Hi from Mr. B - Need help on "expatriate" taxes

[freebird5825]

Hi this is Mr. B - the other half of Freebird5825. I need some advice/input on the taxation of a US expatriate. I am a tax accountant (and consider myself to be a pretty good one) and before I delve into the IRS Code I thought perhaps someone here might be able to lend some guidance/experience.

One of my clients has a sister living in the UK and she has been there for a number of years. Has not had any US Source Income for a number of years so has not filed any US Tax Returns. She has UK income and of course pays the UK taxes on that income.

Here is where it gets tricky. She is a beneficiary of a Trust that was terminated in 2011 upon the death of the trustor. She received a check in 2011 for her share of the trust proceeds. I will be issuing a US Schedule K-1 to each of the beneficiaries (including her) so they can report their share of the income tax due on the income producing portion of the trust for 2011.

I a pretty sure that she will have to file a US Income Tax return for 2011 to report the income tax due on her US Source Income but her being an expatriate I am wondering if she needs to do so or not.

I have done some preliminary research on the IRS site concerning taxation on expatriates but the rules in this area are quite complex. A lot depends on "when" you became an expatriate (ie what year) and how long you have been an expatriate. Different rules apply depending on when you met these requirements.

I am hoping there are some US expatriates on here that can provide some insight and guidance that may be perhaps are in a similar situation or have been. Thanks so much. Mr. B

 

[Texas Proud]

I think it matters how much she was earning in the UK....


Even if she owed no US taxes, I think that she needed to file in the US for all those years... you would produce a taxable amount, but then could reduce it by either the income exclusion or the tax credit.... not filing (IMO) is not an option....



One of the things that I would check (if it is not too late) is do you need to do backup withholding on the distribution Since she lives overseas, I would think yes.... might have created more problems if you needed to do it....

 

[Throwdownmyaceinthehole]

Having just returned as an expat and overseeing the tax filings of our companies expats in three different countries I've learned how complex they can be -both for the US and the host country. A lot will depend on type of Visa, length in country, tax structure of host country, fringe benefits classifications between the two countries, and on and on. And my experience with Big 4 Accounting firms is that they don't understand it either...... You may try an expat forum for the host country.

 

[Calgary_Girl]

My understanding is that you are required to file a U.S. income tax return every year and that the government is starting to go after people who have not done so in the past (regardless of whether they have any U.S. income or not).

 

[MichaelB]

Mr B., pleased to meet you. Is your client's sister a US citizen, green card holder, or non-resident alien?

 

[trirod]

Hi Mr. B

I am also a tax accountant and dual US-UK citizen living in the US, so have some knowledge of these issues, but I am far from an expert (and it's such a complex area of the tax code there aren't many real experts around). The first issue is whether your client's sister is a US citizen? If so then she is subject to US tax on her worldwide income, regardless of the source. She also would have FBAR and Form 8938 filing requirements if she met the appropriate thresholds for these.

If not, then I believe the trust has a withholding requirement on any distributions made to her. I've never actually come across this for a trust in practice but I have for a partnership, and I assume it's the same issue (it's Saturday evening so I don't particularly feel like delving into the tax code right now!) - take a look at forms 1042 and 1042-s. if the trust properly withhold tax on her behalf and she is not a US citizen or long-term resident then that withholding tax will effectively meet her US filing requirements.

 

[target2019]

If she is US citizen with income, must file.

 

[nun]

Hi this is Mr. B - the other half of Freebird5825. I need some advice/input on the taxation of a US expatriate. I am a tax accountant (and consider myself to be a pretty good one) and before I delve into the IRS Code I thought perhaps someone here might be able to lend some guidance/experience.

One of my clients has a sister living in the UK and she has been there for a number of years. Has not had any US Source Income for a number of years so has not filed any US Tax Returns. She has UK income and of course pays the UK taxes on that income.

If the lady is a US citizen she is liable to US tax on her worldwide income and so should be filing US taxes for any UK income. She will be liable to UK tax on any UK source income and if she is UK tax resident and taxed on an arising basis she will also be liable to UK tax on any non-UK income and gains. She should also be filing FBAR and FATCA forms if her foreign accounts meet the thresholds.

Here is where it gets tricky. She is a beneficiary of a Trust that was terminated in 2011 upon the death of the trustor. She received a check in 2011 for her share of the trust proceeds. I will be issuing a US Schedule K-1 to each of the beneficiaries (including her) so they can report their share of the income tax due on the income producing portion of the trust for 2011.

I a pretty sure that she will have to file a US Income Tax return for 2011 to report the income tax due on her US Source Income but her being an expatriate I am wondering if she needs to do so or not.

Being a US expat has no bearing on her liability for US tax on the proceeds from this US trust. As a beneficiary she must pay tax on income she receives from the trust.

I have done some preliminary research on the IRS site concerning taxation on expatriates but the rules in this area are quite complex. A lot depends on "when" you became an expatriate (ie what year) and how long you have been an expatriate. Different rules apply depending on when you met these requirements.

Are you referring to the foreign earned income exclusion and foreign tax credit rules? As a US expat you can exclude some foreign earned income and take credit for foreign taxes paid, but it does not change your US tax liability. The IRS code applies to all US citizens no matter where they live and is only modified in some very limited circumstances by tax treaty....an example would be the taxation of SS paid to US expats.

I am hoping there are some US expatriates on here that can provide some insight and guidance that may be perhaps are in a similar situation or have been. Thanks so much. Mr. B

As a US citizen the lady will be liable to US tax on the proceeds of the US trust. How she is taxed by the UK will depend on her UK tax residency status. She will be a UK resident and the beneficiary of a foreign trust. If she is taxed on an arising basis she will have a UK tax liability and she'll have to file a UK Self Assessment Tax Return. You will want to look at the US/UK tax treaty Article 24 to figure out how much tax to pay each country and avoid double taxation.

 

[freebird5825]

From Mr. B - Thanks so much a huge help

NUN - this was an enormous help. I totally understand what you are telling me and this really points me in the right direction. The one question I don't have an answer to is whether she has renounced her US Citizenship or is a Dual Status Citizen. I have sent her an email to that effect and awaiting a response. However, if I am reading you right - if she is STILL a US Citizen she MUST file a tax return every year reporting ALL her US and Non US Income, then take whatever exclusions/credits she can get - regardless of whether she lives in the US or not and regardless of whether or not their is any US Source Income. Thank you so much for the reply -- Mr. B

If the lady is a US citizen she is liable to US tax on her worldwide income and so should be filing US taxes for any UK income. She will be liable to UK tax on any UK source income and if she is UK tax resident and taxed on an arising basis she will also be liable to UK tax on any non-UK income and gains. She should also be filing FBAR and FATCA forms if her foreign accounts meet the thresholds.



Being a US expat has no bearing on her liability for US tax on the proceeds from this US trust. As a beneficiary she must pay tax on income she receives from the trust.



Are you referring to the foreign earned income exclusion and foreign tax credit rules? As a US expat you can exclude some foreign earned income and take credit for foreign taxes paid, but it does not change your US tax liability. The IRS code applies to all US citizens no matter where they live and is only modified in some very limited circumstances by tax treaty....an example would be the taxation of SS paid to US expats.



As a US citizen the lady will be liable to US tax on the proceeds of the US trust. How she is taxed by the UK will depend on her UK tax residency status. She will be a UK resident and the beneficiary of a foreign trust. If she is taxed on an arising basis she will have a UK tax liability and she'll have to file a UK Self Assessment Tax Return. You will want to look at the US/UK tax treaty Article 24 to figure out how much tax to pay each country and avoid double taxation.

 

[freebird5825]

From Mr. B - Thanks so much a huge help

Trirod, thanks so much, this is such a huge help. Between you and NUN I am getting a really good handle on this plus I still have several more responses to read up on. This whole situation with her has arisen only in the last 48 hours.

Being as you are also an accountant I would LOVE to give you all the gory details on this whole mess concerning this situation with this trust and how it affects her and the rest of the beneficiaries. Believe me when I tell you this is an accounting nightmare. My original client (her brother and the fiduciary for the trust) are brand new clients to my firm this year. Through 2011 (which is the year the trust terminated) they were with another accounting firm. Ohh and it gets much worse. The things that should have been done and were not done did not take place. The things that should NOT have been done and were done did take place.

Ahh but I digress LOL. Anyway, based on what you and NUN have told me so far it appears that the main issue seems to be is whether she is still a US citizen or not. I do not know that at this point and have an email off to her specifically asking if she has renounced her Citizenship or is still a US Citizen/Dual Status. I guess, if I am reading everything correct so far, if she is a US Citizen she must file a tax return EVERY year if she has US and/or Non US income and take whatever appropriate credits/exclusions applicable.

Now the only gray area I have is what if she is no longer (ie, renounced) her US citizenship (which I doubt has happened). Different rules/filing requirements?

You have been such a huge help and I thank you so much. Mr. B

Hi Mr. B

I am also a tax accountant and dual US-UK citizen living in the US, so have some knowledge of these issues, but I am far from an expert (and it's such a complex area of the tax code there aren't many real experts around). The first issue is whether your client's sister is a US citizen? If so then she is subject to US tax on her worldwide income, regardless of the source. She also would have FBAR and Form 8938 filing requirements if she met the appropriate thresholds for these.

If not, then I believe the trust has a withholding requirement on any distributions made to her. I've never actually come across this for a trust in practice but I have for a partnership, and I assume it's the same issue (it's Saturday evening so I don't particularly feel like delving into the tax code right now!) - take a look at forms 1042 and 1042-s. if the trust properly withhold tax on her behalf and she is not a US citizen or long-term resident then that withholding tax will effectively meet her US filing requirements.

 

[freebird5825]

THANK YOU ALL so much - found my answers here

Thank you all so much, especially NUN and Trirod for pointing me in the right direction. Your help was invaluable. The answer was right in front of me in
IRS Pub 54: Specifically says:

"If you are a U.S. citizen or resident alien, the rules for filing income, estate, and gift tax returns and for paying estimated tax are generally the same whether you are in the United States or abroad.

Your income, filing status, and age generally determine whether you must file an income tax return. Generally, you must file a return for 2012 if your gross income from worldwide sources is at least the amount shown for your filing status in the following table."

Plus thanks for the tip on Form 2555 - Foreign Income Exclusion. I am not sure whether it was NUN or Trirod that pointed this out to me but what an enormous time saver it is going to be for me having a heads up on it. This gives me the luxury of being able to read up on it and be prepared for it when I do her 2011 1040. I want to once again THANK EVERYONE for taking the time to give your responses. Hopefully all the discourse back and forth between us will help serve somebody else in the future. Mr. B

 

[theOAP]

@ Mr. B

You may also wish to inform the sister in the UK of the following. Not really your problem right now, but could be of interest to your US resident clients.

FOR FUTURE REF.:

It's my understanding that if the sister is still a US citizen and is not filing tax returns for the US, when she dies, any inheritance from her estate directed to a resident of the US (niece, nephew) may be subject to US tax (as determined by the IRS) as unpaid taxes and penalties (penalties are the big issue) and could be witheld from that inheritance destined for the US resident.

Also, make sure the sister has UK citizenship, and is not on an ILR (indefinite leave to remain). This may not be important if the sister has lived in the UK for 17 of the last 20 years, even on an ILR only, as she would then be 'deemed domiciled' for UK inheritance tax purposes.

 

[nun]

Plus thanks for the tip on Form 2555 - Foreign Income Exclusion. I am not sure whether it was NUN or Trirod that pointed this out to me but what an enormous time saver it is going to be for me having a heads up on it. This gives me the luxury of being able to read up on it and be prepared for it when I do her 2011 1040. I want to once again THANK EVERYONE for taking the time to give your responses. Hopefully all the discourse back and forth between us will help serve somebody else in the future. Mr. B

Remember that the 2555 only allows you to exclude Foreign EARNED Income. You will need to use tax credits for other types of income.

You should also look into filing back taxes so that your client comes into full US tax compliance.

Remember you will need to understand how your client is taxed in the UK and how the US/UK tax treaty is applied to file the US taxes correctly. For instance your client might well have a tax liability on the income from the trust in both the UK and the US. You will need to work out how much tax goes to each country and know the tax paid to the UK to claim the correct tax credits on the US return.

 

[Texas Proud]

Remember that the 2555 only allows you to exclude Foreign EARNED Income. You will need to use tax credits for other types of income.

You should also look into filing back taxes so that your client comes into full US tax compliance.

Remember you will need to understand how your client is taxed in the UK and how the US/UK tax treaty is applied to file the US taxes correctly. For instance your client might well have a tax liability on the income from the trust in both the UK and the US. You will need to work out how much tax goes to each country and know the tax paid to the UK to claim the correct tax credits on the US return.

In this vein.... IIRC, you get to choose to use the earned income exclusion OR tax credits... but not both...

Also, the credit is for foreign sourced income...... it would not be used for US sourced income... I lost over $40K of UK based tax credits because I did not have any more foreign sources earned income.... so she would have to pay taxes on the trust income if her total income is large enough....

 

[nun]

In this vein.... IIRC, you get to choose to use the earned income exclusion OR tax credits... but not both...

Also, the credit is for foreign sourced income...... it would not be used for US sourced income... I lost over $40K of UK based tax credits because I did not have any more foreign sources earned income.... so she would have to pay taxes on the trust income if her total income is large enough....

When you elect the FEIE you cannot use foreign tax credits for the income that is excluded. But you can claim foreign tax credits for any income not covered by the FEIE, so that would include pension income, capital gains, dividends and any foreign earned income over the FEIE threshold.

The US trust income is not covered by the FEIE for two reasons, it's not foreign (ie non-US) and it's not earned. If the tax payer is taxed on an arising basis in the UK, then the UK will want the full amount of income tax according to UK law. The tax payer will have to deal with the out of phase US and UK tax years as well. In this circumstance the tax payer would pay the UK in full and offset any US tax liability with UK tax credits. If the tax payer pays the US in full the UK is under no obligation to give credit for the US tax paid.

 

[packrat44]

After reading this thread I definitely know I am not going to become an expat and work in a different country. This is enough to drive a person to drink, and in large quantities.

 

[Texas Proud]

When you elect the FEIE you cannot use foreign tax credits for the income that is excluded. But you can claim foreign tax credits for any income not covered by the FEIE, so that would include pension income, capital gains, dividends and any foreign earned income over the FEIE threshold.

The US trust income is not covered by the FEIE for two reasons, it's not foreign (ie non-US) and it's not earned. If the tax payer is taxed on an arising basis in the UK, then the UK will want the full amount of income tax according to UK law. The tax payer will have to deal with the out of phase US and UK tax years as well. In this circumstance the tax payer would pay the UK in full and offset any US tax liability with UK tax credits. If the tax payer pays the US in full the UK is under no obligation to give credit for the US tax paid.

I would like to pursue this a bit more, even though I think I know what you are saying...

SO, if she has tax domicile in the UK, she would (might) have to pay taxes on this income to the UK... then she would be able to offset her US taxes based on the tax she paid in the UK... if this is what you meant, I agree..

I wasn't sure, but when I was looking at the form when trying to use up my credit... the foreign tax paid credit could be used to offset a specific type of income... IOW, if it is earned income, you could use the credit for foreign earned income.... if it were non-earned income, you could not use credits that you had on foreign earned income... When I had my credits, I was trying anyway to use them.... but it seemed that it mattered how the credit came about as to the ability to use it...

 

[theOAP]

I would like to pursue this a bit more, even though I think I know what you are saying...

SO, if she has tax domicile in the UK, she would (might) have to pay taxes on this income to the UK... then she would be able to offset her US taxes based on the tax she paid in the UK... if this is what you meant, I agree..

I wasn't sure, but when I was looking at the form when trying to use up my credit... the foreign tax paid credit could be used to offset a specific type of income... IOW, if it is earned income, you could use the credit for foreign earned income.... if it were non-earned income, you could not use credits that you had on foreign earned income... When I had my credits, I was trying anyway to use them.... but it seemed that it mattered how the credit came about as to the ability to use it...

In 2006, the 'stacking rule' altered the advantages of using both the FEIE and tax credits. Prior to that time, if you used the FEIE, and had additional income that was required to use the tax credits (passive income), the tax rate on the passive income comenced at 0. After the change, if you used the FEIE and then had additional passive income or additional earned income above the FEIE threshold that required the use of tax credits (Form 1116), the tax rate for the tax credits included the amount of income offset by the FEIE. Hence, a higher tax rate for the additional income.

Today, you use FEIE for earned income up to the threshold, and then use tax credits for additional earned income or passive income. But, you have a choice. You can ignore the FEIE altogether, and use only tax credits for the entire amount. This often works to your advantage under the new rules (you have more credits, especially if it's a high tax country).

To add: There are now 4 or 5 different 'baskets' on Form 1116. Earned income, for example goes into the general basket. Interest income from savings goes into the passive basket. You CAN NOT apply credits from one basket for use in another basket.

 

[freebird5825]

This is freebird5825 typing...Mr B has registered as a forum member, and will be seen as "rich51" sometime in the near future.

He's been cranking away at this project to beat the band. Kinda when when he was in school for 1.5 years getting current on Accounting coursew*rk.

He may be retired, but he is keeping himself busy with some serious brainw*rk.
For myself, I'm still goofing off.

Now back to our regularly scheduled program...

 

[clifp]

After reading this thread I definitely know I am not going to become an expat and work in a different country. This is enough to drive a person to drink, and in large quantities.

Amen. I posted a similar question for a couple of friend considering being ex-pats. I received lots of helpful suggestion from many of the same people (one of things I love about the forum so much expertise). But just looking at links made my brain hurt.

 

[nun]

Today, you use FEIE for earned income up to the threshold, and then use tax credits for additional earned income or passive income. But, you have a choice. You can ignore the FEIE altogether, and use only tax credits for the entire amount. This often works to your advantage under the new rules (you have more credits, especially if it's a high tax country).

To add: There are now 4 or 5 different 'baskets' on Form 1116. Earned income, for example goes into the general basket. Interest income from savings goes into the passive basket. You CAN NOT apply credits from one basket for use in another basket.

Yes, it's vital to characterize your income correctly and decide whether using only tax credits works better than using both FEIE and tax credits. The other wrinkle in all this is then applying the various Articles in the Tax Treaty that give minimum tax rates for certain types of income, the domestic codes and Article 24 to pay each country the right proportion of tax. Also nobody has mentioned the fun of filing HMRC self assessment SA100, SA106 etc forms yet.

 

[Peter]

From time to time, I've thought about returning to the UK, but this thread has put a stop to that idea!

 

[nun]

From time to time, I've thought about returning to the UK, but this thread has put a stop to that idea!

You shouldn't let taxes dictate your actions. It is fairly involved, but there are ways to simplify the issues and once you have a couple of returns done it becomes a lot easier. Most returns are well within the scope of companies like Home - Greenback Expat Tax Services who will file both US and UK taxes for about $1000 and once you have the template, and as long as the law and your circumstances don't change too much, you can file on your own.

 

[MichaelB]

You shouldn't let taxes dictate your actions. It is fairly involved, but there are ways to simplify the issues and once you have a couple of returns done it becomes a lot easier. Most returns are well within the scope of companies like Home - Greenback Expat Tax Services who will file both US and UK taxes for about $1000 and once you have the template, and as long as the law and your circumstances don't change too much, you can file on your own.

+1

 

[Brat]

When I worked at NIKE a fringe benefit of expat status was having your personal taxes done by specialists in that field. Corporate wouldn't go near that stuff.