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Winds of Change – Portugal’s Internal Struggle with NHR Program’s Ultimately Lead to Chilling Immigration Reform?

Winds of Change – Portugal’s Internal Struggle with NHR Program’s Ultimately Lead to Chilling Immigration Reform?

Introduction:  Portugal is HOT in more ways than one 

Heading into 2023, U.S. expat (and other country expat) immigration to Portugal was on an absolute tear.  Over the past several years, Portugal has morphed from a popular choice for British retirees (pensioners) to retire and live in or near the southern coastal region of the Algarve into a country whose resort and urban areas have all been infiltrated by a massive influx of foreign immigrants, both working and retired.  Portugal has indeed become a hotbed for U.S. expats and immigrants from elsewhere in the EU and beyond that wish to enjoy one of the best climates in the world. But how sustainable will this trend prove to be?

Post-Great Recession Reforms Ring in A New Era of Programs to Attract Expats

A key driver of Portugal’s newfound popularity as an American expat destination were tax and legal reforms over the past decade.  First, the non-habitual residence (NHR) program was enacted to entice immigration of wealthier foreigners and foreigners with specialized, attractive professional skills. The upshot of NHR was that most non-Portuguese-source income became sheltered from Portugal’s personal income tax for the first ten years of residency in Portugal and wage earners in select vocational segments would pay only a twenty percent flat tax on their Portuguese-source earned income.

Other policies encouraging this immigration effort included the abolishment of gift and inheritance taxes (making Portugal a more comfortable place to not just live, but also die) and the legal recognition of fiduciary entities, such as trusts, that were before unknown to the Portuguese civil law legal system. For wealthier foreigners looking for an “easier” path to Portuguese (and their for EU) citizenship, the Golden Visa program also emerged. With a considerable monetary investment in Portugal based pooled investments (mutual funds or private equity funds) OR the direct purchase of real estate in Portugal, such as a new primary residence, the Golden Visa would be offered to clear the immediate path to legal residency in Portugal and, thereafter, the ability to become a citizen as well.

Beyond financial and immigration incentives, Portugal’s popularity for expats could also be widely attributed to the country’s low relative cost of living and access to quality healthcare.  Home prices and rental costs have been considered a bargain in comparison to those in neighboring countries in Western Europe, and routine healthcare services have been considered to be a relative bargain as well. On the downside, at least for expats looking to join the local workforce, wages and salaries in Portugal were also considered to be relatively low compared to other Western European countries. However, for digital nomads and other consultants and employees of foreign companies that tolerated or encouraged remote work, it remained possible to enjoy Portugal’s lower cost of living without having to endure the corresponding lower incomes that came with the territory. This mobility trend naturally accelerated during and in the aftermath of the global COVID-19 pandemic.

Signs of an Overheated Market:  Too Much Of A Good Thing?

But favorable legal and financial policies and favorable climate and demographic conditions can neither evade nor shelter Portugal and its residents from the inevitable market forces of supply and demand, nor from a global bout of post-pandemic inflation. The population explosion of immigrants to Portugal has driven up housing prices and rents for expats and Portuguese locals alike. Just as the explosion of tech-company-driven wealth and massive influxes of employees to Silicon Valley displaced many San Francisco locals from their traditional neighborhoods, Portugal’s locals in Lisbon, it’s coastal neighboring community of Cascais, Porto, the Algarve and other areas are finding it difficult to maintain their homes in their communities as more and more expats compete to own and rent properties in their neighborhoods. These problems have only intensified over the past year with record numbers of Americans immigrating to Portugal, rising prices for goods and services (no doubt including the costs to rehabilitate older properties and construct new ones), and rising interest rates.

Given these challenges created by the success of these decade-long policies, it should come as very little surprise that the political and governmental climate has begun to shift to finding new ways to curb the influx of expats and slow the inflationary pressures that are a direct byproduct of the surge of expats to Portugal. For one, the Portuguese border and immigration service, known as SEF, has from time to time made it more difficult to obtain the in-person appointments necessary to obtain or renew residence permits. This has been a source of frustration for existing and would-be residents of Portugal alike.

Changes to the Golden Visa program have resulted in more direct efforts to ebb the flow of American dollars in Portugal’s overheated real estate markets.  First, changes were made recently so that direct purchases of residential real estate would no longer satisfy the investment requirements for the program in key property markets, including Cascais, Lisbon, Porto and the Algarve.  However, investment requirements could still be made through direct real estate purchase in other areas and through indirect real estate investment via Portuguese investment funds. However, the ultimate reform to curb immigration through the Golden Visa program will soon take center stage in the Portuguese Assembly (legislature):  the outright termination of the Golden Visa program!

In February of this year, the current coalition government in Portugal made this proposal to abolish the issuance of Golden Visas. This represents an unfortunate, but understandable, policy and attitudinal shift away from policies that sought as much immigration from affluent foreigners as the country could absorb. By “understandable,” it seems logical that, in the face of a very bubbly real estate environment where the costs of living are spiraling higher, Portugal may logically decide that they are at, or close, to the point of maximum expat absorption. 

Moving Forward: Is Portugal Still a Great Option for Expats?

As of the time of this writing in early June, 2023, the Golden Visa program continues, though perhaps on its last legs. The government has signaled that any and all Golden Visa applications that are submitted before the program is terminated by legislation will be honored and processed. Accordingly, if your application is in, don’t panic.  If you are thinking about making an application, perhaps professional assistance from a consulting firm that assists would-be expats through the process may be needed as time is likely running out very quickly. However, if my experience living abroad, including in Portugal, has taught me anything, it is that European bureaucracy moves at its own, deathly slow pace.  Therefore, it may already be time to start looking for avenues other than the Golden Visa program if you wish to move abroad to Portugal, just in case the Golden Visa program is abolished in the near future.

Keep in mind that the Golden Visa option, under Article 90A of Portugal’s immigration laws, is only one of several legal avenues to obtain residency, and eventually citizenship (if desired), in Portugal. The general residence program is governed by Article 77 and is most often the process that expat retirees or employed expats have used to immigrate to Portugal. As we are not immigration experts, nor consultants that assist in the immigration process, this is far from an comprehensive discussion of Portuguese immigration, but generally the important steps include showing that you have an income stream to sustain your costs of living, have arranged for a place to live in Portugal (owner’s deed or rental agreement), health insurance or eligibility determination for national health insurance, etc. For those looking to start up a business in Portugal, there is the alternative option of Article 89 for Entrepreneurs. Expats who have been living in another EU country may be able to avail themselves of the residence programs for long-term EU residents (Article 116) or EU residents holding the EU blue card with “highly qualified” professional activities (Article 121-B, 121-K).

Conclusion – Portugal Filling Up But Still Attractive While Others Ready to Compete

The main point here is that the Portugal government is responding to growing concerns of its citizens to spiraling inflation in key housing markets in the country by proposing the removal of the Golden Visa program. This is a step that should directly reduce some future demand in those markets, but this does not close the door to Portuguese immigration by expats looking to enjoy the benefits of the NHR program. Only time will tell if there are more restrictions to come from immigration, or tax, policies. If you are in the latter stages of planning, it makes sense to proceed according to plan.

However, if you are still “shopping” for a European expat destination, there are other attractive options that may provide significant bang for the buck so to speak. Italy and Greece have entered the competition for affluent expats with programs quite similar to Portugal’s NHR. You can learn more about those programs and how they compare to NHR HERE. And it is always important to remember that, as a U.S. citizen or long-term resident, your U.S. federal income, estate and gift tax obligations follow you wherever you choose to go. 

Accordingly, U.S. income tax rates are the “floor”, meaning that your total income tax obligations, even with foreign tax credits, will not fall below your U.S. federal income tax obligations. In the majority of the EU countries, U.S. expat residents will find a new “ceiling” for income taxes, meaning that the net resident country and U.S. income tax bill will exceed what your U.S. federal income tax alone would total. However, if you move further East within the EU, you may find certain EU member nations with extremely attractive tax rates that keep your net tax obligations at that floor. You can learn more about those tax-attractive options here

France is also an attractive option for American expats because of the exceptionally favorable terms of our tax treaty with our revolutionary allies. You can learn more about these attractive features HERE (hyperlink).  While Portugal struggles with how to deal with its own expat success, there are many attractive routes to Europe. You might even say that:

The future’s in the air, I can feel it everywhere

I’m blowing with the wind of change

Stan Farmer, CFP®

Napoleon vs Your Wealth: What Expats in Europe Need to Know About EU Directive 650/2012

Napoleon vs Your Wealth: What Expats in Europe Need to Know About EU Directive 650/2012

In Europe, succession planning can be a very different concept than what Americans are used to at home. In the U.S., we are almost entirely free to dispose of our estates as we please. This includes the ability to transfer everything to a friend, a trust, or to a charity upon death. In European countries apply a range of forced heirship rules, aimed at protecting specific heirs (usually children and blood relatives). 

These restrictions create difficult estate planning situations for Americans in Europe. For example, a married U.S. couple living in France may want the surviving spouse to inherit the entire estate of a deceased husband or wife. They will find that convoluted heirship rules, derived from early 19th century Napoleonic reforms, require that their children receive a portion of the wealth.

These laws are not limited to France, and most countries in Europe will apply some form of forced heirship requirement. A relatively recent piece of EU regulation, directive 650/2012 (1), gives foreign nationals greater flexibility in disposing of their estate. 

In a nutshell, EU Directive 650/2012 allows foreign citizens (say, an American living in Europe) to select the law of their country of citizenship in matters of succession, as opposed to local succession laws which would otherwise apply by default. For example, the previously mentioned American couple in France may have been able to transfer their wealth between spouses if they had made an election of U.S. law under 650/2012, and thereby opted for more flexible U.S. succession rules as opposed to more rigid French law. 

As all things having to do with cross border estate planning, the application of this directive is a complex matter. In most cases it will require seeking advice from local experts.

The following bullet points will highlights a few key details to be aware of:

    • The election is not a choice of probate location: many EU countries do not have a concept of probate comparable to the U.S. It is important to note that even if U.S. law is selected, whatever administrative proceeding might be applicable has to be followed locally.

    • The election is tax neutral: regardless of your choice of succession law, local inheritance/estate or gift tax will still apply.

    • Some countries opted out: The UK (pre-brexit), Ireland and Denmark have opted out of the directive (2).

    • There may be alternatives: there may be solutions available under local law to circumvent forced heirship without resorting to 650/2012, these will usually involve either a specific election of matrimonial regime, or a marriage contract.

    • Some practitioners may advise against it: Some estate planning practitioners still consider the directive to be relatively new and untested, and feel that it may add unnecessary complexity. Be sure to consult a local expert to understand all required formalities, procedures and consider alternatives.

By: Syl Michelin

You should always consult a financial, tax, or legal professional familiar about your unique circumstances before making any financial decisions. This material is intended for educational purposes only. Nothing in this material constitutes a solicitation for the sale or purchase of any securities. Any mentioned rates of return are historical or hypothetical in nature and are not a guarantee of future returns. Past performance does not guarantee future performance. Future returns may be lower or higher. Investments involve risk. Investment values will fluctuate with market conditions, and security positions, when sold, may be worth less or more than their original cost.

Three Tax-Friendly Off-The-Radar European Countries for Expats

Three Tax-Friendly Off-The-Radar European Countries for Expats

For expats looking to relocate to Europe, the typical destinations are usually Western European countries such as France, Portugal, and Spain. However, there are many hidden gems in Central and Eastern Europe that offer a unique blend:

 

Old-world charm, rich cultural heritage, affordable cost of living!

 One of the more attractive features of Europe for U.S. expats is the ability to visit, work or even live in more than one country. The mobility of EU passport has enhanced the appeal of all EU nations.  Let’s explore three off-the-radar EU nations in Central and Eastern European countries that U.S. expats should consider.

 There are many non-financial factors to consider when deciding on moving to a foreign country. Including an array of subjective qualities that make one place seem more like “home” to an expat than other locations. While these more subjective qualities are superficially touched on below, this is after all a blog from an international financial advisory perspective.

Accordingly, lower cost of living and lower relative tax burdens played the key role in pinpointing three of the EU’s most fiscally appealing destinations. These three nations are tax-friendly standouts. They have something to offer many expats looking to live on the cheap. To even live relatively lavishly without breaking the bank, or to protect that family wealth. Actually, the order above was chosen simply to accommodate a semi-cheesy axiom that can help you remember our top three choices:

 For EU capitals where tax rates are the best, consider Budapest, Sofia, and Bucharest!

Hey, it was catchier  than anything we could come up with using the country names instead of their capitals.

 

 ROMANIA

 Romania, located in Southeastern Europe, is a country that is often overlooked by travelers but has much to offer. The country is home to stunning natural landscapes, including the Carpathian Mountains and the Danube Delta. It also has a rich history and cultural heritage. Bucharest is the capital and is a bustling metropolis with a vibrant nightlife and a thriving arts and culture scene. The country offers a low cost of living and a high quality of life, making it an attractive destination for expats.

Romania, with that scenic beauty and rich history, is also a good place to live in the EU if you are on a budget and need a low-cost, low-tax place to call home. Or if you are rich and wish to stay that way, and leave your legacy of largesse to your heirs. Romania employs a flat tax on personal income at the rate of ten percent. This ten percent rate applies to virtually all sources of income, including wages, self-employment income, interest, dividends and capital gains. Significantly, there are also no wealth, inheritance or gift taxes levied in Romania. The standard value-added tax (VAT) rate is nineteen percent (which compares favorably with most EU countries), with some goods and services exempt from the VAT regime.

BULGARIA

 Located on the eastern coast of the Balkan Peninsula, Bulgaria is a country with a rich history and a unique blend of Slavic, Greek, and Ottoman cultures. Sofia is a vibrant and cosmopolitan city with a thriving arts and culture scene, and a low cost of living. The country also boasts stunning natural landscapes, from the Black Sea coast to the snow-capped peaks of the Balkan Mountains.

The healthcare system in Bulgaria is also affordable and of good quality, making it an attractive destination for retirees. Bulgaria also employs a flat tax rate of ten percent on personal income from most sources. This includes earnings (employment or self-employment) and capital gains. Dividends are taxed at an even lower rate of five percent. Also like Romania, Bulgaria does not impose a wealth tax, nor taxes on inheritances and gifts.  There is a low rate of property tax, ranging from 0.01% up to 0.45% on the value of real property. VAT is a comparably favorable standard rate of 20 percent, with lower rates on certain goods and services.

 

HUNGARY

 Hungary, though not quite as tax friendly as Romania and Bulgaria, offers a terrific mixture of liveability, workability and affordability that is sure to check a lot of boxes for many adventurous expats. It has a rich culture and history, with a long-standing tradition of music, literature, and the arts.

 Historic Landmarks:

-Buda Castle

-Fisherman’s Bastion in Budapest

-The second-largest synagogue in the world in Szeged

 -Historic thermal baths of Hévíz

 Expats can immerse themselves in Hungarian culture by attending festivals, visiting museums, and exploring the country’s many historic sites. Hungary has a thriving job market, particularly in the technology, finance, and healthcare industries. Many multinational companies have set up operations in Hungary. This offers expats the opportunity to work in a dynamic and growing business environment. Additionally, the country has a low unemployment rate, making it easier for expats to find employment.

 A country of natural beauty…

 Hungary is a country of stunning natural beauty, with rolling hills, forests, and lakes. The country is also home to the Danube River, which flows through Budapest and offers stunning views of the city. Expats can enjoy the great outdoors by hiking, cycling, or simply exploring the countryside.

 Hungarians are known for their warm hospitality and welcoming nature. Expats can expect to be greeted with open arms and will find it easy to make friends with locals.

 PATHS LESS TAKEN ARE MORE INTERESTING AND COMPLEX, BUT WE CAN HELP

Also comparing favorably against the tax regimes of most EU countries, Hungary employs a modest tax rate of fifteen percent. This includes all forms of personal income (earnings, dividends, interest, capital gains, and even cryptocurrency trading gains). VAT is a bit higher in Hungary than in Bulgaria or Romania. With a standard rate of twenty-seven percent, with reduced rates of eighteen percent or five percent for certain goods and services. There are no wealth taxes, but there is a gift and inheritance tax regime in Hungary. The standard tax rate on gifts and inheritances is eighteen percent. A lower nine percent tax rate applies for gifts and inheritances of residential property. These gift and inheritance taxes do not apply to wealth transfers to spouses and lineal relatives (children, parents, grandchildren, etc.). Such lineal wealth transfers are exempt for these tax regimes.

Europe is already home to millions of Americans who have ventured back across the Atlantic to work or enjoy their retirement. The majority of these expats, however, accept a steep tax bill and sometimes a cost of living hike (depending on where you’re coming from and where you are going to) for the privilege of a European lifestyle.

At Walkner Condon Financial Advisors, our Expat Team is proud to offer financial guidance and ongoing planning and investment management to American expat families. We’ve also dedicated a great deal of research to inform those considering a move to Europe about the various tax incentive programs that certain Western European countries have to offer. However, most of those incentives are for a definite period of time and standard resident tax rates apply thereafter – rates which can be considerably higher than the U.S. federal tax rates that all U.S. citizens must pay, even while living abroad.

 Accordingly, we believe that, given the growing mobility of the global workforce and the abundance of potential low-cost, low-tax alternatives within Europe, we think looking a little further east may provide Americans looking to venture abroad a whole set of new alternatives. Romania, Bulgaria and Hungary are by no means the only attractive destinations to consider outside of Western Europe that offer the benefits of living within the EU. Whether you are planning a move to Europe or any other continent in the world, we’re here to lend our financial planning and investment insights to help you navigate the complexities of a cross-border (U.S. and foreign) financial and regulatory environment.  If you’d like to learn more, please reach out to our team to discuss your specific circumstances: Book Now! 

By: Stan Farmer

 

Five Things for Americans to Know Before Moving to the United Kingdom

Five Things for Americans to Know Before Moving to the United Kingdom

With our historical links and common language, it is no surprise that hundreds of thousands (at least 200,000) American citizens reside in the United Kingdom. London has long been a truly international city and many Americans live and work in the greater metropolitan area. In my professional experience, more U.S. expats in the United Kingdom choose to remain in the UK than may be the case in any other foreign country. In fact, many clients come to identify as Brits and hold U.S./UK dual citizenship. 

However, whether you are considering a short, intermediate, or long-term move to the United Kingdom, there are a variety of planning topics that are best considered prior to making the move. In this blog, I discuss five key issues, but there are many, many more unique tax, estate planning, and investment issues that Americans in the United Kingdom may have to deal with once they become a resident in the United Kingdom. Each one of these issues below would merit a separate article, so consider this a cursory examination of these five topics that hopefully lead to further inquiry and discussion with your accountants, attorneys, and/or financial planners.

UNDERSTAND THE DIFFERENCE BETWEEN REMITTANCE BASIS AND ARISING BASIS TAXATION

Unlike the United States tax policy of taxing its citizens on their global income regardless of where they reside, most countries, including the UK, subject only those who are tax residents of that country to income taxes on both their country-sourced and non-country-sourced income (i.e., their worldwide income). To attract affluent foreigners and foreign companies to the UK, the UK has created a temporary tax status for non-UK nationals who chose to become residents of the UK called the “remittance-based” election. 

Accordingly, during the first seven years of UK tax residency, a non-UK national may elect the remittance basis on their UK income tax return, and thereby pay UK income tax only on two types of income: (1) UK-sourced income, and (2) non-UK-sourced income that is remitted to the United Kingdom. Remitting generally means that the funds are physically moved to the UK or used to pay UK obligations or purchase goods, services, or other assets in the United Kingdom. This election can be freely made for the first seven years; but, there are substantial fees/taxes paid to the HMRC (Her Majesty’s Revenue & Customs) to extend that privilege for a limited period (up to eight more years) thereafter. For those that do not elect the remittance basis, or for those whose remittance-basis term has expired, UK taxes income on the “arising basis,” meaning simply that all income from all sources (foreign and abroad) is taxed in the year in which it is received by the taxpayer.

At first blush, remittance basis sounds like a proverbial no-brainer for any expatriate that will derive any income from outside of the UK, whether that income is earned through business conducted outside of the UK, earned through passive investments in real estate, stocks, bonds, etc., or otherwise is characterized as non-UK-sourced income. However, the decision to elect the remittance basis in any of those initial seven years of UK tax residency is one that should be very carefully considered. Without going into considerable detail (and the rules surrounding remittance taxation contain meticulous details) the remittance basis can create accounting headaches, perhaps even nightmares, whenever funds are eventually remitted to the UK and the UK taxes come due on that part of the remitted funds that are attributable to income earned during the period in which remittance basis was claimed. The process of attribution involves what has come to be known as the “clean capital ordering rules,” and pitfalls abound when trying to track and trace the underlying UK tax characteristics of offshore funds (in particular investment accounts) when some of those resources are remitted to the UK. 

With our historical links and common language, it is no surprise that hundreds of thousands (at least 200,000) American citizens reside in the United Kingdom. London has long been a truly international city and many Americans live and work in the greater metropolitan area. In my professional experience, more U.S. expats in the United Kingdom choose to remain in the UK than may be the case in any other foreign country. In fact, many clients come to identify as Brits and hold U.S./UK dual citizenship. 

However, whether you are considering a short, intermediate, or long-term move to the United Kingdom, there are a variety of planning topics that are best considered prior to making the move. In this blog, I discuss five key issues, but there are many, many more unique tax, estate planning, and investment issues that Americans in the United Kingdom may have to deal with once they become a resident in the United Kingdom. Each one of these issues below would merit a separate article, so consider this a cursory examination of these five topics that hopefully lead to further inquiry and discussion with your accountants, attorneys, and/or financial planners.

UNDERSTAND THE DIFFERENCE BETWEEN REMITTANCE BASIS AND ARISING BASIS TAXATION

Unlike the United States tax policy of taxing its citizens on their global income regardless of where they reside, most countries, including the UK, subject only those who are tax residents of that country to income taxes on both their country-sourced and non-country-sourced income (i.e., their worldwide income). To attract affluent foreigners and foreign companies to the UK, the UK has created a temporary tax status for non-UK nationals who chose to become residents of the UK called the “remittance-based” election. 

Accordingly, during the first seven years of UK tax residency, a non-UK national may elect the remittance basis on their UK income tax return, and thereby pay UK income tax only on two types of income: (1) UK-sourced income, and (2) non-UK-sourced income that is remitted to the United Kingdom. Remitting generally means that the funds are physically moved to the UK or used to pay UK obligations or purchase goods, services, or other assets in the United Kingdom. This election can be freely made for the first seven years; but, there are substantial fees/taxes paid to the HMRC (Her Majesty’s Revenue & Customs) to extend that privilege for a limited period (up to eight more years) thereafter. For those that do not elect the remittance basis, or for those whose remittance-basis term has expired, UK taxes income on the “arising basis,” meaning simply that all income from all sources (foreign and abroad) is taxed in the year in which it is received by the taxpayer.

At first blush, remittance basis sounds like a proverbial no-brainer for any expatriate that will derive any income from outside of the UK, whether that income is earned through business conducted outside of the UK, earned through passive investments in real estate, stocks, bonds, etc., or otherwise is characterized as non-UK-sourced income. However, the decision to elect the remittance basis in any of those initial seven years of UK tax residency is one that should be very carefully considered. Without going into considerable detail (and the rules surrounding remittance taxation contain meticulous details) the remittance basis can create accounting headaches, perhaps even nightmares, whenever funds are eventually remitted to the UK and the UK taxes come due on that part of the remitted funds that are attributable to income earned during the period in which remittance basis was claimed. The process of attribution involves what has come to be known as the “clean capital ordering rules,” and pitfalls abound when trying to track and trace the underlying UK tax characteristics of offshore funds (in particular investment accounts) when some of those resources are remitted to the UK. 

Accordingly, there are circumstances where remittance basis makes perfect sense. To the extent that:

    • The U.S. expat is confident that the UK stay will not evolve into something longer-term or even permanent, and/or;
    • The U.S. expat has considerable non-UK-sourced income (e.g., from a very large investment within a U.S. taxable brokerage account, or perhaps through partnership income in a global concern where only a fraction of earned income is attributed to UK sources);

then remittance basis should be very seriously considered to lessen the UK income tax burden. Conversely, where the U.S. expat has modest income from non-UK sources or where the UK tax residency may become longer-term or even permanent, then the calculus may well favor UK income taxation on the arising basis from the onset of becoming a UK tax resident. In all cases, this is a decision facing all Americans moving to the UK and should be carefully contemplated with the advice of experienced professionals.

Short on time? Listen to our podcast for Stan’s overview on this topic:

PFIC AND UK TAX RULES FOR “OFFSHORE FUNDS”

It is fundamental that American expats, who obviously live and transact outside of the United States, understand the perils of “offshoring” their taxable investments. By offshoring, I mean owning foreign-registered pooled investments, such as ETFs that are not registered with the SEC and trade predominantly on foreign securities exchanges, mutual funds that are registered with foreign financial regulators and are not subject to U.S. laws and regulations, as well as foreign private equity funds and hedge funds (both of which are usually organized as limited partnerships). The IRS has created special regulations regarding the tax treatment of such foreign pooled investments, known as the “passive foreign investment company” (or “PFIC”) rules. 

A detailed discussion of how these offshore funds are taxed in the U.S. is beyond the scope of this article. For our purposes, it is simply important to understand that “offshore” funds lose their capital gains character because of the PFIC rules, and, therefore, all gains are taxed as ordinary income. That’s for starters – with income recharacterization to prior years in the holding period, interest, and penalties, the tax rate could be 50% and, in some cases, even higher! The bottom line: buying foreign mutual funds, ETFs and other pooled investments outside of a treaty-recognized foreign pension is usually tax toxic to U.S. tax residents.

So an American living in the UK would do well to avoid the temptation to “go native” and open brokerage accounts in the UK and invest in non-U.S.-registered funds. Can the American expat then avoid offshore tax rules by just keeping their investments in the U.S. and purchasing U.S. mutual funds or ETFs? For the American expat in the UK, the answer is usually “NO,” because the UK has similar tax rules with regards to offshore funds and, from a UK perspective, U.S. mutual funds and ETFs are offshore funds. The general HMRC tax rules in the UK therefore would deprive gains on the sale of these offshore funds of the lower and more favorable capital gains rates and instead levy taxes on realized gains at ordinary income tax rates, which tend to be higher than U.S. ordinary income tax rates. What a mess the U.S. expat investor might find themselves in trying to navigate the offshore funds rules of two different national tax authorities!

One way the U.S. expat might avoid these onerous tax rates would be to avoid “pooled” investments by just buying individual securities and building a fund-free portfolio of individual stocks and bonds. Naturally, this may be an imperfect solution at best for investors that don’t have the capital to adequately diversify such a portfolio. Moreover, even with ample capital to do so, most investors have their own careers, families, and social lives to manage and don’t want to be their own portfolio managers. 

Fortunately, the HMRC’s offshore funds tax rules do provide an important exception: where the foreign fund provides adequate accounting through reports sent annually to the HMRC, investors in these offshore “reporting funds” will be exempted from the special tax rules and will be entitled to capital gains treatment on gains generated from these reporting funds. Although the vast majority of U.S. mutual funds and U.S. ETFs do not qualify as reporting funds in the UK, there are enough decent U.S. funds that are in fact UK reporting funds that a fairly quality, low cost, and well-diversified portfolio can in fact be constructed. The main challenge is scouring the HMRC’s spreadsheet with thousands of reporting funds and identifying those that are indeed U.S.-registered. Beware the foreign “clones” of U.S.-registered funds that carry the same names of their U.S. counterparts but are, in fact, PFICs! 

UNDERSTAND THE INTERPLAY OF U.S. AND UK RULES REGARDING RETIREMENT ACCOUNTS, INCLUDING THE INCOME TAX TREATY

There are some advantageous and truly cooperative nuggets in the income tax treaty (and the technical explanation thereof) between the United States and the United Kingdom, particularly in the area of retirement accounts or “pensions.” For example, because of the treaty, distributions from a U.S. Roth IRA in retirement will enjoy the same tax-free qualities for a UK tax resident (expat or otherwise) as they do for domestic American taxpayers. Additionally, those horrid PFIC and Reporting Fund rules discussed in the previous section will be irrelevant to investments in retirement accounts in either country so long as the treaty benefit is claimed. There are other special rules regarding the special tax-free 25% lump-sum distribution from a UK pension that may benefit a former U.S. expat that participated in a UK pension scheme but thereafter returns to the U.S. before taking the lump-sum distribution. It is critical to work with advisors that can help the U.S. expat position their accounts to truly navigate the tax rules and take full advantage of these types of beneficial treaty provisions.

Unfortunately, for high-net-worth individuals, there have been severe limits put in place in the UK in recent years on how much can be contributed in tax-advantaged pension schemes. These newer rules tend to severely limit the contributions by and on behalf of higher earners in the UK to their company pension and even personal pension (SIPP) accounts. Interestingly, these rules will also dramatically affect the tax deductibility on UK tax returns of contributions to U.S. qualified retirement plans as well. Therefore, for Americans working and earning in the United Kingdom, it is particularly crucial to get the input of a UK tax accountant to assist in determining how much should or can be contributed to retirement plans and pensions regardless of where they are held for each and every UK tax year. Moreover, U.S. retirement contribution eligibility rules, rules on the deductibility of retirement plan contributions, and so forth require the U.S. expat to also discuss all (not just domestic) retirement plan contributions with their U.S. accountant to ensure that the investor’s strategy is tax optimal under U.S. tax rules, too. 

 

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“COMMON LAW?” – CAUTION WHEN BRINGING A U.S. TRUST WITH YOU TO THE UK

Trusts, like most estate planning issues and tools, are a creature of local law. It is a common folly of many expats, and even domestic U.S. attorneys, to believe that an estate plan carefully crafted under the laws of a particular state in the U.S. can be taken abroad and continue to operate as intended. It usually won’t, and, in some instances, a good domestic estate plan may well backfire spectacularly when the family, or one or more of its members, moves abroad. That’s a very broad and general statement, but consider it is based on my experiences as an expat advisor who has witnessed the unintended consequences materialize from a domestic estate plan when the legal and tax issues unfold in the cross-border/expat environment. To put it bluntly: when you move somewhere else, new rules apply, and it is highly unlikely that the original estate plan was crafted with any of the new rules in mind.

Another broad and general statement can be made about trusts: The more sophisticated an estate plan, the more likely that it will backfire in the cross-border environment and the more costly the unintended consequences that will materialize. However, we’re talking about moving to the United Kingdom – the birthplace of trust instruments– and one might think that a U.S. trust would always work just as well in the UK as it would in the domestic U.S. scenario, but one could pay a dear price for such an innocent assumption. 

For example, a U.S. expat family has utilized trusts that provide that one or more of the expat family members who serve as trustee. If the trustees of a U.S. trust become UK tax residents, the trust becomes a UK tax resident. From the UK perspective, the trust has been “on-shored” so to speak, and the trust is now a UK tax resident. Things can get even more complicated from there: what if the trustee(s) returns to the United States thereafter? From the UK legal and tax perspective, this could represent an “off-shoring” of the trust – the trust will no longer be characterized as a UK domestic trust, but as an offshore trust. The tax implications that flow from offshoring a trust are usually that an “exit tax” must be paid, which means that all unrealized gains from trust property are thereby realized and capital gains from the recognition of gain are now owed to the HMRC. 

Quite often, a few minor (or less minor, depending on the trust) changes to the trust could have been made before the trustee(s) moved to the UK, which may have prevented this issue from ever materializing. If minor changes do not suffice, the trust might need to be dissolved prior to the move. Accordingly, when family wealth is in any manner managed or protected by trusts, some legal advice (i.e., an estate plan review) from an estate planning expert in the future country of residency (in this case, the United Kingdom) can be critically important.

UNDERSTAND UK “DOMICILE” AND IT’S IMPLICATIONS

U.S. and UK income taxes differ in a variety of ways (e.g., the tax liability on the sale of a primary or secondary residence) and there may be a substantial income tax-rate divergence between the two countries for a given U.S. expat living in the United Kingdom, depending on the expat’s current income. However, the taxation of wealth transfers (gifts during your lifetime, or bequests/transfers upon death) should also be considered as the expat accumulates wealth. Like the U.S, the UK may tax gifts made during the life of the donor and will also tax the estate of a decedent before their wealth is transferred via their estate plan. Unlike the U.S., there may be income tax owed by the donor (known as a “deemed disposition”). Here, the opportunity for divergence between U.S. and UK tax exposure can be quite profound, due largely (but not exclusively) to the different exemption levels under the current tax laws of both countries. 

For example, in 2021, the United States provides a very generous lifetime personal exemption for gift and estate taxes of $11.7 million ($23.4 million for a U.S. married citizen couple). In stark contrast, the UK individual estate (IHT) exemption is only £325,000 (£650k for a UK domiciled couple), with possibly an additional allowance of £125,000 for the decedent’s primary residence. That differential puts a tremendous premium on estate tax planning and financial planning in general. 

A crucial part of determining the current and future UK IHT tax exposures for a U.S. expat family centers on whether the family, or individual members thereof, have voluntarily or involuntarily attained the status of a UK domicile. If a person is determined to be domiciled in the UK, then their worldwide estate would be subject to IHT. If tax residency and entrenchment have not yet crossed the threshold of domicile, then only the UK situs property will be subject to potential IHT tax liability. Domicile is a common law term that combines residency and long-term intention. Accordingly, there is a degree of subjectivity when determining whether an American expat has become entrenched in the UK to the point that this key threshold has been breached. 

It can be difficult to ascertain in close cases whether an expat’s behavior demonstrates enough intent to assure an HMRC finding that the expat is a UK domicile. On the one hand, if an expat moves to the UK on a work assignment (secondment) and spends five years living with family in a home that is rented by the company, it is certainly less likely that the status of domicile has been achieved. However, if that expat and family buy a home, apply for citizenship, sell their U.S. home, and effectively cut most ties with their old American community, the probabilities increase dramatically that the family would be considered UK domiciles. 

To combat the efforts for long-term UK tax residents to evade domicile status, the UK has created a “deemed-domicile” status or threshold based on the more objective criteria of how many years an individual has held UK tax resident status. Under the rules that went into effect in 2017, once the expat has held UK tax residency for 15 years of a 20-year period, that expat is thereafter deemed a domicile of the United Kingdom, regardless of any other circumstances. Beyond IHT exposure, this will also mean that the expat can no longer utilize the remittance basis of taxation (which requires substantial payments beyond year seven but is now unavailable at any cost after year 15).

Prior to obtaining domicile, steps can be taken to protect non-UK wealth from IHT exposure, but such planning is going to require retaining very specialized estate planning counsel. Given that the deemed domicile status is, in a temporal sense, the maximum but by no means a minimum time within which domicile can occur, an important first step for such planning would be to have counsel conduct what is sometimes referred to as a “domicile audit,” which may be a series of meetings and/or detailed questionnaires to first determine the current status of an expat, as well as determine what, if any, wealth might be strategically sheltered from the expat’s taxable (IHT) estate.

PLANNING AND INVESTMENT ISSUES ABOUND

Please consider this a very cursory examination of five key issues that should be considered and incorporated into your financial planning and your portfolios before completing the journey to live in the United Kingdom. This is by no means an exhaustive inventory, nor a complete examination of the financial, tax and legal issues within each area. It is our intention at Walkner Condon to enrich the expat communities around the world through sharing knowledge about such topics and to assist Americans who are or may be contemplating a move abroad in the near term or in the future. Through a little pre-move planning and strategic positioning, we believe that the transition to a new home can be less stressful and, ultimately, more rewarding. If you find these issues resonating with your personal situation, I, or one of my team members here at Walkner Condon, would be happy to schedule an introductory meeting with you.

Stan Farmer, J.D., CFP®️

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The Hidden Costs of Claiming the Foreign Earned Income Exclusion

The Hidden Costs of Claiming the Foreign Earned Income Exclusion

Many U.S. expats have learned to use and cherish the Foreign Earned Income Exclusion (FEIE), a provision in the U.S. tax code allowing workers to exclude up to $120,000 (for 2023) of their non-U.S. salary for Federal taxation. If nothing else, the FEIE stands out for its absolute simplicity in an otherwise endlessly convoluted tax code: anyone deriving income from a foreign employer can claim the FEIE by filing form 2555, and there are remarkably few exceptions and caveats. It is one of the few “breaks” that expats get in their otherwise needlessly complex financial lives, so it’s perhaps no surprise that it represents the go-to, default option for most U.S. taxpayers abroad when it comes to avoiding double taxation. For the majority of expats, claiming the FEIE each year will absolutely be the right thing to do. However, in this article I will consider some of the drawbacks of using the FEIE, and consider instances where claiming the FEIE may actually have hidden costs. Once these costs are factored in, the same taxpayer may actually find that claiming the FEIE is not the optimal tax strategy.

Hidden cost #1: Missing out on unused foreign tax credits

Interestingly, many expats who use FEIE don’t actually need it, and could use the mechanism of tax credits to avoid double taxation instead (claiming credits in one country for taxes paid in the other). Expats in high tax jurisdictions in particular probably pay enough in foreign taxes to fully offset any potential U.S. tax liability, even without excluding any income.  Other higher income earners may also use a combination of the two approaches: the FEIE up to the statutory limit, and tax credits for the remainder of their income. The benefit of the tax credit approach is that any unused foreign credit can be rolled over for 10 years, and, therefore, may be used in the future to offset potential U.S. tax liability. While using foreign credits is not always easy (indeed many foreign tax credits end up expiring), certain situations such as moving to a low tax country, or using certain pension withdrawal strategies, may give rise to very attractive opportunities for an expat to capitalize on their unused foreign tax credits. Using the FEIE may reduce or completely eliminate these opportunities.

Hidden cost #2: Losing the ability to contribute to an IRA

Excluding your income from federal taxation sounds great, but if you exclude all of your income, you may be making yourself ineligible for IRA or Roth IRA contributions, which require the presence of employment income as the primary criterion for eligibility. As a result, you could be missing out on the opportunity for tax deferred or even tax exempt growth afforded by IRAs and Roth IRAs. The benefit of making such contributions will vary greatly depending on your personal circumstances and country of residence, and some expats may not benefit from them at all. For a more detailed discussion on IRA contributions for expats please refer to my previous article on the topic: 

https://usexpatinvesting.com/educational-materials-for-ex-pats/can-i-contribute-to-an-ira-as-an-american-expat/

Hidden cost #3: not receiving refundable tax credits

For expat parents who may qualify for child care tax credits, using the FEIE may have another hidden cost: it will make you ineligible for the refundable portion of that credit. In practice, this could mean missing out on the opportunity to receive USD $1,400 per child annually paid to you in cash, due to specific tax rules making FEIE claimants ineligible for tax credit refunds. Filers who simply claim foreign tax credits are unaffected and remain fully eligible for this tax credit, including the refundable portion. 

Given the drawbacks outlined above, it is clear that while the FEIE is intuitively attractive for its efficient and straightforward nature, careful analysis may reveal certain shortcomings that could very well prompt some expat taxpayers to reconsider its use in favor of the tax credit approach. Unfortunately, the IRS does not let taxpayers simply flip-flop between credits and the FEIE. Once the FEIE election is revoked, it cannot be claimed again for at least 5 years, and will require a specific written request and IRS approval to re establish.* For many taxpayers, that convoluted procedure alone may justify the added cost of using the FEIE, and in all cases it is clear that revoking the FEIE should only be done after very careful consideration and consultation with your accountant and advisor.

* https://hodgen.com/flip-flopping-the-foreign-earned-income-exclusion/

ABOUT THE AUTHOR

Headshot of financial advisor Syl Michelin in a blue suit with white button up shirt and gray background

Syl Michelin, CFA®

US EXPAT FINANCIAL ADVISOR

Syl Michelin is a Chartered Financial Analyst and fee-only, fiduciary financial advisor who works with cross-border families and American expatriates. 

You should always consult a financial, tax, or legal professional familiar about your unique circumstances before making any financial decisions. This material is intended for educational purposes only. Nothing in this material constitutes a solicitation for the sale or purchase of any securities. Any mentioned rates of return are historical or hypothetical in nature and are not a guarantee of future returns. Past performance does not guarantee future performance. Future returns may be lower or higher. Investments involve risk. Investment values will fluctuate with market conditions, and security positions, when sold, may be worth less or more than their original cost.