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The impact of US tax reform provisions on Australian super


With the ongoing talks between Prime Minister Malcolm Turnbull and US President Donald Trump on future US–Australian relations and partnerships, one topic has been conspicuously absent from the agenda: the topic of taxes — in particular, the US–Australia tax treaty. Australia is currently home to the sixth largest American population in the world and US expats living in Australia are still facing the prospect of having to pay US taxes on Australian superannuation contributions, accruals and distributions. Despite the ongoing advocacy by US expats to fix the tax treaty, there is still no apparent reference in the tax treaty that provides definitive guidance exempting contributions, accrual and distributions from US taxation. This article explores how the tax treaty in its current state fails to address and remedy the ongoing double taxation of Australian superannuation funds and is in dire need of updating since it first came into force 45 years ago.

Author profiles

Marsha Laine Dungog
Marsha is a partner in the private client and tax team and is the Office Managing Director of the San Francisco Office. Marsha provides US international income, trusts and estate tax planning for high net worth individuals, and family businesses based in the US and abroad with respect to their cross-border assets, investments and activities. She also advises trustees, executors and fiduciaries as well as financial, tax and legal advisors on international tax exposures and reporting obligations for beneficiaries and heirs of trusts and estates with US connections. Marsha’s practice includes US tax planning for foreign investors, founders and entrepreneurs deriving income from US-based sources and operations, as well as tax advisory services for foreign legal, financial and tax advisors on the US taxation of foreign pensions and retirement arrangements, US-based investments and exit strategies for corporate executives, global employees and US persons living abroad. She is an author and frequent speaker on international tax issues. Marsha has published tax technical papers that have been presented to the tax-writing committees of the US Congress and the US Treasury Department on the US taxation of Australian Superannuation Funds, Mexican AFOREs and Canadian registered plans (RESPs and RDSPs). She has also spoken at international conferences and seminars in the US, Canada and Australia on the US taxation of foreign pensions and retirement, cross-border estates and trusts, international withholding and compliance enforcement initiatives, IRS voluntary disclosure programs and U.S. expatriation and green card termination alternatives. Prior to joining Withers, Marsha was a director at a large accounting firm in San Francisco providing international tax consulting and compliance services to high net worth clients with a global footprint, businesses and entrepreneurs. She also worked in Canada providing US tax advisory and compliance services for global high net worth individuals, cross-border families and businesses. Marsha is a public arbitrator for the US Financial Industry Regulatory Authority (FINRA) and instructor in US international tax for the American Institute of Certified Public Accountants (AICPA). In 2018, she was recognized by the Canadian Business Chicks as a Woman of Inspiration (Authentic Leader Category) and in 2020, by the California Society of CPAs as a Woman to Watch (Experienced Leader Category). - Current at 22 September 2021
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Roy Berg
Roy Berg JD, LLM, is Director, US Tax Law, and Barrister and Solicitor of Moodys Gartner Tax Law LLP and has more than 23 years of experience in cross-border tax matters, IRS controversy, estate planning and finance. He has been admitted to the Bar associations of the US Tax Court, California, Washington, and Alberta, Canada. Roy is a fellow with the American College of Trust and Estate Counsel (ACTEC) and a member of the US and Canadian Society of Trust and Estate Practitioners (STEP) and American Bar Association tax sections. He is a frequent writer and speaker on the Foreign Account Tax Compliance Act (FATCA), IRS tax controversy, regulation, cross-border tax and estate planning issues. Roy received his LLM (US Taxation) from the New York University School of Law, a JD cum laude jointly from New York University School of Law and Willamette University, and a BA in Economics from the University of California, Berkeley. - Current at 19 September 2016
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