3/5/2015. United States: US/UK Estate Planning and Procedure. US Federal Tax System. Brad Westerfield Partner Butler Snow UK LLP
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1 United States: US/UK Estate Planning and Procedure Brad Westerfield Partner Butler Snow UK LLP US Federal Tax System Federal Income Tax Income tax Income tax on capital gains Net investment income tax (NIIT) Federal Transfer Tax Gift tax Estate tax Generation skipping transfer tax Federal Income Tax Who is subject to US Federal Income Tax? US Person US citizen US green card holder US substantial presence resident US estate US trust Non-US Person, or NRA Includes non-us individuals, foreign trusts and foreign estates owning US situate assets / US source income 1
2 Federal Income Tax Why is this important? US worldwide tax and reporting for US Persons IRS reporting forms for (nearly) everything Statutory filing and election deadlines Penalties Tax and reporting obligations for NRAs Executor of an estate / transferee of property can have personal liability for a decedent s income, gift and estate taxes. In practice, courts have been reluctant to hold fiduciary personally liable; Foreign fiduciaries historically, the IRS has been unsuccessful in enforcing tax assessments through foreign courts (could FATCA and the move towards global transparency change this?) Federal Income Tax US Trust Court Test A court within the US is able to exercise primary supervision over the administration of the trust. Control Test One or more US Persons have the authority to control all substantial decisions of the trust Rules of thumb If trustee is a non-us Person, then a foreign trust If governing law is non-us law, then a foreign trust Federal Income Tax US Estate any estate (other than a foreign estate) Foreign Estate an estate the income of which, from sources without the United States which is not effectively connected with the conduct of a trade or business within the United States, is not includible in gross income for US Federal income tax purposes. In other words, it depends on the facts Domicile of decedent; country of domiciliary administration; location of the major estate assets; nationality and residency of the personal representatives. Of less relevance: nationality of the decedent and beneficiaries Why is US estate versus foreign estate relevant? Determines the US tax and reporting obligations US income taxation of foreign estates favourable for US beneficiaries 2
3 Federal Income Tax Income Item 2015 Normal Maximum Rates Rates for High Income Taxpayers ( HITs ) Tax on (excess) Net Investment Income Ordinary income 35% 39.6% Plus 3.8% Qualified dividends 15% 20% Plus 3.8% Short-term capital gains Long-term capital gains 35% 39.6% Plus 3.8% 15% 20% Plus 3.8% In the news: President Obama s 2016 Budget Proposal: No more full basis step-up on death = capital gains tax on death Increase in maximum LT capital gains / qualified dividends rate to 28% (24.6% + 3.8%) Federal Transfer Tax Who is subject to US Federal Transfer Tax? US citizens and US domiciliaries are subject to transfer tax on gratuitous transfers of worldwide assets Unified estate and gift tax exemption $5,000,000 ($5,430,000 in 2015), then taxed at 40% Proposal: $3.5m estate ex., $1m gift ex., maximum 45% rate Annual gift tax exclusions $14,000 per year, per donee $147,000 for gifts to a non-us citizen spouse Marital deductions Unlimited deduction for gifts / bequests to US citizen spouse Transfers to a non-us citizen spouse» No gift tax deduction for gifts to non-us citizen spouse» Estate tax deduction allowed for bequests to QDOTs DSUE portability (not available to decedent who is NCND, subject to potential treaty arguments) Federal Transfer Tax Who is subject to US Federal Transfer Tax? Non-US citizens not domiciled ( NCND ) in the US Gratuitous transfers of certain US situate assets No gift tax exemption for gifts of US real property and tangible personal property by a NCND Gifts of intangibles, such as US stock, are generally not subject to US Federal gift tax Limited estate tax exemption of only $60,000 Excess taxed at graduated rates up to 40% Subject to potential estate/gift tax treaty relief Article 8(5) 3
4 US/UK Estate Planning Docs US/UK Estate Planning Documents: US/UK Wills (various approaches) UK LPAs US POAs / health care proxies Life insurance trusts (ILITs for US Persons) Excluded property trusts (US tax neutral, or not) Family limited partnerships Dual qualified charity (private foundation) Case Study Husband, age 50, born in the US, moved to UK at 25 Wife, age 45, born in the UK to UK domiciled parents Two children, ages 15 and 20, both born in the UK Joint net worth = 10m, or $15m Assets Value Husband / Wife UK marital home $6m Jointly WROS NY property $4m Jointly WROS UK bank account $1m Jointly WROS US portfolio $1m Husband UK business (UK Ltd Co) $2m Wife US term life insurance policy $1m On Husband s life, owned by Husband Family s Tax Profile US Citizen Husband Subject to US Federal income and transfer taxes on a worldwide basis Deemed domiciled in the UK for IHT purposes UK Citizen Wife NCND in the US (US estate tax exposure on US assets) Domiciled in the UK, so worldwide UK IHT exposure No domicile mismatch, so full spouse exemption Children Dual US/UK citizens Why US citizens? 4
5 I Love You Wills! Assume H dies first: All joint property passes to W by right of survivorship US portfolio passes outright to W under H s Will Life insurance proceeds pay out to W Tax consequences: As W is not a US citizen, 100% of the value of jointly owned property taxable in H s estate, unless Executor can prove to the IRS otherwise (prove W s contributions) As W is not a US citizen, no marital deduction for either jointly owned property or US portfolio As H (and not W or ILIT) was owner of insurance policy, $1m death benefit includible and taxable in H s estate Executor s starting position: H s gross estate = $12m; exemption $5m; 40% on excess $7m NY = $4m; no exemption in this case; taxable at up to 16%. Timing mismatch on taxable events b/w US and UK Standard English Will w/ Spouse Exempt IIP for Wife? Instead of I Love You Wills leaving assets outright to the survivor, what if H s Will is a standard English Will which includes a spouse exempt IIP trust for Wife? Joint property? Same result, passes by operation of law to W, not into a QDOT US portfolio? Same result, as W s IIP trust does not qualify as a QDOT and cannot be reformed Life insurance? Same result, as passes outright to non-us citizen W by beneficiary designation Instead, what if H s Will left his estate to a standard English DT? Same result US/UK Estate Planning Priority Items: Restructure joint property during lifetime H s Will: prepare Will for H that takes into account his US citizenship, W s non-us citizenship and children s dual citizenships W s Will: prepare Will for W that not only covers the UK side, but also takes into account the US citizenships of H and two children UK LPAs / US POAs, etc Restructure ownership of life insurance policy Transfer policy to Wife (3-year rule) ILIT (expenditure out of income / Crummey notices) 5
6 Joint Property Tax Issues if H and W Do Nothing? Assume H provided all of the consideration for the purchase of the UK marital home, there is no outstanding mortgage and H & W sell the property. Income tax consequences: Assume H s share of the gain is $1,000,000 Total capital gains tax and NIIT income tax of approximately $160,000! Gift tax consequences: No gift on creation of the joint tenancy However, if the joint tenancy is severed / terminated (e.g., on sale), there is a deemed gift to W to the extent H does not receive 100% of the sales proceeds (not just 50%) Estate tax consequences: H s estate subject to estate tax on 100% of the value of the property No US marital deduction b/c W is not a US citizen and passes outright by operation of law, not into a QDOT To defer US estate tax, W could transfer the property to a QDOT (trust) However, this would give rise to UK tax issues (20% IHT charge) English deed of variation unlikely to fix (all of) this only 50%? What if US spouse provided less than 100%? Same result, subject to Executor proving, etc. How Do We Fix The Joint Property Tax Problems? Don t title it as joint tenants when purchased Title it as tenants in common, basing beneficial ownership on respective contributions (taking into account any mortgage, future capital improvements, etc.) Example: Purchase 1m, 400k down payment, 600k joint mortgage If H provided down payment, 70% / 30% for US FGT purposes If W provided down payment, 50% / 50% for US FGT purposes Over time, H could then gift his beneficial interest in the property to W (potential income tax benefits) Inter-spousal loan: H could loan the funds to purchase to the property to W (must be a bona-fide debt arising from a true debtor / creditor relationship) How Do We Fix The Joint Property Tax Problems? Too late for Husband and Wife? Sever the joint tenancy in accordance with each spouse s beneficial ownership as determined under US Federal gift tax principles. Avoids triggering a taxable gift on severance Converts joint tenancy into a tenancy in common Solves US estate tax / UK IHT dilemma provided an appropriate Will is in place Planning going forward Now that it works for US/UK succession purposes, H could consider gifting all or a portion of his beneficial interest in the property to W, potentially reducing the US Federal income tax exposure on a later sale. 6
7 Structure of H s Will Assume Husband s assets (excl. life ins.) = $8,000,000 Set aside NRB amount (and any FRB prop) in DT Transfer balance to marital trust f/b/o Wife All qualifies for UK spouse exemption (IIP / IPDI) Part elected to qualify for US marital / QDOT (also IIP/IPDI) Results in three sub-trusts: Amounts in marital trusts might vary depending on applicable NY exemption amount NRB trust = 325k, or $500,000 Non-QDOT marital trust = $4,500,000 QDOT martial trust = $3,000,000 Only fund QDOT to the extent necessary to defer US estate tax = $5m US exemption Intentionally, do not elect to qualify this for the US marital deduction in order to fully utilize US exemption amount of $5m Husband s Will diagram Husband s Will Any outright bequests / debts / expenses / taxes Nil Rate Band Trust 325k / $500k Discretionary income and capital f/b/o W and children No US FET on W s death No UK IHT on W s death On W s death, held on separate share trusts for children GST Exempt Non-QDOT Marital Trust $4,500,000 Mandatory income to Wife, subject to Trustee s OPA to distribute among class of DB s No US FET on W s death UK IHT on W s death, subject to PET to children or GC GST Exempt QDOT Marital Trust $3,000,000 Mandatory income to Wife, not subject to Trustee s OPA Requires US Trustee US FET on distributions of capital and/or on W s death UK IHT on W s death Offsetting tax credits Wife s English Will From A US Perspective To H outright? Exposes all W s assets to US Federal tax system, including GST taxes, so less flexibility for tax-free distributions to grandchildren Limits PETs to children / grandchildren, as H is subject to US lifetime gift tax exemption amount May unwind lifetime gift planning (e.g., joint property restructuring) To H in trust? E.g. standard UK spouse exempt trust? Is H executor and trustee, or has the power to remove and replace the trustees, make sure H s powers are limited so that he is not considered to have a power of appointment sufficient to cause the trust assets to be subject to US transfer / income taxes Watch out for US anti-avoidance rules applicable to US beneficiaries of non-us trusts / non-us entities, including the throwback rules, the PFIC rules and the CFC rules (e.g., W s UK business). 7
8 US Procedure on H s Death How to close Husband s estate: Pay all debts and expenses; Timely file all tax returns and pay any taxes due; Federal and state tax elections Obtain IRS closing letters 6325 Obtain transfer certificates for nonresident decedents (regardless of citizenship) Distribute assets of the estate Final accounting and discharge of executor But what is the first step? Opening H s Estate Assume domiciliary administration in the UK / ancillary in New York 1.Obtain several original death certificates 2.Obtain Report of Death of a US Citizen Abroad (from US Embassy) 3.Locate original Will (or copy in accordance with state requirements) 4.Petition appropriate court to admit the Will to probate A. Give notice ( citation ) that Will has been filed for probate B. Prove the Will is valid (self-proving affidavit?) C. Qualify the appointed Executor(s) (take oath of office; any residency requirements?) D. Issue letters testamentary (obtain several copies) 5.Obtain a US Federal Tax ID Number by filing Form SS-4 with IRS 6.Open a bank account in the name of the Estate 7.Notify creditors (known and unknown) File affidavit with court confirming notification of creditors Administering H s Estate US Tax Filings and Elections Item Description Timing Form 56 Notice Concerning Fiduciary Relationship Notifies IRS of the fiduciary relationship, that executor is acting on behalf of decedent s estate Form 2848 Power of Attorney Authorizes lawyer / accountant to represent before IRS Qualified Disclaimer 2518 In writing, received by no later than 9 months from transfer (or 21), no benefits, no direction Form 706 / 706NA US Federal Estate Tax Return 9 months from date of death, subject to 6 month extension, and to extensions to pay under 6161 QDOT election / reform. Election made on Form 706 By due date of Form 706; time-barred if election made more than 1 year after due date of Form 706; portability Federal Closing Letter 2204; Letter 627 IRS notification w/in 9 months of filing Form 706; after payment and no adjustments, IRS issues Letter 627 State Estate Tax Return Must attach Form 706 Generally follows Form 706 deadline State Closing Letter File copy of Letter 627 Issues after the Federal Closing Letter Form 1040 Final US Ind. Inc. Tax Return Depends, April or June 15, subject to extension Form 1041 Estate Income Tax Return May select fiscal year, return due 15 th day of 4 th month following close of the taxable year FinCen Form 114 Final FBARs Due June 30 (careful, also applies to US estates) 8
9 Executor Liability 2203 for US Federal tax purposes, the term executor means the executor or administrator of the decedent, or, if there is no executor or administrator appointed, qualified, and acting within the United States, then any person in actual or constructive possession of any property of the decedent the executor is primarily responsible for paying the US Federal estate tax the executor is also responsible for filing the decedent s final income tax return(s), and paying any tax due. If the executor fails to pay taxes or file returns, he or she can be held personally liable. Estate Tax Lien upon the death of an individual subject to US Federal estate tax, an estate tax lien automatically arises; The lien attaches to every part of the gross estate whether or not the property is part of the probate estate; It last for 10 years unless terminated earlier; The estate tax lien expires on the date all estate tax has been paid in full, or becomes unenforceable by reason of lapse of time. Transfer Certificates Banks, trust companies and other custodians can avoid liability for a decedent s taxes by obtaining a transfer certificate from the IRS before transferring property of a decedent. IRS will issue a transfer certificate if it is satisfied that there is no estate tax due. May require the filing of a US Federal estate tax return; Or if one not required, providing copy of IHT return. Generally, not required if: US executor is appointed and acting within the US Nonresident alien s US situate property is less than $60,000 (generally requires an affidavit by the executor) 9
10 Closing Husband s Estate Paid all creditors (and time for claims has expired) Filed all tax returns and paid all taxes Obtained Federal and State Closing Letters Make final distribution of estate assets Obtain receipts from distributees Maybe indemnity agreements Send notice of final accounting to interested parties File final accounting with the probate court Shows and explains all receipts and disbursements Requests discharge of executor Upon approval, concludes administration and releases executor from further liability, subject to period of time thereafter (e.g., 6 months to 1 year) during which an action may still be brought against the executor by an interested person. Can request waiver of accounting in certain instances 10
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