Category Archives: Estate Tax

The Power Of Attorney: WHERE Is It To Be Used And WHAT Is It To Be Used For?

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The purpose of this post is to draw awareness to the common problem of the validity and effectiveness of a power of attorney (“POA”) to deal with a property in a cross-jurisdictional context. For example, is a power of attorney validly created in Canada sufficient to allow one to make decisions pertaining to the registration of land in Florida? The “POA” could be perfectly valid under Canadian law but NOT be sufficient for its intended use in Florida.

The validity of a “POA” where it is created is different from whether it is sufficient to be used in its effective jurisdiction.

Note also that this is a different issue from “Authenticating A Document Created In Canada”.

Q. What if a property is located in another jurisdiction and a POA is needed to deal with that specific property? Will a POA created in Canada or Europe be valid in the United States?

A. Not necessarily!

As one person commented:

I had POA for a family member, took the document to that family member’s bank in the US and they sent us back to get it notarized at the US consulate in Canada.

It makes good sense to create:

1. Separate powers of attorney for different purposes: and

2. A power of attorney in the jurisdiction where the power of attorney is to be used!

“An ounce of prevention is worth a pound of cure!”

Yesterday I participated in an IRS Medic podcast to discuss “Powers Of Attorney” and Americans Abroad.

Generally, a Power Of Attorney is created when an individual grants to an “attorney” the power to act on behalf of the grantor with respect to a particular property or issue. For example, a grantor could grant to an attorney the power to sell or manage a specific property. But, what if that property is outside the the residence or domicile of the grantor? What are the requirements that make a POA valid? Is a POA that is valid under the laws of Ontario, Canada valid in a U.S. state? The short answer is NOT NECESSARILY. Would it make sense to have multiple POAs, each of which is limited to a specific decision/property, etc? The answer is probably YES.

The reality of an individually living in jurisdiction A having to deal with property in jurisdiction B is becoming more and more common.

After participating in the IRS Medic podcast I saw the a blog post written by the Toronto law firm of O’Sullivan law titled: “Powers of Attorney: Jurisdictional Challenges“. The post does an excellent job of defining why this issue is important:

In order for a POA to be valid, it must comply with the formal POA requirements of the applicable jurisdiction. These requirements are generally concerned with who may make a POA, who may be appointed as an attorney, who may or must witness the execution of the POA and when the POA will be in force. Although the formalities may appear similar across jurisdictions, each jurisdiction generally has its own unique requirements, with the result that extra-provincial/extra-territorial or foreign country POAs may not be recognized locally.

In summarizing the problem, the article includes:

Problems caused by the lack of uniformity in POA law among various jurisdictions are becoming well known to the legal community. The uniform law commissions of Canada and the United States have enacted uniform model POA legislation which, if implemented in these jurisdictions, would solve many of the various problems that exist with divergent laws. Some progress in this field has been made, however, a complete overhaul of the POA laws is far from complete. It is therefore imperative that individuals who have ties to other jurisdictions speak to their lawyers about having valid local POAs as part of their personal, estate and incapacity planning so that inconveniences such as those recently encountered by the Ontario couple can be avoided.

Bottom Line:

To be forewarned is to be forearmed. It makes good sense to have a POA created in accordance with the laws of the jurisdiction where the POA is to be used. For example: If you are a U.S. citizen living in Canada and a POA of needed to manage a property located in the United States, the UK or any other country, consider the creation of a separate POA for that particular jurisdiction!

John Richardson – Follow me X.com/ExpatriationLaw

Part 2 – The Warren “Ultra-Millionaire Tax Act of 2021” and The Wealth Of Other Nations

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The fact that …

Leads to the obvious question of …

Hmm…

The fact is that Senator Warren is proposing to impose her wealth tax on property located outside the United States, purchased by individuals who live outside the United States, who have no connection to the United States other than (perhaps) the circumstance of having been born in the United States. Yup, it’s true.

On March 18, 2021, FATCA will turn on 11. The Senator’s proposed wealth tax explicitly states that FATCA is to be used to enforce this tax! Finally an (il)legitimate use for FATCA.

In the 18th Century Adam Smith wrote “The Wealth Of Nations”. In the 21st Century Senator Warren is proposing to impose a wealth tax on “The Wealth Of OTHER Nations”.

Discussion And Analysis

This is the second of what I expect to be a multi-part series on Senator Warren’s proposed wealth tax of 2021. As the above tweet makes clear, the practical utility of the tax depends on US citizenship-based taxation (to whom it applies) and FATCA (how are non-US assets located). In my first post, I referenced Senator Warren’s statement that:

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Renunciation is a process of transitioning from US citizen to nonresident alien. How does this affect your tax situation?

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On June 25, 2020 Dr. Karen Alpert and I did a series of podcasts where we discussed how renunciation will affect your interaction with the US tax system. The key point is that you will still be taxable by the United States on US source income. What does that mean? Under what circumstances could renunciation of US citizenship actually increase your US tax liability?

John Richardson – Follow me on Twitter @ExpatriationLaw

Considering renouncing US citizenship? #citizide – There are times when US citizenship can save you from foreign taxes!

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Should other nations be permitted to impose taxation on U.S. citizens or corporations?

At first blush, the question sounds absurd. Is there something about being a U.S. citizen that should exempt individuals from taxation in or by a another country? Some time ago, this question was explored in a discussion on a Facebook group. Interestingly, most participants thought the discussion was absurd and did not take it seriously. But truth can be stranger than fiction. When it comes to taxation there can be some benefits to being a U.S. citizen. In fact, in certain cases, U.S. citizenship can act as a “cloaking device” – a device that shields you from taxation in another country.


The two certainties are “death and taxes” …

It’s in the area of “death” where U.S. citizenship can be helpful. Sometimes it can be to your benefit to die as a U.S. citizen. Sometimes U.S. citizenship can be helpful when somebody dies leaving you part of their estate.
What follows are some categories where U.S. citizenship can protect you from taxation. These possibilities should be considered prior to renouncing U.S. citizenship.
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"Tax residence" for US Estate and Gift and "tax treaty tiebreakers with overlapping domicile

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Introduction – Two kinds of tax systems – Two kinds of “tax residency”
Title 26, the Internal Revenue Code of the United States is composed of twelve subtitles. Subtitle A deals with “Income Taxes”. Subtitle B deals with “Estate and Gift Taxes” AKA the “transfer tax regime”. The two subtitles are administered separately. They also have different definitions of “tax residence”.
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Domicile as a basis for tax residency: How to have @taxresidency where you may not live

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What is domicile?
About domicile …
Domicile is an old “common law” concept. Domicile is NOT the same as “residency” (although it might include residency). Domicile is NOT the same as “citizenship” (although one could be a citizen of the country where one is domiciled). Domicile is a concept that refers to one’s permanent home and point of reference. Different jurisdictions might have differing definitions of domicile. It is also a concept that is relevant for a variety of purposes.
Why might domicile matter?


Domicile 101 – Different kinds of domicile …


Learning about domicile …
Much has been written about domicile. Here is a fantastic article written on domicile that was presented in 2011 at an ABA convention. It doesn’t get better than this:
domicile ABA Meeting 2011
Let me offer 5 key points from this article:


Can a person have domicile in more than one place for tax purposes?
Of course you can be domiciled in more than one place for tax purposes! In fact:


Domicile as the definition of “tax residency” for U.S. Estate and Gift tax purposes
How do we know that “residence” for Estate and Gift Tax purposes means “domicile”?
The answer is found in the Treasury Regulations – Specifically Reg. 25.2501-1(b) which defines “residency” for Estate and Gift Tax purposes as follows:

(b)Resident. A resident is an individual who has his domicile in the United States at the time of the gift. For this purpose the United States includes the States and the District of Columbia. The term also includes the Territories of Alaska and Hawaii prior to admission as a State. See section 7701(a)(9). All other individuals are nonresidents. A person acquires a domicile in a place by living there, for even a brief period of time, with no definite present intention of moving therefrom. Residence without the requisite intention to remain indefinitely will not constitute domicile, nor will intention to change domicile effect such a change unless accompanied by actual removal.

Please note that different jurisdictions may define “domicile” differently.
Conclusion …
“Domicile” is largely a “subjective” concept that is proven by “objective” evidence.
Domicile matters!
John Richardson