Everlake Guide for US Nationals Living in Ireland

A Comprehensive Approach to Your Financial Life

Most of us lead busy lives and must juggle multiple priorities and demands on our time. However, at the end of the working day, each of us is responsible to our families for making the decisions that will determine whether we will achieve our financial dreams.

To do so successfully, you need what the head of every successful company has: a sound understanding of the challenges you face and a comprehensive approach for addressing those issues. However, being a stranger in a strange land can make this process even more complicated.

The variety of issues faced by Foreign Nationals living in Ireland means that in this guide we cannot specifically address all of the issues that relate to each particular set of circumstances. Instead, we have used case studies to illustrate some of the more common issues that we have consulted on in the recent past specifically relating to US Citizens living in Ireland.

We also set out our Financial Planning Process in order to give you an overview of how we engage with our clients to address their concerns.

The Five Major Areas of Financial Concern

For Foreign Nationals living in Ireland we believe that there are five major areas of financial concern:

1. Preserving your wealth. Your aim with wealth preservation is to produce the best possible investment returns consistent with your time frame and tolerance for risk. However note that the attributes required to create wealth (entrepreneurship, risk taking and concentrating your time and money in a limited range of ventures) are not the same as the attributes necessary to preserve wealth (diversification and keeping costs and taxes low)

2. Enhancing your wealth. Your goal here is to minimize the tax impact on your financial position while ensuring the cash flow you need to meet your spending requirements now and in the future.

3. Taking care of heirs. This means finding and facilitating the most tax-efficient way to pass assets to your spouse and succeeding generations in ways that meet your wishes.

4. Protecting your wealth. This includes all concerns about protecting your wealth against catastrophic loss, potential creditors, litigants and identity thieves.

5. Charitable giving. This encompasses all issues related to fulfilling your charitable goals in the most impactful way possible.

None of these five areas of concern stands in isolation from the rest. Wealth protection, for example, is often intertwined with wealth transfer needs. And charitable giving can often support goals in each of the other four areas.

To be most effective, you need to deal with each area systematically while maintaining an integrated approach to your overall financial picture. We call this comprehensive financial planning.

Comprehensive Financial Planning

As you may have noticed, many financial firms these days say that they offer wealth management and financial planning services.

The challenge is that the primary focus for many of these firms is typically nothing more than selling investment or protection products. They may offer a few additional services, such as mortgages, but they lack the truly comprehensive tool set to provide a comprehensive financial planning service. Without this complete tool set, there are areas of your financial life that may not receive the attention they may need. We define comprehensive financial planning as follows:

Comprehensive Financial Planning = Investment Consulting + Advanced Planning + Relationship Management

The first element is investment consulting, which is the management of your investments over time to help you to achieve your goals. That said, we don’t believe that people generally have financial goals, but rather lifestyle goals that have financial implications.

It is through investment consulting that we address the first key financial concern of wealth preservation.

Astute investment consulting requires financial planners to deeply understand each client’s most important challenges and to then design investment strategies that take into account the clients’ need, willingness and capacity for risk. It also requires financial planners to review not only their clients’ portfolios but also their financial lives on a regular basis so that they can make adjustments to the investment strategies as needed.

The second element of comprehensive financial planning is advanced planning, which examines and manages all the issues beyond investments that are important to clients’ financial lives. We place these issues into four major categories:

• Wealth enhancement through tax mitigation strategies

• Wealth transfer and taking care of heirs

• Wealth protection and preventing your assets from being unjustly taken

• Charitable giving and philanthropy

Naturally these four areas of advanced planning align exactly with the four remaining key financial concerns we described above. In our experience, very few financial advisers address these four concerns in any systematic, comprehensive manner.

Relationship management is the third element of comprehensive financial planning. To effectively address their clients’ range of overlapping, frequently complex financial concerns, our financial planners build relationships within three groups.

The first and most obvious group is you the client or prospective client. It is only through solid, trusted client relationships that financial planners can fully understand and help manage their clients’ needs effectively over time. The first part of this process is based on a discussion about expectations - what do you have the right to expect of your financial planner? Equally, what does your planner have the right to expect of you? Only when we both fully understand our expectations can we really build the basis for a long-term relationship.

Secondly, because no single financial planner has all the knowledge required to manage the entire range of financial challenges, we have a network of financial professionals that we can call upon on a case-by-case basis to help address your specific needs.

Finally, financial planners must be able to work effectively with their clients’ other professional advisers, such as Lawyers and Accountants. This collaborative approach leverages those advisers’ knowledge of the clients’ financial challenges while helping ensure an integrated and comprehensive approach to their finances.

While our focus in this guide is on the areas of Wealth Enhancement and Wealth Transfer keep in mind that these are just part of a comprehensive approach to your financial life. In the last section of this guide, we will describe what you should expect from a financial planner who can help you make informed decisions about every aspect of your financial life.

The Three Big Questions relating to Foreign Nationals

1. Where do you call home?

2. Where your assets are physically located?

3. What are your intentions in the future?

Individuals have become more mobile over recent years. Irish individuals increasingly hold non-Irish investments, whether holiday homes, stocks and shares or other investment assets in Europe and further afield and, according to the last census, around 20% of the population of Ireland are Foreign Nationals.

How do we deal with financial planning for non-Irish assets, and how do we advise nondomiciled individuals living in Ireland?

The starting point is the fundamental principle of Irish private international law that the law of domicile (lex domicilii) of an individual determines the succession of moveable property whereas the law of the country where the property is situate (lex situs) determines the succession of immoveable property.

In other jurisdictions, particularly civil law countries, either the habitual residence or the nationality of the individual determines the succession of moveable property. In some jurisdictions, this factor also determines the succession of immoveable property.

This can give rise to complicated issues from a legal perspective.

Domicile

Domicile is a complex legal concept that is determined by reference to a person’s intention to permanently or indefinitely reside in a country together with their physical presence in that jurisdiction.

There is therefore a significant element of subjectivity, based on a person’s intentions. However, objective proof is sought in situations of doubt.

A number of factors which may assist in determining domicile are:

• Place of Birth

• Domicile of Parents

• Marital Status of Parents

• Any changes in parents’ domicile

• Declaration of domicile (for example statements in a will)

• Execution of a Will under the laws of another territory

• Property owned by the taxpayer, and accommodation occupied by him or her on a regular basis. (it the accommodation permanent living accommodation or simply a holiday or occasional home?)

• What business connections does the taxpayer have with Ireland, or another territory?

• Where are the taxpayer’s closest personal, and social connections?

• How often does the taxpayer visit?

• Where do the taxpayer’s spouse and any children reside? Where are his extended family?

• How much time has the taxpayer spent in Ireland during the past 10 years?

• Has the taxpayer any plans to move permanently away from Ireland? What circumstances would trigger such a move?

• Has the taxpayer purchased a grave or made any burial arrangements?

A person may only have one domicile at any one time, although a domicile of origin can be displaced by a domicile of choice. An individual will always be domiciled somewhere, even though it may be unclear exactly where that is.

There is no statutory test or definition of domicile, and it is purely a common law concept. An additional complication is the fact that the issue of domicile is not determined on universal rules. An Irish Court will determine a person’s domicile according to Irish law, while a U.S. Court will determine the same issue based on American law. The result may not always be the same.

Planning opportunity

Irish resident but non-domiciled individuals are taxed on a “remittance basis” of taxation. This means that income and gains that are not remitted to the Republic of Ireland are not subject to Irish Taxation.

US Citizens

Ireland and America have long been linked economically and socially, whether through mass emigration or more recently through the substantial presence of many US corporations in Ireland. According to the US census there are an incredible 34.5 million Americans who claim Irish heritage which is 7 times the population of Ireland itself. For these reasons, and more, there are many U.S. persons living in Ireland.

Some may be here as result of a temporary employment transfer, some may be here permanently, while others may simply have been born to American parents and hold a U.S. passport.

A unique point of complexity for US persons is that while they may be resident in Ireland and subject to Irish tax laws, they are liable to U.S. tax and reporting on worldwide income and assets and this has an impact on all of their financial decision making.

Even if you have never set foot in the U.S., but have a U.S. passport because your parents were American, Uncle Sam will still expect to see a tax return from you on an annual basis from the age of 18 (unless you give up your US citizenship by age 18 ½ ).

In this section, I outline some of the financial planning issues for Americans living in Ireland and in particular some U.S. tax return requirements and two important acronyms for U.S. people living abroad – FATCA and PFIC. I will also give consideration as to how they may be sensibly and effectively managed.

Who is a “U.S. Person”?

Let’s begin by clarifying who a U.S. person actually is.

A U.S. person is any of the following:

• A U.S Citizen (i.e. a Passport holder)

• A permanent U.S. Resident

• A U.S. Green card Holder

• A trust controlled by a U.S. person

US Tax Returns

As a U.S. person, you must file an annual U.S income tax return based on your worldwide income regardless of where you live. Generally speaking, if you live and work outside the U.S you may exclude overseas earned income up to USD$103,900 in 20191 .

You can also claim a credit against your U.S. tax liability for tax you pay in Ireland. In most cases the credit will be enough to eliminate any U.S. tax liability since Irish taxes are generally

1 FEIE, using IRS Form 2555

higher. However, a return still needs to be filed every year regardless of whether you have a tax liability in the U.S. or not.

Foreign Account Tax Compliance Tax Act (FATCA)

The Foreign Account Tax Compliance Tax Act (FATCA) was passed into law in 2010. The purpose of FATCA is to increase compliance by U.S. Taxpayers in reporting foreign financial assets. This will allow the IRS to enforce long standing rules relating to U.S. persons reporting their assets overseas.

In 2012 Ireland became one of the first countries in the world to conclude an InterGovernmental Agreement with the U.S in relation to FATCA.The legislation arose mainly on the back of the 2009 UBS off-shore banking scandal which revealed that many Americans were maintaining large financial holdings in overseas bank accounts without reporting or paying U.S. taxes on those assets.

The consequence however is that it draws in the ordinary honest U.S. Person with assets outside of the U.S. and this has been the source of a lot of controversy among the ex-pat community.

The legislation is broad and affects both taxpayers and foreign financial institutions that provide financial services to U.S. persons.

Key features of FATCA include more onerous reporting requirements and higher penalties. Most significantly, however, are the reporting demands placed on global financial institutions that will result in a high degree of transparency for the IRS which enables them to see overseas assets.

Alongside FATCA, the IRS has significantly expanded its enforcement activity with respect to assets held by U.S. persons outside of the United States.

Passive Foreign Investment Company (PFIC)

Passive Foreign Investment Company’s (PFICs) are virtually any pooled investment registered outside of the United States. Examples include Hedge Funds, a life insurance unit linked investment bond and an ETF or Mutual Fund.

The tax treatment of PFICs is punitive compared to a U.S. based investment. In some cases, the total tax on a PFIC investment may be well above 50%.

If you invest in a US mutual fund you are taxed on the income and gain within the fund every year whether or not you receive an income payment. In contrast if you invest in an Irish Unitlinked fund your gain is only subject to exit tax on redemption, receipt of a distribution or on the 8th year anniversary. To prevent this deferral of taxation the PFIC rules impose tax on a current basis or on a deferred basis with an interest charge on income earned by a U.S. person

through the fund.

For example, you may be required to include a portion of the passive income of the Irish Unitlinked fund in your taxable income, even though you may not have received an actual distribution from the fund.

This treatment result in mismatches with the timing of Irish tax and may result in double taxation. On that basis we do not recommend investing in Irish investment funds or UnitLinked insurance bonds.

Reporting requirements for individuals

IRS Form 8938 must be filed by all U.S. persons’ resident outside the U.S if total foreign financial assets owned exceeded $200,000 on the last day of the tax year or more than $300,000 at any point during the year.

Form 8938 is in addition to the Foreign Bank and Financial Accounts Report (FBAR) required for financial assets abroad that exceed $10,000.

Form 8621 (Passive Foreign Investment Company – PFIC) must be filed every year for each separate PFIC investment held.

Implications of FATCA and PFIC InvestmentAccounts

The new FATCA compliance and reporting environment fundamentally changes how U.S. persons’ overseas need to approach investing as the IRS now has full transparency to see financial assets held overseas.

Many ‘ordinary’ U.S. persons living overseas may feel that as they have nothing to hide they do not need to worry about the implications of FATCA. However, this would be a foolish stance to take as the IRS now has eyes on all assets of U.S. persons – and all U.S. persons are meant to comply with the rules whether they have money stashed away in a Swiss bank account or simply have plain vanilla investments such as an Irish life assurance company investment bond or an Irish bank account.

PFIC reporting requirements are extremely onerous and may actually be impossible to comply with in Ireland due to the low level of information available from for example Irish Insurance company unit linked funds.

The reporting requirements for PFIC investments are so onerous that the IRS estimate that it will take up to 25 hours per year for each PFIC to be reported correctly. IF you hold a number of PFICs it doesn’t take the financial calculator of an IRS auditor long to work out that this is a lot of time and expense required to remain compliant.

The tax and reporting requirements of the PFIC and FATCA rules highlights the importance for U.S. persons in Ireland to invest in appropriate US compliant investments held in an appropriate location which will make life easier and less costly from an IRS reporting point of view.

Whilst previously it may have been quite easy to ignore filing and reporting requirements they must now be dealt with.

Ignorance of the rules is no defence and unintended failure to understand and comply with these rules may result in penalties, back taxes, interest and legal fees.

Other implications are that it is now increasingly difficult for U.S. persons in Ireland to open accounts with financial services providers either in Ireland or back in the U.S. The reason for this is that, due to FATCA, financial institutions now have such onerous reporting requirements and the potential liability of handling these incorrectly is so large that many banks and brokerage firms are now simply refusing to open accounts for U.S. persons not resident in the U.S.

RetirementAccounts

Under the United States and the Irish Income Tax Treaty where a US citizen is employed in Ireland and participating in a pension plan established by the Irish employer, the rules are that the employee may deduct (or exclude) contributions made by or on behalf of the individual to the plan; and benefits accrued under the plan are not taxable income.

The Treaty further provides that the deduction (or exclusion) rule only applies to the extent the contributions or benefits qualify for tax relief in Ireland and that such relief may not exceed the reliefs that would be allowed in the US under its domestic rules.

Distributions or lump sum payments from a pension to the U.S. residents living in Ireland are subject to taxation in the U.S. based on the “Saving clause” in the Ireland-U.S. Tax Treaty Article 1:

“Notwithstanding any provision of the Convention, a Contracting State may tax its residents (as determined under Article 4 (Residence), and by reason of citizenship may tax its citizens, as if the Convention had not come into effect”

http://www.irs.gov/pub/irs-trty/ireland.pdf

To avoid double taxation, the United States allows a credit against United States tax through tax paid to Ireland on the same income.

Trusts

Certain charitable and pension trusts are excluded from FATCA but the following should consider the extent of their obligations under FATCA:

• Any individual / trust company which acts as a trustee;

• Any firm providing trustee services who comes within the definition of a Foreign Financial Institutions (FFI); and

• Any solicitor / accountant who has clients in the categories above.

Revenue has confirmed that a trust will be a FFI where the trust is professionally managed i.e. has a corporate trustee; and where the trustee has engaged a financial institution to manage the financial assets of the trust.

A trust which is a FFI is obliged to register with the IRS. A trust which is a FFI will need to complete due diligence to determine whether the financial accounts managed by the trustee are reportable to Revenue under FATCA.

FFIs must register with the IRS directly to obtain a Global Intermediaries Identification Number (“GIIN”). Registration with the IRS can be completed online by completing Form 8957 ( http://www.irs.gov/pub/irs-pdf/fw8bene.pdf ).

Trusts which are not FFIs are not outside the reach of FATCA and are classified as NFFEs. Unlike FFIs, a trust which is a non-FFI should not have an obligation to register with the IRS or to report to the Revenue. Instead, NFFEs will need to provide a self-certification to any relevant FFIs with which they hold accounts (passive income accounts) to ensure that 30% withholding tax is not applied.

Estateplanning

A key to any financial plan is the preparation of comprehensive estate plan to minimise the cost of transferring the family’s wealth to the next generation.

As a U.S person on your death U.S. estate tax will apply to the value of your entire worldwide estate, not just those assets situated in the U.S. If you are resident longer than 5 years in Ireland you are also subject to Irish inheritance tax.

While double taxation rules will apply it is important to understand your liability to death taxes and if relevant implement strategies to minimise the impact on your estate.

Summary

FATCA has resulted in the IRS having access to far more information regarding U.S. persons’ assets overseas than ever before allowing them the ability to enforce long standing reporting rules.

Therefore, it is important to remember that although you may be an Irish resident, as a U.S. citizen you have always had and continue to have ongoing U.S. tax obligations and you need to comply with these now more than ever.

It is a high-risk strategy to ignore the Foreign Bank Account Report (FBAR) and related filing requirements.

Finally, all financial decisions should be made in the context of a financial plan and this plan needs to take into account a range of tax, investment and estate planning issues, including but not limited to, the ones above. It is therefore important to work with and be advised by competent professionals.

This article is based on a revision of an earlier version published in 2012. The original version of this paper was prepared with the support of IJ Zemelman from Taxes for Expats www.taxesforexpats.com, an expert in expat tax issues.

Thanks to Dan Candura CFP® of PennyTree Advisors in Braintree, Massachusetts, USA. Disclaimer: This article discusses tax and investment issues, but it does not constitute advice in any respect. No reader should act or refrain from acting on the basis of any information presented herein without seeking the advice of counsel

Planning Opportunity

US Citizens should never hold European investment products outside of a Pension and even certain Irish Pension structures have question marks.

A custodian account should therefore be opened with a suitable provider in the USA. We are able to operate accounts with certain providers under a limited power of attorney. Please ask for details.

Estate Planning

Benjamin Franklin said; “There is nothing in life more certain than death and taxes.”

Estate Planning can be defined as: the orderly and tax efficient transfer of assets/wealth between individuals, and most commonly to the next generation.

Estate planning covers both gifts and inheritances. Trusts are equally relevant in both circumstances, as one of the main tools to facilitate estate planning arrangements.

The core elements of estate planning are legal effectiveness, tax efficiency and practicality.For many individuals, estate planning can be very straightforward.

In other cases, complexities can arise, including divorce, second marriages, non-marital relationships and children, difficult relationships with children, concerns about in-laws, children in marital difficulties, children with significant debt, children with special needs, complex asset structures, assets in foreign jurisdictions and the impact of cohabitants legislation.

Planning opportunity

Although Capital Acquisitions Tax is based on residency, non-domiciled individuals only become liable to CAT after 5 consecutive years resident in Ireland. Careful management of time spent in the State can therefore act to mitigate the impact of Irish CAT.

Capital Acquisitions Tax (CAT)

In Ireland, Capital Acquisitions Tax (CAT) is payable by a beneficiary on the receipt of a gift or inheritance in excess of their available tax-free threshold.The tax-free threshold depends on the relationship between the donor and the beneficiary.

• There is no capital acquisitions tax between spouses.

• The tax-free threshold of children is €335,000 (tax year 2022).

• Close relatives such as brothers, sisters and grandchildren have a tax-free threshold of €32,500 in all other cases the allowance is €16,250.

• Any aggregable gifts or inheritances received since 5 December 1991 are taken into account in computing the available tax-free threshold.

Capital acquisitions tax applies to both gifts and inheritances.

Reliefs and Exemptions

The Dwellinghouse exemption has been restricted in recent years. Since 25 December 2016. – you are exempt from inheritance Tax (CAT) on a house you inherit if all the following apply:

• The house was the only or main home of the person who died

• You lived in the house as your main home for the three years before the person’s death

• You do not own, have an interest or a share in any other house, including one you acquired as part of the same inheritance

• The house is your main home for six years after you receive the inheritance. (This does not apply if you are over 65.)

Business relief is a substantial relief in respect of the gift or inheritance of business property. The legislation is complex, but the relief is designed to prevent the forced sale or break up of trading entities to pay significant capital acquisitions tax liabilities on death or lifetime transfer. Where available, business relief reduces the tax payable from a rate of 33% to an effective rate of 3.3%.

Agricultural relief is a relief on gifts or inheritances of agricultural property which was introduced to prevent the break-up of farms when passing to the next generation. The relief reduces the effective rate of inheritance tax from 33% to 3.3%. The conditions for the relief have been significantly tightened up in the Finance Act 2014.

Make an Irish Will

The first step in estate planning for most people is to make a Will.

In Ireland, the presumption of testamentary freedom is qualified by the legal right share of a spouse (one third/one half of estate) and the “moral duty” towards children.

Under Section 117 of the Succession Act, a child can potentially take an action against the estate of the deceased parent on the basis that they have not been properly provided for by their parent in accordance with parent’s means.

Forced Heirship vs Testamentary Freedom

Forced heirship is the term used where a country provides that specified persons have automatic rights to the succession of a portion of a deceased’s estate, which take precedence over any Will of the deceased.

Generally speaking, certain civil law countries provide enforceable fixed shares to heirs, whereas common law jurisdictions tend to start with the principle of testamentary freedom,

while providing protection for dependents, e.g. the legal right share of a surviving spouse/civil partner under the Succession Act 1965.

If a French domiciled individual leaves an Irish holiday home in his estate, is this subject to the legal right share of his surviving spouse? Similarly, if an Irish domiciled individual has significant real property in France, does his spouse’s legal right share include the value of the French property?

Foreign divorces complicate matters further. In order to determine whether there exists a legal right share entitlement of the spouse if they have obtained a foreign divorce, a consideration is whether that divorce recognised in Ireland, and if not, it would appear that the individuals are still married as a matter of Irish law. The domicile of the individuals will be very important in determining the recognition of a divorce obtained outside Ireland.

Brussels IV – the EU Regulation on Succession

The Brussels IV Regulation came into effect in August 2015. The attempt was to harmonise succession laws throughout the EU, but it has fallen short in many respects.

Ireland, Denmark and the UK opted out of the Regulation. However, confusingly, the Regulation will still have an effect on how Ireland will deal with signatory States and how signatory States will deal with Ireland.

The Regulation attempts to provide that in all signatory EU member States, habitual residence is to be the connecting factor to determine the jurisdiction to deal with Wills and succession for all moveables and immoveables. Alternatively, the testator can designate the law of their nationality as applying to the whole of their estate.

It remains to be seen whether the signatory States will interpret the term “habitual residence” consistently.

From the perspective of advising an Irish domiciled person/national, it appears clear that he can elect to apply Irish law to govern the succession to assets situate in signatory States, even though Ireland is not a signatory. The reverse does not hold true. Ireland will continue to apply the principles of Irish private international law to assets situate in Ireland.

The future under the Regulation is uncertain, which creates difficulties for Irish advisors, who may effectively be asked to advise on non-Irish legislation and its effect in foreign jurisdictions. Local legal advice in the foreign jurisdiction is key.

Enduring Powers of Attorney

An enduring power of attorney enables a person to appoint an attorney(s) to manage their affairs and take decisions on their behalf if they should lose capacity.

An enduring power of attorney is registered and becomes effective only when the donor is, or is becoming mentally incapacitated, i.e. by reason of a mental condition they are unable to manage and administer their own property and affairs.

The alternative to making an enduring power of attorney, in the event of mental incapacity, is wardship under the Lunacy Regulations, which is an outdated, cumbersome and expensive system.

There are no guidelines available for the registration of a foreign enduring powers of attorney, these are dealt with on a case by case basis. The Registrar of Wards of Court will seek to bring the requirements of the Irish system to bear on the foreign enduring power of attorney.

Generally speaking, the foreign enduring power of attorney needs to be similar as to form and content to the Irish enduring power of attorney under our legislation.

Similarly, it can be very difficult or impossible to register an Irish enduring power of attorney in a foreign jurisdiction. Therefore, it would be prudent to make an enduring power of attorney in a foreign jurisdiction where assets are held.

Disclaimer

This document has been prepared for educational and information purposes only and does not represent a specific recommendation for an individual to follow.

Taxation

References to Taxation have been obtained from sources which we believe to be reliable and are based on our understanding of Irish Tax legislation at the time of writing. We cannot guarantee its accuracy or completeness. The rates and bases of taxation may change in the future. We recommend that you obtain specific tax advice for your own personal situation. We will refer you to a suitably qualified tax consultant on request.

Investments

As with any investment strategy, there is potential for profit as well as the possibility of loss. Past experience is not necessarily a guide to future performance. The value of investments may fall or rise against investors’ interests.

Any person acting on the information contained in this document does so at their own risk. Recommendations in this document may not be suitable for all investors. Individual circumstances should be considered before a decision to invest is taken.

Income levels from investments may fluctuate. Changes in exchange rates may have an adverse effect on the value of, or income from, investments denominated in foreign currencies.

We do not guarantee any minimum level of investment performance or the success of any portfolio or investment strategy. All investments involve risk and investment recommendations will not always be profitable.

Warning: the value of your investment may do down as well as up. This service may be affected by change in currency exchange rates. Past performance is not a reliable guide to future performance.

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