December 12, 2008 - Phil Hodgen

Foreign corporations for estate tax protection – works, for now

I got an inquiry today from my website that I figured would be worth answering here, because it is a topic of general application. The question is whether using a foreign corporation works to protect against U.S. estate tax.

Foreign corporations to hold U.S. real estate

Nonresident investors frequently hold U.S. real estate using foreign corporation structures. (A “foreign corporation” for our purposes is a corporation formed in a country other than the United States.) There are two common variations of this theme:

  • Nonresident owns all the shares of stock of a foreign corporation. The foreign corporation owns the U.S. real estate.
  • Nonresident owns all of the shares of stock of a foreign corporation. The foreign corporation owns all of the shares of stock of a U.S. corporation. The U.S. corporation owns the U.S. real estate.

This is done primarily for estate tax protection.

Why it works

The United States will impose an estate tax (for our purposes let’s say it is 45% of the fair market value of the property) on U.S. real estate owned directly by a nonresident.? That is because estate tax is imposed only on a nonresident’s property that is “located” in the United States. And nothing screams “I am located in the United States” quite as much as real estate within the national boundaries of the USA. 🙂

The United States will NOT impose an estate tax on shares of stock of a foreign corporation which are owned by a nonresident deceased individual.

That is because a foreign corporation is treated as being “located” in the country under whose laws the corporation was formed. Thus, because the corporation is “located” outside the United States under the estate tax definitions, there is nothing to be taxed because if you look at what the nonresident individual actually owns, which is stock, not real estate.

“But . . . .”

“Well,” you say. “The foreign corporation owns U.S. real estate. Shouldn’t you look through the foreign corporation at the assets owned by the corporation?” And the answer is . . . no, we don’t do that.

Yes, we (meaning the U.S. tax authorities) could do that. And maybe they will some day. But at the moment it doesn’t work that way.

Summary of where we are now

For now the conventional wisdom is that indirect ownership of U.S. real estate by a nonresident — using the foreign corporation as described — will isolate the nonresident individual from U.S. estate taxation when he or she dies. Well, it won’t isolate that individual, because after death he/she doesn’t really care all that much, right?? It’s the heirs that care.

Storm clouds over the horizon–family limited partnership analogy

The Internal Revenue Service has been attacking family limited partnerships — as an estate tax planning device — for several years. I won’t go into the details of the technical and metaphysical arguments on this.

But many people feel that the same theories used by the IRS to attack family limited partnerships could be used to attack the foreign corporation ownership structures used by nonresidents to hold U.S. real estate.

Storm clouds over the horizon–personal use of corporate asset

There’s a second thing. Let’s say you are a U.S. resident and you own a business. The business buys a yacht as a corporate asset and you happily sail it up and down the coast and have fun on it. Will the Internal Revenue Service have a cow?? You bet. Individual use of corporate assets by shareholders and officers triggers all sorts of imputed income attacks by the government.

So now take a look at this holding structure used by nonresidents. They buy a house or a ski condominium or a beach house, and hold title in the name of a foreign corporation. Then they proceed to use the house. Personal use. And they are the shareholders of the foreign corporation.

I can see this as a potential reason to either disregard the foreign corporation or to cause the shareholders to have some kind of imputed income from the trust. U.S. source imputed income. Probably FDAP. On which 30% withholding should be imposed, ‘n other bad stuff.

Fashion-forward Canada

A few years ago the Canadian tax authorities changed the tax rules for Canadian resident taxpayers, essentially saying that if a Canadian had a personal use residence inside a corporation like this, there would be an imputed dividend to the shareholder based on the fair market rental value of the house. So imagine having taxable income and paying tax just for the privilege of living in your own house.

<understatement> Suddenly, corporate structures became much less appealing to Canadian residents. </understatement>

I take that as an early warning sign. The Canadians had an exit tax far before we in the United States acquired the entirely execrable, useless, and utterly counter-productive Section 877A. (Ah, but I am a fairminded man. I do not judge.)

So I think it reasonable to assume that at some point the Internal Revenue Service will wake up and announce that they have an entirely original idea and while it won’t be an exact copy of the Canadian method, at least it will rhyme with what the Canadians suffer under.

Bottom line

Foreign corporations probably work for estate tax protection. For now. Might not later. Your mileage may vary, all bets are off, this is not legal advice to you, and you’d be a damned fool to believe anything you read on the internets unless of course it is posted on Slashdot.

(I have cross-posted this to as well. And thanks for the question, Brian.)

Foreign Business Activities in the USA Nonresidents with US Activities