HEROES, CITIZENSHIP, AND KRYPTONITE 877A

Say two years ago, Superman revealed his plan to officially renounce his U.S. citizenship.1 According to Superman, he was fed up with having his actions construed as U.S. foreign policy. His plan is to officially announce his renunciation, while giving a speech before the United Nations. It is not known, however, whether he followed up on all the renunciation procedures, such as (1) signing an oath of renunciation (2) in a foreign country (3) before a U.S. consular or diplomatic officer, (4) catching up with late or missing tax returns, and finally (5) complying with Section 877A.

Knowing that Superman enjoys traveling, meeting people, and his established status as a proud public figure, he probably would not have any issues dealing with the first three or four requirements. However, dealing with the IRS is an entirely different matter. He will most likely need a good tax counsel to analyze and review his situation under Section 877A.

Section 877A was enacted as a part of the Heroes Earnings Assistance and Relief Tax Act (the “Heroes Act”). This section generally imposes a “mark to market” regime on expatriates covered under this section and it assesses taxes based on a hypothetical income that assumes that all properties owned by the expatriate were sold at market value on the date before expatriation. This law is intended to prevent tax avoidance schemes by affluent taxpayers, who have taken advantage of deferral features of current tax laws.

How many people will be affected by the “Heroes Act”? The law in Section 877A applies only to a handful of cases where (1) the net average annual income taxes owed for the five tax years preceding the expatriation date is more than $151,000 for an expatriation during the year 2012, (2) the net worth was more than two million U.S. Dollars, or (3)if the individual failed to comply with any federal tax obligations in the five tax years leading up to the expatriation date. In fact, you can find Section 877A cases more often that you thought.

Dr. Jeong H. Kim seems to be one of these cases. If you are not already familiar with recent news related to Dr. Kim, he is a Korean-American electrical engineer who came to the U.S. when he was 14 years old. He left his home at sixteen and worked menial labor jobs before eventually obtaining a Ph. D. Eventually he founded a venture, Yurie System, and he sold it to Lucent in 1998 for almost a billion dollars. He is an American success story, and a hero to many Korean immigrants in the United States. After serving many public posts, receiving various honors and making large charitable contributions, he was appointed by the South Korean government as the Minister of Future Creation and Science.

To take that offer, he announced his intention to give up his U.S. citizenship. However, he soon withdrew his plan to take the appointment, and blamed the political situation for changing his mind. However, many people cast doubts on his reasoning and sudden change. After all, he pledged, like Superman, to loftily contribute to his mother country. Some newspapers previously reported the impacts of Section 877A on this Korean -American hero’s decision. Considering that a corporate transaction typically involves stock issuance and deferral of gains, the mandatory recognition of income under Section 877A could have had certain effects on his decision. Even though no one knows for certain whether Section 877A was his Kryptonite, the case was interesting enough to attract attention to this law.

Several months ago, Superman quit his day job at the Daily Planet. I am not sure if he will eventually found a profitable company, like Dr. Kim. Nonetheless, if he is planning to renounce his U.S. citizenship as a part of his long term plan, he will be better off having his tax counsel involved at an early stage.

1 See the news at http://www.foxnews.com/entertainment/2011/04/28/superman-renounces-citizenship-00th-issue/


미국적 포기의 걸림돌 

수퍼맨은 누구에게나 친근한 미국식 영웅입니다. 한두해 전쯤 이 수퍼맨이 본인의 미 시민권을 공식적으로 포기할 계획임을 밝힌 적이 있었습니다. 1 자신의 행동들이 미국의 대외 정책인 양 비춰지는 게 싫기 때문에, 유엔에서연설을 하는 기회에 공식적으로 포기할 의사를 밝히겠다는 것이었습니다. 수퍼맨이 이후에 공식적인 시민권 포기 절차, 즉 (1) 해외의 (2) 미 영사나 외교관 앞에서 (3) 시민권 포기의 선서를 하고, (4) 과거 파일되지 않았던 세무보고들을 하고, (5) 또 미연방세법 877A 조항을 준수하는 과정들을 밟았는지는 분명하지 않습니다.

다만 수퍼맨이 평소 장거리 여행, 사람들과의 미팅, 더불어 공인으로서 자신의 입지를 즐기는 것으로 미루어, 아마 처음 서너가지 절차는 쉽게 처리했을 듯 합니다. 다만 미국세청에서 요구하는 사안들을 제대로 처리했을지는 미지수입니다. 아마 본인이 미연방세법 877A 조항에서 준수해야 할 사항들을 검토하기 위해서는 꽤나 실력 있는 세법 전문가의 도움이 필요했을 것입니다.

미연방세법 877A 조항은 사실 전공자 수익 및 보조, 감세에 관한 법의 일환으로 제정되었습니다. 전공자, 유공자 혹은 영웅에 대한 혜택과는 다소 거리가 있어 보이는 이 조항은 시장가치 기준을 전제로 합니다. 시장 가치 기준을국적이탈자의 현재 자산에 적용해서, 국적이탈자의 모든 자산이 국적 이탈 직전의 사장 가치 기준으로 팔렸다는 가정 하에 세금을 매기는 법입니다. 현 세법을 이용해서 납세를 지연하고 있는 부유층들이 납세를 하지 않고, 국적을 이탈할 때, 추정 소득을 계상해서 이에 세금을 매기겠다는 의도입니다.

실상 이 조항은 그 적용범위가 (1) 국적 이탈전 5년동안 2012년을 기준으로 연평균 소득세가 15만 1천불 이상이거나, (2) 순 자산 가치가 2백만불 이상이거나, (3) 국적 이탈전 5년 동안 연방세 보고 및 납세의 의무를 게을리 한 자에게만 적용되고 있습니다. 매우 한정적인 부류에만 해당될 것 같은 이 법률 조항은 실상 현실 속에서 심심찮게 적용 사례를 찾아 볼 수 있습니다.

김종훈 박사도 이런 사례가 아닐까 합니다. 김종훈 박사는 재미 한인 공학자로서 14세에 미국 이민을 왔습니다. 가정 형편 상 16세에 가출한 후, 고학을 통해 박사 학위를 취득했고, 유리 시스템이란 벤처를 일군 분입니다. 유리스시템은 1998년에 루슨트에 총 10억불에 매각되었습니다. 인생자체가 미국 판 성공담인 까닭에, 김박사는 재미 교포들에게 입지전적인 인물로 받아들여지고 있습니다. 성공한 이후에도 사회가 필요로 하는 일들을 마다하지 않았고, 그에 대한 인정도 받았으며, 결국 대한민국 정부로부터 미래부의 장관으로 내정되기까지 했습니다.

이 장관직을 수락하기 위해서, 김박사는 논쟁거리로 떠오른 자신의 미시민권 포기 의사를 밝혔습니다. 그러나 곧바로 장관직 내정을 고사하면서, 그 이유로 정치적 난맥상을 지적했고, 많은 분들이 이런 갑작스런 의사 변경에 회의를 보였던 것이 사실입니다. 수퍼맨이 앞서 그랬던 것처럼 김박사도 큰 뜻, 즉 자신의 모국을 위해 헌신하겠다는 의도로 시민권 포기를 발표했었습니다. 모 언론사들은 성공한 재미 교포가 내린 이 결정에 미연방세법 877A조항이 일정한 영향을 끼칠 것이라고 보도한 적이 있었습니다. 통상 회사의 인수 합병에는 신주 발행, 혹은 자산 소득의 이연이 따르기 마련이므로, 미연방세법 877A 조항 아래 의무적으로 추정 소득을 기반해 세금을 내야했던 상황이 김박사에게 일정 부분 영향을 주었을 법도 합니다. 실제 이 법률 조항이 김박사가 자신의 뜻을 바꾼 결정적 이유였는지는 확실하지 않습니다. 다만 이 사안 자체가 미연방세법 877A조항에 대한 많은 관심을 불러일으킨 것은 확실한 듯합니다.

몇달전 수퍼맨은 본인의 직장인 데일리 플래닛에서 신문 기자직을 그만 두었다고 합니다. 김박사가 그랬던 것처럼 유망한 회사를 세울 계획인지는 모르겠습니다만, 정말 본인이 미시민권을 포기할 요량이라면, 세법에 대한 자문을 조기에 구해 두는 것이 좋을 듯 합니다.

 1 관심 있으시면, 폭스 뉴에서 이와 관련한 기사를 찾아 보실 수 있습니다. (http://www.foxnews.com/entertainment/2011/04/28/superman-renounces-citizenship-00th-issue)