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Internationales Steuerrecht

Rechtsanwalt Rechtsanwalt Dirk Streifler - Partner, Verfassungsrecht, Strafrecht, Steuerrecht, Europarecht, Maklerrecht, Insolvenzrecht, Handels- und Gesellschaftsrecht, Oranienburger Straße 69
Rechtsanwalt Dirk Streifler - Partner
030-278740 42
Oranienburger Straße 69
10117 Berlin
Mo - Fr durchgehend von 8:00 - 18:00

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Tax Season - Whose Tax Season?

Rechtsanwalt Rechtsanwalt Dirk Streifler - Partner, Verfassungsrecht, Strafrecht, Steuerrecht, Europarecht, Maklerrecht, Insolvenzrecht, Handels- und Gesellschaftsrecht, Oranienburger Straße 69
Rechtsanwalt Dirk Streifler - Partner
030-278740 42
Oranienburger Straße 69
10117 Berlin
Mo - Fr durchgehend von 8:00 - 18:00
Rechtsanwalt für amerikanisches Steuerrecht - BSP Bierbach, Streifler & Partner PartGmbB
Are you a Citizen, or a Resident Alien of  the United States? If so, plan on filing an income tax return in the United States. For the purposes of this article we call these persons “US Taxpayers.”

If you are a US Taxpayer, your worldwide income is subject to US income tax. To avoid becoming a tax evader, it is important to know whether you are in fact a US Taxpayer.

Being a US Citizen is fairly straightforward. If you are a US Citizen, you are a US Taxpayer no matter where in the world you live.

You can be a Resident Alien either by being a lawful permanent resident (i.e. “Greencard Holder”), or by virtue of the Substantial Presence test, which is based on actual physical presence in the United States, regardless of  immigration status. The Substantial Presence Test is complicated and convoluted, but if  you have spent more than 31 days in the United States in any one year, you should roughly understand its workings.

If you intend to seek advice from a tax professional, skip the next paragraph.

For tax year 2008, for example, if you lived in the US more than 31 days, you must count the total number of days you were physically present in each of the years 2008, 2007, and 2006 (the tax year plus the two years preceeding). The Substantial Presence Test says that if you were present for a total of 183 days over the years 2006, 2007 and 2008, you are a US Taxpayer. There is a wrinkle, though. You only count one-third of the days physically present in 2007 (first preceeding year), and only one-sixth of the days physically present in 2006 (second preceeding year). If you can accurately determine your physical presence under the Substantial Presence Test you might consider actually becoming a tax accountant.

If you are a Resident Alien by either the Greencard or  Substantial Presence Test, you are also subject to US income taxes no matter where in the world you live.

So, there you have it, you are a US Taxpayer. You live in Germany, so you are also a German Taxpayer. Will you be observing the April 15th Tax Day? Will the IRS be claiming the part of your salary that the Finanzamt didn´t take?

You will have to file a US Tax Return for 2008 if your worldwide gross income is $8,500 or more and you are single, or $17,900 or more and you are married and filing jointly. There are other threshold amounts, between $3,500 and $20,000, for people in other circumstances. Self-employed people have to file a return if their net income for the year from self-employment is $400 or more, regardless of their total income.

As anyone who has worked in the United States will know, employers are supposed to send you your W-2 forms by the end of  January. You file your tax return on April 15th using information from the W-2´s. Since the German Tax Day is May 31st if you self-file, or December 31st if you use an accountant, you might not know what your “worldwide” income is until well after April 15th. The IRS makes allowance for this situation, in the form of  “extensions.”

If you have to file a return, and you are in fact living and working (or trying to) in Germany, you do not have to file by April 15th. You qualify for an automatic 2-month extension to file and pay taxes. The phrase “and pay taxes” is rich in meaning. What it says is, you can wait until June 15th to pay the taxes that were due on April 15th. You will have to pay interest for the period April 15th  to June 15th. What you don´t have to pay are penalties, which can spoil the Tax Day experience.

You request this 2-month extension ex post facto, by sending in your tax return on June 15th with a note saying the basis for the extension which you graciously granted yourself.  The basis is either work or military duty outside the US.

If you know the 2-month extension will probably not be enough, you can request an automatic 6-month extension instead. This is available whether or not you live abroad. The 6-month extension has to be requested by April 15th. Another difference is that you get an extension of 6 months to file the  return, but not to “pay taxes.” You are expected to estimate your taxes and send in the money. Interest will be charged for any time between April 15th and when you actually make the payment.

If you took the 2-month automatic extension, and later realize that you will need more time, you can request an additional 4 months. That request has to be made by June 15th, and extends the time to file your return until October 15th. This is not quite as advantageous as an original 6-month extension, because during these 4 months the IRS reserves the right to impose a penalty for late payment of tax.

Last but not least, if you are living abroad and the extensions to October 15th are still not enough, the IRS has a discretionary (i.e. not automatic) 2-month extension which you can request. You will have to state the specific reasons why you need more time. This request has to be submitted by October 15th.

Once you have the extensions down, do you, US Taxpayer, have to pay US income tax at all? Do you have to pay German income tax?

You might just find yourself looping back to the part above about observing the US Tax Day, April 15th. That´s because, for many people there will be no US tax on their income in Germany. You may have to file, but you may not actually pay taxes. If that is the case, why wait to file your return? The sooner you file the return the sooner you receive any refunds that might be due from IRS.

US Taxpayers basically pay US income taxes, period. There is a subcategory of US Taxpayers  which for the purpose of this article we´ll call “US Expats,” because they qualify for the “foreign earned income exclusion, “ the “foreign housing exclusion,” or the “foreign housing deduction.”

Who qualifies? Unfortunately, the details of this are beyond the scope of this article. Er, just kidding…but to be honest this is a trip through soul-crushing flowcharts.

For starters, these US Expats are people just like you and me, who pay taxes in a foreign country, and earn an income in a foreign country. “Earn” means they, personally, have to work for the money, not just cash dividend checks from stock they own.  If they meet those requirements, and they are either US citizens or Resident Aliens from a tax treaty country – Germany is a tax treaty country -- they need to be a bona fide resident of one or more foreign countries without interruption for a full tax year. What has to be without interruption is the resident status, not actually being there. US citizens and Foreign Residents (even if they are not from a tax treaty country) can also qualify on the basis of actual physical presence outside the US, 330 full days in any consecutive 12 months period, even if they are not bona fide residents of the countries in which they live.

US Expats can exclude the first $87,600 in worldwide earned income. That means, if you earned $87,700 in 2008, the part subject to US income tax would be at most $100. You still file a return with IRS (you earned more than $8,950), but you take $87,600 off the top.

They also have a  $38.30 per day Foreign Housing Exclusion from housing expenses paid for by an employer. Otherwise, paid housing expenses would be considered income. If the US Expat is self-employed, he is entitled to the foreign housing deduction, which at the maximum level is the same as the foreign housing exclusion, $38.30 per day.

In a best case, the US Expat can exclude the first $101,616 of his combined earned foreign income and any employer-paid housing.

For many of you Berliner US Taxpayers the US Tax Season will be financially harmless. It won´t be a no-brainer, because tax rules are not understood by individual taxpayers, only by taxpayers collectively -- through their elected representatives. If you don´t know the right elected representatives, you can always call H&R Block.
 
So, you know where you stand with the IRS, how about the Finanzamt?

Every individual who has his residence in Germany, or just normally lives there, pays German income taxes on his worldwide income. The level of income and nationality of the taxpayer are irrelevant. We don´t know about you, but we find this refreshingly simple.

What it means is you, American in Berlin -- or Nigerian in Berlin, are well on your way to being integrated into the core and fabric of society, through your Steuernummer. Let´s first do a quick check of what “Residence” means under German law. Maybe your room in a six-person WG, where two members have never paid rent, doesn´t qualify as a residence. Maybe youré not actually “living” here.

A residence is your living quarters, where you stay under circumstances that would lead a reasonable person to think that you intend to continue to use it and possess it. Living quarters must be intended for that purpose – unlike an abandoned factory – even if they are modest to the extreme. A single room, a Summer or vacation house, or a parked travel trailer all qualify. To be in possession means that you have the space under lock and key, you can exclude others. Possession must be ongoing, not on a temporary basis.

The alternate requirement, “normally living there, “ means that anything goes, as long as you are physically present in Germany six months or more in the year. You don´t need a residence. A hotel room or abandoned factory will do.

Being registered with the Meldeamt, or cancelling the registration, is not a deciding factor. Many an Ex-Berliner has moved back to the States having forgotten to cancel his registration. Does that means ten years later he owes back taxes in Germany bigtime? No. It is the reality of the situation, not the formalities, that count. The practical effect of being registered is that you will probably received your Steuernummer in a mass-mailing.

So,  if you live in Germany, the Finanzamt is entitled to tax everything you make in Germany and anywhere else on earth. Sounds like the IRS and the Finanzamt think alike. What does the American in Berlin do, take his pay in kind? What if his landlord doesn´t accept VIP passes for rent?

Not to worry. Like two robber barons, the IRS and the Finanzamt have agreed to share the foreign wage earners. The agreement is called a Tax Treaty. Just to make sure no one slips through the cracks, the treaty contains what is called a “saving clause,” which says in effect that Americans and Germans living in the other´s country have to pay taxes in both countries. That is the general rule, anything else is an exception. This clause “saves” Americans and Germans from the possibility of not paying taxes in either country.

The Tax Treaty is designed to prevent “double taxation.” That is what would happen if your €15,000 income were taxed in full in the US, Germany, England and maybe Albania, leaving you with €25.39 net for the year. The idea is not to kill the travellers, but to take and share half their cargo, so they might pass that way again next year.

The German-American Tax Treaty sets out rules for assigning certain types of income of a given individual to one country or the other. It is possible that the US Taxpayer´s personal wages would be allocated to Germany, and his profits from operation of a business to the United States.

The rules are too complex to read for free. As an example of how German-American taxation works, US Taxpayer lives in the US from January through November, and earns $45,000 there (i.e. €30,000). At the beginning of December 2008 he signs a fat freelance contract to design a gay-lesbian online-poker website with Cubano theme. Obviously he has to move to Berlin to become culturally enabled. On December 5th he rents an apartment in Berlin, on the usual open-ended lease. During the rest of  December he makes €35,000 from his programming.

In 2008 he will not be living outside the US long enough to qualify as a US Expat, so he is still a US Taxpayer. Since he has established a residence in Germany, he is also a German Taxpayer. He will pay tax to the IRS on his $45,000 income, and to the Finanzamt on his €35,000 income. By virtue of the Tax Treaty, he will not be taxed by both countries on his total earnings. What will happen, though, is both the IRS and the Finanzamt will require him to report his actual worldwide earnings. Both countries have progressive tax rates, and he will be taxed in each country at the tax bracket for his overall income of €75,000.

Not only is the US Taxpayer/programmer a German Taxpayer, he is a self-employed German Taxpayer. Being self-employed in Germany is no joke. Ten years from now it is so easy to find yourself owing 12 years worth of back taxes to the Finanzamt.

Who all is self-employed? English tutors, computer programmers, prostitutes, lawyers and the like are typically, but not always self-employed. Understand it this way, if you are earning money and your employer is not deducting taxes from your earnings, you are self-employed.

Self-employed fall into two categories, those who earn €17,500 or less per year, and those who earn more than €17,500. The Earn-Less group has to pay income tax, but does not have to be concerned with turnover tax (VAT). Income tax rates for a single person run from 15% at €7,701 per year, up to 42% at €50.000 per year. The first €7,700 is tax free, so the €7,701 income pays €0.15 for the year.

The Earn-More self-employed pay income tax, and also have to charge, report and remit VAT at 19%. This tax is paid by the end user of products or services. He pays it to you as part of your invoice, you pay the same amount to the Finanzamt. If you have a sub-supplier, say someone who helps you do translations, he will charge VAT to you on top of his fee. If you don´t follow this, walk right up to the bar and ask the tavernkeeper how Umsatzsteuer works.

The problem with VAT is the reporting and responsibility. If youré not into either of these, think of the headache. First you go to the Finanzamt and get a VAT number (Umsatzsteuernummer). Then for the first year you conduct your “practice,” and for the next full year after that, you file VAT returns monthly and remit the money. After that the frequency tapers off (as in a marriage, but VAT reporting never tapers off to nothing).

So, you really can´t take all the paperwork, and anyway, you spent part of that VAT you collected on necessities (everyone in Berlin needs a bike and a Lonsdale something). Seek counseling, do anything, but pay the taxes. The longer you wait, the more expensive it is. Germany has a very efficient system for collecting tax debts. A bailiff comes to your WG, helps himself to your bike, your Lonsdale bomber jacket, and your roommate´s digital mixing console. Thank you, youré paid-up now.

Those of you who run businesses, maybe a bar, have accountants. Those who are thinking about it, find an accountant. Ask him about compound words that end in -versicherung or -steuer.

Matthias Klose, Tax Advisor, Berlin & Edmund Rowan, Attorney at Law, Berlin


Die verkürzte Darstellung bedingt, dass eine vollständige Beschreibung der relevanten Rechtslage hier nicht möglich ist und daher eine professionelle Beratung nicht ersetzt. Trotz sorgfältiger Bearbeitung bleibt eine Haftung ausgeschlossen.
 
In unserer Kanzlei wird der Bereich des amerikanischen Steuerrechtes maßgeblich betreut von Edmund Rowan, Attorney at Law in enger Zusammenarbeit mit Kurzynski & Klose Steuerberater - Partnerschaftsgesellschaft in unserem Haus.

Contact:

Streifler & Kollegen
Oranienburger Straße 69
10117 Berlin

Tel.:  +49 (0)30-278740 30
Fax.: +49 (0)30-278740 59

e-Mail: [email protected]