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the US/UK market place 19 October 2016 www.forsters.co.uk - - PowerPoint PPT Presentation
the US/UK market place 19 October 2016 www.forsters.co.uk - - PowerPoint PPT Presentation
Opportunities for Guernsey trust business in the US/UK market place 19 October 2016 www.forsters.co.uk www.forsters.co.uk Disclaimer This presentation reflects our understanding of US tax issues based on our experience but, for the avoidance
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- Fundamentals of US taxation affecting trusts and individuals
- Differences between US and UK trusts and their taxation
- What are the "throwback rules" and why are foreign trusts so bad from a US
perspective?
- Foreign grantor trusts and why this can be a growth area for Guernsey trust
business?
- Retaining trust business in Guernsey after the death of the settlor of a foreign
grantor trust through a PTC arrangement with a US CSP
- Questions?
Agenda
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- “Grantor” trust: transparent for US income tax purposes
- “Non-grantor” trust: separate taxpayer for US income tax purposes
- “Grantor” trust becomes “non-grantor” on the death of the settlor
Fundamentals of US taxation affecting trusts and individuals
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- US citizens and US residents subject to US income tax on worldwide income
- Non-US citizens treated as US resident for income tax purposes if:
- a “lawful permanent resident” of the US (i.e. a “green card” holder);
- meet the “substantial presence test”; or
- elect to be treated as US income tax resident.
- Top Federal income tax rate in 2016 is 39.6% (up to 20% on long-term capital
gains and qualifying dividend payments)
- 3.8% “medicare tax”
- State and local income tax also need to be considered
- Non-US citizens and non-US residents (“non-resident aliens” or “NRAs”) subject
to US income tax on certain US source income and income effectively connected with a US trade or business
Fundamentals of US taxation affecting trusts and individuals
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- Individuals become US resident for income tax purposes under the "substantial
presence test" where they are physically present in the US:
- for at least 31 days in the relevant calendar year; and
- for 183 days or more during that calendar year or during that year and the
two calendar years immediately preceding it, counting:
- all days of residence during the current year; and
- 1/3 of the days of residence during the preceding year; and
- 1/6 of the days of residence during the year before that preceding year.
- “Closer connection statement”
Fundamentals of US taxation affecting trusts and individuals
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- A trust is a foreign trust for US purposes unless it satisfies both the court
and the control test:
- the "court test" (i.e. that a court within the US is able to exercise
primary supervision over the administration of the trust); and
- the "control test" (i.e. that one or more US persons have the authority
to control all substantial decisions of the trust).
- Contrast with UK residency rules for trusts
Differences between US and UK trusts and their taxation
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- Grantor trust
- US settlor: settlor subject to US tax on trust’s worldwide net income and
gains
- Non-US settlor: settlor only subject to US taxation on certain US source
income
- Distributions to beneficiaries not subject to US tax (though US reporting
requirement if distribution over US$100,000 to a US person)
Differences between US and UK trusts and their taxation
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- Non-grantor trust
- US trust: trust subject to US tax on trust’s worldwide net income and gains
- Distributions to both US and non-resident alien beneficiaries are taxable
- n them (with trust entitled to a tax deduction)
- Foreign trust: trust only subject to US taxation on certain US source income
- “Throwback rules” on distributions to US beneficiaries
Differences between US and UK trusts and their taxation
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- They penalise the distribution from foreign non-grantor trusts (including Guernsey
resident trusts!) of accumulated income and gains realised in previous years to US persons
- Under the “throwback rules”:
- distributions taxable regardless of whether comprised of non-US or US source income
- r gains;
- distributions taxable at ordinary income rates; and
- subjected to an interest charge which makes the effective tax rate confiscatory after
approximately 10 to 15 years of accumulation.
- Very broadly, a US equivalent of the UK s91 TCGA additional CGT rate for accumulating
stockpiled gains – except much worse!
- Distributions to UK resident beneficiaries will be subject to double tax (difficulties in
getting tax credit)
What are the "throwback rules" and why are foreign trusts so bad from a US perspective?
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- Conditions for a trust created by a non-US person to be a grantor trust for
US purposes:
- distributions of income or capital can only be made to the settlor or
his spouse during his lifetime; or
- the trust is revocable by the settlor (or revocable with the consent of a
related or subordinate party who is subservient) to the extent that the trust is funded by him.
Foreign grantor trusts and why this can be a growth area for Guernsey trust business?
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- If properly drafted, foreign grantor trusts offer the following advantages during the
settlor’s lifetime:
- no US reporting while the trust has no US source income/directly held US assets;
- no “throwback rules”;
- trust assets receive free step-up in basis on the settlor’s death;
- free step-up in basis of assets held in underlying companies can also be achieved on
the settlor’s death;
- distributions to US person beneficiaries not subject to US taxation (though US
reporting requirement for the beneficiary if over US$100,000); and
- ther than above, if no US source income then no US reporting requirement.
- Demonstrating an understanding of US trust issues will enable Guernsey corporate service
providers to obtain business from clients looking to establish foreign grantor trusts
Foreign grantor trusts and why this can be a growth area for Guernsey trust business?
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- Where the grantor of a FGT dies there is a US tax requirement to either:
- Manage throwback rules by paying out income and capital gains to
beneficiaries every US tax year – often not terribly desirable! OR
- Set up a US domestic trust and pay the income and capital gains to it
every year; OR
- Domesticate the trust into the US i.e. convert the trust into a US
domestic trust that satisfies the Court and the Control tests
Retaining trust business in Guernsey after the death of the settlor of a foreign grantor trust through a PTC arrangement with a US CSP
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- If the trusteeship is transferred to a suitably organised US incorporated
PTC the Control test is satisfied
- A Court Order is obtained to confirm that the Court test is satisfied
- The day to day trust administration can be done from Guernsey
- Business is retained that would otherwise be lost!
Retaining trust business in Guernsey after the death of the settlor of a foreign grantor trust through a PTC arrangement with a US CSP
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Decision Tree when confronted with an existing trust
Is the trust a Grantor Trust? Is the settlor a US person? Is the trust a US Trust? All trust assets and income are deemed to be
- wned by and taxed to
the Settlor.
- nly subject to US
taxation on US source income
- distributions to US
persons are not subject to US taxation (but are reportable if in excess of US$100,000)
- subject to US taxation
- n the trust (if
accumulated) or on the beneficiary (if distributed)
- issues exist in getting
tax credits on distributions to UK resident beneficiaries Penal “throwback rules” apply when distributions
- f UNI are made to US
beneficiaries
Yes Yes Yes No No No
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Points to take away …
- US clients: embrace or avoid?
- Not always possible to avoid US clients but embracing them
combined with an understanding of the key issues yields new business
- Understand the grantor vs non-grantor distinction
- Foreign grantor trusts have minimal US issues during the grantor's
lifetime
- With planning, trust business can be retained after the grantor's
death
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Questions?
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