by John Anthony Castro, J.D., LL.M.
This article explains our firm’s legal position on how family companies can claim a refund for the Section 965 Deemed Repatriation Tax. If you had to pay the Section 965 tax, please contact us today for a free consultation to learn how we can file an amended return to recover this tax for you.
First and foremost, there are already legal challenges underway in federal court regarding the constitutionality of the Section 965 Deemed Repatriation Tax. The first major case is Moore v. U.S., which is pending before the U.S. District Court of the Western District of Washington. In that case, the taxpayers are arguing it violations the Apportionment Clause since it is a direct tax. The belief in that case is that a tax upon historical accumulated earnings and profits is not a tax "on incomes, from whatever source derived," but rather a direct tax on property not permitted under the Sixteenth Amendment. A novel but somewhat unconvincing argument since accumulated earnings and profits were a form of income at one point that Congress chose to defer tax upon until distribution but chose to change its mind to address abuses. The better and stronger argument is an "as applied" constitutional challenge based on an innocent taxpayer that did not "game" the system with aggressive tax deferral structures. Nevertheless, the Moore case also argues due process violations that our firm's article, The Constitutionality of Retroactive Tax Legislation, addresses, which brings us to the second point.
Secondly, our firm's conclusion is that Section 965 violates the Ex Post Facto Clause of the U.S. Constitution.
Thirdly, if your family company was not listed on the regulatory list of per se corporations, it is our firm's position that the default classification of the entity would be fiscally transparent (i.e., disregarded if there's only one owner, partnership if there's more than one owner).
And yes, our firm has already been successful in recovering millions for clients.
Contact Our Firm
If you were subject to the Section 965 tax, you need to call us for a free consultation. For amended returns, we engage clients on a contingent basis, which means, unless and until we compel the IRS to refund you the Section 965 tax, there are no fees. That means there’s no risk on your end. Even if it goes to litigation with the IRS, there are absolutely no out-of-pocket expenses for clients.
About the Author
John Anthony Castro, J.D., LL.M., is the Managing Partner of Castro & Co., the author of International Taxation in Plain English as well as International Estate Planning in Plain English, an esteemed graduate of Georgetown University Law Center in Washington DC, an OPM Fellow at Harvard Business School, and an internationally recognized tax attorney with offices in New York, Los Angeles, Miami, Chicago, Dallas, and Washington DC.
Bluebook Citation: John Anthony Castro, Claim a Refund for the Section 965 Tax, Int’l Tax Online Law Journal (Jan. 7, 2019) url.