Recently, there have been numerous developments affecting trusts and foundations for Israeli tax purposes.
New trust regime 2006
Before 2006, irrevocable trusts were considered exempt on non-Israeli source income.
A new tax regime targets Israeli and foreign trusts and foundations, commencing January 1, 2006. However, its implementation was postponed until October 31, 2008.
Four main types of trust are specified in the new regime:
n Israeli residents' trust - generally subject to Israeli tax on all its income if the settlor is an Israeli resident;
n Foreign-resident settlor trust - potentially exempt from Israeli tax on foreign-source income (note: settlor = grantor);
n Foreign-resident beneficiary trust - potentially exempt from Israeli tax on foreign-source income if all the beneficiaries are non-Israeli residents;
n Testamentary trust - regarded as Israeli resident and subject to Israeli tax on all its income if the deceased settlor and any of the beneficiaries are Israeli residents.
Trustees in Israel and abroad are generally "assessable and chargeable to tax" on trust income. In 2008, extra measures were introduced with retroactive effect from 2006, as outlined below.
Amnesty for pre-2006 trusts
The Israel Tax Authority claims that the irrevocability of some pre-2006 trusts may sometimes be doubtful.
Under an amnesty, the trustees of irrevocable "Qualifying Trusts" may settle their pre 2006 tax liability by paying tax at a flat rate of 4 percent to 10% of the value of trust assets (usually 6% in practice). The Israeli cost-basis of such assets is then "stepped up" to the above value for future Israeli tax purposes. No foreign tax credit is allowed.
Amnesty applications must be submitted to the Israel Tax Authority by October 31, 2008.
Limited relief is available for beneficiaries living outside Israel if an irrevocable trust has an Israeli resident settlor, as follows:
n Upon a distribution: The trustees may claim an exemption for non-Israeli income distributed to non-Israeli-resident beneficiaries. Tax paid in the previous four years may be recovered. Opting the first time has an entry price - tax at rates of up to 47% on all unrealized capital gains of the trust.
n Upfront allocation: The trustees may avoid Israeli tax on non-Israeli-source income by allocating non-Israeli assets and income upfront to designated non-Israeli-resident beneficiaries. The upfront allocation has an entry price - tax on unrealized capital gains on the allocated assets at rates of up to 47%. Furthermore, every four years the trustees must check that the non-Israeli beneficiaries actually received the income allocated to them; any shortfall is taxed at 70%!
Reporting measures include the following:
n Notices may be submitted to the Israel Tax Authority instead of full tax returns, in certain instances.
n A non-Israeli trustee may pass the "assessable and chargeable to tax" obligation to an Israeli resident settlor in the case of an Israeli residents' trust or a beneficiary in the case of an Israeli-resident testamentary trust.
Where applicable, annual tax returns must be filed by April 30 (subject to any extension) by the trustee - or by the settlor or beneficiary if they agree to be "assessable and chargeable."
With regard to the years 2006 and 2007, the deadline for submitting notices, declarations and annual tax returns relating to trusts is postponed to October 31, 2008.
The question of whether the State of Israel can compel foreign residents to comply with the new trust tax regime raises complex issues. Nevertheless, Israeli tax law contains sanctions in the case of non-compliance, including the collection of tax from a settlor or from a beneficiary; in the latter case, up to the amount distributed to the beneficiary.
Conclusion and action plan
By October 31, 2008, trustees, professionals and other interested parties should take appropriate action including a review of the following:
n Which type of trust exists under pre-1.1.06 Israeli tax law;
n Which type of trust exists under post 1.1.06 Israeli tax law;
n Tax-treaty relief availability, if any;
n Whether the 4%-10% amnesty is worthwhile;
n Whether the trustee can/should transfer post 1.1.06 "assessable and chargeable to tax" responsibility to the settlor or a beneficiary;
n Whether an exemption should be elected for distributions or allocations to non-Israeli-resident beneficiaries;
n Interaction with foreign taxes.
Many alternatives may be worth considering. Detailed optimization calculations will often be needed.
As always, consult experienced tax advisors in each country at an early stage in specific cases.
Leon Harris is an international tax partner at Ernst & Young Israel.