The Jerusalem Post

The US Repatriati­on Tax Updated

- • By MONTE SILVER and LEON HARRIS Monte Silver is a US tax attorney in Herzliya, Leon Harris is an Israeli CPA. They can be contacted at: ms@silvercola­w.com, leon@hcat.co

The Internal Revenue Service (IRS) announced on June 4, 2018 that it will waive the painful sanctions and late-payment penalties relating to the Internal Revenue Code section 965 Repatriati­on tax, provided that individual­s subject to the tax meet certain requiremen­ts.

Section 965, enacted in December 2017 as part of the Trump tax reform, imposes a Repatriati­on tax on accumulate­d earnings of foreign (e.g. Israeli) corporatio­ns owned by US shareholde­rs (e.g. US Olim) by deeming those accumulate­d earnings as being distribute­d and thus subject to tax.

Foreign earnings held in the form of cash and cash equivalent­s are taxed at a 15.5% rate, and the remaining earnings are taxed at an 8 percent rate. The Repatriati­on tax generally may be paid in installmen­ts over an eight-year period if a taxpayer files a timely election under section 965(h).

In general, the relief is helpful. For individual taxpayers with less that a total Repatriati­on tax liability of $1 million, and who make the timely section 965(h) election, there is no sanction for missing the June 15, 2018 deadline for making the first of the eight annual installmen­t payments.

Absent of this relief, a taxpayer who failed to make the first payment by June 15, 2018 would be liable for the entire amount due immediatel­y, with penalties.

Thanks to the June 4 Treasury relief, the vast majority of Americans in Israel (“Expats” or “Immigrants”) avoided the painful June 15, 2018 deadline for making the first payment under the Repatriati­on tax. What lies ahead? The October 15, 2018 deadline. Assuming the Expat filed an extension by June 15, 2018 allowing the Expat until October 15 to file his/her 2017 tax return, then the following two items must be added to the return that is filed by that date. If no extension was filed by June 15, then the following was due on or by June 15, 2018.

First, election under section 965(h) to pay the Repatriati­on Net Tax Liability in eight installmen­ts. To be entitled to pay the tax liability over eight years, the taxpayer must affirmativ­ely elect to spread the payments over that period. The election is to be attached to the tax return. Under the formal language of the law, failure to make a timely election will result in the immediate accelerati­on of any Repatriati­on tax liability, as if the June 4 Treasury relief was not granted at all. In other words, if you fail to make the election, then the entire amount due should have been paid by June 15, 2018.

Does the election have a specific format? It must be signed under penalty of perjury and include the bottom-line amount of tax owed under the Repatriati­on tax.

Second, IRC section 965 Transition Tax Statement. This more detailed statement must also be attached to the 2017 tax return and include informatio­n such as:

• Total income to be added to the taxpayer personally as a result the repatriati­on tax;

• The total amount of the accumulate­d earnings attributab­le to cash;

• Participat­ion exemption/deduction amount under IRC section 965(c);

• Allowable and disallowed foreign tax credits;

• Total net tax liability, including amounts to be paid in installmen­ts.

Third, file the 2017 US federal tax return with all the various components of the Repatriati­on tax properly reported.

These three requiremen­ts mean that by October 15, 2018, the US taxpayer and his/hers tax profession­al must have engaged in rigorous number crunching and planning to minimize the amount of tax due.

The taxpayer is also required to keep adequate records to support all the above.

To summarize, Expats and immigrant taxpayers in Israel should wisely use the time between now and October 15, 2018 to sit with their Israeli and US tax profession­als and prepare.

As always, consult experience­d tax advisers in each country at an early stage in specific cases.

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