U.S. Estate and Gift Tax Traps for Non-U.S. Citizens

Posted by admin on Friday, January 31st, 2014 at 5:05 pm    

In addition to taxing income, the United States imposes a tax on the transfer of assets from one person to another and a lack of planning can lead to financial disaster. The rules are complex and differ depending upon whether the gift is made during the giftor’s lifetime or at death. The tax is imposed on citizens and non-citizens alike.

Planning involves understanding the taxes, what transfers are subject to tax, and upon what typesof property they are imposed.

Type of Property
Which taxes apply to a transfer of property depends upon whether it is classified as intangibleproperty or property not intangible property (referred to as tangible property in this summary) and whether it’s a gift tax or estate tax.

Gift Tax
Under Section 2501(a)(1), a tax is imposed on the transfer of property by gift by an individual,whether such person is a resident or non-resident. An exception to this rule is that a non-resident can transfer intangible property without a gift tax.

We must first understand what is considered tangible property. Tangible property includes: real property within the U.S., tangible personal property such as artwork, jewelry, furniture, and collectibles situated within the U.S., and U.S. or foreign currency or cash within the U.S.

Intangible property is property not included above regardless of where the property is located. This means stock in U.S. corporations, interests in partnerships or LLCs, mutual funds, bank and brokerage accounts, fiduciary accounts and life insurance policies, even if located in the U.S., are considered intangible property for purposes of gift tax. And are therefore not subject to tax on lifetime gift transfers.

Estate Tax
The estate tax is imposed upon all assets of U.S. citizens and non-citizen residents regardless of the type or location of the property.

A non-citizen/non-resident must pay an estate tax on all U.S. situs assets, including: tangibleproperty such as cash located in the U.S., shares of U.S. corporations, the value of an annuity or life insurance policy issued by a U.S. insurance company on the life of another, and otherintangible property if the property is used in conjunction with U.S. trade or a U.S. based business,including the bank or brokerage accounts of such business or trade if on deposit (even with a branch of a foreign bank) in the U.S.

For gift tax purposes, an individual is a resident if that person is domiciled in the U.S. at the time of the gift. For estate tax purposes, a person is a resident decedent if the person is domiciled in the U.S. at the time of his or her death.
As defined by the U.S. Treasury Regulations, “A person acquires a domicile in a place by living there, for even a brief period of time, with no definite present intention of later removing therefrom. Residence without the requisite intention to remain indefinitely will not suffice to constitute domicile, nor will intention to change domicile effect such a change unless accompanied by actual removal.”

In practice, domicile is a factual issue based on various factors, none of which are determinative.These factors include length of time spent in the U.S. and abroad, size, cost and nature of the decedent’s houses or other residence (whether owned or rented), location of the decedent’s family and close friends, visa status, location of decedent’s business interests and voting records, anddeclaration of residence in one’s wills, trusts, deeds, etc.

Accordingly, an individual who maintains a residence in the U.S. might not be domiciled there for transfer tax purposes.

Tax Treaties
Many countries have agreed with other countries to mitigate the effects of double taxation. Tax treaties may cover income taxes, inheritance taxes, value added taxes, or other taxes. The provisions vary widely and should be consulted often.

Almost without fail in the U.S., where there is a tax there is an exemption. The same is true of the gift and estate tax. Absent a tax treaty to the contrary, the exemptions are summarized below.

Exemptions for U.S. Citizens and Non-Citizens Who are Domiciliaries of the U.S.
U.S. citizens and domiciliaries have the following exemptions or exceptions to transfer taxes:

  1. A lifetime exemption of $5,340,000 (adjusted annually for inflation);
  2. An annual exemption of $14,000 to any person;
  3. An annual exemption of $145,000 to a spouse who is not a U.S. citizen; and
  4. An unlimited amount may be transferred to a spouse who is also a U.S. citizen during life or at death.

Non U.S. Citizen/Non-Domiciliary of the U.S.
Non-citizens who live in the U.S., but who are not considered a domiciliary, are subject to U.S. estate and gift tax only on property situated in the U.S. The following summarizes the exceptions and exemptions:

  1. Exempt the first $60,000 of U.S. situs assets at death;
  2. Gift an unlimited amount of non-U.S. assets, including stock in U.S. companies;
  3. Gift up to $14,000 per person annually of U.S. assets (gift splitting not permitted);
  4. Gift up to $145,000 to a non-resident spouse of U.S. assets; and
  5. Transfer during life or at death an unlimited amount to a spouse who is a U.S. citizen.

The type and timing of transfers significantly impacts the amount of tax imposed on transfers.

Non-U.S. citizens/non-residents and those married to non-U.S. citizens, whether residing in or outside of the U.S., should seek education in order to minimize an exposure to transfer tax both now and upon their death. Consulting with an advisor who works with international clients can help mitigate these and other issues.

Should You Dump Your Family’s Trust

Posted by admin on Friday, January 31st, 2014 at 4:59 pm    

Many revocable trusts contain by-pass planning. This type of plan captures the assets owned by, in whole or part, a deceased spouse in a trust for the survivor instead of simply giving the survivorthe assets outright.

One primary purpose of this type of planning is to preserve the federal and tax exemptions that would otherwise be forfeited. These trusts are referred to in many ways, including Family Trusts, Credit Shelter Trusts, and Residuary Trusts.

These trusts incur millions of dollars each year complying with tax and other reporting requirements and often result in a higher income tax bill than if the spouse owned the assets outright.

Now that only an estimated .14 percent of estates will owe a tax, many couples and surviving spouses are asking the questions, “Should I eliminate this type of planning in my revocable trust?Can an existing Family Trust be terminated?”

Most states allow a trust to terminate if “the material purpose of the trust no longer exists.” For many families, the only purpose of the by-pass trust is to reduce or eliminate federal estate taxes. If the surviving spouse has an estate of less than $5,340,000, even after adding the amount of the by-pass trust, the trust may no longer serving its original purpose.

Should it be terminated?

Arguments for Termination or Elimination
If all parties agree, including the trustee and the current and future beneficiaries, the trust could be terminated before the death of the spouse. The advantages include:

  • There will be no annual tax return to file;
  • The trustee will no longer be obligated to comply with administrative rules such as sending notices;
  • The assets will get a step-up in basis at the spouse’s death (assets in a by-pass trust are not stepped up).

Reasons Not To Terminate
The reasons to terminate are compelling but there are also solid reasons not to terminate a by-pass trust, including:

  • The spouse could decide to give the assets to someone else;
  • If the spouse is married (or later remarries), these assets are subject to the marital rights of the new spouse if not waived in writing;
  • A typical by-pass trust is creditor protected; and
  • If all of the assets are distributed to the surviving spouse, the other trust beneficiaries (current and/or future) may be making a taxable gift to the spouse.

Dumping the Family Trust may work for some families and may save both administrative costs and income taxes, but all of the factors should be taken into consideration before doing so. You should consult with an advisor for more information.

Asset Ownership: It Really Does Matter Whose Name is on the Title

Posted by admin on Thursday, January 2nd, 2014 at 5:35 pm    

Historically, estate planning centered on wealth transfer. But an increased exemption and portability of the federal estate tax exemption, coupled with laws that capped damages in injury cases being struck down across the country, has caused many families and their advisors to look at wealth preservation.

Wealth preservation is not just for the wealthy or for people in high risk professions such as doctors and lawyers. Consider the laws of California, Florida and other states that make parents financially liable for motor vehicle injuries caused by a minor child, or the laws that make you responsible for a fall on your sidewalk.

Wealth preservation, or “asset protection” as it’s commonly called, consists of three primary strategies: asset ownership, insurance and trusts. In this segment we’ll focus on asset ownership.

Asset Ownership
Creditors’ rights differ by state, but in general how you own your property affects a creditor’s ability to seize or garnish it. Generally, if you own property with another party, some or all of the ownership may be protected from your creditors.

Jointly Owned Property
There are three ways to own both real and personal property jointly with another: tenants in common, joint tenants with right of survivorship, and tenancy by the entirety.

Tenants in Common
There is little or no asset protection under this form of ownership. Each tenant owns an equal, divisible interest. Any co-tenant or a creditor can force a sale of the property and a creditor can seize the property or the proceeds of a sale.

Joint Tenants/Joint Tenants with Right of Survivorship
Each joint tenant owns a divisible interest in the whole property. As with tenants in common, a creditor of a joint tenant may execute upon the proportionate interest owned by that tenant. Generally, unless stated otherwise, the percentage of ownership is proportionate to the number of owners. In some states if a joint owner can prove that he contributed all of the funds, a creditor has no claim.

Side Note: Take care before creating a joint account. Not having a legal claim doesn’t stop a creditor from garnishing an asset and sometimes seizing the whole thing. For example, if you add your son’s name to your bank account so he can “pay the bills” if you are unable to or to avoid probate without a trust, and your son owes child support to the state and the state finds the account and sends a garnishment order to the bank, your bank is obligated to follow the directive. Your account will be frozen and may even be sent to the state agency forcing you to fight the government to get it back.

Tenancy by the Entirety
Tenancy by the entirety is a special form of joint ownership, available only to husband and wife and only in about 13 states. Unlike joint tenancy or tenancy in common, each tenant owns an interest in the entire property, not just a proportionate share. Consequently, a creditor of only one spouse cannot execute on any part of the property. One issue to note is that although this protection is guaranteed by statute where available, if your spouse dies or you divorce, you no longer qualify for this type of ownership.

Joint Trusts
Some spouses opt to create a joint revocable trust. With a joint trust, both spouses create the trust and transfer assets to the trust. Only a handful of states have addressed the issue of whether property held in a joint revocable trust has the same creditor protected status as tenancy by the entirety.

For example, in Virginia, tenancy by the entirety is extended to a joint trust or the separate trusts created by husband and wife. In Florida, case law suggests that this protection may be available, but it is not definite. In Missouri, spouses can use a “qualified spousal trust,” statutorily created for this purpose.

Self-Settled Trusts
A self-settled trust, also called a domestic asset protection trust, is an irrevocable trust designed to protect assets from the creditors of the settlor even though he or she remains a beneficiary of the trust. Historically, public policy has prohibited these types of trusts, but at least 12 states have adopted a form of a self-settled trust (available to residents and non-residents alike). The IRS recently examined such a trust and found that it could also shift income tax liability from the grantor to the trust (a valuable shift for grantors in high tax states).

Understanding how the title or ownership of your assets affects the rights of your creditors and those of your joint owner is a vital part of wealth preservation. You should consult a knowledgeable attorney and financial advisor to assist you with this important part of your wealth strategy.

WorthPointe’s Chief Investment Officer Christopher Van Slyke discusses how high fees kill returns in managed futures with Bloomberg TV

Posted by admin on Friday, November 8th, 2013 at 10:03 pm    

Hidden Fees Swallow Gains in Managed Futures Funds

Warren Buffett Discusses Common Investor Mistakes

Posted by admin on Wednesday, November 6th, 2013 at 3:43 pm    

In a recent article for USA Today, investor Warren Buffett shared what he feels are the three biggest mistakes that investors make. To read this list, and the article in full, click here.

Should you make your year-end charitable gifts from your IRA?

Posted by admin on Friday, November 1st, 2013 at 9:15 pm    

by Charles L Stanley CFP® ChFC® AIF®

CharitableGivingWhen entering retirement, having a big, fat IRA feels good. It provides a certain sense of security —and that’s a good thing. However, when you consider estate planning for a family with a taxable estate in excess of $5.25 million, that big, fat IRA is a horrible asset to own. Why? Because at the death of the IRA owner, the IRA will be subject to both income tax and estate tax. Depending on the details of the case, it’s entirely possible to lose 75% or so of the value of the IRA to taxes. So, what should you do to avoid this extreme taxation?

Give it away

Actually the give it away strategy is only fully effective if the owner is already planning to make charitable gifts anyway. It’s just much more efficient to make those gifts directly from the IRA to your chosen charity [501(c)(3) organization]. Making charitable gifts directly from an IRA avoids income tax on the distribution and reduces the taxable estate. This reduces the after-tax cost of the gift by quite a margin.

Professor Fama’s Nobel Prize, WorthPointe, and You

Posted by admin on Monday, October 28th, 2013 at 4:10 pm    

by Scott O’Brien, CFP®

Director of Wealth Management

wpwmblogWe are thrilled to share news that University of Chicago Professor and Dimensional Fund Advisors board member Eugene F. Fama has been named a co-recipient of the 2013 Nobel Prize in Economic Sciences, in recognition of his contributions to the “empirical analysis of asset prices.”

It’s about time we had some wonderful investment news to celebrate! It’s also about time that Professor Fama has been tapped to receive one of the highest academic honors available. Dr. Fama’s groundbreaking work in capital market theory has unquestionably enhanced our ability to assist each of our clients in achieving their personal long-term investment goals – whether the contribution has been realized or unsung.


The Portfolio Assassin: Undisclosed Fees

Posted by admin on Wednesday, October 16th, 2013 at 4:48 pm    

After a great meal, we generously tip the waiter. The dentist soothes our toothache and we happily pay for the relief. We don’t mind paying for services when the benefits justify the cost.

Similarly, we don’t mind paying investment fees if performance warrants the expense. However, there are two reasons why brokerage fees are rarely defensible:

  • Historical evidence indicates that the markets are so efficient, beating a simple index fund is next to impossible over time.
  • The brokerage industry is so adept at camouflaging their fees most investors have no idea what they are paying for portfolio management.

It’s logical to conclude that reducing expenses will increase returns. But how do you do that when most of the expenses are buried deeper than an Egyptian Pharaoh?


Congratulations to Prof. Eugene Fama for his Nobel Prize Win

Posted by admin on Monday, October 14th, 2013 at 9:12 pm    

wpwm_ProfFamaAll of us here at WorthPointe wish to congratulate Prof. Eugene Fama for winning the Nobel Prize in Economics. Most of our clients won’t remember us mentioning Prof. Fama’s work as we described the theoretical underpinning of our investment philosophy but, Eugene’s ideas (including the efficient market hypothesis and small, value, profitability stock premiums) underly most all of our success as investors. Thank you Prof. Fama!


What Happens When Interest Rates Rise?

Posted by admin on Friday, October 4th, 2013 at 9:54 pm    

Scott W. O’Brien, Director of Wealth Management

According to Morningstar, in May the average bond fund dropped in value by nearly 7% when interest rates spiked. This followed much speculation about the possibility and timing of when the Federal Reserve may end their bond-purchasing program. The timing is important, as this program and the quantitative easing programs before it have been holding interest rates down in an effort to stimulate the economy.

The investment philosophy at WorthPointe Wealth Management is to hold fixed income assets (bonds) that are shorter term and higher quality. By short term, we mean 5 years or less in duration, which is a measurement of interest rate risk.


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