Tax Planning for Portfolio Investment into the United States by Foreign Individuals, discusses the U.S. federal income tax effects of the principal kinds of portfolio investments that are made into the United States by foreign individuals, i.e., by individuals who are classified as “nonresident aliens” for federal income tax purposes and as “nonresidents not citizens of the United States” for federal transfer tax (estate, gift, and generation-skipping transfer tax) purposes. For this purpose, potential U.S. federal taxes on non-investment personal assets (such as U.S. real property and U.S.-situs tangible personal property) are also discussed.

The portfolio examines how non-U.S. citizens may lawfully minimize or eliminate U.S. federal transfer taxes on their U.S. portfolio investments and U.S.-situs personal assets by holding them through a non-U.S. structure such as a holding company, a trust, or a partnership. Although avoidance of U.S. transfer taxes is usually the alien investor's principal concern in utilizing a non-U.S. holding structure, there may be a number of U.S. federal income tax consequences to the manner in which the alien makes the investment, particularly if the alien becomes a U.S. resident for income tax purposes or if the alien has U.S. heirs. The existence of U.S. heirs may also encourage the alien to utilize a so-called “dynasty trust” so as to avoid U.S. transfer tax on the U.S. heirs in later generations.

Chapter I explains fundamental concepts and terms. Chapter II discusses the federal income taxes and federal transfer taxes that can apply to portfolio and personal U.S. assets in the absence of restructuring by the non-U.S. individual who owns them. Chapter III discusses the use of a foreign holding company, while chapter IV discusses the inheritance of a foreign holding company structure by a U.S. person. Chapters V and VI discuss the use of a foreign trust, and alternatively the use of a foreign holding company that in turn is owned by a foreign trust. Chapter VII discusses the use of a “dynasty trust” if there are U.S. heirs in order to avoid U.S. transfer tax on the U.S. heirs in later generations. Chapters VIII and IX discuss various U.S. federal tax problems that can arise if a foreign individual who has formed a foreign holding structure moves to the United States either temporarily or permanently. Finally, chapters X and XI discuss two particular kinds of U.S. investments — investment in U.S. real estate and investment in various kinds of insurance products.

The potential effect of the HIRE Act on investments into the United States by foreign individuals, either directly or indirectly through a holding structure, is discussed in various chapters.

This portfolio may be cited as Bissell, 903 T.M., Tax Planning for Portfolio Investment into the United States by Foreign Individuals.

This Portfolio is part of the Foreign Income Portfolios Library, a comprehensive series containing more than 90 Portfolios, which covers critical transactions and issues in international taxation. This highly-regarded resource service offers commentary on a wide range of foreign income topics including: Foreign Tax Credit, Business Operations in more than 40 foreign countries, Branch ProfitsTax, Source of Income Rules, Subpart F (Controlled Foreign Corporations), Foreign Partnerships and Partners, Transfer Pricing, and more.

Portfolio 903-1st: Tax Planning for Portfolio Investment into the United States by Foreign Individuals

 Portfolio Description

 Authors

 Technical Advisors

 Description

 Detailed Analysis

 I. Introduction

 Introductory Material

 A. Categories of Foreign Individuals

 B. Overview of Structures Other than Direct Ownership

 C. Special Issues Concerning Trusts

 1. Is the Trust “Domestic” or “Foreign”?

 2. Trust “Protectors”

 3. “Letter of Wishes”

 4. Repeal of the Rule Against Perpetuities

 5. “Abusive Trusts”

 6. Asset Protection Trusts

 D. Where to Form a Non-U.S. Investment Entity

 E. Discussion of the Generation-Skipping Transfer Tax

 F. Terminology Used in this Portfolio

 1. Residence and Nonresidence

 2. “Foreign Holding Company,” “Foreign Trust,” and “Foreign Partnership”

 G. Scope of This Portfolio

 II. Federal Taxes on U.S. Investments Without Restructuring

 A. Introduction

 B. Income Tax on U.S. Investment Income

 1. 30% Tax on FDAP

 2. Interest on Debt Obligations

 3. Dividends

 4. Gains from Securities and Commodities

 5. Income from U.S. Mutual Funds

 6. Options, Futures, and Other “Derivatives”

 7. Hedge Funds and Private Equity Funds

 8. Gains from the Sale of Tangible Personal Property in the United States

 a. Income Tax Rules

 b. Caveat re Potential State and Local Taxes

 9. Income and Gains from U.S. Real Estate

 10. Miscellaneous Types of U.S. Income

 11. Tax Treaty Overrides

 C. Withholding Under § 1441 to Ensure Compliance Under § 871

 1. General Rules

 2. Nonresident Alien Investors Who Wish to Be Anonymous Vis-à-Vis the IRS

 D. Potential Effect of the 2010 “HIRE Act” on Nonresident Alien Investors

 E. U.S. Transfer Tax on U.S.-Situs Assets

 1. General Rules

 2. Estate Tax and Gift Tax Rates

 3. U.S.-Situs Rules, and Special Estate Tax Exceptions

 4. Estate Tax Treaty Exemptions

 a. “Broad” Estate and Gift Tax Treaties

 b. Other Estate Tax Treaties

 F. Estate Tax Exposure on U.S. Equities Owned in a Foreign Brokerage Account

 1. Potential Avoidance of Estate Tax Under Current IRS Procedures

 2. Fiduciary and Transferee Liability for Unpaid Estate Tax

 3. Estate Tax Aspects of the § 1441 Regulations

 4. Estate Tax Aspects of the HIRE Act

 G. Formation of a Structure that May Legitimately Avoid Estate Tax

 III. Use of a Foreign Holding Company by a Non-Domiciled Alien to Avoid Estate Tax

 A. Introduction

 B. Typical Assets that Are Owned by a Foreign Holding Company

 C. Essential for the Non-Domiciled Alien to Respect the Foreign Holding Company's Separate Status

 D. Section 2104(b) Risk if Existing U.S.-Situs Assets Are Contributed to a Foreign Holding Company

 E. U.S. Income Tax Consequences to the Foreign Holding Company

 1. Income Realized by the Foreign Holding Company

 2. Withholding on Income Realized by the Foreign Holding Company from U.S. Assets

 3. HIRE Act

 4. Income Realized by the Non-Domiciled Alien Owner from the Foreign Holding Company

 F. Foreign Income Tax Consequences to the Foreign Holding Company and to the Non-Domiciled Alien

 G. Use of a Check-the-Box Partnership

 H. Use of an Actual Partnership Without a Check-the-Box Election

 1. Estate Tax Considerations

 2. Qualification of the Entity as a “Partnership” for U.S. Tax Purposes

 3. Section 2104(b) Issue

 4. Tax Basis of the Partnership's Underlying Assets After Death

 I. Inheritance of Foreign Holding Company Stock by the Non-Domiciled Alien's Heirs

 J. Formation of a Foreign Trust to Own a Foreign Holding Company

 IV. Inheritance of Foreign Holding Company Stock by a U.S. Person

 A. Introduction

 B. Tax Basis of the Foreign Holding Company Stock Under § 1014

 1. General Rule — Step-Up to Fair Market Value on Date of Death

 2. Exception for Stock of a Foreign Personal Holding Company (FPHC) — Repealed in 2004

 3. Passive Foreign Investment Company Rules

 a. Investment by the Foreign Holding Company Only in Securities

 b. Investment by the Foreign Holding Company in Tangible Personal Property

 4. No Denial in Basis Step-Up for a CFC

 5. Exception for Stock in a Foreign Investment Company — Repealed in 2004

 C. Taxation of the Foreign Holding Company's Post-Death Income if It Is Not Liquidated

 1. The CFC Rules

 2. The PFIC Rules

 D. Advantages to the U.S. Heirs of Liquidating the Foreign Holding Company

 1. Foreign Holding Company that Owns Investment Assets

 2. Foreign Holding Company that Owns Tangible Personal Property

 E. U.S. Tax Consequences of an Actual or Deemed Liquidation of the Foreign Holding Company

 1. Liquidation of a Foreign Holding Company that Owns Investment Assets

 a. CFC Rules Where the Foreign Holding Company's Stock Basis Is Stepped Up at Death

 b. Where the Foreign Holding Company Is a PFIC After Death

 2. Liquidation of a Foreign Holding Company that Owns Tangible Personal Property

 F. U.S. Tax Effects of a Check-the-Box Election by the Foreign Holding Company

 G. Sale of the Foreign Holding Company Stock Instead of Liquidation

 1. Sale of a Foreign Holding Company that Owns Investment Assets

 2. Sale of a Foreign Holding Company that Owns Tangible Personal Property

 H. Tax Implications Where Foreign Holding Company Is Owned by a Foreign Estate

 I. Advantages of Holding the Foreign Holding Company Stock Through a Foreign Trust

 J. Inheritance of an Interest in a Foreign Partnership

 V. Taxation of Foreign Trusts Where There Is No Foreign Holding Company

 A. Introduction

 1. Fact Patterns

 2. Classification of the Trust as a “Foreign Trust” for Income Tax Purposes

 B. Foreign Trust that Is Revocable During the Non-Domiciled Alien Grantor's Lifetime

 1. U.S. Tax Rules upon the Non-Domiciled Alien Grantor's Death

 a. Estate Tax Exposure to the Non-Domiciled Alien Grantor

 (1) General Rule of § 2038

 (2) Estate Tax Risk if the Foreign Trust's Assets Were Originally U.S.-Situs

 (3) Three-Year Rule if Right to Revoke Is Renounced

 b. Basis of the Foreign Trust's Assets After the Grantor Dies

 2. Income Tax Rules

 a. Substantive Income Tax Rules

 b. IRS Reporting Rules for U.S. Beneficiaries

 C. Foreign Trust that Is Irrevocable During the Non-Domiciled Alien Grantor's Lifetime

 1. U.S. Tax Rules upon the Non-Domiciled Alien Grantor's Death

 a. Estate Tax Exposure to the Non-Domiciled Alien Grantor

 (1) General Rules of § § 2035–2038

 (2) Estate Tax Risk if the Foreign Trust's Assets Were Originally U.S.-Situs

 (3) Three-Year Rule if Grantor's Rights Are Renounced

 b. Basis of the Foreign Trust's Assets After the Grantor Dies

 2. Income Tax Rules

 a. Grantor Trust Rules

 b. Rules for Nongrantor Foreign Trusts

 (1) Overview of Income Tax on Income of a Nongrantor Foreign Trust

 (2) Income Tax on the Foreign Trust Itself

 (a) Substantive Income Tax Rules

 (i) U.S.-Source Fixed or Determinable Annual or Periodical Income

 (ii) Effectively Connected Income

 (iii) Income that Is Exempt from Income Tax in the Foreign Trust's Hands

 (b) Tax Return Filing Requirements

 (3) Income Tax on the Nonresident Alien Beneficiaries

 (a) General Rules

 (b) Distribution of Fixed or Determinable Annual or Periodical Income

 (c) Distribution of Effectively Connected Income

 (d) Distribution of Income that Is Tax-Exempt to the Foreign Trust

 (e) Income Tax Treaties

 (f) Section 678 Powers Held by U.S. or Nonresident Alien Beneficiaries

 (4) Income Tax on the U.S. Beneficiaries

 (a) Distributions Out of Current Year's DNI

 (b) Distributions Out of Prior Years' UNI

 (c) Credit for Foreign Income Taxes Paid by the Foreign Trust

 (d) Credit for U.S. Taxes Imposed on the Foreign Trust

 (e) IRS Procedural Requirements

 (f) Tax-Exempt Municipal Bond Interest

 (g) Loans to U.S. Beneficiaries Under § 643(i)

 (h) Use by a U.S. Person of a Foreign Trust's Property

 (i) The “Anti-Intermediary” Rules of § 643(h)

 (j) Section 678 Power Held by U.S. Beneficiary

 (5) Pro Rata Rule for Distributions

 (6) Distribution Planning

 (7) Deduction of the Foreign Trust's Expenses for DNI Purposes

 (8) The 65-Day Rule

 (9) Taxable Year of a Foreign Trust for Income Tax Purposes

 (10) In-Kind Distributions from a Foreign Trust

 (11) Specific Gifts Payable in Not More than Three Installments

 D. After the Grantor's Death, Where the Foreign Trust Is Kept Alive

 1. U.S. Transfer Tax Issues

 a. Powers of Appointment Under § § 2041 and 2514

 b. Generation-Skipping Transfer Tax Issues

 2. Income Tax Issues

 a. Grantor Trust Rules

 b. Nongrantor Trust Rules

 (1) Basis of Foreign Trust's Property Under § 1014

 (2) The “Anti-Intermediary” Rules of § 643(h)

 (3) Section 678 Power of Appointment Held by U.S. Beneficiary

 (4) Possible “Decanting” of the Trust to the United States

 E. Potential Effect of the HIRE Act

 VI. Taxation of Foreign Trusts Where There Is a Foreign Holding Company

 A. Introduction

 B. Foreign Trust that Is Revocable During the Non-Domiciled Alien Grantor's Lifetime

 1. U.S. Tax Rules upon the Non-Domiciled Alien Grantor's Death

 a. Estate Tax Exposure to the Non-Domiciled Alien Grantor

 (1) General Rule of § 2038

 (2) Estate Tax Risk if the Foreign Trust's or Foreign Holding Company's Assets Were Originally U.S.-Situs

 (3) Three-Year Rule if Right to Revoke Is Renounced

 b. Basis of the Foreign Trust's Assets After the Grantor Dies

 2. Income Tax Rules

 a. Substantive Income Tax Rules

 b. IRS Reporting Rules for U.S. Beneficiaries

 C. Foreign Trust that Is Irrevocable During the Non-Domiciled Alien Grantor's Lifetime

 1. U.S. Tax Rules upon the Non-Domiciled Alien Grantor's Death

 a. Estate Tax Exposure to the Non-Domiciled Alien Grantor

 b. Basis of the Foreign Trust's Assets After the Grantor Dies

 2. Income Tax Rules

 a. Grantor Trust Rules

 b. Rules for Nongrantor Foreign Trusts

 (1) Income Tax on the Foreign Trust Itself

 (2) Income Tax on Nonresident Alien Beneficiaries

 (3) Income Tax on U.S. Beneficiaries

 (a) Issues for U.S. Beneficiaries Under the CFC and PFIC Regimes

 (i) The CFC Rules

 (ii) The PFIC Rules

 (iii) Possible Investment in Foreign Insurance Products

 (b) Income Tax Issues for the U.S. Beneficiaries Under the General Foreign Trust Rules

 D. After the Grantor's Death, Where the Foreign Trust Is Kept Alive

 1. Estate Tax and Gift Tax Issues

 2. Income Tax Issues

 a. Basis of the Foreign Trust's Assets Under § 1014

 b. The U.S. Anti-Deferral Tax Regimes if the Foreign Holding Company Is Not Liquidated or Sold

 c. Liquidation of the Foreign Holding Company

 (1) The Foreign Holding Company Is a CFC After the Grantor Dies

 (2) The Foreign Holding Company Is a PFIC After the Grantor Dies

 (3) Sale of the Foreign Holding Company Stock as an Alternative to Liquidation

 E. Potential Effect of the HIRE Act

 VII. Use of “Dynasty Trusts” for U.S. Transfer Tax Planning Purposes

 A. Introduction

 B. Avoidance of U.S. Transfer Taxes During the Life of the Foreign Trust

 1. U.S. Beneficiaries

 2. Non-Domiciled Alien Beneficiaries

 C. Accumulation of Income that U.S. Beneficiaries Do Not Need

 1. Reorganization (“Decanting”) of the Foreign Trust into a Domestic Trust

 2. Formation of a “Pourover” Domestic Trust

 D. Ownership by the Foreign Trust of Personal-Use Property

 VIII. Planning by Aliens Moving Temporarily to the United States

 A. Introduction

 B. Tax Planning to Minimize the Risk of Estate Tax on U.S.-Situs Assets

 1. Exposure to Estate Tax

 2. Utilization of a Foreign Holding Company

 a. Substantive Income Tax Issues

 b. Income Tax Compliance Issues

 3. Utilization of a Foreign Partnership

 4. Utilization of a “Drop-Off Trust”

 a. Guidelines for Minimizing Estate Tax on the Drop-Off Trust

 b. Grantor Trust Status for Income Tax Purposes

 c. Gift Tax Risk if Grantor Transfers U.S.-Situs Tangible Property

 d. Planning to Ensure Non-Domiciled Alien Status

 e. “Unwinding” the Drop-Off Trust After the Grantor Resumes Nonresident Alien Status

 f. Utilization of a Domestic Trust Rather than a Foreign Trust; the § 684 Regulations

 g. Utilization of Term Insurance to Cover Estate Tax Exposure

 C. Tax Planning to Minimize the Risk of Becoming a Domiciled Alien

 D. Tax Planning to Minimize Income Tax During Resident Alien Status

 1. Foreign Cash Roll-Up Funds

 2. Gifting of Assets to a Trusted Nonresident Alien

 3. Gift of Assets to Nonresident Alien, Who Then Forms a Trust for the Donor or His Family

 a. The “Give and Go Rule” of § 672(f)(5)

 b. The Intermediary Rule of § 679

 c. IRS Reporting Requirements

 d. U.S. Tax Effects if the Trust Is Not a Grantor Trust

 e. Section 684 Implications

 f. Unwinding the Trust After the Alien's U.S. Stay Has Ended

 4. Foreign Insurance Products

 5. Standard U.S. Tax Planning Ideas Not Involving Foreign Structures

 IX. Planning by Aliens Moving Permanently to the United States

 A. Introduction

 B. Use of a Permanent “Drop-Off Trust” to Avoid U.S. Transfer Taxes Through the Date of Death

 1. General Comments

 2. Gift Tax and Generation-Skipping Transfer Tax Risk if the Grantor Is Already a Domiciled Alien

 3. Risk of Gift Tax on Later Contributions to the Trust

 4. Distributions from the Trust While the Grantor Is Alive

 5. Classification of the Trust as a Grantor Trust for Income Tax Purposes

 6. Section 684 Issues — Should the Trust Be Foreign or Domestic?

 C. Continuation of the Drop-Off Trust After the Grantor Dies

 D. Avoiding Income Tax on Investment Income

 1. Foreign Cash Roll-Up Funds

 2. Gifting of Assets to a Trusted Nonresident Alien

 3. Gift of Assets to Nonresident Alien, Who Then Forms a Trust for the Donor

 4. Foreign Insurance Products

 5. Standard U.S. Tax Planning Ideas for U.S. Citizens

 E. IRS and U.S. Treasury Filing Requirements

 X. Investment in U.S. Real Property

 A. Introduction

 1. Types of Investments by Non-Domiciled Aliens in USRPIs

 a. Personal Residence in the United States

 b. Personal Residence that Is Rented Out Part of the Time

 c. USRPI that Is Full-Time Investment Property

 2. Tax Objectives of the Non-Domiciled and Nonresident Alien Owner of the USRPI

 a. Income Tax on Rental Income

 b. Income Tax on Gain from the Sale of the USRPI

 c. U.S. Transfer Tax Objectives

 B. Ownership of a U.S. Residence that Is Never Rented Out

 1. Structuring to Avoid Estate Tax

 a. Ownership Through a Foreign Holding Company

 b. Ownership Through a Foreign Trust

 c. Ownership Through a Foreign Partnership

 d. Ownership Through an RPHC

 2. Restructuring if the Non-Domiciled Alien Originally Owns the USRPI Directly

 a. Utilization of a Foreign Holding Company

 b. Utilization of a Trust

 c. Utilization of a Foreign Partnership

 d. Formation of an RPHC

 e. Restructuring from a U.S. Entity to a Foreign Holding Company — Anti-Inversion Rule of § 7874

 3. Must the Non-Domiciled Alien Pay Rent to the Entity that Owns the U.S. Residence?

 a. Income Tax Issue

 (1) Probably No Imputed Income to the Owner of the USRPI

 (2) Rent-Free Use of Foreign Trust's Property by U.S. Persons

 (3) Imputed Dividend to the Owner of a Holding Company

 b. Estate Tax Issue

 4. FIRPTA Tax Under § 897 on the Sale of the U.S. Property

 a. Sale by the Non-Domiciled and Nonresident Alien

 b. Sale by a Foreign Holding Company

 (1) Regular Corporate Income Tax

 (2) Branch Profits Tax

 (3) Taxation of Distributions by the Foreign Holding Company to Its Nonresident Alien Shareholders

 (4) Can the Nonresident Alien Argue that the Foreign Holding Company Was a Sham?

 (5) Sale of the Foreign Holding Company Stock to a Buyer Who Will Not Liquidate It

 c. Sale by a Nongrantor Foreign Trust

 (1) Income Tax on the Foreign Trust Itself

 (2) Income Tax on the Foreign Trust's Nonresident Alien Beneficiaries

 (3) Income Tax on the Foreign Trust's U.S. Beneficiaries

 d. Sale of Interest in a Foreign Partnership

 e. Sale of USRPI Owned by an RPHC

 (1) Sale of the USRPI by the RPHC

 (2) Sale of the RPHC Stock by the Nonresident Alien Shareholders

 f. Retroactive Check-the-Box Election when Non-Domiciled Alien Owner Dies

 5. Inheritance of the Structure by a U.S. Person

 a. USRPI Owned by a Foreign Holding Company

 b. USRPI Owned by a Foreign Trust

 c. USRPI Owned by a Foreign Partnership

 d. USRPI Owned by an RPHC

 C. Ownership of a U.S. Residence that Is Rented Out Part of the Time

 D. Ownership of Full-Time Investment Property

 1. Structuring the Investment to Avoid Estate Tax

 a. Use of a Foreign Holding Company

 b. Ownership Through a Foreign Trust

 c. Ownership Through a Foreign Partnership

 d. Direct Ownership of an RPHC by the Non-Domiciled Alien

 2. Income Tax on Rental Income

 a. “First Tax” on the Rental Income

 b. “Second Tax” on the After-Tax Rental Income

 (1) USRPI Owned by an RPHC

 (2) USRPI Owned by a Foreign Holding Company

 (3) USRPI Owned by a Foreign Trust

 3. Restructuring if the Non-Domiciled Alien Originally Owns the USRPI Directly

 4. Income Tax on the Eventual Sale of the USRPI

 a. Sale by a Foreign Holding Company

 (1) USRPI Operated in Branch Form

 (2) USRPI Held Through an RPHC Subsidiary

 b. Sale by a Nongrantor Foreign Trust

 (1) USRPI Held Directly by the Foreign Trust

 (2) USRPI Owned Through an RPHC

 c. Sale of Interest in a Foreign Partnership

 d. Sale of USRPI Owned by an RPHC

 XI. Investment in Insurance Products

 A. Introduction

 1. Variable Life Insurance Products

 2. Variable Annuities

 B. Non-Domiciled and Nonresident Alien Individuals with No U.S. Personal Contacts

 1. Variable Life Insurance

 2. Variable Annuities

 C. Non-Domiciled and Nonresident Alien Investors with U.S. Heirs

 1. Variable Life Insurance

 2. Variable Annuities

 D. Non-Domiciled Aliens Moving Temporarily to the United States

 1. Variable Life Insurance

 2. Variable Annuities

 E. Non-Domiciled Aliens Moving Permanently to the United States

 1. Variable Life Insurance

 2. Variable Annuities

 F. Tax Treaty Overrides of the Income Tax and Estate Tax Rules

 1. Income Tax Treaties

 2. Estate Tax Treaties

 G. Potential Effect of the HIRE Act

 1. Section 1471 Withholding Tax Rules

 2. Section 6038D Annual Reporting

 H. FBAR Reporting

 Working Papers

 Table of Worksheets

 Worksheet 1 Chart Summarizing Incidence of U.S. Federal Transfer and Income Tax on Individuals Based on Residency Status

 Worksheet 2 Diagram Illustrating Basic Foreign Holding Company Structure for Investment in U.S. Assets by Non-Domiciled Alien (NDA)

 Worksheet 3 Diagram Illustrating Basic Foreign Trust Structure for Investment in U.S. Assets by Non-Domiciled Alien (NDA)

 Worksheet 4 Diagram Illustrating Foreign Trust/Foreign Holding Company Structure for Investment in U.S. Assets by Non-Domiciled Alien (NDA)

 Worksheet 5 Chart Summarizing Tax Issues for Individuals Investing in Variable Life Insurance Policies or Variable Annuity Contracts: Non-U.S. Vs. U.S.-Based Insurance Companies

 Bibliography

 OFFICIAL

 Statutes

 Regulations

 Legislative Documents

 IRS Documents

 Cases

 UNOFFICIAL

 Books and Treatises

 Periodicals

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