Today SEAT and the Association of Americans Resident Overseas (AARO) joined to file an amicus curiae brief with the U.S. Supreme Court in relation to Charles G. Moore, et al. v. United States (Docket No. 22-800).
SEAT co-founder John Richardson has explained:
SEAT co-founder Karen Alpert blogged about the problems of the “Mandatory Repatriation Tax” being challenged by Moore back when the Tax Cuts & Jobs Act (TCJA) was legislated:
The case concerns Charles and Kathleen Moore, who live in Washington State. In 2006 they invested in 13% of an Indian corporation, KisanKraft, created to import, manufacture, and distribute affordable farming equipment in India. The Moores never realized earnings from the investment.
In 2017, the Moores discovered they owed nearly $15,000 in U.S. income tax based on the unrealized earnings of KisanKraft going back to 2006. Believing the “transition tax” (or “repatriation tax”) to be unconstitutional, the Moores took their case to court arguing that because the tax was imposed on accumulated foreign earnings, it was not a tax on income and is therefore unconstitutional under the 16th Amendment. In June 2022, the Ninth Circuit Court of Appeals affirmed the district court’s decision rejecting the challenge. In its decision, the court held that whether income is realized is not a determinative factor regarding the validity of the transition tax.
In June, 2023 the Supreme Court granted the Moores’ petition for a writ of certiorari – that is, the Court agreed to hear the Moores’ appeal. The Court is expected to hold arguments in the case in December, 2023.
The question posed in granting certiorari is “Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.”
SEAT’s and AARO’s joint amicus brief explains both why Moore is important for overseas Americans and additional grounds upon which the Court may rule in favor of the Moores.
For more information about Moore and its importance – in particular for overseas Americans – see Richardson’s in-depth discussion on his website Citizenship Solutions.
SEAT’s and AARO’s joint brief is available here:
Great job! It is the best amici in the docket and hits the right points. MRT is government theft.
Meyer v. Nebraska (1923) was a seminal case that protected the right to earn a living. Meyer, a German language teacher, was convicted under a Nebraska law that prohibited the teaching of foreign languages (German) to children before they had passed the eighth grade. Meyer challenged the law on the grounds that it violated the Due Process Clause of the Fourteenth Amendment. SCOTUS held Nebraska’s law was unconstitutional.
MRT and CBT fit the same hateful anti-foreign pattern in Meyer 100-years later.
That was a state law. The Act was in that state. Tax / double taxation was not involved.
It certainly could not have involved USP tax resident overseas and their activities overseas (the focus of this website). Noted the Moore case involves an actual U.S. resident. The double tax in question sweeps in USP tax resident overseas.
Sorry for not being more clearer. Drawing parallels between Meyer and citizenship-based taxation (and MRT) can be founded on the ideological (xenophobic) premise that both interfere with a person’s economic liberty. Meyer is concerned with teachers’ livelihood and students’ academic freedom; citizenship-based taxation affects the economic well-being of citizens abroad. MRT, like Meyer, impinges on the expat’s ability to earn a living.
Both MRT within the Citizenship-Based Taxation (CBT) framework and Meyer exhibit the same elements of hostility towards “foreign.”
Xenophobia is the crux of both cases, and both were designed to undercut the individual financially. Congress did not impose a similar tax on LLCs. In Meyer, the govt did not impose a ban on English teaching.
By imposing onerous obligations on overseas citizens, the U.S. government infringes on expats the unenumerated right to live and work abroad, free from undue state interference, similar to Meyer’s argument.
“….denotes not merely freedom from bodily restraint, but also . . . to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary…”
AARO e-mailed a short video from the Moores: https://www.youtube.com/watch?v=8iyqVFWXrAs&t=116s . That appears before the case was accepted by the Supreme Court.
The video is not clear on how the $15K tax amount came about. Was it from information volunteered? Or, did the authorities come up with that, and how did they come up with that?
Just thinking about this tax and how it interacts with other tax laws and tax credits.
It is not based on “income” from a passive investment structure as a penalty tax on the individual.
The tax itself was not against the “active” company balance sheet, and if it was the case then it might have been considered an “expense” against and reducing future dividends or capital gains from further U.S. taxation.
IMO, it may be considered an extra type of double taxation.
Let’s say the share is sold at a loss, then the tax is not used as an “expense” against other earnings as there are none. And I believe there are limitations about taking losses from abroad.
If the shares are sold at a gain, then there would be double taxation at play: (1) U.S. capital gains tax less witholdings tax to India as country of income source, plus (2) the offending tax that may not be reduced by any credit.
Perhaps exploration of these tax dimensions would yield more angles of defense against the original tax?
Other:
Where is double taxation enunciated as allowed in the regulations a) between U.S. federal taxes, and b) with taxes from other nations?