In our increasingly globalised world, more professionals are seeking to understand the advantages of dual citizenship. For expatriates, understanding the benefits and nuances of dual citizenship can open doors to new opportunities, enhancing their personal and professional lives.

This article explores the key benefits of being a dual citizen and considers specific examples of dual citizenship with Australia.

What Is Dual Citizenship?

Dual citizenship, also known as dual nationality, is a legal status that allows an individual to be a citizen of two countries simultaneously. This means that the person enjoys the rights and obligations of citizenship in both nations. The concept of dual citizenship can vary significantly between countries, with some nations fully embracing it and others having more restrictive policies.

Citizenship differs from residency in that citizenship refers to your legal status as belonging to a particular country, while residency refers to your status as a person living in a particular country.

How Does An Individual Become A Citizen?

The rules for citizenship differ from country to country, however they typically require some form of significant connection with the country you are applying to be a citizen of.

In some cases, being born in a country will automatically confer citizenship rights to you. This is the case in around 30 countries, including the US, Fiji, Jamaica, Argentina, Brazil, Canada, Costa Rica, Cuba, Mexico, Peru.

However, in many countries, including Australia, the UK, and Singapore, at least one parent must be either a citizen or permanent resident at the time of the child’s birth for citizenship to automatically apply to a child born in that country. For individuals born in the UAE they must be a member of a family of long-term Arab settlers in the UAE, or from an Emirati parent.

Citizen by descent may apply automatically or it may require an application to become a citizen of the parent’s country by an individual when they are born outside of that country.

In addition to citizenship by birth and descent, depending on the rules of the relevant country, individuals may apply for citizenship through adoption, naturalisation, migration, marriage, military service, or other special rules.

Key Benefits Of Dual Citizenship

The benefits of having dual citizenship typically relate to the ease of travel and ability to obtain support in the relevant countries.

The key benefits of being a dual citizen include:

1. Increased Mobility

Dual citizenship provides the freedom to travel and live in two countries. This can be particularly advantageous for either personal or professional reasons, allowing for more flexibility and fewer visa restrictions. For instance, you may live in one country with your family, while being required to travel frequently to another country for work requirements. Having citizenship in both countries means you can travel between the two countries without restriction or the need to meet onerous requirements.

2. Expanded Work Opportunities

Holding dual citizenship often opens up broader job markets. Since most countries require work visas for non-citizens to be eligible to work in the country, being a citizen removes these barriers to working in the relevant countries. For example, a dual citizen of Australia and the UK can work in both countries without needing work visas. Being a dual citizen of the UK and USA, likewise means that the individual can work in both the UK and the USA.

3. Access To Social Services

Citizens of multiple countries may benefit from social services and welfare programs in each country. This can include healthcare, education, and social security benefits. Having access to these benefits ensures that the individual is afforded protection or support during unexpected crises, without having to travel back to a home country.

4. Educational Opportunities

Dual citizens often have access to educational institutions and scholarships in both countries, which may not otherwise be available. This can provide a wider range of academic options and potential for educational advancement.

5. Property Ownership

Some countries have restrictions on foreign property ownership. Dual citizenship can circumvent these restrictions, allowing individuals to invest and own property in both nations.

6. Cultural And Family Ties

For those with family roots or cultural connections in another country, dual citizenship can strengthen ties and facilitate easier travel to visit relatives or engage with cultural heritage.

Disadvantages Of Dual Citizenship

1. Complex Taxation

If having dual citizenship means you are either residing in dual countries or receiving income from dual countries, this will come with taxation obligations in multiple countries. Managing taxes in two countries can be complex and requires careful planning to minimise taxation concerns.

Some countries, such as the USA, tax citizens regardless of where they live. This means that anyone with dual citizenship that includes US citizenship, will face additional taxation complexities when residing outside of the US.

2. Legal Obligations

Dual citizens must adhere not just to the laws, but also the obligations of both countries. This can include significant obligations such as military service requirements or other legal duties, which might vary between the two nations.

3. Political And Diplomatic Issues

Depending on how similar or dissimilar the countries are, navigating political or diplomatic issues can be challenging when holding dual citizenship. Conflicting laws, policies or cultural expectations may arise, requiring careful management.

Due to such issues dual citizens may also face restrictions in some countries for eligibility for certain positions such as political representatives. If such positions are in your career path you may be required to forgo citizenship in the second country.

4. Potential For Conflicting Loyalties

In times of political tension or conflict, dual citizens may find themselves in situations where their loyalties are questioned or tested, particularly if their role, position or advocacy stance requires specific country or cultural loyalties to be paramount.

Specific Dual Citizenship Scenarios For Australians

In most countries you may be a dual citizen; UK, USA, Australia, Canada, New Zealand, amongst them.

Conversely there are only a few countries that do not support dual citizenship. This means you automatically lose any other citizenship upon acquisition of citizenship of another country. The countries that do not currently support dual citizenship include Congo, Cuba, Ethiopia, India, Indonesia, Iran, Japan, Kuwait, Djibouti, Kazakhstan, Monaco, Singapore, Oman, Qatar, Saudi Arabia, Nepal, Mozambique and Zimbabwe.

a) Australia And The UK

Australians and Brits share a long history of cultural and economic ties. This means dual citizenship between Australia and the UK offers significant benefits, including the ability to live and work freely across the UK and Australia. The common legal frameworks and mutual agreements also facilitate easier movement and integration.

b) Australia And The US

Dual citizenship with the US offers extensive opportunities, particularly in business and technology sectors. Despite the common language between Australia and the US there are sometimes significant regional differences in speech, cultural expectations, and legal systems. Citizenship in the US also comes with the added complexity of US taxation laws, which require dual citizens to file US tax returns regardless of where the individual resides.

c) Australia And Singapore

Singaporean law traditionally does not recognize dual citizenship. This requires individuals to choose one nationality only. There are compelling reasons to become a Singapore citizen if Singapore is your home base, however this must be weighed up with the disadvantages or restrictions of the single citizenship if you have your home base in Australia, are travelling extensively or otherwise residing in Australia.

d) Australia And The UAE

The UAE’s policies on dual citizenship are limited. Other than the flexibility these recent changes allow for certain expatriates, generally, the UAE requires individuals to choose one citizenship. In 2021 dual citizenship was opened in select situations, allowing foreign investors, professionals, special talents and their families to obtain citizenship under specific conditions, if nominated by government or royal courts. Australian citizens can benefit from the UAE’s economic opportunities if they are able to secure dual status.

e) Others

Other countries where Australians might consider dual citizenship include Canada, New Zealand, Asian, and European Union nations. Each has its own set of rules and benefits, often related to ease of travel, work opportunities, and access to social services.

Tax Considerations For Dual Citizens

For the most part it is tax residency, not citizenship, that determines where you pay income tax and which country has tax jurisdiction. Tax residency rules are different between countries, however they typically require you to be physically living in the country, and/or to be present in the country for a specific number of days. This means you may be a tax resident in a country that you are not a citizen of.

There are, however, some situations where citizenship will also impact your tax obligations. This may include: 

• Certain situations where your citizenship requires you to lodge a tax return in that country, regardless of your residency.
• The impact of citizenship when assessing tax residency.

For example, anyone with USA citizenship is required to file a US tax return, regardless of where they are living and whether they have any US source income. This means a US citizen who is living outside the USA will need to lodge at least two tax returns; a tax return in the country where they are a tax resident, as well as in the US. 

When it comes to determining tax residency, citizenship may be a factor in determining which country has taxing rights, particularly when it comes to a tie breaker situation. If you are living between two different countries and you have citizenship in both countries, this may make a tie breaker situation more difficult to determine.  

Since tax requirements can vary significantly between countries and assessing tax residency can be quite complicated, it is important to obtain up to date advice on your specific situation from a suitable international and local tax specialist. 

Summary

Dual citizenship offers a range of benefits, including increased mobility, expanded work opportunities, and access to social services. While there are some disadvantages, such as potentially complex taxation and legal obligations, the advantages often outweigh the drawbacks for many individuals. Specific scenarios, like those involving Australia and various other countries, highlight the diverse benefits and challenges associated with dual citizenship.

FAQs

i) What are the benefits of dual citizenship in Australia?

Dual citizenship in Australia typically provides enhanced travel flexibility, broader work and business opportunities, access to social services in both countries, and the ability to retain cultural and familial connections.

ii) Do you have to pay taxes in both countries with dual citizenship in Australia?

Citizenship does not typically mean the individual is automatically taxed on their income. The exceptions to this are some countries that tax non-resident citizens for a short time after they move abroad, and the USA, the Philippines, and Eritrea, which have various rules taxing all citizens, regardless of where they live. The US is the only country in the world that applies the same tax regime to all its citizens, regardless of their country of residence.

This means that for most Dual citizens, tax obligations will be dependent on their country of residence and the source of the individual’s income. Where an individual is liable for tax in multiple countries, international tax treaties and unilateral tax offsets help mitigate the risk of double taxation. It’s essential to consult with a tax professional to navigate these complexities.

iii) What are the pros and cons of dual citizenship?

Pros include increased mobility, access to a wider range of government support, services and opportunities, and the ability to maintain connections with multiple cultures.

Cons may involve complex legal and tax obligations, potential conflicts of loyalty, and navigating differing laws between countries. Certain countries do not allow dual citizenship or only allow it under restricted circumstances.

iv) Which countries does Australia allow dual citizenship with?

Australia permits dual citizenship with any country that also allows dual citizenship, including the UK, US, Canada, and New Zealand, among others. In fact you can have more than dual citizenship in Australia, provided it is legal with all relevant parties.

Dual citizens may lose their Australian citizenship only in extreme situations, such as if you fight against Australia in a war, fight for a terrorist organisation, or are sentenced to at least 6 years in prison for certain crimes.

If you wish to become a citizen of a country that does not allow dual citizenship then you are required to renounce your Australian citizenship. You are unable to renounce your Australian citizenship if you do not have another citizenship lined up.

v) Can you be a citizen in two countries?

Yes, many countries, including Australia, allow dual citizenship, though the specific rules and acceptance can vary from one country to another.

Some countries, including Australia, allow you to be a citizen in more than two countries.

vi) How many citizenships can you have?

The number of citizenships a person can hold varies by country. Some nations allow multiple citizenships, while others have strict limits. In Australia there is no specified limit to the number of citizenships you can hold simultaneously. It’s crucial to understand the laws of each country involved.

It is also important to consider specific situations in which you may be required to only hold one citizenship. For example, in Australia you cannot be a member of Parliament if you hold dual citizenship as you are expected to renounce any other citizenship to focus on your Australian connection and representation.

vii) How do I get a second citizenship?

Obtaining a second citizenship typically involves legal processes such as naturalisation, citizenship by descent, marriage or meeting special investment or talent programs. The requirements vary significantly by country and may include family connections, residency, language proficiency, professional skills and/or financial investments.

viii) Does the US allow dual citizenship?

Yes, the US allows dual citizenship. Dual citizens must adhere to the laws and obligations of both countries, and the US tax system requires them to file tax returns annually, even if residing abroad.

ix) What countries allow dual citizenship?

Most countries allow dual citizenship. Many countries allow fairly unrestricted dual (or multiple) citizenship, including Australia, Canada, the UK, France, and Germany. In many cases the only restrictions have to do with limiting a dual citizen’s ability to be a member of Parliament. However, some countries, such as the UAE, have significant restrictions, while others, such as Singapore, do not recognize dual citizenship at all. It is important to check specific country regulations.

x) How does dual citizenship work?

Dual citizenship allows an individual to be a citizen of two (or more) countries at the same time. This status provides access to the rights and privileges of both countries but also requires adherence to the laws and obligations of each.

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 residency is complicated.

One of the difficulties in determining tax residency is that the laws applied to residency differ in each country. This means you may simultaneously meet the residency requirements in multiple countries within a given tax period. Alternatively, if you live a particularly transitory life, it may be difficult to identify primary residency.

Note that tax residency is different to citizenship or visa residency. This article discusses what you need to know about tax residency.

Why Residency Matters

As each country has their own rules for taxation, it is important to know which country has taxation rights over you as an individual resident. This is why residency is such a foundational concept.

Being a tax resident of multiple countries has potential implications on how your worldwide income is taxed. Generally, your country of residence has primary taxing rights over your income. It also raises double taxation concerns, with competing tax jurisdictions aiming to potentially tax the same income. As countries sometimes tax the same income, a dual tax resident could face significant tax consequences. For this reason, tax treaties between countries exist to help resolve conflicting taxation rights, including determining tax residency.

As this can be a particularly complex issue it is important to ensure that you consult with qualified tax professionals who are familiar with the tax laws of each country. The following information provides a general overview of the potential tax consequences of being a tax resident in multiple countries.

Taxation Rights

Once residency is determined, your country of residence will have the primary taxing rights. Income that is taxable from other sources will be taxed as income earned by a non-resident.

Double Tax Agreements (DTAs) between countries cover a range of factors to help mitigate double taxation issues, including who has primary taxing rights of specific types of income and can include limitations on the taxing rights of the country where the taxpayer is a non-resident.

For countries that tax on a territorial basis, the country of residence might only legislate taxation over income derived from the country of residence, or foreign income that is remitted into the country.

However, countries that tax on a worldwide basis assess all income earned by the individual, regardless of the source of income.

In either case, DTAs, and other tax relief provisions help alleviate the impact of being taxed in multiple countries. This typically means that when you pay foreign tax on foreign sourced income, your country of residence will count this tax towards the tax they assess on this income.

Tax Residency

As each country has its own rules for determining residency, your first step is working out whether you are a resident in each country that you are connected to. To give an example of how this works we consider the tax residency rules of Australia, Singapore, the USA and the UK.

Tax Residency In Australia

How Residency Is Determined

There are a number of tests used to determine residency in Australia, which are essentially designed to determine whether Australia is your home. This means that you are an Australian tax resident if you reside in Australia, or intend to reside in Australia for a significant period of time, and you have a permanent home there.

If you are an Australian permanent resident who is living and working overseas on a temporary basis, you may still be considered a tax resident of  Australia. If you have not established a permanent place of abode outside Australia, then your Australian tax residency will continue. A permanent place of abode is a place where you live and consider your home. This means you may still be considered an Australian tax resident even if you are not physically present in Australia for a given tax year. Individuals who are not Australian citizens may also remain Australian tax residents if they travel overseas for short periods of time, while maintaining their home in Australia.

In an income tax year where you become or cease being a resident you will be considered a part-year tax resident.

Income Taxes as a Resident

Australian tax residents are assessed on worldwide income. This includes all forms of income including capital gains.

Tax Residency In Singapore

How Residency Is Determined

In Singapore you are a tax resident when you are physically present in Singapore for at least 183 days in a calendar year.

Income Taxes as a Resident

Singapore tax residents are typically only required to pay tax on Singapore sourced income, or foreign income that is brought into Singapore. Singapore does not tax capital gains.

Tax Residency In The USA

How Residency Is Determined

In the USA, all US citizens and dual citizens are required to lodge a tax return to declare their worldwide income, regardless of their tax residency.

Non-citizens are tax residents if they hold a Green Card that legally allows permanent residency.

Tax residency is determined by a physical presence test. This test requires physical presence in the USA for at least 31 days in the relevant calendar year, after being present for a specific number of days totalling at least 183 days over the preceding two years.

Income Taxes as a Resident

Both citizens and tax residents of the USA are taxed on their worldwide income. Citizens are taxed on worldwide income even if they no longer reside in the US and do not meet the residency test. There are some foreign earning exclusions for individuals who meet specific requirements.

Tax Residency In The UK

How Residency Is Determined

In the UK you are a tax resident under the Statutory Residence Test. This test considers a range of factors including the number of days you are present in the UK, your connections to the country, and other relevant criteria.

The UK has an automatic overseas test. This means if you spend less than 16 days in the UK (or less than 46 days if you have not been a UK resident for the previous 3 tax years), or you are working abroad full-time and spend less than 91 days in the UK, then you are a non-resident.

There are three automatic resident tests:

1. You are present in the UK for at least 183 days.
2. Your only home is in the UK for at least 91 days in a row, and you visited or stayed for at least 30 days in the tax year.
3.  You worked full time in the UK for any period of 365 days and at least one of those days falls in the tax year you’re checking.

Where you do not meet either automatic test the “sufficient ties test” will determine if you are a resident. This test considers your UK connections, including family, accommodation, work, and physical presence, over a number of years.

Income Taxes as a Resident

UK tax residents are taxed on their worldwide income. However, non-UK sourced income may be exempt from UK taxation in certain circumstances.

Dual Residency

As can be seen from the various residency tests of just these four countries, there is variety in how residency is determined and the tax implications this could lead to. Given the variation in tests, you could easily be considered a resident of multiple countries over a single tax year.

When an individual is a tax resident in multiple countries the next step is to determine if there are tie breaker rules contained in a DTA. These rules provide guidance on determining an individual’s primary place of residence.

Residency Tie Breaker Rules

Most countries adopt the Mutual Agreement Procedure, specifically Article 4 of the OECD Model Tax Convention, to resolve dual residence situations. Accordingly, there is a fairly standard set of tie breaker rules across various DTAs. These tiebreaker rules are outlined as follows:

1. Permanent Home – Where you have a permanent home in one country but not the other, you will be a resident of the country where your home is located.
2. Centre of Vital Interests – The country in which you have closer personal and economic connections will be your country of residence. This may include family and personal ties, social and economic activities such as work and club memberships, and where you keep your main assets.
3. Habitual Above – Where neither of the previous tests assist, the country where you regularly abide or reside in will be your country of residence.
4. Nationality – Where none of the previous tests assist you will be a resident of the country in which you are a national.

In most cases an individual will be able to determine their residence using one of these tie breaker rules.

When it comes to Australia, Singapore, the USA and the UK, most of these countries adopt comprehensive DTAs between one another, in which Article 4 of the OECD Model Tax Convention is essentially utilised. This includes the DTAs between the following countries:

• Australia and Singapore
• Australia and the USA
• Australia and the UK
• Singapore and the UK       
• The UK and the USA

Notably, there is no DTA between Singapore and the USA. This means that dual residents of Singapore and the USA will need to rely on the taxation rules and access to tax relief options in each country in order to avoid double taxation.

Dual Tax Residents

In very rare cases an individual may have sufficient ties to multiple countries in which they are either not a citizen, or in which they hold dual citizenship, leading to a situation whereby they may not be able to effectively use tie breaker residency rules to accurately determine their country of residence. This creates a complex situation wherein no country has clear priority for determining tax residency and a decision regarding residency is subjective.

This situation could theoretically lead to an individual being subject to taxes being assessed on their worldwide income in multiple tax jurisdictions. The Mutual Agreement Procedure contained in some DTAs enables a taxpayer to request the competent authority in one country to engage with their counterparts in another country to resolve double taxation.

Managing Dual Tax Residency

In summary, determining residency is an important factor because it determines which tax jurisdiction has primary taxation rights.

DTAs exist to help mitigate the risk of double taxation by providing tie breaker rules in determining residency and placing restrictions or limitations on taxation rights over certain types of income, as well as providing tax relief through the recognition of foreign tax credits.

Where no DTA exists, or where an individual’s residency cannot be determined, other provisions are required to mitigate the impact of double taxation. 

Tax residency can be a very complex area and it is recommended you seek specialist international tax advice for your particular situation. 

Many private clients heading to abroad may already have a trust in their home country or a 3^rd Country.

Historically trusts have been attractive vehicles because they offer people the potential of protecting their wealth from external attacks, but it can also help lower the burden of taxation on a family group.

For those who do not have a trust as yet but who are considering establishing a trust, a great deal of thought and planning needs to go into it.

We make sure our clients understand the four golden rules of setting up a trust:

1. Ensure the bank or financial advisory firm managing your money does not own the trustee company that will be the trustee of your trust. This prevents a conflict of interest.
2. Understand how you can unwind the trust arrangement.
3. Recognise that long-term solutions require tax contingency planning before you sign on the dotted line. As your residency can change, so can your tax position.
4. Make sure you understand how you can access trust income and/or capital to pay taxes that may become due on the gains of the trust.

Before delving into some further issues associated with trust management, I will cover just a few central points about how trusts work for those who may not have worked with trusts.

How Trusts Work

A trust is an arrangement whereby a trustee has a fiduciary obligation to deal with property over which they have control for the benefit of one or more beneficiaries who are able to enforce such an obligation.

Beneficiaries may be individuals, corporations, or indeed other trusts (such as a charitable trust).

All trusts have a trust deed. 

At a high level, this is a document that outlines the rules that the trustee must follow in relation to the property they control.

Common objectives for utilising trusts are to protect assets and ensure that beneficiaries are deable to benefit financially from the trust in a manner that suits the family group and in accordance with the wishes of the settlor of the trust.

The discretionary trust is the most common trust used by business owners and investors. 

They are generally set up to hold family and/or business assets for the benefit of providing asset protection and tax-planning benefits for family members.

The Trust Deed: Its Importance

The trust deed is the most important document of a trust as it establishes and defines terms and conditions upon which the trust must be operated and managed.

More specifically, the trust deed sets out the beneficiaries of the trust, as well as the end date of the trust and the conditions upon which the trustee holds the property for the beneficiaries.

Actions undertaken outside the provisions set out in the trust deed can be deemed by a court of appropriate jurisdiction to be null and void. 

The implications of an action being null, and void can reach further than the act simply being treated as if it did not occur.

An invalid act of a trustee can result in unwanted taxation implications for the trustee, and a breach of the trustee’s duties can lead to personal liability for damages or alternatively unwanted consequences for beneficiaries.

The best approach in dealing with trust management and planning is to treat every trust deed as unique and therefore refer to the provisions in the deed prior to taking any action.

How Are Trusts Taxed?

While a trust is regarded as a taxpayer in some countries (e.g., Australia), in other countries this is not the case. 

In some countries, the beneficiary is taxed on gains accruing in the trust; in others, it is the original settlor who suffers the tax burden.

Changing Residency With a Trust

One aspect of trust management and planning to get right when you have a trust is to ensure that assets are not unwittingly ‘exported’ into certain tax jurisdictions when you change your tax residency status.

If you want to set up a trust, then before you move to a particular country it is important to understand how a trust determines its residency status under the laws of that country.

In Australia, a trust is regarded as a tax resident of Australia if one of the trustees is a tax resident of Australia. 

However, in other jurisdictions, the concept of central management and control of the trust is used to determine the residency status of the trust.

It is important to work through all the residency aspects likely to impact your trust when you move around with an existing trust.

The key point to note is that it can be a useful exercise to transfer assets from an individual to a trust prior to changing residency and heading overseas. 

However, like most things, this strategy has its pros and cons.

Trusts Heading Overseas: Residency Determination

In the Australian context, where an individual trustee of an Australian trust changes residence, then, often, the trust will also change its residence.

In these cases, you need to make sure that when the trustee changes its residence, the tax consequences are identified.

Before you depart you need to consider whether it is beneficial to you and your family for the trust to stay a resident in your home country where it was established or if it makes sense for the trust to move with you to your new country.

If the immediate and ongoing tax consequences of keeping the trust in its particular form are not advantageous to you then we can discuss alternative strategies with you.

Such strategies may include replacing the trustee of the trust with a company that is domiciled in the jurisdiction to which you are moving and make the trust subject to the laws of that jurisdiction. 

In other situations, it may be more appropriate for a replacement trustee to be appointed in a third jurisdiction and have the trust reside in a 3^rd country.

The purpose of the discussion here is to highlight the fact that planning for a departing trust is very important.

Our approach to this area is to recognise that trusts are long-term family vehicles, and just because a client may move to a new country, it does not mean that they should have to wind up their trust and forgo all the benefits that it has provided them.

Given our international tax and trust knowledge, we will be able to help our client make important decisions such as this.

Trusts Arriving Abroad

Moving around the world while being in control of trusts is complicated and should not be done lightly.

Arriving in another country with a trust and no plan is a recipe for disaster.

Where a new individual client has changed their residence and they are the trustee of a foreign trust, it is clear that this trust is also likely to become a resident of the arrival country.

In other cases, even if the client ceases being the trustee before they change their residence specific jurisdictions tax income on ‘pre-migration transfer of assets’ to foreign trusts. 

It is also likely that the trust deed may need a review as some of its definitions and terms may have no meaning in the new country the trust is being exported to.

Even if the trust is residing in a 3^rd country, a review of the trust deed from the perspective of the laws of the new country is warranted.

Other concepts, which might be recognised abroad, such as ‘community title’, might be used in the trust deed, but these concepts might have no application in the arrival country.

The arriving trust may still have reporting obligations in the country in which it was established. 

It may also be the case that there are foreign protectors or other people who have an ongoing role in the management of the trust.

You should consider how they are affected in terms of reporting based on the country you are moving to.

This is particularly important if the arriving trust has a business or significant assets.

Often, the cost base of trust assets must be understood on the day the trust first enters a new country.

Usually this will be the market value of the assets on the day of the trust’s arrival, but not always.

While your move abroad is an exciting time for most people and full of challenges and new opportunities, considering the tax issues of how your trust would be affected by your move is essential.

Similar to the need for you to plan your departing tax issues on the way out of your home country there is a major need to plan what your tax profile will be when you arrive in your new country. 

Sometimes, however, it is easy to assume that arriving in another country has no tax consequences and that can make things difficult.

A recent client example springs to mind.

David Smith (not his real name), an expat relocating from Singapore to the US (upon his retirement), decided to access his Australian superannuation fund.

What a mistake that was.

In Australia, pension payments for those over 60 years of age are tax free.

This is, however, not the case in the US.

David had worked out that he and his wife could afford to live in the US the way they envisaged, based on paying no US federal or state tax.

They were quite shocked when we told them that the US would tax David’s Australian-sourced pension stream.

It was not a great conversation.

Key Items To Consider

Set out below are some of the key things you need to consider ahead of your arrival:

• Complying with the requirements of more than one tax jurisdiction (are tax credits available for any foreign tax paid?)

• Accounting for a new tax and legal system (are you moving to a country that has a civil law regime or a common law regime?)

• Understanding the tax issues associated with moving to the arrival country (does the country you are moving to have a general anti avoidance regime that targets tax planning?)

• Considering how foreign assets are accounted for (is foreign income exempt or is it non-taxable there is a big difference between the two)

• Locating other professional service providers to work with (do not assume your foreign tax advisor has international tax experience as this is often not the case)

How Will Your Assets Be Treated?

In some jurisdictions the moment you arrive in the country you are treated as having bought all your foreign assets at the market value of the date you became a tax resident.

This means that a ‘cost base’ has been established for your foreign assets.

Then when you sell those assets in future – a gain or loss can be worked out in relation to those assets. Australia is one such jurisdiction that treats your assets this way.

Other jurisdictions such as the US – do not give you this ‘step up’ in value.

This is a serious problem as you can end up paying a lot of tax to the Internal Revenue Service – based on the original cost of your assets which may have been many years ago.

This is grossly unfair, as most of any gain will have happened while you were a US non-resident – particularly if you sell the asset shortly after you arrive in the US (you may want to sell foreign assets to buy a house in the US for example!)

Your arrival must be carefully planned as the ramifications of an ill-prepared arrival can be costly. 

If you undertake a proper tax planning exercise before you leave, then the thrill of arriving in your new country is not shaken up by the bad news of unintended tax issues. 

Most expats moving overseas will have some form of pension or superannuation plan.

In my experience changing one’s tax residence does not of itself impact how that pension plan is treated in most jurisdictions. However, some particular complex jurisdictions, like the United States of America, have egregious tax laws that often cause unintended consequences for arriving expatriates.

A US Example

One of my clients moving to the US was adversely affected by the international tax rules of the US with respect to foreign pensions. My client, Peter, had built up a sizeable superannuation (pension fund) balance in Australia. It was the product of 30 years working in the film and entertainment business. Over the previous ten years, Peter had been a senior executive working for a chain of movie theatres in Singapore. As such, international tax had not crossed his mind much. Peter and his wife, Helen, had grandchildren living in Santa Monica.  They were keen to retire and enjoy the good life in a new location. Peter had calculated that he would be able to fund his future Santa Monica lifestyle through a combination of personal savings and by accessing his Australian pension. Everything was set.

Pension payments in Australia were tax free, so Peter thought that Uncle Sam would also not tax them. Unfortunately, that was not the case. In the US, such income streams are taxable if you are a US tax resident. We stopped Peter sending his pension to the US in the nick of time. We collapsed Peter’s Australian pension and enabled Peter to take his capital to the US and invest it in the US tax efficiently. Disaster averted.

This case study highlights why, in order to enjoy your pension, you must consider the impact of foreign tax laws when you are changing jurisdiction.

Countries have different rules

In delivering service to clients, we consider the impact of any overseas move on their home country pension. The underlying motivation for establishing a pension fund is typically based on a desire to save funds for retirement so that there is no reliance on government pensions. 

Thus, it means that having the maximum amount available in the pension plan that is not eroded by taxation, is a primary objective. It is folly to think that a tax-advantaged regime in one country with respect to pension funds will axiomatically apply in another country. That is rarely the case.

Moving your Pension Plan

We have extensive knowledge of the taxation issues relevant to pensions and superannuation. 

This enables us to assist clients with compliance and planning in relation to this important area of their lives. When expats leave their home country to move abroad, there are many aspects of tax that need to be considered prior to departure and pension fund planning is often a priority.

For those expats that have their pension fund in the UK, it may actually be worthwhile moving their pension with them. There are particular rules to address this. A Qualifying Recognised Overseas Pension Scheme (QROPS) is an overseas pension scheme that meets certain requirements set by Her Majesty’s Revenue and Customs (HMRC). A QROPS can receive transfers of UK pension benefits without incurring an unauthorised payment and scheme sanction charge.

In Australia, for example, pension funds are only considered to be complying under the governing legislation if they remain within the Australian tax jurisdiction. This means, that the trustee must remain an Australian resident. Therefore, in the case of an expat, relocation can inadvertently trigger a tax liability. Steps need to be taken prior to departure.

Complying in multiple countries

Similarly, many expats arrive in a new country with their home country pension fund in place.  Therefore, they must adhere to the rules in their home country and their arrival country in relation to this pension fund. One of the specialist skills we possess is in advising clients how foreign pension plans will be treated as they move around the globe. We can assist clients on QROPS and other similar regimes.

Moving abroad is an exciting time for most people. If you undertake proper planning with respect to your pension plan before you leave, then the thrill of arriving in your new country is not shaken up by the bad news that you have created unintended tax issues by leaving your home country in an unplanned way.

If you’re an Australian expat who came home to ride out the pandemic then you may have found yourself in an unusual situation. Thanks to the advantages of technology, moving back to Australia doesn’t necessarily mean changing employment.

Living in Australia while continuing to work for an overseas employer could mean you face a range of complex tax issues. For this reason it is important to seek professional advice for your specific situation so that you can make appropriate plans and preparations.

Below is a brief overview of some of the considerations you will need to cover.

Tax Residency

The first issue is determining your tax residency.

While the standard residency tests still exist, the ATO has advised that individuals who returned to Australia for the pandemic may remain non-residents (continuing to be residents of their overseas home), provided they intend to return to the country they now call home as soon as possible. This means that if you are still actively planning to return to your overseas home as soon as possible you have some reassurance that you remain a non-resident in Australia.

However, your residency status still depends on your activities in Australian as well as your ties to your overseas home. The longer you stay in Australia, the more you settle down, the more difficult it gets to determine residency. Unfortunately the ATO’s guidelines are unclear about when exactly you would be expected to return to your overseas home and how you can clearly show that this is your intention. If your stay in Australia means you no longer qualify as a tax resident overseas then this may also complicate matters.

Since this is a particularly complicated and nuanced issue it is important to get specific tax advice for your situation as soon as possible. Note that your residency status can change if your actions and intentions change as well.

Non-Residents Working for an Overseas Employer

What happens if you have an overseas employer and you continue to be a non-resident while living in Australia? In simple terms this means you will only be required to lodge an Australian tax return for any Australian sourced income.

If your primary source of income is from your overseas employer, it may result in the income being exempt. However, any double tax treaty will require consultation to determine the ultimate taxing rights. Remaining a non-resident is also likely to keep things simpler as your tax issues will continue as if you were still living back in the country in which you are employed, and to which you intend to return.

Residents Working for an Overseas Employer

On the other hand, living in Australia for the duration of the pandemic could mean that you become an Australian tax resident. In this situation you will be required to include all of your income from worldwide sources in your Australian tax return.

This means that despite your primary source of income being derived from an overseas source, you will have to consider Australian taxes on top of the foreign taxes paid. Note that double taxation agreements typically ensure that you don’t pay more than the amount of tax required from the jurisdiction with the higher taxation rate.

Comparison of Tax Impact as a Resident/Non-Resident

For a basic comparison let’s assume the following:

You earn
– AUD $200,000 from your foreign employer
– AUD $5,000 from Australian interest income

As an Australian tax resident you would be required to pay Australian income taxes and medicare levy of $67,017.

To avoid double taxation you would typically get a tax credit for any foreign income tax paid on the foreign employment income. For example, if you paid foreign taxes of $40,000 on your foreign employment income, then you would only have to pay the difference of $27,017 in your Australian return.

Since Australia’s tax rates are amongst the highest in the world it is likely that you would have to pay some Australian tax on top of your foreign tax paid.

If the country you work for has higher overall tax rates than Australia, then you would effectively only have to pay taxes on the Australian sourced interest income. In this scenario this means you would end up paying $2,350 for the Australian interest income (on top of the foreign taxes paid).

On the other hand, if you remain a non-resident for Australian tax purposes then you would only be required to pay income taxes on the employment income at their source country (your country of residence). Since interest income is typically covered by double taxation agreements it is likely you would only have to pay $500 in Australian taxes on the Australian sourced income. (Though you may also have to pay any additional foreign taxes on this income in the country of residence).

Ultimately the exact amount of tax you would pay depends on where you are employed and where you are a resident. However, it is usually advantageous to be classed as a resident in the country from where you are earning your primary income.

Other Implications of Changing Residency

If you continue to remain a non-resident for Australian tax purposes there are no additional tax implications to consider. However, if you do become an Australian resident again then there are a few issues to consider and plan for. This includes capital gains and investment income.

             Capital Gains Considerations

One of the potential disadvantages of changing residency is capital gains. If you resume Australian residency then you will be required to value any foreign assets for capital gains purposes at the date you become a resident. These assets then become subject to Capital Gains Tax either when you sell them, or if you move back overseas and become a non-resident again.

Since some countries don’t have a capital gains tax, or they calculate capital gains taxes differently – returning to Australia as a resident, whether on a permanent basis or for a number of years, may have a significant tax consequence that you hadn’t planned for. 

             Investment Income

Investment income such as rent, interest and dividends, can be taxed very differently in different countries. Your residency status can also change how you are taxed on such income. Any double tax agreement between Australia and the country from which the investment income is derived, will further impact the overall way in which you pay taxes on such income.

This may be as simple as needing to advise banks, property managers, and investors that your country of residence has changed. This way they can withhold the appropriate amount of taxes required to cover the foreign tax obligations. Or it may require more complex considerations such as the requirements of being a Director, laws around owning controlling interests in a foreign company, and even residency status of a foreign company that you manage. 

Understanding your Tax Situation

The pandemic has created a situation where many Australians are either returning home as unintended residents, or are left uncertain as to their tax residency status. Since this can have a dramatic impact on your finances it is important to get professional, expert advice, sooner rather than later. 

The longer you continue to stay in Australia, the more important it is to assess your tax residency status and understand the potential tax implications of this.

Our principal, Matthew Marcarian, was recently published in Australia’s leading tax journal, Taxation in Australia (run by the Tax Institute), with his article titled “Residency in a global pandemic: advising the returning Australian“.

A brief overview of the tax residency issues that have arisen with COVID can be read here.

In his article Matthew breaks down the intricacies of the rules regarding tax residency for expats who have returned to Australia during this global pandemic.

If you are an expat who has returned to Australia due to the pandemic you may have to seek advice on your tax position.

Matthew has over 20 years of international tax experience advising clients on cross border tax matters. His depth of knowledge in this area will give you the clarity you need to understand your tax obligations as a result of returning to Australia.

Contact us today to discuss your residency status.

Our Principal, Mathew Marcarian, together with our Managing Director in Singapore, Boon Tan, were recently featured in the STEP Journal* (a publication produced by STEP for its members) discussing the local taxation laws that apply to Trust beneficiaries relocating to Australia.

STEP is an organisation that focuses on improving the public understanding of the issues families face in relation to inheritance and succession planning.

Read the full article.

* Matthew Marcarian and Boon Tan, ‘The road to Oz’, STEP Journal (Vol27 Iss1), pp.41-43