401(K) can not be rolled over to IRA while working for a Canadian Subsidiary - Dan Walkow - Seabank Capital - david ingram exper

QUESTION: I'm a CDN citizen who lived and worked in the US for 3 years.  During that time, I participated in my company's 401K plan.  I have since transferred back to Canada and am working for the same company, but for the Canadian subsidiary.  I was effectively terminated from the US parent when hired by the CDN subsidiary.  I now participate in the sub's RRSP plan.  I'm looking to transfer my vested funds within the 401K plan into an established IRA in the US.  My employer is telling me that I can't transfer the 401K funds to the IRA as I'm still an employee of the "company".  Does this sound correct, or should I be able/allowed to make the transfer to the IRA?

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david ingram replies:

If working for a subsidiary of a US company, you are still working for the Company in anyone's parlance.  In the reverse, that situation would allow you to claim a Canadian Overseas Tax Credit and you could be very happy.
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However, my opinion is irrelevant.  It depends upon the written rules within the plan and there are likely 4,000 or more different rules for basic 401(K) plans and another 3,000 different sets of rules regarding employees of subsidiaries and another 1,000 in particular for foreign or overseas subsidiaries.

Dan Walkow at www.seabankcapital.com is the person to ask.  He is one of very few people who is set up to deal with cross border situations like yours.

Telephone: 604-541-9952 | Toll Free: 1-866-541-9952 | Fax: 604-542-5642

D.G. (Dan) Walkow, CFA, CMT, Managing Director & Portfolio Manager: dan@seabankcapital.com
Ajbinder (AJ) Sull, BBA, MBA, CFA, Portfolio Manager:
aj@seabankcapital.com
Paul Bains, BBA, MBA, CFP, Associate Portfolio Manager: paul@seabankcapital.com              

ADDRESS        

Seabank Capital Management Inc.
Suite 301, 1959-152nd Street
White Rock, British Columbia,
 Canada V4A 9E3

hope this helps.

Remember that you are looking at Dual Status US Returns for the year you leave the US. Make sure the person who you hire to do your US return for the departing year can tell you the dual status rules without having to look it up.If they have to look it up or say "duh!", find someone else.  If you do not want to deal here, I recommend the following:
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Gary Gauvin is absolutely qualified to deal with you.  He is an old business partner of mine from Ottawa.  He now practices outside of Dallas Texas as a one or 1 1/2 person office.  If you deal with Gary, you will deal with Gary.  He is a US enrolled agent.  You can find his website easily.  Type - income Tax Expert -  into
google.  Gary will come up as number one or two.  Why, because he is.  If I am looking for a first or second opinion, I call Gary. Disadvantage -
Gary is a one person office.  Advantage - You will always get to talk to Gary.

Gary likes corporations.  I  and my three associates do not like them. I like dealing with individuals who deal cross-border withOUT corporations.

OR   KPMG in Vancouver. The last time  I checked they had 22 people in their US/Canada department.  call (604) 691-3025.  Advantage - Lots of Backup.  Disadvantage - It will be hard to get the same person to deal with you three times in a row.

OR   Steve Peters with KPMG in Halifax (902) 492-6011

OR    Kevin Nightingale in Toronto (416) 733-9595

OR     Len Vandenberg with BDO Dunwoody in Kelowna, BC.  (250) 763-7600

OR    Brad Howland in Victoria at (250) 598-6258

Whoever you choose, you would likely do well to consult with me for one or two hours a year.  If I have a suggestion, it will be worth it.  If I can't come up with anything, you will know that what you are doing is likely the best track.  I will compare it to my dentist.  When I went in the fall of 2005, I ended  up with $16,000 to $18,000 of dental bills, a bunch of pain, and a lot of nice new caps, etc. 

When I went for an inspection on Jan 29th, he could not find anything wrong except that I was not flossing.  Which one did i appreciate more?

Well both - the first time was expensive but dealt with years of neglect.  The second said I am on the right track.

As I said, Gary is an old partner and Steve Katz started his tax career with me in the 70's.  I have met Brad Howland once and never met or talked to Steve Peters, Len Vandenberg or Kevin Nightingale that I know of or remember.  My recommending the above people is based upon the quality of work they have done that has come across my desk as people move or divorce or break up partnerships and need a second opinion or a new US / Canada Tax Consultant.

I have met Dan Walkow once in person and talked to him a dozen times.  We are also talking about doing a North American US Canada Internet Radio show on cross border investing and taxes in the near future

Good luck.

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SUGGESTED PRICE GUIDELINES - Aug 5, 2008
 
david ingram's US / Canada Services
US / Canada / Mexico tax, Immigration and working Visa Specialists
US / Canada Real Estate Specialists
My Home office is at:
4466 Prospect Road
North Vancouver,  BC, CANADA, V7N 3L7
Cell (604) 657-8451 -
(604) 980-0321 Fax (604) 980-0325

Calls welcomed from 10 AM to 9 PM 7 days a week  Vancouver (LA) time -  (please do not fax or phone outside of those hours as this is a home office) expert  US Canada Canadian American  Mexican Income Tax  service help.
pert  US Canada Canadian American  Mexican Income Tax  service and help.
David Ingram gives expert income tax service & immigration help to non-resident Americans & Canadians from New York to California to Mexico  family, estate, income trust trusts Cross border, dual citizen - out of country investments are all handled with competence & authority.
 
Phone consultations are $450 for 15 minutes to 50 minutes (professional hour). Please note that GST is added if product remains in Canada or is to be returned to Canada or a phone consultation is in Canada. ($472.50 with GST for in person or if you are on the telephone in Canada) expert  US Canada Canadian American  Mexican Income Tax  service and help.
This is not intended to be definitive but in general I am quoting $900 to $3,000 for a dual country tax return.

$900 would be one T4 slip one W2 slip one or two interest slips and you lived in one country only (but were filing both countries) - no self employment or rentals or capital gains - you did not move into or out of the country in this year.
 
$1,200 would be the same with one rental
 
$1,300 would be the same with one business no rental
 
$1,300 would be the minimum with a move in or out of the country. These are complicated because of the back and forth foreign tax credits. - The IRS says a foreign tax credit takes 1 hour and 53 minutes.
 
$1,600 would be the minimum with a rental or two in the country you do not live in or a rental and a business and foreign tax credits  no move in or out

$1,700 would be for two people with income from two countries

$3,000 would be all of the above and you moved in and out of the country.
 
This is just a guideline for US / Canadian returns
 
We will still prepare Canadian only (lives in Canada, no US connection period) with two or three slips and no capital gains, etc. for $200.00 up. However, if you have a stack of 1099, or T3 or T4A or T5 or K1 reporting forms, expect to pay an average of $10.00 each with up to $50.00 for a K1 or T5013 or T5008 or T101 --- Income trusts with amounts in box 42 are an even larger problem and will be more expensive. - i.e. 20 information slips will be at least $350.00
 
With a Rental for $400, two or three rentals for $550 to $700 (i.e. $150 per rental) First year Rental - plus $250.
 
A Business for $400 - Rental and business likely $550 to $700
 
And an American only (lives in the US with no Canadian income or filing period) with about the same things in the same range with a little bit more if there is a state return.
 
Moving in or out of the country or part year earnings in the US will ALWAYS be $900 and up.
 
TDF 90-22.1 forms are $50 for the first and $25.00 each after that when part of a tax return.
 
8891 forms are generally $50.00 to $100.00 each.
 
18 RRSPs would be $900.00 - (maybe amalgamate a couple)
 
Capital gains *sales)  are likely $50.00 for the first and $20.00 each after that.

Catch - up returns for the US where we use the Canadian return as a guide for seven years at a time will be from $150 to $600.00 per year depending upon numbers of bank accounts, RRSP's, existence of rental houses, self employment, etc. Note that these returns tend to be informational rather than taxable.  In fact, if there are children involved, we usually get refunds of $1,000 per child per year for 3 years.  We have done several catch-ups where the client has received as much as $6,000 back for an $1,800 bill and one recently with 6 children is resulting in over $12,000 refund. 

Email and Faxed information is convenient for the sender but very time consuming and hard to keep track of when they come in multiple files.  As of May 1, 2008, we will charge or be charging a surcharge for information that comes in more than two files.  It can take us a valuable hour or more  to try and put together the file when someone sends 10 emails or 15 attachments, etc. We had one return with over 50 faxes and emails for instance. 

This is a guideline not etched in stone.  If you do your own TDF-90 forms, it is to your advantage. However, if we put them in the first year, the computer carries them forward beautifully.

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IRS Circular 230 Disclosure:  To ensure compliance with requirements imposed by the IRS, please be advised that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used or relied upon, and cannot be used or relied upon, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.--

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Disclaimer:  This question has been answered without detailed information or consultation and is to be regarded only as general comment.   Nothing in this message is or should be construed as advice in any particular circumstances. No contract exists between the reader and the author and any and all non-contractual duties are expressly denied. All readers should obtain formal advice from a competent and appropriately qualified legal practitioner or tax specialist for expert help, assistance, preparation, or consultation  in connection with personal or business affairs such as at www.centa.com or www.garygauvin.com.  If you forward this message, this disclaimer must be included." -


 




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