More on Pre Immigration US Tax Planning - Part III - Transfer tax planning

U.S. Residence for U.S. Estate and Gift Tax Purposes.

The concept of “residence” for income tax purposes should not be equated with “residence” for estate and gift tax purposes. The objective residence definitions under §7701(b) (and the final regulations thereunder issued on April 24, 1992) do not affect the definition of residence for Federal estate and gift tax purposes.  For estate and gift tax purposes, residence in the U.S. requires physical presence in some place in the U.S. and the intention to make that place a fixed and permanent home. Christina de Bourbon Patino, 51-1 USTC ?9123 (4th Cir.), aff’g, 13 T.C. 816 (1949).  Therefore, the determination of residence in this context must be made independently from the determination of residence for income tax purposes. Also, one’s immigration status is not determinative of such person’s U.S. estate and gift tax residence, but is merely a factor in that determination. Because the estate and gift tax regulations in this area are unclear and inconclusive, the determination of a person’s residence for estate and gift tax purposes constitutes a difficult and subjective factual determination.

1. Intention and Overt Act.

The estate and gift tax regulations define “residence” in terms of domicile: “A ‘resident’ decedent is a decedent who, at the time of his death, had a domicile in the United States . . . A person acquires a domicile in a place by living there, for even a brief period of time, with no definite present intention of later removing therefrom.  Residence without the requisite intention to remain indefinitely will not suffice to constitute domicile, nor will intention to change domicile effect such a change unless accompanied by actual removal.” See Regs. §§20.0-1(b)(1) and 25.2501-1(b).

2. Illustrative Cases.

“Domicile” for estate and gift tax purposes is a rather nebulous concept.  Thus, although many cases have dealt with the issue, no clear-cut rule has evolved. However, even though most of such cases are old, the decisive factors noted therein may serve as useful guidelines.

a. In Fifth Ave. Bank of New York, Ex’r., 36 B.T.A. 534 (1937):

The decedent, a U.S. citizen, was born in New York in 1870. Between 1912 and 1920 she traveled back and forth between the U.S. and France. In March 1920 she returned to France, and lived there until her death in 1932. The decedent’s purpose for remaining in France was to seek medical advice for her diabetes and to help her cousin who was experiencing marital difficulties. In addition, she had often stated to a cousin that she intended to return to the U.S. when she regained her health and her cousin’s problems were resolved. Whenever she renewed her passports, she stated her reason to travel abroad to be “temporary residence and travel” but in later renewals she stated her foreign stay to be “indefinite.”  She always stated her domicile as the U.S., paid U.S. taxes until her death, and never claimed foreign citizenship. The Service attempted to classify her as a nonresident decedent for estate tax purposes by arguing that her prolonged stay in France caused her domicile to change.  Under the applicable rules at the time of her death, non-resident decedent status would have adversely affected her estate’s right to an exemption and deduction of certain expenses. The Court, in finding her to be a resident decedent, stated: “Two facts must exist to effect a change over to a new domicile of choice, both residence in the new place and an intention to make the new residence a permanent home. There must be both the fact and the intent.” (at p. 538).

b. In Estate of Bloch-Sulzberger, 6 T.C.M. 1201 (1947):

The decedent, who was born in Switzerland in 1883 and died there in 1941, had stated under oath in various documents and in visas, reentry permits, and tax returns, that he was a U.S. resident. Upon the decedent’s death, the Service attempted to tax him as a U.S. resident. In addition to his dying in Switzerland, the decedent had retained his home and business interests there, and had remained active with Swiss charities and civic organizations. To the Court, the problem was not whether or not the decedent had obtained various benefits by perjured statements, but whether or not he was a resident for U.S. estate tax purposes. In finding him not to be, the Court stated: “[a] resident for estate tax purposes . . . is one who at the time of his death had his domicile in the United States. Intention of the person is extremely important. Domicile is the place which he regards as his home, and where he intends to live. His old domicile continues until it appears that he intends to live there no longer but has an intention to make his home henceforth at some other place and to remain there indefinitely.” (at p. 1203). Because the decedent died in Switzerland, retained his home and business interests there, and remained active with Swiss charities and civic organizations, the Court concluded that he intended for that country to remain his domicile.

c. In Estate of Paquette, 46 T.C.M. 1400 (1983):

The decedent, a Canadian citizen, was born in Canada in 1897. He operated two retail stores in Montreal. In addition, he owned two houses in Canada, one of which was located near his stores in Montreal. The other house was utilized by the decedent as a country house. Beginning in 1950 and up to the time of his death in 1975, the decedent made yearly vacation trips to Florida, generally during the winter months. Thus, the decedent would generally remain in Florida from October through April, returning to Canada for the summer. In 1955, the decedent retired and sold his business. In 1956, the decedent sold his house in Montreal, and in the early part of 1957 he purchased a house in Florida which was furnished with the contents of the house he had sold in Montreal. After 1971, the decedent’s wife became ill and was not able to accompany the decedent when he returned to Canada for the summer. In the fall of 1971, the decedent sold his country house because it required too much work to maintain and he intended to buy a small house or rent an apartment in Montreal. In 1972, the decedent began to experience a series of illnesses and he was hospitalized and treated in Florida. However, he continued to return to Canada to meet with his professional advisors and friends. In 1974, the decedent executed his Last Will and Testament while in Montreal and stated therein that he was a resident of Canada. He returned to Florida in November 1974, and he remained there until he died in January 1975.

In concluding that the decedent was domiciled in Canada, the Court stated: “In addition to his yearly visits to Canada, decedent maintained numerous contacts with his country of citizenship which evidenced his intention to retain his Canadian domicile. Up until the date of his death, he filed income tax returns in Canada, he voted in Canada, and he maintained a valid Canadian driver’s license as well as a valid Canadian passport. In addition, decedent’s automobile was purchased, registered, and insured in Canada. Moreover, it is not without significance that most of decedent’s assets, valued at $556,351.76, were located in Canada. He met with Mr. Larouche and Mr. Bourgeois regularly in Canada concerning his investments. In order to keep his assets liquid, decedent’s portfolio was divided between deposits in Canadian banks and stocks and bonds of Canadian corporations. Decedent returned yearly to actively manage his investments. Decedent met at least twice a year with Mr. Larouche at which time he personally made the decisions of when and where to invest his money. In fact, Mr. Larouche was prohibited from making changes in decedent’s portfolio unless he received personal authorization.

* * *

After careful evaluation of all the evidence, including testimony by those who were well acquainted with decedent, we find that decedent never had any intention to establish a United States domicile.

Decedent maintained many contacts with his native country, and followed a 25-year old practice of spending winters in Florida. We find that decedent never intended to remain in the United States indefinitely.” (at p. 1404).

d. In Estate of Barkat A. Khan, T.C. Memo 1998-22:

The decedent, a Pakistani citizen, had obtained an immigration long-term permanent resident alien green card and a social security number in part to help preserve certain U.S. subsidies, but the decedent died in Pakistan in 1991 and although the 1986 through 1990 U.S. Individual Income Tax Returns for the decedent had incorrectly been filed as nonresident Forms 1040NR, amended Forms 1040 were filed subsequent to decedent’s death. Decedent’s estate was desirous of resident alien domiciliary status (e.g., it wanted to use the larger unified exemption available to an estate of a U.S. citizen or resident alien domiciliary, but not to an estate of a nonresident alien domiciliary) and based its argument largely on decedent’s possession of a green card. However, the Service’s position was that decedent and his wife were not resident alien domiciliaries of the U.S. at the time of his death and that decedent’s estate was not entitled to the full unified credit or the marital deduction. In a decision which, in the authors’ opinion, had numerous factors both for and against resident alien domiciliary status, the court, in finding resident alien domiciliary status, placed significant weight in the decedent’s obtaining a permanent resident alien “green card” plus a re-entry permit when he left the U.S. to return to Pakistan. The case further substantiates that possession of a green card is not conclusive in determining resident alien domiciliary status, although when taking into account all of the facts and circumstances, it can be an adverse factor.

e. In Estate of Jack, 54 Fed. Cl. 590 (2002):

The parties filed cross-motions for summary judgment to determine whether a Canadian citizen employed in the U.S. on the date of his death, having been admitted to the U.S. under a non-immigration, temporary professional classification, was legally capable of forming an intent to be domiciled in the U.S. for Federal estate tax purposes. The decedent’s estate argued that the intent to establish domicile by the holder of a temporary professional visa would be in direct violation of the terms of the visa, so that such an intent would be precluded. The Court granted summary judgment to the Service holding that for Federal estate tax purposes, a Canadian citizen employed in the U.S. on the date of his death, who was admitted to the U.S. under non-immigrant, temporary professional classifications, was legally capable of forming an intent to be domiciled in the United States.

3. Immigration Status--Illegal Aliens.

With respect to the impact of immigration status upon residence status for purposes of estate and gift taxation, so long as the individual in fact resides in the U.S. with no definite present intention of leaving [regardless of what “legal ability” or “disability” the immigration law places him under (compare Rev. Rul. 80-363, 1980-2 C.B. 249 with Rev. Rul. 74-364, 1974-2 C.B. 321 revoked by Rev. Rul. 80-363, 1980-2 C.B. 249, which it revoked, and which are discussed below)], he has formed the necessary intent to become a U.S. domiciliary.

In Elkins v. Moreno, 435 U.S. 647 (1978), the U.S. Supreme Court held in a non-tax related decision that under Federal law, a non-immigrant alien holding a G-4 visa has the legal capacity to establish domicile in the U.S. when the Federal law which governs the granting of the visa does not impose restrictions on intent or duration of stay. The Supreme Court continued to note that even though permanent immigration would normally occur through immigration channels, nonrestricted non-immigrant aliens could adopt the U.S. as their domicile under certain circumstances. Following the Elkins decision, the Service issued Rev. Rul. 80-363, above, in which it concluded that the decedent therein formed the intent and did in fact reside in the U.S. with no definite present intention of leaving, and was therefore a resident decedent (i.e., domiciled in the U.S.): “The Supreme Court of the United States, in Elkins v. Moreno, 435 U.S. 647 (1978), held that, under federal law, a nonimmigrant alien holding a ‘G-4’ visa has the legal capacity to establish domicile within the United States. The Court concluded that when federal law, such as the statute that governs the granting of ‘G-4’ visas, did not impose restrictions on intent or duration of stay, Congress intended that, while permanent immigration would normally occur through immigrant channels, nonrestricted nonimmigrant aliens could adopt the United States as their domicile under certain circumstances.

The question of domicile depends on whether the decedent had formed the intent to remain in the United States indefinitely. In the present situation, decedent was a resident decedent since, at the time of death, domicile had been established in the United States, and decedent had formed the intent and did, in fact, reside in the United States with no definite, present intention of leaving. This is true notwithstanding that decedent had entered and remained in the United States with a ‘G-4’ visa.” (at 1980-2 C.B. 250). See also, TAM 8137027 (a National Office Technical Advice Memorandum which further discussed the relevant issues). In connection with illegal aliens, in Rev. Rul. 80-209, 1980-2 C.B. 248, the Service concluded that an illegal alien who lived in the U.S. for 19 years with his family, had purchased a U.S. residence and had established strong community ties, was domiciled in the U.S. at the time of his death: “The requirements for acquiring a domicile are (1) legal capacity to do so; (2) physical presence; and (3) a current intention to make a home in the place. . .

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. . . Some of the factors used in determining such requisite intention are home ownership, local community ties and living with one’s family in the claimed domicile. See Farmer’s Loan & Trust Co. v. United States, 60 F.2d 618 (S.D.N.Y. 1932). In the present case, the fact that the decedent lived in the United States for a long time with the decedent’s family and that the decedent established strong community ties indicates an absence of any fixed intention of returning to the native country.

* * *

. . . The facts in the present case thus indicate that the decedent intended to remain in the United States indefinitely.” (at 1980-2 C.B. 249).

4. Factors Indicative of Domicile.

As indicated by the illustrative cases above, the factors which are considered in making the determination of whether an alien is a resident for U.S. estate and gift taxation must demonstrate a certain degree of permanence in the U.S. on the part of the alien before he is classified as having a U.S. domicile. As expressed by the Court in Safe Deposit & Trust Co. of Baltimore, 42 B.T.A. 145 (1940), rev’d on other grounds, 316 U.S. 56 (1942):

“. . . the acquisition of a domicile of choice involves actual physical presence at a dwelling place in another state, coupled with the concurrent intent to make it a home. Intention involves the idea of fixity, of some degree of permanence in the new abode, and must be more than the mere intention to acquire a new domicile.” (citing Restatement of Conflicts §§15, 16, 18, and 19 at pp. 162 and 163).

In connection with the determination of domicile, some of the most common factors analyzed in the estate and gift tax context are:

a. The amount of time spent by the decedent in the U.S., in other countries, and the frequency of travel both between the U.S. and other countries and between places abroad. However, a period of extended physical presence in the U.S. alone will not suffice to establish U.S. domicile.

b. The size, cost and nature of houses or other dwellings, and whether those places were owned or rented by the decedent. In Estate of Fokker, 10 T.C. 1225 (1948), the decedent maintained a large home in New York and a smaller home in Switzerland. The Tax Court found the decedent to be a U.S. domiciliary. The Court compared the size of the houses and their localities, and stressed that the location of the Swiss home (in St. Moritz) constituted a resort, pleasure oriented community with international appeal.

c. The area or locality in which the houses and dwelling places are located. See, Estate of Fokker, above.

d. The location of expensive and cherished personal possessions of the decedent. See, Farmers’ Loan & Trust Co. v. U.S., 60 F.2d 618 (S.D.N.Y. 1932).

e. The location of the decedent’s family and close friends. See, Estate of Nienhuys, 17 T.C. 1149 (1952).

f. The places where the decedent has maintained and participated in civic leagues, churches, clubs, etc. See, Farmers’ Loan & Trust Co., above, and Estate of Nienhuys, above.

g. The location of the decedent’s business interests. See, Estate of Fokker, above.

h. The location of the bulk of the decedent’s assets, and the location of his professional advisors. See, Estate of Paquette, above.

i. Where did the decedent file tax returns up until his death. See, Estate of Paquette, above.

j. Declarations of residence or intent made in visa applications for reentry permits, wills, deeds of gift, trust instruments, letters, and oral statements made by the decedent. For example, in Bank of New York & Trust Co., 21 B.T.A. 197 (1930), the decedent, a U.S. citizen, spent the last 5 years of her life traveling in France, Italy and other countries in Europe. The Court found that she was a U.S. resident, and that she did not have the intention to abandon her U.S. residence while in Europe since her purposes for being there were pleasure and health. The decedent’s declarations and actions indicated that her home was in the U.S. (e.g., when applying for passport renewals she stated that she was abroad only temporarily, and

in two trust instruments and a Will executed by her she described herself as a resident of Washington, D.C.). See also, Estate of Fokker, above, Frederick Rodiek, 33 B.T.A. 1020 (1936), aff’d, 37-1 USTC ?9032 (2d Cir.), Estate of Bloch-Sulzberger, above.

k. Whether the decedent used traveler’s checks and international credit cards while in the U.S. rather than U.S. issued credit cards and local accounts.

l. Whether the decedent obtained and used a U.S. driver’s license as opposed to an international one.

m. Whether the decedent acquired in his own name (as opposed to renting) an automobile in the U.S.

n. Whether the decedent spent holiday periods with his family, and if so, where.

o. Whether the decedent brought his family to the U.S.

p. Whether the decedent was engaged in political activity such as voting, public, or military service, abroad.

q. Reasons or motivation for presence of the decedent in the U.S., e.g. health, pleasure, business, war or terrorism in home country or avoidance of political repression or instability in home country.

II. RULES APPLICABLE TO NRAT/D.

A. Gift Tax Rules.

1. Only subject to gift tax on transfer of property situated in the U.S. (“U.S. situs property”) and excluding the transfer of intangible property. Examples: U.S. real estate, tangible personal property, currency, deposits bank accounts? LLCs?

2. No unified credit (but see II.A.7. below).

3. Marital deduction. Depends on citizenship of spouse. If spouse is U.S. citizen, the deduction is unlimited. If spouse is not U.S. citizen, the deduction is not unlimited §2523(i). However limited inflation adjusted $100,000 per year exclusion ($149,000 for 2017) if the gift otherwise qualifies for marital deduction. Examples: NRAT to U.S. citizen. U.S. citizen to Non-U.S. citizen. NRAT to non-U.S.citizen.

4. Annual inflation adjusted $10,000 ($14,000 for 2017) and certain transfers for educational or medical expenses are also available. §§2503(b) and 2503(e). May use irrevocable trust with Crummey powers and discounts. E.g., planning for U.S. real estate.

5. Gift splitting is not allowed unless both spouses are U.S. citizens or RATs. Gift splitting is allowed even for RAT spouses even though one could not gift to another gift tax free except as explained in II.A.3. above.

6. Charitable deductions limited to domestic corporations and/or domestic use.

7. Treaties may change domicile, unified credit, marital deduction and other deductions.

8. Consider change of domicile. Consider making complete gifts of foreign real and foreign tangible personal property, and intangible property wherever situated, before you attain RAT status.

B. Estate Tax Rules.

1. Gross estate only includes property situated within the U.S. (so-called “U.S. situs” property). §§2103 and 2106. Consider §2104(b) incorporating §§2035 to 2038 to transfers of U.S. situs if property was U.S. situs when transferred or upon death, e.g., real estate transferred to foreign revocable trust, trust sells real estate and buys real estate in Brazil? How about transfers to foreign corporations?

2. Credits.

(a) Unified - $13,000. Special rules may apply for NRADs from U.S. possessions or certain treaty countries. §2102(c).

(b) State death taxes. §§2102(a) and 2011.

(c) For certain pre-1977 gifts made within 3 years of death (is a full credit). §§2102(a) and 2012.

(d) Tax on prior transfers. §2013. If a U.S. citizen decedent or RAD has a non-U.S. citizen spouse, the marital deduction is not allowed in the absence of a qualified domestic trust (“QDT”) or a treaty. If the non-U.S. citizen spouse is ultimately subject to U.S. estate tax on this “same” property, a full §2013 credit will be available regardless of when the first decedent spouse died.

3. Marital deduction. Depends on citizenship of surviving spouse and not on status of decedent. If spouse is a U.S. citizen, the deduction is unlimited. If spouse is not a U.S. citizen, there is no deduction unless through a QDT or under a treaty. A QDT requires U.S. citizen or domestic corporation Trustee with right to withhold estate tax on distribution of principal. §2056A. There are other requirements including an election. The surviving spouse can create a QDT or it can be created by decedent’s documents and decedent’s documents can also be reformed. Big drawback is that the QDT tax is imposed as if the property was part of the estate of the first to die so no benefit from surviving spouse tax brackets, credits, etc.

4. Limited deductions. Deductions are allowed in relation to the value of the U.S. gross estate versus the worldwide gross estate.

5. Joint tenancies. §2040(b) 50% inclusion rule does not apply if surviving spouse is not U.S. citizen and instead the contribution rule applies. Be careful with joint tenancies and consider community property issues.

6. Other benefits not available. Foreign death tax credit; special use valuation for farms and closely held business realty; the family-owned business exclusion.; extensions to pay estate tax.

7. Always consider treaties. May override certain provisions.

8. Expatriates. Certain expatriates - special rules apply. §§2107 and 6039G. Also, expatriates include not only former U.S. citizens but also certain specifically defined former long-term permanent resident aliens as defined in § 877(e). See also §2801 for expatriates who expatriate after June 16, 2008.