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Private Client 2020 Private Client 2020 A practical cross-border insight into private client work 9th Edition Featuring contributions from: Aird & Berlis LLP Holland & Knight LLP Rovsing & Gammeljord Arcagna B.V. Jonathan Mok Legal in Association with Seward & Kissel LLP Arendt & Medernach Charles Russell Speechlys LLP Society of Trust and Estate Practitioners (STEP) AZB & Partners Katten Muchin Rosenman LLP Teresa Patrício & Associados – BDB Pitmans LLP Loconte & Partners Sociedade de Advogados SP, RL Bryan Cave Leighton Paisner LLP Macfarlanes LLP Tirard, Naudin, Société d’avocats Cases & Lacambra Matheson Triay & Triay Corrieri Cilia Miller Thomson LLP Utumi Advogados Dionysiou & Partners LLC Mori Hamada & Matsumoto Walder Wyss Ltd DQ Advocates Limited MWE China Law Offices Walkers Griffiths & Partners / Coriats Trust Ospelt & Partner Attorneys at Law Ltd. Withersworldwide Company Limited Ozog Tomczykowski WongPartnership LLP Higgs & Johnson P+P Pöllath + Partners Zepos & Yannopoulos ISBN 978-1-83918-021-7 ISSN 2048-6863 Published by 59 Tanner Street London SE1 3PL United Kingdom +44 207 367 0720 Private Client 2020 [email protected] www.iclg.com Ninth Edition Group Publisher Rory Smith Publisher Paul Regan Contributing editors: Senior Editors Suzie Levy Caroline Oakley Jonathan Conder & Robin Vos Rachel Williams Macfarlanes LLP Creative Director Fraser Allan Printed by Ashford Colour Press Ltd. Cover image iStockphoto ©2019-2020 Global Legal Group Limited. All rights reserved. Unauthorised reproduction by any means, Strategic partners digital or analogue, in whole or in part, is strictly forbidden. Disclaimer This publication is for general information purposes only. It does not purport to provide comprehen- sive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Table of Contents Expert Chapters UK Residential Property – Essential Points to Consider for Global Investors 1 Jon Conder & Clare Wilson, Macfarlanes LLP More Winds of Change 6 Helen Ratcliffe & Lara Mardell, BDB Pitmans LLP Pre-Immigration Planning Considerations for the HNW Client – Think Before You Leap 12 Joshua S. Rubenstein, Katten Muchin Rosenman LLP The American/British Overview of Pre-Nuptial Agreements 19 Elizabeth Hicks, Alexie Bonavia, Karin Barkhorn & Steven Dawson, Bryan Cave Leighton Paisner LLP Navigating Complex US Immigration Laws: US Visas & Taxation 23 Mark E. Haranzo, Holland & Knight LLP & Reaz H. Jafri, Withersworldwide Challenges at Home and Abroad: Estate Planning for Blended Families in Canada 28 Rachel L. Blumenfeld & Marni Pernica, Aird & Berlis LLP STEP’s Policy Focus 33 Emily Deane, Society of Trust and Estate Practitioners (STEP) Q&A Chapters Andorra Greece 39 Cases & Lacambra: Jose María Alfin, Marc Urgell & 126 Zepos & Yannopoulos: Costas Kallideris & Júlia Pons Anna Paraskeva Bahamas Guernsey 47 Higgs & Johnson: Heather L. Thompson & 132 Walkers: Rupert Morris, Rajah Abusrewil & Kamala M. Richardson Nitrisha Doorasamy Brazil Hong Kong 54 Utumi Advogados: Ana Claudia Akie Utumi 138 Jonathan Mok Legal in Association with Charles Russell Speechlys LLP: Jonathan Mok, Jessica British Virgin Islands Leung & King Tan 61 Walkers: David Pytches India Canada 145 AZB & Partners: Anand Shah & Khushboo Damakia 67 Miller Thomson LLP: Wendi P. Crowe, Dwight Dee, Nathalie Marchand & Rahul Sharma Ireland 154 Matheson: John Gill & Lydia McCormack Cayman Islands 76 Walkers: David Pytches Isle of Man 163 DQ Advocates Limited: Donna Matthews & China Tara Cubbon 82 MWE China Law Offices: Jacqueline Z. Cai & Robbie H. R. Chen Italy 170 Loconte & Partners: Stefano Loconte & Cyprus Angela Cordasco 88 Dionysiou & Partners LLC: Maria Rousia & Anastasios Tsanakas Japan 177 Mori Hamada & Matsumoto: Atsushi Oishi & Denmark Makoto Sakai 96 Rovsing & Gammeljord: Mette Sheraz Rovsing & Troels Rovsing Koch Jersey 184 Walkers: Robert Dobbyn & Sevyn Kalsi France 102 Tirard, Naudin, Société d’avocats: Maryse Naudin Liechtenstein 190 Ospelt & Partner Attorneys at Law Ltd.: Alexander Germany Ospelt & Sascha Brunner 112 P+P Pöllath + Partners: Dr. Andreas Richter & Dr. Katharina Hemmen Luxembourg 199 Arendt & Medernach: Eric Fort, Marianne Rau, Gibraltar Ellen Brullard & Elise Nakach 120 Triay & Triay: Charles Simpson Private Client 2020 Table of Contents Malta Spain 240 207 Corrieri Cilia: Dr. Silvio Cilia & Dr. Louella Grech Cases & Lacambra: Ernesto Lacambra & Cristina Villanova Netherlands 214 Arcagna B.V.: Nathalie Idsinga & Arnold van der Switzerland 247 Smeede Walder Wyss Ltd: Philippe Pulfer & Olivier Sigg Turks and Caicos Islands Poland 257 220 Ozog Tomczykowski: Paweł Tomczykowski & Griffiths & Partners / Coriats Trust Company Katarzyna Karpiuk Limited: David Stewart & Conrad Griffiths QC United Kingdom Portugal 262 226 Teresa Patrício & Associados – Sociedade de Macfarlanes LLP: Jon Conder & Robin Vos Advogados SP, RL: Teresa Patrício da Silva & Vicky Rodrigues USA 279 Seward & Kissel LLP: Scott M. Sambur & Singapore David E. Stutzman 234 WongPartnership LLP: Sim Bock Eng & Tan Shao Tong Chapter 12 67 Canada Canada Wendi P. Nathalie Crowe Marchand Dwight Rahul Miller Thomson LLP Dee Sharma 1 Connection Factors of Canada for the entire calendar year. In certain cases, a tax treaty between Canada and another country will be relevant to the determination of an individual’s tax residence. 1.1 To what extent is domicile or habitual residence relevant in determining liability to taxation in your jurisdiction? 1.5 To what extent is nationality relevant in determining liability to taxation in your jurisdiction? Domicile is generally not relevant to the determination of an individual’s Canadian tax liability. Rather, the rationale for On its own, nationality is irrelevant in determining whether imposing Canadian income taxes on individuals is based on a person is liable to pay taxes in Canada. As noted in ques- the concept of tax residence in Canada (domicile and habitual tion 1.3 above, only residence is relevant in determining a residence, however, may be relevant in the context of Wills and person’s annual income tax liability. However, if a taxpayer is family law matters). deemed to be resident in two countries, one of which is Canada, “tie-breaker rules” under international tax treaties may apply to determine the taxpayer’s country of residence. Although not a 1.2 If domicile or habitual residence is relevant, how is primary consideration, nationality may be a factor that is consid- it defined for taxation purposes? ered when applying such rules. “Domicile” is not defined under the Income Tax Act (Canada) (the “Act”) and the concept of habitual residence is only relevant insofar 1.6 If nationality is relevant, how is it defined for taxation purposes? as an individual is resident in Canada for tax purposes. This latter concept is further discussed in questions 1.3 and 1.4, below. Further to question 1.5, nationality is not relevant to the deter- mination of a person’s liability to pay Canadian income taxes 1.3 To what extent is residence relevant in determining and is not defined in the Act. liability to taxation in your jurisdiction? As noted, residence forms the basis for determining an individ- 1.7 What other connecting factors (if any) are relevant in determining a person’s liability to tax in your ual’s liability to pay income taxes in Canada. jurisdiction? 1.4 If residence is relevant, how is it defined for As residence forms the basis for determining whether a person taxation purposes? will be liable to pay tax in Canada, the general connecting factors are those which would be applied to determine Canadian Individuals are considered to be residents of Canada if they meet tax residence, as outlined in question 1.4, above. the common law test for Canadian tax residency. The most important common law consideration is whether individuals 2 General Taxation Regime maintain residential ties to Canada. A dwelling place or places in Canada and a spouse and/or dependants who remain in Canada are indicative of residential ties to the country. Individuals who 2.1 What gift, estate or wealth taxes apply that are relevant to persons becoming established in your maintain a significant amount of personal property in Canada, jurisdiction? who keep a Canadian driver’s licence and maintain social and economic ties to the country may also be considered to have residential ties to Canada, but each case will turn on its own There are no estate, gift and/or wealth taxes in Canada, only facts and circumstances. Where an individual is determined not provincial probate taxes and capital gains taxes, as outlined in to be factually residing in Canada pursuant to the common law question 3.1, below. When capital assets are transferred by way test, he or she may still be deemed to be a resident of Canada of gift, any accrued gain generally becomes taxable to the donor pursuant to the Act. For instance, under subs. 250(1) of the Act, of the gift, with some exceptions. On death, the deceased is an individual sojourning in Canada for a total period of 183 days deemed to have disposed of all capital assets and, again with or more during a calendar year will be deemed to be a resident certain significant exceptions, the gain on such deemed disposi- tion is taxable to him or her. Private Client 2020 © Published and reproduced with kind permission by Global Legal Group Ltd, London 68 Canada 2.2 How and to what extent are persons who become GST applicable to the goods. These goods are also outlined in the established in your jurisdiction liable to income and list of tariff provisions set out in the schedule to the Customs Tariff. capital gains tax? 2.5 Are there any anti-avoidance taxation provisions Under s. 3 of the Act, both federal and provincial income taxes that apply to the offshore arrangements of persons who are payable by all residents of Canada on their total worldwide have become established in your jurisdiction? income, from all recognised taxable sources.
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