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How Do U.S. Tax Rules Constrain The Investment Choices Of US Taxpayers Living In Australia?



John Richardson 4

Before moving to the post, if you believe that Americans abroad are being treated unjustly by the United States Government: Join us on May 17, 2019 for a discussion of U.S. “citizenship-based taxation” as follows:

Think of it! With the exception of the United States, when a person moves away from the country and establishes tax residency in another country, they will no longer be taxed as a resident of the first country.

But in the case of the United States: If a U.S. citizen moves from the United States and establishes tax residency in a new country: (1) they will STILL be taxable as a tax resident of the United States (2) they will be subjected to a separate and more punitive system of taxation! (3) they will have to engage in financial planning according to the rules of the tax system where he resides.

We will now see how being subject to the U.S. tax system disables the individual, from being able to engage in the normal financial planning, that is optimal under the tax system where he resides. In effect, he will lose the tax benefits which are available to “non-U.S.” residents of his country of residence. The biggest cost of this is NOT the additional tax. The biggest cost is the opportunity cost of being disabled from normal financial planning. A discussion of “lost investing opportunity” in Canada is here. Dr. Karen Alpert will now explain how the “loss of opportunity” works in an Australian context.

Australia – A Study

How Do U.S. Tax Rules Constrain The Investment Choices Of U.S. Taxpayers Living In Australia?
(Post By Karen Alpert)

In the Facebook group last week, someone claimed that only the very wealthy are disadvantaged by the dual tax obligations imposed on US citizens and green card holders living in Australia. Certainly, for an Australian resident with only salary income, it is likely that foreign tax credits (FTC) or the Foreign Earned Income Exclusion (FEIE) will completely eliminate any US tax liability. However, for anyone who is considering investing for the future or running their own business, there are many pitfalls and traps in US tax law that need to be carefully considered. It seems like almost anything foreign is treated punitively by US tax law, and these xenophobic rules make it difficult for middle class US taxpayers to save effectively while living outside the US.

Over the next few weeks, I will be covering the following areas where US taxpayers living in Australia need to be particularly careful:

  1. Superannuation
  2. Homeownership
  3. Real Estate
  4. Australian Managed Funds
  5. Australian Shares
  6. Business Ownership Structures
  7. Investing in the US
  8. Record keeping

This series (and everything on this website) is general information only. I am not a lawyer, tax professional, or financial planner, just someone who has learned about US tax and wants to pass on general knowledge. Many areas of tax law are interdependent, so changes in one area may have unintended consequences in another. You should consult a professional who can consider your own personal circumstances before taking any action.

1. Superannuation

As mentioned in an earlier post, there is disagreement among tax professionals as to how superannuation is to be treated under US tax law. The lack of clarity in the tax treaty coupled with the absence of authoritative rulings from the IRS leaves us in an unfortunate position where the conservative interpretations of tax compliance professionals end up creating precedent and expectations on the part of the IRS. The end result is a movement towards compliance that maximises US tax due.

The Australian government should use the mutual agreement mechanism in the treaty to pressure the IRS to make a determination as to whether any part of the superannuation system should be treated as equivalent to Social Security under the treaty. The US should have no right to tax the superannuation of Australian residents; to allow US taxation of super is to allow the US to drain capital from the Australian economy. However, as this area is still unclear, the remainder of this section will start from the premise that the US can tax super contributions, income, and distributions.

For readers who are not familiar with Australian superannuation, it works like this: employers are required to contribute 9.5% of employee salary to a superannuation fund. Tax is paid on this contribution by the super fund at a rate of 15%, the contribution is not taxable to the employee. In addition, employees can elect to make additional “salary-sacrifice” contributions, which are taxable to the super fund at the 15% contributions tax rate, but not to the employee. Self-employed individuals can also make tax deductible super contributions, which are also taxed at the 15% rate inside the super fund. All of these contributions collectively are called “concessional” contributions because they are taxed at 15% rather than the individual’s marginal tax rate. It is also possible to make “non-concessional” contributions, which are contributions from after-tax income. Non-concessional contributions are not subject to the 15% contributions tax at the fund level. There are limits on the amount of concessional and non-concessional contributions that an individual can make each financial year. Investment income generated inside a super fund is taxed at 15% on ordinary income and 10% on capital gains. Money must stay in a super account until retirement. While it is possible to withdraw the entire account in a lump sum upon retirement, it is more advantageous to leave the money in “pension mode” inside super where the tax rate drops to zero. For retirees over age 60, all super distributions are tax free. Of course, these are the Australian tax implications of super, the US tax implications can be very different.

Most tax professionals appear to be treating superannuation as an employees trust under Internal Revenue Code section 402(b). To oversimplify, this means that employer contributions are included as compensation income when computing US taxable income, [1] but as long as the only contributions in the account are employer contributions (essentially the 9.5% of salary), then the income inside the account is deferred for US tax until benefits are withdrawn.

However, if personal contributions (salary sacrifice contributions plus non-concessional contributions) exceed employer contributions, the classification of super under US tax law can change. Depending on several factors (that are beyond the scope of this post), excessive personal contributions can turn the super account into a foreign grantor trust. The consequence of classification as a grantor trust is that, for US tax reporting, the employee is treated as directly owning all investments inside the super fund, meaning that all income inside the fund is taxable currently to the individual. Foreign trust reporting is very complex and requires extra US tax compliance (more forms with huge penalties for non-filing). One major problem with this compliance nightmare is that super account holders rarely get all the information required on their regular account statements. If the super account is treated as a foreign grantor trust, then the Australian tax paid inside the super fund (both the 15% contribution tax and the 15% tax on fund earnings) should be available as FTC on the US return if it is separately stated on the super account statement. Because of the potential grantor trust treatment, a US taxpayer who wishes to make extra super contributions should consult a professional. It may be possible to make salary-sacrifice and/or non-concessional contributions to carefully utilise FTC and avoid foreign grantor trust status (possibly by segregating personal contributions from employer contributions).

US tax on superannuation will further constrain the choices of US taxpayers who wish to consolidate their superannuation accounts. Since super is not a qualified retirement plan for US tax purposes, rollovers may be a US-taxable event, so tread carefully here. For those who are self-employed, and those with a self-managed super fund (SMSF), the grantor trust rules will increase US tax and complicate compliance.

If superannuation is not equivalent to social security, then once distributions start, distributions will be US-taxable to the extent they have not been previously included in US taxable income. At the beginning of each year, you determine what fraction of the account represents previously included income, and that fraction of distributions is excluded from US taxable income. This income is not earned income, so it does not qualify for FEIE. To the extent that you have Australian taxable portfolio income, there may be some foreign tax credits available. Unused foreign tax credits carry over for 10 years, so for the early years of retirement, there may be plenty of FTC available to offset super distributions. However, given that pension distributions from super are not taxable in Australia after age 60, it is quite possible that FTC carryover will run out and US tax will be owed. Note that the income and assets tests for qualification for the Age Pension will not be adjusted due to US tax liability, so US taxpayers who qualify for the Age Pension while still drawing a super pension will have lower after-tax income than other Australians.

Allowing the US to tax superannuation in this manner means that this segment of the Australian population is unable to fully utilise the incentives given by the Australian government to increase retirement savings and reduce reliance on the Age Pension.

Well, the target for this post was about 750 words, and I’m already well and truly above 1000. If I missed anything you wanted to know about super, please ask in the comments. In a few days I’ll post the next installment of this series on the US tax complications of investing in real estate, either your own home or investment property.


*Karen Alpert is a Finance Lecturer at the University of Queensland. Her educational qualifications include a PhD in Finance (Queensland), MBA (UC Berkeley), and M Bus Tax (U So Cal). She runs the website Let’s Fix the Australia/US Tax Treaty! where this post was originally published.

[1] There are additional rules for highly compensated employees that further limit the advantages of investing in superannuation for US taxpayers.

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The Reality of U.S. Citizenship Abroad

My name is John Richardson. I am a dual citizen. I am a lawyer – member of the Bar of Ontario. This means that, any counselling session you have with me will be governed by the rules of “lawyer client” privilege. This means that:

“What’s said in my office, stays in my office.”

I am also a member of the American Citizens Abroad Professional Tax Advisory Council (PTAC). This is an advisory panel focused on assisting American Citizens Abroad in an FBAR and FATCA world.

The U.S. imposes complex rules and life restrictions on its citizens wherever they live. These restrictions are becoming more and more difficult for those U.S. citizens who choose to live outside the United States.

FATCA is the mechanism to enforce those “complex rules and life restrictions” on Americans abroad. As a result, many U.S. citizens abroad are renouncing their U.S. citizenship. Although this is very sad. It is also the reality.

One thought on “How Do U.S. Tax Rules Constrain The Investment Choices Of US Taxpayers Living In Australia?

  1. Avatar Graham Astley says:

    Hi John, We tuned in to watch you debate Edward Zelinsky at 6am Saturday NZ time. I wish the moderator had put some questions from expatriates.
    Anyway it was good and we were emphatically in your corner. I am sure you will have read that the French are considering a challenge to the US over FATCA. All FATCA signatories should join with France to confront the US over this issue. How can we organize this?

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