Canadians Returning from US Employment
Many of our US-resident clients are actually Canadians who moved to the US to work and now want to return home to Canada. Perhaps their US employment contract has come to an end or an excellent employment opportunity has arisen in Canada. Other Canadians returning from US employment simply want to be closer to family and friends who live in Canada.
Regardless of the specific reason for moving back to Canada, Canadians returning from US employment often have similar questions. First, they wonder what to do with their US immigration status. If they had a Green Card, they wonder whether they should surrender it. If they held a work visa, questions about what to do with their visa also arise. Another common question is how quickly they will be able to once again access Canada’s health care system upon arrival north of the border.
Canadians returning from US employment also wonder whether they will be able to receive US Social Security payments if they move back to Canada. Typically, Canadians who have worked in the US have established US retirement accounts such as Individual Retirement Arrangements (“IRAs”), Roth IRAs, 401(k)s, 403(bs), and/or 457(b)s. How to handle these assets when moving back to Canada is another important consideration.
Cross-border tax questions are also primary. Canadians who have been working in the US may already be familiar with the fact that the US taxes its citizens and permanent residents on their worldwide income, regardless of residency. Canadians with US permanent residency status or dual citizenship who are moving back to Canada must therefore make sure that they are not caught in any cross-border tax traps.
As the above questions illustrate, making the decision to move back to Canada after working in the US necessitates careful pre-departure tax, estate, retirement, investment, and immigration planning. Keep reading for more information about these cross-border financial planning topics as they apply to Canadians returning from US employment.
Please note that the below information sometimes refers to “Americans” or “US persons”. These terms apply to i) Canadian citizens who are also American citizens; and ii) Canadian citizens who are also Green Card holders/US permanent residents.
Please also note that the topics covered below require detailed, comprehensive analysis before specific recommendations can be made to an individual client, which is the purpose of creating a cross-border financial plan prior to departure.
- Tax plannning
- Estate Planning
- Retirement Planning
- Investment Planning
- Health Coverage & Insurance
- Tax Filing Requirements
Explanation of US System
The US and Canadian tax systems differ greatly. The biggest difference is that Canada taxes only its residents on worldwide income, while the US taxes all “US persons” on their worldwide income, regardless of where they live.
“US persons” are defined as US citizens, permanent residents/Green Card holders and anyone who passes the “Substantial Presence Test”, a formula based on US law that is used to calculate whether someone has become a US person by virtue of spending a certain number of days per year in the US.
Practically, the rules of the US taxation system mean that US persons who move to Canada and retain their US citizenship or permanent residency status will continue to be taxed by the IRS on their worldwide income. Such individuals will therefore have to make complex US tax filings, and they may owe tax to the IRS on their worldwide income. They are also exposed to the US estate and gift tax regime.
Fortunately, foreign tax credits available through the Canada-US Income Tax Treaty (the “Treaty”) can ease the potential burden of being taxed by both countries on the same income. Frequently, Canadian tax rates exceed US ones. Americans living in Canada can receive foreign tax credits for tax paid to the CRA; these credits can then be used to either reduce or completely offset tax owed to the IRS. However, double taxation cannot always be avoided.
In cases where an individual’s tax residency is unclear, note that the Treaty can be helpful. The Treaty features tiebreaker rules that evaluate an individual’s facts and circumstances to determine which country has a stronger claim to a person’s residence. The Treaty overrides domestic tax rules; for example, American Green Card holders who demonstrate various facts under the Treaty can be deemed tax residents of Canada, if so desired. Retaining a US Green Card while living in Canada as a Canadian tax resident is challenging, however, and may not be ideal.
Indeed, to avoid applying the Treaty factors and to ensure that all US tax obligations are severed, some Americans who move to Canada choose to relinquish their US citizenship or give up their status as US Green Card holders/permanent residents.
Tax Traps for Americans Living in Canada
Americans living in Canada can often reduce their IRS tax bill with foreign tax credits that they receive for paying tax to the CRA. Unfortunately, the foreign tax credit system does not work perfectly; Americans living in Canada are often caught in situations where foreign tax credits aren’t available or where IRS reporting requirements are extremely onerous and expensive.
Examples of these “tax traps” abound. Some of the most common ones include the following:
• The different ways the CRA and IRS tax capital gains on the sale of a principal residence.
• The IRS’s treatment of Tax-Free Savings Accounts (“TFSAs”) and Registered Education Savings Plans (“RESPs”) as “foreign trusts”. Foreign trusts require complicated tax filings and produce taxable income in the eyes of the IRS.
• The characterization of Canadian mutual funds and exchange-traded funds (“ETFs”) held in non-registered accounts as “Passive Foreign Investment Companies” (“PFICs”). The IRS taxes PFICs harshly; moreover, PFICs require complex, costly annual tax filings.
• The classification of Canadian holding companies as either PFICs or “Controlled Foreign Corporations” (“CFCs”); CFCs are also treated harshly by the IRS.
• The discrepancy between the way certain whole and universal life insurance policies’ investment components are taxed in Canada and the US.
• Being subject to the US gift and estate tax regime.
• Contending with cross-border tax rules on US rental property income.
• The Canadian tax issues triggered by US revocable trusts.
The above is not an exhaustive list, but it does provide some insight into the more common tax traps that exist for Americans living in Canada.
Fortunately, with proper cross-border financial planning in place, many cross-border tax traps can be eliminated or, at the very least, minimized.
Situs Wills, Trusts, and Power of Attorney Documents
Ideally, estate plans should be made in the jurisdiction where one’s assets are located. Some Americans moving to Canada plan to retain certain American assets, such as a home in the Sunbelt. Such clients should therefore have an American estate plan that covers American assets retained post-move and a Canadian estate plan for all assets that will be held in Canada. It is also prudent to create power of attorney documents for all jurisdictions in which one plans to retain assets and spend time.
It is likely that Americans moving to Canada have already drawn up an American will, a US revocable trust, and/or incapacity documents, such as powers of attorney for property and health care. Canadian estate planning documents such as a will and/or trust, as well as incapacity documents such as powers of attorney for property and health care, must also be drafted.
We assist our clients by reviewing their estate planning needs and determining the optimal course of action based on their assets; for example, it may be clear that an American moving to Canada should prepare a cross-border trust or alter ego trust instead of a US-situs will to avoid or minimize state-levied probate fees and the time-consuming probate process. Establishing pre-entry dynasty trusts and/or charitable trusts may also be helpful for Americans moving to Canada.
Preparing comprehensive cross-border estate plans provides peace of mind. Establishing power of attorney documents on both sides of the border guarantees that the substitute decision-maker of one’s choice will be able to act in both the US and Canada with respect to not only property, but health care decisions too. It is also important that one’s estate plan considers domestic laws on both sides of the border to ensure the proper distribution of assets to heirs.
Not only can a cross-border estate plan provide peace of mind in this manner, but it can save money in terms of probate fees (as mentioned) and by considering the US estate and gift tax regime.
US Gift and Estate Tax
US citizens and permanent residents are exposed to the US gift and estate tax regime even if they live in Canada. Exposure to this regime, which is different than the Canadian system, often requires the execution of tax planning strategies that can be achieved through careful estate and gift tax planning.
One strategy involves planning for exposure to US gift tax. Gift tax applies at graduated rates of up to 40% on gifts of property with some exceptions for gifts made under a certain amount per year. There is also a lifetime gift tax exclusion amount that is adjusted for inflation each year. However, the unlimited gift tax exemption for gifts made between US citizen spouses does not apply to US permanent residents, which necessitates additional planning for such individuals.
When US citizens and residents pass away, federal estate tax is applied to their gross worldwide estate (including some life insurance proceeds) at the same rate as gift tax: up to 40%. (State-levied estate tax may also apply, depending on one’s state of residence.) The federal estate tax exemption is tied to the gift tax exemption such that depleting one’s gift tax exemption during life reduces the portion of a deceased’s gross estate that can be exempt from estate tax upon death.
If estate planning is done effectively, estate tax can be mitigated or even avoided by holding assets in certain vehicles. Rules surrounding the calculation of the value of a deceased’s worldwide estate can be complex, so establishing the correct structures in which to hold assets is important.
Moreover, the unlimited marital deduction that US citizen spouses enjoy, which effectively allows the tax-free transfer of assets from first-to-die to surviving spouse, is not available to non-US citizens. The need to counterbalance this lack of marital credit also necessitates sophisticated cross-border estate planning for non-citizen high net worth US persons.
When we analyze our clients’ current estate plans, we recommend strategies that they can implement prior to departure to Canada as well as once they live north of the border. Our primary intention is to help clients protect their assets from estate tax on both the federal and state-wide levels so their estates will be as robust as possible for future generations inheriting wealth.
Cash Flow Planning
When Americans move to Canada, one of their primary concerns is whether they will have enough income to retire comfortably in Canada, given the generally higher taxes north of the border as well as the potentially higher cost of living.
An ideal way to determine whether US persons will have enough money to retire comfortably in Canada is to work with a cross-border financial planner who can perform a cash flow analysis.
A cash flow analysis takes into consideration your projected income from all sources as well as your total projected expenses. By making assumptions about your future, you can make wise financial planning decisions today that ensure your long-term comfort in Canada.
Canadian and US Pension Plans
Canada and the US each have government pension plans that Americans living in Canada may be able to benefit from in retirement. Cross-border tax issues should be considered when assessing how much government pension income Americans living in Canada will be able to collect.
Those who have spent their careers working in the US may be eligible for US Social Security payments. Generally, you are eligible to receive US Social Security if you have worked for approximately 10 years in the US.
Americans who move to Canada to continue their careers will also be eligible for Canada Pension Plan benefits (“CPP”) upon retirement as CPP contributions are mandatory in Canada. Old Age Security (“OAS”) benefits are also available to those Canadian residents who spend at least 20 years living in Canada as adults.
When Americans move to Canada, they worry about whether they will still be able to receive their US Social Security payments and how much tax the CRA will collect.
Fortunately, through the Canada-US Tax Treaty (the “Treaty”), US Social Security Credits are only 85% taxable by the CRA, and the IRS does not tax Social Security benefits of Canadian residents. (Note that the CRA taxes 100% of CPP and OAS benefits, while only 85% of CPP and OAS benefits are taxable by the IRS under the Treaty.)
One cross-border pension limitation that may affect Americans who move to Canada is the Windfall Elimination Provision, or “WEP”. The WEP is a US domestic law that allows the US government to claw back Social Security payments of a US person who earns CPP income.
Another potential limitation is the CRA’s OAS clawback rule. The rule is that if a Canadian resident’s earnings exceed a certain threshold amount in yearly income (from sources such as employment, investment, or even CPP income), the government can force the resident to pay back some of their OAS payments. Above a certain maximum threshold, the CRA can stop providing OAS payments entirely.
We work with our clients to balance the competing cross-border pension rules that may exist in Canada and the US and, moreover, to advise on planning opportunities.
US Retirement Accounts and RRSP Withdrawals
American residents moving to Canada may have already contributed to one or more US retirement accounts, including a Traditional Individual Retirement Arrangement (“IRA”), a Roth IRA, a 401(k), a 403(b), and/or a 457(b).
Each of these retirement accounts comes with its own set of benefits for US residents. But do these accounts have the same benefits for Canadian residents? Often, Americans moving to Canada want to know whether they should retain these accounts after their move. The answer varies with each unique situation.
IRAs and 401(k), 403(b), and 457(b) accounts all receive tax-deferral treatment in the US; fortunately, Americans who move to Canada continue to enjoy tax-deferral on their IRA, 401(k), 403(b), and 457(b) accounts – as long as they file the proper election with the CRA.
Keeping your retirement accounts open post-move is generally the simplest method of handling them. However, when withdrawals are made down the line, they will be subject to higher Canadian tax rates as both the CRA and IRS will tax this income. Foreign tax credits are available from the CRA, but they may not fully offset the cost of US tax.
To avoid paying Canadian tax rates on IRA, 401(k), 403(b) and 457(b) withdrawals as a retiree in Canada, it may be advantageous to convert these accounts to Roth IRAs prior to moving north of the border.
Another tax-planning option for non-US persons is to convert retirement accounts to a Registered Retirement Savings Plan (“RRSP”) after arriving in Canada. RRSPs are pre-tax, tax-deferred savings accounts for Canadians. Converting US retirement accounts to an RRSP does not work well for US citizens or Green Card holders who retain their US residency status post-move, however; also, this strategy can be complex to execute.
Note that RRSP withdrawals are taxed more favourably for US residents than Canadian ones. Therefore, American residents who own RRSPs from previously living in Canada may want to withdraw their RRSPs as American residents, prior to returning to Canada.
Ultimately, determining how to handle your US retirement accounts when moving to Canada is a complex process that involves analyzing one’s total financial picture.
Canadians returning to Canada after working in the US should be aware of the following investment planning and portfolio management issues.
Passive Foreign Investment Companies
As discussed in greater detail under the Tax Planning section, if you are considered a US person (US citizens, permanent residents/Green Card holders), you will continue to be taxed by the IRS on your worldwide income.
Within a Canadian taxable or non-registered account, Canadian mutual funds, exchange-traded funds (“ETFs”), and real estate investment trusts (“REITs”) are classified as passive foreign investment companies (“PFICs”) by the IRS, with extremely punitive tax treatment. If you have or are considering establishing a taxable or non-registered account, you should avoid holding these securities.
Canadian mutual funds, ETFs, and REIT holdings are not subject to the PFIC classification within tax-deferred/retirement/qualified accounts (such as RSPs and RIFs, which are the Canadian equivalents of IRA accounts).
We can help build, maintain, and oversee a holistic and optimized cross-border investment portfolio that remains aligned with your strategic investment objectives, risk tolerance, and time horizon while complementing other aspects of your cross-border financial plan and remaining compliant with Canadian and US tax authorities.
With your move back to Canada, if you currently work with US-based investment professionals, it is very likely that you will no longer be able to continue to work with them due to regulatory and compliance restrictions.
For investment professionals, the relevant regulatory bodies in Canada are the Investment Industry Regulatory Organization of Canada (“IIROC”) and the provincial securities commissions. The relevant regulatory body in the US is the Securities and Exchange Commission (“SEC”).
While there are recognition and reciprocity of investment credentials on both sides of the border, investment professionals who are licensed only in one country need to formally apply for registration with the relevant regulatory entity in the other country so that their education, training, and work experience are recognized.
Owing to the additional legal complexity, heightened business risk, and regulatory reporting workload associated with operating in another country, most firms are unwilling to embark on the registration process because of their focus on domestic or regional clients.
We have partnered with best in-class cross-border compliant investment management firms and can help build, transition, and oversee an optimized and compliant cross-border investment portfolio that remains aligned with your strategic investment objectives, risk tolerance, and time horizon, while complementing other aspects of your cross-border financial plan. We work with each client to independently determine the most suitable investment portfolio for each particular situation.
US Retirement Accounts (401Ks/403Bs/IRAs)
After working in the US, it is likely you will have assets in US retirement accounts. As discussed in greater detail under the regulatory compliance section, once you move to Canada, it is very likely that US-based investment professionals will no longer be able to continue to work with you.
For individual retirement accounts (“IRAs”), the assets can usually remain in the US. However, depending on the custodian, they can either continue to be held with the existing US-based custodian or they must be transferred to another US-based custodian who can hold assets for non-US residents. In either situation, unless the US-based investment professional is also licensed to work with Canadian residents, they will not be able to manage the portfolio and provide investment guidance and advice to you; rather, the assets will become self-directed.
For employer-sponsored plans such as 401Ks/403Bs, the situation is similar; it is likely that large investment firms handling and managing the plans cannot work with non-US residents. Assets in employer-sponsored plans can be transferred to a rollover IRA with a US-based custodian who can hold assets for non-US residents, and then the client can self-direct the investments in the rollover IRA or transfer the assets to a Canadian RSP account.
In such cases, we can help build, transition, and oversee an optimized and compliant cross-border investment portfolio that remains aligned with your strategic investment objectives, risk tolerance, and time horizon, while complementing other aspects of your cross-border financial plan. We work with each client to independently determine the most suitable investment portfolio for each particular situation.
Manager Selection and Oversight
Portfolio management is a daunting process for many individuals in general and is compounded by the additional complexities within a cross-border context. Your advisory team should be knowledgeable about investing on both sides of the border; ideally, your team will have a comprehensive understanding of the cross-border tax, financial planning, and regulatory issues that can arise.
Having an investment manager who understands your situation and needs and who works seamlessly with tax experts, lawyers, and financial planners is crucial to your financial well-being.
We favour a multi-manager approach to portfolio management by identifying and selecting top-tier managers for a particular asset class or investment mandate. Our independent oversight helps you determine which managers fit best with your investment objectives and risk tolerance. Moreover, we will coordinate total portfolio reporting, manager monitoring, optimized tax management, and comprehensive cross-border advice to help you avoid tax traps, penalties, and other issues. Where possible, we negotiate preferential pricing on investment management fees for our clients.
As an independent firm and investment fiduciaries, we can help build, transition, and oversee an optimized and compliant cross-border investment portfolio that remains aligned with your strategic investment objectives, risk tolerance, and time horizon, while complementing other aspects of your cross-border financial plan.
As healthcare professionals, American doctors are intimately familiar with the US health care system and are likely knowledgeable about some of the differences in the Canadian one. The most important difference between the two health care systems is that the Canadian system is a free, public system, while the American system is privatized.
US persons generally have three options for obtaining US health insurance: i) via an employer; ii) via private purchase; or iii) via federal government programs such as Medicare, for retirees.
Eligibility for Medicare begins at age 65 for US citizens and permanent residents who have been legally living in the US for at least five years. If Medicare-eligible US residents have also earned enough credits to be eligible for US Social Security payments, then they will not have to pay premiums for Part A Medicare benefits, which cover inpatient care at hospitals.
There are also Part B and Part D Medicare premiums. Part B premiums cover outpatient care, such as doctor visits and lab tests, and Part D premiums cover prescription costs.
US citizens who move to Canada will be eligible for Medicare coverage when they turn 65, although they can choose not to enroll in the program. The decision to enroll in Medicare requires a cost-benefit analysis. Paying thousands of dollars per year for Medicare premiums as a Canadian resident can be challenging, but if Americans who move to Canada plan to spend large amounts of time in the US, it might be worthwhile to enroll in the program and pay any relevant premiums.
The alternative to maintaining US Medicare coverage is to purchase US travel insurance that covers you when travelling south of the border.
The Canadian Health Care System
One of the most wonderful benefits of moving from the US to Canada is access to the Canadian health care system, which is government-funded and free for all Canadian residents.
Health insurance in Canada is governed by each province. While health insurance is available to all residents of a province, new residents typically have to wait for a certain period of time before qualifying for coverage.
Each province has its own rules regarding the wait time for health insurance coverage, but the wait is generally three months, which is the case in Ontario, for example.
The wait time for health insurance coverage often prompts new Canadian residents to purchase private Canadian health insurance coverage to bridge their gap in coverage. Such policies are typically affordable, and there are a variety of plans available through private insurance providers.
Universal Life Insurance Policies
Since most American residents have life insurance policies in place before they move to Canada, it is important for us to review such policies prior to departure to confirm that they reflect our clients’ desired beneficiaries and to ensure that they will not create any cross-border tax traps.
One of the most common cross-border tax traps associated with life insurance policies is that certain American whole life and universal life policies may not be tax-exempt in Canada as they are in the US. This discrepancy can trigger a tax liability in Canada, but not in the US.
A similar issue arises when Americans living in Canada purchase Canadian whole life or universal life insurance policies that are not considered tax-exempt by the IRS though they are tax-exempt in the eyes of the CRA. Moreover, Canadian whole life and universal life insurance policies may trigger the egregious Passive Foreign Investment Company (“PFIC”) rules.
We advise our clients on the potential tax liability of their life insurance policies, and we suggest tax-advantageous ways of surrendering policies prior to moving north, if necessary.
We also advise US persons on the tax filing requirements associated with owning Canadian policies, particularly the requirements of the Foreign Account Tax Compliance Act (“FATCA”), which is the legislation that governs US persons’ reporting requirements for foreign accounts and other financial assets located outside the US.
Life insurance policies also pose potential US estate tax liabilities. There are estate planning solutions that can mitigate tax exposure, however, such as the irrevocable life insurance trust (ILIT).
US citizens and Green Card holders who establish Canadian tax residency do not need to notify the IRS of a change in tax residency status.
Rather, US persons living in Canada as Canadian tax residents will continue to meet their US tax filing obligations by filing US federal tax returns on IRS Form 1040 each year. They will also file state income tax returns if necessary.
US persons resident in Canada are also responsible for filing Canadian tax returns to the CRA, and they will need to pay all applicable tax on both the federal and provincial levels. It is not necessary to notify the CRA of one’s new status as a Canadian tax resident. US persons who move to Canada simply begin filing Canadian tax returns.
Needing to file income tax returns in two countries necessitates organization and careful planning. Since US persons must report foreign bank accounts and financial assets that they retain offshore to the IRS, US tax filings for Canadian tax residents can become complex, with several moving pieces.
Americans who move to Canada will establish bank accounts and financial assets in Canada. As such, they may have to meet FATCA filing requirements. Reportable financial assets under FATCA range from bank accounts to Canadian partnership interests and stocks and securities issued by non-US corporations. US persons with Canadian assets may also have to file FinCEN 114, the Report of Foreign Bank and Financial Accounts, commonly known as the FBAR. Failure to comply with FBAR and FATCA requirements can lead to costly penalties.
Canadian tax residents with certain foreign property holdings, such as some US trusts and bank accounts, are also required to report this foreign property to the CRA.
Given the complexities involved in filing taxes and complying with reporting obligations in both countries, Americans moving to Canada typically require the assistance of cross-border financial planners and accountants.
Immigration Considerations for Canadians Returning from US Employment
Canadians returning from US employment who were in the US on a work visa simply need to return to Canada. If their work visa has not yet expired and they are returning to Canada early, it’s important to let United States Citizenship and Immigration Services (“USCIS”) know that you are departing the US. That way, when you return to the US to visit in the future, USCIS is clear that you are returning as a Canadian visitor.
Note that once you re-establish Canadian tax residency, you will not have any US tax obligations regarding your worldwide income. However, you may have other tax and filing obligations regarding US-source income and any US assets that you retain south of the border after you move.
Canadians who worked in the US and obtained a Green Card must consider whether they should give up their Green Card upon moving back to Canada.
Giving up your Green Card can be a difficult decision; by doing so, you lose the right to live and work in the US. However there are several tax benefits to consider when assessing the pros and cons of surrendering your Green Card.
The most attractive reason to give up your Green Card is that you will no longer be a US person subject to the US tax regime. You will gain many freedoms; for example, you will be free to benefit from investing in TFSAs and Canadian mutual funds and ETFs. You will be free of the US estate and gift tax regime, and you will no longer have to comply with the IRS’s often onerous and expensive tax reporting and tax filing obligations.
From a practical immigration perspective, it is challenging to retain a US Green Card once a Green Card holder moves back to Canada after employment in the US. One of the requirements of Green Card holders is that they spend at least half of the year in the US. Generally, Green Card holders moving to Canada who do not plan to spend at least six months of each year in the US lose their permanent residency status. Those who fail to file US tax returns on IRS Form 1040 may also lose their permanent residency status.
Note that in some limited circumstances, high net worth individuals who relinquish their Green Cards may trigger the US expatriation tax rules. When analyzing whether or not to relinquish your Green Card, it is ideal to review your options from both a tax and immigration perspective with the help of a cross-border financial planner.
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