Transfer of 401(k)'s, 403(b)'s, IRA’s and US Occupational Pensions to Australia
Australian expatriates working in the US will often have an involvement with US pension funds, including employer-sponsored 401(k) plans, 403(b) retirement plans sponsored by universities and colleges and individual and private pension plans, such as IRA's (Roth and non-Roth). US corporate employers may also have occupational pension funds with differing characteristics. All allow an employee to save for retirement while deferring income taxes on the saved money and earnings until withdrawal.
US pension funds can differ significantly in terms of their detail, but typically share a number of similarities, including the fact that, unless an exception applies, withdrawals prior to age 59.5 usually attract a penalty of 10% plus a withholding tax of 20% to 30% if the individual is not a US tax resident and cannot claim a Tax Treaty exemption. Australia does have a double tax treaty with the US and consequently relief from US withholding tax will often be available, although individual pension fund administrators can be problematic.
As we mention elsewhere, tax advice is absolutely crucial in these situations to ensure that any withdrawal of a US pension is carried out as cost effectively as possible - and ideally professional advice should be sought prior to individuals leaving the US and again becoming Australian tax residents. Note in this regard that most US pensions will not be considered "foreign superannuation funds" (FSF) for Australian tax purposes, and therefore any earnings within the fund, if simply withdrawn whilst an Australian tax resident, may be subject to Australian marginal tax. It may be possible to both reduce an individual's tax exposure in Australia and completely eliminate any exposure in the US to taxation on withdrawal, but specific advice is required.
Please note that your situation becomes potentially more complex from a tax perspective should you have gained US citizenship or permanent residency (green card) during your stay in the US. In this situation, separate US tax advice will also be required to determine whether it is in your best interest to withdraw the funds or simply continue to maintain them in the US until retirement.
Note that if your 401(k) fund is employer sponsored then you may keep it in the US and there will be no Australian taxation issues until you actually start to withdraw the fund as a pension or lump sum when you retire, unless you should seek to rollover those funds. At this time the pension you withdraw will be subject to tax in Australia, less a credit for any tax paid in the US, although this may not be applicable.
You should also seek confirmation from your fund that membership can be retained if non-resident - we are seeing more and more situations where US fund managers (e.g. Fidelity, Merrill Lynch and Wells Fargo) are refusing to manage plans owned by non-residents, largely for compliance reasons. Clients are being advised that accounts will be closed, requiring a rollover or a cash out, and often at very short notice.
If this is your situation, we do have contacts within the US that can typically arrange a roll over into an IRA administrator that will maintain accounts for a non-resident. As indicated above, this should be done prior to becoming a tax resident of Australia; rollovers which are initiated while a tax resident of Australia may have significant Australian tax implications and prior advice should be sought.