Estate Planning for the Multinational Family Steven L. Cantor Cantor & Webb P.A., October 15, 2015
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
Resident/Nonresident Domiciliary/Nondomiciliary RESIDENT DOMICILIARY NONRESIDENT NONDOMICILIARY Why a Frown? Why a Smile?
Resident For U.S. Income Tax Purposes Green Card Physical presence Substantial presence Election Exceptions: Closer connection Treaty-based position Days not counted
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
U.S. Income Taxation of U.S. Citizens and Residents Income taxation on worldwide income
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
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
U.S. Estate & Gift Tax U.S. Citizens and Residents Taxed on worldwide assets, including certain interests in trust
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
Income Taxation of Trusts
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
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
Examples
Planning Issues and Strategies
Funding of Trust Transfer of U.S. situs property Transfer of foreign situs property
Gifts During Settlor s Lifetime Transfers from foreign corporations or foreign partnerships Transfers from trust Transfers made by settlor personally
Step-Up in Basis Benefit How to do it?
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
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
Dealing with Foreign Corporations Basis Retained earnings CFC and PFIC rules
Incapacity of the Settlor Power to revoke or otherwise revest Dispositive provisions Pitfalls to avoid
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
Typical method Accountings U.S. standards
Community Property U.S. spouse treated as owning or transferring half?
United States Reporting Requirements
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
Obligations of Financial Advisor Planning with PFICs Elections Exit Strategy
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
Planning for A Foreign Family Member Who Will Become A U.S. Person
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
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
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
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
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
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
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
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.
Contact Information Steven L. Cantor Cantor & Webb P.A. 1001 Brickell Bay Drive Suite 3112, Miami, FL 33131 Phone: (305) 374-3886 Fax: (305) 371-4564 Email: steve@cantorwebb.com Website: www.cantorwebb.com