Established in 1979
Tax rules change
quickly. We will soon review and
revise this page because some information is out of date. In the meantime, contact James M. Yager
for current tax information and Joseph C. Grasmick for up-to-date immigration
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For information on related immigration matters, check the temporary B-1 visitor page. Direct your business immigration questions to the Law Office of Joseph C. Grasmick. Direct all your tax questions to James Yager at KPMG.
by: James Yager and Calvin Eib KPMG, Toronto
KPMG Peat Marwick Thorne
International
Executive Tax Services Group
Suite 3300
Commerce Court PO
Toronto,
Ontario M5L 1B2 CANADA
Voice: 416.777.8214
FAX: 416.777.8818 mailto:jyager@kpmg.ca
CONTENTS-SNOWBIRDSMany Canadians have found that the best way to deal with the harsh Canadian winter is to not deal with it at all. Instead they fly to sunny Florida, or other locations in the southern United States, for several months out of the year. Although the weather can be enticing, Uncle Sams tax collector, the Internal Revenue Service, may have a few unpleasant surprises for the unwary. What follows is a brief overview of the potential tax pitfalls, and how to avoid them, when visiting the U.S. for several months out of the year; renting out or selling ones real estate in the U.S.; strategies to minimize the effect of U.S. estate taxes; and a summary of the new Protocol to the Canada-U.S. tax treaty enacted in November, 1995.
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Under United States (U.S.) income tax law, a foreign citizen or national is subject to U.S. tax in varying ways depending on whether he/she is a resident or nonresident. A U.S. resident alien is taxed on worldwide income in much the same manner as a U.S. citizen: he/she will be required to file U.S. tax returns and pay U.S. tax on income from all sources. When computing taxable income, a resident alien is generally entitled to the same deductions and personal exemptions available to a U.S. citizen.
Nonresident aliens, on the other hand, generally are taxed only on their income from U.S. sources, with some exceptions. As a result of limited exposure to U.S. tax, deductions and exemptions available to nonresident aliens are limited.
A Canadian snowbird will be treated as a resident for tax purposes if he/she meets either of two tests the lawful permanent resident (or green card) test, or the substantial presence test. Under the first test, a Canadian citizen who is a lawful permanent resident of the U.S. a green card holder is considered a resident for U.S. income tax purposes. A green card holder is treated as a U.S. resident, whether or not he/she is physically present in the U.S., until such time as permanent resident alien status under U.S. immigration law is officially revoked or abandoned.
Under the second test -- substantial presence -- a foreign national may become a U.S. resident for tax purposes if he/she spends a substantial portion of the year in the U.S. Under the substantial presence test, a foreign national will be considered a U.S. resident for tax purposes if:
However, days spent in the U.S. because the individual is unable to leave the U.S. due to a medical condition that arose while present in the U.S. will not count the second preceding calendar year, equals or exceeds 183 days.
The law treats presence in the U.S. for such a medical condition as
Example 1: Year Days Present in the U.S. EquivalentDays 1996 120 120 1995 120 x 1/3 40 1994 120 x 1/6 20 (Foreign national taxed as non-resident of U.S.-180) Example 2: Year Days Present in the U.S. Equivalent Days 1996 130 130 1995 120 x 1/3 40 1994 120 x 1/6 20 (Foreign national taxed as resident of the U.S.-190)
Thus, Canadian snowbirds who stay for long periods of time in the U.S. should be aware of the requirements for the physical presence test, lest they be considered a U.S. resident for income tax purposes. If that happens, a Canadian will be required to file a U.S. tax return and may be required to file a U.S. income tax return to report income from all sources, including income from Canada. As a general rule, if a foreign national has never spent more than 121 days in the U.S. in any tax years, he/she will never be considered a U.S. resident under the substantial presence test.
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For Canadians snared by the substantial presence test, all is not lost. There are three exceptions to the test which allow a Canadian to still be taxed as a non-resident: the closer-connection-to-a-foreign-country exception, the exempt individual exception, and the treaty tie breaker provisions.
An individual who, despite meeting the substantial presence test, maintains a closer connection to a foreign country will not be treated as meeting the test for the current year if:
An individual may generally establish that his/her tax home is in a foreign country by showing that his/her principal place of business or employment and/or abode are located in such foreign country. The tax home must be in existence for the entire taxable year and must be in the foreign country to which the individual claims a closer connection. Thus, the closer-connection exception generally will not apply to the year an individual moves to the U.S.
The determination of whether an individual has a closer connection to such foreign country will generally be made by weighing the individuals contacts with the U.S. against those with the foreign country. Such contacts include the location of ones:
Both the tax-home and closer-connection determinations are factual in nature and therefore subject to some degree of uncertainty. Therefore, a Canadian should generally rely on the closer-connection-to-a-foreign-country exception only as a last resort. Furthermore, this exception will not apply for any year during which the individual has an application pending for adjustment to permanent resident status or has taken other affirmative steps to apply for status as a lawful permanent resident of the U.S.
In order to qualify for the closer connection exception to the substantial presence test, an individual must file a form with the IRS.
Under the exempt-individual exception, an individual generally will not be treated as being present in the U.S. on any day in which he/she is temporarily present in the U.S. as a foreign government-related individual, a teacher or trainee who holds a J visa, a student holding either an F, J or M visa, or a professional athlete temporarily in the U.S. to compete in a charitable sports event.
Exempt individuals are required to file a form with the IRS stating why they are exempt from U.S. taxation.
It is possible that a Canadian will be considered to be a resident of both Canada and the U.S. pursuant to the tax laws in each country. The Canada-United State Income Tax Convention (the Treaty) provides relief from being considered a resident of both locations as follows:
Although an individual who holds a U.S. permanent resident visa may claim to be a non-resident of the U.S. pursuant to the Treaty, it is advisable that the individual consult with his/her immigration attorney before claiming non-resident status. The U.S. Income Tax Regulations provide that claiming non-resident status may affect the determination by the Immigration and Naturalization Service as to whether the individual qualifies to maintain a residency permit.
A tax return must be filed timely to claim the treaty tie breaker provisions. Failure to file timely may result in significant penalties.
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Snowbirds who rent out their Florida condo or other real estate located in the U.S., should beware: a withholding tax of 30% normally applies to the gross amount of any rent paid to a resident of Canada on real estate located in the U.S. Unlike withholding taxes on interest and dividends, this tax is not reduced by the Canada-U.S. tax treaty.
One way for Canadians to avoid the 30% gross withholding tax is to file a U.S. tax return and elect to pay tax on net rental income. The Canadian resident can then receive a refund for any taxes withheld, to the extent the withholding amount exceeds the tax payable.
If a Canadian owns U.S. rental property and incurs significant expenses (mortgage interest, maintenance, insurance, property management, property taxes, etc.) he/she may want to file a U.S. income tax return and take advantage of the net rental income election. The amount subject to tax at the marginal rate will likely be substantially lower than the amount subject to 30% withholding.
Election of the net rental income method applies for all future years and is generally permanent. It may revoked only in limited circumstances. The election applies to all of an individuals rental real estate in the U.S. Also note that state tax (and possibly city tax) may be payable on the rental income, if the election is made on the federal return.
The IRS sets a deadline to make the election. For the 1995 tax year, the return and election must normally be filed by October 15, 1997, or the tax will be assessed on the gross income. The U.S. tax regulations provide that if a tax return of a foreign national is not filed within 18 months of the original due date, the IRS will disallow all deductible expenses.
Once the election is made, the taxpayer should provide IRS Form 4224 to the tenant, and the 30% withholding will not be required.
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If a Canadian sells real estate located in the U.S. , a withholding tax of 10% of the gross sales price is normally payable under FIRPTA (the Foreign Investment in Real Property Tax Act of 1980). The tax withheld can be offset against the U.S. income tax payable on any gain realized on the sale, and refunded if it exceeds the tax liability. The 10% withholding requirement on the gross sales price applies regardless of the sellers adjusted basis in the property.
There are two exceptions to FIRPTAs 10% withholding requirement which may reduce or eliminate the requirement.
First, withholding under FIRPTA will not apply if the property is sold for less than U.S. $300,000, and the purchaser intends to use it as a principal residence. The buyer need not be a U.S. resident. For this exception to apply, the purchaser must have definite plans to reside at the property for at least half of the time that the property is in use during each of the two years following the sale. However, the gain on the sale will still be taxable in the U.S., and a U.S. tax return must therefore be filed. Thus, if a Canadian is selling a Florida condo or any other U.S. real estate, for less than U.S. $300,000 to a buyer who intends to occupy it as a principal residence, the seller will receive the full purchase price rather than having 10% withheld by the buyer and remitted to the IRS.
Withholding certificate The second exception allows for reduced, or eliminated withholding, where the Canadian obtains a withholding certificate from the IRS on the basis that the expected U.S. tax liability will be less than 10% of the sales price. The certificate will indicate what amount of tax should be withheld by the purchaser rather than the full 10%. A withholding certificate issued after the transfer of the property may allow the seller to receive an early refund.
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For income tax purposes, a Canadian must file a U.S. tax return and report the gain on the sale of U.S. real estate. A credit may then claimed for the FIRPTA tax withheld.
If an individual owned the property and has been resident in Canada since before September 27, 1980 he/she can likely take advantage of the Canada-U.S. tax treaty to reduce the gain. In such a case, only the gain accruing since January 1, 1985 will be taxed. This transitional rule does not apply to business properties that are part of a permanent establishment in the U.S.
To claim the benefit under the treaty, a Canadian will need to make the claim on a U.S. tax return and include a statement containing certain specific information about the transaction.
U.S. tax on the sale of U.S. property will generate a foreign tax credit that can be used to reduce the Canadian tax on the sale. However, if the amount of the gain taxed in Canada was reduced due to the capital gains exemption or the principal residence exemption, the foreign tax credit available may be limited.
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U.S. estate taxes can impose a burden on the estate of Canadians who owned U.S. real estate at death. U.S. federal estate tax applies to a decedents U.S. taxable estate at rates ranging from 18% to 55%, minus a unified credit (capped at U.S. $13,000 for non-U.S. citizens/residents). The U.S. estate tax rates are attached as exhibit 1. The U.S. taxable estate for a Canadian who is not domiciled in the U.S. is equal to the deceaseds property situated within the United States. This includes: real property located in the U.S. certain tangible personal property located in the U.S. shares of U.S. corporations, regardless of the location of the share certificates and regardless of where the shares are traded debts of U.S. persons, including the U.S. government interests in partnerships carrying on business in the U.S.
Assets normally excluded from the definition include: shares of a non-U.S. corporation (regardless of where the corporations assets are situated) U.S. bank deposits certain U.S. corporate bonds that are publicly traded outside the U.S. certain debt obligations that qualify for the portfolio debt exemption from U.S. tax life insurance proceeds payable on a non-resident aliens death.
The taxable estate for estate tax purposes is the gross value of all of the deceaseds property situated in the U.S., minus certain allowable deductions. The most significant deductions are:
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Hold Property Through a Canadian Single Purpose Corporation
One solution to U.S. estate tax is to hold real estate in a Canadian corporation rather than personally. Since shares of a Canadian corporation are not considered property situated within the U.S, no U.S. estate tax will apply.
Ordinarily, if the U.S. real estate is used personally by the Canadian shareholder, the Canadian would have to recognize a taxable benefit for Canadian tax purposes equal to the value of the rental usage of the property, unless the shareholder pays the rental value to the corporation. In order to avoid this problem, the Canadian can set up a single purpose corporation to acquire the property. Revenue Canada will not normally assess a taxable shareholder benefit for personal use of a corporate-owned U.S. vacation property, if it is owned by a single purpose corporation. However, the Canadian rules for the activity of a single purpose corporation are strict. Revenue Canada requires a single purpose corporation to have the following characteristics:
For U.S. estate tax purposes, there may be an issue whether the U.S. Internal Revenue Service (IRS) will respect the single purpose corporation as the true owner of the property. If the single purpose corporation is the nominal owner of the property on behalf of the Canadian shareholder or the corporation is deemed to be the owner on behalf of a shareholder, the IRS may ignore the corporation for estate tax purposes. Consequently, the shareholder of a single purpose corporation may be exposed to the U.S. estate tax, regardless of the corporate ownership of the property.
Although the ownership of U.S. real property through a Canadian corporation may avoid the U.S. estate tax, the result may be multiple levels of income taxation. For example, if a Canadian dies owning a corporation which owns appreciated U.S. real estate, Canada would impose a tax on the gain from the deemed disposition of the shares at death (unless the shares are transferred to a surviving Canadian resident spouse or a qualifying spousal trust). A subsequent sale of the property by the corporation would result in an additional U.S. tax liability and a Canadian liability. However, the Canadian tax liability could be offset by a foreign tax credit for the U.S. taxes paid.
When the corporation is ultimately liquidated, a Canadian tax on the liquidating dividend would be recognized by the shareholder. Generally, the Canadian corporation would receive a tax refund for the Refundable Dividend Tax On Hand, which is the Canadian federal tax on the taxable capital gain. Since the Canadian federal tax will be partially or fully reduced by foreign tax credits, there will be little, if any tax refund to the corporation upon liquidation. A capital loss may also be recognized by the shareholder as the difference between the paid up capital of the corporation and the adjusted cost basis of the shares. If the property has not change in value since the date of death, this loss will generally equal the gain recognized in the decedents final return. If this capital loss is recognized within the first taxation year of the estate, the legal representative can elect to carry back this loss to offset the deemed gain at the date of death. After the first taxation year of the estate, the carry back provision would not be available.
Although these taxes may be less than the potential U.S. estate tax, the ultimate cost of the Canadian corporate structure should be weighed against the potential benefits.
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A technique to reduce exposure to the U.S. estate tax is split interest ownership of the property. Under such an arrangement, an individual would acquire a life interest in U.S. property, and his children would acquire the remainder interest in the property. Upon the death of the individual, there would be no estate tax on the life interest, since the life interest would have no value upon death. However, should the children die while holding a remainder interest, the estate tax would be assessed on the value of the remainder interest. Generally, the children can obtain term life insurance at low costs (due to their age) to protect them from estate tax exposure. A split interest arrangement usually involves a trust or partnership structure. The structure may result in significant complexities. However, the tax savings may be worthwhile for certain family situations.
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A non-recourse mortgage outstanding on U.S. real estate reduces equity in the property, and thus reduces an individuals taxable estate. A non-recourse mortgage is one that entitles the lender to have recourse only against the property mortgaged. If an individual defaults on payment, the mortgaged property can be seized, but there will be no further liability if the value of the property does not satisfy the debt. Most U.S. lenders are reluctant to provide a mortgage on a non-recourse basis.
Consequently, it may be necessary to seek other sources. One possible source of non-recourse financing may be a spouse. For example, assume a wife has $100,000 to invest in a U.S. vacation home. Instead of investing directly, she could loan her husband $100,000 on a non-recourse basis to acquire the property. Should he die, there will be no value in the estate, since he will be able to deduct the non-recourse debt from the value of the property situated in the U.S. If she dies, there will be no value in the estate since the loan is not property situated in the U.S.
In order to be respected as true debt, the debt should have commercial characteristics such as a market rate of interest and repayment terms. This may create a problem since the wife would have interest income for Canadian tax purposes and the husband would have no interest expense deduction. Another problem with non-recourse debt is that the debt does not change as the property appreciates. Consequently, should the property substantially appreciate in value, the debt will not fully offset the taxable value of the property.
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On November 9, 1995, the Protocol to the U.S.-Canadian tax treaty went into effect. The Protocol attempts to minimize double exposure to U.S. estate and Canadian income tax on capital gains arising at death. Before the Protocol was formally ratified, U.S. estate tax and Canadian income taxes arising on death delivered a one-two punch combined, the tax cost on a Canadian residents U.S. assets could climb higher than 90% of the accrued gains.
Under the new Protocol, levels of U.S. estate tax exemptions rise, tax credits available to Canadian residents increase, and the potential for double exposure to U.S. estate and Canadian income tax on capital gains arising on death are diminished. But for some, especially larger estates, the Protocol does not go as far as one might hope in reducing the combined U.S. and Canadian tax burden imposed at death.
Until now, there has been no relief for Canadians subject to both Canadian capital gains tax and U.S. estate tax neither tax could be offset against the tax arising in the other country.
For Canadian tax purposes, a decedent is deemed to dispose of assets upon death at fair market value. The decedents estate is taxed on any resulting capital gains except in the case of transfers to a surviving Canadian resident spouse or to a qualifying spousal trust.
In most cases, the protocol reduces or eliminates the double tax exposure faced by Canadians who die owning U.S. property through the following measures.
The protocol increases the U.S. estate tax credit to which a Canadian is entitled from the present U.S. $13,000 (which is the tax payable on U.S. $60,000) up to a maximum of U.S. $192,800 (the tax payable on U.S. $600,000).
The U.S. $192,800 credit must be prorated by the value of the Canadian decedents U.S. estate over the value of the deceased individuals world-wide estate (as determined under U.S. rules), subject to a minimum credit of U.S. $13,000. As a result, Canadians will not be subject to U.S. estate tax unless the value of their world-wide gross estate exceeds U.S. $600,000.
If a Canadian decedents estate exceeds U.S. $600,000 and if U.S. property represents a relatively small portion of the total estate, then the proration may reduce the credits value significantly. An estate in this situation may not be much better off than before the Protocol. As a result, it may be worthwhile to consider adopting alternative estate planning strategies to help reduce the estates overall tax burden.
For example, if a Canadian dies owning U.S. real property worth U.S. $300,000 and his global estate is worth U.S.$ 1,000,000, his U.S. estate tax before the unified credit is U.S. $87,800. The unified credit is U.S. $57,840 [(300,000/1,000,000) X 192,800]. The net estate tax is U.S. $29,960 (87,800 - 57,840). However, if the Canadian had a global estate of U.S. $4,000,000, the unified credit would be limited to U.S. $14,460 [(300,000/4,000,000) X 192,800]. Consequently, the net estate tax would increase to U.S. $73,340 (87,800 - 14,460). The example illustrates that the Protocol provides larger estates with a small, if any, increase in the unified credit.
An additional spousal marital credit will be available for Canadians if property is transferred to a surviving spouse and if an- estate tax marital deduction would have been available had the surviving spouse been a U.S. citizen. This credit will be capped at the lesser of the enhanced unified credit allowed to the decedents estate and the U.S. estate tax otherwise payable on the transfer of qualifying property to the surviving spouse.
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If the value a foreign national decedents world-wide estate is less than U.S. $1.2 million, the Protocol narrows the range of U.S. assets on which estate tax may be levied. As a result, small estates are subject to U.S. estate tax only on U.S. real estate (including U.S. real property holding corporations) and personal property constituting business property. Therefore, Canadian decedents with a small global estate will incur no U.S. estate tax on a portfolio of U.S. investment securities.
Any plan to transfer U.S. assets to a spouse with a lower world-wide estate must take into account U.S. income, gift and other transfer taxes as well a the Canadian attribution rules.
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Under the Protocol, Canada now permits U.S. estate tax to be deducted from Canadian tax otherwise payable in certain circumstance. In some cases, this will not offer any relief since the credit will be limited to the Canadian tax attributable to U.S. source income including the gain on assets which are subject to U.S. estate tax. Since the U.S. estate tax is imposed on gross value while Canadian tax arising at death is imposed on capital gains arising from appreciation, there may be no credit in Canada if there is no appreciation in the assets.
Also, the foreign tax credit is generally only available if the incidence of U.S. estate tax and Canadian income tax occur during the same year. Difference between the Canadian and U.S. spousal rollover rules mean that steps must be taken to make sure such matching occurs. An estate should be careful to make the appropriate elections to ensure that U.S. estate and Canadian taxes come due in the same year for foreign tax credit purposes.
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Although the Protocol will reduce the U.S. estate tax bite for many Canadians holding U.S. property generally those with total estates under U.S. $1.2 million it will not provide complete relief for larger estates and others. Even if the new rules do solve a Canadian individuals U.S. estate tax problems, it may prove difficult to unwind existing tax planning vehicles, such as Canadian single purpose corporations formed to hold U.S. properties, without triggering Canadian capital gains tax or other adverse tax consequences. It is important to assess the Protocols impact on an individuals particular financial situation and consider taking steps appropriate to minimize the overall tax burden.
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Since the Protocols rules regarding taxes imposed at death apply retroactively for deaths occurring after November 10, 1988, tax refunds may be available to estates for which tax returns have already been filed. Claims made by reason of the Protocol must be filed by November 9, 1996 or by three years from the date of the tax returns original assessment, whichever is later.
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COLUMN A COLUMN B COLUMN C COLUMN D
______________________________________________________________
TAXABLE TAXABLE TAX ON AMOUNT RATE OF TAX
AMOUNT OVER AMOUNT NOT IN COLUMN A ON EXCESS OVER
OVER AMOUNT IN COL. A
PERCENT
______________________________________________________________
0 10,000 0 18 10,000 20,000 1,800 20 20,000 40,000 3,800 22 40,000 60,000 8,200 24 60,000 80,000 13,000 26 80,000 100,000 18,200 28 100,000 150,000 23,800 30 150,000 250,000 38,000 32 250,000 500,000 70,800 34 500,000 750,000 155,800 37 750,000 1,000,000 248,300 39 1,000,000 1,250,000 345,800 41 1,250,000 1,500,000 448,300 43 1,500,000 2,000,000 555,800 45 2,000,000 2,500,000 780,800 49 2,500,000 3,000,000 1,025,000 53 3,000,000 --------- 1,290,800 55
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James M. Yager, CA, CPA, KPMG Peat Marwick
Thorne,
Director of International Executive Tax Services
Suite 3300,
Commerce Court West
PO Box 31
Toronto, Ontario M5L 1B2
Canada
Voice:
416.777.8214
Fax: 416.777.8818
Email: mailto:jyager@kpmg.ca
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