One of the most difficult aspects of Section 2801 of the

Internal Revenue Code is not calculating the tax—it’s determining whether it applies at all.

👉 That hinges on whether the donor is a covered expatriate.

⚖️ 1️⃣ Who Bears the Burden?

Under §2801:

• The U.S. recipient is responsible for determining

👉 whether the transferor is a covered expatriate

🧠 2️⃣ Why This Is a Problem

In practice, recipients often:

• Do not have access to:

👉 Yet they must still make a determination.

If there is insufficient evidence:

• There may be a practical presumption that the individual is a covered expatriate

👉 Result:

• §2801 tax may apply by default

Unlike other areas of tax law:

• The regulations do not provide clear documentation standards

• There are no formal safe harbors

👉 This creates:

• Uncertainty

• Inconsistent approaches

• Increased audit risk

Practitioners should proactively obtain:

• Written certifications from the transferor

• Affidavits confirming status

• Supporting documentation (where available), such as:

Failure to properly document status can lead to:

• Unexpected §2801 liability

• Penalties and interest

• Disputes with the IRS

👉 Even where the individual may not actually be covered

This rule effectively shifts:

• Information risk → to the recipient

Even though:

• The recipient may be the least informed party

Under §2801:

• The recipient must determine covered expatriate status

• There is no clear documentation standard

• Lack of evidence may result in default tax exposure

In practice:

If you can’t prove the donor is not a covered expatriate, you may be taxed as if they are.