February 25, Tax Update for U.S. Citizens and Commuters Living in Canada

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1 February 25, 2014 Tax Update for U.S. Citizens and Commuters Living in Canada

2 Windsor Walkerville 1601 Wyandotte Street East Windsor N8Y 1C8 Windsor South 3850 Dougall Avenue, Unit 50 Windsor N9G 1X2

3 Session Overview Commuters to U.S. U.S. Citizens in Canada Additional Reporting Requirements FATCA & PFIC Updates U.S. Tax, Estate & Business Planning Questions

4 Commuters to the U.S. Canadians who commute to work in the U.S. Form 1040NR for federal tax on their U.S.-source income Must also file a Canadian tax return for their worldwide income (including investment income, etc. which may not be on the U.S. return U.S. tax return due April 15 (earlier than Canadian tax return due date of April 30) Canadians with other U.S.-source income must also file a 1040NR U.S. rental income, gambling winnings, pensions, etc. Taxes paid in the U.S. can be used as a foreign tax credit against the foreign income listed on the Canadian return

5 Commuters to the U.S. Example of Foreign Tax Credits for U.S. Commuter U.S. wages earned by Canadian resident $100,000 U.S. taxes paid: US Federal Tax $14,000 Michigan Tax ( %) $ 4,000 Detroit Tax $ 1,500 Social Security Taxes $ 6,000 Medicare Taxes $ 1,500 Total U.S. Taxes $27,000 CDN tax due on $100,000 of income $27,500 Less: Credit for U.S. taxes paid (above) (27,000) Balance before Health care premium $ 500 Add: Health Care Premium $ 750 Total CDN Tax Payable $ 1,250

6 Commuters to the U.S. Typical U.S. Tax filings for a commuter can include: U.S. Federal 1040NR State income tax return for EACH state if income earned in a state (eg. MI1040 for wages earned in Michigan) typically in the range of 4% tax rates City tax return if earned in a city with separate tax returns eg. Detroit D-1040 tax rates usually less than 2% Canadian income tax return (one combined federal and provincial return for Ontario residents) Total of 4 or more returns are possible for each year

7 Commuters to the U.S. Common Errors for U.S. Commuters: Failure to claim all U.S. foreign taxes paid - Solution Social security and medicare taxes are creditable Unused FTC excess taxes not being fully utilized - Solution reduce U.S. taxes claim dependants and spouse (must have ITIN); possible child tax credit consider treatybased filing position or alternative filing status (e.g. Head of Household) Note IRS 2013 Revenue Ruling allows same-sex legally married partners to be claimed RRSP deductions claimed with minimal (or no) tax savings Donations, tuition credits, other credits, claimed by U.S. commuter rather than spouse (if spouse has income)

8 U.S. Citizens in Canada-Overview The U.S. taxes its citizens, permanent residents (green card holders) and U.S. residents on their worldwide income US citizens taxed on worldwide income even if not resident in the U.S. Canada s tax system is based on residency Residents of Canada taxed on worldwide income until departure from Can Non-residents taxed on Canadian-sourced income Implications for U.S. citizens/green card holders living in Canada Must file a U.S. tax return every year, even if no U.S.-source income Must also file a Canadian tax return Potential for double taxation exists, but several provisions help mitigate this exposure

9 U.S. Citizens Filing Needs All U.S. citizens/green card holders required to file Form 1040 annually Due on April 15 th, but automatic extension granted until June 15 th for U.S. persons living abroad if no income effectively connected with U.S. (eg. Employment income) Three provisions provide relief from double taxation: Foreign earned income exclusion Foreign tax credits Canada-U.S. tax treaty provisions (for RRSP income)

10 Foreign Tax Credits FTC on U.S. return (Form 1116) may be claimed for foreign taxes paid on foreign source income including: Canadian federal and provincial income taxes Employment insurance premiums Canadian/other foreign withholding taxes paid FTC usually eliminates all U.S. tax on Canadian source income Top combined tax rate in Ontario (29% Fed + 20% Ont =49%) is higher than top U.S. tax rate in Michigan (39.6% Fed % Mi = 43.85%) Issues may arise when taxpayer is claiming deductions to reduce Canadian taxes that are not fully-deductible in U.S. (e.g. tuition credits, child care expenses, medical expenses, donations, etc.) Canada also allows a FTC for U.S. taxes paid on U.S. source income taxable in Canada.

11 Additional Requirements Registered Retirement Savings Plans (Form 8891) Investments in non-u.s. entities Corporations (Form 5471) Partnerships (Form 8865) Foreign Trusts (Form 3520/3520A) Foreign Financial Accounts (Form 114) Mutual Funds (Form 8621)

12 RRSPs Canada-U.S. tax treaty allows for a U.S. citizen to defer inclusion of income currently earned in an RRSP until such time that the income is taxed in Canada Must disclose Treaty election on Form 8891 and Form 8833 Election cannot be made on a late filed return Late filed Form 8833 can result in penalties of up to $1,000 Must also disclose RRSP account on FinCEN Form 114 and Form 8938

13 Investments in Non-U.S. Entities Form 5471 Foreign Corporations U.S. persons who have investments in certain foreign corporations (includes Canadian corporations) Special reporting rules when foreign corporation is considered a controlled foreign corporation (CFC) Potential for deemed income inclusions in U.S. (e.g. passive income, shareholder loans, personal services income) Potential issues with use of Canadian Professional Corporations Late filed Form 5471 can result in penalties of up to $10,000 Other entities Form 8865 (foreign partnerships)

14 Foreign Trusts (Form 3520) U.S. citizens must report ownership of foreign trusts to the U.S. on Form 3520/3520-A Includes Registered Education Savings Plans (RESP), Registered Disability Savings Plans (RDSP) and Tax Free Savings Accounts (TFSA) U.S. treats RESP, RDSP, and TFSA accounts as grantor trusts income earned by RESP, RDSP, and TFSA must be included on the taxpayer s U.S. return annually

15 Foreign Trusts (Form 3520) U.S. citizens must file a separate Form 3520 each year for every trust account owned U.S. beneficiaries of trust distributions must also file Form 3520 (e.g. U.S. child who withdraws money from RESP or RDSP) Trustee of the trust must file Form 3520-A and send copies to each U.S. owner and beneficiary Deadline for filing Form 3520-A is March 15 (extension is available, but must be filed before March 15th) Must disclose all contributions, income, and distributions relating to the trust Late filed Form 3520-A can result in penalties of at least $10,000

16 Foreign Financial Accounts FinCEN Form 114: Report of Foreign Bank and Financial Accounts (FBAR) U.S. persons who have a financial interest in/signing authority over foreign bank, securities, or other financial accounts must file FBAR if total value of accounts is >$10,000 USD Must disclose details of each account held, including highest balance on the account in the year Separate filing from tax return Due June 30th each year Unreported foreign financial accounts can result in penalties of up to $10,000 per account per year Starting July 1, 2013 must be e-filed

17 Foreign Financial Accounts Form 8938: Statement of Foreign Financial Assets Single/Married Filing Separately threshold: Required if >$200,000 USD in reportable financial assets on December 31 st, or >$300,000 USD at any point in the year Married Filing Jointly threshold: Required if >$400,000 USD in reportable financial assets, or >$600,000 USD at any point in the year In addition to FBAR requirement Includes foreign financial/brokerage accounts, interests in foreign entities, foreign pensions, retirement plans, etc. Late filed Form 8938 can result in a penalty of $10,000

18 Mutual Funds Canadian Mutual Funds U.S. considers foreign mutual fund to be a passive foreign investment company (PFIC) Must file Form 8621 Highest tax rate on excess distributions and gains Interest charged on deemed deferred tax amount Excludes mutual funds held in RRSP if election made

19 U.S. Tax, Estate & Business Planning Federal Estate & Gift Tax State Issues Estate Planning Tools Forms of Ownership Reporting & Other Issues Voluntary Disclosure Update Renouncing U.S. Citizenship Doing Business in the U.S.

20 U.S. Estate & Gift Tax U.S. Citizens & Permanent Residents Subject to U.S. estate tax on worldwide estate upon death (max rate 40%) Exemption Amount provides base for taxable estates permanently fixed at $5M (adjusted for inflation annually); $5.34M for 2014 Marital Deduction if assets pass to U.S. citizen spouse Subject to generation skipping transfer tax on skip generations Subject to gift tax on transfers during life No tax until gifts exceed the Exemption Amount Unlimited marital deduction on gifts to U.S. citizen spouse $14,000 annual exclusion on gifts to any donee $145,000 annual exclusion on gifts to non-u.s. spouse

21 U.S. Estate & Gift Tax Non-Resident Aliens NRAs (Canadians) Subject to U.S. estate tax on property situated in the United States Exemption amount for NRAs is only $60,000 of U.S. property Tax Treaty provides relief: Proration of the $5.34M [U.S. Property / Worldwide Estate] Marital credit provides relief for transfers to spouse In Short: If U.S. property < $60,000; NO U.S. estate tax issue (no filing) If worldwide estate < $5.34M; NO U.S. estate tax (filing) If worldwide estate > $5.34M; U.S. estate tax (tax)

22 U.S. Estate & Gift Tax NRAs are subject to U.S. gift tax on transfer of property situated in the United States $145,000 annual exclusion on gifts to non-u.s. spouse $14,000 annual exclusion on gifts to any other person No tax on gifts to U.S. citizen spouse Tax Treaty does NOT provide relief from U.S. gift tax Gift tax does not apply to the transfer of intangible property by a nonresident not a citizen of the United States (i.e., shares in U.S. corporation).

23 State Issues Estate Taxes Income Taxes Property Taxes Insurance Probate Incapacity

24 State Issues U.S. Property & the Probate Process Legal process by which property is transferred upon Death. Usually handled at the County level (State law) An Ontario Will can be used to probate property situated in the U.S. Lengthens time to probate Complete probate proceedings in Ontario first Complicates probate process if no probate occurs in Ontario Statutory probate fees for lawyer are approximately 3% of estate (not including estate tax return or other extraordinary matters) Must understand cross border issues, i.e., estate tax return for foreigners, tax treaty, bond for non-resident personal rep, etc.

25 State Issues What if you become Incapacitated? A person is considered incapacitated when they have lost their ability to make important decisions, including those related to their assets or property or health. Your loved ones may encounter significant problems when trying to sell or transfer your property; or make decisions regarding your health care Ontario POAs just don t make the cut in the U.S. Guardianship costly & time consuming court process.

26 U.S. Estate Planning Tools Probate Wills Use Florida Will for Florida property Do not revoke existing Ontario Will Deeds Joint tenancy; Tenancy in common Enhanced life estate deed Trusts Avoids probate Costs involved to set up and administer Watch out for income tax in Canada & gift tax in U.S.

27 U.S. Estate Planning Tools Incapacity Durable Power of Attorney Create Florida POA for Florida property (covers all U.S.) Trusts POA not essential; trust provision for incapacity, i.e., successor trustee Tax issues and costs to consider Designation of Health Care Surrogate Health Care POA Allows medical professionals to adhere to your wishes; otherwise they follow the law and hospital policy.

28 U.S. Estate Planning Tools Estate Tax Have someone/something else own it. Trusts Assets in trust may or may not be subject to U.S. estate tax Revocable; irrevocable; control over property Gifts annual exclusions Life Insurance Covers potential U.S. estate tax Compare potential estate tax to premiums Use ILIT to hold

29 Forms of Ownership Individual Requires Florida probate (unless enhanced life estate deed) Included in U.S. estate upon death Joint Tenants 100% of fmv included in estate on first spouse death (unless prove contribution from surviving spouse): non-u.s. spouse Avoids Florida probate only on first death Tenants in Common 50/50 husband & wife; half of fmv included in estate on first spouse death (transfer it to spousal trust to avoid possible estate tax on death of surviving spouse) Florida probate required on each death Tenancy-in-Common Agreement (management; use & ownership)

30 Forms of Ownership Corporation No capital gain treatment when sold; high corporate tax rate Canadian taxable benefit issues Limited Liability Company (LLC) Double taxation individual level; corporate level; no offsetting FTC); Canadian taxable benefit issue Limited Partnership Trust Income tax neutral (same treatment both countries) Revocable no good (double tax issues) Irrevocable out of estate; restrictive and potential tax consequences Florida Land Trust

31 Reporting & Other Issues Estate Tax Return Disclose worldwide assets at death to invoke treaty benefits Due date is 9 months from date of death Check with State Gift Tax Return Year after the gift is made Income Tax Return Sale of U.S. property FIRPTA withholding (10% of sales proceeds) Withholding Certificate to reduce or eliminate FIRPTA Canadian Reporting Issues T1135 Foreign Property > $100,000 (e.g., U.S. real property)

32 Reporting & Other Issues Life Insurance Not taxable but included in Worldwide estate; reduces prorated exemption amount under Treaty Insurance is included in estate of U.S. person Adding Children to Title of Florida Property NO NO NO!! Triggers U.S. gift tax; carryover basis in U.S.; Canada capital gain tax with no offsetting FTC for gift tax paid Sale of property U.S. capital gain tax & no FTC for Cdn tax paid IRS Collection of Estate and Gift Taxes The Internal Revenue Service may collect any unpaid estate tax from any person receiving a distribution of the decedent s property under transferee liability provisions of the tax code.

33 Voluntary Disclosure Update Haven t filed or missed a filing deadline? Determine your issues; Choose a filing strategy Streamline; OVDP; Standard New Streamlined Filing Procedures effective September 1, 2012 individuals who reside outside the U.S. & haven t filed (no amended returns) low compliance risk taxpayers with little or no U.S. tax owing IRS will expedite review and no penalties or follow-up actions pursued Opt out of 2011 Offshore Voluntary Disclosure Initiative into SFP Late Penalties on 3520, FBAR, 5471, 1120F & 5472 (Reasonable Cause) FBAR Mandatory electronic filing as of July 1, 2013 FATCA No more hiding from IRS (Foreign Account Tax Compliance Act)

34 Renouncing U.S. Citizenship 1. Must be in full compliance with U.S. tax laws & reporting requirements. 2. Possible Exit Tax 3. Not complicated handled locally in Toronto at U.S. Consulate 4. No longer able to pass citizenship to children. 5. No longer able to work in U.S. 6. No longer guaranteed entry into the U.S. 7. Possible difficulty at border crossings. 8. Makes sense to consider if you have high degree of Canadian tax planning that does not correspond to U.S. tax laws and causes U.S. tax where no Canadian tax is imposed. 9. Other than that, it generally only means annual reporting & no tax. 10. Get good advice before making any decisions.

35 Doing Business in the United States Business Structures U.S. Corporation Canadian (or other foreign) Corporation LLC Limited Partnership Sole Proprietorship Form in 1 State; Register in Others Cross Border Tax Issues U.S. federal income tax (corporate; individual; partnership) State income & sales tax Canadian & Provincial income tax

36 Doing Business in the United States U.S. Tax Reporting Tax Returns: 1120; 1120F; 1065; 1040 (Schedule C; K-1) Information Returns: 5472; 5471 Corp return due 2 ½ months after year end Watch for late filing penalties! Immigration Must have valid work authorization to work in the U.S. U.S. citizenship; green card; work visa (TN, L-1A, E-2) Doesn t matter if you own a U.S. company or property no inherent right to work in the U.S. or even enter it. Limited Exception Business visitor (or B visa )

37 Questions

38 Thank you