April 1994         Pages 35-43

the CEN-TA PEDE

david ingram's US/Canadian Newsletter

 

CABINS ACROSS THE BORDER and "SNOWBIRDS"

 

I recently received a copy of a newsletter from a Canadian enclave in the State of Washington. The newsletter dealt with the possible requirement to file a US tax return by Canadians who have recreational property in the US. In this particular case, there are some 2,000 Canadian members of this one enclave and there are another 30 to 40,000 estimated Canadian owned recreational properties in the US within a three hour drive of Vancouver.

 

The newsletter was very accurate in explaining the "rules" but bothered me because it dealt mainly with fear of filing rather than with the logical solutions.

 

Let me explain

 

There is nothing new about the requirement of a Canadian Snowbird to file a US tax return if they are in the US too many days.

 

Many of you will remember when Howard Hughes came to live at the BAYSHORE INN. For six months we were titillated with Howard Hughes stories and the speculative question among tax consultants was: "Would he stay more than 183 days?"

 

The answer was "NO". He left Vancouver (and Canada) on the 181st or 182nd day because if he had stayed just one more day, he would have become taxable in Canada on his WORLD INCOME.

 

The United States had and has the same 183 day rule as does Great Britain, Australia, New Zealand, etc. The difference is found in how the United States has calculated the 183 days since 1984. That's right, these supposedly new rules are now just about 10 years old. What has changed is the stepped up enforcement of ten year old existing tax laws.

 

If you are in the US more than 183 days this year, you are taxable on your world income. But it can also sneak up on you in the following way.

 

The United States calculates the 183 days for THIS year by counting some of the days for the preceding two years if you have been in the US for more than 30 days in the current year.

 

So, if you have been in the US for 126 days a year for this year and the last two years, the calculation is:

1993 126 days

1992 (1/3 of 126 days) 42 days

1991 (1/6 of 126 days) 21 days

For a total of 189 days

and you are taxable on your world income unless you can prove you have a closer connection to another country.

 

You might want to and even be able to prove you have a closer connection to Canada by filing a form 8840 but "why bother" when filling out the tax return itself is easier and leaves you free to "live your life".

 

On the other hand, filling out the 8840 just leaves a list of people for the IRS to look at and will leave you paranoid. Filling out the tax form is usually relatively painless (if you deal with my office, that is), and leaves you free to join a golf club and be in (and out of) the US for 189, 210 or maybe even 300 (under these extended rules) days as long as you have a full blown home waiting for you in Canada or any other country.

 

US "IMMIGRATION" laws say that a Canadian can be a visitor for up to six months. That literally means that you can go across the border to your cabin, chalet, trailer pad, ranchette, condo or sailboat in Elliott Bay, stay there for 180 days, come back to your home in Canada for a day or a week or two, and go back for another 180 days.

 

US "INCOME TAX" law says that if you do that, you have to file an American Tax Return. So what! 150,000,000 other people file a US tax return every year and they have to "PAY" tax to the US. If you have already paid full tax to Canada and if all your income comes from Canada, the US rules allow a foreign tax credit for the tax paid to Canada. There is usually zero tax for the Canadian to pay to the US.

 

At "up to $40,000 US" for a couple, there is usually no tax payable to the US. After $40,000 per couple, an Alternative Minimum Tax can creep in. But do not worry. At $80,000 US, it will not be over $600.00. And, if you do not mind me saying so, if you are in the US for half the year, and you made over $80,000 US (about $105,000 Canadian), you can afford to pay $600.00 to the US.

 

If you do not want to pay the Alternative Minimum Tax of $600, there is another simple solution which you should have done anyway. Make sure you have some investment income from the US. Say about $6,000 to $10,000. This will generate a tax liability to the US First (don't worry, Canada will give you credit for every cent paid to the US and reduce your Canadian tax accordingly). Alternative Minimum Tax usually only kicks in when you aren't paying the US any tax.

 

What are the advantages of the david ingram method of dealing with these regulations?

 

A. You are free to come and go without worrying about the "tax man".

 

B. By having some of your wealth in the US, you are hedging your retirement dollar.

 

C. You can join the library, golf club, ski club, buy all the furniture you want, buy a golf cart, and just plain enjoy your surroundings.

 

D. You will be forced to deal with your medical insurance. At the moment, all sorts of SNOWBIRDS believe they have coverage under the Canadian Medical Services plans while they are spending most of their time in the US. LET ME WARN YOU HERE. POSSESSION of a BC MEDICAL CARD does NOT mean you are covered. BC MEDICAL routinely cancels medical insurance RETROACTIVELY when their investigators find a person sleeping in the United States more than 183 days a year. BC Medical, OHIP, New Brunswick and every other provincial medical plan all insist that you "SLEEP" in that PROVINCE more than 183 nights to qualify for their medical plans.

 

E. You will not have to come up with detailed answers for the 8840 which has questions like:

 

19. Where were your personal belongings, furniture, etc. located?

 

20. List social, cultural, religious, and political organizations you currently participate in and the location of each:

a __________________________ Location ___________________________________

b __________________________ Location ___________________________________

c __________________________ Location ___________________________________

d __________________________ Location ___________________________________

e __________________________ Location ___________________________________

>>>>>>>>>(10 other questions>

31 List any charitable organizations to which you made contributions and their location.

a __________________________ Location ___________________________________

b __________________________ Location ___________________________________

c __________________________ Location ___________________________________

d __________________________ Location ___________________________________

 

F. By filing as a "resident for tax purposes" of the United States, you should escape inheritance tax on amounts of over $60,000. (changing with new treaty)

 

WHAT ARE THE DISADVANTAGES?

 

A. You have to file an extra tax return. But so do residents of Quebec and you are getting cheaper gas, eggs, milk and turkeys.

 

B. No others that I can think of.

 

The following is a copy of a "SNOWBIRD" article I wrote back in 1992 and which seems appropriate about here.

SNOWBIRDS

The US government is starting to enforce long standing rules against Canadian SNOWBIRDS, and, to be sure, anyone else who spends a lot of time in the US. It can more easily apply to someone who has a cabin in the San Juan Islands or a summer (winter) cabin at Birch Bay, Point Roberts or Mount Baker as it can someone with the place in Palm Springs or Arizona.

In particular, if you rent that cabin out during the year, you MUST file a tax return as well. Failure to report even $600 rent can result in an automatic tax of 30% of the gross with no expenses allowed AND penalties plus a fine of (are you ready for this?), up to $10,000 for failing to file the tax return "EVEN THOUGH YOU LOST MONEY IN THE RENTAL PROCESS".

But back to SNOWBIRDS (or summer visitors who go back and forth a lot to shop, etc.).

a TEN MINUTE TRIP ACROSS THE BORDER COUNTS AS ONE DAY. GOING TO BIRCH BAY ON FRIDAY NIGHT AND COMING BACK TO VANCOUVER ON MONDAY MORNING COUNTS AS FOUR DAYS. AND, The US counts the number of days one is in the Country in the following manner.

Take the days present this year - let's say 130 days

add 1/3 of the days in the previous year

and if that was 120 we get another 40 days

plus 1/6 of the days present two years previous

and if that was another 120 we get 20 days

for a total of: 190 days

and we are now taxable in the US on our "WORLD" income. i.e., the person must report his or her Canadian Pensions, interest, dividends, rents, farming and capital gains income to the US as well as Canada.

The person is taxable in other words, even if no income is coming from the US simply because of physical presence. Canadians will remember back in 1977 when Howard Hughes was ensconced in the Bayshore INN. He left town on his 182nd day because Canada would have taxed Howard on his world income if he had stayed 2 more days.

It is possible to avoid this by filing a "DECLARATION OF CLOSER CONNECTION TO CANADA" with the IRS Service Centre, Philadelphia, PA, 19255. This Declaration would state that your family, belongings, permanent residence, social and business ties are all in Canada.

The problem is that with time, these ties "move south". The SNOWBIRD has bought a nicer place in Arizona than they have in Nanaimo or Lethbridge. The Snowbird has bought a cheaper US car in Arizona. The Snowbird has rented out their house in Campbell River and is living in a motorhome in Arizona and California in the Winter and travels through Canada in the Summer. The Canadian has taken out a US Visa card and Mastercard. In other words, their centre of influence has moved south and their closer ties are not "definitively" in Canada anymore.

And, if it is half and half or even close to, the US will quite properly want a tax return.

But fear not. File the Canadian tax return first and then file the US tax return and claim foreign tax credits for the tax paid to Canada. Unless the income is over $40,000 US, the tax paid to Canada is usually enough to wipe out any US tax.

If the income is over $40,000 US, there may be a small amount of Alternative Minimum Tax to pay. The problem is US Immigration Department's crackdown on Canadian Snowbirds or "border livers" in motorhomes and other semi-permanent Canadians spending a lot of time in the U.S.

Let me use a few examples:

Situation 1

72 year old woman with a condominium in Phoenix, Arizona. Has been spending every winter in Phoenix for the past ten years. Owns a $400,000 house in Vancouver. She rents the house out every winter and has no phone number in Vancouver "in the book" because her number is disconnected when the phone book closes in January every year.

She is driving down to Phoenix after renting out her house and the INS person at the U.S. Border questions her closely. He decides that she "might" be trying to live in the U.S. and turns her back at the border. He asks for such things as "phone bills", to prove that she lives in Canada and is only "visiting" in the U.S.

Of course, she is in a tough spot. She finds it easy to rent out her Vancouver House for a nominal rent every winter but it is impossible to rent out her Phoenix condominium in the summer when she is not using it.

The question is: "where is she LIVING" and where is she VISITING?

INS has decided that she is now "living" in the U.S. and "visiting" Canada and that is not legal without going through a lengthy immigration process. Banned from the US under these circumstances.

Situation 2:

A 70 year old man who with his wife has had US resident alien cards for some 20 years and has been working in the U.S. for the same twenty years and still is. Owns a house in Vancouver that his mother lives in and a condominium in Los Angeles that he and his wife have lived in for that twenty years.

He has a phone number in Vancouver in the house that his mother lives in and he owns.

His wife is in Vancouver for an extended period looking after his mother. He comes up for a weekend. On the way back through Vancouver Airport, he is questioned by INS. He innocently tells the story to the INS officer who decides that with a phone number in Vancouver and his wife in Vancouver for 19 months, and because he has a BC Medical Card, the person has likely given up his residence in the U.S. and starts to take away his resident alien card. Calmer heads prevail and he is allowed to keep it but told he better straighten out his act. He has made the mistake of having all sorts of Canadian Identification including a B.C. medical Card. There is a "theory" that he is not allowed to have a B.C. Medical card if he is a resident of California. U.S. INS officer reports him to B.C. Medical.

 

Situation 3

A couple sell their house and buy an expensive Canadian Registered (that is the key to me - if they were not intending to be Canadians, the motorhome would have been $80,000 U.S. cheaper in the U.S.) Beaver motorhome. They spend some time in the U.S. and come home for Xmas and then start off to tour some more. They have been told by a 100 people that they can be in the U.S. as visitors for up to 183 days legally.

After Xmas, they leave to go south at Huntington Crossing and are told that they cannot enter as they cannot prove that they "LIVE" in Canada. Their mailing address is their daughter's house and they have no phone number, etc. Their vacation - retirement - snowbirding is ruined as they are not allowed in the US as visitors.

Situation 4

This is out of the Vancouver Sun, I have not met the people.

Another couple sell their home and buy a truck and trailer. They spend some time in the U.S. and come back up to Vancouver to visit. They leave the trailer in Redmond, Washington, and when they go to go back to the U.S. after their Vancouver visit, an INS person at Huntington / Sumas crossing denies them entry on the grounds that they do not have a home in Canada. He is allowed 3 days compassionate leave to get his trailer and return to Canada (again, please note that the truck and trailer are registered in Canada).

Situation 5

A Couple sell their condo in Vancouver and rent another apartment in the same building. They keep the same phone number. They buy a house in Whatcom County and check with an INS officer at the Huntington crossing as to whether they can take some of their furniture down (this book says they can). When they go to visit their house at Xmas, 1991 (two weeks after talking to the INS officer) with a U-Haul trailer full of their excess furniture, they are questioned at the same Huntington Border Crossing by the same INS officer and denied entry. The INS officer asks for such things as address, phone number, etc., and of course, the address in the phone book is different. The house in the U.S. is far nicer than the rented apartment. The house in the U.S. is within commuting distance to the husband's employment.

The INS officer decides they are going to "LIVE" in the U.S. and spend occasional time in Vancouver "if" they even really have a place in Vancouver. They are denied entry to the US with their excess furniture.

Situation 6

A couple with a house in Greater Vancouver and a cabin at Point Roberts are denied access to their cabin before Xmas. They are told by the INS officer that they have been in the U.S. too much in 1991 and to come back in 1992.

Situation 7

A young lady with a boy friend in Seattle whom she visits on a regular basis with no problems is denied entry to the U.S. when she arrives at the border driving a rental car. She shares an apartment in Vancouver with someone and there is no phone in her name. She has stuff in her luggage that indicates she spends a lot of time in Seattle and also has a picture in the car which she is talking down as a present. It "LOOKS LIKE" maybe she lives in Seattle and visits Vancouver.

Situation 8

Same situation, different cities. A young lady with a fiancee working in Chicago for two years flies down to visit him almost every weekend from Toronto. She works for an airline and it costs her virtually nothing do fly down. She shares an apartment in Toronto and has no phone, and little Toronto ID. Even her car is a company car so she doesn't have a car, phone, or apartment in her name even though she has a full time job in Toronto and that is obvious from her business identification and a call to her employer.

The INS officer is not satisfied. he feels she is living with her boyfriend in Chicago and commuting to work in Toronto. She is banned from the U.S. but invited to get proof of her Canadian Residence.

Situation 9

I do not know this couple either. It comes from CTV National News. Couple in Maple Ridge are going to U.S. through the same Huntington crossing. They have been down dozens of times. They are asked if they have ever been arrested. He says no because he has a Canadian pardon. For some reason, the INS people check. He was arrested and charged and convicted 18 years before for the possession of a single marijuana cigarette. HER car is seized. At last word, the car was not being returned and will not be.

Situation 10

Same Crossing. A Vancouver City Policeman who has a criminal charge against him and is under suspension is going across the border with his wife and one other person. His truck is seized for trying to get into the U.S. while under a charge. It also turns out his wife has a criminal record.

You see; it does not matter whether you are asked or not, it is illegal to enter the U.S. if you have a criminal record or have been arrested unless you have a waiver from the U.S. Department of Justice. And, if you are taking someone else across with your car or they borrow your car and drive across the US border without mentioning the charge (even with a waiver form), you lose your car.

Situation 11

Osooyos Crossing, Aug 19, 1992. A couple and their two children and 8 friends are crossing to the U.S. for Mexican Food at Oroville, Washington. They are in a 33 foot motorhome and INS decides to question all people asking where born, what citizenship, where they live, and have you ever been arrested. Driver says yes but not convicted. INS officer takes information and comes back a few minutes later and bans driver from U.S.

INS officer warns all other members of party that they are not to assist driver across U.S. border or they can be arrested themselves. Tells driver "I am sure glad you said YES, or I would have had this motorhome". It took "david ingram" 4 months to get an official waiver to go back to U.S.

You see, an arrest in Canada and either a "Stay of proceedings", or an "Absolute Discharge", or a "Conditional Discharge" is treated by the U.S. as if you were convicted, even if the offense is minor. Getting charged with stealing a loaf of bread can have you banned from the U.S. for life.

The solution is to get a "Canadian Non-Resident Alien Border Crossing Card" and waiver. This costs $80.00 U.S. and requires fingerprinting by the RCMP and FBI but is a relatively painless experience. If you wish more information on this topic, we would be glad to assist. There are also regular advertisements for "Pardons" and "U S Waivers" in the Vancouver Sun and Province. Write for more information to: David Ingram, 201-935 Marine Drive, North Vancouver, B.C., V7P 1S3 or fax to (604) 649-4759 or call (604) 657-8451.

Situation 12

A "highly placed" lady from Ottawa decides to sneak into a class at a University in the U.S. for a semester. She does not bother with the formality of a Student "F-1" visa but just "goes south". She has student cards, library cards, etc. Then she comes up to Canada for a weekend with a fellow lady student from the University (these are not kids, these are 30 year old women). When going back to the U.S. in the U.S. student's car, she is questioned and the U.S. student I.D. is found. She is banned from the U.S.

She has been identified and should know that an INS officer might check later at the U.S. University to see if she has snuck in, BUT she just isn't thinking.

She calls a Canadian Friend and tells her what happened. the Canadian says, don't worry, I'll take you down, we'll just say we are going shopping". The Canadian picks up the Canadian Student and they arrange to meet the American student on the other side of the border. They make it across but the U.S. Border people follow the American car which now is short a Canadian Student.

 

When they meet at a U.S. Shopping centre to transfer baggage, etc., they are surrounded by U.S. Border patrol cars. All three are arrested and spend 8 hours in jail. $51,000 worth of cars are impounded. The two Canadians are deposited back at the Canadian Side of the border and spend $70.00 on a taxi to get home.

The Canadian car is a lease car with hefty payments. Finally, with the payment of a $2,000 "penalty", the leasing company gets the car back but is told that they may not give it back to the Canadian, nor may they make any special financial arrangements with her on another car. i.e. she is to get no benefit and she is expected to make up any shortfall to the leasing company. I do not know what happened to the American's car. Stay tuned.

U.S. to CANADA

Please note that the Canadian Customs are getting tougher every day. In 1989, the borders south of Vancouver seized some 1,000 cars. In 1991, they seized 10,000 cars from returning Canadians and U.S. visitors.

In fact, a drunk driving charge in the U.S. bans a U.S. citizen from Canada for life. The U.S. is far more sophisticated when it comes to waivers and entry of people with problems. Smuggling, particularly cigarettes, firearms, and alcohol will get you severe penalties. It isn't worth it.