Estate Planning for the Multinational Family. Steven L. Cantor Cantor & Webb P.A., October 15, 2015

Transcription

1 Estate Planning for the Multinational Family Steven L. Cantor Cantor & Webb P.A., October 15, 2015

2 Introduction U.S. Tax Issues Discussion Points Planning Issues and Strategies U.S. Reporting Requirements Obligations of Financial Advisor/ Planner Common Mistakes Planning for A Foreign Family Member Who Will Become A U.S. Person

3 Resident/Nonresident Domiciliary/Nondomiciliary RESIDENT DOMICILIARY NONRESIDENT NONDOMICILIARY Why a Frown? Why a Smile?

4 Resident For U.S. Income Tax Purposes Green Card Physical presence Substantial presence Election Exceptions: Closer connection Treaty-based position Days not counted

5 Resident For U.S. Estate and Gift Tax Purposes Domicile: means physical presence AND intent to remain indefinitely Facts and circumstances test Treaty-based position

6 U.S. Income Taxation of U.S. Citizens and Residents Income taxation on worldwide income

7 U.S. Income Taxation of Nonresident Aliens Passive Income Fixed or determinable annual or periodic income (i.e. interest, dividends, rents, royalties, etc.) Subject to 30% withholding tax on the gross amount at the time of payment Effectively Connected Income Taxed on a net basis (after deductions) at graduated tax rates as they apply to United States residents Capital Gains United States Real Property Interests Physically present in U.S. for 183 days and U.S. tax home

8 U.S. Ownership of Foreign Corporations Controlled Foreign Corporation ( CFC ) More than 50% of vote or value owned by United States residents Applies only to 10% shareholders - a U.S. person who owns 10% or more of the total combined voting power Passive Foreign Investment Company ( PFIC ) At least 75% of gross income is passive income or average percentage of assets which produce or are held for production of passive income is at least 50% No minimum threshold of ownership

9 U.S. Estate & Gift Tax U.S. Citizens and Residents Taxed on worldwide assets, including certain interests in trust

10 U.S. Gift Tax - Nonresident Aliens Nonresident aliens are subject to gift tax on gifts of real property and tangible personal property situated within the United States. Gifts of intangible personal property are exempt Cash is tangible personal property Wires can be problematic Jointly held real estate is a gift tax trap for the unwary

11 Income Taxation of Trusts

12 Domestic Trust vs. Foreign Trust Domestic Trust: Court Test: A court within the U.S. is able to exercise primary supervision over the administration of the trust; AND Control Test: One or more U.S. persons have the authority to control all substantial decisions of the trust. Foreign Trust: all other trusts

13 Income Taxation of Trusts and Beneficiaries Grantor Trust Person treated as owner of assets is subject to U.S. income tax on current income (grantor trust does not have accumulated income) Non-Grantor Trust Trust subject to U.S. income tax except that beneficiaries are taxed on receipt of distributions of income and income required to be distributed (whether or not actually distributed) Foreign vs. Domestic Accumulation Distributions from foreign trust subject to throwback rules U.S. income tax and interest charge Accumulated income loses character Attribution of CFCs and PFICs

14 Examples

15 Planning Issues and Strategies

16 Funding of Trust Transfer of U.S. situs property Transfer of foreign situs property

17 Gifts During Settlor s Lifetime Transfers from foreign corporations or foreign partnerships Transfers from trust Transfers made by settlor personally

18 Step-Up in Basis Benefit How to do it?

19 Step-Up in Basis for Revocable Trusts Catch-all provision does not apply to foreign situs property acquired from NRNC Step-up in basis applies to property transferred by the decedent during his lifetime in trust to pay the income for life to or on the direction of the decedent, with the right reserved to the decedent at all times prior to his death to revoke the trust. Issues related to income Issues related to incapacity of decedent

20 Step-Up in Basis for Irrevocable Trusts Step-up in basis also applies, with respect to decedents dying after December 31, 1951, to property transferred by the decedent during his lifetime in trust to pay the income for life to or on the direction of the decedent, with the right reserved to the decedent at all times prior to his death to make any change in the enjoyment thereof through the exercise of a power to alter, amend, or terminate the trust. Issues of qualifying trust as a grantor trust when only grantor or spouse may be a beneficiary

21 Dealing with Foreign Corporations Basis Retained earnings CFC and PFIC rules

22 Incapacity of the Settlor Power to revoke or otherwise revest Dispositive provisions Pitfalls to avoid

23 Jointly-Settled Trusts General Power of Appointment for Surviving Spouse: Power must be exercised to transfer to another trust Surviving spouse must have a power over the new trust to be treated as an owner Distribution and recontribution

24 Typical method Accountings U.S. standards

25 Community Property U.S. spouse treated as owning or transferring half?

26 United States Reporting Requirements

27 FinCen Form 114 (June 30) IRS Form 3520 Important Forms IRS Form 3520-A (March 15) Foreign Grantor/Nongrantor Trust Beneficiary Statement IRS Form 5471 IRS Form 8621 IRS Form 8938 FATCA Compliance

28 Obligations of Financial Advisor Planning with PFICs Elections Exit Strategy

29 Common Mistakes Failure to spot a U.S. beneficiary Unrestricted power to remove and replace the trustee Failure to file timely reporting requirements Failure to maintain companies properly Failure to recognize and plan for the CFC or PFIC issues Transfer from account owned by foreign corporation or foreign partnership Failure to treat certain loans or property use as distributions Unintentionally creating a nongrantor trust Failure to take timely advice

30 Planning for A Foreign Family Member Who Will Become A U.S. Person

31 Objectives Minimize United States and Home Country taxes Consult with local counsel Consider interim residence Least aggregate amount of taxes in both countries and avoid double taxation to the greatest possible extent Coordinate tax and estate plan with non-tax issues Family relationships Cash flow Access to assets Understand United States financial disclosure and other relevant laws Maximize protection from creditors Address spousal rights, if any Address forced heirship rights, if any

32 Accelerate Income and Gains Income and gains realized prior to becoming a resident will not be subject to United States income tax if not ordinarily subject to such tax Identify key assets and income sources Determine expected time of ownership Difficulty in determining historic cost Appreciated marketable securities Rents and royalties Review existing life insurance and deferred compensation products/plans

33 Defer Deductions and Losses Sale of assets having built-in losses should be deferred until after becoming a resident Deductible expenses should be paid after becoming a resident Mortgage payments Charitable contributions

34 U.S. Pre-Immigration Planning Basis Step-Up Step up the basis of assets which have large built-in gains Check-the-Box Election technique for existing companies Additional gain recognition techniques

35 Gifts in Trust May avoid inclusion in donor s gross estate (depends upon powers retained or given, i.e., power to revoke or power of appointment) Donor may not be subject to tax on income from assets (i.e., if irrevocable domestic trust or foreign trust, but no U.S. beneficiaries) Not subject to United States gift tax if assets transferred to trust are not situated in the United States and donor not domiciled in the United States at time of gift

36 Gifts in Trust (Continued) Grantor can be a discretionary beneficiary of irrevocable trust Foreign vs. Domestic trusts Citizenship and residence of beneficiaries is important Reporting requirements Ensure gift is complete Dominion and control Claim of creditors

37 Action Items Make sure foreign trusts are drafted, funded and administered properly Maintain and respect structures owned by trusts as well Help foreign families spot U.S. beneficiaries to ensure accurate reporting Help foreign families identify estate planning opportunities Help foreign families identify pre-immigration planning opportunities Help foreign families plan for foreign grantor Review FATCA Compliance Plan the death and incapacity of

38 CAVEAT The information contained herein is provided for informational purposes only and is not intended to constitute the rendition of legal advice. No person should act upon this information without obtaining the opinion of United States legal counsel specializing in the area of international taxation.

39 Contact Information Steven L. Cantor Cantor & Webb P.A Brickell Bay Drive Suite 3112, Miami, FL Phone: (305) Fax: (305) Website: