Executive Summary
Income within and distributions from a Russian Social Individual Insurance Account in Russia are exempt from U.S. tax pursuant to the U.S.-Russia Income Tax Treaty if and only if the benefits of the treaty are properly claimed and reported on your U.S. federal income tax return. Contact our firm today to schedule a free consultation by clicking here to submit your information online and be contacted by our firm.
Treaties and Federal Laws
The Internal Revenue Code (the “Code”) states that “neither the treaty nor the law shall have preferential status by reason of its being a treaty or law.”[1] As the United States Court of Appeals for the D.C. Circuit has explained, Congress intended to codify the so-called “later-in-time” principle when it enacted Code section 7852(d)(1), which focuses on timing to find which controls regardless of whether there is a conflict.[2] Thus, it’s not the character that controls; it’s the timing.
The D.C. Circuit’s position of an Absolute “Later-in-Time” Rule even in the absence of a conflict or express intent to supersede has led some to believe that it is inconsistent with international law, which generally requires a conflict or clear intent to supersede a treaty.[3] However, although international law generally requires a conflict or intent to supersede, these commentators fail to comprehend another principle of international law: a treaty cannot supersede a nation’s constitution.[4] Pursuant to the Supremacy Clause of the U.S. Constitution, federal laws passed by Congress and treaties ratified by the Senate have equal weight and authority.[5]
In other words, if one views a treaty just like any other law passed by Congress and signed into law by the President, it becomes clear that a future law will only supersede a prior law to the extent that it is more specific than the previous or cannot be reconciled with the prior law.
The Russian Social Security System
The U.S. Social Security Administration’s 2010 publication titled “Social Security Programs Throughout the World” analyzes Russia’s overall comprehensive social security system. The first of laws implementing social security in Russia were enacted in 1922.
Russia’s current social security system is based on Federal Law No. 181-FZ of 1995 implementing social protection for the disabled, Federal Law No. 27-FZ of 1996 implementing individual record keeping in the mandatory pension insurance system, Federal Law No. 75-FZ of 1998 implementing non-state pension funds, Law No. 166-FZ of 2001 implementing public pension security, Law No. 173-FZ of 2001 implementing labor pensions, Law No. 167-FZ of 2001 implementing mandatory pension insurance, Resolution No. 516 of 2002 applying early entitlement to the labor pension with amendments from 2006 to 2013, Resolution No. 781 of 2002 creating lists of covered trades and professions with an amendment in 2009, Federal Law No. 111-FZ of 2002 regulating investments for the funded part of labor pensions, Federal Law No. 70-FZ of 2004 implementing amendments to the tax code, Federal Law No. 360-FZ of 2011 regulating payment procedures of funded pensions with amendments from 2012 to 2018, Federal Law No. 379-FZ of 2011 implementing changes in separate laws of the Russian Federation concerning insurance contribution rates for the state non-state budget funds with amendments in 2014 and 2016, Federal Law No. 422-FZ of 2013 guaranteeing the rights of insured persons in the mandatory pension insurance system with amendments from 2014 to 2018, Federal Law No. 400-FZ of 2013 implementing insurance pensions with amendments in 2015 and 2016, Federal Law No. 424-FZ of 2013 on funded pensions with amendments in 2016 and 2018, and Federal Law No. 243-FZ of 2016 implementing changes to the Tax Code. These laws are all similar to compulsory contributions under the U.S. Federal Insurance Contributions Act.[6] The two programs are the Social Insurance system and the Social Assistance system. A system of individual accounts was introduced in 2011 for persons born after 1967. Currently, however, contributions to the individual accounts are diverted to the Social Insurance system.
The Social Insurance system covers employed and self-employed persons, including independent farmers. There are special systems for civil servants, military and police personnel, cosmonauts, war veterans, and victims of major industrial accidents. The Social Assistance system covers residents of Russia.
Russian Social Individual Insurance Accounts can most aptly be characterized as state-mandated individual accounts with the primary purpose of providing for income at retirement, and it is specifically recognized as social security by the U.S. Social Security Administration.[7] Furthermore, the International Social Security Association, of which Russia and the United States are members, also recognizes Russian Social Individual Insurance Accounts as forming part of Russia’s overall comprehensive social security system.[8]
Therefore, based on the foregoing substantial and compelling authorities, it is indisputable that Russian Social Individual Insurance Accounts are social security accounts forming a part of Russia’s overall comprehensive social security system.
International Treaty Law and Social Security
If both the U.S. and a treaty partner were members of the Organization for Economic
Cooperation and Development (“OECD”) when a treaty was drafted, U.S. courts are legally bound to mandatorily refer to OECD commentary, which is published every four years, to interpret terms in that income tax treaty.[9] The United States joined the OECD in 1961 while Russia never joined. The U.S.-Russia Income Tax Treaty was signed in 1992 and went into effect in 1993. Therefore, U.S. courts are legally bound to defer to the OECD with regard to interpreting treaty terms, which promotes international consistency.
According to the OECD, the term “social security” generally “refers to a system of mandatory protection that a State puts in place in order to provide its population with… retirement benefits.”[10] However, the OECD Model Income Tax Treaty does not specifically cover social security; it merely suggests that “payments under a social security system… could fall under Article 18, 19 or 21,” which reference pensions from government service, private sector service, or other income, respectively.[11] On the other hand, the U.S.-Russia Income Tax, unlike the OECD Model Income Tax Treaty, does specifically have a provision addressing taxing rights with regard to social security. Nevertheless, the OECD commentary broadly interprets “payments under a social security system” to include payments under a “worker’s compensation fund,” which is not considered “social security” in the United States, which is proof that the United States’ definition of “social security” is not the controlling factor.
Therefore, the OECD takes a very broad and inclusive approach as to what constitutes “social security” under international treaty law, which the U.S. is not legally bound to recognize, but it will weigh heavily on a U.S. federal court’s analysis since it promotes international consistency.
U.S.Tax Treatment of Social Security Payments
Under domestic U.S. tax law, with regard to informational reporting requirements for contributions to a nonqualified deferred compensation plan, Congress specifically exempted contributions to a foreign social security account.[12] This clearly evidences Congressional intent to disregard contributions to foreign social security for U.S. informational reporting purposes on IRS Form 3520 and 3520-A.[13] Moreover, the IRS has specifically stated that, under domestic U.S. tax law, “foreign social security benefits… are taxable as annuities.”[14] Gains within annuities are tax-deferred until the contract annuitizes and payments begin or when the owner cashes out the annuity and takes a lump sum.[15]
Although some practitioners have asserted that Russian Social Individual Insurance Accounts are reportable as foreign grantor trusts on IRS Forms 3520 and 3520-A, doing so would subject the gains within the fund to immediate U.S. taxation, which is contrary to IRS guidance.[16] However, because gains will still be subject to U.S. taxation at maturity of the Russian Social Individual Insurance Accounts based on disability or retirement, one must still consider the application of the U.S.-Russia Income Tax Treaty and the outcome thereunder.[17]
Under Article 17, Paragraph 1(b), of the U.S.-Russia Income Tax Treaty, “social security payments and other public pensions paid by one of the Contracting States to an individual who is a resident of the other Contracting State or a citizen of the United States shall be taxable only in the first-mentioned State.” In other words, the country of source has exclusive taxing rights to social security income. With regard to a Russian Social Individual Insurance Account, Russia would have exclusive taxing rights to the income.
The “Saving Clause” for U.S.Citizens and U.S.Tax Residents
With regard to treaty claims by U.S. citizens and U.S. tax residents, however, one must consider the application of the Saving Clause, which allows the United States to “tax its residents… [and] citizens as if this Convention had not entered into force.”[18] Put plainly, the U.S. may disregard most treaty claims made by U.S. citizens and U.S. tax residents. It should be noted that the Saving Clause is merely a reserved right and does not automatically apply to prevent claims by U.S. citizens and U.S. tax residents.[19] The Saving Clause, however, has a few specifically enumerated exceptions; one of which is claims by made U.S. citizens and U.S. tax residents pursuant to Article 17, Paragraph 1(b), which covers social security gains and reserves exclusive taxing rights to the country of source.[20] Therefore, the Saving Clause is inapplicable to claims by U.S. citizens and U.S. tax residents with regard to gains, distributions, or any other income associated with a Russian Social Individual Insurance Account. Even the plain language of Article 17, Paragraph 1(b), unmistakably allows U.S. citizens to make claims under that provision.[21]
Proper Reporting Method for U.S.Tax Purposes
Code section 6114 requires any person relying on a tax treaty to disclose such position on his or her federal income tax return unless an exception applies.[22] IRS Form 8833 is used to make a disclosure regarding a treaty-based return position.[23] A separate form is required for each treaty-based return position taken by the taxpayer. If the treaty position results in no taxation whatsoever, then IRS Form 8833 must be filed along with a federal income tax return that only includes the taxpayer’s name, address, taxpayer identification number, and signature under the penalty of perjury. This effectively creates a de facto treaty election procedure.
If a taxpayer “fails in a material way to disclose one or more” treaty-based return positions, then a penalty is imposed on each separate payment of income or article of income even if “received from the same” payor.[24] For individuals, there is a $1,000 penalty for each non-disclosure.[25]
Furthermore, payments or the rights to receive social security benefits, the foreign equivalent of social security, or another similar program of a foreign government are not specified foreign financial assets subject to reporting on IRS Form 8938 or FinCEN Form 114.
Conclusion
In conclusion, Russian Social Individual Insurance Accounts are covered under Paragraph 1(b) of Article 17 as individual social security accounts that are exclusively taxable in the country of source, Russia. As such, it is properly excludible from their U.S. tax return with proper disclosure on IRS Form 8833.
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Bluebook Citation: U.S. Tax Treatment of Russian Social Individual Insurance Accounts, Castro Int’l Tax Blog (Dec. 5, 2019) url.
[1] See IRC § 7852(d).
[2] See Kappus v. C.I.R., 337 F.3d 1053, 1057 (D.C. Cir. 2003) (citing S. Rep. No. 100-445, at 316-28 (1988).
[3] See Whitney v. Robertson, 124 U.S. 190 (1888); The Chinese Exclusion Cases, 130 U.S. 581 (1889); The Cherokee Tobacco, 78 U.S. 616 (1871); Diggs v. Schultz, 470 F.2d 461 (D.C. Cir. 1972); also see Restatement (Third) of Foreign Relations Law of the United States, § 115(1)(a) (“An act of Congress supersedes an earlier… international agreement as law of the United States if the purpose of the act to supersede the [treaty] is clear or… cannot be fairly reconciled [due to a conflict].”).
[4] See Restatement (Third) of Foreign Relations Law of the United States, § 115(3).
[5] See Ware v. Hylton, 3 U.S. 199 (1796) (because a treaty is the equivalent of a law passed by Congress, a state law conflicting with the treaty was nullified by the U.S. Supreme Court). Although treaty protocols relate-back to the original adoption of the treaty, regulations do not relate-back to the original adoption of the statute, so it’s not possible for treasury to promulgate regulations inconsistent with treaty obligations.
[6] See IRC §§ 3101, 3111.
[7] See Social Programs Throughout the World, U.S. Social Security Administration’s Office of Retirement and Disability Policy; also see Individual Accounts in Other Countries, U.S. Social Security Administration’s Office of Policy, http://www.ssa.gov/policy/docs/ssb/v66n1/v66n1p31.html (Sep. 1, 2015).
[8] See Social Security Country Profiles, International Social Security Association, https://www.issa.int/countrydetails?countryId=RU®ionId=EUR.
[9] See Podd v. C.I.R., 76 T.C.M. 906 (1998) (citing U.S. v. A.L. Burbank & Co., 525 F.2d 9, 15 (2d Cir. 1975); North W. Life Assurance Co. of Canada v. C.I.R., 107 T.C. 363 (1996); Taisei Fire & Marine Ins. Co. v. C.I.R., 104 T.C. 535, 546 (1995) (construing the Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Mar. 8, 1971, U.S.-Japan, 23 U.S.T. 969, with reference to the Model Treaty and its commentary)).
[10] See 2014 OECD Commentary, Art. 18, ¶ 28.
[11] See 2014 OECD Commentary, Art. 15, ¶ 2.14.
[12] See Treas. Reg. § 1.409A-1(a)(3)(iv).
[13] See Dominion Res., Inc. v. U.S., 681 F.3d 1313 (Fed. Cir. 2012) (Treasury cannot interfere with the unambiguously expressed intent of Congress).
[14] See IRS Publication 17, Page 84; also see The International Tax Gap Series, “Most income tax treaties have special rules for social security payments. In many cases, foreign social security payments are taxable by the country making the payments. Unless specified otherwise in an income tax treaty, foreign social security pensions are generally taxed as if they were foreign pensions or foreign annuities. Unless a tax treaty allows it (see, e.g., the USA-Canada treaty), they are not eligible for exclusion from taxable income the way a U.S. social security pension might be.” https://www.irs.gov/businesses/the-taxation-of-foreign-pension-and-annuity-distributions
[15] See IRC § 72.
[16] If Russian Social Individual Insurance Accounts were foreign pension plans, they would certainly be subject to reporting on IRS Forms 3520 and 3520-A. However, being social security, they are not subject to reporting since they constitute foreign social security, which is taxable in the same manner as an annuity in accordance with IRS Publication 17.
[17] Even the IRS issued a revenue ruling indicating that due regard must be given to an applicable income tax treaty to determine whether foreign social security is exempt from U.S. tax. See Rev. Rul. 66-34. Therefore, any assertion that the U.S. would not acknowledge a foreign social security system contradicts the fact that it’s addressed in more than 60 bilateral income tax treaties and specifically required in accordance with the aforementioned revenue ruling as well as Treasury regulations. See Treas. Reg. § 1.894-1 (“Income of any kind is not included in gross income and is exempt from tax... to the extent required by any income tax convention to which the United States is a party.”).
[18] See U.S.-Russia Income Tax Treaty, Art. 1, ¶ 3.
[19] See Technical Explanation of the U.S.-Russia Income Tax, Art. 1, ¶ 3.
[20] See U.S.-Russia Income Tax Treaty, Art. 1, ¶ 4(a).
[21] “Social security payments and other public pensions paid by one of the Contracting States to an individual who is a resident of the other Contracting State or a citizen of the United States shall be taxable only in the first-mentioned State.” U.S.-Russia Income Tax Treaty, Art. 17, ¶ 1(b).
[22] See IRC § 6114.
[23] See Treas. Reg. § 301.7701(b)-7.
[24] See Treas. Reg. § 301.6712-1(a).
[25] See Treas. Reg. § 301.6114-1(a)(1)(ii).