Recently in Canadian Snowbird Issues Category

December 11, 2014
Posted by Chris Manes

CANADIAN SNOWBIRD OR LANDLORD OR BOTH? The Tax Differences

Helped along by the depressed US housing market in the past few years, the Palm Springs, California, area has become a hot spot for Canadians to purchase vacation homes or rental property. Often the same property is used for both purposes: vacations for snow-weary owners, and rentals when they go back to Canada. With the year about to end, it's a good time to go over the basic tax rules for Canadians who own or rent real property in California.

Assuming the Canadian owner doesn't have a green card or hold other residency status, the tax implications of owning real estate in the US will depend on how the property is used and how often it's used.

If the property is solely used as a vacation home - and never rented out during the year - there should be no US tax implications until the house is transferred, either by sale, retitling into a trust or business entity, or at the owner's death. In our wireless connected world, Canadians who mix vacation with work while at the property need to be careful about running afoul of US federal and California state income tax rules, especially when it comes to the very aggressive California tax authorities and their rules about California source income. But that's another topic.

Actually, "never" is an overstatement. An owner of property can rent out the property for 14 days or less without tax reporting requirements, if the home is used personally for more than 14 days, or more than 10% of the total days it is rented to others. The amount of the rental income doesn't matter in this case, so long as the use limits are met.

On the other end of the spectrum is real property never used for personal use, but rather rented out to others. The Canadian owner must report the entire rental income received on a US nonresident Federal and California tax return. At the same time, most rental owners qualify to deduct rental-related expenses: depreciation, utilities, repairs, property management fees, and the like. Further, rental losses may qualify for deductions against other income, at least in part, and may carry over for use in subsequent years. The ability to take loss deductions for 100% rental property distinguishes it from "mixed-use" property, which is a trickier tax situation.

Again, "never" is an exaggeration. The actual rule is if the personal use of a vacation home doesn't exceed 14 days in a tax year or 10 percent of the total number of days it is rented out at fair market value, whichever is greater, and the property is rented out for more than 14 days, then it qualifies as a rental property.

More than a few Canadians are somewhere in the middle. They use their US property as a vacation home, but also rent it out for more than 14 days when they aren't in the US. The rule is that if the owner uses the property for personal use for more than 14 days a year or, if greater, 10 percent of the number of days it is rented to others at fair market value, the property is treated as a residence, not a business. This is an important tax distinction. The owner must report all rental income on US tax returns and the rental expenses are usually deductible. But the expenses have to be allocated between the personal and rental use. More important, rental expenses in this scenario can be deducted up to the level of rental income, but the owner can't use losses against other income.

A couple caveats. While the US and California have a "14-day" threshold, Canada does not. Therefore even de-minimus rental income may have to be reported in Canada. Further, resort towns like Palm Springs, Palm Desert, Rancho Mirage, Indian Wells, have additional municipal rules that restrict or otherwise regulate renting out vacation homes, including the imposition of fees. Finally, there are hefty state and federal withholding requirements for rent paid to non-US residents (though with private renters where there is no management company, those rules are often ignored). With proper planning, the withholding can be waived. Otherwise, the owner will have to file for a refund if the actual amount of taxes due on rental income totals less than the withheld amount.

Finally, note that in all these situations, how title to the property is held matters for tax purposes. If, for instance, the property is vested in both names of a married couple, then both must file US federal and California returns. If only one of the spouses is on title, only that spouse must file the returns (assuming no other income requiring the other spouse to file US returns). If the property is held in a revocable trust, then the grantor of the trust (that is, the person who established it) must file the returns. This may have important tax implications that should be considered at the time the property is purchased and title taken.

December 4, 2013
Posted by Sanger & Manes, LLP

I'm a Canadian Considering Purchasing a California Vacation Home, What Form of Home Ownership Should I Use? Should I Use a Trust? Part III (How is the California Revocable Trust Taxed upon Contibution of the La Quinta, Cal House to the Trust)?

So the California Revocable Trust seems like a very practical ownership form for the Canadian (Great Britain or even the American from a state other than Cal) who wishes to see their heirs spared (and I do mean spared) the California court system, inlcluding the time and cost (probate). Is it true, however, that the contribution of appreciated property can lead to a payment of tax requirement?

Is There a Tax Required in Either Canada or the US Upon Contributing the US House to the California Revocable Trust?

Remember, there's one of two times the trust will first own the property: either (a) at the inception of the house purchase (for example, Canadians Harriet and Thomas decide to purchase a La Qunita California home, they enter a 30 day escrow period- prior to the closing date, Harriet and Thomas simply inform their escrow agents that they plan to own the house as trustees of their California Revocable Trust- escrow complies, and as of Day 1 the Harriet and Thomas Trust owns the home); or (b) after the home has been owned for a while by Thomas and Harriet, the house is transferred to the trust-. Is there a tax in Canada (or the US) if the trust is deemed owner from Day 1? No, no tax in either country. But what about if Harriet and Thomas have owned the house for years, and then want to transfer it to their California Revocable Trust, does that cause a tax obligation in either Canada or the US? In the US, a transfer of a house owned by H & W to the H&W Revocable Family Trust is not a taxable transaction, so there is no US or California tax. But on their Canadian tax return, Harriet and Thomas have a different conclusion. When Harriet and Thomas transfer their La Quinta house they've owned for a few years to their new Cal. Revocable Trust, there very well may be a taxable event in Canada. The tax is based on the appreciation (if any) in the value of the house from when Harriet and Thomas originally bought it until today, the day of transfer to the trust. The appreciation is all speculative, of course, it's not like there's been a recent sale to prove there's been an appreciation in the property. But presumably by reaching out to a local realtor, by checking in with their neighbor (or head of your homeowner's association), or even by reviewing the recent state property tax bill, they can have a good idea whether the property has appreciated. If it has, they will likely pay a deemed disposition tax on their Canadian tax return, but no tax (or return) will be required in the US upon the transfer to the trust. But, see below for an exception to that rule.....

Is there an exception (to the requirement of having to pay tax in Canada on the appreciation in the property upon transfer of the US house to the California trust) which allows the Canadian to avoid having to pay tax in Canada?
The answer is yes, a big exception. If the settlor is at least 65 years there is a chance this California trust might qualify as an "alter ego trust" under Canadian law, which would mean there would be no tax upon transferring the appreciated house to the trust.

The bottom line, even in a highly appreciating local market, Canadians should consider using the US revocable trust as a viable method for to avoid probate (and not pay tax in either country upon contribution to the trust). As home values haven't risen significantly in the Palm Springs area, this has been mostly a "non-issue." for the last few years.

Call me at Sanger and Manes to discuss this technical area with me, Michael Brooks, further- 760-320-7421.

November 20, 2013
Posted by Sanger & Manes, LLP

I'm a Canadian Considering Purchasing a California Vacation Home, What Form of Home Ownership Should I Use? Should I Use a Trust? Part II (Canadian Irrevocable Trust Versus Cal Revocable Trust)

More on When We Use the Canadian Irrevocable Trust to Purchase US Property...

So we pick up where we left off last week: super-wealthy Canadians who own more than $5.34M in worldwide assets, and who loathe the idea of paying a US estate tax, should consider (1st and foremost) putting the US house into a Canadian Irrevocable Trust. You can do this with relative ease if the trust owns the house from the inception. But be careful for the scenario where the Canadians own the house individually at first, and then transfer (usually via a sale) the house to a Canadian Irrevocable Trust later. This is thought by some (but by no means all) practitioners to subject to the Canadians to the US gift tax (even though it's a sale). I've yet to see any evidence of this, except for indirect case law from 50 plus years ago, so who knows. Nonetheless, Canadians transferring a US house to a Canadian Irrevocable Trust after owning it individually first (as opposed to when the trust buys the US property first) should remain mindful they are taking a risk, and that IRS may impose a gift tax on this transfer (sale). Call Attorney Michael W. Brooks at Sanger and Manes (760-320-7421) to discuss the Canadian Irrevocable Trust for California (and especially) Coachella Valley properties. This is a highly complex cross-border estate planning area, but Sanger & Manes can help.

For the vast majority of Canadians purchasing US real estate, the biggest concern is not the US estate tax, it's the excessive cost and time required for a Canadian's heirs to inherit their parents' California real estate- i.e. the cost of probate (the California process whereby a California court orders the Canadian snowbird's US house to be distributed to their designated beneficiary(ies)).

Remember, avoid California probate if at all possible!!!

Probate is the California process whereby a California court orders the Canadian snowbird's US house to be distributed to their designated beneficiary(ies). Depending on how you own your California home, probate may be required after the death of one spouse, or the second spouse, or not required at after death of either spouse if a trust is utilized.

Probate is Expensive.

The estate of the Canadian Snowbird in probate will pay ordinary fees and likely extraordinary fees as well. Ordinary fees (which are statutory) are for the normal tasks of any probate. Every probate will include these fees. Ordinary fees cost approximately 3% to 4% of the property value in Cal (by statute), so a $500,000 house is looking at a minimum of around $16,000 in ordinary fees, plus other (potentially) significant costs and (extraordinary) fees (equaling possibly even up to $40,000 or even $50,000 total). Extraordinary fees are likely required in any international probate, because of the tax issues (and the requirement of the attorney to invoke various provisions of the US-Canada Tax Treaty). They will be charged by the attorneys at the attorneys' normal hourly rates. Extraordinary fees are could be in the thousands of dollars in most US-Canada probates.

California Probate Takes Time

Probably no less than a year in the international context, and that time frame will likely grow longer as the years go on.

So What Vehicle Avoids The Significant Time Delay and Most of the Significant Costs of Probate? Answer: The US Revocable Trust (or a Canadian Revocable Trust hybrid)...
-

preferably a revocable trust which has been drafted and reviewed by California attorneys (to ensure its acceptable to bypass probate). With no probate required under California law because the real estate is in an acceptable (under the laws of California) trust, all California real estate will likely be distributed at the end of the four month California statutory waiting period. And the cost difference (versus going through a whole probate)? Significant; a fraction of the probate cost....

We'll get into the dos and dont's of the California Revocable Trust (including the Canadian tax consequences for Canadians entering inot a California Revocable Trust) in Part III of this series....


November 11, 2013
Posted by Sanger & Manes, LLP

I'm a Canadian Considering Purchasing a California Vacation Home, What Form of Home Ownership Should I Use? Should I Use a Trust? Part I

I, Attorney Michael W. Brooks, lecture on this topic regularly for Canadians in the Palm Springs area. I copy my lecture materials on the question of how the Canadian might consider owning the US home. First, let's introduce a couple concepts worth considering before we choose the ownership form: the US estate tax and the dreaded California probate. Then we'll get into evaluating various forms of home ownership.
What is the US Estate Tax? Can it Be Imposed on Canadians?

The US estate tax is a death tax imposed on Americans (on the value of all their assets worldwide) and possibly Canadians, but only if the Canadian owns US property at death (US property generally=US real estate or securities of US corporations). If so, the tax imposed is generally 30-40% of the value of the US property owned at death.

Does the current US/Canada Tax Treaty Offer Canadians Relief from the US Estate Tax?

YES (this very important). As per the US-Canada Tax Treaty, if the Canadian Snowbird does not own more than $5,340,000 in worldwide assets/dollars (an indexed amount, $5,340,000 is for 2014) then no matter the value of the US house, the Canadian Snowbird is not subject to the US estate tax!!! So most Canadian Snowbirds are not subject to the US estate tax- period!

California Probate- Avoid It !!!

What is California Probate?
Answer: Probate is the California process whereby a California court orders the Canadian snowbird's US house to be distributed to their designated beneficiary(ies). Depending on how you own your California home, probate may be required after the death of one spouse, or the second spouse, or not required at after death of either spouse if a trust is utilized.

Probate is Expensive.
The estate of the Canadian Snowbird in probate will pay ordinary fees and likely extraordinary fees as well.

What are the Ordinary Fees and How Much Are They?

There are ordinary fees (which are statutory). Every probate will include these fees. Ordinary fees cost approximately 3% to 4% of the property value in Cal. These are the minimum fees that will be required in every case.

What are Extraordinary Fees and How Much Are They?

Extraordinary fees are likely required in any international probate, because of the tax issues (and the requirement of the attorney to invoke various provisions of the US-Canada Tax Treaty) involved. They will be charged by the attorneys normal hourly rates. Extraordinary fees are likely to be in the thousands of dollars in every US-Canada probate.

How long does California Probate Take?

Probably no less than a year in the international context
.
Any other Negatives about Probate?

Yes, it makes your finances public record.

So I'm a Canadian with Big Bucks (well over $5.3 Million (measured in US dollars) in Worldwide Assets), and I want to buy a Nice La Quinta House, but I'll be Darned if I'm Going to Pay the US any Estate Tax When I Die. how should I Own my New Swanky California Vacation House?

LIKLEY The BEST OPTION FOR CANADIAN SNOWBIRDS TO AVOID THE ESTATE TAX WITH RESPECT TO US HOUSE: OWN THE HOUSE VIA THE CANADIAN IRREVOCABLE TRUST

Pros: Many cross-practitioners believe when the Canadian Snowbird dies he or she does not own a US house for the purposes of the US estate tax (the Canadian Trust does). So $0 estate tax due upon death.

Pros to the Canadian Irrevocable Trust:

-As good as a Canadian corporation for estate tax protection, but no high corporate tax rate upon sale.

-Probably avoids US probate (but US counsel (e.g., Sanger & Manes) must review the Canadian Trust to ensure it contains the proper language to avoid us probate!!!).

Cons: Numerous:

-Little US estate tax concern if put into place prior to house purchase (but a large US gift/estate tax concern if trust put into place after original home purchase).

-It's an irrevocable trust- no going back!

-Only H or W can be a connected to trust, the other is not. So if H&W get divorced (or if H or W dies) , the non-connected spouse must pay rent to use house.

-If trust is still in place after 21 years, the property must undergo a "deemed disposition" for Canadian tax purposes (i.e., the underlying property is deemed sold after 21 years, and any deemed gain is cap gain for Canadian tax purposes).

We can draft Canadian Irrevocable Trusts here at Sanger & Manes with the help of Canadian counsel. But really, the Canadian should probably only consider it only if he or she owns more than $5.3M in worldwide assets (plus a sizeable US asset like a house). It comes with several restrictions which the Canadian may regret later on.
More on the several other possible ownership structures in Part II.....

October 21, 2013
Posted by Sanger & Manes, LLP

A Canadian Dies Owning Palm Springs, California Real Estate; Describe the California Probate Process Which Permits the Transfer of the Palm Springs Real Estate to the Canadian Heirs, Part I

Summer allows us a little break in our Palm Springs law office, and it also allows us to take a break from our blogs. But as Fall is now upon us (and it is gorgeous outside, trust me), it's time to get back to business. We get a a lot of questions about the probate process here in California (something our Firm gets involved in regularly), and how it may differ when the deceased was not a US citizen/ resident.

Before We Describe the Probate Process, Remember, Your Estate Will Save Time and Money if You Put Your House in a Trust While You're Living

California probate is a both time consuming (think 8 months to over a year to complete...) and costly (the family of a deceased will have to pay attorneys approximately 3% of the value of the property being probated in California...plus extra costs as well associated with the estate tax return of the estate and even potentially other costs). On the other hand, property placed into a valid trust (under California law) does not have to go through probate, which generally saves the estate thousands of dollars and speeds up the process by which the heirs receive the property considerably. Sanger and Manes drafts trusts for Canadians owning Palm Springs area real estate (and all of California property generally).

If the Canadian Decedent Did Not Use a Trust or WIll which Constiutes a Valid Trust or Will Under California Law, What Happens to the US Real Estate When the Canadian Dies?

Just like if an American dies owning US real estate, no trust means a probate is required. Probate means a court proceeding whereby the court must decide who owns the property now that the former owner has passed away. Typically (although not always), the decedent will have at least had a will (probably back in Canada). So we, as US attorneys, will attempt to have the Canadian will accepted by the US court. Will it be? Not necessarily. Each state in the United States provides for its own requirements which a valid will must contain. For example, one requirement under California law is that a valid will must be signed by two witnesses who were present to witness the execution of the document by the testator and who also witnessed each other sign the document. So what if a Canadian will had one only witness? Certainly that document could be ruled invalid by the California court, and the deceased could be viewed as dying without a will (or dying "intestate").

What are Impications of Dying Intestate?

Under California law, if the Canadian decedent is viewed as dying intestate, either because he or she had no will or trust (or the will he or she had was not viewed as valid under California law), the decedent's property in Cal will be transferred to his or her next living heirs at law, in equal measures. So if a husband died intestate, the property would all go to his wife. If his wife had predeceased him, it would go to his children in measures- all by the rules of intestate succession.

I always tell my Canadian clients if their desire is to leave their property to someone other than the children in equal measures (like to just one child of three who really enjoyed the US house, or to a brother instead of any of the children), then at least get a California will for the California property to ensure it goes where the deceased wanted it to go (you can have confidence the California will will be honored by the California court, unlike the Canadian will). Of course, I still prefer a trust above all else.

We'll talk about the various steps in the probate process in Part II of this series.

July 9, 2013
Posted by Sanger & Manes, LLP

Sanger and Manes- Canadian and International Attorneys of the Coachella Valley, Discuss How the Fall of DOMA Impacts Same-Sex Immigration from Canada to the US, and from all countires to the US

This blog was written by Attorney Lorraine D"Alessio, who works Of Counsel for Sanger and Manes in Palm Springs, with a focus on immigration issues. She also heads the D'Alessio Law Group based in Los Angeles.

US Immigration for Same-Sex Spouses

On June 26, 2013, the Supreme Court of the United States struck down parts of the Defense of Marriage Act (DOMA), which defined marriage for federal law purposes as between a man and a woman only. President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly. Secretary of Homeland Security Janet Napolitano released a statement that effective immediately the U.S. Citizenship and Immigration Services (USCIS) is to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse. Also, same-sex marriage cases previously denied by USCIS may be reopened.

Secretary Napolitano immediately issued the following Frequently Asked Questions:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?
A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse's admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.
Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?
A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

Generally, USCIS looks to the law of the place where the marriage takes place when determining whether it is valid for US immigration law purposes. At the present time, same-sex marriage is permitted in over a dozen countries, 12 US states and the District of Columbia.

According to media reports, USCIS has already approved one same-sex marriage immigration case. That couple was married in New York, a state that recognizes same-sex marriage, but resides in Florida where same-sex marriage is not recognized

May 21, 2013
Posted by Sanger & Manes, LLP

Palm Springs Attorney for Canadians Michael W. Brooks Editorializes that Canadians Should Be Permitted to Stay in the US More Than 6 Months a Year (Part 2)

...so, let's first show you the rest of the editorial that ran in the Desert Sun on April 21, 2013, and then we will discuss the latest events concerning the possibility for Canadians to stay in the US more than 6 months a year.

we continue...

Any U.S. immigration reform must include a provision for Canadians

Of note recently, Congress has had the opportunity to review the Jobs Originated Through Launching Travel Act ("JOLT Act"),which would allow certain Canadians to stay in the U.S. up to eight months a year. Why not simply incorporate the JOLT Act as part of our impending macro immigration reform? The continued recovery of many states, and of course our beloved Coachella Valley, relies on the continued uninhibited and encouraged contribution of our Canadian cousins. We all know immigration reform is tricky, and does not happen often. We must not make the mistake of letting this rare immigration overhaul occur without remaining ever mindful of the importance of the eager and vital immigrants in waiting from Canada.

Feedback to my Editorial

The feedback on my editorial was very positive. Most Desert Sun readers who commented to the article, or emailed me directly, completely agreed with my stance. There was a small bit of confusion by a very few who thought Canadians could generally stay in the US past six month if they paid US taxes (this is not true..under current immigration law, a Canadian who stays in the US past 180 days in any 365 day period violates the terms of the general visa...the punishment for this is the next time the Canadian tries to enter the US, he or she could be denied entry to the US (maybe for a long time). There is no legal option for Canadians to simply overstay the 180 day and pay US taxes...at least not as of today.)

Gang of 8 Makes its Recommendation

Right about the time my editorial came out, the Senate Gang of 8 came out with its overall immigration proposal. Although clearly not the focus of their proposal, there is nonetheless a section which would permit Canadians to stay in the US up to 240 days in a 365 day period. In a section entitled "Encouraging Canadian Tourism to the United States," the bill allows certain Canadians to be admitted as Visitors for a period of up to 240 days in a calendar year. This is different from the current Visitor option that allows Canadians to visit the US for a rolling 180 day period. To qualify, Canadians must meet the following criteria:
· Citizen of Canada,
· At least 55 years of age,
· Continues to maintain a home in Canada, AND
· Owns a US home (or has rented a US home for the duration of the period of stay being requested).

Will the Gang of 8's recommendation become law? Who knows. A lot of the answer probably has much to do with whether any immigration law passes in the first place. If there is one, there's probably a decent chance that the Canadian portion will stay in it (but no guarantee). We will all have to watch carefully this Summer (and probably into the Fall) to see if the US Congress votes to allow Canadians to stay in the US up to 8 months a year, and if so, under what conditions.

May 5, 2013
Posted by Sanger & Manes, LLP

Palm Springs Attorney for Canadians Michael W. Brooks Editorializes that Canadians Should Be Permitted to Stay in the US More Than 6 Months a Year (Part 1)

This appeared in the Desert Sun (the local Palm Springs newspaper) on April 21, 2013.


Canadians Should Be Welcomed More Than 180 Days A Year
(By Attorney Michael W. Brooks)

As a Palm Springs, California attorney focusing on Canadian (and international) tax, estate and business issues, my Canadian clients often repeat to me a similar theme: we would love to stay in the US longer. Under current US immigration law, Canadians can generally stay in the United States up to 180 days out of any 365 day period. As part of any new sweeping immigration legislation, Congress must permit Canadians to stay longer in the United States.

Here's why:

Canadians Saved, and Continue to Save, the Real Estate Market and Economies of Certain US States and Regions

For the last five years, the real estate markets and economies of several warm weather states and regions, including our Coachella Valley, have been critically stabilized by an influx of Canadian home buyers. Some surveys suggest Canadians purchased over 70% of homes in the Palm Springs area in previous years. Further estimates have the average home sale purchase price increasing by approximately 20% in the Coachella Valley since the beginning of 2012. Thank you Canadians. And of course, the Canadians' contribution to a community frequently only begins with the purchase of a house. Restaurants, golf courses, professional services, local retail, you name it- all bolstered by the Canadians living significant months in their preferred United States community. Somebody please explain to me the benefit derived by the United States in forcing its Canadian home owners to go home after 180 days.

Canadians Are Starting Some Businesses in the US, But Would Start Many More With More Favorable Immigration Regulations

In our law office, I am now regularly contacted by Canadians interested in starting businesses in California and other states. The proposed businesses will almost always eventually lead to job opportunities for Americans. And while the Canadians have the capital and the interest to start a US business, one impediment frequently exists: how can the Canadian run a business in which he or she can only personally be present for a maximum of six months a year? And while there are certain visas which could overcome this problem, they typically require a significant financial commitment (and the requirement of hiring several Americans quickly). Maybe the proposed business would eventually grow to the point to satisfy these requirements, but how many Canadians are looking to make a far less substantial commitment at the inception of the business? How many prospective Canadian-owned US businesses never get formed because of the 180 day rule?

Even After Immigration Reform, Hurdles Would Still Exist

Is the Canadian government just going to let some of their most affluent citizens stay in the US most of the year? Maybe not. Canadian provinces might have to agree to extend their province-run medical coverage for their residents who leave the province up to, for example, nine months a year (as opposed to the current rule of most provinces which discontinues the medical coverage of residents who leave more than six or seven months a year). Would they be so gracious? Would Canadians move to the United States if it meant forfeiting their Canadian governmental medical coverage? Likewise, the United States might have to make some accommodations for the Canadians as well. Would the US include Canadian seniors moving to the US in Medicare (unlikely)? Also, would the US make an exception to its tax laws (requiring foreign citizens in the US over 6 months a year to file US tax returns)? One would think the US might have to...

We will reprint the rest of the editorial, plus discuss whether the "up to 8 months rule" made it in the first draft of "gang of 8's" immigration proposal, in part 2 of this topic.

April 15, 2013
Posted by Sanger & Manes, LLP

Canadians Visiting the Palm Springs Area, Remember, if You're in the United States between 4 to 6 Months Every Year, Fill out the IRS Form 8840 Now! (Part 3)

So let's walk the Form 8840, and discuss some of the more uncertain questions. Again, we're focusing on Canadian snowbirds (and not necessarily people from foreign countries other than Canada).

Part 1

Question 1 asks you the following: "Type of U.S. visa (for example, F, J, M, etc.)". We suggest the Canadian snowbird answer the "B-2 Visa". We say this even though Canada is a visa exempt country (so theoretically answering "no visa" on Question 1, or "Canadian- no visa" should be fine too. This is the typical visa utilized by a tourist to the United States. This question is a little challenging for the Canadian snowbird, because they generally simply present a passport at the border, and not an official visa. The US and Canada really do have a special relationship, and so typical formalities are not always required for Canadians visiting the US (and Americans visiting Canada). While a Canadian snowbird visiting the US may not need a visa. the proper answer on the Form 8840 is probably citing the B-2 Visa (the tourist visa).

Part II

Typically, Canadian snowbirds spending between 4 to 6 months will have an easy answer for the 1st 2 questions (Questions 7 and 8):

"7) Where was your tax home during 2012?"
And
"8) Enter the name of the foreign country to which you had a closer connection than to the United States during 2012"

For most Canadian snowbirds, this should be easily answered (for both) with the same answer: Canada. Canada was your tax home (for the prior year), and Canada was the country to which you had a closer connection to other than the US.

Part III
Typically, Canadian snowbirds will then leave Part III blank, because they probably do not have a closer connection to 2 foreign countries....so for most Canadian snowbirds spending a lot of time in the US, you will leave Part III blank.

Part IV

Part IV asks a series of questions designed for the Canadian snowbird to prove to the IRS that his or her strongest connections really are with Canada (and not the United States). Keep in mind, the reason that you're filling out this form to begin with is that you're in the US a lot (on average between 4 and 6 months, year in and year out). So the IRS does not expect you to never answer: "United States", with respect to the questions in Part IV. Of course you have some connections to the US. It's just that you have more, and more substantial, connections to Canada.

"Where is your permanent home?" "Where is your family located?" "Where was your driver's license issues?" "Where were you registered to vote?" All easily answered (presumably): Canada. And while some questions aren't necessarily this easily answered (for example, you may have bank accounts in both the US and Canada), it should be quite easy for the Canadian snowbird visiting the US for the winter months to a answer a distinct majority of the questions with: "Canada".

And that's all you need to be deemed a resident of Canada, even if you are in the US between 4 and 6 months every year.

Don't Forget the Treaty Protection
Final note- even if the Canadian is in the US more than 6 months in a given year, or is in the US between 4 to 6 months a year, year in year out, and fails to fill out the Form 8840 (and is therefore properly deemed a US tax resident for that year), the Canadian can still avoid that designation by simply citing the tie-braker provisions of the US-Canada Tax Treaty. Call me, if you are a Canadian who is deemed by the IRS to be a US resident for a given year (or if you believe you were indavertently a US tax resident for a given year). I can help you overturn that determination.

March 27, 2013
Posted by Sanger & Manes, LLP

Canadians Visiting the Palm Springs Area, Remember, if You're in the United States between 4 to 6 Months Every Year, Fill out the IRS Form 8840 Now! (Part 2)

So, like so many Canadians in the Palm Springs/ Palm Desert area, you've determined you probably should fill out the Form 8840. Why? Because you're in the United States year in, year out, over 4 months but less than 6 months in a calendar year (and if you're in the Coachella Valley right now, let's face it, who wouldn't want to be here as much as possible...save July and August that is). And if you are in the US more than 4 months every (calendar) year, and you don't fill out the Form 8840, the risk you take is that the IRS will deem you a US tax resident for the taxable year (as they are permitted to do if you are here, year in, year out, over 4 months a calendar year). While that may not be the end of the world (you can always hire a guy like me to get you out of that situation, and it will not lead to a double tax (once in Canada and once in the US)), it will lead to a logistical headache, which you will have to straighten out. So, be safe, complete the Form 8840 if you're in the US every year between 4 to 6 months, like so many Canadian snowbirds are in this area of California.

When is the Form 8840 Due?

You must complete the Form 8840 by June 15 (the due date of the IRS Form 1040NR) of the year after the year for which you are reporting (so for the 2012 Form 8840, you should send it in by June 15, 2013). You actually have until the due date (June 15) plus extensions, which would be months later (so, yes, you could send in your 2012 Form 8840 in July 2013). But let's not do that. You want to get the Form 8840 in by June 15 of the year after the year to which the form relates (so for 2012, let's send them in by June 15, 2013).

Where do you send in the IRS Form 8840?
You mail it to the following address:
Department of the Treasury, Internal Revenue Service Center, Austin, TX 73301-0215

Do a husband and wife fill out 1 Form 8840 or 2?
Each person fills out their own Form 8840, so a husband and wife will out a total of two forms 8840.

What Questions Does the Form 8840 Ask?

On the First Page of the 8840
On the first page of the form they ask about the amount days you've been in the US for the last 3 years (i.e., the form you're filling out in 2013 asks you how many days you spend in the US in 2012, 2011, 2010). DO NOT GO CRAZY TRYING TO FIGURE OUT HOW MANY DAYS YOU SPENT IN THE US THE LAST 3 YEARS. ESTITMATE AS BEST YOU CAN. PROVIDED YOU HAVE NOT BEEN IN THE US IN ANY CALENDAR YEAR OVER 182 DAYS, THEN THE EXACT AMOUNT OF DAYS REALLY DOESN'T MATTER. ALL THE CALCULATION OF DAYS TEST IS TRYING TO FIGURE OUT IS WHETHER YOU SHOULD FILL OUT THE FORM 8840 TO BEGIN WITH...AND YOU'RE OBVIOUSLY FILLING IT OUT, SO THAT'S A REDUNDANT QUESTION...OVER 4 MONTHS IN THE US, LESS THAN 6, YEAR IN YEAR OUT, FILL OUT THE FORM 8840. DONE.

We'll walk through the questions asked on the critical second page of the Form 8840, and we'll get into how the US-Canada Tax Treaty impacts the Form 8840 (and the determination of US versus Canada residency period), in the 3rd and final part of our series on completing the Form 8840.

March 11, 2013
Posted by Sanger & Manes, LLP

Canadians Visiting the Palm Springs Area, Remember, if You're in the United States between 4 to 6 Months Every Year, Fill out the IRS Form 8840 Now! (Part 1)

We've talked about the need for Canadians (or any non-US citizen who regularly spends between 4 to 6 months in the US) to fill out the Closer Connection Form (the IRS Form 8840) before. Well, it's a good time of year (Spring) to review this rule again.

Who Needs to Fill Out the Closer Connection Form?

Any non US citizen individual who has a "substantial presence" in the US must fill out the Form 8840 (every year they have a substantial presence). Is there a mathematical formula designed to determine whether you have substantial presence" in the US (and then need to fill out the Form 8840)? Yes. And I'm going to spell out the formula in a moment. BUT IF YOU ARE IN THE UNITED STATES EVERY YEAR BETWEEN 4 AND 6 MONTHS, FORGET THE FORMULA AND JUST FILL OUT THE 8840...THE FORMULA IS JUST DESIGNED TO DETERMINE WHETHER YOU SHOULD HAVE A SUBSTANTIAL US PRESENCE AND NEED TO FILL OUT THE 8840 TO BEGIN WITH. IF YOU ARE IN THE US EVERY YEAR, YEAR IN YEAR OUT,BETWEEN 4 AND 6 MONTHS, DON'T WORRY ABOUT THE FORMULA AND JUST FILL IT OUT EVERY YEAR!!!

Here is the Formula Designed to Determine Whether You Have a Substantial Presence in the US and You Then Must Fill out the Form 8840 (but again, if you're in the US between 4 to 6 months every calendar year, just fill out the Form 8840 and do not go crazy about the exact days and the mathematical test).

An individual has a substantial presence in the US if the individual is present in the US at least 31 days during the current year and at least 183 days for the three-year period ending on the last day of the current year using a weighted average approach (the weighted average approach works as follows: the number of days spent in the US in the current year are given full weight; the number of days spent in the US in the last year are multiplied by 1/3; and the number of days spent in the US two years ago are multiplied by 1/6....add up the total for the three years and if it equals or exceeds 183 days, the nonresident alien has a substantial presence in the US. For example, an individual who spent exactly 124 days in the US this year and the previous two years would have a total of 187 days under the substantial presence test:
Last Year (2012): 124 x 1= 124
2 Years Ago (2011): 124 x 1/3= 42
3 Yrs Ago (2013): 124 x 1/6= 21
Total= 187 days. Substantial presence test of 183 days exceeded...

What does this mean?

The non-US citizen (probably Canadian) needs to fill out the IRS Form 8840, that's all!

We'll walk through the IRS Form 8840 in our next post.

One final note before we close this post-

We count days for this purpose in the calendar year: January 1 to December 31 of each year is the period when we determine how many days the Canadian (or any non-US citizen) was in the US. And, keep in mind, it should never be more than 182 days in any calendar year (for the purposes of being deemed a US tax resident). We are assuming even those Canadians in the US a lot ever year are not here more than 182 days in any calendar year (for tax reasons...remember the immigration rule is no more than 180 days in any 365 day period, which is not necessarily the calendar year).

February 14, 2013
Posted by Sanger & Manes, LLP

I'm a Canadian Visiting the Palm Springs Palm Desert Area for the Winter, What Should I do About My Health Insurance (Part 2)?

let's pick up where we left off at the end of part 1....

Filing a Claim with an Insurance Provider

If filing a claim, the insurance provider will want evidence to support the claim. This may include in addition to medical bills, a copy of the electronic travel ticket, a copy of the passport, health-card numbers, family doctor information, and travel insurance details including contract or certificate numbers.

Snowbird Trip Health Insurance

Many companies offer trip health insurance and each has its own inclusions, exclusions and limitations. Included in the list of companies are HSBC Bank Canada, Blue Cross, RBC Insurance, CAA, and Medipac Travel Insurance, which is endorsed by the Canadian Snowbird Association. Companies generally offer two basic plans: single trip and annual multiple trip. Annual multiple trip insurance covers an unlimited number of trips in a 12 month period. However, the total number of days the insured may stay away without returning home vary for each company. The time away be limited to a maximum of 10 days for each trip, although for an additional fee the insured can "top up" the number of days and stay longer, while other plans allow the insured to be away on any single trip from 23, to 31, to 60, to 90, and up to 120 days. Individual and family plans are available. The cost of an annual premium for a 60 year old man in good health starts at about $175, depending upon what coverage is included.

Policies of Eisenhower Medical Center in Rancho Mirage

For Canadians who do not have travel health insurance, and who are visiting the Palm Springs, California area, the Eisenhower Medical Center generally offers a self paid discount of 33% off of standard medical care charges. Palm Springs has become a favorite of Canadians looking to escape the harsh winters (although always check with Eisenhower Medical Center for certainty and updated information on costs and discounts). It is located approximately 100 miles east of Los Angeles in the Coachella Valley (in Rancho Mirage, CA) , and there are frequent daily flights from locations in Canada to Palm Springs (many on West Jet). Located in the Palm Springs area is the Eisenhower Medical Center is, in our opinion, one of the finest community hospitals in the U.S. But even after discounts, hospital bills can be many thousands of dollars, and it is better to obtain travel health insurance prior to leaving Canada.

January 28, 2013
Posted by Sanger & Manes, LLP

I'm a Canadian Visiting the Palm Springs Palm Desert Area for the Winter, What Should I do About My Health Insurance (Part 1)?

We will finish our entry on Canadians doing business in the United States shortly, but let's focus on health care for the moment.

Will Canadian Health Care Coverage Pay for Costs Incurred Outside the US?
Canadian provincial health care coverage may not pay for all the health care costs incurred outside the province or country, and the difference can be substantial. For example, B.C. pays $75 (Cdn) a day for emergency in-patient hospital care, while the average cost in the U.S. often exceeds $1,000 (US) a day, and can be as high as $10,000 (US) a day in intensive care. Reimbursement is made in Canadian funds and does not exceed the amount payable had the same services been performed in the province. Any excess cost is the responsibility of the beneficiary. For complete travel protection for emergency care resulting from an accident or sudden illness, additional medical insurance should be purchased from a private insurance company. This applies whether one is going to another part of Canada or outside the country, even for only a day

But There is Supplemental Insurance

In general, Canadian residents who have coverage with their government health plan and who apply for coverage prior to departing, are eligible for supplemental health insurance. Persons over age 60 may require a complete Health Declaration as part of their application. Check the inclusions, exclusions and limitations of the private insurance policy carefully. The policy should include emergency medical and dental coverage, including physician, dental and professional fees, hospital fees, nursing fees, drug costs, diagnostic services such as laboratory and X-rays, and incidental hospital expenses such as television. Ambulance service to the nearest hospital should also be included. If ambulance service is required while in another province or outside Canada, fees charged are established by the provider. Fees may range from several hundred to several thousand dollars.

Additional Provisions

Additional provisions to look for include repatriation costs to pay to return the insured to his home province for immediate medical attention, cost of returning the insured's vehicle and pet, and should an insured person pass away, the cost of repatriating the deceased. Some policies cover the cost of transportation for a family member or friend to visit a sick or injured person in the hospital. Also, check to see if the insurance provider will cover expenses up front, which is preferable, or whether the policy holder has to pay for hospital bills and then be reimbursed by the insurance provider.
Be aware, the insurance company is not your friend. Every claim is meticulously examined to find a reason to reject it. When applying for insurance, answer every question as accurately and honestly as possible. Any mistake on the initial application, no matter how innocent, can be a reason for the claim to be rejected. Disclose all medical conditions and medications. If there is confusion regarding a question, seek guidance from a health-care professional. A dangerous practice is to not disclose a doctor's recommended treatment or medication change as this could invalidate the policy. If a doctor recommends a treatment, and you do not comply, or recommends a change in medication, and you do not comply, the insurance provider will treat this as an unstable pre-existing condition and the claim will be rejected. Also, if there is a new medical condition or medication while an annual policy is in effect, it is best to inform the insurance provider to avoid a pre-existing condition label. As long as a reported pre-existing condition meets a minimum stability period, insurance will be issued.


We will discuss more, in Part 2....

January 2, 2013
Posted by Sanger & Manes, LLP

A Canadian Who Lives Part-Time in California (Maybe Palm Springs, Maybe Los Angeles) Would Like to Start Doing Some "Side Business" or "Side Work" in California, Will the Canadian Owe US and California Tax? Part One....

Frequently at gatherings I'm asked tax questions related to Canadians and their tax issues in the US. At a recent holiday gathering, a nice gentleman, who is a terrific interior designer in Calgary I believe, asked about the possibility of doing some interior design work for Canadians who also had a second home in California (most likely in the Palm Springs area). So he asked me, if he did some interior design work for Canadian customers in their California homes, would he be subject to US (and California for that matter) tax?

A terrific question, so let's review....

First, Is it a Big Deal if the Canadian has to Pay US Tax to Do Business in the US? I Don't Think So...

Personally, I don't think it is a big deal if a Canadian, who wants to conduct business in the US, has to pay tax in the US. The US and Canada have a very progressive tax treaty with each other, and there is a tax credit system honored by both countries. So let's start with this premise: just because the Canadian may pay tax in the US on the business income does not mean he or she will have to pay a double tax (once in the US and once in Canada) on the same income. Most likely, because of the treaty and credit system, the Canadian doing business in the US will pay no more federal tax than if he or she were doing business in Canada, they just might now pay some of that tax to the US government instead of the Canadian government. So the Canadian should not let fear of additional taxes stop he or she from doing business in the US, because there probably won't be much (if any) extra federal taxes for doing business in the US. There maybe an additional state tax to the state of California, however, because there is no Canadian tax credit available for state taxes.

Second, the Canadian doing Business in the US May Need to Enter the US on a Different Visa.

Most Canadian snowbirds are in the US as tourists - for fun and recreation. They can stay up to 6 months a visit, just by showing their passports at the border. But this is for tourism, not for business. If you're going to be doing work in the US, you don't want to lie to the border guards. And so, the Canadian snowbird who wishes to do steady work in the US may wish to apply for the E-2 Visa, so as to be able to work regularly in the US without problems. A project or two in the US, maybe don't worry about a new visa (although you may be a little nervous at the border). Consistent and regular work in the US, the Canadian should consider applying for the E-2 Visa.

What are the General Rules on When Any Non-US Resident is Subject to Tax in the US?

Under UStax law, a Canadian (or any non-US resident) is subject to US federal tax if they have income that is "effectively connected with the conduct of a trade or business within the United States". This is an ongoing test, which means that if you carry on a trade or business in the US at any time in the year, you will be subject to US tax for that particular year. If you are engaged in a US trade or business, you will be taxed in the US at graduated rates on a net basis on income that is effectively connected with the conduct of that US trade or business. The good news is, the non-US resident will be allowed to claim deductions to reduce the effectively connected income, but only to the extent that the deductions are connected with that income. The ability to claim the appropriate US deductions can keep the US tax element quite reasonable.

How Can We Tell if We Have Income Which is Effectively Connected with the Conduct of a Trade or Business within the United States?

There is no clear answer to this question, it comes down to facts and circumstances test. The level of activity required for effectively connected to a "trade or business" status in the US is relatively low. The following situations could mean that you are subject to US tax (again, these examples are for any non(US) resident alien, we will consider how the US-Canada Treaty loosens these rules for Canadians in the next post) :

A) If the nonresident alien makes sales into the US market, he or she may have a U.S. trade or business. If, however, he or she is merely accepting unsolicited purchase orders from US customers, will probably will not be considered to be carrying on business in the US.

B) The nonresident alien may be considered as having a US trade or business if he or she has employees or agents travel regularly to the US to make sales calls or if your employees or agents are doing marketing, demonstrating goods, or soliciting orders in the U.S.

C) If the nonresident alien (or his or her employees and/or independent contractors) performs employment or self-employment services in the US, they are likely considered to be carrying on a US trade or business. For example, if the non US resident alien goes to the US on consulting contracts and work at customer sites, he or she will likely be considered to have a U.S. trade or business.

Note, this last example (Example C) seems to clearly indicate our Canadian interior designer will be subject to some US taxes for doing interior design work for houses located in the US. And once again, except for the fact that the Canadian interior designer may wish to obtain a different Visa (probably the E-2), this should not be a big deal (at least for total federal taxes owed, whether to Canada alone or to Canada and the US). But does our Canadian interior designer really have to declare income in the US, or does the US-Canada Treaty offer relief from the general rules? We will look more closely at this in Part 2 of this series....



December 13, 2012
Posted by Sanger & Manes, LLP

I'm a Canadian Snowbird in Palm Springs (or anywhere in the United States), How Long can I Stay in the United States Each Year? Finally, a Clear Answer...Sort of....

On December 8th and 9th, Sanger and Manes and yours truly (Attorney Michael Brooks) spent a terrific weekend as sponsors at the CanadaFest at the Palm Springs Convention Center. I was amazed at how many Canadians came up and kept asking me the same question: "how many days a year can I stay in the US?" And frequently they would follow up with this supplement:"I heard if I leave the US and then return to the US in less than 30 days (like so many Canadians are doing right now as they go back to Canada for Christmas, but will soon come right back to the US in early January), then the days that I'm out of the US count in my six month computation, is that true?" Boy oh boy I thought, what is the Canadian rumor mill up to now? This is complete nonsense.

But was I right?

I Assumed They Were Asking About How Many Days a Canadian Could Stay in the US Under the US the Tax Law

Everyone (I hope) knows that a Canadian can stay in the US up to 182 days in a calendar year without being deemed a US resident for tax purposes. And if they're here in the US between 4 to 6 months on average in a calendar year over 3 or more years, they should fill out an IRS Form 8840 (a Closer Connection Form) annually. The Form 8840 states, although you spend a lot of time in the US (but not exceeding 182 days in a calendar year), your real tax home remains Canada. Your primary residence is there, your drivers' license was issued up there, most of your significant contacts are up there,etc. So please, United States, do not consider me a US resident for tax purposes, don't tax me in the US on my worldwide income, and don't subject me to the multiple US tax filings I don't want to complete. And, if filed properly, the US will not consider you a US tax resident. It's that simple. Finally, when you are counting days spent in the US for the purposes of determining whether you are US tax resident (and whether you have exceeded the magic threshold of 182 days in a calendar year), you only count days actually spent on US soil (even if it's only an hour for a particular day). If you leave for a three week trip to Mexico, or back to Canada, those days do not count as days spent on US soil for the purposes of determining whether you are a US tax resident.

But Upon Reflection, What They Were Really Asking About Was The Immigration Law

In retrospect, I'm pretty sure most CanadaFest visitors were asking me about the six month stay rules under the US immigration law. Under US immigration law, Canadian visitors can stay in the US for up to six months. Now, officially, they could actually stay in the US for a six month period, say from Jan 1 to June 30, go back to Canada for a little while, and then perhaps in October (or earlier) come back and start a new six month period. As far as I know, there is no actual law which prohibits Canadians from "stacking" six month stay after six month stay (provided there is a little respite in between). Of course, that would mean you're in the US around 9 months that year so you'd be a US tax resident (taxed in the US on your worldwide income), but "stacking six month stays" doesn't appear to be strictly against the immigration laws. However, in practicality, it will not work.

Three Important Rules to Remember on the Immigration Issue:

1) The US Border Agents are given a lot of discretion to enforce US law. They can deny you entry because they don't like your hat. For better or (more likely) for worse, we must follow their instructions, even when they don't appear to have a clear legal foundation.

2) As we understand it, and although it's not clear under the US immigration law at all, US Border Agents are basically counting six periods starting with the time your first enter (e.g., you come in October when the weather turns cold up north, the clock starts. You may now spend up to six months in US between the time you come in, and next October when you start again. If your six month period ends the following April, apparently the US border agents are unlikely to allow you re-entry until the next October...although again, every Border Agent may differ on this point in how they enforce it.).

3) Finally, the leaving the US for under 30 days rumor. Apparently, it is true!!!. The origin of the 30 day rule comes from the Instructions to the US Immigration Form I-94:

"In general, if you have been admitted to the United States under most visa classifications if you take a short trip (30 days or less) to Canada or Mexico, you may retain your I-94/I-94W, so that when you resume your visit to the United States you are readmitted for the balance of the time remaining on your I-94/I-94W."

So the rumor, at least as its being enforced currently by (many) US Border Agents, appears to be true. If you're here for a six month stay (as you're allowed), and you go back to Canada for the holidays (for less than 30 days), or down to Mexico for a couple weeks, that brief visit out of the country after you've started your 6 month period will count in your 6 month US allowable period. So again, apparently as its being enforced currently, you enter Oct 1 of this year, you're going to have to probably leave the US by March 30th of next year, even though you spent 3 weeks back in Canada over Christmas (i.e., you cannot add those 3 weeks back in Canada for Christmans and stay in the US until say April 21 of next year...no, you still should leave my March 30).

Call me in my office if you have questions: (760) 320-7421