Physical Presence in the US Immigration and Income Tax Implications

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1 Physical Presence in the US Immigration and Income Tax Implications Presented by KPMG Enterprise/KPMG Law For VENN Innovation Inc. December 10, 2014

2 US Immigration December 10, 2014 Monika V. Szabo Partner US Immigration Practice Leader Charlene Quincey Manager US Immigration Practice

3 B1 Business Visitor B1 (Business Visitor) One may be eligible for a B-1 visa/status if they will be participating in business activities of a commercial or professional nature in the United States, including, but not limited to: Permissible activities include: attending meetings negotiating contracts attending seminars / workshops / conferences receiving training (up to a point) observing business activities consulting with business associates certain marketing activities certain sales activities arranging leases facility tours 3

4 B-1 After-Sales B1 After-Sales Service Definition: Installers, repair and maintenance personnel, and supervisors, who possess specialized knowledge essential to the seller s contractual obligation, can perform services, or train workers to perform services, pursuant to a warranty or other service agreement. Must be performing after-sales service that are incidental to the sale May perform hands on activities as well as train but no building or construction work allowed although may supervise such work May bring own tools Product must be manufactured outside of the US Can t receive salary form a US source Must have a copy of the sales agreement or contract that has the after sales service provision as part of the contract or an addendum to it. 4

5 B-1 After-Sales Questions to determine if employee may travel under the B1 After-Sales Provision Is the Seller company located outside the United States? Is there a contract of sale between a Seller and Buyer to sell products from the foreign company (the Seller) directly to a US company (the Buyer)? If there is a contract of sale, was the product (which is the subject of the sale) developed outside the United States? If yes, does the contract of sale require the Seller to provide after-sales services after the product has been purchased by the Buyer? After-sales services can include installation of product, troubleshooting of product, or training of employees of Buyer company on how to operate the product. Is the after-sales service to be provided by the employee of the Buyer company explicitly defined in the original contract of sale? 5

6 US Visa Categories

7 TN NAFTA PROFESSIONALS TN (NAFTA PROFESSIONALS) A citizen of Canada or Mexico who seeks temporary entry as a business person to engage in business activities at a professional level may be admitted to the US pursuant to the North American Free Trade Agreement (NAFTA). Requirements: In almost all categories, an employee must possess a university degree in the field in which they will be working in the US; Must be employed in one of the professions on the NAFTA list (NAFTA Appendix 1603.D.1); Must be a Canadian or Mexican Citizen; TN status is issued for a one three year period and in theory can continue to be granted indefinitely; Non-immigrant intent must be shown - therefore the longer the time in the U.S. the harder to establish non-immigrant intent. 7

8 TN: Computer Systems Analyst Computer Systems Analyst Computer systems analysts study an organization s current computer systems and procedures and design information systems solutions to help the organization operate more efficiently and effectively. To qualify for TN visa status under NAFTA as a Computer Systems Analyst, an applicant must possess one of the following: 1. Bachelor degree with a major in computer/information technology; or 2. Post-Secondary Diploma and three years of experience; or 3. Post Secondary Certificate and three years of experience. 8

9 TN: Computer Software Engineer Computer Software Engineer Computer Software Engineers develop, create, and modify general computer applications software or specialized utility programs. Analyze user needs and develop software solutions. Design software or customize software for client use with the aim of optimizing operational efficiency. May analyze and design databases within an application area, working individually or coordinating database development as part of a team. To qualify for TN status under NAFTA as an Engineer, an applicant must possess one of the following: 1. A Bachelor s degree in a related Engineer discipline; 2. Professional Designation (P. Eng); or 3. State / Provincial license. 9

10 L Intra-Company Transferees L-1 INTRA-COMPANY TRANSFEREES L-1 status is used to transfer employees from a foreign company abroad to its affiliate (subsidiary, parent or branch) company in the United States. A qualifying United States company that is related to a foreign company, in accordance to the regulations may file a nonimmigrant visa petition to grant L-1A classification to a foreign executive or manager OR L-1B classification to an employee with specialized knowledge. 10

11 L Intra-Company Transferees REQUIRED CORPORATE RELATIONSHIP L-1 INTRA-COMPANY TRANSFEREES A qualifying organization is a United States or foreign firm that is or will be doing business on a regular systematic, and continuous basis providing goods and/or services. (a)branch - is an operating division or office of the same organization housed in a different location. (b)subsidiary - is a firm, corporation, or other legal entity of which a parent owns, directly or indirectly, more than half of the entity and controls the entity; or owns, directory or indirectly, half of the entity and controls the entity; or owns, directly or indirectly, 50 percent of a joint venture and has equal control and veto power over the entity; or owns, directly or indirectly, less than half of the entity, but in fact controls the entity. (c) Affiliate - is one of two subsidiaries both of which are owned and controlled by the same parent or individual, or one of two legal entities owned and controlled by the same group of individuals, each individual owning and controlling approximately the same share or proportion of each being. *Some Joint Ventures as well 11

12 L Intra-Company Transferees L -1 INTRA-COMPANY TRANSFEREES The L-1 category requires that the employee has worked for a related company (affiliate, subsidiary or parent) outside the U.S. for one continuous year within the last three years. The L applicant must be (or have been) a fulltime employee at the corporation outside the US (can t be a subcontractor) L status can be used for intermittent travel to the U.S. or for someone transferring to the U.S. for a long duration. L holder may remain on foreign payroll or be moved to US payroll Status is issued for an initial 3 years with 2 year renewals available up to a total of 5 years for L-1B and 7 years for L-1A. 12

13 L Intra-Company Transferees L-1 NEW OFFICE US Regulations have established special rules for intracompany transfers (L-1) involving the establishment of a new office in the United States. New office is defined as an entity, based in the US that has been doing business for less than a year. For the L-1 application, in addition to demonstrating that the new company is a qualifying organization and that the applicant will be performing managerial or specialized duties in the US, an application must also include: Feasibility Studies for the new business in the US Business Plans with 1,3 and 5 year projections Detailed Organizational Charts Evidence of a physical premise (lease, photos, signage) Financial documents (evidencing support from parent, current US contracts etc.) Tax filings for the US entity Contracts held by the US entity 13

14 L Intra-Company Transferees L-1A INTRA-COMPANY TRANSFEREES The L-1A category allows for the transfer of a Senior Managerial or Executive employees to the United States provided they: 1. Have worked for the foreign entity or an affiliate outside the U.S. for one continuous year in the last three years; and 2. Will be undertaking work in a senior managerial or executive position in the US Duration and Extension of L-1A Status Senior executives or managers in L-1A status may stay in the United States for a total of seven years. The initial period for admission is limited to three years. Two 2-year extensions may be granted. 14

15 L Intra-Company Transferees L-1B INTRA-COMPANY TRANSFEREES L-1B status allows for the transfer of employees to the United States provided they: 1. Have worked for the foreign entity or an affiliated company outside the US for one continuous year in the last three years; and 2. Possess specialized knowledge* necessary to carry on the employment function in the United States. L-1B holders are prevented from being stationed primarily at the worksite of another employer under two circumstances: 1. When the L-1B holder at that worksite is not supervised and controlled by the petitioning employer (US subsidiary/affiliate); or 2. If the L-1B holder would be providing labor for an unaffiliated employer rather than providing services based on specialized knowledge derived from his or her employment with the petitioning employer. 15

16 COMPLIANCE

17 Compliance Form I-9: As of November 1986, U.S. employers must verify the employment eligibility and identity of all employees hired to work in the United States by completing an Employment Eligibility Verification form (Forms I-9) for all employees, including U.S. citizens. Employers who hire or continue to employ individuals knowing that they are not authorized to be employed in the United States may face civil and criminal penalties. E-Verify: a voluntary program, works by comparing information entered from an employee's Form I-9 to 455 million Social Security Administration (SSA) records and 80 million U.S. Department of Homeland Security records. U.S. Department of Homeland Security databases contain records about employment-based visas, immigration and naturalization status, and U.S. passport issuance, which allow E-Verify to compare information against a wide variety of sources. DHS Audits: Officials from the Department of Homeland Security may inspect an employer s Forms I-9. Employers will generally receive a written Notice of Inspection at least three days before the inspection and employers who refuse or delay an inspection will be in violation of the law. DOL Audits: The United States Department of Labor (DOL) conducts audits of the H-1B program, PERM, and other immigration programs. DOL audits can arise as a result of a complaint by an unhappy employee or as a result of a randomly conducted investigation. USCIS SITE VISITS: Fraud Detection and National Security (FDNS) Directorate created and implemented the Administrative Site Visit and Verification Program (ASVVP) in July 2009 as part of its ongoing enhancement to the integrity of the immigration benefit process The goal of the program is to detect, deter and combat fraudulently filed H-1B and L intercompany transfer applications. A major part of the assessment program will involve site inspections at the company s principal place of business and/or at the employee s place of employment, as indicated on the application form 17

18 Compliance The Fraud Detection and National Security (FDNS) Directorate created and implemented the Administrative Site Visit and Verification Program (ASVVP) in July 2009 as part of its ongoing enhancement to the integrity of the immigration benefit process. The goal of the program is to detect, deter and combat fraudulently filed H-1B and L intercompany transfer applications. A major part of the assessment program will involve site inspections at the company s principal place of business and/or at the employee s place of employment, as indicated on the application form. Under the ASVVP, FDNS conducts unannounced pre- and post-adjudication site inspections to verify information contained in certain visa petitions. USCIS provides petitioners and their representatives of record (if any) an opportunity to review and address the information before denying or revoking an approved petition based on information obtained during a site inspection. During these visits, the USCIS officer will verify information pertaining to petitions filed on behalf of the foreign employee such as salary, education requirements, location of work desk, hours worked, responsibilities, rate of pay, etc. 18

19 Compliance During these visits, the ASVVP site inspectors: Verify the information submitted with the petition, including supporting documentation submitted by the petitioner, based on a checklist prepared by USCIS Verify the existence of a petitioning entity Take digital photographs Review documents Speak with organizational representatives to confirm the beneficiary s work location, employment workspace, hours, salary and duties Site inspectors will report the results of their site inspections to FDNS, which will review the information to determine whether the petitioner and the beneficiary have met or continue to meet eligibility requirements. If FDNS cannot verify the information on the petition or finds the information to be inconsistent with the facts recorded during the site visit, request will be made for additional evidence from the petitioner or initiate denial or revocation proceedings. 19

20 Mon Monika V. Szabo Partner US Immigration Practice Leader T: ext. 287 F: E: Charlene Quincey, B.A., J.D. Manager Attorney-at-Law KPMG Law LLP US Immigration ext. 266 The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation KPMG Law LLP is a tax and immigration law firm affiliated with KPMG LLP, each of which is a Canadian limited liability partnership. KPMG LLP is a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name, logo and cutting through complexity are registered trademarks or trademarks of KPMG International..

21 Agenda Income Tax Considerations Business Tax Issues Business Traveler Issues 1

22 Taxation of US Business Operations In order to determine whether a Foreign Person is subject to tax on business profits, two questions must be asked: Is the Foreign Person engaged in a US trade or business? What income is effectively connected with that US trade or business? 21

23 US Trade or Business Is the Foreign Person Engaged in a US Trade or Business (USTB)? Facts and Circumstances Test Whether profit-oriented activities of a Foreign Person in the US are regular, substantial, and continuous Generally, a low threshold (for instance sales to US customers even if no physical presence) Foreign Person may be engaged in a USTB through his own activities or activities conducted through a Dependent Agent 22

24 Taxation of Effectively Connected Income (ECI) Treaty Relief if no Permanent Establishment (PE) If there is a PE - taxed on a Net-Basis at Graduated Rates Corporate Tax Rates range 15% - 39% May Deduct All Otherwise Deductible Expenses Incurred in Earning ECI Must File Return: No Return No Deductions Treaty Based return is recommended if no PE 23

25 US Taxation of Foreign Person s Business Operations Filing Requirements Form 1120F U.S. income tax return of foreign corporation Form 8833 Treaty based disclosures (if no PE) Other forms depending on circumstances 24

26 Permanent Establishment under the Treaty Generally speaking, PE=physical presence BUT physical presence PE (necessarily) A permanent establishment ( PE ) is defined under the Treaty to be a fixed place of business through which the business of the non-resident is carried on A PE is defined to include a place of management, a branch, an office and certain other tangible places of business A Dependent agent that has and habitually exercises an authority to conclude contracts in a contracting state is deemed to be a PE in that state Rule does not apply if person is an independent agent acting in the ordinary course of business No PE if Canadian corporation engages in certain limited activities in US: Use of facilities or maintenance of stock of goods for storage, display or delivery Maintenance of stock of goods for processing in U.S. by another person Purchase of goods or collection of information for Canadian corporation Advertising, supply of information, scientific research 25

27 Permanent Establishment Services PE Article V(9) of Treaty provides that provision of services can create a PE and is clearly related to presence in the US Individual Test (consultants, small businesses) Individual is present in US for more than 183 days in any 12 month period, AND More than 50% of business` gross revenue for that period is attributable to services in US Enterprise Test (Larger corporations) Services provided in other jurisdiction for more than 183 days in any 12 month period in respect of connected projects to residents of (or permanent establishments in) the US 26

28 Permanent Establishment Services PE (cont) Counting days Individual Test All days included (including weekends/vacations) Enterprise Test Include only days of service and multiple employees count only for one day 27

29 Permanent Establishment Avoiding the Pitfalls Employees in US Employees who provide services should not be present in the US for 183 days in a 12 month rolling period Employees activities should be limited No ability to conclude contracts No ability to make decisions on behalf of head office or management Some activities may still create state tax nexus (repairs/warranty service by employees) Property in US Do not own or rent real property to be used as office space The presence of a building or office that is used by employees may create a permanent establishment for federal purposes and may create nexus for state income and franchise tax purposes The use of a warehouse for the storage of inventory will not create a PE for federal purposes but may create nexus for state income and franchise tax purposes 28

30 Permanent Establishment Online Services (example SaaS) Despite proliferation taxation guidance still lagging Revert to general guidelines if providing a service, is there a physical presence? Considerations - From where is service provided? Is there more than one service? Where are servers located? How is server accessed? Where does contract state/client believe service is being provided? 29

31 Business Travelers

32 Payroll/Income Tax/Social Security all are issues How to determine obligations: Contrary to popular belief, the location of the employer has little bearing on payroll, income tax and social security reporting obligations of a company with employees crossing borders to perform duties of employment. It is the physical location of the employee during performance of duties which drives the obligation for both employer and employee. Performance of duties: Includes working on smartphones while laying over at airport (watch 183 day rule) 31

33 Payroll Withholdings/Social security deductions Canadian employees working in US Payroll Withholdings - Salary paid while physically present in the US, even if performing duties for Canco and Canco has no PE in the US subject to US payroll withholding and remittance requirements. Also subject to Canadian withholding and remittance requirements. Treaty exemption does not remove the obligation to withhold however waivers may be filled with the IRS. Substantial compliance burden. Social Security Deductions Totalization Agreements file Certificate of Coverage (CPT56) 32

34 Income Tax Implications -Terms Nonresident Alien If you are not a U.S. citizen, you are considered a ALIEN. You will be a nonresident alien unless you meet one of the two tests described under Resident Aliens. Nonresident aliens are not subject to tax on their worldwide income. They may be subject to tax on their US source income, however treaty relief may apply. Resident Alien You are a resident alien of the U.S. for tax purposes if you meet either the green card test or the substantial presence test for a calendar year. Resident aliens may be subject to tax on their worldwide income unless they qualify for relief under the treaty (treaty tie-breaker, closer connection). Substantial Presence Test You will be considered a U.S. resident for tax purposes if you meet the substantial presence test for a calendar year. To meet this test, you must be present in the U.S. on at least: days during the current year, and days during the 3-year period that includes the current year, and the two prior years, counting: a. All the days you were present in the current year, and b. 1/3 of the days you were present in the prior year, and Treaty c. 1/6 of the days you were present in the second prior year. The Canada U.S. Income Tax Convention. Provides relief from double taxation on income earned in other countries. (Ex. Income earned in the US by a Canadian citizen/resident may be exempt from taxation in the US under the Treaty, provided certain requirements are met). 33

35 Domestic Threshold US Approximately $3,950 ($4,000 in 2015). A tax return is required to be filed, however non-resident aliens meeting the requirements of the Treaty may not be subject to tax on their U.S. source employment income. The Treaty exemption is claimed on a timely filed 1040NR. Residents of Canada who meet the substantial presence test (ie. may be deemed a resident alien), may qualify for relief under the Treaty and only be subject to tax on their U.S. source income. File closer connection form (form 8840). 34

36 Canadian Employees Working in the U.S. Treaty Article XV Income from Employment Article XV generally applies to nonresident aliens working in the U.S. Remuneration for employment services exercised in the US shall be taxable only in Canada if: Such remuneration does not exceed $10,000 in USD; OR The recipient is present in the US for a period not exceeding 183 days in any 12-month period; and The remuneration is not paid by, or on behalf of, a person who is a resident of the US and is not borne by a permanent establishment in the US. 35

37 Other Considerations State Income Tax Income sourced to state where employee performs services Nonresident employees traveling to different states may need to have state income tax withheld in each state (if the state does not follow the treaty). Only taxed on the income earned in that state. Filing thresholds may apply. Payroll Withholding Form 8233 Withholding exemption for nonresident alien individuals on compensation for personal services if exempt under Treaty 36

38 Thank you Presentation by: Monika Szabo KPMG Law (416) ext 287 Charlene Quincey KPMG Law (416) ext 266 Luann Jones-Foster KPMG Enterprise (506)

39 KPMG CONFIDENTIAL The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavor to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation KPMG LLP, a Canadian limited liability partnership and a member firm of the KPMG network of independent member firms affiliated with KPMG International Cooperative ( KPMG International ), a Swiss entity. All rights reserved. The KPMG name, logo and cutting through complexity are registered trademarks or trademarks of KPMG International.

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