Qualified individuals in Canada can start a Tax Free Savings Account (TFSA) and earn income in a tax-free manner. The TFSA account provides tax benefits for savings where investment income earnings, including capital gains and dividends, are not taxed when withdrawn. However, unlike the Registered Retirement Savings Plans (RRSP), contributions to a TFSA are not tax deductible for the annual income tax purpose.

The TFSA offers a lucrative and general-purpose savings  vehicle for Canadians, who are living in Canada. However, it may not turn out to be as good as it seems for anyone who is subject to tax codes by the US Internal Revenue Service (IRS). This is because, unlike the RRSP, the Internal Revenue Service does not grant tax-deferred status to the Canadian TFSA. Since any income generated in the TSFA is taxed under US law, this taxable status usually takes away any fringe benefits of having a TFSA account for most Canadians residing in the U.S.

Moreover, most Canadians will be required to report the TFSA to the US Department of Treasury on an annual basis, as it is mandatory to submit the Report of Foreign Bank and Financial Account Form TD F 90-22.1. If you are a Canadian, living in the US as a resident, you may have to pay penalties for failing to disclose the TFSA account, which is termed as a foreign bank account.

Again, there are additional concerns regarding whether or not the TFSA will be considered as a foreign trust  under the US tax law. There is considerable confusion regarding this, as the Internal Revenue Service (IRS) has not revealed their official position on this issue yet. In the circumstance that the IRS decides to consider the TFSA as a foreign trust, the Canadian, who is a U.S. taxpayer, will be termed as an owner of a non-resident trust. As a consequence, the Form 3520-A, titled “Annual Information Return of Foreign Trust With a U.S. Owner,” will be required to be filed within two and half months once the trust’s year ends. Any failure to submit the Form 3520-A with the IRS will be subjected to a penalty greater than $10,000 or 5-percent of the gross value of the trust, which is the total amount left in the TFSA at the end of the tax year.

Then, under the Form 3520, titled “Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts,” it may be required to disclose contributions to and withdrawals from the TFSA to the IRS. Any failure to submit this additional form may result in a penalty equal to 35- percent of the contribution or withdrawal amount.

In conclusion, Cardinal Point Wealth Management recommends that U.S. taxpayers, regardless of their current residency status in the U.S. or abroad, consider not contributing to an existing TFSA, withdrawing all remaining TFSA funds, and stopping the use of the account. Following these steps, avoids taxation in both Canada and the United States. For further advice on navigating the complications of cross-border wealth management and taxations, contact us today.