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What do I do with my U.S. revocable trust if moving to Canada?

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Affluent individuals living in the United States often use a U.S. revocable living trust (RLT) for estate-planning purposes. Such a trust provides confidentiality and flexibility in how assets are managed, as it eliminates the specter of probate.

A revocable living trust is transparent for U.S. income, gift and estate-tax purposes. The individual who transfers (settles) property to the trust is also its trustee and beneficiary. The trust is considered a U.S. grantor trust, which is ignored for U.S. income tax purposes. All income, losses and expenses are claimed on the individual’s personal U.S. tax return.

Moving to Canada: Canadian tax issues and administrative burdens
For individuals moving to Canada (both Canadian and U.S. citizens), continuing to hold a U.S. RLT will present tax and administrative challenges. Under Canadian tax laws, once the trustee(s) become residents of Canada, the trust will be considered a separate taxable entity and will be treated as a Canadian resident trust. This will then require the trustee(s) to not only file a Canadian Trust return but also to pick up all of the income earned by the trust on their personal Canadian and U.S.  tax returns.

Although foreign tax credits can be used to reduce and/or eliminate double-taxation issues, continuing to hold the U.S. RLT complicates tax filings. Further, the trust would have both a Canadian and U.S. cost basis that would have to be tracked and reported. The Canadian basis would be equal to the value of the assets within the trust on the day the trustee(s) moved to Canada. The U.S. cost basis would be equal to the original value of the assets at the time they were acquired.

In some cases, an exception exists under Canadian tax law that allows the taxpayer to deem all the income and capital gains/losses associated with the trust property as taxable to the taxpayer as an individual, effectively making the trust disregarded for both U.S. and Canadian tax purposes. Under this exception, there would be no double taxation on income earned by the trust during the taxpayer’s lifetime.

Double Taxation at Death
Double taxation issues become a greater concern if the trustee happens to die as a Canadian resident after the trust had been in existence for 21 years. Under this scenario, the trust would form part of the trustee’s estate and, depending on the size of the estate, U.S. estate tax could be payable. In Canada, the trust would also be taxed once the assets were sold on or after the 21st year anniversary of the trust. There would be no foreign tax credits available to offset these two taxes, which could result in double taxation.

Subject to Canadian departure tax
Meanwhile, U.S. citizens temporarily living and working in Canada could be subjected to departure tax on their trust when they return to the United States. U.S. citizens are afforded a five-year period (See article: “Americans Exiting Canada: Understanding the Five-Year Deemed Disposition Rule”) living in Canada in which they are not subjected to Canadian departure tax upon a return to the United States. As stated earlier, because the trust is considered a separate legal entity from a Canadian tax perspective, it would not be granted the same five-year exemption from exit tax because it is not a personally owned asset.

Financial institutions unable to hold or administer trust
An additional complication, unrelated to the tax issues outlined above, is the fact that most U.S.-based financial institutions will not hold a U.S. RLT once the trustee becomes a resident of Canada.

Most U.S.-based financial institutions are not registered and licensed to oversee a taxable (or trust) investment account on behalf of a Canadian resident, even if that individual is a U.S. citizen. Many individuals try to get around this regulation by registering the U.S. RLT to a family or friend’s U.S. address. Not only is it illegal to misrepresent your residency, but it could also create tax issues because the IRS and state will continue to receive tax slips showing you live at a U.S.-based address.

Although it is a great estate-planning tool for those residing in the United States, a RLT presents many tax and administrative challenges once you move to Canada. For those individuals intending to live in Canada for the foreseeable future, it would likely be wise to unwind the trust structure before or soon after arriving in Canada. This would prevent any adverse Canadian income-tax consequences. At Cardinal Point, we assist individuals and families moving from the United States to Canada with their financial, tax and estate-planning needs. If you are moving to Canada and own a U.S. RLT, we can advise you on whether it is in your best interest to keep the entity intact or close it down.

Canadians Living in California, California Tax Filing with a Canadian Spouse

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canadians living in californiaOur 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 about Canadians Living in California and 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.

Financial Planning for Canadians Moving to the U.S.

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Did you leave your heart in San Francisco? Is the Big Apple calling your name? Perhaps you are bound for Austin, Texas, the “Silicon Valley of the South.” If the U.S. is your destination—and you plan to stay for a while—there are critical steps to take to ensure your short- and long-term financial wellbeing.

Canadians moving to the U.S. may view the similarities—language, customs, culture and even cuisine—and imagine a seamless move. What many people don’t realize is that, in terms of investments and taxation, the two countries are very different. As you plan your move, make sure to have a financial plan in place. Many people think of “financial planning” as something to do after having made one’s fortune. In fact, having your financial house in order makes sense no matter where you are in your life, and it’s especially important if you are preparing for a cross-border move.

Start where you are. First things first, take an inventory of your finances in Canada: your bank accounts, credit cards and savings accounts including: Registered Retirement Savings Plan (RRSP), Registered Retirement Income Fund (RRIF), and Tax-Free Savings Account (TFSA). The rules governing the use of these accounts are different for non-residents. For example, a non-resident’s contribution to a TFSA would be subject to a monthly penalty. Because these rules are complex, expert help can prevent you from simple, yet expensive mistakes.

Plan the transition. As soon as possible, apply for a Social Security number in the U.S. You will need this to work, open a bank account and even to apply for credit. On the topic of credit, find out whether your Canadian credit cards will charge you a fee on transactions made in the U.S. You may wish to apply—before you move—for a card provided by a company that does business in both Canada and the U.S.

Buying health insurance is another important part of the transition from living in Canada to living in the U.S. If you do not have employer-provided health benefits, you can shop for the coverage that best suits you and your family. Legally, you must have health coverage or face penalties (not to mention costs of care, which can be very high in the U.S.!).

Stay on top of things. There’s an old saying, “Out of sight, out of mind.” It’s up to you to keep your financial picture in focus—even when aspects of it are thousands of miles away. Working with a financial planner is the simplest way to keep track of your accounts and to stay informed of your tax liability. The right advisor will work with you to let you decide how often you want to be contacted. It’s better to hear about changes in policy and tax laws before they affect your finances, back home or in the U.S.

Financial security is a cornerstone of freedom. When you know that you have the best information available about how to handle the money you make, and have taken care to protect yourself from being taxed twice on the same income, you can enjoy the wealth you are working so hard to create. No one expects you to be an expert on one country’s tax laws, let alone two. At Cardinal Point Wealth Management, our cross-border expertise can help keep you in the know about your Canadian and U.S. tax liability and your investments. Our experience on both sides of the border lets us provide you with the information you need, for your big move and every move after that.

John McCord is the Director of Private Wealth Services at the Cardinal Point, a cross-border wealth management organization with offices in the United States and Canada. John specializes in providing Canada-U.S. cross-border financial, investment, tax, transition, and estate planning services.
This piece is for informational purposes only.

Moving to the U.S.? Don’t Leave Your Canadian Investments Hanging

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iStock_boxes-xlarge-1280x768A frequent question we hear from Canadians thinking of a move to the U.S. is this: What will be the tax consequences for my Canadian investments?

Let’s look at a case study to see how this plays out. Meet Diane, a Canadian client who is moving to the U.S. for a job opportunity. As we help Diane plan with her cross-border transition, she has questions about what to do with her Canadian investments. Should she use her sister’s Canadian mailing address for her Canadian investment accounts? What are her tax obligations to the Canadian Revenue Agency (CRA) after she leaves Canada?

For starters, we recommend that Diane change her mailing address to her U.S. residence and not a Canadian relative’s address. Once she leaves Canada and sets up residential ties to the U.S., Diane is deemed a non-resident of Canada. As such, she must notify her Canadian financial firms of her non-residency status for tax purposes and also establish that her current country of residence is the U.S. This helps ensure that the proper amount of Canadian tax will be deducted from her investment earnings.

As for her Canadian tax obligations once she resides in the U.S., the CRA sums it up this way:

“After you leave Canada, you are a non-resident for income tax purposes provided you have severed your residential ties with Canada. As a non-resident, you pay tax on income you receive from sources in Canada. This applies in the year you leave Canada and for each year afterwards, provided you remain a non-resident for income tax purposes.”

Once she becomes a non-resident of Canada, Diane will pay tax on the Canadian income she receives, also known as the Part XIII tax. According to the CRA, the most common types of Canadian income subject to Part XIII tax are:

  • dividends;
  • rental and royalty payments;
  • pension payments;
  • old age security pension;
  • Canada Pension Plan and Quebec Pension Plan benefits;
  • retiring allowances;
  • registered retirement savings plan payments;
  • registered retirement income fund payments;
  • annuity payments;
  • management fees.

But what about interest income generated from Canadian holdings? Such interest is typically exempt from Canadian withholding tax if you’re a non-resident and the payer isn’t related to you. In Diane’s case, the Canadian institutions from whom she receives income must deduct tax from the income paid to her, generally at a non-resident tax rate of 25% on Canadian income, but this can vary according to the source of income. This deducted tax fulfills her tax obligation to CRA for this income, and it is not necessary to report the income by filing a Canadian tax return.

If you’re a non-resident of Canada and have concerns about the tax consequences for your Canadian investments, the cross-border experts at Cardinal Point Wealth Management are here to help.

Terry Ritchie is the Director of Cross-Border Wealth Services at the Cardinal Point, a cross-border wealth management organization with offices in the United States and Canada.  Terry has been providing Canada-U.S. cross-border financial, investment, tax, transition, and estate planning services to affluent families for over 25 years.  He is active as an author, speaker and educator on international tax and financial planning matters. www.cardinalpointwealth.com

Should this family move to the U.S.?

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This article looks at families who are faced with the prospect of a cross-border move and career changes. Featuring the commentary of Cardinal Point’s Terry Ritchie, it presents a case study to show the potential tax, retirement and estate planning implications of a cross-border move. In the scenario, a hypothetical family from Ottawa is faced with the father’s possible layoff and the mother’s potential job transfer to Texas. The couple also has retirement and education savings considerations. The case study was originally presented at the IAFP Symposium and is intended to show advisors how short-term, retirement and family goals can be managed concurrently.

The article evaluates the family’s three options and the issues and advantages that arise with each. It compares the tax impact and housing markets in Ottawa and Texas, as well as the compensation and employment benefits of each scenario. Ritchie comments on the impact that a move to Texas would have on the couple’s registered account, their unrecognized registered assets, and company savings, as well as what would happen if the family eventually returned to Canada.