On March 8, 2010, the I.R.S. published Rev. Proc. 2010-19, which provides guidance for individuals who emigrate from Canada to the U.S. and are subject to Canada’s exit tax.
Under paragraph 7 of Article XIII (Gains) of the Canada-U.S. Income Tax Treaty (the “Treaty”), a U.S. tax election can be made by an individual to be treated as if he/she had sold and repurchased (for fair market value) property that is subject to the Canadian exit tax. Absent this coordination rule, individuals emigrating from Canada to the U.S. can be subject to double taxation on the same income, due to a timing mismatch of gain recognition.
Under the prior version of the Treaty, the election was not available to certain non-U.S. citizens emigrating from Canada to the U.S. because such individuals could not elect to be liable to tax in the United States prior to their U.S. tax residency. However, due to changes made under the Fifth Protocol to the Treaty, the election is now available to any individual who emigrates from Canada to the U.S., without regard to whether the person is a U.S. citizen immediately before ceasing to be a resident of Canada.
If the individual is not subject to U.S. tax at the time of emigration, the effect of the election will be to give the individual an adjusted basis for U.S. tax purposes equal to the fair market value of the property as of the date of the deemed alienation in Canada, with the result that only post-emigration gain will be subject to U.S. tax when there is an actual alienation.
The election generally applies for individuals who emigrate from Canada after September 17, 2000.