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Lev
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22638
Experience:  Taxes, Immigration, Labor Relations
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I am the beneficiary of my fathers 401k US Texas pension scheme.

Resolved Question:

I am the beneficiary of my fathers 401k US Texas pension scheme. I live in the uk. Will I pay tax in Texas or UK or both?
Submitted: 10 months ago.
Category: Tax
Expert:  Lev replied 10 months ago.

Lev :

Hi and welcome to Just Answer!
Inheritance itself - is not taxable income in the US. Please see for reference IRS publication 525 page 31 left column - - http://www.irs.gov/pub/irs-pdf/p525.pdf


Gifts and inheritances. In most cases, property you receive as a gift, bequest, or inheritance is not included in your income. However, if property you receive this way later produces income such as interest, dividends, or rents, that income is taxable to you.


However - when funds are distributed out of inherited 401k - that is taxable income.

Lev :

Some income received by the estate or beneficiaries AFTER the decedent passed away might be classified as Income in Respect of the Decedent (IRD) - and could be taxable. Examples of IRD include interest and dividends paid to the estate AFTER the date of death, distributions from tax deferred accounts (401k, IRA, annuity, etc), gain from the sale of inherited assets. Income in respect of the decedent is gross income that the decedent would have received had death not occurred and that was not properly includible in the decedent's final income tax return. Income in respect of a decedent realized AFTER the death is taxable the same way as it were taxable for the decedent.

Lev :

Please be aware that there is a tax treaty in effect between the US and UK - see here - http://www.treasury.gov/resource-center/tax-policy/treaties/Documents/uktreaty.pdf
see page 19 - ARTICLE 17 - Pensions, Social Security, Annuities, Alimony, and Child Support
1. a) Pensions and other similar remuneration beneficially owned by a resident of a Contracting State shall be taxable only in that State.
Thus distribution will be taxed in the US and not taxed in United Kingdom.

Customer:

My Dad passed away on 1st September. If I withdraw the funds now will I be charged tax as his beneficiary?

Lev :

Yes - distribution will be taxable income - and distribution to nonresident alien will be subject of mandatory withholding, You may spread distribution over several years and reduce the tax pressure.

Customer:

I don't live in the US. My Dad was an american citizen. Is it 30% tax on the whole amount?

Lev :

That is correct - 30% is mandatory withholding for nonresident aliens - if you are not US citizen and are living abroad.
In most situation the full amount of distribution is taxable.
Only if your father made after tax contributions into 401k plan - that amount is distributed tax free.

Lev :

In UK - that income is NOT taxable based on the tax treaty between the US and UK.

Customer:

His company told me it 100% fully paid....I'm not sure what that meant. They have said that the account can be transferred to me and I can choose what to do with the funds. I've been advised to withdraw it but it's quite a lot of money and i'm unsure the best way forward.

Lev :

I may not know what exactly they meant under "100% fully paid" ...
I might guess that means fully vested - so you may choose what to do with funds without any restrictions.
Your options are to request the full distribution OR
or open a separate "inherited IRA" account with any financial company - and transfer funds there. After that - you may set the amount of distribution - and either distributed within five year period or during your lifetime based on your age. If you do not need the money now - that might be better to postpone distributions.
However - that is your choice.

Customer:

Yes fully vested was probably what she said. It's been a very emotional time. When you say ANY financial company...could that be in the UK? i'm 43. Why a 5 year period?

Lev :

When you say ANY financial company...could that be in the UK?
Separate "inherited IRA" account may be open ONLY in the US.
If you transfer to the UK - that will be classified as distribution - and the amount will be immediately taxed.
Why a 5 year period?
That period is set by the law - you may plan distribution in any way withing the 5 year period. For instance - you may take a full distribution after four years.
If you want to to set a periodic distributions over your lifetime - these distributions must be started by the end of of 2014.

Customer:

I will still pay 30% yes? only it will be spread out? In the UK your usually have to pay 40% inheritance tax. Since I won't have to pay that, and my poor Dad never got to see his pension I think I will probably withdraw the lump sum. Thank you very much for your assistance you've been very helpful. Tracey

Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22638
Experience: Taxes, Immigration, Labor Relations
Lev and 9 other Tax Specialists are ready to help you
Expert:  Lev replied 10 months ago.
Greatly appreciate your EXCELLENT rating.
As I mentioned - there is no inheritance tax in the US neither on federal nor on the state level in Texas. Federal estate taxes applies only on large estates - above $5 millions.
However - funds in 401k are deferred from tax liability. When your father made contributions - these contributions were not included into his income. So - now when you will take distribution - the distributed amount becomes taxable as an income in respect of the decedent (IRD).
And because this income is passed to the beneficiary who is a nonresident alien - it is taxed at flat 30% rate.

Sorry for the loss of your father. Please accept out deep condolesness.
Please be sure to come back for all your tax related issues.
Customer: replied 10 months ago.

Hi Lev

 

Thank you.

 

My Dad also has me as beneficiary to his life insurance and to his stocks and shares account. Are they subject to a 30% tax too? Will all this money be classed as income in the UK?

 

It's fine if I've now asked too many questions.

 

Thanks

Expert:  Lev replied 10 months ago.
Welcome back!
Appreciate you for asking additional questions.
1.
Life insurance proceeds paid to you because of the death of the insured person are not taxable unless the policy was turned over to you for a price. This is true even if the proceeds were paid under an accident or health insurance policy or an endowment contract. However, interest income received as a result of life insurance proceeds may be taxable.
The payer will report if there is any interest included into proceeds.
2.
As we already mentioned - inheritance itself is not taxable income. Thus - shares you inherited will not be taxable. However if you sell shares later - there might be gain or loss depending on circumstances - and sale transactions must be reported to the IRS.
The gain or loss is calculated as (selling price) MINUS (basis).
The basis for inherited shares is determined as their fair market value on the day your father passed away. If these are publicly traded securities - you may verify their closing price on any specific day.
3.
You need to inform the broker (or the administrator of that account) that you are a nonresident alien - and the gain (if any) will NOT be taxable in the US. However - it will be taxable in the UK.
4.
If there are any dividends paid on these shares - dividends are taxable in the US if that is an US corporation. Because you are UK resident - same income is taxed in the UK - but based on the US-UK tax treaty - you will claim a credit for foreign tax on your UK resident tax return - thus effectively will avoid double taxation of the same income.
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22638
Experience: Taxes, Immigration, Labor Relations
Lev and 9 other Tax Specialists are ready to help you
Customer: replied 9 months ago.

Hi Lev I did not know how to ask for you again. I will pay £33 for this answer, will I just tip it to you if you reply? many thanks Tracey................My father sadly died and named me as the beneficiary of his 401K pension. I am aware that the withholding company will withhold 30% tax if it is transferred directly to me, as I am a UK Citizen (non-resident alien). My fathers HR department want to know if the 401K is to be transferred to my fathers estate (He was a US citizen and so is my step-mother) or myself. If it is transferred to the estate will it be subject to 20% withholding and further taxes in the estate account? I have up to 5 years to withdraw the funds if I transfer it to me. I would like to know the most tax efficient way to transfer the funds from Texas, USA to the UK please.

Expert:  Lev replied 9 months ago.
Hi Tracey,
appreciate you for coming back and trusting me with your tax related questions.
Please accept my condolences for the loss of your father...

The issue is that while inheritance itself is not taxable - when funds are distributed from inherited 401k account - that distribution is classified as Income in Respect of the Decedent (IRD) - and is taxable the same way as if the decedent would have received had death not occurred.
The same is true when distributed to you as a direct beneficiary - or if you disclaim your beneficiary rights - for the trust as a contingently beneficiary.
However - when the trust distribute that income to you as a beneficiary - we will be in the same situation - in general - such distribution would be taxable for you at 30% rate.

If you are looking for ways to reduce your tax liability - I think the best option would be to open a so-called "inherited IRA" account - and transfer funds into that account. There will not be any tax liability on that transfer.
Then - you will set a periodic distribution in approximately equal amounts for the long period - for instance five years.
While such distribution still will be taxable - they will not be taxed in the US according to the tax treaty - but that income will be taxable in UK according you your local laws.
Customer: replied 9 months ago.

Ok I think I understand. The situation stands however, that if my father was taxed on his pension now would the maximum withholding for a US citizen be 20% withholding? There is $700,000 in the 401K. Even if I spread it out over 5 years I would be taxed in the UK at 40%. Its in a good place and probably would grow but i'm not sure which would be better and most tax effective.

Expert:  Lev replied 9 months ago.
Please be aware that withholding is NOT the actual tax liability.
The actual tax liability may be more or less than withholding.
For US citizens and residents - tax liability is based on the total income - it might be from zero till 39.6%
If there are 20% withholding - that doesn't mean there are no other tax liability. There might be an additional tax liability or refund depending on circumstances.
For nonresident aliens and for not effectively connected income - that is a flat rate 30%.
So - if you choose a limp sum distribution - that is how it would be taxed.
But otherwise - that is your choice.

Customer: replied 9 months ago.

Ok Thank you. If you were me, which I know your not...but would you roll it into the inherited account? Do they just transfer it into my name? How do the inland revenue in England assess what was inherited and what was not?

Expert:  Lev replied 9 months ago.
Generally UK taxing authorities may not have any information about your abroad income unless you report that on your tax return,
That is your responsibility to determine which income is taxable and repeatable and prepare your tax returns accordingly.
When you transfer funds from the tax deferred retirement account to the inherited IRA - that be account must be specially titled - not just in your name.
Inherited IRA must be designed as IRA account and must be titled similar to " (deceased ) Inherited IRA for benefit of , Beneficiary."

For me that option looks preferable because -
- funds in this account are treated as tax deferred
- you will continue to defer earnings
- will be able to avoid large tax liability
- you might need that large amount immediately - so may view that as an investment.

However - your circumstances might be different or might change any time soon. Thus you might need rather large amount of cash for some personal reasons.
You might plan to move into the US - and could be taxed as a resident after that.
There might be other circumstances I would not be able to imagine which do influence your decision.
Fortunately of unfortunately - there is no clear cut answer.
Customer: replied 9 months ago.

Ok you have been very helpful Lev Thank you. Smile Hi Lev i've just spoken to an advisor at Merrill Lynch and they told me that because I am not an american citizen I can not open an IRA account. I told them that It was to be rolled over into an inherited IRA from my deceased father. They said his account will just transfer into my name, I'll have 5 years to withdraw the funds but it will just be a 401k not a IRA. I'm confused.

Customer: replied 9 months ago.

Ok you have been very helpful Lev Thank you. Smile Hi Lev i've just spoken to an advisor at Merrill Lynch and they told me that because I am not an american citizen I can not open an IRA account. I told them that It was to be rolled over into an inherited IRA from my deceased father. They said his account will just transfer into my name, I'll have 5 years to withdraw the funds but it will just be a 401k not a IRA. I'm slightly confused does that mean it won't be taxed differed and will be withheld at 30% again?

Expert:  Lev replied 9 months ago.
You are correct that you may not open YOUR OWN IRA account,
but that restriction doesn't apply for specifically titles "inherited IRA account" that might be opened.
Such account have very limited options - you may manage assets in this account and may take distributions - but may not make additional contributions and may not roll the money from other tax deferred account you might have. This account would have your name - but should be titled as we mentioned above - not just in your name.

You still may have funds in the original 401k plan and take partial distributions. However - 401k plans are designed differently - and not all allow such option. So if you are allowed to keep funds in that 401k plan - that would work for you.

Again withholding is NOT your tax liability. If for any reason your withholding is more than your actual tax liability- you may file the tax return and claim for a refund.
Considering your situation - if you do not want to claim any tax treaty benefits - and because you are a nonresident alien - and because that income is not effectively connected income - that income is taxed at flat rate 30%.
So if they will withhold 30% - you generally would not need to file a tax return.
If however - you want to claim reduced withholding for periodic distributions according to the tax treaty - there will not be any withholding - but that income will be taxed in the UK.
Expert:  Lev replied 9 months ago.
You may find the tax treaty document here - http://www.hmrc.gov.uk/taxtreaties/in-force/usa.pdf
In your situation - you may reference either of both articles -
Article 17 PENSIONS, SOCIAL SECURITY, ANNUITIES, ALIMONY, AND CHILD SUPPORT
Article 18 PENSION SCHEMES
Customer: replied 9 months ago.
Hi Lev
Thank you for your answers.....it would have been cheaper for me to have opted for the monthly fee. I did opt for that option but then cancelled as I preferred talking to you as you answered immediately. Thanks.

I now have to distribution form there is a question about income tax withholding. Outside the US. I have attached irs form w8 and 1001 if applicable. Withhold federal taxes accordingly.

The other option is no irs forms attached withhold 30%.

Do I need to complete a w8 form and 1001 to benefit from the tax treaty?
Expert:  Lev replied 8 months ago.
Please be aware that experts do not have access to your account - and all payments options, subscription and cancellations should be directed to customer service.
I simply do not know - sorry for that - and may address only your tax related questions.
You may keep asking questions as you wish - and I personally will do my best to address all your concerns.

here are several forms W8 that are used for different occasions - mainly W8BEN and W8ECI.
Abbreviation in the form name Form W8ECI – stands for effectively connected income (ECI) – thus this form is used if the person or entity is a recipient of U.S. source income which that is (or is deemed to be) effectively connected with the conduct of a trade or business within the United States.
The form Form W8BEN is used for income that is not effectively connected - and that form you need to use.

Because you are a nonresident alien - the administrator of that retirement fund is required to withhold 30% for federal income tax - and that withholding would fully satisfy your liability if you do not claim tax treaty benefits.
If you spread distribution over several years - for periodic distribution s you may claim tax treaty benefits - means your distribution would not be taxable in the US and will be taxable in the UK based on your residency.
If you claim tax treaty benefits - that is done on form W8BEN - and there should not be any withholding.
You are not required to claim tax treaty benefits - that is your choice.
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22638
Experience: Taxes, Immigration, Labor Relations
Lev and 9 other Tax Specialists are ready to help you
Customer: replied 8 months ago.

Thanks Lev for a great service
Customer: replied 8 months ago.

Hi Lev


 


I think I have finally sorted this out, with your help. I can claim tax treaty benefits with 0% withholding from the USA. When I withdraw my lump sum payment I will not have to pay tax on it in the UK according to HMRC because my father died before 75. 'If you die before 75 (death in Service) pension schemes that pay a lump sum are usually tax-free if you haven't used up your lifetime allowance'. I also read in the treaty that the UK does not withhold tax for lump sums unless the deceased had already started taking payments, then its 55% tax.


 


Why do they make it so complicated?


 


 

Expert:  Lev replied 8 months ago.
The main issue is that each country has its own tax laws and regulations.
Thus - taxation rules might be very different - certain income might be taxable in one country but not taxable in another - or may be taxable in both countries.
The complications come when transactions are subject of tax laws of both countries - and the main purpose of the tax treaty - to avoid situations when the same income is taxable twice in both contracting countries.

The US-UK tax treaty is titles as "Convention between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains" - see here - http://www.treasury.gov/resource-center/tax-policy/treaties/Documents/uktreaty.pdf

See page 18 - ARTICLE 17
Pensions, Social Security, Annuities, Alimony, and Child Support
1. a) Pensions and other similar remuneration beneficially owned by a resident of a Contracting State shall be taxable only in that State.
b) Notwithstanding sub-paragraph a) of this paragraph, the amount of any such pension or remuneration paid from a pension scheme established in the other Contracting State that would be exempt from taxation in that other State if the beneficial owner were a resident thereof shall be exempt from taxation in the first-mentioned State.
2. Notwithstanding the provisions of paragraph 1 of this Article, a lump-sum payment derived from a pension scheme established in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in the first-mentioned State
.

As you see - lump-sum payments are treated differently that periodic distributions - a lump-sum payment derived from a pension scheme established in a Contracting State (US in your case) and beneficially owned by a resident of the other Contracting State (UK in your case) shall be taxable only in the first-mentioned State (means in the US).

Thus - while the lump-sum distribution might be not taxable in the UK - that will make no difference because it will be subject of US income tax.
Customer: replied 8 months ago.

Thank you for your reply Lev - I realised my mistake after I asked you the question. They make tax laws so complex (I feel very stupid for asking so many questions) yet a lot of the answers and interpretations can be varied depending who answers the question.


Can I request an initial large instalment followed by a few small ones so long as its distributed in 5 years as part of the tax treaty agreement?


Also does it make a difference that it wasn't my pension in the first place, I haven't built one up and then gone back to the UK i've always lived here?

Expert:  Lev replied 8 months ago.
Can I request an initial large installment followed by a few small ones so long as its distributed in 5 years as part of the tax treaty agreement?
You may take a partial lump sum and then periodic distributions - as long as the administrator allows such distributions - that is not an issue - the main question is how these distributions are taxed in the US. And as you know lump sum distribution and periodic distributions are taxed differently.

Also does it make a difference that it wasn't my pension in the first place, I haven't built one up and then gone back to the UK i've always lived here?
As long as you are a beneficiary owner of the retirement account - it doesn't matter how you became the beneficiary owner. However - because you inherited that account - there are certain distribution rules according to US tax regulations.
Lev, Tax Advisor
Category: Tax
Satisfied Customers: 22638
Experience: Taxes, Immigration, Labor Relations
Lev and 9 other Tax Specialists are ready to help you
Customer: replied 8 months ago.

Hi Lev


 


Is it possible as a non-spouse beneficiary to roll the 401K into an inherited ROTH IRA?


In doing that will it generate tax due on ONLY employee contributions made to the 401K?


As a non-resident alien would this tax be 30% flat and I would need to submit an irs form?


I could then take periodic payments tax free in the us and uk?


 


Many Thanks Smile


 


 

Expert:  Lev replied 8 months ago.
You pointed to a very interesting issue..
Please be aware that when qualified retirement plan is transferred to a Roth IRA - that transaction is called "conversion" and in this case - the full transferred amount is taxable - not ONLY employee contributions as you suggested. In this case - a non-resident alien would be subject of 30% flat rate.
On other hand - as a beneficiary of the inherited 401k account - you may transfer it to so-called "inherited IRA" account.
Generally - inherited IRA account may be as traditional IRA as Roth IRA.
However - the question is - if beneficiaries of inherited qualified retirement plans - such as 401k plans - are eligible for conversion?
I was not able to find any information about that.
The question you raised is very interesting - and I will try to clarify - but that might take some time.
Expert:  Lev replied 8 months ago.
After some additional research - here is an update -
Beneficiaries of the inherited retirement-plan assets is allowed to rollover into inherited Roth IRAs. However, they must do that via a direct rollover or trustee-to-trustee transfer - which may be not allowed by the plan - so that still need to be verified with the plan administrator.
See for reference this IRS notice 2008-30 - http://www.irs.gov/pub/irs-drop/n-08-30.pdf
Q-7. Can beneficiaries make qualified rollover contributions to Roth IRAs?
A-7. Yes. In the case of a distribution from an eligible retirement plan other than a Roth IRA, the MAGI and filing status of the beneficiary are used to determine eligibility to make a qualified rollover contribution to a Roth IRA. Pursuant to § 402(c)(11), a plan may but is not required to permit rollovers by nonspouse beneficiaries and a rollover by a nonspouse beneficiary must be made by a direct trustee-to-trustee transfer. A nonspouse beneficiary that is ineligible to make a qualified rollover contribution to a Roth IRA may recharacterize the contribution pursuant to § 408A(d)(6). A surviving spouse who makes a rollover to a Roth IRA may elect either to treat the Roth IRA as his or her own or to establish the Roth IRA in the name of the decedent with the surviving spouse as the beneficiary. (See Notice 2007-7, Q&A-13, for a rule on how to title a beneficiary IRA.) A nonspouse beneficiary cannot elect to treat the Roth IRA as his or her own. (See Notice 2007-7, Part V.)
In the case of a rollover where the beneficiary does not treat the Roth IRA as his or her own, required minimum distributions from the Roth IRA are determined in accordance with Notice 2007-7, Q&As -17, -18 and -19.

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