The State of the US Estate Tax & Other US Related Tax Matters What Advisors Need to Know? Edmonton Estate Planning Council, Inc. Terry F. Ritchie 480-722-9414 (Arizona) 403-257-4488 (Alberta)
What We Do? Provide comprehensive fee-only Canada/U.S. financial and wealth management services Clients with net worth >U$2M We are not attorneys Work closely with tax, estate and immigration counsel Provide coordinated investment management services for clients in Canada and U.S. Tax preparation services Consulting services are provided on a selective basis
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Individual Income & Estate Taxes Where things stand now, I think? Current Rate Default Rate - 2011 Income Tax Top Marginal Rate 35% 39.6% Capital Gains (Long Term) 15% 20.0% Dividends 15% 39.6% 2008 2009 2010 2011 Estate & GST Tax Highest Rate & Exemption 45% $2,000,000 45% $3,500,000 Repealed 55%* $1,000,000 Gift Tax Highest Rate & Exemption 45% $1,000,000 45% $1,000,000 35% $1,000,000 55% $1,000,000 Basis of Inherited Assets Fair Market Value Fair Market Value Carryover Fair Market Value A 5% surtax will apply to estates & gifts of $10M to approx. $17M
So What Happened January 1, 2010? The estate tax and generation skipping transfer (GST) taxes are repealed for one year, effective January 1, 2010. The gift tax remains in place, with a $1 million exemption, but the rate is reduced from 45% to 35% Under new carryover basis rules for 2010 only, heirs do NOT take a full fair market value or stepped up basis on inherited assets.
What is the US Congress Likely to do in 2010, 2011? Members of Congress stated at year-end that they intend to address the estate, GST and gift tax issues early in 2010. Senator Baucus, Chair of the Senate Finance Committee, has said that he would seek retroactive reinstatement of the taxes. But Senate action takes 60 votes, which they could not find in December 09. Congressman Rangel (TAX CHEAT!) stated in mid-january that Congress will act soon, but may not reinstate the taxes retroactively. Now being brought on ethics charges!!! There are questions as to whether retroactive reinstatement is constitutional, and some commentators have said that the later in 2010 it is attempted, the less likely it is to be upheld.
Why a Retroactive Estate Tax is Not Likely It s November 2010! Five billionaires have died in 2010 These families now have a war chest to fight the constitutionality of a retroactive estate tax. Billionaire George Steinbrenner Walter Shorenstein Mary Janet Cargill John Kluge Dan L. Duncan Estimated Estate Tax $495 million $495 million $765 million $2.9 billion $4 billion
What is the US Congress Likely to do in 2010, 2011? It is very difficult to predict when and what Congress will actually do: Last December, the House passed a permanent extension of the 2009 rate and exemption (45% and $3.5M) and Senator Baucus favor this approach. Legislation introduced in both the House and Senate during 2009 varied, with proposed exemptions of $2M to $5M per person, and rates ranging from a low of 15% to a high of 55%. The extremes of repeal or a $1M exemption did not appear to be under serious consideration in 2009 OF COURSE, nobody expected that we d have REPEAL in 2010!!!
What is the US Congress Likely to do in 2010, 2011? Mid term elections just occurred. House is now controlled by the GOP (Republicans). Senate is controlled by Democrats Now have a lame duck Congress. They only effectively have 4 weeks to resolve many outstanding issues: The expiration of the Bush tax cuts Reinstatement of Estate Tax at 2009 Rate & Exemption levels Republicans favor a $5M exemption and 35% rate phased in over 10 years
Here s the Way It Is Now (2010) If individual dies in 2010 - US or Canadian citizen (with US situs assets), there will be NO US estate tax. Now the income tax basis of assets in the estate will NOT be stepped up to FMV at the date of death, but will be based on the lesser of the decedent s basis or FMV ( carryover basis ). So heirs who sell inherited assets may be subject to capital gains tax on pre-death appreciation. Individual basis exemption of $1.3M in gains allowed If goes to spouse, and additional exemption of $3M allowed Nonresidents (Cdns) only get a $60,000 basis exemption An administrative nightmare to track and follow
2011 Legislation The Estate and GST tax return January 1, 2011 55% rate $1M exemption (US citizens & domiciliaries) $60,000 or increased treaty exemption (NRAs Canadians) Unlimited spousal credit (US citizen spouses or QDOT transfers) Step-up (or down) in basis to date of death values Gift tax 55% rate $1M exemption (US citizens & domiciliaries)
Cross Border Will Planning US Citizens & Domilciliaries Balance estate assets to effectively use two estate tax exemptions use credit shelter trust Use life insurance through an irrevocable life insurance trust ( ILIT ) Use annual gifting exclusion ($13,000/person) to reduce estate Use lifetime gift tax exemption ($1M ) to transfer assets that are expected to appreciated substantially in value
Cross Border Will Planning Canadian married to a US citizen Often may wish to leave all assets to the surviving spouse If and when US estate tax reappears, this causes those assets to be subject to US estate tax upon the subsequent death of the surviving spouse Therefore, Canadian decedent s assets could ultimately be taxed as part of the US surviving spouse s US estate Tax Planned Will should focus on: Keeping the Canadian s assets out of the US citizen surviving spouse s estate Often through the use of a Spousal Trust The terms of the Spousal Trust must be limited in order to keep the trust from being included in surviving spouse s US gross estate May provide for annual income to surviving spouse Principal distributions at trustee s discretion - surviving spouse cannot be given unfettered access
Cross Border Will Planning Canadian married to a US citizen Tax Planned Will should focus on: Migration clause if future move to US Often through the use of a Spousal Trust No general power of appointment Can t appoint assets to:» Him or herself» Creditors» Estate or Estate Creditors
Cross Border Will Planning Canadian married to a US citizen Trust Terms Entitled to all income, including capital gains, to avoid adverse US throw-back rules Discretionary capital entitlement 5 & 5 power Right to demand greater of $5,000 and 5% of trust capital once a year Can be a trustee Subject to an ascertainable standard restriction (health, support, maintenance and education Can t participate in decisions to distribute to themselves above the standard
Cross Border Will Planning US citizen married to a Canadian citizen Tax Planned Will should focus on: Funding of Bypass Trust up to the exemption amount available in the year of death Excess should pass to a Qualified Domestic Trust (QDOT) Election can be made through will or on decedent s estate tax return QDOTs create administrative hassle, but allow for deferral of US estate tax until: Corpus is distributed from the QDOT to the non-us citizen surviving spouse, or Until the death of the surviving spouse
Cross Border Will Planning US citizen married to a Canadian citizen Terms of QDOT Spouse entitled to all income No one other than spouse can take capital during lifetime of spouse At least on trustee must be a US citizen If QDOT > U$2M US financial institution must be trustee, or Provide security (bond or letter of credit Need to assess the benefits of deferral Utilization of foreign tax credits at death from Cdn tax
US Estate Tax Issues for Canadians Canadians are entitled to an exemption from estate tax which is based on the full disclosure of your worldwide assets to your US assets. US estate tax return is required to be filed at death if value is greater than $60,000US If exemption is $1M, generally, no estate tax will be due (at 1 st death if married): If your worldwide estate is less than U$1M (Single) If your worldwide estate is less than U$2M (Married) If exemption is $3.5M, generally, no estate tax will be due (at 1 st death if married): If your worldwide estate is less than U$3.5M (Single) If your worldwide estate is less than U$7M (Married)
Types of Assets Subject to US Estate Tax Examples of property considered within the United States (US situs assets): Real Estate in the US Gold, Jewelry, Art Currency in US safety deposit box Annuity contract payable by US person or company US T-bills Stocks of US corporations (regardless of physical presence of certificates Deposits with US brokers Deposits in mutual funds Canadian pooled income funds or wrap accounts which invest in US securities.
Canadian Dies in 2011 $1M Exemption Single Married Single Married Worldwide Estate $1,000,000 $1,000,000 $2,000,000 $2,000,000 Value of Property $250,000 $250,000 $250,000 $250,000 US Estate Tax $70,800 $70,800 $70,800 $70,800 Pro-Rated Credit ($86,450) ($86,450) ($43,225) ($43,225) Marital Credit ($86,450) ($43,225) Net Estate Tax NIL NIL $27,575 NIL Single Married Single Married Worldwide Estate $4,000,000 $4,000,000 $5,000,000 $5,000,000 Value of Property $250,000 $250,000 $500,000 $500,000 US Estate Tax $70,800 $70,800 $155,800 $155,800 Pro-Rated Credit ($21,613) ($21,613) ($34,580) ($34,580) Marital Credit ($21,613) ($34,580) Net Estate Tax $49,188 $27,575 $121,220 $86,640
Canadian Dies in 2011 $3.5M Exemption Single Married Single Married Worldwide Estate $1,000,000 $1,000,000 $2,000,000 $2,000,000 Value of Property $250,000 $250,000 $250,000 $250,000 US Estate Tax $70,800 $70,800 $70,800 $70,800 Pro-Rated Credit ($363,950) ($363,950) ($181,975) ($181,975) Marital Credit ($363,950) ($181,975) Net Estate Tax NIL NIL NIL NIL Single Married Single Married Worldwide Estate $4,000,000 $4,000,000 $5,000,000 $5,000,000 Value of Property $250,000 $250,000 $500,000 $500,000 US Estate Tax $70,800 $70,800 $155,800 $155,800 Pro-Rated Credit ($90,988) ($90,988) ($145,580) ($145,580) Marital Credit ($90,988) ($145,580) Net Estate Tax NIL NIL $10,220 NIL
Canadians Buying US Real Estate Generally, a trade-off based on results Canadians investing in US real estate typically have to decide to: Pay higher US corporate taxes (to insulate from US estate tax), OR Accept some level of US estate tax risk for current US income tax savings 39% (Corp) vs. 15% (US LTCG Rate) Bear in mind, a Canadian decedent s estate this year will pay NO US estate tax.
How To Hold Title on US Property Personal Ownership Joint Tenancy Tenancy in Common Sole & Separate Structure Corporation, Partnership Trust
Canadians Buying US Real Estate Canadian Corporation (HOLDCO) Increased income taxes Deemed income (shareholder benefit) IRS look through position (IRC 2036 & 2038) Canadian Partnership IRS look through position Tick the box election after death? Business purpose?
Canadians Buying US Real Estate Individual Ownership Personal ownership would make the value subject to U.S. estate tax Canada/U.S. Tax Treaty relief through: Prorated unified credit Marital credit (if married) Do not give property to children during life! U.S. gift tax consequences Canadian income tax consequences
Canadians Buying US Real Estate Joint Ownership Not effective for estate tax purposes, but simplifies transfer at death Be aware of the tracing rule to avoid the full inclusion of the value in the first to die s gross estate Can be effective in smaller estates Prorated credit and marital credit could be utilized at first death Possible gift at time of purchase No unified credit or treaty benefits Split purchase alternative Tenancy-in-common ownership is better
Canadians Buying US Real Estate Canadian Trust Form trust for benefit of spouse and children, fund with cash, and have trust purchase U.S. real property Should not be in settlor s estate as long as use only at spouse s consent and not as a trust beneficiary (IRS could challenge this position) May be less likely to be challenged if children use property frequently as well If spouse dies, settlor should pay rent to use the property Avoids shareholder benefit issue
U.S. Basic Scheme of Taxation Taxed on Worldwide Income U.S. Citizen (no matter where resident or domiciled) U.S. Resident Green Card holder, or Meets Substantial Presence Test Closer Connection Exception Statement (IRS Form 8840) Tax Treaty Rules Foreign Earned Income Exclusion $91,400 for 2009, $91,500 for 2010 Foreign Tax Credits AMT FTC Limitation repealed in October of 2004
U.S. Basic Scheme of Taxation Nonresident aliens (Canadian citizens) In general, taxed only on U.S. source income. Passive income Withholding tax on gross income under Tax Treaty Trade or business income Renting of U.S. real property Regular income tax on net income Capital gains In general, no tax Exception on U.S. real or business interests
U.S. Basic Scheme of Taxation Reach of U.S. income taxes on U.S. residents or citizens: Worldwide income (including some that is tax-free in Canada) Beneficial interests in non-us estates and trusts Anti-deferral regime for passive income of non-us companies Can create fairly onerous tax filing requirements for U.S. residents and citizens in Canada
The Noncompliant American in Canada U.S. tax rules are clear with respect to U.S. income tax residency for U.S. citizens in Canada In many cases, nothing more than the administrative burden of annual filing: Foreign earned income exclusion ($91,500) Foreign tax credits Loss of specific tax treaty elections Penalties for non-compliance
The Noncompliant American in Canada Unofficial position of IRS is to file past 6 years of returns Tax exposure prior to 2005 tax year FTC AMT Limitations Be aware of specific elections that can be taken to reduce tax for married couples (US married to Cdn) IRC 6013(g) Statute of limitations (SOL) is normally 3 years after the date the return was filed SOL never kicks in if a required return is never filed
The Noncompliant American in Canada How they can catch up to you: Becoming beneficiary of U.S. estate or trust Receiving U.S. source investment income Acquiring, renting or selling U.S. real property Choosing to return to the U.S. for employment or retirement Becoming eligible for a U.S. source pension, such as Social Security Sponsoring a family member for U.S. naturalization Just crossing the border The HIRE Act passed on March 18, 2010
The HIRE Act New legislation that increases penalties and IRS powers to enforce the reporting on certain foreign accounts. Effective January 1, 2013, foreign banks must report US persons accounts to the IRS Foreign entities must report US persons ownership or beneficial interests to withholding agents, who then report information to the IRS. Americans in Canada might not be able to hide anymore.
The HIRE Act Foreign Financial Institutions Does the foreign bank have US Account Holders? YES NO Bank agrees to report information about its US account holders to the IRS 30% of all US withholdable payments are withheld not just payments to US account holders Bank complies with IRS regulations and is not subject to reporting requirements
What is a US Account? (Individuals) Any financial account held by one or more US persons or US owned foreign entities. Exception for individuals if the aggregate value of all depository accounts held by each person does not exceed $50,000 However, financial institution may elect to report all accounts without regard to the $50,000 threshold Who is a US person? A citizen or resident of the United States Includes Green Card holders Those meeting the substantial presence test.
What to do? What to do? Well I ll just give up my US citizenship? I ll just give back my US Green Card? I ll just keep my head in the sand in Canada Not that simple anymore. The game has truly changed
U.S. Expatriation under HEART Who is a Covered Expatriate 1. U.S. citizen who renounces U.S. citizenship 2. Long term residents Green Card holder in at least 8 of last 15 years December 31 + 6 years + January 1 = 8 years Objective Test applies to any covered expatriate who: 1. Has an average net income tax of >$145,000 (indexed) in the previous 5 years, or 2. Has a net worth of $2M or more, or 3. Has not filed U.S. tax returns for previous 5 years Tax compliance certification is required Mark to Market Rules A covered expatriate is deemed to sell all worldwide property for FMV upon expatriation and is taxed on net gains exceeding U$627,000 for 2010 (indexed) Irrevocable election can be made
U.S. Expatriation under HEART Covered Expatriate must file IRS Form 1040NR along with Form 8854 Expatriation Information Statement This form now applies to expatriation under AJCA (10 year requirement) and HEART Failure to file penalty of $10,000 Mark-to-market exit tax upon expatriation Tax will be paid on net unrealized gains on worldwide property that exceeds $627,000 (indexed) Special rules apply to certain deferred compensation items, specified tax deferred accounts and interest in non-grantor trusts Tax can be deferred with adequate security to IRS (bond or letters of credit) Gifts and Bequests from Expatriates Tax at the highest rate is imposed to the recipient on gifts that exceed the annual exclusion ($13,000).
THANK-YOU! Terry F. Ritchie, RFP (Canada), CFP (US), EA, TEP Enrolled to Practice before the US Internal Revenue Service 480/722-9414 (US) 403/257-4488 (Canada) terry@transitionfinancial.com, Inc. 20 W. Juniper Avenue, Suite 101 116 Mt. Apex Green SE Gilbert, AZ 85233 www.transitionfinancial.com Calgary AB T2Z 2V5 Pathways Through Life