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  #21  
Old 22.05.2012, 18:13
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Re: US Tax Basics 101

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I don't understand this part. Why do you say it is non-qualifying? We can't defer the taxes paid so why split hairs like this? They don't consider Pillar 2 a retirement account, they consider it ordinary income.
No, it is a retirement account and is recognised as such, but it is not a qualifying pension plan under US rules. Thus, is treated as reportable income deemed as deferred compensation but does not qualify as earned income ended the s.911 earned income exclusion.
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Old 22.05.2012, 18:18
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Re: US Tax Basics 101

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As for using the FEIE for second pillar, I think it is a grey area, again search the EF, and you will likely get different opinions.
.
from the US-Swiss tax treaty:

"ARTICLE 18
1. Subject to the provisions of Article 19 (Government Service and Social Security), pensions and other similar remuneration beneficially derived by a resident of a Contracting State in consideration of past employment shall be taxable only in that State. "


I have to wonder what "subject to the provisions of Article 19" means exactly. Here's article 19:

ARTICLE 19
Government Service and Social Security
1. a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
i) is a national of that State; or
ii) did not become a resident of that State solely for the purpose of
rendering the services.
2. a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.


I would say the intention of this part of the treaty is to AVOID that pensions are double-taxed. Anyone with me on this? Now, the only thing I can possibly read into it otherwise, would be that it's somehow cleverly worded to mean that only gov'ment employees are to benefit from this aspect of the treaty. Wouldn't that be funny?! It's already weird that article 18 is immediately referring to an article that you haven't even come to yet, article 19.

By the way, has anyone ever tried to try to get a clarification on the treaty by doing this:
http://taxmap.ntis.gov/taxmap/pubs/p...m#TXMP06f96e7a

I have seen the ACA and Isaac Brock websites, plenty of good stuff on there, but I have not seen the issue of the 2nd pillar, practically a universal problem for any US wage earner in CH, addressed in depth. In fact the ACA website's advice is simply that "employer contributions to foreign pension plans as well as growth in the plan may (my emphasis) need to be reported as income." "May" sounds like an answer I might get if I asked the IRS directly! Of course between "reporting" the contributions and being able to subsequently exclude them with the FEIE, is a jump. That is why I again look to the treaty for guidance on double taxation... and I would like to think I understand what it says...
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  #23  
Old 22.05.2012, 18:19
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Re: US Tax Basics 101

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No, it is a retirement account and is recognised as such, but it is not a qualifying pension plan under US rules. Thus, is treated as reportable income deemed as deferred compensation but does not qualify as earned income ended the s.911 earned income exclusion.
Would you mind pointing me to the right place on the IRS website to read about this? I understood things a bit differently. Thanks!
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Old 22.05.2012, 18:26
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Re: US Tax Basics 101

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from the US-Swiss tax treaty:

"ARTICLE 18
1. Subject to the provisions of Article 19 (Government Service and Social Security), pensions and other similar remuneration beneficially derived by a resident of a Contracting State in consideration of past employment shall be taxable only in that State. "

I think this refers to pension payments you receive upon retirement?
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Old 22.05.2012, 18:29
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Re: US Tax Basics 101

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No, it is a retirement account and is recognised as such, but it is not a qualifying pension plan under US rules. Thus, is treated as reportable income deemed as deferred compensation but does not qualify as earned income ended the s.911 earned income exclusion.
You're saying the important distinction here is between "earned" and "unearned" income with regard to the FEIE? Well, that get's me even more riled up (see my post above re: the tax treaty) because in what way is my employer's contribution to the 2nd pillar not "earned"? For me it is nothing more than extra wages that the Swiss gov. forces me to not touch without good reason, letting it instead sit earning interest in an account so that later in life I potentially will not be such a burden on society! It is definitely "earned" by any logical meaning of the term. For the US to arbitrarily deem it "unearned" seems to contradict the tax treaty by triggering double taxation.
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  #26  
Old 22.05.2012, 18:31
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Re: US Tax Basics 101

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I think this refers to pension payments you receive upon retirement?
Right, but that's what the 2nd pillar is! The question is just on tax-it-going-in or out or both ways by both countries or what! We have a right to know!!
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  #27  
Old 22.05.2012, 18:49
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Re: US Tax Basics 101

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Would you mind pointing me to the right place on the IRS website to read about this? I understood things a bit differently. Thanks!
Qualified plans i.e. IRC 401 and ERISA (Employee Retirement Income Security Act)

http://www.irs.gov/retirement/articl...112858,00.html

Page 2 of the 2555 instructions discuss in Part IV "Foreign Earned Income". For ref:

Not foreign earned income: Foreign earned income does not include the following amounts:
  • Pay received as a military or civilian employee of the U.S. Government or any of its agencies
  • Pay for services conducted in international waters (not a foreign country)
  • Pay in specific combat zones, as designated by an Executive Order from the President, that is excludable from income
  • Payments received after the end of the tax year following the year in which the services that earned the income were performed
  • The value of meals and lodging that are excluded from income because it was furnished for the convenience of the employer
  • Pension or annuity payments, including social security benefits
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  #28  
Old 22.05.2012, 19:03
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Re: US Tax Basics 101

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  • Pension or annuity payments, including social security benefits
Ok thanks, so I am just looking at this differently than you. I see the key as being "payments" in this reference. Payments are from Pillar 2 and benefits are from pillar 1 on distribution.

But contributions I consider seperately. We pay US taxes (applying FEIE) now on contributions, and then Swiss taxes when we withdraw pillar 2 (whether in 1 year, 2 years, retirement) And wherever we reside when we collect pillar 1 we pay taxes.

I need to dig into the link on the plans- I had read before that the US just doesn't consider pillar 2 a plan of any sort.
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  #29  
Old 22.05.2012, 19:20
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Re: US Tax Basics 101

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Ok thanks, so I am just looking at this differently than you. I see the key as being "payments" in this reference. Payments are from Pillar 2 and benefits are from pillar 1 on distribution.

But contributions I consider seperately. We pay US taxes (applying FEIE) now on contributions, and then Swiss taxes when we withdraw pillar 2 (whether in 1 year, 2 years, retirement) And wherever we reside when we collect pillar 1 we pay taxes.

I need to dig into the link on the plans- I had read before that the US just doesn't consider pillar 2 a plan of any sort.
To be clear, you pay US taxes, applying FEIE on your contributions. Is that correct?

The best way to look at it, I think, is your not really taxed on your contributions. You are taxed on your gross compensation/salary which would be the case in any event. What you do with your salary, for example contribute to Pillar 2 in the instance is not the issue i.e. you report salary pre your own contribution to Pillar 2, on Line 7. What you want to ensure you do is establish what part of the gross comp reported was your Pillar 2 contribution, so you can track the basis.


Your Pillar 2 contribution then decreases your Swiss taxable income. Which in effect increases your US tax.

Your employer then matches or pays more into the Pillar 2. This, as it does not meet the qualified plan rules, but is clearly a pension plan none the less, means you are receiving deferred compensation. Deferred compensation needs to be reported. As the FEIE does not allow you to offset against pension payments (i.e. your employer has made pension payments), you can not exlcude this.
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  #30  
Old 22.05.2012, 22:04
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Re: US Tax Basics 101

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To be clear, you pay US taxes, applying FEIE on your contributions. Is that correct?

The best way to look at it, I think, is your not really taxed on your contributions. You are taxed on your gross compensation/salary which would be the case in any event. What you do with your salary, for example contribute to Pillar 2 in the instance is not the issue i.e. you report salary pre your own contribution to Pillar 2, on Line 7. What you want to ensure you do is establish what part of the gross comp reported was your Pillar 2 contribution, so you can track the basis.


Your Pillar 2 contribution then decreases your Swiss taxable income. Which in effect increases your US tax.

Your employer then matches or pays more into the Pillar 2. This, as it does not meet the qualified plan rules, but is clearly a pension plan none the less, means you are receiving deferred compensation. Deferred compensation needs to be reported. As the FEIE does not allow you to offset against pension payments (i.e. your employer has made pension payments), you can not exlcude this.
But wouldn't "Pension or annuity payments, including social security benefits" refer to pay-outs, rather than pay-ins?

The last part "including ss benefits" would seem to indicate that that "pension or annuity payments" means payments you receive from the pension, not necessarily what you, or your employer, puts in. This is very unclear!

For example, if we were to interpret this as you are (as meaning "pay-ins" I'll call it) than it would be patently wrong, because I can for example take some of my foreign-earned income (recognized as such and excluded under the FEIE, thus not taxed) and add it to my 2nd pillar (2nd pillar buy-back for missing years). This would not be taxed AGAIN by the US when I put it in my 2nd pillar! Thus to state that "pension payments" are not foreign-earned income would be false, because payments made by oneself can definitely be from foreign-earned income, and ackowledged as such! Therefore, perhaps the IRS wording refers to pay-outs from, and not pay-ins to, the 2nd pillar.

Sorry to be so wordy. I am trying to wrestle your interpretation free from the actual wording of the IRS documentation, which to me is still not clear. What's more, there still seem to be people out there who think this is a "grey area" (see recent post by runningdeer). It makes me crazy that we are left guessing on such a fundamental question.

Any thoughts on my previous post about the tax treaty itself?
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  #31  
Old 22.05.2012, 22:16
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Re: US Tax Basics 101

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Not foreign earned income: Foreign earned income does not include the following amounts:
  • Pension or annuity payments, including social security benefits
I have a sneaky feeling that this is supposed to clarify for Americans retired abroad and attempting to do their taxes, that their US social security or pension pay-outs (presumably from a US pension plan) are not considered foreign earned income.

Don't forget that until recently the IRS really had to stretch its collective imagination to understand the reality of the variety of situations of US citizens living abroad, whereas it was always rather well-known that some go to retire in Mexico-- or what-ever place will stretch their retirement dollars a bit further. I think this wording is the OLD PARADIGM!

Need new wording for new paradigm.
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  #32  
Old 23.05.2012, 10:25
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Re: US Tax Basics 101

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I think this refers to pension payments you receive upon retirement?

Correct. Treaty only covers when you are receiving benefits from the pension, not when you are contributing/making contributions to it.
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  #33  
Old 23.05.2012, 10:37
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Re: US Tax Basics 101

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But wouldn't "Pension or annuity payments, including social security benefits" refer to pay-outs, rather than pay-ins?
Agreed. I think JBZ is referring to benefits side, and the last item on the list for me clearly refers to the payouts. However, we are talking about the contribuitons, and as I said before, I think most tax attorneys agree it is a grey area.

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It is definitely "earned" by any logical meaning of the term. For the US to arbitrarily deem it "unearned" seems to contradict the tax treaty by triggering double taxation.
I would suggest you visit Jack Townsends blog, he is a tax attorney dealing with a lot of these issues, and apparently had a meeting with the IRS fighting for Canadian RRSP, which is more or less the equivalent of Swiss 2nd pillar. I think you can learn a lot from his website, and perhaps even contact him directly, he is on the ACA tax commmittee and fighting a lot of these issues in Washington at the moment. I understood he was going to address the similar issues after the Canadian RRSP got a favorable outcome. http://federaltaxcrimes.blogspot.com/
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Old 23.05.2012, 10:41
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Re: US Tax Basics 101

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Correct. Treaty only covers when you are receiving benefits from the pension, not when you are contributing/making contributions to it.
So in fact the treaty is not designed to avoid double-taxation, but rather designed to avoid TRIPLE-taxation. Since it is common knowledge that the 2nd pillar will be taxed in Switzerland upon pay-out (no grey area there), the US renounces also taxing it on pay-out, but resigns itself to "just" taxing the pay-ins? Rather than duking it out and fighting for scraps, the two countries collude to double-tax? If it's true that the US-UK treaty is much better designed in this respect, why the IRS's "willful" intention to double-tax in the case of Switzeland?
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Old 23.05.2012, 10:48
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Re: US Tax Basics 101

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Agreed. I think JBZ is referring to benefits side, and the last item on the list for me clearly refers to the payouts. However, we are talking about the contribuitons, and as I said before, I think most tax attorneys agree it is a grey area.



I would suggest you visit Jack Townsends blog, he is a tax attorney dealing with a lot of these issues, and apparently had a meeting with the IRS fighting for Canadian RRSP, which is more or less the equivalent of Swiss 2nd pillar. I think you can learn a lot from his website, and perhaps even contact him directly, he is on the ACA tax commmittee and fighting a lot of these issues in Washington at the moment. I understood he was going to address the similar issues after the Canadian RRSP got a favorable outcome. http://federaltaxcrimes.blogspot.com/
Thanks for the tip, I'll check it out. I think ACA could definitely develop a clearer stance on this particular issue. While IRS litigation and FATCA create a lot of problems for US citizens basic economic rights abroad (i.e. the ability to have a simple bank account), and FBAR punishments are clearly draconian and disproportionate, I find the foreign pension issue much more fundamental in a way.
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  #36  
Old 23.05.2012, 11:35
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Re: US Tax Basics 101

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So in fact the treaty is not designed to avoid double-taxation, but rather designed to avoid TRIPLE-taxation. Since it is common knowledge that the 2nd pillar will be taxed in Switzerland upon pay-out (no grey area there), the US renounces also taxing it on pay-out, but resigns itself to "just" taxing the pay-ins? Rather than duking it out and fighting for scraps, the two countries collude to double-tax? If it's true that the US-UK treaty is much better designed in this respect, why the IRS's "willful" intention to double-tax in the case of Switzeland?
Remember the Swiss-US tax treaty is quite old, before a lot of this came to the forefront, much before FATCA, UBS cases, etc.. They keep signing new tax treaties between themselves (US-CH), but none has been put into force yet. From what I recall of the media reporting, it seems as they keep unearthing new pieces of the UBS case, and now taking it further to other banks, the Swiss side is only concerned with this aspect. US side is of course only out for stronger enforcement on this and similar Fatca type, these are still on-going and the main concerns, thus pensions and other 'frivioous' nuiances get put aside. Only some intense lobbying on the side of US and CH will likely get this solved.
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Old 24.05.2012, 13:27
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2nd Pillar Reporting: 8938 OR FBAR?

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Have provided brief answers in bold above
2nd Pillar Balance Reporting: 8938 or FBAR?

One issue that is concerning me is that JBZ mentioned that he has been reporting the year end 2nd Pillar company pension balance on FBAR. My understanding from other posts is it is not necessary to declare this in the FBAR form but would now begin reporting in the new FACTA form 8938 if the balance is over 200kUSD.
Question: Let's say there is a balance of 150kUSD in the 2nd Pillar Pension company pension fund.
If one were to suddenly declare this on the FBAR, wouldn't the IRS impose a 27% or more penalty?
Otherwise is it not better to wait until it reaches 200kUSD and then report only on form 8938?
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  #38  
Old 24.05.2012, 16:24
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Re: 2nd Pillar Reporting: 8938 OR FBAR?

From everything I've read, you don't report pillar 2 on FBAR but do on 8938 if your total foreign assets (so not just the pension) are over $200,000 (if you're not filing a joint return and are a foreign resident - $400,000 if filing a joint return).

However, I'd be curious to hear about someone who does report the pillar 2 on FBAR and why?

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2nd Pillar Balance Reporting: 8938 or FBAR?

One issue that is concerning me is that JBZ mentioned that he has been reporting the year end 2nd Pillar company pension balance on FBAR. My understanding from other posts is it is not necessary to declare this in the FBAR form but would now begin reporting in the new FACTA form 8938 if the balance is over 200kUSD.
Question: Let's say there is a balance of 150kUSD in the 2nd Pillar Pension company pension fund.
If one were to suddenly declare this on the FBAR, wouldn't the IRS impose a 27% or more penalty?
Otherwise is it not better to wait until it reaches 200kUSD and then report only on form 8938?
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  #39  
Old 25.05.2012, 13:43
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Re: 2nd Pillar Reporting: 8938 OR FBAR?

I report mine on the FBAR forms. As I see it, better to be overly honest than not report it and paying a fine. Eventually I want to renounce my citizenship, so I want to be in the all clear with IRS.

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However, I'd be curious to hear about someone who does report the pillar 2 on FBAR and why?
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Old 01.09.2012, 13:35
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Re: US Tax Basics 101

I learned today that North Korea and Eritrea also tax based on citizenship. So, the US is in very fine company indeed....
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