Substantial Presence Test vs. 330 Day Rule (SFOP) – Streamlined Foreign Offshore

Substantial Presence Test vs. 330 Day Rule (SFOP) - Streamlined Foreign Offshore

Substantial Presence Test vs. 330 Day Rule (SFOP) – Streamlined Foreign Offshore

This post is designed to be the first in a two-part series Re: Streamlined Foreign Offshore Procedures involving some of the key nuances involved in meeting the requirements as a foreign resident vs. non-resident.

Before discussing the ambiguity of the current vs. former U.S. Citizen description in the 14653 (IRS Streamlined Foreign), it is important to understand the two different tests being used to evaluate non-residence: 330-Day Non-Resident vs. Substantial Presence Test (SPT).

A Few Key Points

The requirements for showing you are a Non-Resident under the Substantial Presence Test are different than showing that you are a U.S. Person who meets the “Non-Resident” test for the Streamlined Foreign Offshore Procedures (SFOP) – aka lived abroad for at least 330-days in any one tax year.

The 330-day Foreign Earned Income Exclusion (FEIE) Physical Presence Test is not the same as the 330-day U.S. Non-Resident Rule under Streamlined Filing Compliance Procedures. And, just because you meet the FEIE Physical Presence Test does not mean you will necessarily meet the U.S. Non-Resident Rule Under Streamlined Filing Compliance Procedures.

Streamlined Foreign Offshore Procedures (SFOP)

We write about SFOP often, because it is a great program. In fact, out of all the different options an individual may have when they have not properly reported or disclosed their offshore accounts, offshore investments, offshore income, foreign retirement, and/or other non-US-based assets – the Streamlined Foreign Offshore Procedures may be the best possible option.

Why? First, it is one of the approved “Streamlined Programs,” which means there are much more lenient requirements in terms of the reporting the tax responsibilities for the applicant than there are under traditional OVDP. Moreover, the penalties are waived, and the submission process is relatively less stressful than a full blown OVDP — or even Streamlined Domestic.

Benefits of SFOP

Some of the benefits of SFOP are the following:

3 Years of Tax Returns

Unlike traditional OVDP in which a person must amend or file original returns for eight years (8), under the Streamlined Foreign Offshore Procedures a person is only required to amend or file original returns for three (3) years.

**Under Streamlined Domestic Offshore Procedures, a person must have filed timely (including extensions) tax returns to qualify for the program, but under streamlined foreign that is not required. In other words, a person may file original returns using the Streamlined Foreign Offshore Procedures.

6 Years of FBARs

Under the Streamlined Foreign Offshore Procedures, a person must only file six (6) years FBARs instead of eight (8) years. The reason for requiring six years is because — short of the IRS proving fraud,” the IRS is limited to a six year statue limitations to go back and audit a person for Tax and FBAR related matters.

All Penalties Waived

This is the best part of the program – there is no penalty. That means there is no penalty on the outstanding balance and there is no penalty on the taxes that are due each year. Under the Streamlined Domestic Offshore Procedures the penalties are 5%, and under traditional OVDP, the penalties can reach as high as 50% – along with an annual penalty for each year there is unreported tax.

Qualifying as a Foreign Resident

Aside from the requirement that a person prove he or she is non-willful — which is entirely different discussion for another day — (Click Here for a Comprehensive article on Willful vs. Non-Willful) – a person must prove they resided outside of the United States in order to qualify. Depending on whether a person is considered to be a US resident or nonresident will make the difference between which test they must meet, in which elements they must prove.

The first test as for nonresidents and that is called the Substantial Presence Test. (SPT)

Understanding Substantial Presence Test. (SPT)

The United States is one of the only countries in the world the practices Citizen-Based Taxation (CBT). In other words, the United States taxes US persons on their worldwide income.

When a person is a U.S. Citizen, Legal Permanent Resident (“Green Card Holder”), or long-term Legal Permanent Resident who did not properly relinquish their Green Card, a person will be taxed on all of the income they earn worldwide. It does not matter if they earned the income while living in the United States or abroad. It also does not matter whether the income is sourced in the United States or outside the United States – it must be reported on the US tax return.

Who Qualifies under the Substantial Presence Test?

The Substantial Presence Test takes the matter one step further, in order to tax individuals who are neither a U.S. Citizen, Legal Permanent Resident (“Green Card Holder”), or long-term Legal Permanent Resident who did not properly relinquish their Green Card. Even if a person does not meet one of the aforementioned U.S. Citizen/Resident categories, but meets a certain “Resident Test “- he or she will have to pay tax on their worldwide income in the United States just as it they were a U.S. Person

Usually, it will involve individuals who are in the United States on a work visa. For example, David was transferred to the United States by his company on an L-1 visa. As a result, even though David may have no intention of trying to obtain U.S. Legal Permanent Residency, if he meets the substantial presence test that you will have to pay tax on his worldwide income.

For David, the tax results will be catastrophic. Why? Because in David’s home country of Hong Kong, the country does not tax individuals on their passive income. David has amassed a significant nest egg abroad, and is earning upwards of 8% on $2 million he has saved in his bank account. While that money cannot be taxed by Hong Kong, the United States can tax his “worldwide income” which would include the hundred and $160,000 a year he is earning in interest income.

**Since Hong Kong does not tax this category of income, David would have no tax credits to apply to reduce his tax liability – as opposed to Australia for example where individuals are tax similar to the United States.

Summary of Substantial Presence Test

As a non-US citizen and non-US green card holder, you are generally only required to pay tax on your “US Effectively Connected Income” (money you earn while working in the United States). However, if you qualify for the Substantial Presence Test, then the IRS will tax you on your WORLDWIDE income.

IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:

  • 1 day = 1 day in the current year
  • 1 day = 1/3 day in the prior year
  • 1 day = 1/6 day two years prior

Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:

  • 2016 = 100 days
  • 2015 = 30 days/3= 10 days
  • 2014 = 120 days/6 = 20 days
  • Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).

Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:

  • 2016 = 180 days
  • 2015 = 180 days/3= 60 days
  • 2014 = 180 days/6 = 30 days
  • Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.

Tax Liability – Substantial Presence Test

Once a person meets the substantial presence test, they are required to report their worldwide income in the United States on a 1040 instead of at 1040 NR. Depending on any tax treaties the United States has with any particular country, the foreigner may find himself or herself under heavy tax scrutiny by the United States.

Substantial Presence Test – Exception

There is an exception to this filing rule, depending on the purpose of the foreigner being in the United States and what role/job the person is doing in the United States.

The IRS provides the following involving the substantial presence exception:

Exempt Individual

Do not count days for which you are an exempt individual. The term “exempt individual” does not refer to someone exempt from U.S. tax, but to anyone in the following categories:

  • An individual temporarily present in the U.S. as a foreign government-related individual under an “A” or “G” visa, other than individuals holding “A-3” or “G-5” class visas.
  • A teacher or trainee temporarily present in the U.S. under a “J” or “Q” visa, who substantially complies with the requirements of the visa.
  • A student temporarily present in the U.S. under an “F,” “J,” “M,” or “Q” visa, who substantially complies with the requirements of the visa.
  • A professional athlete temporarily in the U.S. to compete in a charitable sports event.

If you exclude days of presence in the U.S. for purposes of the substantial presence test because you were an exempt individual or were unable to leave the U.S. because of a medical condition or medical problem, you must include Form 8843, Statement for Exempt Individuals and Individuals With a Medical Condition, with your income tax return. If you do not have to file an income tax return, send Form 8843 to the address indicated in the instructions for Form 8843 by the due date for filing an income tax return.

If you do not timely file Form 8843, you cannot exclude the days you were present in the U.S. as an exempt individual or because of a medical condition that arose while you were in the U.S. This does not apply if you can show, by clear and convincing evidence that you took reasonable actions to become aware of the filing requirements and significant steps to comply with those requirements.

Closer Connection Exception to the Substantial Presence Test

Even if you passed the substantial presence test you can still be treated as a nonresident alien if you qualify for one of the following exceptions;

  1. The closer connection exception available to all aliens. Please refer to Conditions for a Closer Connection to a Foreign Country.
  2. The closer connection exception available only to students. Please refer to The Closer Connection Exception to the Substantial Presence Test for Foreign Students and Sample Letter.

330-Day Foreign Resident Rule

Unlike the Substantial Presence Test, the Streamlined Foreign Offshore Procedures “Non-Resident Test” for U.S. Persons is much different – and much more stringent. Why? Because the United States government does provide as much deference to individuals who are considered citizens or permanent residence and therefore “should have known the rules.”

Under these circumstances, the person must meet a very strict 330-day rule.

Applying the 330-day Non-Resident Rule 

It is almost as simple as it sounds – a person must have resided outside the United States (in either one country or multiple countries) for at least 330 days in any one of the three years being included in the tax submission, and without having a U.S. Abode.

Example: Scott is originally from California but was transferred to Singapore for five (5) years by his company to run research operations for his company. He brought his family with him, and therefore did not come back to the United States at all during the five-year time period. This would be an example of someone who lived outside the United States for at least 330 days.

What if the Years were Staggered?

Without getting too complicated, the 330-Day rule for the Streamlined Foreign Offshore Procedures is not the same as the 330-Day rule for the Foreign Earned Income Exclusion.

To qualify under the streamlined foreign, a person must have been outside of the United States for at least 330 days in any one or more of the most recent three years for which the tax return due date has already passed – and there must not be any abode in the United States.

In other words, it includes a full tax year. So for the example above, Scott would have no issue. On the other hand, let’s say Peter lived outside of the United States for 330 days, but the years were staggered so that he was outside United States from May 2014 to April 2015. Even though he was outside the United States the 330 days it was not in one of the most recent three taxes – rather, it was staggered over to tax years and generally will not qualify.

**With that said, each individual has different circumstances and the IRS has been known to bend or lean in certain situations and so it never hurts to contact the IRS and ask them (anonymously, through your counsel) whether the IRS may allow for a variance.

BOTH Spouses Must Meet the requirements

Under either circumstance, both spouses must meet the requirement to qualify for streamlined foreign. Therefore, using the 330-day rule, if one spouse lived outside the United States for 340 days, and the other spouse only lived outside for 320 days, they would not meet the test as to the spouse who lived outside the United States for only 320 days.

Rather, the spouse who did not meet the residence requirement would have to submit under a different program, and if she used the Streamlined Domestic Offshore Procedures, she would have to submit under the streamlined domestic offshore procedures and could be subject 5% penalty.

**Important to note, is that only the person who has interest in the money is penalized. Therefore, if all of the money belongs to the one spouse who lives outside of the United States and meets the foreign resident requirement than that spouse would have no penalty on that money.

Example: Dean lived outside the United States for 340 days. He earned significant income abroad, and has a foreign account with $3 million. His spouse is not identified on the account and none of the money belongs to her (also, they do not live in a community property state). Therefore, even though his spouse does not meet the foreign resident requirement, the penalty may still be waived as to Peter.

SFOP Blog — (Part 1 of 2)

This is part one of a two-part posting on the Streamlined Foreign Offshore Procedures. The next part of this post will deal specifically with the ambiguity regarding whether a person is currently a US person, but was not a US person during the first one or two years of the three year tax reporting requirement — (such as an F-1 who is now a U.S. Person)

Want to Learn More about Offshore Disclosure?

Offshore Voluntary Disclosure Tax law is very complex. There are many aspects that go into any particular tax calculation, including the legal status, marital status, business status and residence status of the taxpayer.

When Do I Need to Use Voluntary Disclosure?

Voluntary Disclosure is for individuals, estates, and businesses who are out of compliance with the IRS and the Department of Treasury. What does that mean? It means that if you are required to file a U.S. tax return and you don’t do so timely, then you are out of compliance.

If the IRS discovers that you are out of compliance, you may become subject to extensive fines and penalties – ranging from a warning letter all the way up to tax liens, tax levies, seizures, and criminal investigations. To combat this, you can take the proactive approach and submit to Voluntary Disclosure.

Golding & Golding – Offshore Disclosure

At Golding & Golding, we limit our entire practice to offshore disclosure (IRS Voluntary Disclosure of Foreign and U.S. Assets). The term offshore disclosure is a bit of a misnomer, because the term “offshore” generally connotes visions of hiding money in secret places such as the Cayman Islands, Bahamas, Malta, or any other well-known tax haven jurisdiction – but that is not the case.

IRS Offshore Voluntary Disclosure Lawyers - Golding & Golding Worldwide

IRS Offshore Voluntary Disclosure Lawyers – Golding & Golding Worldwide

In fact, any money that is outside of the United States is considered to be offshore; the term offshore is not a bad word. In other words, merely because a person has money offshore (a.k.a. overseas or in a foreign country) does not mean that money is the result of ill-gotten gains or that the money is being “hidden.” It just means it is not in the United States. Many of our clients have assets and bank accounts in their homeland countries and these are considered offshore assets and offshore bank accounts.

The Devil is in the Details…

If you do have money offshore, then it is very important to ensure that the money has been properly reported to the U.S. government. In addition, it is also very important to ensure that if you are earning any foreign income from that offshore money, that the earnings are being reported on your U.S. tax return.

It does not matter whether your money is in a country that does not tax a particular category of income (for example, many Asian countries do not tax passive income). It also does not matter if you are a dual citizen and/or if that money has already been taxed in the foreign country.

Rather, the default position is that if you are required to file a U.S. tax return and you meet the minimum threshold requirements for filing a U.S. tax return, then you have to include all of your foreign income. If you already paid foreign tax on the income, you may qualify for a Foreign Tax Credit. In addition, if the income is earned income – as opposed to passive income – and you meet either the Bona-Fide Resident Test or Physical-Presence Test, then you may qualify for an exclusion of that income; nevertheless, the money must be included on your tax return.

What if You Never Report the Money?

If you are in the unfortunate position of having foreign money or specified foreign assets that should have been reported to the U.S. government, but which you have not reported —  then you are in a bit of a predicament, which you will need to resolve before it is too late.

As we have indicated numerous times on our website, there are very unscrupulous CPAs, Attorneys, Accountants, and Tax Representatives who would like nothing more than to get you to part with all of your money by scaring you into believing you are automatically going to be arrested, jailed, or deported because you have unreported money. While that is most likely not the case (depending on the facts and circumstances of your specific situation), you may be subject to extremely high fines and penalties.

Moreover, if you knowingly or willfully hid your foreign accounts, foreign money, and offshore assets overseas, then you may become subject to even higher fines and penalties…as well as a criminal investigation by the special agents of the IRS and/or DOJ (Department of Justice).

Getting into Compliance

There are five main methods people/businesses use to get into compliance. Four of these methods are perfectly legitimate as long as you meet the requirements for the particular mechanism of disclosure. The fifth alternative, which is called a Quiet Disclosure a.k.a. Silent Disclosure a.k.a. Soft Disclosure, is ill-advised as it is illegal and very well may result in criminal prosecution.

We are going to provide a brief summary of each program below. We have also included links to the specific programs. If you are interested, we have also prepared very popular “FAQs from the Trenches” for FBAR, OVDP and Streamlined Disclosure reporting. Unlike the technical jargon of the IRS FAQs, our FAQs are based on the hundreds of different types of issues we have handled over the many years that we have been practicing international tax law and offshore disclosure in particular.

After reading this webpage, we hope you develop a basic understanding of each offshore disclosure alternative and how it may benefit you to get into compliance. We do not recommend attempting to disclose the information yourself as you may become subject to an IRS investigation insofar as you will have to answer questions directly to the IRS, which you can avoid with an attorney representative.

If you retain an attorney, then you will get the benefit of the attorney-client privilege which provides confidentiality between you and your representative. With a CPA, there is a relatively small privilege which does provide some comfort, but the privilege is nowhere near as strong as the confidentiality privilege you enjoy with an attorney.

Since you will be dealing with the Internal Revenue Service and they are not known to play nice or fair – it is in your best interest to obtain an experienced Offshore Disclosure Attorney.

1. OVDP 

OVDP is the Offshore Voluntary Disclosure Program — a program designed to facilitate taxpayer compliance with IRS, DOT, and DOJ International Tax Reporting and Compliance. It is generally reserved for individuals and businesses who were “Willful” (aka intentional) in their failure to comply with U.S. Government Laws and Regulations.

The Offshore Voluntary Disclosure Program is open to any US taxpayer who has offshore and foreign accounts and has not reported the financial information to the Internal Revenue Service (restrictions apply). There are some basic program requirements, with the main one being that the person/business who is applying under this amnesty program is not currently under IRS examination.

The reason is simple: OVDP is a voluntary program and if you are only entering because you are already under IRS examination, then technically, you are not voluntarily entering the program – rather, you are doing so under duress.

Any account that would have to be included on either the FBAR or 8938 form as well as additional income generating assets such as rental properties are accounts that qualify under OVDP. It should be noted that the requirements are different for the modified streamlined program, in which the taxpayer penalties are limited to only assets that are actually listed on either an FBAR or 8938 form; thus the value of a rental property would not be calculated into the penalty amount in a streamlined application, but it would be applicable in an OVDP submission.

An OVDP submission involves the failure of a taxpayer(s) to report foreign and overseas accounts such as: Foreign Bank Accounts, Foreign Financial Accounts, Foreign Retirement Accounts, Foreign Trading Accounts, Foreign Insurance, and Foreign Income, including 8938s, FBAR, Schedule B, 5741, 3520, and more.

What is Included in the Full OVDP Submission?

The full OVDP application includes:

  • Eight (8) years of Amended Tax Return filings;
  • Eight (8) Years of FBAR (Foreign Bank and Account Reporting Statements);
  • Penalty Computation Worksheet; and
  • Various OVDP specific documents in support of the application.

Under this program, the Internal Revenue Service wants to know all of the income that was generated under these accounts that were not properly reported previously. The way the taxpayer accomplishes this is by amending tax returns for eight years.

Generally, if the taxpayer has not previously reported his accounts, then there are common forms which were probably excluded from the prior year’s tax returns and include 8938 Forms, Schedule B forms, 3520 Forms, 5471 Forms, 8621 Forms, as well as proof of filing of FBARs (Foreign Bank and Financial Account Reports).

OVDP Penalties

The taxpayer is required to pay the outstanding tax liability for the eight years within the disclosure period – as well as payment of interest along with another 20% penalty on that amount (for nonpayment of tax). To give you an example, let’s pick one tax year during the compliance period. If the taxpayer owed $20,000 in taxes for year 2014, then they would also have to include in the check the amount of $4,000 to cover the 20% penalty, as well as estimated interest (which is generally averaged at about 3% per year). This must be done for each year during the compliance period.

Then there is the “FBAR/8938” Penalty. The Penalty is 27.5% (or 50% if any of the foreign accounts are held at an IRS “Bad Bank”) on the highest year’s “annual aggregate total of unreported accounts (accounts which were previously reported are not calculated into the penalty amount).

For OVDP, the annual aggregate total is determined by adding the “maximum value” of each unreported account for each year, in each of the last 8 years. To determine what the maximum value is, the taxpayer will add up the highest balances of all of their accounts for each year. In other words, for each tax year within the compliance period, the application will locate the highest balance for each account for each year, and total up the values to determine the maximum value for each year.

Thereafter, the OVDP applicant selects the highest year’s value, and multiplies it by either 27.5%, or possibly 50% if any of the money was being held in what the IRS considers to be one of the “bad banks.” When a person is completing the penalty portion of the application, the two most important things are to breathe and remember that by entering the program, the applicant is seeking to avoid criminal prosecution!


2. Streamlined Domestic Offshore Disclosure

The Streamlined Domestic Offshore Disclosure Program is a highly cost-effective method of quickly getting you into IRS (Internal Revenue Service) or DOT (Department of Treasury) compliance.

What am I supposed to Report?

There are three main reporting aspects: (1) foreign account(s), (2) certain specified assets, and (3) foreign money. While the IRS or DOJ will most likely not be kicking in your door and arresting you on the spot for failing to report, there are significantly high penalties associated with failing to comply.

In fact, the US government has the right to penalize you upwards of $10,000 per unreported account, per year for a six-year period if you are non-willful. If you are determined to be willful, the penalties can reach 100% value of the foreign accounts, including many other fines and penalties… not the least being a criminal investigation.

Reporting Specified Foreign Assets – FATCA Form 8938

Not all foreign assets must be reported. With that said, a majority of assets do have to be reported on a form 8938. For example, if you have ownership of a foreign business interest or investment such as a limited liability share of a foreign corporation, it may not need to be reported on the FBAR but may need to be disclosed on an 8938.

The reason why you may get caught in the middle of whether it must be filed or not is due largely to the reporting thresholds of the 8938. For example, while the threshold requirements for the FBAR is when the foreign accounts exceed $10,000 in annual aggregate total – and is not impacted by marital status and country of residence – the same is not true of the 8938.

The threshold requirements for filing the 8938 will depend on whether you are married filing jointly or married filing separate/single, or whether you are considered a US resident or foreign resident.

Other Forms – Foreign Business

While the FBAR and Form 8938 are the two most common forms, please keep in mind that there are many other forms that may need to be filed based on your specific facts and circumstances. For example:

  • If you are the Beneficiary of a foreign trust or receive a foreign gift, you may have to file Form 3520.
  • If you are the Owner of a foreign trust, you will also have to file Form 3520-A.
  • If you have certain Ownerships of a foreign corporation, you have to file Form 5471.
  • And (regrettably) if you fall into the unfortunate category of owning foreign mutual funds or any other Passive Foreign Investment Companies then you will have to file Form 8621 and possibly be subject to significant tax liabilities in accordance with excess distributions.

Reporting Foreign Income

If you are considered a US tax resident (which normally means you are a US citizen, Legal Permanent Resident/Green-Card Holder or Foreign National subject to US tax under the substantial presence test), then you will be taxed on your worldwide Income.

It does not matter if you earned the money in a foreign country or if it is the type of income that is not taxed in the country of origin such as interest income in Asian countries. The fact of the matter is you are required to report this information on your US tax return and pay any differential in tax that might be due.

In other words, if you earn $100,000 USD in Japan and paid 25% tax ($25,000) in Japan, you would receive a $25,000 tax credit against your foreign earnings. Thus, if your US tax liability is less than $25,000, then you will receive a carryover to use in future years against foreign income (you do not get a refund and it cannot be used against US income). If you have to pay the exact same in the United States as you did in Japan, it would equal itself out. If you would owe more money in the United States than you paid in Japan on the earnings (a.k.a. you are in a higher tax bracket), then you have to pay the difference to the U.S. Government.


3. Streamlined Foreign Offshore Disclosure

What do you do if you reside outside of the United States and recently learned that you’re out of US tax compliance, have no idea what FATCA or FBAR means, and are under the misimpression that you are going to be arrested and hauled off to jail due to irresponsible blogging by inexperienced attorneys and accountants?

If you live overseas and qualify as a foreign resident (reside outside of the United States for at least 330 days in any one of the last three tax years or do not meet the Substantial Presence Test), you may be in for a pleasant surprise.

Even though you may be completely out of US tax and reporting compliance, you may qualify for a penalty waiver and ALL of your disclosure penalties would be waived. Thus, all you will have to do besides reporting and disclosing the information is pay any outstanding tax liability and interest, if any is due. (Your foreign tax credit may offset any US taxes and you may end up with zero penalty and zero tax liability.)

*Under the Streamlined Foreign, you also have to amend or file 3 years of tax returns (and 8938s if applicable) as well as 6 years of FBAR statements just as in the Streamlined Domestic program.


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International Tax Lawyers - Golding & Golding, A PLC

International Tax Lawyers - Golding & Golding, A PLC

Golding & Golding: Our International Tax Lawyers practice exclusively in the area of IRS Offshore & Voluntary Disclosure. We represent clients in 70 different countries. Managing Partner, Sean M. Golding, JD, LL.M., EA and his team have represented thousands of clients in all aspects of IRS offshore disclosure and compliance during his 20-year career as an Attorney. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo and various Law Journals nationwide.

Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)
International Tax Lawyers - Golding & Golding, A PLC