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Thursday, August 23, 2012

Diaspora Taxes: The Exit Tax

Exit taxes have a terrible reputation.  It's almost impossible to have a discussion about them without having someone bring up the practices of past totalitarian regimes like the USSR or Nazi Germany who taxed Jews before they left their territories.  Not exactly the kind of company that modern states wish to be associated with and if you ask a citizen of such a state today whether or not he thinks an tax/penalty/fee in order to leave a country is a good idea, it's pretty likely that he will answer, "Of course not."  There is something very fundamental about the freedom to move where one likes in order to seek other opportunities (provided that the destination country is agreeable) and most people think that states should not be permitted to hold their citizens or visitors captive.

This is, by the way, a very modern idea.  For much of recent history people were essentially prisoners in their countries of origin.  In 19th century Prussia no one (not even foreigners) was allowed to leave the country without authorization.  It took the French revolution to remove a 1669 edict of the king that forbid the French from leaving France.  In 1720 the parliament of Great Britain banned seamen, artisans and other workers from emigrating to the American colonies.  This was revoked apparently only in 1824.  Even the U.S. right after the Civil War saw attempts to control the movement of black workers out of southern states via a system of pass controls (papers that showed their employment status) which made it harder for them to circulate within the U.S.  The next time you hear a native citizen beating his chest and proclaiming, "My ancestors have been here for X generations!" just bear in mind that his forefathers weren't necessarily there because they wanted to be.  They stayed because they weren't allowed to leave.

Fast forward to the 20th century and two documents:  The Universal Declaration of Human Rights (1948) and The International Covenant on Civil and Political Rights (1966). Article 13 of the first says:

1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.

Article 12 of the second document, the ICCPR, has similar language but does allow certain restrictions:

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.
4. No one shall be arbitrarily deprived of the right to enter his own country.

The rights and restrictions were clarified in the Siracusa Principles (1984) and in General Comment No. 27 (1999).  Where there are restrictions a state must show that they fall within one of the categories (line 3) and that they are proportionate:  "They must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected."

So, yes, under certain circumstances states do retain limited rights to prevent people from emigrating.  Some have gone so far as to argue that such restrictions should be placed, for example, on health professionals leaving developing countries for Europe or the U.S.  These countries are, after all, in a "state of emergency."  The question of whether or not states can, under international law and under certain circumstances, levy a penalty, a fee or a tax on people who wish to emigrate is not clear to me.  If anyone has better research, please feel free to point me in the right direction.  One country that is under fire for violations of the ICCPR, is Eritrea.  They have been censured for preventing people from leaving the country by making passports very expensive or by requiring exit visas in order to leave the territory for whatever reason.  This report by the U.S. State Department says that, "Some citizens were given exit visas only after posting bonds of approximately 150,000 nakfa ($10,000) or more." Eritrean citizens already abroad who came home for a visit had to prove that they had paid the diaspora tax of 2% in order to be able to leave the country again. Reading the media reports, the general consensus of the international community seems to have been that these methods were gross and grotesque violations of basic human rights.

And yet, fees or penalties or taxes on outbound human traffic from one state to another are alive and well in the 21st century.  A surprising number of states do, in fact, have some sort of mechanism for shaking down people who leave a territory.  The simplest and most common is the Departure Tax (also called Airport Exit Tax).  Most countries in Europe have them.  Canada and Australia too.  Sometimes these are simply rolled into the price of the plane ticket.  In other countries, it is payable in cash and you get a little sticker or stamp saying it was paid.  As annoying as these may be, they are clearly not attempts to stop people from leaving. If you can afford the price of a ticket to Australia then surely you can afford to pay 55 AUD to leave.   In general when we say "exit tax" we are not talking about these kinds of fees which have nothing to do with emigration.  So let's define the term more precisely.

An exit tax is a tax that is levied against an individual or a corporation who wishes to transfer residency or citizenship from one country to another.  It is a tax on emigration and/or expatriation.  How does it work and what is its purpose?:
In general, ET [Exit Taxation] aims at levying the potential or latent gains (also called “hidden reserves”) related with the assets that an individual, a company or a PE located in a given country, economically (eg., through allocation to a foreign PE of a trademark or a shareholding), or physically transfer to another tax jurisdiction. A first feature of ET is, thus, related with the fact that it is imposed when no asset disposal takes place, and no revenue is generated.
What might that mean for an individual?  Let's say an individual wishes to move from Country A to Country B more or less permanently.  Country B will become their new "tax home."  Country A will take note and will act as if that person sold all of his/her assets the day before the person officially leaves. Nothing is actually sold but Country A will act as if it was and levy a tax.  This is called Mark to Market and Phil Hodgen has a very good explanation here of how this works.  No actual revenue is generated for the individual (the "sale" is virtual) and that person may very well be in 100% compliance with Country A's tax laws.  So this is extra tax on top of taxes that have already been paid on those assets and it's the act of leaving that triggers it.

How common is this?  Fairly common for corporations in Europe.  In fact the Euro-zone is something of a hotbed of political/legal action in this area.  Lots of European companies want (and theoretically have) "Freedom of Establishment" - the right to move as they like within the EU.  One case that is most often cited in this regard is the National Grid Indus decision by the European Court of Justice in 2011.  In the year 2000 the Dutch company National Grid Indus moved their management to the U.K and that triggered a Dutch exit tax.  The ECJ ruled that NGI had the right to make the move, that the exit tax was not applicable in their case because they still remained a Dutch company but, as KMPG explains here:
The ECJ also concluded that imposing an exit tax may be justified by the need to ensure a balanced allocation of taxing rights between Member States. However, the ECJ noted that the proportionality of the Dutch exit tax should be reviewed in order to determine the compatibility of such a measure with EU law. In order to do so, a distinction must be drawn between the moment when the tax liability is determined and the moment when it is settled. 
The ECJ basically said that exit taxes for corporations are OK within the EU.  However, the tax has to be proportionate (not too much of a burden) and corporations must be allowed to defer payment.

What about individuals (also called "natural persons")?   Again, it is more common than you might think.  This Country Tax System Matrix lists the following countries as having some sort of exit tax for individuals who leave the territory or renounce citizenship:  Australia, Canada, Denmark, Germany, Israel, Italy, Luxembourg (inheritance tax), The Netherlands, and The United States.  I cannot vouch for the validity of this information since this is not at all my area of expertise.  There are surely more - this list does not cover all of the 190+ countries in the world.  It also only contains information up to 2010 and does not include the new French Exit Tax which went into effect in 2012.  But it does show that exit taxes for individuals are not at all uncommon and it should be noted that within the EU the principle of exit taxation for individuals has been held to be legitimate provided that there is no immediate tax charge and that the sums are not abusive or disproportionate.  

What is interesting is that 1. most citizens are unaware that their countries do levy such taxes and 2.  they tend to target high-net-worth individuals so when citizens are made aware of them their robust support for the "freedom to leave" is overcome by their desire to make the rich pay for abandoning them.

A desire for revenge is not only a very ugly emotion, it is not usually a good legal or philosophical basis for taxing people.  It's also very rare to see a politician or a "homelander" admit to a desire to stop or slow down the free emigration of individuals and corporations.  There is an underlying respect for the idea of freedom of movement that most people feel in their bones.  Not even the most rabid anti-emigration native would come out and say openly that that ability of people to move to another country (provided they are welcome in a receiving state) should be restricted.  The debate tends to revolve more around the idea of compensation.  The focus is on what the state of origin loses when these people and their companies leave:  tax revenue, jobs, professional qualifications honed at a local university, entrepreneurial talent.  When it comes to company migration, this dissertation by a Portuguese lawyer summed up this position quite nicely in the conclusion:
Despite the serious doubts expressed in the previous paragraph about whether ET [Exit Taxation] can really be justified in an EU setting, namely on the basis of BATP, we have to concede that company migration may be a domain considerably prone to abuse and also that some form of compensation of benefits provided by the origin state - or better put, a reward for the contribution of the origin state to the profitability of the migrant company up to exit - should be put in place. This would not amount to accepting a restriction without justification but rather recognizing that such compensation is justified as a way to uphold the legitimate right of a state to quell tax base erosion schemes.
Similar arguments are made about human capital but it's a bit harder to get people to accept them because we are talking about human beings ( a group that we all belong to).  Penalizing someone monetarily for the act of leaving one's country of origin (or residency) is not terribly consistent with the ICCPR or the UN Declaration of Human Rights.  And the fact that someone is rich (which is a very relative term) should not ever ever mean that they are deprived of their human rights.

If compensation of benefits is the primary goal, that has some very interesting implications for all emigrants.  How can a state quantify those benefits?  Should every individual leaving a country reimburse it for the cost of public education (primary through university) or police and fire protection for the period he was resident?  Should a person be taxed if he takes his or her children (thus depriving the nation of future taxpayers) to another country?  Is that parent engaged in the abusive practice of "eroding the tax base?"

The last is, I admit, a very extreme example but I stand by my suspicion that allowing states to determine just compensation for benefits received and holding people hostage until they pay up is a form of indentured servitude and a potential nightmare for would-be emigrants.  What a mighty sword to put in states' hands to use in the battle to control international migration.

Enough said.  I would love to hear your take on it.


Anonymous said...

Great post. Makes one think. Here are some thoughts on this topic - noting that this post is restricted to the topic of the Exit Tax.

I think that an Exit Tax per se is probably consistent with international law, including the relevant human rights instruments. That said, it can go too far, and in its specific application, violate certain human rights agreements and international law.

I suspect that if an Exit Tax is aimed at and rationally related to taxing economic activity in the country doing the taxing, than it is probably (in most cases) okay. The problem is when it does not do this. I believe that the application of the U.S. Exit Tax is contrary to international law in at least two specific cases.

1. Where the U.S. taxes the increase in the value of an asset, that accrued prior to the the person having any connection to the U.S. Example: in 1990 person A buys a property for $1000. In 2000 that person immigrates to the U.S. and the property has a fair market value of $5000 at that time. In 2020 the person leaves the U.S. As I understand the law, the payment of the Exit Tax would include payment on the $4000 gain that accrued prior to the person immigrating to the U.S. This seems to me to be very unjust. That $4000 gain accrued prior to the person having any connection with the U.S. and the property is not in the U.S.

2. Imposing the Exit Tax on a U.S. citizen who moved from the U.S. prior to owning any assets or having any income. Say the person moves to Switzerland at the age of 15. The person never returns to the U.S., never makes any income in the U.S. and holds no U.S. assets. At the age of 55 the person can no longer stand the forms and renounces. The Exit Tax would apply to all the person's assets - even though not a single one of them as any U.S. connection. Now, the U.S. would argue that the issue is not the location of the asset or where the income was earned to purchase the asset. The U.S. would say: tough luck you are a U.S. citizen. Okay, fine. But, that is an understanding of citizenship that means that the state has a "property right" in the citizen and therefore in the citizen's assets. Now, it seems to me that this is exactly what various human rights instruments are trying to combat. The purpose of human rights instruments is to clarify that citizenship is a voluntary association. Note that this example is dependent on accepting the principle of citizenship-based taxation - which might be in violation of international law.

I don't see the issue of Exit Taxes as an "all or nothing" question. I think that one needs to consider the specific application of the tax. I believe that the U.S. is in serious trouble (at last morally) on this issue.

I would be interested in your thoughts on my thoughts.

badger said...

Thank you for another excellent post.

Re; "allowing states to determine just compensation for benefits received and holding people hostage until they pay up is a form of indentured servitude and a potential nightmare for would-be emigrants. What a mighty sword to put in states' hands to use in the battle to control international migration."

And when that extends - as it does now, to children born abroad, of US born or naturalized citizen parents, who are then subjected to the burden of US taxable status from the onset - in the womb - transmitted through inheriting it from one or both US parents: this is unjust and unethical servitude and serfdom. There is no social contract. There is no consent. Those individuals have no relationship to the US whatsoever. There can be no rational basis for the US insistence that these children - who were not born, have never resided in the US, or used any US services, or cost the US anything, and whose wellbeing is entirely underwritten by their parents and fellow taxpayers in another country of birth/dominant citizenship - should be deened 'taxable US persons' based merely on the status of a parent. There can be no possible ethical justification for the inheritance of a lifelong tax and reporting burden which the US is hellbent on making as punitive and oppressive as possible for those who live abroad, and insists on applying to minors born and living outside the US. They are born into a burden that their fellow non-US citizens will never have to face. If the US wants to tax them after they choose to reside there as fully consenting adults, that is one thing, but until such time as the US has afforded them any actual benefit, or expended any money on them, the inherited US status is a burden sentencing them to a lifetime of obligation and potentially, financial ruin - even if they never ever set foot in the US. That the US imposes this on those born abroad based merely on some types of parental status and is unjustly adamant on enforcing it, speaks to the US seeking to create as many subject-taxpayers as possible, and through them, lay claim to assets that were generated, and properly belong to the economies of other sovereign nations.

That the US is not vilified by other countries for this speaks of abject cowardice on the part of other countries - who should be standing up to protest against the forcible indentureship of their nation's children - and declare that they reject any claims on their own native born citizens. It should not be left to individuals to protect their children from the actions of what is to them, a 'foreign' nation - the US.

This injustice is so glaring that it is possible that the US citizenship-based taxation system may finally be undermined by it's own extremes. We can renounce for ourselves, but not for our children or for those judged to have diminished capacity. Thus, renunciation and relinquishment will not release our other family members from US chattel status, and continues to shackle our households. This is the basis for a prolonged resistance against the US - we cannot rest until our children are also free, and we cannot wait 18 years for them to be 'allowed' to leave. Who knows what the US and IRS will have come up with in 18 years - to make the shackles even more firmly affixed? The current process is already so onerous - and conflates taxation with citizenship, that it is an open question whether it already is in conflict with the Universal declaration of human rights - to exercize the right to leave a country, and to divest oneself of an unwanted citizenship.

Cornwalliscal said...

There is a large difference between the exit tax levied by most countries vs. that levied by the U.S.A.

Let's say I, as a canadian desire to move to Bermuda in order to avoid income taxes. If I could transfer all my assets tax free, I would also avoid capital gains taxes that had accrued on my assets. Canada taxes capital gains on death. Therefore to avoid this tax loss on an expatriate, they tax capital gains on emigres.

The U.S. on the other hand taxes those who give up citizenship no matter where they live and no matter where they earned their assets and no matter where those assets were located. If i were an accidental American who lived all my life in another country and decided to renounce US citizenship, they would want to subject me to an exit tax on all my assets even though none of those assets were earned in the U.S. This is a very different kettle of fish. C'est un autre paire de manches!

Tim said...

Here is I suppose the legal dilemma under the Canadian Constitution. You have one section(part of the Canadian Charter of Rights and Freedoms) that says the following:

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

(a) to move to and take up residence in any province; and

(b) to pursue the gaining of a livelihood in any province.


(3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and

(b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

The you have another part which originates in the original British North America Act:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

one of which is:

3. The raising of Money by any Mode or System of Taxation.

Now the Section 91(3) is limited by the Charter of Rights and Freedoms but only to the following extent:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

So how do all of these clauses add up at the end of the day well that is the question.

Tim said...

In Canada in particular there is also another form of "departure" that generates this type of tax liability and that is one into the afterlife. Canada doesn't have an estate or inheiratance tax but it place a "deemed sale" for capital gains tax purpose on an individual's assets at time of death. Compared to the US depending on the particular circumstance this can either be to the advantage or disadvantage of someone who would be covered by the US Estate Tax. Additionally assets exempted from capital gains tax in Canada such as sale of primary residence are also exempted for the "deemed sale" exit tax rules.

The other point I will make is the Canadian system compared to the US is much fairer for immigrants(and also those who acquired Canadian citizenship outside of Canada)in that the "basis" for the gain on value of their assets upon departure is only based upon the value of them when they first became residents of Canada. Additionally their is a five window/exemption for assets kept outside of Canada for new residents(including technically again Canadian citizens who acquired citizenship outside of Canada). Under the US system people who give up the Green Cards are not taxed on the basis of the value of a particular asset when they first obtained a green card but instead when they first obtained the asset even if it was years before they got their green card.

Victoria FERAUGE said...

@anaonymous (is that you, renouncecitizenship?), Thanks for your thoughts on this. Yes, it looks like exit taxes are not automatically contrary to international law but the two cases you cite would seem to defy the criteria that the tax should be reasonable and proportionate. For your first case, Patrick Weil talked about this in his article in La Tribune.

He says that the tax (if there is one) should be proportionally split between the different countries of residence or nationality.

For case two (and I'll admit to a bias here since I am in this situation) that does seem to defy international law. This is nearly unlimited tax liability for the time a person is a citizen (whether they knew it or not and wherever he lives). That is hardly proportionate nor it it the least intrusive mechanism to achieve its ends.

Just for fun I looked at the U.S. ICCPR country report on compliance with Article 12 and no mention is made of exit taxes or citizenship-based taxation.

I check out some of the CCPR general reports and didn't find much either. The focus is more on issues like slavery, human trafficking, treatment of migrants and things like that. So exit taxes do not seem to be very high on their list of priorities.

My take on it is that the EU framework is probably the most reasonable and respectful of international law. If an exit tax is deemed necessary and appropriate in certain circumstances I'd rather be a European than an American. :-)

Victoria FERAUGE said...

@badger, Good to see you! Good to hear that my "chemo brain' hasn't made me incomprehensible. I really worry about that these days. Not sure that its cowardice necessarily on the part of other nations. I suspect that the reason few countries or international rights organizations aren't complaining is that up until very recently the US didn't really enforce its own laws. It may very well be that as cases come before the ECJ and other international bodies that the laws will be challenged. Canada is really at the forefront of the battle since its so close to the US and there are so many US persons there. We are kinda counting on you folks and your government to keep the pressure on.

@cornwalliscal, Yes, you're right and not all exit taxes are the same. It's a continuum with the U.S. at one extreme. My question would be this: to what extent does the existence of this fairly extreme position impact the thinking of other countries? Do they look at the U.S. and say, well, they are getting away with it and in comparison our modest efforts are quite reasonable?

@Tim, Exactly. What is the end result of these different rights? Not clear to me. Here's another one that is very interesting. Did you know that the U.S. state of New Jersey has an exit tax on the books? This might make a good post for Isaac Brock. Here's a link and you can also do a web search on "New Jersey Exit Tax":

Thanks for bringing up the inheritance taxes. I'm going to do a separate post on that because it's avery interesting cross-border subject. I've been told, for example, (and will need to confirm) that my residency status in France means that if I inherit money in the US, the French state will tax me on that. Something I would like to more about for obvious reasons.

Watcher said...

Regarding your comment "In 19th century Prussia no one (not even foreigners) was allowed to leave the country without authorization."

The US stance here on foreigners is no different. From,,id=97256,00.html

"Before leaving the United States, all aliens ... must obtain a certificate of compliance. This document, also popularly known as the sailing permit or departure permit, must be secured from the IRS before leaving the U.S."

Poorly constructed exit taxes are disastrous tax policy. I left the US after living there for more than a decade as a green card holder over precisely this issue. I don't, and never have, had worthwhile unrealized gains to tax, but the US exit tax contains a special extra clause that immediately taxes all your retirement savings as if you'd withdrawn them entirely on the day you leave. Even where you don't, and perhaps can't, actually withdraw the money. I saved diligently for retirement over a 25 year career, so the choice for me was a direct one -- leave before the exit tax law passes, or pay over $100k in unrecoverable double-tax when I did eventually leave. I chose the obvious first option. I still do the precise same job as when I lived in the US, just salaried elsewhere. The cumulative tax loss to the US from having pushed me to leave early now well exceeds the $100k it tried and failed to grab with the exit tax, and rises more each year. I pay around the same income tax as before, but now to a different and more appreciative country. In my case the US's exit tax produced a definite, measurable, rising, and distinctly non-trivial net tax revenue loss.

Victoria FERAUGE said...

@Watcher, That is amazing. I had no idea and I think I will add it to the post. There was a time as well when France has something similar - it was called a quitus fiscal and it had to be filled out before departure but it was simply proof that you had paid all taxes owed. We filled one out before we left for Japan. It was NOT a departure permit.

Thanks for telling your story. I don't know if anyone is tracking such things but with all the publicity around citizenship-based taxation, the FBAR fundraiser I would be very surprised if it didn't have an impact on immigration to the US, the number of new US citizens and decisions to limit stays.

You show quite clearly why it would make NO sense for an migrant to stay for a long period or to become a citizen. I know that my husband (French citizen) is thanking his lucky stars he didn't do either and turned his Green Card over in time.

Definitely bad tax policy.

Roger Conklin said...

I recall a few years back when Fidel Castro introduced an Exit Tax on Cubans that were university graduates who applied for permits to leave the country to relocate elsewhere. This tax was to compensate the Cuban government for the cost of their government-paid-for university education.

The world screamed bloody murder! The US, in front of the US Interests Section building in Havana erected a huge electrically illuminated sign quoting the United Nations Universal Declaration of Human Rights, (Cuba is one of the UN member states that ratified that Declaration), which affirms that every person shall have the right to freely leave from and return to any nation, including his own.

Cuba erected another sign on the outside of the fence for the purpose of blocking the view of the sign the US Interest Section had erected, but the world reaction against Cuba was so strong that Cuba relented and eliminate that Exit Tax.

Today, Cubans no longer require an exit permit to leave the country. With a Cuban passport and a visa from the country to which they intend to travel every Cuban is now free to leave the country either for a temporary visit abroad; or permanently.

The United States has replaced Cuba as the nation with an Exit Tax collectible from its citizens if they renounce their US citizenship. And under the provisions of a bill introduced by Senators Schumer (D, NY) and Reed (D, RI) the US citizen who renounces US citizenship in order to avoid paying the unique US citizenship-based income tax levied on US citizens living in a foreign country, would be blacklisted and denied any right to ever visit the United States for the rest of his life, even to visit a dying relative in a nursing home, to attend a funeral, for medical treatment or for any other purpose.

This bill has not yet been enacted into law, but don’t be surprised if it is tacked, as was FATCA, onto some totally unrelated legislation just minutes before the vote is taken and is passed without those who vote “aye” realizing what they have approved with that vote.

Did you ever expect to see the day when it was easier for a Cuban Citizen to leave that Communist country and become a citizen of another country than it is for a US citizen to do the same. Cubans who become naturalized citizens of another country by that action automatically loose their Cuban citizenship. But Americans who do this must formally renounce their US citizenship before a US Consular official located outside of the United States ; and pay the required renunciation fee and Exit Tax to do so.

Strange but true, the exit tax rules which Communist countries implemented to prevent or severely penalize their citizens who wished to leave, which were so strongly criticized under US law, are now standard US practice with the United States.

As far as I know neither Cuba nor any other nation has erected a sign in front of its Interests Section building in Washington or an Embassy, highlighting how this Exit Tax constitutes a violation by the United States of the UN Universal Human Rights Declaration, the author of which was none other than Eleanor Roosevelt, the widow of our 34th President.

It indeed matters whose ox is being gored..