Estate Planning Concepts for Nonresident Aliens: What Mexican Nationals and Their Advisors Need to Know - San Antonio CPA Society CE Symposium ...
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Estate Planning Concepts for Nonresident Aliens:
What Mexican Nationals and
Their Advisors Need to Know
San Antonio CPA Society
CE Symposium
September 22, 2011Foreign Investment in the United States
Foreign Direct Investment in the United States
Year Amount
2006 $243.2 Billion
2007 $275.8 Billion
2008 $319.7 Billion
2009 $152.1 Billion
2010 $194.5 Billion
Source: Organization for International Investment, September 2011
2Foreign Investment in the United States
Residential Real Estate in Texas
Year Purchased By Nonresidents of the U.S.
2007 8%
2008 7%
2009 11%
2010 8% (projected)
Source: National Association of Realtors, June 2010
3SOI Tax Stats On Nonresident Estate Tax Returns
Form 706-NA Year 2007: IRS Statistics
Number of Form 706-NAs filed: 120
Taxable Returns Over $1 million: 21
Total Amount of Taxable U.S. Property Reported: $71.4 million
Total Reported Worldwide Assets Reported: $171.3 million
Total Taxable U.S. Real Estate Reported: $20.7 million
Total Taxable U.S. Publically Traded Stock Reported: $30.9 million
Total Taxable U.S. Cash Assets Reported: $11.8 million
Lesson: There is vast under reporting of foreign wealth based in the U.S. on estate tax returns. The Obama
Administration is highly aware of noncompliance with nonresident tax provisions and is moving to correct it.
Source: IRS, Statistics of Income Division, September, 2009
4GAO Report On Nonresident Tax Compliance
In May of 2010, the GAO issued a report on NRA tax compliance revealing broad non-compliance with many reporting
and payment requirements.
The report states that few NRAs are fully compliant with U.S. tax reporting requirements. The GAO opines that the
situation is “potentially leading to broader noncompliance if individuals assume the lack of enforcement extends to other tax
rules.”
The Service’s Large and Mid-sized Business division of International Compliance Strategy and Policy Group plans to hire
202 new examiners in 2010.
LMSB International is actively cross-checking international filings across tax regimes to try to close the NRA
noncompliance loop.
LMSB International has an internal marketing campaign within the Service to increase NRA enforcement across
divisions, including income tax and transfer tax areas.
The Obama Administration has been concentrating on offshore/nonresident issues through FBAR, FATCA, and other
initiatives that aim to derive more revenue from these types of taxpayers.
The Internal Revenue Service is targeting NRA noncompliance.
Source: GAO-10-429: Report to the Chairman, Subcommittee on Select Revenue Measures, Committee on Ways and Means, House of Representatives: Tax Compliance – IRS May Be Able to
Improve Compliance for Nonresident Aliens and Updating Requirements Could Reduce Their Compliance Burden, May 14, 2010.
5Treaties
The United States has treaties with the following countries
regarding estate, gift, or generation-skipping transfer tax matters:
Australia Italy
Austria Japan
Canada Netherlands
Denmark Norway
Finland Republic of South
Africa
France
Sweden
Germany
Switzerland
Greece
United Kingdom
Ireland
6Taxes
The Four Taxes
There are four U.S. taxes which must be considered for business and personal estate planning:
Income Tax: A tax on personal earnings, wages, capital gains, and business income. See generally, IRS Publication 519
for information on income taxation of NRAs.
Gift Tax: A tax on gratuitous transfers: any transfer to an individual, either directly or indirectly, where full consideration
(measured in money or money's worth) is not received in return. The gift tax provisions applicable to NRAs are found in Code
Sections 2501(a)(2) and (3), (b) and (c), and 2511.
Estate Tax: A tax arising on the death of an individual levied against the property included in the decedent’s estate. The
estate tax provisions applicable to NRAs are found in Internal Revenue Code Sections 2101 through 2108 and in Code Sections
2208 and 2209.
Generation Skipping Transfer Tax: A tax on a gift to a grandchild, or to an unrelated person 37.5 years younger
than the transferor. generation-skipping transfer (“GST”) made by a NRA is subject to the U.S. GST tax only if the transfer is
also subject either to the U.S. estate tax or the U.S. gift tax or, if the transfer is from a trust, if the NRA's transfer to the trust
was subject to the U.S. estate or gift tax.
7Forms
These are some of the tax forms associated with international taxation.
Form W-7 — (Application for Individual Taxpayer Identification Number)
W-8 — Certificate of Foreign Status
W-8EXP — Certificate of Foreign Government or Other Foreign Organization for United States Tax
W-8BEN — Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding
W-8ECI — Certificate of Foreign Person’s Claim for Exemption From Withholding on Income Effectively Connected With the
Conduct of a Trade or Business in the United States
W-8IMY — Certificate of Foreign Intermediary, Foreign Partnership, or Certain U.S. Branches for United States Tax
Withholding
Form 706 — United States Estate (and Generation-Skipping Transfer) Tax Return
Form 706-A — United States Additional Estate Tax Return
Form 706-GS(D) — Generation-Skipping Transfer Tax Return for Distributions
Form 706-GS(D-1):Notification of Distribution from a Generation-Skipping Trust
Form 706-CE — Certificate of Payment of Foreign Death Tax
Form 706-GS(T) — Generation-Skipping Transfer Tax Return for Terminations
Form 706-NA — United States Estate (and Generation Skipping Transfer) Tax Return
Form 706-QDT — U.S. Estate Tax Return for Qualified Domestic Trusts
Form 720 — Quarterly Federal Excise Tax Return
8Forms
Here are some more. This list is from California Attorney Phil Hodgen: Hogden.com
Form 1001 — Ownership, Exemption, or Reduced Rate Certificate
Form 1040NR — U.S. Non-Resident Alien Income Tax Return
Form 1040NR-EZ — U.S. Income Tax Return for Certain Nonresident Aliens with No Dependents
Form 1042 — Annual Withholding Tax Return for U.S. Source Income of Foreign Persons
Form 1042-S — Foreign Person’s U.S. Source Income Subject to Withholding
Form 1078 — Certificate of Alien Claiming Residence in the United States
Form 1120-F — U.S. Income Return of a Foreign Corporation
Form 5472 — Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S.
Trade or Business
Form 8288 — U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests
Form 8288-B — Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests
Form 8300 — Report of Cash Payments Over $10,000 Received in a Trade or Business
Form 8709 — Exemption from Withholding on Investment Income of Foreign Governments and International
Organizations
TD F 90-22.1 — Report of Foreign Bank and Financial Accounts
TD F 90-22.47 — Suspicious Activity Report
TD F 90-22.53 — Designation of Exempt Person
9Status for Income Tax
Any individual who is not a “resident” of the U.S. is subject to U.S.
income tax only on U.S. income.
“Resident” means:
The individual is a lawful permanent resident of the U.S. (green card holder), or
The individual is deemed “substantially present” in the U.S.
10Status for Income Tax
Substantial Presence Test
A mathematical calculation comprised of two parts:
The 31-day test and the 183 day test.
To be considered substantially present in the U.S. under the test, an alien must be physically
present in the U.S. for at least 31 days during the current calendar year, and 183 days during
the 3-year period that includes the current year and the 2 years immediately before that,
counting:
All the days present in the current year, and
1/3 of the days present in the first preceding year, and
1/6 of the days present in the second preceding year
Summary: if an alien is in the U.S. for an average of 122 days each year over three years,
then the test is met.
There are certain exceptions available even if the substantial presence test is met. The
Service will look to “closer connections” to determine income tax residency. Certain exceptions
and alterations of the basic test are articulated in Mexico-US income tax treaty.
11Status for Income Tax
Substantial Presence Test Decision Tree from IRS
12Status for Income Tax
Why Residency Matters
Resident Alien Status: U.S. income tax imposed on worldwide income.
Nonresident Alien Status for Income Tax Purposes: U.S. income tax
imposed only on income from the U.S.
See Publication 519 for more details.
13Status for Income Tax
Why Residency Matters
A NRA is subject to U.S. income tax on income effectively connected with a U.S. trade or
business at the same rates as apply to U.S. income tax residents.
Income from fixed or determinable annual or periodical gains, and profits, are generally taxed
at a flat 30%.
Interest on bank deposits, and “portfolio interest” such as income from bonds, is exempt from
U.S. income taxation.
Gains from the sale of a stock of a U.S. corporation are generally exempt from income
taxation, unless the NRA is present in the U.S. for 183 days in the year of sale.
Rental income from a U.S. source will generally be taxed at the 30% level unless the NRA
makes an affirmative election to treat it as business income.
The sale of U.S. real property results in capital gains tax if gains are realized. Under the
Foreign Investment in Real Property Tax Tax (FIRPTA) there is a withholding of 10% of the
amount realized. FIRPTA withholding applies if the sale is for a loss or for a gain.
14Status for Income Tax
US-Mexico Tax Treaty
Article 4 of the U.S.-Mexico Income Tax Treaty, augments the basic “substantial presence” test. Under the
terms of the Treaty, having a “permanent home” available in the U.S. is a factor in determining income tax
residency.
If a Mexican national has permanent homes in both the U.S. and Mexico, then the Treaty requires the
application of a legal test that looks to the taxpayer’s “center of vital interests,” or “habitual abode.”
Mexican nationals should be aware that owning a home in the U.S. is a tiebreaking factor in determining
income tax residency under the Treaty.
The U.S.-Mexico Income Tax Treaty modifies the tax rates on dividends from U.S. corporations, and
interest on debts and mortgages. Additionally, there are credits available to mitigate double taxation.
Income that tax residents of Mexico receive for personal services performed in the U.S. as independent
contractors or self-employed individuals are exempt from income tax in the U.S. if the Mexican national is
not in the U.S. for more than 183 in a 12-month period, and has no “fixed base” that they regularly use to
perform services.
The Treaty also makes special provisions for Mexican students in the U.S. so that their worldwide income
is not taxed even if they stay for extended periods of time.
15Status for Income Tax
Reporting Obligations.
In additional to paying tax on worldwide income to the U.S., income tax residents
are also required to report information to the Service:
If a domestic corporation has foreign shareholders owning 25% or more then it must
file Form 5472 to report transactions with foreign or domestic “related parties.”
U.S. persons who receive aggregate foreign gifts or bequests of more than $100,000
from an individual, or $10,000 from a partnership or corporation, during a tax year
are required to file Form 3520.
U.S. person who “controls” a foreign corporation or partnership (greater than 50%
vote or value), or who is a 10% shareholder of a “controlled foreign corporation,”
must file Form 5471 (for corporations) or Form 8865 (for partnerships) to report
certain information concerning the foreign corporation or partnership
16Status for Income Tax
Reporting Obligations.
A U.S. grantor of a foreign trust must file Form 3520, and if there is a US beneficiary,
he or she must file Form 3520-A to report trust information.
Report of Foreign Bank and Financial Accounts, or FBAR, Form is TD F 90-22.1.
Requires a US tax resident to report foreign accounts with a value over $10,000.
Offshore Voluntary Disclosure Initiative ended September 9, 2011. US tax resident
can still disclose, but amnesty is not guaranteed and civil penalties will have to be
negotiated.
U.S. owner of passive foreign investment companies (often interpreted by the Service
to include foreign mutual funds) must file Form 8621(there are also some ugly tax
consequences to owning PFICs for U.S. tax residents).
17Status for Transfer Tax
Tests Not The Same
The tests for income tax treatment and transfer tax treatment of foreign persons
are not the same under U.S. law.
Meeting a “domicile” test subjects a person to transfer tax, not the “residency” test
used for income tax.
18Status for Transfer Tax
“Domicile” Means:
The individual is physically present in the U.S., and
The individual has the current intention to remain indefinitely in
the U.S.
• Intent is the operative factor
• Shown by surrounding facts and circumstances
19Status for Transfer Tax
What “Domicile” Really Means:
Alien was in the U.S. because he could not return home to Holland during World
War II. For his living space, the alien bought only “light, inexpensive furniture.” The
alien did not join a church while in the U.S. At death the alien’s remains were taken
to Holland. Held: no U.S. domicile. See Estate of Nienhuys v. Commissioner, 17
T.C. 1149 (1952).
Canadian alien had a home in Florida where he lived from October to April. He had
no home in Canada. But he voted and filed income tax in Canada, and kept his
Canadian driver’s license plus car registration. The widow testified that the alien
decedent intended to keep Canadian domicile. Held: No U.S. domicile. See Estate of
Paquette v. Commissioner, T.C. Memo 1983-571 (1983)
Alien left the U.S. in 1986, returning to home country Pakistan. He died in 1991.
Though the decedent held a green card, he allowed his re-entry permit to expire,
and had filed Form 1040NR purportedly abandoning the U.S. as an income tax
resident. Decedent never spoke English. Held: domiciled in the U.S. for estate tax
purposes. The court emphasized that the tests for income tax residency and estate
tax domicile are distinct. See Estate of Khan v. Commissioner, T.C. Memo 1998-
22 (1998).
20Status for Transfer Tax
Why Domicile Matters:
Domiciled alien: U.S. estate tax imposed on worldwide estate.
Non-Domiciliary status for Estate Tax Purposes: U.S. estate tax
imposed on estate of U.S. situs property only.
For the balance of this presentation, a “NRA” is defined as an
individual who is not domiciled in the U.S. for estate tax purposes.
Some practitioners refer to these individuals as “Non-Doms.”
21What’s The Difference? For 2011, 2012…and beyond?
US Domiciliary: Non-Domiciliary:
Taxed on property worldwide Taxed on U.S. situs property
$13,000 Annual 2503(b) Gift $13,000 Annual 2503(b) Gift
Exclusion Exclusion
Under unified credit can gift up to No unified credit. Taxed on gifts
$5 Million in life. over annual exclusion
$60,000 Estate Tax Exemption
$5 Million Estate Tax Exemption
under unified credit. $5 Million GSTT Exemption
$5 Million GSTT $136,000 Annual Gift Exemption to
Non-citizen Spouse (Indexed)
Unlimited Marital Deduction
Unlimited Marital Deduction for gift
to noncitizen spouse allowed at
death only through a special trust
(QDOT).
22What’s The Difference? Special Rules for 2010
US Domiciliary: Non-Domiciliary:
No Estate Tax No Estate Tax
Carryover Basis Carryover Basis
Can Step Up $1.3 Million in Can Step Up $60,000 in Basis
Basis Additional $3.0 Million
Additional $3.0 Million Spousal Basis Step Up
Spousal Basis Step Up No GSTT applied
No GSTT applied
23Estate Taxation of Non-Domiciliaries
Special Estate Tax Rules for 2010 for Non-Domiciliaries
No Estate Tax on U.S. situs property
Can get a basis step up on $60,000 of U.S. property
Can get spousal basis step up on $3.0 million of U.S. property
Cannot elect QDOT treatment for trusts benefiting a surviving NRA spouse.
QDOTs explained below.
Transfer from a U.S. estate to a NRA is treated as a sale.
Gains must be recognized by the estate if the fair market value exceeds
decedent’s basis.
24Estate Taxation of NRAs
Estate Tax Rules for 2011
No unified credit available to Non-Domiciliaries.
Non-Domiciliaries receive instead an “estate tax credit” of
$13,000. Treaties alter this rule.
In essence, a Non-Domiciliary can pass $60,000 of U.S. situs
property free of estate taxes.
The estate tax rate imposed on transferred property over $60,000
is progressive, with a maximum rate of 35%.
25Estate Taxation of NRAs
Estate Tax Imposed on NRA’s “Gross Estate” in the U.S.
Code Sections 2031 through 2046 are used to determine what property is included
in the Gross Estate.
Same tests as those used for a U.S. citizen or domiciliary.
If property falls under these Code Sections, then a further analysis is required to
ascertain the “situs” of the property for NRA transfer tax purposes.
Property that has a U.S. situs is included in the Gross Estate of the NRA for U.S.
transfer tax purposes.
26Estate Tax Situs Rules
Upon the death of a NRA, the NRA’s estate shall be assessed estate taxes
on any property deemed to be situated within the U.S. on the date of
death. See Code Sections 2101 and 2103.
Application of the situs rules differ depending on the nature of the
property.
The situs rules for Estate Tax and Gift Tax are not the same for purposes
of determining a NRA’s tax liability.
This disjunction provides for both confusion and planning leverage.
27Estate Tax Situs Rules
Property Deemed to Have U.S. Situs for Estate Tax
U.S. Real Estate. See Treas. Reg. §20.2104-1(a)(1).
U.S. real estate is in the gross estate of the NRA if owned directly, or owned as
a joint tenant (to the extent the NRA contributed to the acquisition of the
property).
Common use of foreign corporate forms to hold U.S. real estate.
• If a foreign corporation owns U.S. real estate, the death of the stock holder
results in no inclusion of either the real property or the foreign corporation
stock in the U.S. estate.
• Other tax implications must be carefully considered before implementing
any ownership structure using an offshore corporation.
• See discussion of structuring of NRA home purchases in the U.S., following.
28Estate Tax Situs Rules
Property Deemed to Have U.S. Situs for Estate Tax
Tangible Personal Property
If the property is located in the U.S., it is includible in the gross estate. See Treas. Reg.
§20.2104-1(a)(2).
Cash in a safe deposit box is tangible personal property. See Rev. Rul. 55-143.
Property in transit is not included in the gross estate.
• Jewelry and personal effects of NRA who died in Florida during stop-over en route from
Canada to Nassau, was not U.S. situs property for federal estate tax purposes. See Murchie
v. Delaney, 82 F.Supp. 176 (D. Mass), aff’d 177 F.2d 444 (1st Cir. 1949).
Artwork on loan to a gallery is also excluded. See PLR9141014
29Estate Tax Situs Rules
Property Deemed to Have U.S. Situs for Estate Tax
Stock in a U.S. corporation. See Code Section 2104(a).
Both publicly-traded and closely-held stock have U.S. situs.
Note: the rule is the opposite for gift tax.
Shares of mutual funds incorporated in the U.S. See Code Section 2104(a).
Includes money market funds.
U.S. Partnership Interest? See Code Section 2103.
The treatment of interests in U.S. partnerships and limited liability
corporations are by no means clear.
See discussion later in this presentation.
30Estate Tax Situs Rules
Property Deemed to Have U.S. Situs for Estate Tax
Trust Interests
Property owned by a NRA through a revocable trust is treated as owned by
the grantor. See GCM 38916
Whether or not a trust will be includible in a NRA’s U.S. estate should be
analyzed in a manner similar to those used for U.S. citizens, that is, through
application of Code Sections. 2033 - 2046.
Case law holds that a NRA’s interest in an irrevocable trust should be
considered as an interest in each asset of the trust. See CIR v. Nevius, 76 F.2d
109 (2nd Cir. 1935).
Just because a trust is a “foreign trust” and is not subject to U.S. income taxes
does not preclude its assets from inclusion in the NRA’s gross estate for U.S.
estate tax purposes.
31Estate Tax Situs Rules
Property Deemed to Have U.S. Situs for Estate Tax
Transfers Under Code Sections 2035-2038
The “transfer sections” of the Code apply to U.S. situs interests held by NRAs
(e.g. U.S. real estate transferred to a revocable trust)
Debt Obligations that do not meet the “portfolio interest” exception of Code
Section 871(h).
Nonbank Deposits (e.g. cash in a brokerage money market account).
Intangible Property (if enforceable against a U.S. resident)
Patents, copyrights, goodwill, trademarks, etc.
Right to receive payment from a U.S.-issued annuity.
32Estate Tax Situs Rules
Property Deemed to Have Non-U.S. Situs for Estate Tax
Foreign Real Estate. See Treas. Reg. §20.2105-1(a)(1).
Foreign Tangible Personal Property: physically located outside U.S. See Treas. Reg.
§20.2105-1(a)(2).
Life Insurance: proceeds from a policy owned by the NRA on the life of the NRA,
issued by a U.S. carrier. See Code Sections 2104(c) (1) and 2105(a)
Extremely powerful planning opportunity for NRAs.
Note: cash value of a policy on the life of another individual is includible.
Stock issued by foreign corporations.
Shares of foreign mutual funds.
33Estate Tax Situs Rules
Property Deemed to Have Non-U.S. Situs for Estate Tax
Deposits in Foreign Branches of Domestic Banks. See Code Section 2105(b)(2).
Domestic Bank Accounts: Deposits and CDs at a U.S. bank, savings institution, or
credit union. See Rev. Rul. 83-175, 1983-2 C.B. 109.
Unless the interest earned is effectively connected with the conduct of a trade
or business in the U.S. See Code Section 2105(b).
Or, if the NRA is deemed a U.S. resident for income tax purposes.
Caution: while accounts holding money in depository institutions (aka “banks”) are
non-U.S. situs for estate tax, cash in a brokerage money market account is deemed
to have U.S. situs for estate tax purposes.
34Estate Tax Situs Rules
Property Deemed to Have Non-U.S. Situs for Estate Tax
Foreign Partnership Interests if not engaged in U.S. business
See general discussion of includibility of partnership interests below.
Code Section 871(h) Obligations: debt instrument issued by a U.S. person if the
interest generated constitutes “portfolio interest” under 871(h)).
Most U.S. corporate bonds and government bonds meet the portfolio interest
exception.
Review investments carefully under Code Section 871(h) to determine if the
debt holdings do indeed fall under the portfolio interest exception.
35Estate Tax Situs Rules
Analyzing Partnership Interests
The U.S. estate tax treatment of a partnership, or LLC, interest held by a NRA is not clear.
There is no bright line rule as to whether a NRA partner would be deemed to own a pro-
rata share of the underlying assets of the partnership or whether a partnership ownership
would be treated as an intangible interest.
The IRS has specifically declined to rule on the gift tax status of a partnership interest
owned a NRA. See Rev. Proc. 99-7.
The refusal to rule likely also extends to estate tax treatment.
Without further guidance from the Service, ascertaining whether or not a partnership or LLC
interest owned by a NRA is taxable in the U.S. estate becomes a matter of relying on other
authority, such as case law.
If a one-person LLC is classified as a corporation for U.S. income tax purposes, it is
arguable that the interest should be treated like corporate stock for estate and gift tax
purposes in the NRA context.
Partnership interests owned by a NRA must be carefully considered for transfer tax
purposes.
36Estate Tax Situs Rules
Analyzing Partnership Interests
If the Service will not provide guidance, then how about other sources of
guidance? The judicial, regulatory and legislative history is inconsistent, with
both the “aggregate” approach and the “entity” approach used by authorities
to analyze NRA ownership of partnership interests.
• Aggregate: looks a variety of factors to determine situs.
• Entity: looks to the legal status of the entity to determine situs.
Case law is sparse, and the lack of guidance on this issue leads to uncertainty.
This, in turn, leads to conservative planning.
•
37Estate Tax Situs Rules
Analyzing Partnership Interests
The seminal case in support of an aggregate approach is Sanchez v. Bowers, 70 F.2d 215
(2nd Cir. 1934).
In Sanchez, Judge Learned Hand held that the death of a resident and citizen
of Cuba caused the termination of a Cuban entity in which the decedent had an
interest (sociedad de gananciales).
This termination, in turn caused the estate to own a proportionate share of the
entity’s assets. It is arguable that had the entity not terminated, nothing would
have been included in the estate.
In dicta, however, the court suggested that the level of the entity’s activities in
the U. S. could also be a foundation for inclusion of the assets in the estate.
•
38Estate Tax Situs Rules
Analyzing Partnership Interests
In support of the entity theory, that a partnership or LLC interest is akin to an interest in a
corporation and therefore inclusion in the gross estate is determined by reference to the
status of the partnership (domestic or foreign), is Blodgett v. Silverman, 277 U. S. 1
(1928).
In Blodgett the Supreme Court affirmed a lower Connecticut court decision that held that a
partnership interest was intangible property even though the partnership owned real estate.
Since the decedent was domiciled in Connecticut at his death, a Connecticut law taxing the
succession of all personal property of a domiciliary applied.
•
39Estate Taxation of NRAs
Deductions on NRA Estate Taxation
Much like the estate of a U.S. citizen, a NRA’s estate is permitted to take deductions for
expenses, losses, indebtedness, transfers for public, charitable and religious uses, and
state death taxes. A NRA’s estate may also take a marital deduction (limited when there
is a non-U.S. citizen surviving spouse).
Permitted Deductions for a NRA’s estate Include:
Deductions for expenses, losses, indebtedness and taxes. See Code Sections 2053
and 2054.
Charitable Deduction. See Code Section 2106(a)(2)
Marital Deduction. See Code Section 2056A
40Estate Taxation of NRAs
Deductions on NRA Estate Taxation
Deductions for U.S. estate tax under Code Sections 2053 and 2054 are calculated
pursuant to the ratio of the U.S. estate to the worldwide estate.
Example: If an NRA has a world-wide estate of $1,000,000, with $250,000 of
U.S. situs property subject to U.S. estate, and qualified expenses totaling
$100,000, then the U.S. estate tax deduction would be limited to $100,000 x
($250,000 / $1,000,000) = $25,000.
The same analysis is used for personal indebtedness in the US.
Filing for a deduction under Code Sections 2053 or 2054 for U.S. estate tax
requires disclosure of worldwide property on Form 706-NA.
• Privacy issues must be balanced against the value of the deduction.
• Higher risk of audit when deduction is taken.
41Estate Taxation of NRAs
Deductions on NRA Estate Taxation
Charitable deductions for U.S. estate tax under Code Sections
2106(a) are limited to transfers for the exclusive use of the U.S.
government or political subdivision, or a U.S. domestic charity.
See Treas. Reg. §20.2106-1(a)(2).
Executor had the power to make gifts to both U.S. and foreign
charities. The executor chose to make gifts solely for the
benefit of U.S. charities and claimed a deduction on Form 706-
NA. The Service denied the charitable deduction as not
complying with Code Section 2106(a)(2). See PLR9135003.
Some estate tax treaties modify this rule.
42Estate Taxation of NRAs
Deductions on NRA Estate Taxation
Unlimited marital deduction is available for the estate of NRAs.
If the surviving spouse is a U.S. citizen, the unlimited marital deduction applies.
If the surviving spouse is not a U.S. citizen, the marital deduction can be
claimed only for property passing to a Qualified Domestic Trust (Code Section
2056A).
QDOT trusts are generally extremely unfavorable to the surviving NRA spouse,
but are the exclusive avenue to pass U.S. situs property to a non-citizen spouse
tax-free.
Note that surviving spouses who are legal permanent residents (green card
holders) are still subject to the QDOT rules for the marital deduction.
Only U.S. citizens obtain the benefits of the unlimited marital deduction
without using a QDOT.
43Estate Taxation of NRAs
Basic QDOT Rules
Trustee must be U.S. citizen or corporation.
If the QDOT is over $2 million, the trustee must be a U.S. bank, or the
individual trustee must post a bond equal to 60% of the value of the trust.
Income can be distributed tax-free to the surviving spouse, but principal
distributions are taxed at estate tax rates in effect at death of the decedent spouse.
For example, if the decedent spouse died in 2007, the estate tax rates from
that year, as applicable to the decedent’s estate, will be applied to QDOT
distributions from principal in 2012.
There is a hardship exception for some principal distributions that will avoid
taxation, such as qualified medical care, or necessary support.
44Estate Taxation of NRAs
Basic QDOT Rules
Surviving NRA spouse can convert out of QDOT if he or she later becomes a U.S.
citizen.
QDOTs can be formed post-mortem by surviving spouse, up to 15 months after the
death of the decedents. Election is made on the estate tax return.
At the death of NRA spousal beneficiary, estate tax is imposed on the property at
the rate applicable for the estate of the first spouse to die.
Comment on QDOTs: they are not a favorable planning tool. The restrictions on the
surviving spouse are onerous. However, QDOTs are the only way to defer estate tax
through a marital deduction where a NRA surviving spouse is involved. QDOTs
should be used as a backstop for U.S. property that can not otherwise be planned
around.
45Estate Taxation of NRAs
QDOT Rules for 2010
No QDOT election available in 2010.
Analogous to how no marital deduction is available in 2010.
Proper planning will allow the QDOT to “spring” in 2011 when
QDOT elections will again be permissible.
Non-hardship principal distributions in 2010 are still taxed at the
estate tax rate of the date of death of the U.S. citizen spouse.
QDOT beneficiaries do not get a break from estate tax in 2010.
46Estate Taxation of NRAs
Miscellaneous Rules and Observations
In years other than 2010, NRAs receive a step-up in basis for U.S.
property under Code Section 1014.
The estate of a NRA is not eligible for Code Section 2032A special use
valuation, meaning no special deductions for working ranches or
farms.
In 2010, a transfer of assets from a U.S. person's estate to a
nonresident beneficiary who is not a U.S. citizen is treated as a sale
or exchange of the assets for fair market value. The estate must
recognize gain to the extent the fair market value exceeds the
decedent's basis in the assets that are transferred.
47Gift Taxation of NRAs
Summary of Gift Tax Rules for NRAs
Gifts by NRAs are subject to U.S. gift tax only if the gift is physically
located within the United States and is one of real estate or tangible
personal property. See Code Section 2511(a)
Gift tax does not apply to gifts of intangible property regardless of
where located, or gifts of property situated outside of the U.S. See
Code Section 2501(a)(2).
48Gift Taxation of NRAs
Annual Gift Tax Exclusion for NRAs
Nonresident aliens are entitled to the applicable annual gift tax
exclusion (currently $13,000 per year per donee) for taxable gift
transfers.
A transfer to a nonresident alien spouse (i.e., one that is not a U.S.
citizen) does not qualify as a transfer made subject to the unlimited
marital deduction for gift tax purposes. NRAs do not get benefit of
unlimited marital deduction that applies to U.S. residents.
49Gift Taxation of NRAs
Annual Gift Tax Exclusion for NRAs
A transfer to a nonresident alien spouse is entitled to an increase in
the applicable annual gift tax exclusion (currently $134,000 per
year) for taxable gift transfers.
NRAs are not allowed to “gift split” with a spouse regardless of
whether the spouse is a U.S. resident or citizen.
NRAs have no “unified credit,” so gifts over the applicable annual
exclusion amounts are taxed immediately upon transfer.
Some tax treaties address gift taxation.
50Gift Taxation of NRAs
Gifts of Intangible Property
Gift tax does not apply to any transfer of intangible property by
NRAs.
Unless the donor is a U.S. expatriate who lost citizenship
within the ten-year period ending on the date of the transfer
and who had for one of his or her principal purposes the
avoidance of income, estate or gift tax (“the U.S. expatriate
rule”).
51Gift Tax Situs Rules
Intangible Personal Property for Gift Tax Purposes
U.S. stocks are deemed intangible property for U.S. gift tax purposes.
Treas. Reg. §25.2511-3(b)(3) provides that irrespective of where the stock
certificates are physically located at the time of the transfer, shares of stock
constitute property situated outside the United States.
Provides huge transfer opportunities for NRAs who own U.S. stocks.
Lifetime gift transfers of stock to family members, trusts, etc. generate no
transfer tax liability.
Powerful estate planning tool for pre-immigration planning, and for those
NRAs who retain non-U.S. domicile.
52Gift Tax Situs Rules
Intangible Personal Property for Gift Tax Purposes
Stock in a domestic corporation (PLR 8342106)
Treasury Bills (PLR 8210055)
Cash contributed to an irrevocable trust (PLR 8120030).
This rule provides enormous planning leverage for NRAs.
Bank deposits or obligations of which the U.S. is the primary obligor (PLR 8210055)
At right to sue (“chose in action”) under corporate stock, bonds, notes, bank deposits,
patents, partnership interests, goodwill, etc. (PLR7737063)
Reminder on Partnership Interests
Rev. Proc. 99-7 stipulates that the Service will not issue a private letter ruling on whether a
partnership interest constitutes intangible property for NRA gift tax purposes.
53Gift Tax Situs Rules
The Trouble With Cash
Cash is tangible personal property for NRA gift tax purposes.
Counterintuitive: Bank deposits are not U.S. situs property for NRA estate tax purposes.
The Service maintains that cash constitutes tangible personal property and does not qualify
for the exception for gifts of intangible property. PLR7737706.
Transfer of cash through a check or wire transfer by a U.S. bank does not meet an exception
– it is personal property for NRA gift tax purposes.
But: transfer of cash by checks drawn on a foreign bank and payable by a U.S. bank not
subject to gift tax since that property originates outside the U.S.
Cash and checks are tangible personal property.
54GST Taxation of NRAs
Basic Generation Skipping Transfer Tax Rules
A gratuitous transfer of property from a NRA or a NRA’s estate is
subject to generation skipping transfer tax (“GSTT”) if the transfer of
the property is subjected to either estate tax or gift tax. GSTT applies
to gifts to skip persons, generally grandchildren, or trusts for their
benefit, or to individuals 37.5 years and younger than the donor.
A NRA or a NRA’s estate is allowed the same generation-skipping
tax exemption amount that U.S. citizens or U.S. resident aliens are
allowed.
In 2011, a NRA is afforded a $5 million GSTT exemption, a
$13,000 gift tax exemption, and a $60,000 estate tax exemption.
55GST Taxation of NRAs
GST Taxation: Application
NRA makes a lifetime gift of U.S real estate to grandchild X and a lifetime gift of
Microsoft stock to grandchild Z.
Only the gift of real estate to X is subject to generation-skipping transfer tax
because the gift of stock is not subject to U.S. gift taxation.
NRA’s U.S. Will provides that separate share trusts of X and Z be created with U.S.
real estate and Microsoft stock.
Transfers to the trusts should receive an allocation of the NRA’s GSTT
exemption because both the stock and the real estate are subject to U.S. estate
taxation and are so deemed to be subject to GSTT as well.
56Practical Estate Planning
Drafting Wills and Trusts in Texas
Under Texas law, a Mexican national’s non-U.S. Will can be admitted through
ancillary probate proceedings.
This is costly and not a favorable approach to the disposition of Texas property.
A Mexican national may execute a Texas Will to dispose of Texas property at death.
A valid Texas Will works for a Mexican national decedent just as it does for a native
of Texas.
There is no forced heirship in Mexico. In many other civil code jurisdictions,
such as France, U.S. estate planning documents can be challenged. Mexican
testators can choose their own devisees.
All formalities of a Texas Will apply, so if a Will to be admitted to court is
executed outside the United States, then an apostille from a Mexican notario is
required for the testator’s signature in Mexico.
57Practical Estate Planning
Drafting Wills and Trusts in Texas
A Mexican national may establish a revocable management trust to control and to
title property with Texas situs.
A Texas revocable management trust is a favored vehicle for Mexican nationals:
Property titled in the name of the trust passes privately.
A management trust provides for transfer on death of securities accounts where
Patriot Act or compliance issues preclude pay on death account designation.
Passes property in accordance with the NRA’s desires.
Provides for management of Texas property if the NRA is incapacitated.
Can incorporate significant tax-motivated testamentary planning.
Enforceable if the property or account is reachable by a Texas court.
58Practical Estate Planning
Drafting Wills and Trusts in Texas
Mexican nationals who visit Texas frequently should execute Medical Powers of
Attorney, a Medical Directive and a Durable Statutory Power of Attorney.
Name agents to direct financial decisions and medical care in the event of
incapacitation.
Institutions are bound to honor the wishes of the principal, even if agents are
domiciled across the border.
Coordination between U.S. and Mexican advisors is critical for all aspects of NRA
estate planning.
Brokers, CPAs, attorneys, business partners, and families should comprehend
and commonly execute cross-border estate planning strategies.
59Practical Estate Planning
Marital Property Characterization
Mexican nationals married in Mexico may elect to characterize marital property as community
or separate property
Separate property characterization is most common.
For U.S. estate tax purposes, if not subsequently modified, the original characterization of
marital property shall apply.
• Decedent acquired 50,000 shares Citigroup stock. He was married to his wife under
a separate property regime. The couple lived in a community property regime for 30
years prior to the NRA’s death. The Service successfully argued that the marital
property characterization laws of the country of marriage applied. See Estate of
Charania, 133 T.C. No.7 (9/14/2009)
Characterization of property by Mexican national clients is a critical consideration for
estate planning purposes.
60Practical Estate Planning
The Problem With Real Property
In 2011 a NRA will be able to pass $60,000 of U.S. situs property
without incurring estate tax. Real property in the U.S. is deemed to
be in the U.S. estate of a NRA.
NRA clients who own virtually any real estate in San Antonio in
their own name are likely subject to U.S. estate tax.
Most Mexican nationals are completely unaware that the
purchase of their U.S. home includes the purchase of estate tax
liability.
61Practical Estate Planning
The Problem With Real Property
Use of Corporate Structures to Own U.S. Real Property
Offshore corporate structures are often characterized as a solution – sometimes the only solution -
to the tax issues that apply to NRA ownership of U.S. real property.
Competing tax interests: structures useful for estate tax purposes may have negative income tax
implications if the property is sold before death, or if the real property generates income.
Offshore corporate structures carry with them significant issues that client and advisors should not
ignore:
• If the NRA lives in the home for free, the foreign corporation could have imputed income.
• For example: at death, there is no step-up in basis of real property owned by the foreign
corporation.
• Consider also U.S. heirs, who will inherit a controlled foreign corporation.
Offshore corporate structures are powerful and valuable tools, especially in business and
investment planning. NRAs need to be apprised of all the tax issues involved in their use.
62Practical Estate Planning
The Problem With Real Property
Use of Trusts to Own U.S. Real Property
A revocable grantor trust (i.e. a “living trust” of which the grantor is also the
trustee), can provide non-probate transfer of U.S. real property, but it provides
no tax advantages.
An irrevocable trust in which the grantor does not retain any controlling
interests that would cause the trust to be includible in his or her estate can be
used to buy U.S. real estate. At death, real estate in the trust passes free of
estate taxation.
• Recall that for gift tax purposes NRAs can make tax-free gift transfers of
various types of property.
63Practical Estate Planning
The Problem With Real Property
FIRPTA
When NRA sells U.S. real property the buyer is required to withhold
10% of the purchase price under the 1980 Foreign Investment in Real
Property Tax Act (FIRPTA).
• The 10% withholding tax is on the amount realized – not gain.
• Exemption for residential property that’s valued at $300,000 or less. Home needs to be sold
to a buyer who will use it as a primary residence.
• While the title company should this and forward the withholding to the IRS, the NRA buyer
must maintain records because when the real property is subsequently sold, the NRA must
compute gain under FIRPTA, and establish that he has no outstanding withholding liability.
• If FIRPTA records from the initial purchase are lost, the NRA may not be able to
consummate a later sale. Mexican nationals buying homes in Texas must retain all
paperwork from the closing and assure that the seller has executed the proper FIRPTA
affidavit.
64Practical Estate Planning
The Problem With Real Property
FIRPTA
Under FIRPTA, NRAs are subject to tax on gains from sale or exchange of U.S. real property
interests.
• A NRA can qualify for the $250,000 capital gains tax exclusion on the sale of a “principal residence,” however
note that so filing could be a factor in determining if the NRA is a resident or domiciliary for U.S. tax law.
• Note that the $500,000 exclusion for married couples is unavailable for NRAs because they cannot file jointly. If
both own an interest in the home, each must claim the exclusion individually.
To recoup the 10% withholding tax on sale of real estate, or claim it as a credit against capital gains tax owed,
the NRA seller must file a 1040NR.
Can file for a “withholding certificate” in certain circumstances that will reduce or eliminate the withholding
requirement. Be cautious that the requirements of the certificate do not subject the NRA to U.S. residency status
for income tax purposes, or domicile for estate tax purposes.
In effect, the FIRPTA withholding tax is an enforcement mechanism to get NRAs to file income tax returns.
65Practical Estate Planning
The Problem With Real Property
Tax residence issues
Simply owning a home in the U.S. does not impute residency for
income tax purposes or domicile for estate tax purposes.
However, ownership of a U.S. home can be the tiebreaker in
determining residence for income tax purposes under both the
“closer connections” test, as well as tie-breaking provisions of
income tax treaties.
66Practical Estate Planning
The Problem With Real Property
Gift Tax Issues
NRA buyers sometimes purchase homes for relatives. Frequently, the NRA will buy a
home for a relative who is a student in the U.S.
• Example: Mexican national purchases an Austin condo for his daughter to live in
while attending UT. This gift of real property in the U.S. is subject to U.S. gift tax.
Gifts of offshore cash are not subject to gift tax, so NRA buyers can fund an account for
the donee, who can then purchase the home in his or her own name.
• This strategy has been attacked by the Service, which maintains that “parking” cash
for a subsequent purchase that would otherwise be subject to gift tax is improper.
See De Goldschmidt – Rothschild v. Commissioner, 168 F.2d 975 (2d Cir. 1984)
and Davies v. Commissioner, 40 T.C. 525 (1963), acq. In result 1966-2 C.B. 4
(1966)
67Practical Estate Planning
The Problem With Real Property
Gift Tax Issues
NRA couples must be aware of the cap on gifts of U.S. property between
spouses.
Common example:
• Mexican national husband, married under a separate property regime in
Mexico, purchases a U.S. home in his own name. The NRA spouse then
requests that she be put on the deed.
• The annual exclusion for gifts of U.S. property to a NRA spouse is
$136,000 in 2011 (indexed).
• If the gifted interest in the home is over this amount, then the NRA has
incurred gift tax liability for transferring a portion of the home to his
spouse.
68Practical Estate Planning
Foreign Trusts
Characterization of a trust as a foreign trust or a domestic trust for income tax purposes has
nothing to do with the nationality of the settlor or the beneficiaries. Rather, it is the location
and power of the trustee that controls.
Definition of a Domestic Trust: A trust is a domestic trust if:
• a U.S. court is able to exercise primary jurisdiction over its administration (the “Court Test”) and
• one or more U.S. persons can control all substantial decisions of the trust (the “Control Test”).
Definition of a Foreign Trust:
• A foreign trust is any trust that is not a domestic trust.
If a grantor trust is a likely trust for income tax purposes and holds U.S. situs property, then
that property is subject to inclusion in the NRA’s U.S. estate. Unless the foreign trust is an
irrevocable nongrantor trust, with no retained interests, then U.S. property held by the trust
is likely includible in the NRA’s U.S. estate.
69Practical Estate Planning
Pre-Immigration Planning Tips
If a NRA is planning on becoming a U.S. resident in the near future, then the following steps
should be considered:
Make gifts: the pre-immigrant should make irrevocable gifts to non-U.S. persons outright, or in a
trust with only non-U.S. beneficiaries. This removes worldwide property that would otherwise be
includible in the estate after domicile is established.
Make more gifts: transfer property to trusts for U.S. beneficiaries, thereby precluding later GST,
estate, and gift taxation. Trusts for U.S. beneficiaries should be U.S. trusts.
Create a irrevocable discretionary trust: for the benefit of the pre-immigrant and his family. While
this will be a grantor trust for income tax purposes, the property will be immune from creditors
claims, and will move property out of the pre-immigrant’s estate.
Liquidate appreciated assets: the pre-immigrant should consider selling all appreciated securities
prior to establishing residency, and then re-invest once U.S. domicile is obtained. This strategy
dramatically reduces unrealized gains and subsequent taxes due on sale.
Make gifts between spouses: since there is a cap on gifts between spouses, they should make gifts
of non-U.S. property between themselves prior to establishing residency.
70Practical Estate Planning
“Executor” Beware
Code Section 2002 provides that U.S. estate tax shall be paid by the executor. The
term “executor” means either the personal representative of the estate as
appointed by a court or trust instrument, or if none, then any person in actual or
constructive possession of any property of the decedent. See Code Section 2203.
Financial institutions with NRA clients need to be aware that they can be deemed
the “statutory executor” of NRA clients and therefore all of the obligations to file the
Form 706-NA, and the associated personal liability can adhere.
Financial institutions should counsel clients on the use of a revocable trust or Will
to dispose of account property at death if the institution does not offer Pay on
Death accounts for NRA clients.
71Practical Estate Planning
The Exit Tax
If a long-term resident desires to change domicile and thus be free of the U.S. transfer tax
system, there are numerous hurdles. A “long-term resident” is non-U.S. citizen who is a
lawful permanent residence for 8 years or more during the 15-year period before residency
ends.
If a long-term resident leaves the U.S. tax system after June 16, 2008, then he is deemed to
have sold all his worldwide property for fair market value the day before leaving the U.S.
This “mark to market” regime is articulated in Code Section 877A. See Notice 2009-85 for
recent modifications passed in Section 301 of the Heroes Earnings Assistance and Relief Tax
Act of 2008.
In essence, if a green card holder resides in the U.S. for 8 years, then if he decides to leave
the “exit tax” is triggered and capital gains are owed, without any relief from other parts of
the tax code.
Exception: if the long term resident has less than $600,000 of income from the deemed
sale of assets, no exit tax is assessed.
72Practical Estate Planning
Examples
NRA owns a brokerage account at a Texas financial institution. The account holds non-U.S.
stocks, U.S. bonds meeting portfolio interest exception, and mutual fund shares issued by a
foreign investment management firm.
There are no U.S. situs assets, so no estate tax issue.
If a financial account is invested properly, U.S. estate tax can be avoided easily.
What if the account does not allow POD because of Patriot Act/KYC rules and internal
compliance?
What if the NRA wants to control the property after death in a trust?
The NRA can create a revocable management trust to transfer the property to
beneficiaries at death. A NRA can create dynasty trusts at death to benefit a spouse,
children and grandchildren.
73Practical Estate Planning
Examples
Mexican client holds a green card. He has a home in the Stone Oak. It is in his own
name. His wife is also a legal permanent resident, as are his children. The house is
valued at $1.0 million.
Assure that the husband’s revocable management trust contains a provision
whereby the marital deduction gift passes to a QDOT. Without this trust, there is a
large estate tax issue.
What happens at the death of the surviving spouse? Estate tax will be due.
How do you cover the estate tax bill? Insurance can be used as a wealth
replacement tool, but note because this client holds a green card, it may be
includible in his estate.
Arguing that a green card holder is a non-domiciliary for transfer tax purposes is
possible, but good facts are a must.
74Ejemplos
Un mexicano es residente estadounidense. Tiene una casa en Stone Oak bajo su nombre. Su esposa también es residente
legal así como sus hijos. Su casa está valuada en $1 millón.
• Asegurarse de que el fideicomiso revocable del esposo contenga una provisión en donde el donativo
por deducción “marital” (matrimonial) pasa a un QDOT. Sin este fideicomiso habría un impuesto de deceso.
• Qué pasa cuando muere el conyugue sobreviviente? El impuesto por sucesión se tiene que pagar.
• Como se cubre este impuesto de sucesión?
• Un seguro de vida puede ser utilizado como una herramienta de reemplazo de la riqueza, pero tenga en cuenta porque
este cliente tiene una tarjeta verde, probablemente serán incluidos en su finca.
47
75Practical Estate Planning
Examples
Mexican national client who is a nonresident for transfer tax purposes inquires about making
gifts to his daughter. What are the tax issues involved in making gifts?
If a family from Monterrey drives to the United States, and the father buys a $50,000
sapphire necklace at La Cantera, and then gives it to his daughter at dinner at
Wildfish, that gift is subject to gift tax.
Father withdraws $20,000 in cash in San Antonio, and gives it to daughter at the
Riverwalk. That gift is subject to gift tax.
Father withdraws $20,000 in cash at a San Antonio bank, drives to Reynosa and gives
it to daughter. Not subject to gift tax because gift did not take place in the U.S.
76Ejemplos
Un mexicano que no es residente para efectos de transferencia de impuestos, quiere hacer un donativo a
su hija. Cuáles son las implicaciones fiscales asociadas a donativos?
• Si una familia de Monterrey viene de visita a Estados Unidos y el padre de familia le compra un collar
de perlas a su hija por $50,000 dólares en La Cantera para posteriormente regalárselo a la hora de la
cena en San Antonio, este regalo está sujeto a un impuesto.
• El padre de familia retira $20,000 dólares de su cuenta bancaria americana y se los regala a su hija en
Riverwalk. También está sujeto a un impuesto.
• El padre de familia retira $20,000 dólares de su cuenta bancaria americana y regresa a Reynosa,
Tamps, donde le regala los $20,000 dólares a su hija. Este regalo NO está sujeto a impuesto, dado que el
donativo se hizo fuera de Estados Unidos.
48
77Practical Estate Planning
Examples
Gift tax treatment and estate tax treatment of the same asset is different. Consider depository
bank accounts:
A check for $120,000 that is drawn on a U.S. bank account by a Mexican father, that
then is given to a son in San Antonio over dinner at Wildfish. This is a taxable gift
under the Code.
But the U.S. bank account is not includible in the father’s U.S. estate for estate tax
purposes! He can give it away at death without any tax being due.
Wire transfers from U.S. banks are treated the same as cash or checks. Mexican
nationals should fund cash gifts with an offshore bank account.
Note: if the recipient of the gift is a U.S. tax payer, then any gifts of $100,000 or
above must be reported to the IRS. No tax is due, but failure to report results in a
penalty of 5% of the gift for each month of failing to report, up to 25% of the value of
the gift.
78Ejemplos
El impuesto de donación y el impuesto de sucesión de un mismo activo son diferentes, debe considerar cuentas
bancarias de depósitos:
• Un cheque de $120,000 es girado por un padre de familia mexicano de su cuenta bancaria estadounidense como
regalo para su hijo en una cena en San Antonio. Este donativo está reconocido como un donativo gravable bajo el
código fiscal americano.
• Esta cuenta bancaria estadounidense no está considerada como parte del patrimonio del padre de familia para el
tema de impuestos de sucesión! El padre de familia puede donarla libre de impuestos a su deceso.
• Las transferencias electrónicas de bancos americanos tienen el mismo trato fiscal que los cheques y/o dinero en
efectivo. Los mexicanos deben traspasar donativos por medio de una cuenta bancaria domiciliada fuera de los
Estados Unidos.
• Nota: Si la persona que recibe el donativo es considerado un residente americano (que paga impuestos
americanos), entonces cualquier donativo de más de $100,000 tiene que ser reportado al IRS. No existe algún
impuesto, pero de no ser reportado al IRS seria sujeto a una penalidad del 5% del valor del donativo por cada
mes que pase sin reportarlo, hasta un máximo del 25% del valor del donativo.
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