International Issues Affecting Domestic Planners Robert D. Colvin (Houston, Texas, USA) Houston Business & Estate Planning Council October 22, 2009
Overview of Presentation Offshore Voluntary Disclosure Initiative Foreign Trusts Foreign Assets Held by US Persons US Assets Held by Foreign Persons Impact of Foreign Investor on US business owners Non-US Citizen Spouses Private Placement Life Insurance
Offshore Voluntary Disclosure Initiative
Voluntary Disclosure Initiative October 15 Deadline.oops!!! Undeclared foreign income, accounts & reporting Program Framework What if you missed the deadline??
Prevailing Wind Blows Onshore Domestication of Foreign Trusts Conversion of foreign entities Closing of foreign accounts But foreign trusts, accounts & companies still have their proper uses
Myths Foreign Trusts Truths It is illegal for a US person to put money in a foreign trust. You don t t have to pay taxes on income earned thru a foreign trust. No one will know you have a foreign trust. Creditors can t t get to assets in your foreign trust. US residents are free to set up foreign trusts. Grantor trust rules require US settlor to pay tax on trust s income each year. Foreign trust is reported on US settlor s s annual income tax return. It is more difficult for creditors to seize foreign trust assets.
Why set up a Foreign Trust? Asset Protection nest egg
Why set up a Foreign Trust? Asset Protection nest egg Access to Foreign Investments Private placement life insurance SEC restrictions Investment Advisors fear of US litigation
Why set up a Foreign Trust? Asset Protection nest egg Access to Foreign Investments Estate planning for International Families
Popular Foreign Trust Jurisdictions Bahamas Bermuda Cayman Islands Cook Islands Guernsey Jersey Nevis
Foreign Trusts During the Settlor s s lifetime After the Settlor s s death
Grantor Trust Rules (U.S. Settlor) U.S. Settlor + any U.S. Beneficiaries = Grantor trust All trust assets and income attributed to U.S. Settlor
Grantor Trust Rules (U.S. Settlor) U.S. Settlor + any U.S. Beneficiaries= Grantor trust All trust assets and income attributed to U.S. Settlor No significant income tax advantage
Grantor Trust Rules (Non-U.S. Settlor) All trust assets and income attributed to non-u.s. Settlor As an NRA, the Settlor is not a U.S. taxpayer
Grantor Trust Rules (Non-U.S. Settlor) All trust assets and income attributed to non-u.s. Settlor Allows tax-free distributions to U.S. Beneficiaries as previously taxed income
Grantor Trust Rules Grantor trust status only if: Grantor has authority to revest trust property in themselves: Revocable; or (Non-U.S. Settlor) No trust distributions during grantor s s lifetime except to Grantor or spouse
Grantor Trust Rules Grantor trust status only if: Grantor has authority to revest trust property in themselves: Revocable; or (Non-U.S. Settlor) No trust distributions during grantor s s lifetime except to Grantor or spouse
After Settlor s s Death (U.S. or Non-U.S. Settlor) Trust perfects for income tax purposes No longer grantor trust Taxed as separate entity Taxable as non-u.s. resident alien ( NRA( NRA ) Section 684 Deemed Disposition
After Settlor s s Death (U.S. or Non-U.S. Settlor) Trust perfects for income tax purposes Section 684 Deemed Disposition Exception if assets included in US taxable estate
The Pregnant Trust Problem Nongrantor Trust Accumulated Income/Gains
The Pregnant Trust Problem Accumulated income distributions All treated as ordinary income Lose capital gains character Section 668 Interest Charge Tax & interest charge limited to 100% of distribution
Trust Distribution Ordering Rules DNI - Current year trust income DNI UNI Capital Retains original character UNI - Income accumulated in prior years All high tax ordinary income Interest charge Capital distributions Tax-free
Trust Distribution Ordering Rules DNI FAI UNI Capital DNI - Current year income of trust Retains original character FAI - Fiduciary accounting income Tax-free in excess of current year DNI UNI - Income accumulated in prior years All high tax ordinary income Onerous interest charge Capital distributions Tax-free
Pregnant Trust Split Trust Solution Corpus Trust Annually Decant Excess Income/Gains U.S. Income Trust SOLELY Corpus/Principal Investment Assets (stocks, bonds, etc.) SOLELY Accumulated Income & Gains Investment Assets (stocks, bonds, etc.)
The Foreign Domestic Trust? Primarily used by non-u.s. persons Any substantial decision by non-u.s. persons = Foreign Trust Pre-domestication choreography U.S. and Foreign Trustees Pre-immigration planning
Inheritance of Foreign Assets Nature of the inherited asset & holding structure Foreign trusts Foreign companies CFC, PFICs,, etc. Operating businesses Foreign vs domestic estate? Foreign source income is exempt Big advantage over foreign trust No UNI Quirks of civil law countries Not recognize trusts Forced heirship
Foreign Assets Held by US Persons Coordinate with U.S. Will Foreign Wills POD Accounts Ancillary administration Trusts in civil law jurisdictions Local counsel
U.S Assets Held by Foreign Persons
Basic Income Taxation of NRAs NRA or income tax resident? Green card Physical presence test 30% withholding tax on U.S. source FDAPI Capital gains are exempt unless: Effectively connected with a U.S. trade or business U.S. real property interest Special FIRPTA withholding rules Treaty Tie-Breaker Rules
Gift & Estate Taxation of Foreign Persons Domicile vs income tax residency Unified credit exemption amount only $60,000 Not available for inter vivos gifts Annual exclusion is available Taxable on U.S. situs assets Tangible property Real estate, home furnishings, artwork & collectibles Intangible property Inter vivos intangibles gift tax exception Cash vs bank accounts Gold in lockbox Portfolio interest exception
Investment in US Assets NRA Individual Concerns US estate tax US income & capital gains tax U.S. Investments Reporting
Investment in US Assets (Traditional Solution) NRA Individual Foreign Corp Avoids US estate tax Reporting only at corp level But...Income & capital gains tax U.S. Investments
Investment in US Assets Investment in US Assets (Traditional Solution) NRA Individual Foreign Corp $ 100 Income or Cap Gain <35> Corporate tax (35%) $ 65 <19.5> Dividend tax (30%) $ 45.5 Net After Tax ====== U.S. Investments
Investment in US Assets (Traditional Solution) NRA Individual Foreign Corp U.S. Investments $ 100 Income or Cap Gain <35> Corporate tax (35%) $ 65 <19.5> Dividend tax (30%) $ 45.5 Net After Tax ====== = 54% combined tax!!!
Investment in US Assets (Income Producing) NRA Individual Foreign Ptshp US Ptshp $ 100 Income <35> Individual tax (35%) $ 65 < 0 > Dividend tax (None!!) $ 65 Net After Tax ====== U.S. Investments
Investment in US Assets (Income Producing) NRA Individual Foreign Ptshp US Ptshp U.S. Investments $ 100 Income <35> Individual tax (35%) $ 65 < 0 > Dividend tax (None!!) $ 65 Net After Tax ====== Tax reduced to 35%!!!
Investment in US Assets (Taxable Capital Gain) NRA Individual Foreign Ptshp US Ptshp $ 100 Taxable Capital Gain <15> Individual LTCG (15%) $ 85 < 0 > Dividend tax (None!!) $ 85 Net After Tax ====== U.S. Investments
Investment in US Assets (Taxable Capital Gain) NRA Individual Foreign Ptshp US Ptshp U.S. Investments $ 100 Taxable Capital Gain <15> Individual LTCG (15%) $ 85 < 0 > Dividend tax (None!!) $ 85 Net After Tax ====== Tax reduced to 15%!!!
So you have a Foreign Partner in your US business?
Foreign Investment in US Business If you are operating as a US corporation 30% withholding on dividends >25% foreign ownership reporting
Foreign Investment in US Business US corporations If you are operating as a US LLC or Partnership Quarterly tax withholding and remittance Impact on venture s s cash flow Foreign partner must file US tax return Foreign partner may establish US corp as its investment vehicle
Foreign Investment in US Business US corporations US LLC s & Partnerships Portfolio Interest Exception No US tax on the interest payment Interest deductible by US business 10% ownership limitation Equity kicker portion is taxable
Foreign Investment in US Business US corporations US LLC s & Partnerships Portfolio Interest Exception US Estate Tax concerns Certain countries have no estate tax US situs assets such as stocks & real estate Lots of planning opportunities
Planning for Non-US Citizen Spouses
Problem (Non-Citizen) Spouses No unlimited Marital Deduction on gifts or bequests to a non-citizen spouse Annual gift exclusion of $133,000 Qualified Domestic Trust ( QDOT( QDOT ) But $3.5mm unified credit exemption if decedent is US citizen or domiciliary Leverage thru life insurance
Transfers of Property Between Spouses General rule: No gain on transfers of property between spouses Non-US citizen spouse exception: Gain (but not loss) is recognized on transfers to NC spouse but only if gain would otherwise be recognized. Gift appreciated assets to non-us citizen spouse?
Low Interest Loan to NC Spouse No requirement to impute interest between spouses No specific condition that spouse be US citizen Bona fide debt obligation Guarantees, collateral, adequate interest, economic substance Objective: Shift earnings in excess of loan interest rate to non-us citizen spouse
Private Placement Insurance & Annuities
Trust Framework Settlor contribution Trustee benefits Beneficiaries
Insurance Parallel Framework Settlor contribution Trustee Policy Holder Insurer benefits Beneficiaries
Income Tax Benefits Trust, LLC or FLP PPLI Policy Portfolio Investments Tax Free Inside Build-Up
Income Tax Benefits Trust, LLC or FLP PPLI Policy Tax Free Shifting Among Investments A B CX D EY
Income Tax Benefits Trust, LLC or FLP PPLI Policy Tax Free Access to Policy Values Portfolio Investments
Income Tax Benefits Trust, LLC or FLP PPLI Policy Tax Free Death Benefit: Portfolio Investments True Insurance Benefit Portfolio Investments
PFIC Planning US Investor DVA or Life Policy No Attribution through Insurance Products PFIC PFIC PFIC PFIC PFIC
NRA Funding For US Beneficiaries NRA Offshore Trust Non-MEC Life Policy Separate Account Investments U.S. Beneficiaries Objectives 1. Avoid U.S. tax and interest charge on distributions to U.S. beneficiaries. 2. Avoid home country tax issues for NRA settlor. 3. Establish dynasty trust free of U.S. gift, estate and GST taxes.
Insurance as Estate Tax Blocker NRA Individual DVA or Life Policy Scenario No US income tax on portfolio income Concerns re home country income taxation Home country concerns re trusts US estate tax concern US Portfolio Investments
Robert D. Colvin & Associates 12 Greenway Plaza, Suite 1100 Houston, TX 77046 Direct: (713) 666-6045 Fax: (713) 666-6038 robert.d.colvin@colvintrust.com
Circular 230 Legend This presentation is intended to be a general discussion of complex planning principles and does not constitute legal or tax advice with respect to any specific transaction. Pursuant to requirements related to practice before the Internal Revenue Service, any tax advice contained in this presentation is not intended to be used, and cannot be used, for purposes of (i) avoiding penalties imposed under the United States Internal Revenue Code or (ii) promoting, marketing or recommending to another person any tax-related matter.