US Estate Tax May be Payable by Canadians

Nov 3, 2014

Canada-U.S. Tax Treaty Article XXIX B Taxes Imposed by Reason of Death A U.S. estate tax return must be filed if a deceased Canadian resident who is not an American citizen-owned U.S.-situated asset exceeding $60,000 fair market value at death.  However, if the deceased made substantial lifetime gifts of U.S. property, a U.S. estate tax return may be required even if the U.S. assets do not exceed $60,000 at the time of death. If your total worldwide estate in 2013 is less than $5.25 million US at the time of death (see below for what is included), you will likely not have to pay any US estate tax.  If the estate is passing to a spouse, a marital credit may also be available to reduce the tax payable.

For 2010 to 2012, with the passing of the US bill H.R.4853 — Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (pdf), the highest tax rate on estates was 35%, and no U.S. estate tax was payable in 2010 to 2012 if the total worldwide estate was $5 million or less, indexed for inflation after 2010.

With the passing of the American Taxpayer Relief Act of 2012 in January 2013, the estate tax on the taxable portion of the estate, if any, is 40%.  The exemption of $5 million for 2011 was made permanent and is indexed for inflation, resulting in an exemption of $5.25 million in 2013.  See S. 2010 of the Internal Revenue Code.  However, the exemption is prorated for Canadians, based on the value of their US assets compared to worldwide assets.

The total worldwide estate includes:

Are exchange-traded funds (ETFs) and American Depositary Receipts (ADRs) subject to US estate tax?

The U.S. Internal Revenue Code s. 2104 states that “shares of stock owned and held by a nonresident not a citizen of the United States shall be deemed property within the United States only if issued by a domestic corporation”.

IRS ruling letter 200243031 (pdf) indicates that American Depositary Receipts (ADRs) would not be subject to US estate tax when held by a non-resident of the US.

It appears that US ETFs trading on a US exchange would be considered US-situated assets, but Canadian ETFs holding US stocks would not be considered US-situated assets.  At this point, we’re not sure if this is only applicable to US ETFs holding US stocks, or would also apply to US ETFs holding foreign stocks.

Are US stocks in RRSPs subject to US estate tax?

When US stocks are held in an RRSP, RRIF, or other non-registered accounts which are considered a trust, they will be considered US-situated assets, and subject to US estate tax.  However, a Canadian mutual fund which holds US stocks would likely not be considered US-situated assets.  See the following excerpt from IRS Chief Counsel memorandum 201003013 (pdf) released January 22, 2010:

If the Canadian mutual funds held by Decedent’s RRSP are classified as corporations for U.S. tax purposes, the shares of the mutual funds would not constitute U.S. situs property under § 2104(a) and would not be includible in Decedent’s U.S. gross estate.  (The underlying assets also would be excluded from Decedent’s U.S. gross estate.)  You indicated that the RRSP held shares in several mutual funds that are organized as  trusts. However, a mutual fund may have been formed as a “trust” under Canadian law, but be properly classified as a corporation under U.S. law. Based on the information provided, it appears that all the Canadian mutual funds held by Decedent’s RRSP would be classified as corporations for U.S. tax purposes.

We’re still trying to confirm if all Canadian mutual funds are excluded from US-situated assets – i.e., to determine what causes them to be classified as corporations for U.S. tax purposes.

Are US stocks held in a Canadian corporation subject to US estate tax?

When US stocks are held in a Canadian corporation, they are considered the property of the corporation, not personal property, so would not be subject to estate tax on the death of the shareholder.

All amounts in this article are in US dollars


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