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PPVA vs. a “Blocker” Corp. Structure

A sizable portion of the $350-500U.S. billion foreign inbound investment in the U.S. annually is placed in real estate. A Private Placement Variable Annuity (PPVA) can greatly reduce taxation and reporting requirements on these investments. The PPVA structure outlined in this blog is superior to the usual blocker corporation structure.

For the main points in this blog, we are indebted to Gerald Nowotny, a U.S. attorney, who writes frequently on Private Placement Life Insurance (PPLI) and PPVA topics. Mr. Nowotny’s recent article on PPVAs,“It Do Me Good!” is our source.

According to Mr. Nowotny, the PPVA structure accomplishes several important tax and non-tax objectives:

“Avoidance of the need on the part of the foreign investor to file a U.S. income tax return and falling under the scrutiny and jurisdiction of the IRS.

Recharacterization of income that would be otherwise subject to taxation at the top corporate rates into interest and dividend income that is subject to lower tax rates under applicable tax treaties with the U.S.

Avoidance of withholding for FIRPTA on the underlying real estate.

Minimization of corporate taxation on the “blocker” corporation structure frequently used as part of this planning.”

Our blog is usually about the uses of PPLI structures for wealthy international families. At times the use of a PPVA structure makes more sense, so we give you an example from Mr. Nowotny’s article to illustrate this point.

We have changed the example used in Mr. Nowotny’s article slightly, because we favor using offshore companies,who in this case, have made a 953(d) election. We have found that this results in more streamlined compliance reporting.

PPVA Structuring Example

Acme Investment Management is a real estate investment management organization investing in several different U.S. real estate markets. Acme creates an insurance dedicated fund (IDF) with the life insurance company, Corona Life, that will issue the annuity. We quote from the full article:

“Based upon the total premium (investment) commitment, Corona charges the policyholders 25 basis points per annum. The total cost per year is $250,000 per year. Over the course of the twenty year life of the fund-the total projected PPVA costs are $5 million. The total cost of the PPVA is roughly equal to the investor’s tax liabilities using the blocker corporation in the first 2-3 years.

The PPVA will not have any withholding for FIRPTA. Under the treaty, annuity income is not subject to U.S. income and withholding taxes. Therefore, neither Acme nor Corona will be required to withhold anything on its distribution.

Assume the same facts as the description above except for the fact, that the PPVA structure has no tax leakage. Corona does not have any withholding tax obligation on the income distributions of any of the annuity payments or at liquidation of the investments. Corona is not subject to withholding under FIRPTA on the sale of the real estate.”

Please let us know how a PPVA structure can assist you in planning for the U.S. real estate investments of non-U.S. persons. We welcome your questions and comments.

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by Michael Malloy CLU TEP RFC, @ Advanced Financial Solutions, Inc

Part I: Foreign Investment in U.S. Real Estate

The primary tax impediments to foreign investment in U.S. real estate in general and in real estate funds specifically are U.S. income, capital gains and withholding taxes. Adding Private Placement Life Insurance (PPLI) in combination with trusts and LLC elements eliminates or mitigates U.S., withholding taxes, U.S. income and capital gains taxes, and estate taxes.
In Part I, we discuss the obstacles that non-U.S. persons face in investing in U.S. Real Estate. In Part II, we will discuss how PPLI can greatly increase a non-U.S. investor’s return on their investment, and also simplify their reporting obligations.

• Effectively Connected Income: Although non-U.S. investors’ gains from US stock are generally not taxable, income and gain from their real estate investments are generally taxable under the effectively connected income (ECI) rules. Specifically, rental income and/or gains from the sale of U.S. real estate are both generally treated as ECI. U.S. source rental income allocable to a foreign investor is typically not entitled to any treaty preferences. ECI is generally taxed to such foreign investors under the same tax rates that apply to U.S. taxpayers, and foreign investors that receive ECI are required to file US federal and state income tax returns. Finally, the FIRPTA rules described below can also transform sales of stock (or other equity interests) and/or capital gain dividends from REITs into ECI.

• FIRPTA: Enacted in 1980 to combat perceived unfair advantages for foreign investors in U.S. real estate, the Foreign Investment in Real Property Tax Act (FIRPTA) imposes significant taxes on dispositions of US real property interests. Specifically, Section 897 of the Internal Revenue Code of 1986, as amended, essentially treats such gain as ECI. In addition, as explained below, complicated withholding tax rules apply with regard to US counterparties in such transactions.

• Non-US Regulatory Concerns: In addition to U.S. tax issues, non-US investors can have non-U.S. tax and regulatory concerns. For example, non-U.S. investors may need to comply with certain informational reporting requirements in their home jurisdictions.

Conclusion
Significant investment capital for U.S. real estate transactions and funds has been and will continue to be raised from non-U.S. investors. In light of this fact, it is important that real estate advisors, investors, and owners understand the tax challenges, as well as the potential solutions, involved when non-U.S. investors invest in U.S. real estate. PPLI is an integral element in these solutions.
In Part II, we will compare the various structures generally used by non-U.S. persons for investing in U.S. real estate with the addition of PPLI. Adding the PPLI advantage is a cost-effective way to give clients additional return on their investments and legitimate, enhanced privacy in their structures.

We wish our many clients and advisors around the world a joyful Holiday Season, and the best possible 2018.

Your comments and questions are always welcome!

Tag: Foreign Investment

Foreign Investment in U.S. Real Estate

Effective PPLI Real Estate Structures

Part I: Foreign Investment in U.S. Real Estate