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Advising the Foreign Private Client on Fundamentals of Us Estate, Gift And STILL THINKING OF COMING TO AMERICA? ADVISING THE FOREIGN PRIVATE CLIENT ON FUNDAMENTALS OF U.S. ESTATE, GIFT AND GST TAX PLANNING By M. Katharine Davidson, Esq. Henderson, Caverly, Pum & Charney, LLP 12750 High Bluff Drive, Suite 300 San Diego, California 13th Annual International Estate Planning Institute NYSB and STEP New York March 23, 2017 New York, New York © 2017 M. Katharine Davidson TABLE OF CONTENTS Page I. WHO IS SUBJECT TO TAXATION BY THE U.S.? ........................................................1 A. Reach of U.S. Citizenship. .......................................................................................1 B. U.S. Tax Residency..................................................................................................2 C. U.S. Transfer Tax Treatment. ..................................................................................2 1. Domicile. ......................................................................................................3 2. Estate and Gift Tax Rules for NRAs............................................................4 3. Use Of Entities. ............................................................................................8 D. Problems Associated with Noncitizen Spouses. ......................................................8 1. Lifetime Transfers. .......................................................................................8 2. Transfers Upon Death. .................................................................................9 3. Problems with Joint Property Interests Held by Spouses. .........................15 II. U.S. TRANSFER TAX TREATMENT OF NONRESIDENT ALIENS. .........................16 A. U.S. Estate Tax. .....................................................................................................16 B. Gift Tax. .................................................................................................................17 III. FOREIGN TRUSTS. .........................................................................................................18 A. Classification as a Foreign Trust............................................................................18 1. Court Test...................................................................................................18 2. The Control Test. .......................................................................................18 B. Reversing Unintended Loss of Domestic Status. ...................................................19 C. Taxation of Foreign Trusts.....................................................................................19 1. Foreign Grantor Trusts. ..............................................................................19 2. Foreign Nongrantor Trusts. ........................................................................19 D. Foreign Trusts with U.S. Grantor under FATCA. .................................................20 1. Grantor Trust Status. ..................................................................................20 E. Loans From Foreign Trusts. ...................................................................................21 F. Use of Foreign Trust Property. ..............................................................................21 G. Reporting Obligations for Foreign Trusts. .............................................................21 1. Reportable Events. .....................................................................................21 2. U.S. Beneficiaries. .....................................................................................22 3. Annual Reporting. ......................................................................................22 4. Penalties. ....................................................................................................22 i TABLE OF CONTENTS Page H. Pre-Immigration Trusts. .........................................................................................22 IV. INDIRECT TRANSFERS FROM FOREIGN ENTITIES. ...............................................23 V. PRE-IMMIGRATION PLANNING CONSIDERATIONS. .............................................24 A. Selected Income Tax Minimization Techniques....................................................25 1. Timing Visits to the United States and Interim Residence in Third Country. .....................................................................................................25 2. Basis Step-up. ............................................................................................25 3. Accelerate Income. ....................................................................................25 4. Retain Loss Property and Postpone Deductions. .......................................25 5. Shift Income to Family Members. .............................................................25 6. Foreign Transfer of Property. ....................................................................25 7. Corporate Issues. ........................................................................................25 8. Currency Issues. .........................................................................................26 9. Evaluation of Trusts. ..................................................................................26 B. Selected Potential Transfer Tax Techniques. .........................................................26 1. Gifts............................................................................................................26 2. Gifts Between Spouses. .............................................................................26 3. Powers of Appointment. ............................................................................27 4. Joint Tenancy Property. .............................................................................27 5. Any properties held by an NRA in joint tenancy with a spouse should be severed. ......................................................................................27 VI. PLANNING FOR RETENTION OF NONRESIDENT AND NON- DOMICILIARY STATUS.................................................................................................27 VII. SUCCESSION TAX APPLICABLE TO GIFTS AND BEQUESTS FROM COVERED EXPATRIATES. ............................................................................................27 A. Tax Treatment Under Section 2801. ......................................................................28 1. Definition of Covered Gift or Bequest.......................................................28 2. Taxation of Covered Gift or Bequest .........................................................28 B. Special Rules for Domestic and Foreign Trusts under Section 2801 ....................28 C. Form 708 ................................................................................................................29 D. Penalties .................................................................................................................29 ii STILL THINKING OF COMING TO AMERICA? ADVISING THE FOREIGN PRIVATE CLIENT ON FUNDAMENTALS OF U.S. ESTATE, GIFT AND GST TAX PLANNING By M. Katharine Davidson, Esq. Henderson, Caverly, Pum & Charney, LLP 12750 High Bluff Drive, Suite 300 San Diego, California The United States tax rules have become more and more complex over the years, especially with respect to foreign persons who come to the United States to live or work, whether temporarily or permanently, or who otherwise have ties to the United States. More and more foreign persons are looking to the United States as a safe place to invest. Repeated changes in the United States tax laws make the task of advising a foreign client all the more daunting. Perhaps even more imposing is the string of new compliance rules that have been enacted by the United States in recent years that have dramatically increased the costs of compliance and greatly expanded the required disclosures. The United States, as well as other governments, has increased monitoring and scrutiny of cross- border transactions and have put “real teeth” into the enforcement of international and financial compliance. These efforts have been successful in identifying and prosecuting illicit offshore activities and continue to make headlines in the press. Individuals involved in cross-border activities must stay attuned to these continuing developments with a clear understanding of the rules as they develop and the penalties that may result from inadequate or improper planning and reporting. Moreover, the United States advisor to the foreign client must work with knowledgeable local counsel to integrate any non-U.S. tax and transfer planning with U.S. advice. The scope of this paper is limited to planning for U.S. transfer taxes for foreign persons; it does not address applicable U.S. income taxes. I. WHO IS SUBJECT TO TAXATION BY THE U.S.? A. Reach of U.S. Citizenship. The United States is one of a very few countries in the world that imposes its tax (both on transfers and on income and gains) on the basis of U.S. citizenship alone. This means that if an individual is a U.S. citizen, he is fully subject to U.S. income tax on a worldwide basis, as well as gift, estate and generation-skipping transfer (“GST”) tax on a worldwide basis. Thus, any transfer of property made by a U.S. citizen during his lifetime is potentially subject to U.S. gift tax; all of the assets forming part of his estate at his death under U.S. tax laws are potentially subject to U.S. estate tax; and any transfers he makes during life or
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