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Florida Tax Review

Abstract

As the global mobility of workers increases, more and more foreign nationals participate in U.S. retirement plans and eventually receive payments from these plans. The current system for U.S. taxation of these payments is exceedingly complex and uncertain. An elderly recipient of these payments living outside the U.S. finds it difficult and expensive to obtain the tax advice necessary for filing an accurate nonresident Form 1040NR. As a result, many do not file the return, and few are likely to be contacted by the IRS. Whatever tax, if any, was withheld by the payer becomes by default the final tax, even though it is unlikely to correspond with the actual tax liability prescribed by Congress and the applicable U.S. treaty. Moreover, foreign recipients are often able to avoid disclosure of their payments to tax authorities in their home countries. We recommend a new system for taxing retirement payments to foreign nationals that would alleviate these serious administrative burdens. Under our proposal, Congress would establish two withholding rates for these distributions: a low rate of 15% for periodic distributions or minimum required distributions; and a 30 percent rate for other lump sum distributions, which are most conducive to avoiding home country tax and depleting retirement savings. The 30 percent withholding rate would also apply whenever a payee fails to provide documentation of his U.S. or foreign status. These rates would be, by design, the final U.S. tax liability for foreign nationals, who would generally have no need to file a nonresident Form 1040NR. In addition, the Treasury would provide more detailed guidance to payers regarding the types of distributions that qualify for treaty relief; and a recipient’s request for treaty relief would always trigger notification to the home country so as to permit it to collect its own tax. Our proposal would greatly reduce administrative burdens for the IRS, for payers and for payees, and would provide greater assurance that the tax prescribed by Congress and by our treaty partners is accurately collected.

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