Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents

Matthew Marcarian   |   9 Apr 2024   |   3 min read

Retirement savings, especially when managing finances across international borders, can be complex. If you live in Australia, but hold plans in the USA, you need to understand the tax implications of having 401(k) and IRA plans. 

USA Tax Implications Of A 401(k) Or IRA Plan

401(k) and IRA plans are tax-advantaged retirement accounts that are available to US taxpayers. Contributions made to these accounts are typically tax-deductible, and earnings within the account grow tax-deferred until withdrawal. However, withdrawals from these accounts are usually subject to taxation in the USA. You should obtain tax advice from a qualified US tax advisor before accessing any benefits.

Australian Tax Implications Of A 401(k) Or IRA Plan

Australian tax residents (who are not temporary residents) are subject to tax on their worldwide income.

US retirement accounts like 401(k) and IRA plans are usually treated as foreign trusts by the Australian Taxation Office (ATO).

Therefore distributions from these vehicles will usually be taxable in Australia, except for amounts that can be said to represent contributions. This means that any taxable withdrawals from these accounts are treated as assessable income and taxed at the individual’s marginal tax rate. As foreign income, you would also be able to claim a Foreign Income Tax Offset (FITO) to reduce double taxation.

Roth 401(k) and Roth IRA plans are comprised of contributions made with after-tax dollars. This means that for Australian tax residents, withdrawals from these plans are generally tax-free.

Managing Funds While Living In Australia

For individuals residing in Australia who wish to access their US retirement funds, there are several options to consider:

  1. Funds in the USA: Australian tax residents can choose to leave their 401(k) or IRA funds in the USA subject to complying with relevant US requirements. 
  2. Withdrawal: Depending on the circumstances, individuals may opt to withdraw funds from their US retirement accounts. Careful consideration should be given to the tax implications of such actions, as they may trigger tax liabilities in both countries.

Our tax advisors and accountants are able to work with our clients, and their financial planners and wealth managers to clarify the taxation consequences, which would usually be an important element of the decisions that may be ultimately made.

Planning

Understanding the tax implications of 401(k) and IRA plans for Australian tax residents living in the USA is essential for effective retirement planning. While these accounts offer valuable tax benefits in the USA, they also come with potential tax liabilities in Australia. 

By navigating the complexities of dual tax systems and seeking professional advice, individuals can make informed decisions to optimise their retirement savings – while ensuring compliance with both US and Australian tax laws.

Given the complexities involved, seeking advice from tax professionals with expertise in both US and Australian tax law is highly recommended.

As specialists in International Tax, we can provide tailored guidance based on your individual circumstances. This can help you with your planning for accessing retirement funding in a way that helps you to minimise your tax obligations.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Australians Moving to the USA: Understanding your Tax Residency when moving to the USA


4th Jul 2022
Matthew Marcarian

As an Australian moving to the United States, it’s important to understand what this means for your tax residency status This is because your tax residency status will determine how your income...

 

Australians Moving to the USA: How is your Australian superannuation affected when moving to the USA?


17th May 2022
Matthew Marcarian

If you’re moving to the United States then you’ll need to understand how tax laws apply to your current and future superannuation account  You should also obtain financial advice from a...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

 

Australians Moving to the USA: Understanding your Tax Residency when moving to the USA


4th Jul 2022
Matthew Marcarian

As an Australian moving to the United States, it’s important to understand what this means for your tax residency status This is because your tax...

 

Australians Moving to the USA: How is your Australian superannuation affected when moving to the USA?


17th May 2022
Matthew Marcarian

If you’re moving to the United States then you’ll need to understand how tax laws apply to your current and future superannuation account ...

Moving To Australia On A Global Talent Visa

Matthew Marcarian   |   2 Nov 2023   |   8 min read

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa. This Visa is a permanent residency Visa that offers a migration pathway to individuals who can bring exceptional skills into Australia.

Because the Global Talent Visa is not a temporary visa, the temporary resident tax concessions are not available and you will be taxed just like any other Australian citizen moving home to Australia.

As international tax specialists in Australia we are often asked by individuals moving to Australia on a Global Talent Visas, what the Australian tax implications of making this move are in relation to the assets back in their home country.

The tax implications of making this move will depend on the type of assets you have back home.

Below is an overview of what you can expect.

Moving To Australia With No Assets Other Than A Bank Account

When you move to Australia with no assets except the cash in your bank account, the tax consequences of holding onto your foreign assets are limited to foreign exchange (forex) issues. Since foreign currency is considered a taxable asset, Australia will tax realised exchange gains and will allow a deduction for realised exchange losses. 

This means that money sitting in a bank account with fluctuating values will have no tax consequence. However, if you spend or transfer that money, including bringing it into Australia at a later date, then you trigger a forex realisation event.

If the value of your qualifying forex accounts is less than AUD $250,000 then you can make an election (known as the Limited Balance exemption) which effectively allows an exemption so that you can disregard any forex gains or losses that might arise on the accounts. This is a simplicity measure for taxpayers who are considered to have low balances of foreign currency. The objective is to lower tax compliance costs. People moving to Australia should take advice on the effect of these rules on their foreign savings.

Moving To Australia With A Main Residence In Your Home Country

While an Australian resident is eligible for an exemption from capital gains tax on their main residence, it is unlikely that this exemption will apply to you. This is because you were not an Australian resident while you were living in your property, in your home country.

Once you are living in Australia the overseas property becomes a property that is not your main residence. This applies whether you rent the property out or not.

If you rent your former residence out it becomes an investment property. The rental income is taxable and the expenses associated with generating that rental income are tax deductible. This includes interest on any mortgage taken out to purchase or renovate the property, any local rates, repairs, and other costs. Travel costs incurred to inspect or repair the property are specifically precluded as an eligible deduction. If you pay income tax on the rental income overseas, then you will be able to apply that as a foreign tax credit in your Australian tax return. This way the Australian tax paid on this rental income is limited to any difference between the Australian tax assessed and the tax paid overseas.

If you don’t rent out your former residence (or otherwise earn income relating to the property), then there is no income to declare, and no ability to claim deductions relating to the cost of owning this property.

When you sell the property you will be subject to CGT. The CGT will be calculated on the difference between the value the property sells for and the value of the property at the time you moved to Australia.

Moving To Australia With Investments

If you hold assets in your country of origin, then you will be required to report any assessable income earned from those assets, as well as any capital gains or losses generated on the disposal of those assets.

Certain types of income, such as interest, royalties, and dividends, are typically covered by Double Tax Agreements (DTAs) in a way which limits the amount of tax that the country of origin can impose. This means it is important to advise your bank and investment managers when you become an Australian resident so that they can ensure the correct foreign tax rate is applied at the source.

Regardless of the tax rules in the country of origin, as an Australian tax resident you will be required to report income from all sources in your Australian tax return.

General Tax Information You Should Be Aware Of When Moving To Australia On A Global Talent Visa

It is important to keep in mind that moving to Australia on a permanent basis will mean you become an Australian tax resident.

For tax purposes this means you will need to declare your worldwide income in your Australian tax return, regardless of where the income is earned and whether the income is brought to Australia or stays in an overseas bank account.

All foreign investment income, including interest, dividends and foreign stock plans, are assessable in Australia, whether or not they are assessable in another country.

The foreign income must be reported in the relevant Australian tax year in which it was earned. This may be different to the tax year relating to foreign country in which the investment income was earned.

In general you will be able to offset the tax payable in Australia with any taxes already paid in the country of origin.

Also be aware that Australia has complicated rules if you have interests in overseas companies or trusts, even if you did not set up the relevant companies or trusts or even if they are just ‘family companies’ or ‘family trusts’.

Capital Gains Tax

Australia has a Capital Gains Tax regime. This means you may be required to pay capital gains tax on any assets that you retain in your country of origins.

CGT is assessed at the same rate as your marginal tax rate, however there is a 50% Discount on the value that is assessed on assets that have been owned for at least 12 months after becoming an Australian resident.

CGT discount example:

You purchase a property in 2020 for $500,000.

In 2024 you sell the property for $1,000,000.

This gives you a net capital gain of $500,000.

Instead of paying tax on the full $500,000 gain, tax is only applicable on 50% of the total gain, which means you only pay tax on $250,000.

Deemed Acquisition

At the time that you move to Australia, any assets that you retain overseas are considered to have been acquired for their market value on the day you arrive. This valuation will become their cost base for capital gains tax purposes in Australia.

You are also deemed to have acquired these assets on the date that you become an Australian resident. This ensures that any fluctuations in value between the original date of acquisition and your move to Australia, are ignored for CGT calculations. It also means that you need to continue to own your assets for at least 12 months from the date you move to Australia in order to access the 50% capital gains tax discount.

Summary

As an Australian tax resident you will be required to lodge an annual income tax return in which you must report:

  • Income from your worldwide source
  • Capital gains or losses on all assets held, regardless of the country in which they are held
  • Any foreign tax paid, which may be applied as a credit to reduce the amount of Australian tax assessed on foreign earnings

When you move to Australia your assets will be deemed to be acquired at the market value on the date you become an Australian resident.    

As everyone’s situation is unique, and tax laws are frequently updated, it is important to obtain up to date advice for your specific situation. This will ensure that specific factors that may impact your situation differently are also included in the advice, as well as ensuring you are getting the most up to date information.

eBook: Key Items A Global Talent Visa Holder Should Know When Moving To Australia

If you are moving to Australia on a Global Talent Visa you are likely to become an Australian tax resident. 

This eBook covers the 5 common tax concerns that those moving to Australia on a Global Talent Visa have including:

  1. When do I become a tax resident?
  1. Keeping foreign assets when moving to Australia.
  1. Foreign assets including foreign currencies, trusts, companies or retirement funds and pension loans.
  1. Selling your foreign main residence after moving.
  1. Using your foreign bank accounts.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

UK Budget 2024 – Non-UK Domiciled Tax Rules To Be Scrapped


27th Mar 2024
Richard Feakins

The current remittance basis tax regime will be replaced by a residence based regime from 6 April 2025 Foreign Income And Gains Existing non domiciled individuals who have been resident in the...

 

Managing Dual Tax Residency as an Expat


11th Jul 2023
Daniel Wilkie

When you live and work solely in one country, tax residency is straightforward However, if you are living away from your home country or living between multiple countries, then determining tax...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

UK Budget 2024 – Non-UK Domiciled Tax Rules To Be Scrapped


27th Mar 2024
Richard Feakins

The current remittance basis tax regime will be replaced by a residence based regime from 6 April 2025 Foreign Income And Gains Existing non...

 

Managing Dual Tax Residency as an Expat


11th Jul 2023
Daniel Wilkie

When you live and work solely in one country, tax residency is straightforward However, if you are living away from your home country or living...

Australians Moving to the USA: Understanding your Tax Residency when moving to the USA

Matthew Marcarian   |   4 Jul 2022   |   5 min read

As an Australian moving to the United States, it’s important to understand what this means for your tax residency status. This is because your tax residency status will determine how your income will be treated for tax purposes.

Moving to the US on a Permanent Basis

If you move to the US on a permanent basis then it would usually be the case that you would be  considered a non-resident for Australian tax purposes from the day you leave. Note that a move can be considered permanent from an Australian tax perspective, even if you only expect to live in the US for a few years.

As someone making a permanent move to the US it is likely that you will be cutting most of your ties with Australia. Typically you may do things such as sell your Australian assets, close Australian bank accounts, resign from Australian clubs, remove yourself from the electoral roll, surrender your lease or sell your family home, all as part of and parcel of your move to the United States. In such cases usually you would become a non-resident of Australia.

However, there are exceptions and sometimes a person can become dual resident of Australia and the United States. Often this occurs because a person is living in the United States for long enough to be considered US resident but has not quite departed Australia for whatever reason. Sometimes it is because a person has employment or runs a business in the two countries and actually keeps two homes.

If you become a US tax resident and an Australian non-resident

If you leave Australia and become a US tax resident, then you will be subject to all the taxation rules that a US tax resident is subject to. We always recommend that clients obtain US tax advice before moving to the United States so that they are fully aware of how Australian assets would be treated by the IRS. 

As an Australian non-resident you would be subject to non-resident tax withholding rates on certain Australian sourced income, such as any Australian bank or unfranked dividends paid to you from Australian investments. For example this means that banks would withhold 10% of your interest income on your Australian accounts and Australian companies will deduct 15% withholding tax on unfranked dividends paid to you. But you will need to advise your bank and various share registrars that you have moved to the United States.

If you continue to earn any income from Australian sources (other than income that is specifically covered by non-resident withholding rates), then you would have to lodge an Australian tax return. A common example of this is rental income from an Australian property.

You would only be required to include any Australian sourced income, and this would be assessed at non-resident taxation rates. This income also needs to be declared in your US tax return as foreign income. You should also be able to claim a tax credit for any Australian tax already paid on the Australian sourced income in your US tax return.

If you have assets such as investment properties, a main residence, shares and managed funds it will also be vital for you to understand how Australia’s capital gains tax laws applied to you on your departure from Australia. Unless you make a specific choice to the contrary, becoming a non-resident of Australia gives rise to a deemed capital gain or loss arising on your assets and so obtaining income tax advice specific to your circumstances is important. At CST we can provide you with our Departing Australia Tax Review service and can also help you obtain US tax advice.

Dual tax residency?

Sometimes determining your tax residency status is not straightforward. This can happen when you meet the requirements for tax residency in both countries.

If this happens then you would first turn to the tax treaty between Australia and the US, for guidance on which country takes priority. Most of the time the tax treaty will provide sufficient rules to determine which country would be considered the country in which you have tax residency. 

In some cases, where an individual is genuinely living in both countries, regularly interchanging between locations, or having equal connections in both countries, a tax ruling may need to be sought and in some cases a treaty-based tax return is required to arrive at the correct result.

Final Words on Tax Residency

Your personal tax residency forms the basis of how all your income tax obligations are calculated, which makes the correct understanding of your tax residency vital, particularly for clients who may be travelling or moving between Australia and the United States, two high taxing countries with complicated tax systems.

When it comes to determining your tax residency it is always important to realise that tax residency is a matter of fact. Often a careful analysis of various facts will be required. Tax residency is not something that can be chosen, and therefore it is important to obtain timely advice so that income tax consequences arising either in Australia or the United States are well understood and budgeted for.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Australians Moving to the USA: How is your Australian superannuation affected when moving to the USA?

Matthew Marcarian   |   17 May 2022   |   3 min read

If you’re moving to the United States then you’ll need to understand how tax laws apply to your current and future superannuation account.  You should also obtain financial advice from a qualified financial planner before seeking access to your super.

Moving to the US on a Permanent Basis

If you are an Australian moving to the United States on a permanent basis then you are likely to be considered a non-resident for Australian tax purposes. This means that you will, by and large, be considered a tax resident of the US. 

In this situation Australia’s tax laws will continue to apply to your Australian superannuation in terms of how your superannuation earnings are taxed. However you should seek US tax advice in relation to how the IRS would seek to tax your Australian superannuation account or fund. CST Tax Advisors in the US can assist you with that. 

If you have an Australian self managed superannuation fund you should seek advice in Australia before you leave to avoid your SMSF being deemed non-complying, as generally the SMSF cannot be run by non-residents and should usually not accept contributions from foreign members. If your SMSF becomes non-complying because of your move, substantial additional tax may be levied by the ATO on your SMSF.

Accessing your Superannuation

Basically this means that your superannuation will continue to remain preserved in your Australian superannuation fund until you reach retirement age. If you continue to work for an Australian employer, they may continue to be required to contribute to your superannuation fund. 

When you are eligible to withdraw your Superannuation, if you are still living in the US, then you may find that these payments count as taxable income in the US. 

Contributing to your Superannuation

If you are eligible, and choose to continue to make contributions into your Australian superannuation fund to support your retirement, then you will likely find that these contributions do not count as tax deductions against your US assessable income. You should obtain specific tax advice from a US tax advisor or CPA.

While these payments may count as tax deductions in your Australian tax return to reduce any Australian sourced taxable income, superannuation contributions cannot be used to create a tax loss. This means that contributions that you choose to claim as a tax deduction may be wasted if you don’t have other Australian income to offset.

Since making superannuation contributions may not be a tax effective option, it is important to understand the full financial impact of your choice by talking to an appropriately experienced US tax agent, as well as an Australian tax agent. 

Talk to your tax agent about the tax consequences on your Superannuation plan before you move

Moving overseas can create a large number of potentially complex taxation issues to consider, particularly for those who have self managed superannuation funds. 

It is important to speak to an appropriately qualified and experienced tax agent about your specific situation. Planning ahead ensures you have the information necessary to make informed choices, and prevents you from being surprised with unexpected tax costs. 

It may also be advisable to speak to a financial planner so as to make the most appropriate plan in relation to investing for your future.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Are you required to pay Inheritance Tax as an Australian Resident?

Daniel Wilkie   |   5 Apr 2022   |   6 min read

Australia does not have an inheritance tax. When a person dies, the estate, or person who inherits the assets does not have to consider any special inheritance tax on the money or assets that are taking ownership of. While a beneficiary may be required to pay taxes from Superannuation death benefit payments, or capital gains on the sale of assets that have been inherited if those assets are sold, there is no specific tax levied on the value of inherited assets. 

However, there are many countries that do have inheritance taxes, including the United Kingdom.  

This means that when an Australian inherits money or assets from abroad, they may find themselves subject to an unfamiliar “inheritance tax”.

What is inheritance tax?

Inheritance taxes are special taxes that are levied on the assets that are received from the estate of a deceased person. As the beneficiary of a deceased estate you are required to pay taxes on the value of the inheritance that you are receiving.

In a similar vein, estate taxes are levied on the value that is paid out of a deceased’s estate. The estate is required to pay these taxes, rather than the beneficiary. This means that the beneficiary receives the net assets after the estate has paid any required.

In some countries these taxes are referred to as “death duty”.

The laws around inheritance taxes vary between tax jurisdictions. There may be different tax rates, different inclusions on what type of assets are taxed and different types of exemptions or limits.

Some countries like the United Kingdom levy inheritance taxes where assets are transferred to trusts and for this reason many British expats should seek inheritance tax advice before establishing a trust in Australia.

When would an Australian resident be required to pay Inheritance taxes?

As an Australian resident you are not subject to inheritance tax, regardless of where the inheritance is coming from. However the deceased estate may be subject to estate taxes prior to paying or transferring your inheritance to you.

In essence this means you, as an individual taxpayer, do not have to be concerned about being assessed for specific inheritance taxes.

What taxes does an Australian need to be aware of when inheriting assets from overseas?

1. Ongoing earnings from the inherited estate

When you receive money from an inheritance you may be subject to taxation on any of the amounts that have been earned as income, and were not already taxed within the estate. This is because a deceased individual may continue to gather income after their date of death. If there is a delay between the date of ownership of the estate assets being transferred to you and the physical transfer of such assets to you then you may personally be assessed on such income. The executor of the estate would make you aware of any income amounts that this may apply to.

Furthermore, any ongoing income that you earn from inherited assets will be taxed under ordinary taxation laws. For example, if you inherit a business, you will be subject to any income tax on the ongoing business earnings once the business has been transferred to you. If you inherit an investment property then you will be subject to income tax on the ongoing rental income that you earn once the property has been transferred to you.

Since we are talking about inheritance from an overseas estate, it is important to note that you may also continue to be subject to taxes in the country in which the inherited asset is located. In this situation most countries have a double tax agreement with Australia which will typically ensure that you are limited to paying taxes based on the country that has the highest income (or capital gains) tax rate.

2. Capital Gains Tax

Sometimes a deceased estate may be liquidated so that the beneficiaries are simply paid out in cash. Other times beneficiaries may be bequeathed assets such as property, shares, a family business, collectables, or other assets.

Under Australian Capital Gains Tax laws the date of death is typically used as the date you acquired the asset, with the market value of the asset at this point in time being your cost base. This means that when you eventually sell the asset you will be subject to capital gains tax on any capital gain made on this sale.

There may be some exclusions. For instance if you inherit a family home and move into or continue to live in that home, then you may be exempt from capital gains under the main residence exemption.

3. Superannuation Death Benefits

A superannuation death benefit may be paid to you as a lump sum or an income stream. Typically a lump sum death benefit is tax-free where you were a dependent of the deceased. If you were not a dependent, or you receive a superannuation death benefit income stream, then you may be subject to taxes on part of the death benefit, depending on the components of the benefit paid.

4.  Bringing money into Australia

If you have inherited cash from an overseas estate you also need to be aware of the impact of transferring funds from overseas into Australia.

Foreign currency can be treated as a CGT asset. This means that when you withdraw money from an overseas bank account you are triggering a taxable event. This is because exchange rate valuations fluctuate and there can be a difference between the value of what you originally inherit and the value of what ends up in your Australian bank account, purely because of these exchange rate fluctuations.

This means that you may be taxed on any increased value of the overseas money, from the time of inheritance to the time the funds are transferred to your Australian bank account.

Inheriting money from overseas

In simple terms, inheriting money from an overseas estate is similar to inheriting money from within Australia. While you will not personally be assessed on inheritance taxes, you do need to consider other taxes based on the ongoing benefits earned through the inheritance.

The biggest difference is the added complications that inheriting from overseas may impose, including:

  • Potential capital gains tax on exchange rate fluctuations when withdrawing foreign currency
  • Estate taxes imposed on the estate that are paid prior to distributing your inheritance
  • Foreign taxes imposed on continuing to hold onto any foreign assets or investments

Once you receive the inheritance the assets or money received are yours. This means that their ongoing use and benefit are assessed, where applicable, in your hands, just as any ordinary assets or finances that you earn or invest in yourself, would be.  

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Potential Changes To Australia’s Personal Tax Residency Laws

Matthew Marcarian   |   16 Mar 2022   |   4 min read

On 11 May 2021, the Australian Government announced that it is considering replacing Australia’s existing residency rules with a new ‘modernised framework’.

This update is intended to be based on a report by the Board of Taxation from March 2019.

The changes have not been passed into legislation at publication of this article.

Our Principal, Matthew Marcarian, analyses the changes and what it might mean for Australian expats in his – Australia To Change Personal Tax Residency Laws – article.

Below is a summary of the article.

Why might the Rules be Changing?

The Government has indicated that the rules are changing in order to:

  • make them easier to understand and apply in practice
  • deliver greater certainty
  • lower compliance costs for globally mobile individuals

 What is Changing?

Under the current rules an individual is a tax resident if they:

  • reside in Australia
  • have their domicile in Australia
  • live in Australia for at least 183 days of the year, or
  • are a member of certain Commonwealth Government superannuation funds.

Unfortunately, due to the lack of measurable criteria in these tests there is a lot of grey area when it comes to the more complex situation involving travellers and individuals with more ambiguous mobile living situations.

The intended change will update these rules to focus on a framework that centres on three things:

  • Physical presence in Australia
  • Australian connections
  • Objective criteria

While the precise nature of the intended update is not yet known, the Board’s recommendation has indicated specific, measurable tests that an individual should pass to meet the residency test. To this end there are three proposed tests to be considered.

1: The 183 Day Physical Presence Test

It is expected that the new primary test will be as simple as determining that an individual has spent at least 183 days physically present in Australia during the given tax year.

2: Commencing Residency Test

When an individual moves to Australia and is only here for between 45 and 183 days they would also need to satisfy at least 2 of the following factors

1. The right to reside in Australia (citizenship or permanent residency)

2. Australian accommodation

3. Australian family

4. Australian economic connections such as:

     a. Employment in Australia

     b. Actively involved in running a business in Australia

     c. Interests in Australian assets

Ceasing Residency Test

To cease residency an Australian would need to spend less than 45 days in Australia during the year, as well as the preceding two years. However, residency would cease immediately where the individual moves overseas to take up overseas employment and the individual:

1. Was an Australian resident for three previous consecutive income years

2. The overseas employment is for at least two consecutive years

3. Has overseas accommodation for the duration of their overseas employment

4. Is physically outside of Australia for less than 45 days in each year they are living overseas

Summary

The proposed rule changes are intended to simplify and clarify the law around determining residency. However, there is still work to do to develop the tests and factors. Further consultation in drafting the legislation is encouraged.

Australia To Change Personal Tax Residency Laws has been written by our Principal, Matthew Marcarian

When it comes to providing tax advice, Matthew believes it is about more than the simple tax consequences. It is about gaining a deep understanding of the client’s situation to formulate clear, robust tax and business advice that deals with both current and potential tax concerns.

With over 20 years of experience providing international tax advice to a wide range of clients, Matthew is well adept at helping clients manage and plan for the tax outcomes and opportunities, both domestically and abroad.

With extensive qualifications in international taxation and personal experience living as an expat, Matthew is a leader in his field with specialist expertise in relation to trusts, controlled foreign companies, international taxation and advising Australian businesses expanding overseas.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Understanding the Differences Between Australian Citizenship, Visa Residency and Tax Residency

Daniel Wilkie   |   18 May 2021   |   10 min read

It can understandably be confusing to determine the difference between being an Australian tax resident for tax purposes compared to visa residency.

If you’re an Australian citizen who was born and continues living in Australia, then it’s pretty straightforward. You are an Australian for both citizenship and tax purposes.

But what about when things aren’t so clear? Can you be an Australian citizen but not an Australian tax resident? Can you be an Australian tax resident without being an Australian citizen? And what about Visa status? How does this change things?

Citizenship and visa residency are pretty clear cut. You are either a citizen or you aren’t. You either have an Australian residency visa, or you don’t. Tax residency, whilst linked to some degree to having visa residency or citizenship, is not as straightforward.

Australian Citizenship

You are an Australian citizen when Australia is legally your home country. This could be because you were born in Australia, or because you were born to Australian parents, or because you applied for citizenship. As an Australian citizen, Australia is considered to be your default country for all purposes, including taxation. This is why an Australian citizen may, in certain situations, continue to be treated as a tax resident, despite living in another country.

However, what about for those citizens from another country, living in Australia?

Australian Visa Residence 

People who are citizens of other countries are only permitted to stay in Australia per the terms of their Visa. There are many different types of visas, ranging from short-term holiday visas, through to permanent residency visas.

The type of visa you hold will play a part in your circumstances when determining tax residency. For instance, individuals on short-term visas are less likely to be considered Australian tax residents, while individuals on long-term or permanent residency visas are more likely to be considered Australian tax residents.

Australian Tax Residency

Despite what your citizenship and visa status is, tax residency is a matter of fact and intention. There is no application form to be completed nor automatic rule to become a tax resident.

When considering whether you are an Australian tax resident the primary factor is whether you, the individual, is living in Australia (see the “resides test” below). Conversely, you may be a foreign resident for tax purposes if you live outside of Australia. Living in Australia is distinguished between having a holiday in Australia, or staying in Australia for an extended period, whether temporary or permanent.

To help distinguish “permanency”, an individual must typically be living in Australia for at least six months to be considered a tax resident. Conversely, Australian citizens who are living overseas are typically still considered to be Australian tax residents if they are living overseas for less than 2 years. Indeed an Australian citizen may be living overseas for up to 5 years and continue to be considered an Australian tax resident if there are sufficient ties remaining in Australia to demonstrate that the nature of their overseas stay is “temporary”.

In order to determine tax residency specific residency tests are considered.

Tests for Australian Residency

To determine whether an individual is a tax resident there are a number of tests that can be applied. Passing any one of these tests will determine residency status.

             Resides Test

The first test for residency is the ‘resides test’. If you are physically present in Australia, intending to live here on a permanent basis, and have all the usual attachments in Australia that one would expect of someone living here, then you are a tax resident.

Factors considered include whether your family lives in Australia with you, where your business and employment ties are, where you hold most of your assets and what your social and living arrangements are. If you pass this test then there is no need to consider further tests. 

It is possible to be found to be a resident of more than one country. In cases where you are found to be a dual resident, you may need to consider tie breaker rules in any relevant Double Tax Agreement. 

If you don’t pass the resides test then you may still be a tax resident if you satisfy one of the three statutory tests instead.

             Domicile Test

The domicile test states that you will be found to be an Australian tax resident unless you have a permanent home elsewhere. An Australian citizen will have Australia as their domicile by origin. This means that even if an Australian citizen is living or travelling overseas their default home will be Australia. 

In such situations residency only changes when there is an intention to permanently set up a new domicile overseas. (For this reason people holidaying overseas or living overseas on a short-term basis can continue to be Australian tax residents even if they don’t step foot in Australia for years). Individuals who were domiciled in Australia but who do not cut their connection with Australia, will continue to be Australian residents.

             183-Day Test

The ‘183 day test’ is the day count test. This test is typically to capture foreign residents coming to Australia, rather than applying to Australians moving overseas. Individuals who come to Australia from overseas for at least 183 days may find themselves being Australian tax residents. Note that being in Australia for 183 days of the year does not automatically make such an individual a tax resident. Non residents who come to Australia for more than 183 days but do not have any intention of taking up residence in Australia may, depending on their intent and actions, be considered visitors or holiday makers, and therefore not qualify as tax residents.

             The Commonwealth Superannuation Test

Australian Government employees in CSS or PSS schemes, who work in Australian posts overseas, will be considered Australian residents regardless of other factors. 

Examples of Tax Residency and Foreign Tax Residency

To understand the difference it might help to look at a few examples of different scenarios.

             An Australian Citizen who is a Tax Resident

Tom is an Australian citizen who was born in Australia. He has lived in Australia his whole life, and intends to continue living here. During the year he goes on a 6 month holiday, travelling around Europe. At the end of his 6 months he decides to take advantage of another opportunity and stays in Africa for 3 months. After this time, he returns home to Australia. 

Tom’s tax residency never changes. Despite travelling overseas for 9 months of the year, he continues to be an Australian resident for tax purposes. This is because Australia is always his home, and his time overseas is not in the nature of a permanent move.

             An Australian Citizen who is not a Tax Resident

Jill is an Australian citizen who was born in Australia. She has lived in Australia for her whole life. However, in 2019 Jill accepts an opportunity to take a job in England. The position is a permanent position and requires Jill to move to England on a permanent basis. After acquiring the necessary visa to work and live in England, she sells her home and uses the proceeds to make the move to England, where she buys a new home and settles down. Jill brings her son to England with her, and closes down her Australian bank accounts. She does not expect to return to Australia, other than for occasional holidays.

On the day that Jill departs Australia she becomes a foreign resident for tax purposes. The fact that she is an Australian citizen does not change this. This is because it is clear from her actions and intentions, closing off ties to Australia, and establishing a new home in England,  that she is moving to England on a permanent basis. 

             A Tax Resident Living in Australia on a Permanent Residency Visa

Bob is from the United States of America. While in Australia on a working holiday visa, where he travels around the country, his final stop is at a small country town that feels like home to him. He makes friends and is even offered a permanent job there. Bob’s visa is almost up, so he goes back to the United States as planned, then takes the necessary steps to return to Australia and apply for a permanent residency visa. Bob effectively cuts his ties with the US and intends to make this small country town his new home and moves into a room with one of his new mates.

On Bob’s initial time in Australia under his working holiday visa, he will be considered a non-resident, or a temporary resident, depending on his visa. Even though he started thinking about making a permanent move at this stage, he had yet to take any steps to show this intention. However, on his return, which was made with all the actions necessary to show that this was a permanent move to Australia, he then becomes an Australian tax resident. 

             A Foreign Tax Resident with an Australian Permanent Residency Visa

Jane is a British citizen who has been living in Australia on a permanent residency visa for the past ten years. She just received news that her parents were in a bad accident and both need permanent care. Jane decides to pack up and move back home to care for her parents. She sells off her assets, closes her Australian bank account, and returns home to live with her parents. She also finds a part time job overseas.

Even though Jane has a permanent residency visa in Australia, she is no longer living here on a permanent basis. This means she is now a foreign resident for tax purposes.

Permanent and Temporary Residents

Even if an individual is deemed to be a tax resident, the ATO further distinguishes between temporary residency and permanent residency. Temporary residency typically occurs when an individual is genuinely residing in Australia on a “permanent” basis, however, are only in Australia on a temporary Visa, as opposed to living in Australia on a permanent residency Visa or obtaining Australian citizenship.

Temporary residents are only taxed on their Australian-sourced income.

Tax Residency is based on your Permanent Residence

As you can see from the above examples, tax residency is based on where an individual is permanently residing. If you are in Australia on a holiday, or only for a short time (less than 6 months), then you would not be considered an Australian resident for tax purposes.

However, holding a permanent residency visa, does not necessarily mean you are a tax resident. If you actually live in another country on a permanent basis, having your social and economic ties in another country, then you will be a foreign resident for tax purposes. 

It is important to note that there must be a permanent home elsewhere. If an Australian resident decided to travel the world for several years, although they may think they have departed Australia permanently, as they do not have a permanent home elsewhere, this would not constitute a decision to permanently reside in another country. Australia would continue to be their home, even though they are absent from Australia for a prolonged period of time. 

Since determining tax residency can be quite complex, it is important to speak to a tax specialist to understand your situation.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Australians moving to the USA: Key Differences in the Australian and US tax system

Matthew Marcarian   |   2 Apr 2021   |   5 min read

Like any overseas move, moving from Australia to the United States will mean that you will encounter a brand new taxation system. 

If you’re used to the Australian tax system, the US system may seem a lot more complicated. For a brief overview of the differences see this comparison table:

AustraliaUnited States
Tax Year1 July to 30 June1 January to 31 December
Tax AuthorityAustralian Taxation Office: ATOInternal Revenue Services: IRS
Income Tax (residents)As an Australian you are taxed at a tiered individual income tax rate that ranges from 0% to 45%.Federal Income Tax is charged at tiered individual rates between 10% and 37%. Unlike Australia there is no initial tax free threshold.

Most States also impose a personal income tax which varies between states. Typically the state tax rates are under 10%. 
Income Tax (non-residents)Australia typically only taxes non-residents on income that is sourced in Australia. The tax free threshold doesn’t apply, and the first $120,000 of Australian income is taxed at the rate of 32.5%. (Up to a maximum of 45% for every dollar over $180,000). There may be some limitations and exclusions depending on the relevant double tax agreement. The US typically only taxes non-residents on income that is sourced in the US. Passive income (for example dividends, rent, royalties) is taxed at a flat 30% (unless a specific tax treaty specifies a lower rate). Effectively connected income (income earned through a business or personal services) is taxed at the same graduated rates as for a US person. 
Social Security Tax RateNot applicableThe US charges additional social security taxes, which is payable by both the individual and their employer. There is a cap on the maximum wage that is subject to this tax each year. 
Medicare Australians are taxed for a medicare levy on all of their income, unless they are under low income rate thresholds. The medicare levy rate is currently 2% of taxable income. High income earners are also charged a medicare levy surcharge, unless they have appropriate private health care coverage. The rate of medicare levy surcharge is between 1 and 1.5% depending on the individual’s taxable income level.  In Australia many medical services and public hospital services are provided free for all Australians under the medicare system. This is what the medicare levy and medicare levy surcharge tax levies pays for.The US also charges a medicare tax on all individual income. The rate is currently 1.45%. Employers are required to withhold an extra 0.9% medicare tax when an individual’s wage exceeds $200,000 in a year.   Unlike Australia, the US does not provide universal health care for its citizens. In the US each individual is responsible for funding their own health care. This means that instead of the medicare taxes going towards a general public funding pool for universal healthcare, they go towards your Medicare Hospital Insurance for when you are a senior. Medicaid is available to help support low income earners. 
Health InsuranceIt is optional for an individual to pay for private health insurance, which covers private health care as well as services that aren’t covered by medicare. High income earners will be exempt from the additional medicare levy surcharge if they take out private health insurance with adequate hospital coverage.In the US an individual is responsible for health insurance (most employers do provide health insurance coverage) in order to get their health care services covered, or partially covered, by their insurance provider. Medicaid is available to assist low income earners to access free or reduced cost health care. 
Sales TaxGST is a federal tax charged at 10% on most goods and services. Basic essentials are exempt. Sales taxes apply on most goods and services, and these are levied by the various state governments. These taxes range from 0 to 13.5%. 
Tax Return Due DatesThe financial year ends on 30 June. Individual tax returns are due for lodgement by the 31 of October (however extensions typically apply until May in the following calendar year where an individual uses a tax agent to lodge their return and they have no outstanding obligations). The financial year aligns with the calendar year in the US, meaning the tax year ends 31 December. Tax lodgements are due by 15 April the following year. Self-employed and small business owners are required to make quarterly reports to pay estimated taxes that are reconciled with the annual filing. 
Income from your Australian Superannuation FundTaxation on superannuation income streams and lump sums is taxed differently depending on whether you have reached the preservation age, and the type of super income stream that is paid. Distributions from an Australian superfund are typically exempt from US tax provided the benefits are appropriately claimed and reported. 
RetirementOnce you reach preservation age (60), your retirement benefit from your superannuation fund is tax free.

Aged pensions form part of your taxable income, however if you have no other income then your pension won’t exceed the tax free threshold. 
Your income stream from any 401(k) plan, social security or pension are taxed depending on your income sources and overall level of income.

As you can see, there are a number of key differences in the way taxes are levied and collected in the US. Much of this is due to the additional authority of the states to impose both income and sales taxes for their own jurisdictions. This means that the exact amount of taxes you will be faced with will, ultimately, depend exactly where in the states you are moving to.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Changes to Foreign Surcharge: Discretionary Trusts with property in NSW or VIC

Daniel Wilkie   |   22 Mar 2021   |   4 min read

Discretionary trusts provide flexibility in relation to revenue and capital distributions. This is one of the reasons they are a common choice for families. However, when there is a potential foreign beneficiary, the discretionary trust can find itself facing additional costs in the form of foreign surcharges. Foreign surcharges are additional fees that various state jurisdictions impose on the duties and/or land taxes over and above the original impost.

The 2020 changes to foreign surcharge requirements mean that administration for Australian discretionary trusts became a lot more complex.  

Foreign Surcharges are subject to a complex array of rules

Each state and territory has its own rules for determining when a beneficiary is a “foreign person”. They also have their own rules for governing foreign surcharges, with some states even imposing clawback rules in the event a beneficiary later becomes a foreign resident. For this reason it is important to obtain specific advice for the relevant state or territory when a discretionary trust intends to purchase property. 

Ultimately, any discretionary trust that is determined to have foreign beneficiaries will be required to pay both the ordinary state duties and/or land tax, as well as the relevant foreign surcharge. For this reason most discretionary trusts aim to avoid having foreign beneficiaries. Where this is not practical for the purpose and primary aim of having the trust in the first place, the trustee must be aware of how having foreign beneficiaries will impact their financial considerations.

Changes for NSW discretionary trusts that own residential property

On 24 June 2020 the State Revenue Legislation Further Amendment Act 2020 came into effect in NSW. This Act changed the foreign person surcharges for both land tax and duties where residential land located in NSW was owned by a discretionary trust. 

The change means that a trustee is deemed to be a foreign person unless the trust deed explicitly excludes all foreign persons from being beneficiaries or potential beneficiaries. This clause in the trust deed must be irrevocable. This means an individual beneficiary who has children overseas, who are defined as foreign persons, would not be able to amend the deed to include their foreign child as a beneficiary. 

Non-compliant trusts, i.e. trusts that do not exclude both foreign persons, and potential foreign persons, as beneficiaries, will deem the trustee to be treated as a foreign trustee. The trust then becomes subject to the foreign surcharge rate of duty. 

In NSW the rate of foreign surcharge is presently 8% of dutiable transactions relating to residential land while for land tax the rate is 2%. These charges are payable in addition to ordinary rates. 

Retrospective Impact of the change in NSW

One of the most concerning things with the change in NSW is that the law applies retrospectively from 21 June 2016 for dutiable transactions, and from 2017 for land tax surcharges. 

If you don’t have any foreign beneficiaries then you have until 31 December 2020 to amend your trust deed to irrevocably remove both foreign persons and potential beneficiaries who could be foreign persons, if you wish to avoid the foreign surcharge. 

If you have previously not had foreign beneficiaries, but you do not wish to amend the trust deed because you will, or potentially will, have foreign beneficiaries, then you will need to consider if you are liable for any retrospective duties and land taxes.

Victorian changes

Victoria has also implemented some changes as of 1 March 2020. While these changes essentially have the same impact as in NSW, the law does not apply retrospectively.  

What should you do if you have a discretionary trust with property?

If you have a discretionary trust that holds property, or is intended to hold property then you need to assess the importance and likelihood of having beneficiaries who are foreign persons, or could potentially be foreign persons. This includes assessing your current trust deed, evaluating the goals and purpose of the trust, and reviewing the financial impact of having, or potentially having, foreign beneficiaries.

This may result in a change to your trust deed in order to intentionally exclude any foreign, or potentially foreign beneficiaries, or it may involve a change in your investment strategy. 

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...

Non-Residents Can No Longer Claim the CGT Main Residence Exemption

Matthew Marcarian   |   28 Jan 2020   |   2 min read

On December 5th 2019 the contentious law denying non-residents the Capital Gains Tax (CGT) main residence exemption was passed.

This means that the update we previously provided on this legislation is still in force. If you are no longer an Australian resident, or are permanently moving overseas, and you still own a property that was your main residence in Australia, then you need to know what this means.

Existing Non-Residents with Main Residence Property In Australia

Did you purchase your Australian main residence before 9 May 2017? If you did then you only have until 30 June 2020 to sell your property if you want to claim the CGT main residence exemption.

After this date non-residents will not be able to claim the exemption. Basically this means you will be assessed on the full capital gain.

On the other hand, if you plan to return to Australia in the future then you may still be able to claim the exemption. If this is the case then you can wait to sell your former main residence once you return to Australia. Once you are a tax resident again then you will be assessed as an Australian tax resident. This means the law will again allow you to claim whatever main residence concession you would ordinarily be entitled to. Given the rise in Australian property prices over the last decade, this change could see an Expat caught unaware, being exposed to capital gains tax of several hundred thousand dollars (if not more), depending on the situation.

For a more detailed look at what the law entails please refer to our “Update on CGT Main Residence Exemption for expats” post.

Seek Tax Advice

The change in law has the potential to significantly impact non-residents. While you can get a general overview from the information provided in our blog, it is important that your specific situation be assessed by a tax specialist. This is important because your individual situation will be dependant on many variables that can’t be adequately covered in a general blog. A personalised assessment will ensure that you understand your options and can make the best decision for your situation.

NEED ASSISTANCE FOR YOUR SITUATION?

Contact us today
Contact Us

"*" indicates required fields

Do you need tax services in our other regions?
By providing us your information you agree to our privacy policy

More articles like this

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations These complexities are magnified when dealing with...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the USA, you need to understand the tax implications of...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This Visa is a permanent residency Visa that offers a...

 

Understanding Section 962 of the IRC: An Essential Tool for U.S. Tax Residents with Foreign Investments


30th May 2024
John Marcarian

The United States tax code presents a labyrinth of rules and regulations, particularly for US residents with investments in foreign corporations...

 

Tax Implications Of 401(k) And IRA Plans For Australian Tax Residents


9th Apr 2024
Matthew Marcarian

Retirement savings, especially when managing finances across international borders, can be complex If you live in Australia, but hold plans in the...

 

Moving To Australia On A Global Talent Visa


2nd Nov 2023
Matthew Marcarian

Exceptionally talented individuals with the capacity to raise Australia’s standing in their field may be eligible for a Global Talent Visa This...