Tax-Driven Changes in Residency for Canadians

Tax-Driven Changes in Residency for Canadians

Tax-Driven Changes in Residency for Canadians

For those with sufficient assets, tax-driven relocations and changes in residency have become commonplace. They began to occur in earnest in the 1990s and have increased in popularity ever since. In the past 1-2 years in particular, the popularity of residency changes for tax reasons has seen a marked rise. This has been driven by several factors, which include: the steady reduction in other viable international tax planning strategies as the OECD continues to press aggressive reform, more mobile lifestyles brought about by COVID-19, and the expectation of an increased tax burden especially for the wealthy (also brought about by COVID-19, at least in part).

In short, more people have begun to enjoy more mobility, and the comparative tax advantages of relocating have never been greater. As we have stated in prior inBriefs, for Canadians, changing their country of tax residency is almost certainly going to be the single most effective tax planning strategy they can adopt, with both immediate and long-term benefits.

The opportunity to attract such mobile, wealthy people is also very appealing to potential recipient countries, who stand to gain economically from an influx of wealthy immigrants. Competition for economically beneficial immigrants is high. Many countries have established residency programs and tax incentives specifically intended to attract economic immigrants. Some of the most popular destinations in recent years have included the UAE, Portugal, Greece and Italy, among many others including some Caribbean nations.

The models adopted by these countries typically require the applicant to make an investment in the country, often in real estate, in exchange for medium- or long-term residency (and sometimes a path to citizenship over time), and access to a favourable tax regime.  The amount of the investment varies greatly from country to country (from EUR 200,000 to EUR 3,000,000). 1 The favourable tax regime will be one of two models: the requirement for an annual lump-sum payment of tax irrespective of actual income each year (e.g., Italy, Switzerland), or, access to a low or no tax environment without the lump-sum in exchange for having made an initial investment (e.g., Portugal, Greece, UAE).

Deciding where to seek your new residency can be complex and should take into account many factors, not only taxation. There are publicly available resources which help you to evaluate potential destination countries according, breaking down some of the more relevant factors on a country-by-country basis, and even offering rankings of countries by popularity for their tax residency offerings. 2

The conditions of residency and favourable tax treatment usually do not require significant “days in country”, so extensive travel is permitted, but you would need to avoid spending so many days in another country that you are deemed tax resident there as well. The residency status granted normally gives you and your family the ability to live, study, and work in the destination country (and, for EU destinations, these rights would apply anywhere in the Schengen region).

From a tax planning perspective, it is crucial to carefully evaluate your assets and your expected sources of income before settling on a destination for tax residency, and to obtain professional advice as to how your specific assets and income will be taxed there. There are always exceptions to the favourable tax treatment offered by each jurisdiction. For instance, some may provide that only passive income from foreign sources will enjoy low/no tax, and only if there is a double taxation treaty in place with the foreign source country (in which case, income from assets located in offshore jurisdictions may not qualify, nor income you generate if you are working in your new country of residence). Also, assets located in the country you are moving away from may continue to impose tax on income and gains on those assets, despite your non-residency.

As such, the change of residency journey will almost always include a restructuring of your assets, and planning your sources of income, in order to achieve the desired tax-efficient result. As part of the planning, it can often be helpful to make use of trusts in low/no tax jurisdictions as a vehicle in which to hold appreciating or income-producing investments. Distributions from trusts can generally be structured in a manner which attracts little or no tax, depending on whether the distribution is out of trust income or trust capital.

International planning using trusts can be complex and requires cooperation among advisors in your new country of residence, your country of origin, the country in which the trust is established, and every country in which there is a beneficiary of the trust. Trust distributions to a beneficiary will be treated differently depending on where each beneficiary resides.  However, despite some complexity in the planning phase, trusts remain by far the most popular wealth planning vehicle for good reason, as the benefits of their use can be significant.  For example:

  • Tax efficient distributions: payments from a trust to its beneficiaries can be managed so as to attract less overall taxation, or no taxation, if the trust has been planned and structured properly. This can include tax-free distributions to Canadian resident beneficiaries, if properly planned.
  • Wealth accumulation: trusts in low/no tax jurisdictions often have very long lifespans, or are permitted to exist indefinitely. As such, they can accumulate investment gains with little or no tax over a long period, and can effectively preserve and grow capital. As such, capital can effectively be sheltered in the offshore trust indefinitely, with distributions made to beneficiaries as and when desired so that only those distributions are subject to tax when received (assuming the recipient is subject to tax).
  • Transition of wealth: for the above reasons, it is often very advantageous to structure an inheritance through an offshore trust, where the capital can be better preserved, grown and distributed much more efficiently than if the inheritance were given directly to beneficiaries.
  •  Creditor protection: trusts have long been a popular vehicle for asset protection. Since the trust legally owns the assets, the settlor’s creditors cannot seize them (subject to some exceptions where there are concerns around defrauding creditors).  And, since beneficiaries usually only have discretionary interests which are not vested, the creditors of the beneficiaries have nothing to seize either. Trusts are also a useful tool to keep wealth outside of the net of “family property” or similar definitions which determine what a spouse is entitled to upon separation, divorce or death.
  • Flexibility and control: trusts are flexible enough to allow you to transfer legal title to assets and grant beneficiaries economic benefits to or from the assets, without transferring control over the assets. This flexibility to retain control can be useful for many reasons, including in situations where beneficiaries may not be ready to responsibly manage the assets, or, in the context of a family business, where you may not yet know which child or children will be involved in the business upon succession. Often of most interest to settlors is the ability to continue to control the management of the trust’s investments, rather than handing over control to a trustee and institutional investment manager.
  • Estate planning benefits: trusts have a great many benefits in the context of an estate plan, including all of those noted above in this list, along with additional benefits such as the ability to place trust assets outside of the scope of a forced heirship regime, and the fact that trust assets will not be made subject to probate and estate administration procedures which are complex, time-consuming and sometimes expensive.

Once you have selected a destination and have considered how to structure your assets and income in order to achieve a tax-efficient result, you may also need to carefully plan your emigration from your current place of residency. For Canadian residents, there are tax consequences of ceasing to be a resident and there may be planning opportunities to reduce the impact upon your exit. Advance planning is especially important if you own shares in one or more private companies.

In light of the above, it is important that you select an experienced advisor who not only has local expertise along with an international network and capabilities, but who can also mobilize other professionals in your country and your new country of residence (and a suitable trust jurisdiction) in order to provide you with cohesive and complete advice. It is typical to require legal counsel and tax accountants in at least two countries, along with valuation experts and professional trustees, in order to provide complete advice on a tax-driven relocation.

If you would like to explore a change in residency and the potential tax advantages, please do not hesitate to contact us.

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James Bowden

Afridi & Angell
  1. There are other paths to residency aside from investment in some countries, such as through employment or establishing a business.  In the UAE, for example, you may establish a company for significantly less cost than the cost of investing in real estate, and arrange for the company to sponsor your UAE residency.[↩]
  2. For example, see the popular Henley & Partners indices and reports which rank investment immigration programs, and perceived quality of different residencies and citizenships:  Https://Www.Henleyglobal.Com/Publications [↩]
French tax residency, the myth of 183 days

French tax residency, the myth of 183 days

The dangers of assessing French tax residency by solely considering whether an individual is spending more than 183 days in France. Contrary to a popular belief, the French tax authorities and French tax courts do not uniquely assess French tax residence by considering the number of days spent in France; they also take into account the economic and social ties with France, potentially leading to significant tax exposure.

Assessing French tax residence

Pursuant to article 4B of the French tax code, an individual is considered to be a French tax resident if he/she has in France his/her (i) home (“foyer”), (ii) main place of abode, (iii) place of principal working activity or business (such criterion being deemed to be fulfilled by all managing executives of a French company whose turnover exceeds 250 million euros) or (iv) center of economic interest.

Nevertheless, when an individual is deemed to be a resident of two States (because he/she meets the domestic criteria of two Countries), tax residence must be directly assessed by looking at the criteria set forth in the relevant double tax treaty. In this respect, most French double tax treaties include the OECD model type clause according to which the residence is determined through the following alternative tests: (i) one’s permanent home, (ii) one’s center of vital interest, (iii) one’s habitual abode and (iv) one’s nationality.

As most of these domestic and international criteria are subjective and up to interpretation, most people only focus on the habitual abode one and consider that if an individual does not spend more than 183 days in France, this individual would escape French tax residence and thus French taxes.

This is however not true in practice and the 183-day rule must be referred to with caution:

  • This rule is not universal: it can only apply if a double tax treaty applicable to the situation at hand contains such 183-day rule. In some cases, a treaty can exist but may not be applicable (e.g., LOB clause when the individual is not taxed on any income in one of the concerned State, remittance basis in the UK, 10-year exemption in Israel, etc.);
  • This rule may not capture all taxes at stake: it definitely applies to income tax but this may not be true for social security contribution, wealth tax, gift tax, etc.;
  • Attention should be paid to the period retained to assess the 183-day rule: calendar year, 12-month rolling period, etc.

Even when relevant, this rule is not the sole tie-breaker and generally not the first one considered by French tax authorities and Courts.

Indeed, as illustrated by several recent decisions, French courts often rule that an individual is a French tax resident despite the fact that one spent less than 183 days in France by focusing on one’s economic and social ties with France. On the contrary, spending more than 183 days in France does not systematically triggers the recognition of French tax residence.

Even more, in particularly complex scenarios where the balance of interests of any kind binding an individual to France and another State is delicate, both the French tax authorities and French tax courts tend to use two or more criteria at the same time to strengthen their position considering every piece of connection with France.

For instance, French tax courts have recently ruled that a retired couple whose only source of income was a French retirement pension should be deemed French tax residents under French domestic law regardless of evidence supporting that they had been living in Madagascar for several years.

Similarly, where there were evidence supporting the effective presence of a couple both in France (e.g., secondary residence, spending 153 days in France, several French bank accounts, significant gas and electricity consumption) and in Switzerland (e.g., main residence with home staff, residence state of the couple’s daughters, regular running costs), it was finally ruled that they were residents of France on the ground that all their investments were French-sourced since they directly and indirectly owned several French operational and real estate companies.

In view of the diversity of factual criteria used by the French tax authorities and French tax courts to determine one’s tax residence, it is therefore necessary to pay particular attention to all the elements that would make it possible to demonstrate the existence of a connection to France and not to only focus on the 183-day criterion. This is especially important considering the different consequences resulting from being a French tax resident.

Consequences arising from French tax residence

Subject to the provisions of French double tax treaties, French tax residence triggers several distinct consequences relating to (i) income tax, (ii) wealth tax, (iii) inheritance tax and, as the case may be, (iv) trusts related filings.

Indeed, French tax residents are taxable in France on their worldwide income, contrary to foreign tax residents who are solely taxed in France on their French-sourced income.

French tax residents may also be liable to the French real estate wealth tax on all their real estate assets, and not only the ones located in France as for foreign tax residents, to the extent that the overall net value of said assets exceeds €1,300,000 as at 1 January of the given year.

Additionally, when a donor or a deceased or a beneficiary or heir is a deemed a tax resident, inheritance duties are payable on all movable or immovable property located in France or outside France which are transferred by him or to him.

Finally, trustees have a filing obligation for trusts related to France by the French residence of their settlor or beneficiary, or if any asset held by trust is located in France.

To avoid this kind of extended French tax liability alongside with its numerous regular filing obligations, and given the complexity and factual nature of the analysis establishing one’s tax residence, it is advisable to seek professional advice. In particular, when someone has ties to France but has not yet considered to be a French tax resident, we strongly recommend performing such analysis to (i) confirm one’s opinion and, as the case may be, regularize one’s situation, but also to (ii) assess any tax exposure that may result from reassessment in case of a French tax audit.

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Alexandre Ippolito

White & Case
Tax residency in Germany – an Unpleasant Surprise!

Tax residency in Germany – an Unpleasant Surprise!

Germany is an attractive place to live in the center of Europe and the EU. It is safe, relaxed and highly developed. Its political system is stable and reliable, while its powerful economy is the largest in Europe. Known for its long and rich cultural history, Germany offers a very high standard of living. All these reasons make Germany a favorite destination for foreigners from inside and outside of the EU.

However, there is no free lunch! Moving to Germany triggers very often some unexpected tax consequences, which everyone should consider carefully before coming to Germany. It is very easy to become tax resident in Germany! However, a tax residency in Germany very often does not fit to the individual’s carefully planned tax setting.

Prerequisites for becoming tax resident in Germany pursuant to German domestic law

Pursuant to German domestic law, an individual becomes subject to German resident taxation, if the individual

  • either stays in Germany for more than 6 consecutive months in a year with only minor interruptions (habitual abode or “gewöhnlicher Aufenthalt“), or
  • holds a dwelling in Germany under circumstances indicating that the individual intends to keep and use it (residence or “Wohnsitz“).

Thus, a residence does not require necessarily the actual or regular use of the dwelling. It is sufficient that the individual can use such dwelling whenever the individual wishes to do so. An individual could have different residences in Germany and/or abroad. It is in particular not required that such residence is the individual’s center of vital interest. A tax residency in Germany in particular does not require that the individual is a German citizen.

Consequences of being tax resident in Germany pursuant to German domestic law

An individual’s tax residency in Germany means in particular that such person

  • becomes subject to German income taxation with his/her worldwide income (subject to applicable double taxation treaties) at an income tax rate up to 47.475 % (including solidarity surcharge) depending on the amount of the taxable income;
  • is obligated to file annual income tax returns with the responsible German tax office regarding his/her worldwide income;
  • becomes subject to German exit taxation if he/she has been subject to German resident taxation for at least 10 years and ceases to be tax resident in Germany;
  • becomes subject to German gift taxation as a donor in case of a donation to anybody elsewhere in the world with respect to the donor’s worldwide estate at a gift tax rate between 7 % and 50 % depending on the value of the donation and the degree of relationship between the donor and the donee;
  • becomes subject to German gift taxation as a donee (subject to applicable double taxation treaties) at a gift tax rate between 7 % and 50 % depending on the value of the donation and the degree of relationship between the donor and the donee;
  • is obligated to file gift tax returns with the responsible German tax office in case of a donation to (i) anybody elsewhere in the world with respect to his worldwide estate and (ii) the individual tax resident in Germany irrespective from the fact whether the donated asset is located in Germany;
  • triggers the German inheritance tax liability of the deceased individual’s heir and/or legatee with respect to the deceased individual’s worldwide estate at an inheritance tax rate between 7 % and 50 % depending on the value of the estate and the degree of relationship between the decedent and the heir and/or legatee;
  • triggers the heir’s and/or legatee’s obligation to file inheritance tax returns with the responsible German tax office irrespective from the fact whether (i) the heir and/or the legatee is tax resident in Germany, too, or (ii) the estate is located in Germany;
  • becomes subject to taxation both in Germany and in other countries with respect to the same income or donation subject to applicable double taxation treaties or unilateral law granting tax exemptions or tax credits for mitigating the double taxation;
  • triggers the heir’s/legatee’s taxation with inheritance tax and the donor’s taxation with gift tax in Germany besides other countries with respect to the same estate or donation

Please note that this applies irrespective from the individual’s tax liability in another country according to this country’s domestic law applicable.

Please note that an applicable double taxation treaty might hinder Germany from taxing such individual person fully, but has no impact on this person’s obligation to file its tax returns fully and completely with the German tax authorities. While Germany has agreed upon a large number of double taxation treaties dealing with income taxes, Germany has agreed only on six double taxation treaties dealing with inheritance and gift taxes (United States of America, Switzerland, Denmark, France, Greece and Sweden). Thus, one should not rely on the protection by double taxation treaties only!

Finally, please note that an individual person’s residency in Germany could also result in a foreign company’s resident tax liability in Germany with its worldwide income. This happens if e.g. the individual person’s residence in Germany also qualifies as the company’s place of actual management. This is the case if the individual person acts as an organ representative of a foreign company also from his/her dwelling in Germany.

Summary

Before an individual person establishes his/her residency in Germany, the consequences resulting therefrom need to be analyzed in advance very thoroughly for avoiding disadvantageous legal and tax consequences.

An individual could establish such tax residency very easily by acquiring or renting a dwelling or by simply using a dwelling more or less exclusively without having acquired or rented it. For a tax residency in Germany, a German passport or a permit of residence is not required. Thus, a thorough analysis and adaptation of the respective individual’s current tax setting prior to establishing an individual’s tax residency in Germany helps to avoid unpleasant surprises. We are prepared to assist you!

We are prepared to assist you!

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Michael Schmidt

Schmidt Taxlaw