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California Tax Filing with a Canadian Spouse

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california-cross-border-taxOur previous article discussed the concept of California domicile and the application of California community-property rules to Canadians domiciled in the state. This article is the second installment in our series explaining how California community property laws can impact Canadians.

At Cardinal Point, we regularly deal with cross-border couples who maintain cross-border lifestyles due to career commitments or other obligations. It’s important to understand how California’s community property laws apply when one spouse is domiciled in California and the other in Canada.

Imagine a married couple in which the wife lives in Toronto (and is domiciled in Ontario) and the husband lives in Los Angeles (and is domiciled in California). Both spouses are dual American and Canadian citizens and they file a joint U.S. Form 1040 tax return. The husband, Drew, is a professional hockey player who plays for a California-based NHL team. Drew’s wife, Amber, is a top fashion model based out of Toronto. The couple owns homes in both Toronto and Los Angeles. Since Amber is mainly working in Toronto, New York, London and Paris, she only spends two weeks a year in Los Angeles with her husband. Moreover, Amber does not earn any California-sourced income.

One might assume that Amber does not need to file a California tax return and pay California tax, given that she doesn’t earn any California income and isn’t domiciled in California.

But as we stated in our previous article, California follows its own rules for determining tax residency. Unlike federal tax treatment, an immigrant to California is normally a California resident from the date of arrival. No 183 physical presence test or green card is required to determine California residency status. Moreover, since California is not a party to the Canada-U.S. tax treaty, the treaty is not applicable for purposes of determining California residency (similarly, California does not allow a foreign tax credit or the federal foreign earned income exclusion).

Going back to Drew and Amber, because they are filing jointly on their federal return, California requires the same joint filing status on their California return, and they would pay California tax on their worldwide income.
There is, however, a little-known legal exception that will allow our imaginary couple to file separately instead of jointly for California tax purposes. To file separately in California, two criteria must be met: (1) Amber must not be a resident of California and (2) she must not have any California-sourced income, including California wages and income from California real-estate property.

With Amber filing separately under the exception, she would still need to file a California 540NR non-resident return to pay tax on 50% of her husband’s California income. That’s because Drew is domiciled in California. Moreover, she would need to disclose her non-California-sourced income on the California return to determine her California tax rate.
Because of the complexities facing cross-border couples, they are well advised to seek out tax advisers who specialize in navigating the cross-border tax landscape.

Marc Gedeon is a CPA (U.S), CPA (Canada) and Tax Attorney at Cardinal Point, a cross-border wealth management organization with offices in the United States and Canada.  Marc specializes in  providing Canada-U.S. cross-border financial, tax, transition, and estate planning services.  This piece is for informational purposes only and should not be considered legal or tax advice. Online readers should not act upon this information without seeking professional counsel.

Canada & U.S. Education Savings Options

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“The Simpsons” is a funny show, and that’s despite—or maybe because of—the fact that it often tackles the issues that make us most anxious.

Take the episode in which Bart terrifies Homer with a campfire story about college costs for Maggie. The scene ends with Homer shrieking, “No! No! Noooo!”

I suspect that Homer speaks for many of us parents. We may not howl like the Simpsons patriarch, but the price tag for higher education definitely does nothing for the quality of our sleep.

  • The average undergraduate tuition for a full time Canadian student in 2015 is $5,959. That more than doubles—to $12,959 per year—for medical studies. And it more than triples, to $18,187 annually, for dentistry school. Between 2011 and 2015, tuition increased an average of 4% annually.
  • In the United States, a public two-year college tuition now costs $3,347 per year, a public four-year college tuiton costs $9,139 per year and a private, four-year college program costs $31,231 annually.
  • In addition to those figures you can add $800 to $1,000 per year for books and $10,000 or more for possible room and board.

college-savings-planStill, there’s wide agreement that college is worth it. Nine in 10 American parents believe a college education is an important investment in their child’s future, according to a recent national study conducted by Sallie Mae and the research firm Ipsos. Interestingly, just 48% of respondents are actively saving for that education.

Assuming that you’re part of the 90% who value college education, and that you’re committed to saving to fund at least part of your child’s education, what are the options?

Canada

Registered Education Savings Plans (RESPS)
By far, the Registered Education Savings Plan (RESP) and associated grants available for contributions make this savings plan the best option for Canadians. That explains why a 2009 survey found that 66% of Canadians saving for a child’s education contributed to a RESP. (The second most-common approach, used by 28% of respondents, was to contribute to a dedicated savings plan or account).

RESPs’ benefits include:

  • A minimum of 20% Canada Education Savings Grant on annual deposits of $2,500 from the year the child is born until December 31 of the year the child turns 17. Account holders can earn up to $7,200 in these grants per child.
  • Additional Grant and deposits for low-income families.
  • Saskatchewan and Quebec residents receive additional Grants.
  • Deposit up to $5,000 annually per child and receive Grants if you have not deposited in the past.
  • Set up a family plan, and if one child does not attend post-secondary schooling, the Grant can be used by the other children named on the account.
  • Choose your own investments.
  • Tax advantaged investing. You can invest in a variety of vehicles and your deposits and Grants grow tax deferred until withdrawn. Contributions are withdrawn tax free. And Grant and investment income is taxable to the child on withdrawal; factor in credits and personal exemptions, and the withdrawal could be tax-free.

Bear in mind that withdrawals can only be made while the child is attending post-secondary education.
Unfortunately, the IRS does not yet recognize the tax-deferred status of RESP accounts for Americans. For this reason it is not advisable for American citizens or green card holders living in Canada to be a subscriber of an RESP account. In this case, or if you have maximized your Grant room, an In Trust For Account may be a second option for saving.

In Trust for Accounts
“Informal trusts” are created at financial institutions and used to invest funds on behalf a minor.
This type of account is particularly useful if you deposit Canada Child Tax Benefits, Universal Child Care Benefits or a child’s inheritance, as the growth and income on these deposits will be attributed to the child rather than the account owner. If contributions are made from other income sources, secondary income (income earned on income that has already been taxed to the account holder) can be moved to a separate account that will be taxed in the hands of the child.

The child may take control of the account once he or she reaches the age of majority. ( This does not occur automatically). At that point, the account can be moved into the child’s name for education funding, or it can be left intact, with the accountholder responsible for additional deposits or disbursements for schooling or other expenses.

With either option, be aware of fund management and commission costs, which can erode your college savings. Your investment advisor can help you choose quality investments that will meet your savings objectives.

United States

College and State 529 “Qualified Tuition” Plans
Unlike RESP accounts in Canada, the U.S.-based 529 plan varies on both the state and college level. These plans number in the thousands, making research essential.
There are two types of 529: the pre-paid tuition plan and the college savings plan. Here are a few facts about each:

Pre-paid tuition plans

  • Enable us to purchase credits for future education (and at times room and board) at a specific college or university.
  • Lock in prices, covering tuition and mandatory fees. Some plans allow a room and board option.
  • Invest in a lump sum or by installments based on the child’s age and years of tuition purchased.
  • Most offer a state guarantee.
  • Most require state residency.

College Savings Plans

  • Do not lock in college costs.
  • Cover all expenses related to education (tuition, room and board, books and computers).
  • Feature high contribution limits.
  • Deposits are subject to investment market fluctuations.
  • Have no age limit; open to adults and children.
  • Do not have a residency requirement.

In both cases, the earnings in the 529 are free from federal tax and in most cases, as long as withdrawals are for eligible college expenses, state tax as well.

Unlike the Canadian RESP, where withdrawals can be used for any expense, 529 withdrawals must be used for eligible college expenses. If they are not, you will generally be subject to income tax on the withdrawal and an additional 10% federal tax penalty on the earnings.

Nearly every state offers a 529 plan (or plans), and it is up to each state to set the tax break or grant offered. Morningstar has surveyed 529 plans each year since 2004 and provides rankings based on costs, tax benefit and investment options. Whether to invest in a plan run thorough your home state or look elsewhere depends on a number of factors, including deposit limits and residency, as well as how highly your state’s plans are rated. Morningstar advises that, for those contributing around $1,000 annually, with savings of $25,000 or less, it usually best to stay in state. At present, residents of Arizona, Kansas, Maine, Missouri and Pennsylvania can invest out of state and still receive a tax deduction on their contributions (they may forgo other benefits if going out of state, though). However, the more you plan to invest, the less consideration should be given to state tax benefits and the more you should consider the quality and type of investments offered.

You can purchase 529 plans through a financial advisor or directly from the providers. Some direct-purchase plans, such as CollegeAdvantage 529 Savings Plan of Ohio, use passive and active investment options run by a variety of firms at a reasonable price, and are thus rated highly among direct investment options. Virginia’s CollegeAmerica Plan is the nation’s largest 529 plan, and is typically available through your investment advisor. With its high state tax deductions, it is consistently ranked by Morningstar as one of the best plans. A wealth of additional information can be found at www.529.morningstar.com .

Given the complexities of the 529 arena, it is understandable that many families choose the general savings account option for college savings. A general savings account, managed through your investment professional, can include a wide variety of investments and can be used for expenses other than college. For perspective, nearly half of college-saving families rely on general savings accounts, while 27% use tax-advantaged accounts such as 529 plans.

Whether those you are saving for are American or Canadian, the key is to get advice before deciding which savings vehicle to use. A professional can assist you in navigating government grants and available credits with an eye on reducing the overall cost of education and helping your savings last through to graduation day.

Source: Morningstar.com, Statistics Canada, Canada Revenue Agency

Options for your CAD Non-registered assets when moving to and/or living in the U.S

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The strong U.S. dollar has created new challenges for those moving to the United States from Canada—but understanding these challenges, and your options, can help you to navigate the financial transition as smoothly as possible.

canadiandollarHere’s the background. The Canadian dollar is currently valued around 0.80 versus the U.S. dollar, a big departure of 0.90 to 0.95 seen in the summer of 2014. With the currencies so closely valued in the past, many individuals elected to convert their bank and non-registered (taxable) investment-account funds to U.S. dollars, and move them to a U.S. bank or custodian.

After all, if you live in the United States and your living expenses are denominated in U.S. dollars, having much of your liquid net-worth in the local currency makes sense. Furthermore, converting and moving Canadian non-registered accounts to the United States simplifies tax and foreign-account reporting requirements. It also provides for better investment opportunities, including those that are more tax efficient. And it helps to simplify your financial and estate planning.

A Canadian dollar at 0.80 complicates things, however, as most clients naturally do not wish to convert funds at a 20% discount. So let’s look at the options available to individuals or families who do not want to convert their non-registered accounts to U.S. dollars.

OPTION 1: Leaving your Canadian investment accounts in Canada
If you work with a Canadian financial advisor, chances are they are not registered to provide investment or financial planning advice to a U.S. resident.

A financial advisor must always be licensed in the jurisdiction in which a client lives, regardless of the client’s citizenship or the country in which the assets reside. Thus, once you become a resident of the United States and ask your advisor to update your mailing address on file to your new U.S. address (never leave your old Canadian address on file: see this related article), one of three things will likely happen:

  1. Your advisor will inform you that they are no longer able to provide investment advisory services to your non-registered accounts, and that you must work with someone who is able to do so;
  2. Your advisor will explain that you can keep your accounts on the platform, but that they will be frozen and that no further trading or rebalancing can take place;
  3. Your advisor will explain that they are registered in the United States and can continue to oversee all investment-management services in your accounts.

To reiterate, most Canadian advisors are not registered in the United States. So the mostly likely scenarios are numbers one and two. In the event that your advisor fits the third scenario, you will want to make sure that their services and expertise extend beyond just providing investment management.

For example, when moving to, and/or living in the United States, clients face a host of cross-border planning complexities. A true cross-border advisor will help construct an integrated Canada-U.S. cross-border financial plan that addresses tax and estate planning matters in addition the management of your investment assets.

Now, if you decide to leave your Canadian non-registered accounts in Canada under one of the first two scenarios, there are number of important points to consider.

  • Drawbacks of Canadian funds. Canadian-traded mutual funds and exchange-traded funds (ETFs) are considered “not registered for sale” to U.S. residents. Even more importantly, they are likely to be considered Passive Foreign Investment Companies (PFIC). Earnings and dividends distributed by such vehicles are subject to the highest marginal tax rates on your U.S. income tax return. Download our whitepaper on PFICs  for further information.
  • Accounting hurdles. Canadian custodians do a poor job conforming to U.S. tax reporting requirements. For example, many do not prepare year-end tax reports that show long-term versus short-term capital gains. These reports are required if you are a U.S. resident. Further, many of the tax reporting forms Canadian custodians provide are denominated in Canadian dollars, which means your accountant will have to convert all taxable and reportable transactions to U.S. dollars when you file your annual U.S. tax returns. This additional work by your accountant can increase the likelihood of errors and lead to higher accounting and tax-preparation cost.
  • The Conversion Window. If your goal remains to convert your funds to U.S. dollars once the exchange rate improves, make sure the investment strategy put in place will accommodate a future currency conversion. For example, make sure you are not locked into investment products that must be held for a certain period of time. Also, make sure your investment accounts are not invested in volatile or speculative securities that are subject to sharp market swings. It would be unfortunate if, when exchange rates became attractive, your Canadian-dollar investment holdings were sitting at a loss due to poor market performance.
  • Tax-aware investing. Make sure your advisor is managing your account under an investment mandate that reflects your U.S. tax residency. As mentioned earlier, U.S. tax residents are subject to long-term and short-term capital gains rates. If you sell an asset that has been held for one year or less, any profit is considered a short-term capital gain, and is taxed at your ordinary income rate (up to 39.6%). If you sell an asset held longer than one year, any profit you make is considered a long-term capital gain, and is typically taxed at a preferable rate (15% or 20%). In Canada, there is no such thing as long- or short-term capital gain. Canada has just one capital gains rate, and Canadian portfolio managers are trained to oversee client accounts under this standard. Also, there are different types of investment securities, such as Canadian preferred shares, that are attractive investments from a Canadian tax standpoint but not from a U.S. tax standpoint. It is always in your best interest to confirm that the Canadian money manager or advisor can customize the management style of your portfolio to adhere to U.S. tax rules.
  • Reporting requirements. You will be subject to extra foreign account reporting requirements by the Internal Revenue Service. Because these accounts are domiciled outside of the United States, the IRS will require you to report specific information about them (account number, year-end value, highest market value in the tax year, etc.) on a form called the FinCEN Report 114. Additionally, you might likely have to file IRS Form 8938 – Statement of Specified Foreign Financial Assets as part of your Form 1040 filing as well. These increased reporting requirements are time-consuming and will likely lead to increased tax preparation costs.

Leaving your Canadian-dollar taxable or non-registered accounts in Canada once you become a U.S. resident can be done under limited scenarios. But in light of the considerations above, it certainly is not ideal.

Option 2: Moving your Non-Registered Investment Account to the United States
Moving your Canadian-dollar investment accounts to the United States will simplify financial and estate-planning initiatives, and will streamline U.S. tax reporting. But you still will face challenges. For one, most U.S.-based financial advisors will automatically want you to convert your Canadian-dollar accounts to U.S.-dollar accounts—which, of course, contradicts the goal of maintaining your holdings in Canadian dollars. The main reason U.S.-based advisors will recommend this is that their firm or its custodian does not offer multi-currency accounts. The only currency option they provide for investments is U.S. dollars. It is rare for investment firms to offer Canadian dollar-denominated accounts because there is little demand for them in the United States.

Those investment advisors that do offer multi-currency accounts may not know the Canadian investment market well enough to construct a proper investment portfolio. It is one thing to be able to open a Canadian-dollar-denominated account on behalf of a client. It’s another to be a financial advisor or portfolio manager with the knowledge base and training to build Canadian-based investment portfolios using Canadian-traded securities.

All too often, clients are left holding their Canadian-dollar investment account in cash because they cannot find a qualified U.S.-based investment manager to invest the assets.

The Cardinal Point Difference: Cross-border investment management
At Cardinal Point, we are registered to provide investment management and financial planning services in both Canada and the United States, without any restrictions or limitations. For clients who have investment accounts in both countries (RRSPs, Non-registered, IRAs, 401ks, Trusts etc.), we are able to construct integrated cross-border portfolios customized to the investor’s risk tolerance, needs and goals.

If you are an individual living in and/or moving to the United States and do not want to convert Canadian-dollar, non-registered assets to U.S. dollars, our experienced Canada-U.S. portfolio management team can help. We have the ability to invest your Canadian-dollar accounts on a U.S. custodial platform. Partnering with Cardinal Point to oversee the management of your Canadian-dollar non-registered accounts brings the following benefits:

  • Proper and customized U.S. tax reporting on Canadian-dollar investment assets
  • Multi-currency investment accounts supported by an investment team that provides Canadian-dollar and U.S. dollar asset management services
  • Flexible foreign exchange services
  • Understanding of U.S. tax management strategies on Canadian-dollar investment accounts
  • Additional cross-border financial, tax and estate planning expertise
    Please contact Cardinal Point to discuss your cross-border investment management and financial planning needs.

Jeff Sheldon is a co-founder and principal at Cardinal Point, a cross-border wealth management organization with offices in the United States and Canada. 

Possible Tax Changes for Snowbirds

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1040thumbWriting about possible U.S. tax changes for Canadians, Terry Ritchie, Director of Cross-Border Wealth Services, appeared in the January 2015 issue of Advisors Edge. In the “TaxBreak” column, Terry summarized how some of the recently enacted changes at the IRS can affect snowbirds.

Though the new U.S. Congress will likely focus its efforts on corporate taxation, there are still a number of newly enacted tax provisions to keep track of. More than 40 changes were enacted by the U.S. Internal Revenue Service in late 2014. A few of the notable changes include: an increase in the standard deduction for singles and married persons; limitations on itemized deductions; and an increase of the basic exclusion amount for the estates of people who die in 2015. Read the full article here.

U.S. Tax on Canadian Rental Property

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It is no surprise many Canadians moving to the U.S. choose to rent out, rather than sell, their properties back home. With a strong rental market and housing price valuations in cities like Toronto and Vancouver, the return on investment from keeping and renting the property is attractive.

Unfortunately, becoming a non-resident of Canada and conversely becoming a U.S. tax resident, while leaving a rental property behind, creates tax filing complexities not only in the U.S. but also in Canada.

How Do I Report a Foreign Rental Property In the U.S.?
Reporting Income and Expenses

If you own a rental property in Canada and you are filing as a U.S. tax resident, the rental income must be reported on Schedule E of your U.S. tax return. For U.S. tax purposes, the allowable expenses you can claim against the rental income are generally the same as in Canada although under U.S. tax law, it’s mandatory to claim depreciation, even if the property is negatively geared (more on this later).

Adding further complexity is the need to generally translate all your income and expenses from Canadian dollars to U.S. dollars on the date of each transaction.

On the bright side, you can take a tax credit against your U.S. federal income tax for income taxes paid to Canada on your net rental income. That credit is limited to the amount of U.S. Federal tax you paid on the rental income on your U.S. tax return. Sadly, for California residents, no tax credit is allowed for income taxes paid to Canada, essentially resulting in a double tax.

How do I Determine My U.S. Tax Cost Basis?
Determining your U.S. tax cost basis in a foreign rental property can be tricky, especially if it will be difficult to breakout the value of the property between the land and building component. As such, sometimes it may be necessary to hire a surveyor to assist with ascertaining the valuation of the property to comply with U.S. tax law.

Generally, the U.S. tax cost basis subject to depreciation of a foreign rental property is the lower of:

  1. Historical cost plus closing costs and improvements; or
  2. Fair market value (FMV) on the date the property is placed into service for U.S. tax purposes

For a lot of our Canadian ex-pat clients, given the housing booms back home, the FMV of the property is not usually applicable.

Therefore, we are normally left using the historical cost of the property that needs to be converted into U.S. dollars at the exchange rate in effect at the time the property was purchased.

For those of you thinking of selling the property, beware, because this means the U.S. can tax you on the full gain on the sale of the property, including appreciation of the property that occurred prior to you becoming a U.S. tax resident. Even worse, for Canadians who bought their properties a decade or more ago, the U.S. will also tax you on the foreign currency gain attributed to the increase in the Canadian dollar. We’ll have more to say on the tax consequences of selling your property as a U.S. tax resident later.

Besides adjusting the cost basis for exchange rate purposes, an additional adjustment may need to be made to reduce the property’s cost basis by the U.S. depreciation that would have been allowed under U.S. tax law for all the years prior to a Canadian becoming a U.S. tax resident.

How Do I Depreciate My Foreign Property?

In our experience, the one mistake we regularly see made on returns for taxpayers with a foreign rental property is the depreciation method used. While U.S. tax law generally allows a U.S. residential rental property to be depreciated over 27.5 years, for foreign properties, depreciation is computed using a 40 year straight line method under the Alternative Depreciation System (ADS).

What if My Property Is Negatively Geared?

Under the U.S. tax code, losses from passive activities, such as foreign rental properties, normally cannot be deducted from income. Nevertheless, an exception exists for taxpayers with a modified adjusted gross income below $100,000 that allows up to $25,000 of rental real estate loss to be deducted against ordinary income, such as wages, provided you “actively participate” in the rental activity (basically you are involved in meaningful management decisions regarding the rental property). This exemption is phased out for taxpayers whose modified adjusted gross income exceeds $100,000 and is eliminated entirely when it exceeds $150,000.

What if I Want to Sell My Foreign Property?

There can be a silver lining for most Canadians who sell their foreign properties after becoming a U.S. tax resident. If the property was used as your personal primary residence for the 2 years during the previous 5 years prior to sale, you may be able to exclude up to $500,000 ($250,000 if single or married filing separately) of the gain from your U.S. income taxes under the exclusion allowed for sales of personal residences.

How Do I Report My Rental Property As a Non-Resident of Canada?

Canada

The detailed Canadian tax rules for reporting a non-resident owned Canadian rental property is complex and beyond the scope of this article. We’ll be publishing a separate article on this topic in the near future.

However, in short, a non-resident of Canada with a Canadian rental property will want to annually file the following forms with CRA:

  1. NR6 to avoid being subject to a 25% withholding tax on gross, not net, rental income; and
  2. Section 216 Return to report rental income and expenses for the property; and
  3. NR4 Return/Slip to report the gross rental income and Part XIII withholding tax.

In case you are wondering, you are not able to claim the Section 45(2) election as a non-resident.

In Closing
While complying with the various tax rules for a Canadian rental property can be difficult, the cross-border tax specialists at Cardinal Point are available to provide assistance with the tax filing requirements in the U.S. and Canada.

Marc Gedeon is a CPA (U.S), CPA (Canada) and Tax Attorney at Cardinal Point, a cross-border wealth management organization with offices in the United States and Canada. Marc specializes in providing Canada-U.S. cross-border financial, tax, transition, and estate planning services. www.cardinalpointwealth.com This piece is for informational purposes only and should not be considered legal or tax advice. Online readers should not act upon this information without seeking professional counsel.