More Thoughts on UK Pensions – 2024

Now, we have previously written about UK pensions https://htj.tax/?s=uk+isa

Recently we have been asked – “ Are you able to confirm whether or not a UK PCLS is taken tax-free in the US? I’m seeing loads of conflicting answers online as some believe it is not taxed at a Federal level but may be taxed at State level?”

Our thoughts on this controversial area were expressed here – https://htj.tax/2020/10/us-taxation-of-uk-pension-plans/

Another question – “What about SIPPs”

With regards to SIPPs, many providers employ a trust structure, which as mentioned in reportable. As to whether it is taxable?   It will only receive protection under the tax treaty if it is “wrapped” as a pension plan in the UK, meaning it complies with certain rules.   However, there are rare situations where it’s more tax efficient to NOT invoke the tax treaty.  If you do invoke the treaty then contributions and gains will not be taxed until distribution. If you do not, then contributions and gains are taxable, but you may get a Foreign Tax Credit on your US taxes.  Lastly, there is the issue of US states.  This could, for instance, mean that dividends within a SIPP are subject to state taxes – even if they are exempt at the federal level because tax treaties are Federal not state level.

Please contact your preferred US tax professional for guidance

However, the U.S.-U.K. tax treaty offers a rare exception to these rules. For example, if a U.S. national is living and working in the U.K. and is contributing to a qualified U.K. pension, he or she could receive a tax deduction in the United States for the contribution to the U.K. plan. This deduction would be available only for so long as the U.S. person resides in the U.K. and may not exceed the tax relief that would be allowed in the United States under Sec. 402(g) (U.S.-U.K. Income Tax Treaty, Art. 18, ¶5).
Alternatively, the U.S. national, while living and working in the U.K., can continue to contribute on a pretax basis to his or her U.S. 401(k) plan, provided that the individual was already enrolled in the U.S. plan prior to his or her departure (Art. 18, ¶¶2a and 3a). Furthermore, under the tax treaty, employer contributions to the employee’s pension do not constitute compensation and are considered a business expense in computing the employer’s profit and loss (Art. 18, ¶2b).
The treaty thus allows transferred employees to continue to contribute to their home country pension plans without having the employer portion of the contribution be considered taxable income in the host country. Additionally, both employer and employee contributions to the home country pension plan are tax-deductible in the host country (Art. 18, ¶¶2a and 2b).

Certain conditions apply:

  • The limits of the host country govern. For example, if a U.K. national works in the United States and continues to participate in a U.K. pension plan, he or she cannot deduct more than the limit prescribed in the United States (the host country) under Sec. 402(g).
  • The employee must have already been participating in the home country pension plan before moving to the host country.
  • The pension plan must be accepted as a generally corresponding pension scheme by the appropriate authorities in the host country (Art. 18, ¶2, 3).

Taxation of retirement earnings/growth

As noted above, earnings accumulating in a foreign pension plan that is deemed to be a foreign grantor trust ordinarily must be included in income. This would apply, for instance, to earnings inside a U.K. self-invested personal pension (SIPP), given that it is fully funded by the employee.
However, the U.S.-U.K. tax treaty alters this rule by clearly indicating that income earned by the pension scheme may be taxed as income of that individual only when distributed, meaning that earnings inside the plan are tax-deferred (Art. 18, ¶1).
What about rollovers?A U.K. national is allowed rollovers from one approved pension plan to another U.K. plan. Similarly, a rollover from a U.S. 401(k) plan is allowed to another, say, 401(k) or traditional IRA. By contrast, an individual cannot make a rollover from a U.K. to a U.S. plan and vice versa (see Chief Counsel Advice Memorandum AM2008-009, advising that a transfer from a U.K.-registered pension outside of the original state (the U.K.) is not an “eligible rollover distribution” under Sec. 402(c)(4)).
Special attention should be given to U.K. pension rollovers to offshore plans, such as the qualifying recognized overseas pension scheme (QROPS) and the recognized overseas pension scheme (ROPS) plans, which are offshore plans that are sometimes set up in countries such as Malta, Gibraltar, and the Isle of Man. Even though these are permitted under U.K. law, once these rollovers occur, they are no longer governed by the provisions of the U.S.-U.K. tax treaty.

Taxation of retirement distributions

According to Article 17 of the U.S.-U.K. tax treaty, the country of residence at the time of distribution has the sole right to tax the distribution (Art. 17, ¶1a).
However, this provision must be read in tandem with the “saving clause” found in Article 1 (General Scope), under which the United States and the U.K. each reserve a broad right to tax their own citizens “as if this Convention had not come into effect” (Art. 1, ¶4). Due to the saving clause, a U.S. citizen who is a resident of the U.K. and receives a pension payment will be subject to U.S. tax, notwithstanding the language in Article 17.
Under a separate provision of the tax treaty that is expressly not subject to the saving clause, if an individual would have enjoyed tax-exempt status for all or a portion of the distributions in the home country, the host country will confer the same benefit (Art. 17, sub ¶1(b)).

Review all retirement plans and tax treaties

Planning for income taxation of pension schemes when countries outside the United States are involved should include a review of all retirement plans and applicable tax treaties as well as taxpayers’ long-term retirement goals. Special attention should be given in these situations, as some classifications in the Code and Treasury regulations leave room for interpretation.

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Derren works with International Entrepreneurs, Expats and Investors who are exposed to multiple jurisdictions. Tax optimization. Asset Protection. Compliance Obligations. Strategies include second citizenships, second residencies, trusts, foundations, insurance wrappers and other offshore structures.

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