"ARTICLE 18
1. Subject to the provisions of Article 19 (Government Service and Social Security), pensions and other similar remuneration beneficially derived by a resident of a Contracting State in consideration of past employment shall be taxable only in that State. "
I have to wonder what "subject to the provisions of Article 19" means exactly. Here's article 19:
ARTICLE 19
Government Service and Social Security
1. a) Salaries, wages and other similar remuneration, other than a pension, paid by a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
i) is a national of that State; or
ii) did not become a resident of that State solely for the purpose of
rendering the services.
2. a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
I would say the intention of this part of the treaty is to AVOID that pensions are double-taxed. Anyone with me on this? Now, the only thing I can possibly read into it otherwise, would be that it's somehow cleverly worded to mean that only gov'ment employees are to benefit from this aspect of the treaty. Wouldn't that be funny?! It's already weird that article 18 is immediately referring to an article that you haven't even come to yet, article 19.
By the way, has anyone ever tried to try to get a clarification on the treaty by doing this:
http://taxmap.ntis.gov/taxmap/pubs/p...m#TXMP06f96e7a
I have seen the ACA and Isaac Brock websites, plenty of good stuff on there, but I have not seen the issue of the 2nd pillar, practically a universal problem for any US wage earner in CH, addressed in depth. In fact the ACA website's advice is simply that "employer contributions to foreign pension plans as well as growth in the plan may (my emphasis) need to be reported as income." "May" sounds like an answer I might get if I asked the IRS directly! Of course between "reporting" the contributions and being able to subsequently exclude them with the FEIE, is a jump. That is why I again look to the treaty for guidance on double taxation... and I would like to think I understand what it says...
http://www.irs.gov/retirement/articl...112858,00.html
Page 2 of the 2555 instructions discuss in Part IV "Foreign Earned Income". For ref:
Not foreign earned income: Foreign earned income does not include the following amounts: Pay received as a military or civilian employee of the U.S. Government or any of its agencies Pay for services conducted in international waters (not a foreign country) Pay in specific combat zones , as designated by an Executive Order from the President, that is excludable from income Payments received after the end of the tax year following the year in which the services that earned the income were performed The value of meals and lodging that are excluded from income because it was furnished for the convenience of the employer Pension or annuity payments, including social security benefits
But contributions I consider seperately. We pay US taxes (applying FEIE) now on contributions, and then Swiss taxes when we withdraw pillar 2 (whether in 1 year, 2 years, retirement) And wherever we reside when we collect pillar 1 we pay taxes.
I need to dig into the link on the plans- I had read before that the US just doesn't consider pillar 2 a plan of any sort.
The best way to look at it, I think, is your not really taxed on your contributions. You are taxed on your gross compensation/salary which would be the case in any event. What you do with your salary, for example contribute to Pillar 2 in the instance is not the issue i.e. you report salary pre your own contribution to Pillar 2, on Line 7. What you want to ensure you do is establish what part of the gross comp reported was your Pillar 2 contribution, so you can track the basis.
Your Pillar 2 contribution then decreases your Swiss taxable income. Which in effect increases your US tax.
Your employer then matches or pays more into the Pillar 2. This, as it does not meet the qualified plan rules, but is clearly a pension plan none the less, means you are receiving deferred compensation. Deferred compensation needs to be reported. As the FEIE does not allow you to offset against pension payments (i.e. your employer has made pension payments), you can not exlcude this.
The last part " including ss benefits " would seem to indicate that that " pension or annuity payments " means payments you receive from the pension, not necessarily what you, or your employer, puts in. This is very unclear!
For example, if we were to interpret this as you are (as meaning "pay-ins" I'll call it) than it would be patently wrong, because I can for example take some of my foreign-earned income (recognized as such and excluded under the FEIE, thus not taxed) and add it to my 2nd pillar (2nd pillar buy-back for missing years). This would not be taxed AGAIN by the US when I put it in my 2nd pillar! Thus to state that "pension payments" are not foreign-earned income would be false, because payments made by oneself can definitely be from foreign-earned income, and ackowledged as such! Therefore, perhaps the IRS wording refers to pay-outs from , and not pay-ins to , the 2nd pillar.
Sorry to be so wordy. I am trying to wrestle your interpretation free from the actual wording of the IRS documentation, which to me is still not clear. What's more, there still seem to be people out there who think this is a "grey area" (see recent post by runningdeer). It makes me crazy that we are left guessing on such a fundamental question.
Any thoughts on my previous post about the tax treaty itself?
Don't forget that until recently the IRS really had to stretch its collective imagination to understand the reality of the variety of situations of US citizens living abroad, whereas it was always rather well-known that some go to retire in Mexico-- or what-ever place will stretch their retirement dollars a bit further. I think this wording is the OLD PARADIGM!
Need new wording for new paradigm.
Correct. Treaty only covers when you are receiving benefits from the pension, not when you are contributing/making contributions to it.
I would suggest you visit Jack Townsends blog, he is a tax attorney dealing with a lot of these issues, and apparently had a meeting with the IRS fighting for Canadian RRSP, which is more or less the equivalent of Swiss 2nd pillar. I think you can learn a lot from his website, and perhaps even contact him directly, he is on the ACA tax commmittee and fighting a lot of these issues in Washington at the moment. I understood he was going to address the similar issues after the Canadian RRSP got a favorable outcome. http://federaltaxcrimes.blogspot.com/
One issue that is concerning me is that JBZ mentioned that he has been reporting the year end 2nd Pillar company pension balance on FBAR. My understanding from other posts is it is not necessary to declare this in the FBAR form but would now begin reporting in the new FACTA form 8938 if the balance is over 200kUSD.
Question: Let's say there is a balance of 150kUSD in the 2nd Pillar Pension company pension fund.
If one were to suddenly declare this on the FBAR, wouldn't the IRS impose a 27% or more penalty?
Otherwise is it not better to wait until it reaches 200kUSD and then report only on form 8938?
However, I'd be curious to hear about someone who does report the pillar 2 on FBAR and why?