the fair market value of the property received is less than the adjusted basis of the virtual currency.  See Publication 544, Sales and Other Dispositions of Assets, for information about the tax treatment of sales and exchanges, such as whether a loss is deductible.

Q-7:  What type of gain or loss does a taxpayer realize on the sale or exchange of virtual currency?

A-7:  The character of the gain or loss generally depends on whether the virtual currency is a capital asset in the hands of the taxpayer.  A taxpayer generally realizes capital gain or loss on the sale or exchange of virtual currency that is a capital asset in the hands of the taxpayer.  For example, stocks, bonds, and other investment property are generally capital assets.  A taxpayer generally realizes ordinary gain or loss on the sale or exchange of virtual currency that is not a capital asset in the hands of the taxpayer.  Inventory and other property held mainly for sale to customers in a trade or business are examples of property that is not a capital asset.  See Publication 544 for more information about capital assets and the character of gain or loss.

Q-8:  Does a taxpayer who “mines” virtual currency (for example, uses computer resources to validate Bitcoin transactions and maintain the public Bitcoin transaction ledger) realize gross income upon receipt of the virtual currency resulting from those activities?

A-8:  Yes, when a taxpayer successfully “mines” virtual currency, the fair market value of the virtual currency as of the date of receipt is includible in gross income.  See Publication 525, Taxable and Nontaxable Income, for more information on taxable income.

Q-9:  Is an individual who “mines” virtual currency as a trade or business subject to self-employment tax on the income derived from those activities?

A-9: If a taxpayer’s “mining” of virtual currency constitutes a trade or business, and the “mining” activity is not undertaken by the taxpayer as an employee, the net earnings from self-employment (generally, gross income derived from carrying on a trade or business less allowable deductions) resulting from those activities constitute self-employment income and are subject to the self-employment tax.  See Chapter 10 of Publication 334, Tax Guide for Small Business, for more information on self-employment tax and Publication 535, Business Expenses, for more information on determining whether expenses are from a business activity carried on to make a profit.

Q-10:  Does virtual currency received by an independent contractor for performing services constitute self‑employment income?

A-10:  Yes.  Generally, self‑employment income includes all gross income derived by an individual from any trade or business carried on by the individual as other than an employee.  Consequently, the fair market value of virtual currency received for services performed as an independent contractor, measured in U.S. dollars as of the date of receipt, constitutes self‑employment income and is subject to the self-employment tax.  See FS-2007-18, April 2007, Business or Hobby? Answer Has Implications for Deductions, for information on determining whether an activity is a business or a hobby.

Q-11:  Does virtual currency paid by an employer as remuneration for services constitute wages for employment tax purposes?

A-11:  Yes.  Generally, the medium in which remuneration for services is paid is immaterial to the determination of whether the remuneration constitutes wages for employment tax purposes.  Consequently, the fair market value of virtual currency paid as wages is subject to federal income tax withholding, Federal Insurance Contributions Act (FICA) tax, and Federal Unemployment Tax Act (FUTA) tax and must be reported on Form W-2, Wage and Tax Statement.  See Publication 15 (Circular E), Employer’s Tax Guide, for information on the withholding, depositing, reporting, and paying of employment taxes.

Q-12:  Is a payment made using virtual currency subject to information reporting?

A-12:  A payment made using virtual currency is subject to information reporting to the same extent as any other payment made in property.  For example, a person who in the course of a trade or business makes a payment of fixed and determinable income using virtual currency with a value of $600 or more to a U.S. non-exempt recipient in a taxable year is required to report the payment to the IRS and to the payee.  Examples of payments of fixed and determinable income include rent, salaries, wages, premiums, annuities, and compensation.

Q-13:  Is a person who in the course of a trade or business makes a payment using virtual currency worth $600 or more to an independent contractor for performing services required to file an information return with the IRS?

A-13:  Generally, a person who in the course of a trade or business makes a payment of $600 or more in a taxable year to an independent contractor for the performance of services is required to report that payment to the IRS and to the payee on Form 1099-MISC, Miscellaneous Income.  Payments of virtual currency required to be reported on Form 1099-MISC should be reported using the fair market value of the virtual currency in U.S. dollars as of the date of payment.  The payment recipient may have income even if the recipient does not receive a Form 1099-MISC.  See the Instructions to Form 1099-MISC and the General Instructions for Certain Information Returns for more information.  For payments to non-U.S. persons, see Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities.

Q-14:  Are payments made using virtual currency subject to backup withholding?

A-14:  Payments made using virtual currency are subject to backup withholding to the same extent as other payments made in property.  Therefore, payors making reportable payments using virtual currency must solicit a taxpayer identification number (TIN) from the payee.  The payor must backup withhold from the payment if a TIN is not obtained prior to payment or if the payor receives notification from the IRS that backup withholding is required.  See Publication 1281, Backup Withholding for Missing and Incorrect Name/TINs, for more information.

Q-15:  Are there IRS information reporting requirements for a person who settles payments made in virtual currency on behalf of merchants that accept virtual currency from their customers?

A-15:  Yes, if certain requirements are met.  In general, a third party that contracts with a substantial number of unrelated merchants to settle payments between the merchants and their customers is a third party settlement organization (TPSO).  A TPSO is required to report payments made to a merchant on a Form 1099-K, Payment Card and Third Party Network Transactions, if, for the calendar year, both (1) the number of transactions settled for the merchant exceeds 200, and (2) the gross amount of payments made to the merchant exceeds $20,000.  When completing Boxes 1, 3, and 5a-1 on the Form 1099-K, transactions where  the TPSO settles payments made with virtual currency are aggregated with transactions where the TPSO settles payments made with real currency to determine the total amounts to be reported in those boxes.  When determining whether the transactions are reportable, the value of the virtual currency is the fair market value of the virtual currency in U.S. dollars on the date of payment.  See The Third Party Information Reporting Center, http://www.irs.gov/Tax-Professionals/Third-Party-Reporting-Information-Center, for more information on reporting transactions on Form 1099-K.

Q-16:  Will taxpayers be subject to penalties for having treated a virtual currency transaction in a manner that is inconsistent with this notice prior to March 25, 2014?

A-16:  Taxpayers may be subject to penalties for failure to comply with tax laws.  For example, underpayments attributable to virtual currency transactions may be subject to penalties, such as accuracy-related penalties under section 6662.  In addition, failure to timely or correctly report virtual currency transactions when required to do so may be subject to information reporting penalties under section 6721 and 6722.  However, penalty relief may be available to taxpayers and persons required to file an information return who are able to establish that the underpayment or failure to properly file information returns is due to reasonable cause.

Read the full article in the Business Insider

You can read our earlier blog on Bitcoin and Taxation titled A Primer on Bitcoin

Bitcoin is a digital or virtual currency that uses peer-to-peer technology for the payment of goods and services. It is an internet-based currency that was established in 2009, and has experienced such exponential growth that companies such as eBay and Overstock now accept it as a form of payment. Bitcoin operates in a decentralized system and does not have any central governing authority.  Instead, it is governed/maintained by an online community. Further, it is a peer-to -peer based system which eliminates any middlemen. The absence of ‘middlemen’ eliminates many transaction costs associated with credit card fees, exchange rates and others. Although many cryptocurrencies have come out of the woodwork, Bitcoin remains the most popular and accepted. Cryptocurrencies are currencies based on cryptography, which is a security information technology also used in banking to protect information in chip-based credit card. Naturally, this new form of payment for goods and services has been compared to traditional fiat money (money which has been established by a government as legal tender). The value of traditional fiat money, such as the US dollar, is based on its market value. That is, the acceptance of the public to use it as a legal tender. However, the government’s power and ability to assign that currency as the jurisdiction’s legal tender, is the major factor in its acceptance as a currency.  Historically, currencies were backed by gold reserves of the sovereign states, but today they are backed by the “full faith and credit” of the issuing state. The value of a digital currency such as Bitcoin is derived from its acceptance and use, with no sovereign state backing the “currency.” The difference between fiat money and digital currency is that there is no governing body vouching for its value or legitimizing its use. Rather, it garners its value from collective acceptance and use.   Money was not always “money,” i.e., coins or state issued notes.  In ancient times humans used beads, eggs, feathers, rice, salt and many other goods and commodities that had an accepted and commonly known value.  Bitcoins are similar to such pre-coin moneys, but without an intrinsic value.   The absence of a governing body is noted by Bitcoin supporters as one of the advantages of digital currency, because, they claim, it takes the power away from any one entity to control the production of, or manipulation of the currency. Also, because Bitcoin is not tendered by any one governing entity; it is truly a global currency that removes the cost of international transaction costs and foreign exchange rates.  Inflation or counterfeiting can be curtailed with this new digital currency, because the whole system is based off maintaining a fixed amount of bitcoins in circulation. There are currently 12million Bitcoins in circulation, and the total bitcoins to be allowed into circulation by or before the year 2140, is 21million. The release of new bitcoins into circulation, and all transactions using bitcoins, is publicly recorded. However, any personal information of those involved in Bitcoin transactions is kept private and secure. This maintains the transparency of the digital currency and eliminates the possibility of double spending or counterfeiting, while protecting the identities of those who use it. Bitcoin may offer many advantages; however, there are some noted drawbacks to this alternative currency.

Acceptance and Volatility

Although Bitcoin’s following is growing daily, this new payment method still causes uncertainty among majority of the public. This results in a lack of acceptance of Bitcoin as a legitimate currency, but more importantly, it makes the system prone to volatility. Economically, it is also a concept that is difficult to grasp.  There is no intrinsic value to Bitcoins and no “full faith and credit” of a sovereign state.  Consequently, value is determined solely based on supply and demand.  If tomorrow our society switches to the use of one-pint containers of low-fat cottage cheese as a value exchange mechanism, Bitcoins will become worthless.

Asset Protection and Privacy

For our clients, the advantage of Bitcoins may come from their use to gain asset protection and privacy.  There is no public registry of Bitcoin ownership, no visible chain of title and no easy way to discover their existence.  Even if a third-party discovers the existence of Bitcoins and demands that a debtor in possession of Bitcoins turns them over, what happens if the debtor is unable to retrieve his password?  There is no physical asset that a court can force the debtor to turn over to a creditor.  It is purely information that exists in debtor’s head.  Very “James Bond”!

Taxation

For U.S. federal income tax purposes, assets are divided into capital assets and inventory.  A sale of a capital asset is subject to the capital gain/loss rules and sale of inventory is subject to ordinary income/loss rules.  Thus, Bitcoin investors would be treated as holding a capital asset and Bitcoin dealers as holding inventory.  Bitcoin investors holding Bitcoins for over a year will be subject to the 20% capital gain tax rate, and possibly and additional 3.8% surtax on passive net investment income. It is important, for tax purposes, not to think of Bitcoins as a fiat currency.  We refer to Bitcoins as a digital, virtual or crypto- currency, but they are really just capital assets that can appreciate or depreciate in value.  Consequently, Bitcoins are not taxed as currency (until and unless Congress says otherwise). The tax realization event takes place each time a Bitcoin miner disposes of his Bitcoin.  The gain is simply the difference between sale price and purchase price.  Similar to other capital assets, Bitcoins would not be subject to the mark-to-market regime that dealers in Bitcoins would be subject to. For U.S. taxpayers, Bitcoins offer no tax planning potential.  U.S. taxpayers are taxed on their world-wide income from whatever source derived.  Tax planning may be possible for taxpayers in some of the countries that do not tax their residents on extra-territorial income. For FATCA purposes Bitcoins should not be treated as a “specified foreign financial assets” if they are not held at a financial institution.  When Bitcoins are held at a foreign brokerage account, they will be an asset of such an account and FATCA compliance (including FBAR disclosure) would apply. – See more at: http://ksilaw.com/blog/view/a-primer-on-bitcoin#sthash.ihQi9NIZ.dpuf