Many of these taxpayers, however, may not realize that they are required to report certain information about their foreign assets and activities (including foreign accounts and interests in foreign business entities), as well as information about certain foreign gifts received. The rules can be confusing and complicated. Indeed, a U.S. taxpayer who has no income from a foreign asset nonetheless may be required to report the asset — perhaps multiple times. Even a U.S. taxpayer who is not required to file a federal income tax return may be subject to certain reporting requirements regarding foreign assets. Failure to comply with information reporting requirements can result in significant civil and criminal penalties.
Foreign accounts and other foreign financial assets: FBAR and Form 8938
A person owning foreign financial accounts and certain other foreign financial assets may be required to file Treasury Financial Crimes Enforcement Network (FinCEN) Form 114, Report of Foreign Bank and Financial Accounts (commonly referred to as an FBAR); IRS Form 8938, Statement of Specified Foreign Financial Assets; or both. The obligations are imposed by separate statutory regimes with different legislative purposes and definitions. Although there can be significant overlap, the Form 8938 requirement does not replace or otherwise affect a taxpayer’s obligation to file an FBAR, nor does the FBAR requirement replace or otherwise affect a taxpayer’s obligation to file Form 8938.
FBARs are filed with FinCEN, a bureau of Treasury. U.S. persons must file an FBAR if they have a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country if the aggregate value of all of their foreign financial accounts exceeds $10,000 at any time during the calendar year.2 FBARs are due on April 15 in the year following the calendar year reported. Filers are allowed an automatic extension to Oct. 15 and do not need to specifically request an extension from FinCEN.
Form 8938, on the other hand, is filed with the IRS and included with the taxpayer’s federal income tax return. This requirement, sometimes referred to as FATCA reporting after Sec. 6038D’s addition to the Code in 2010 by the Foreign Account Tax Compliance Act (FATCA) also involves foreign assets, but with different information and a different reporting threshold.
Generally, a “specified person” (U.S. persons and certain nonresident aliens) must file Form 8938 if they have an interest in “specified foreign financial assets” with a value greater than the applicable reporting threshold described below. However, the specified person is not required to file a U.S. income tax return for the year, they do not have to file Form 8938, even if the value of their specified foreign financial assets exceeds the applicable reporting threshold.
Specified foreign financial assets are defined broadly and include any financial account maintained by a foreign financial institution, any stock or security issued by a non-U.S. person, any financial instrument or contract held for investment that has an issuer or counterparty that is a non-U.S. person, and any interest in a foreign entity (including interests in foreign partnerships).
A specified person has an interest in a specified foreign financial asset if any income, gains, losses, deductions, credits, gross proceeds, or distributions from holding or disposing of the asset are or would be required to be reported, included, or otherwise reflected on the person’s tax return.
For individual taxpayers, the applicable reporting threshold depends upon the taxpayer’s filing status and whether the taxpayer lives in the United States. The general threshold is an aggregate value of all specified foreign financial assets exceeding $50,000 on the last day of the tax year or $75,000 at any time during the tax year.
For married taxpayers filing jointly and living in the United States, it is an aggregate value of specified foreign financial assets in which either of them has an interest of more than $100,000 on the last day of the tax year or more than $150,000 at any time during the tax year.
For most specified individuals living abroad, the threshold is $200,000 on the last day of the tax year or $300,000 at any time during the tax year (for married specified individuals filing jointly, the amounts are $400,000 and $600,000, respectively). Form 8938 should be attached to a taxpayer’s annual income tax return and filed by the due date (including extensions) for that return.
An account maintained by a financial institution organized under the laws of a U.S. territory or possession must be reported on Form 8938.11 Residents of Puerto Rico and American Samoa are subject to Form 8938 reporting requirements. 12 However, residents of Guam, the U.S. Virgin Islands, and the Northern Mariana Islands are not required to file Form 8938.
Taxpayers are not required to report on an FBAR or Form 8938 foreign real estate, precious metals, and personal property (e.g., art, antiques, jewelry, cars, and other collectibles) held directly. Currently, foreign accounts holding virtual currency are not reportable on an FBAR unless the account holds other assets that are reportable. However, this is likely to change, as FinCEN has indicated that it intends to propose rules that would include virtual currency as a type of reportable account. There is no clear guidance indicating whether virtual currency and other digital assets are reportable on Form 8938 and, if so, under what circumstances. Taxpayers are, however, required to indicate on their annual income tax return whether they engaged in certain digital asset transactions during the tax year.
Interests in foreign business entities
U. S. persons are required to report certain information about foreign business entities in which they own substantial interests. Whether a business entity is treated as a foreign business entity is generally based upon the jurisdiction in which the entity was organized. Generally, an entity organized in a U.S. territory or possession is treated as a foreign entity, though special rules may apply in certain circumstances. Additionally, special rules may apply to residents of U.S. territories and possessions who own interests in foreign business entities.
The specific reporting required varies depending upon whether the foreign entity at issue is treated as a corporation, partnership, or disregarded entity for U. S. federal income tax purposes. Certain foreign business entities are treated as per se corporations for U.S. tax purposes. If a foreign entity is not a per se corporation and it has not otherwise elected its tax classification, it is treated as (1) an association taxable as a corporation if all members have limited liability; (2) a partnership if it has two or more members and at least one member does not have limited liability; and (3) a disregarded entity if it has a single owner that does not have limited liability.
The relevant reporting forms, discussed below, generally should be attached to the U.S. personfs federal income tax return and filed by the due date (including extensions) of that return. Taxpayers and their advisers should be aware that constructive ownership rules may apply to cause a taxpayer to meet the ownership threshold, triggering reporting in certain cases.
Interests in Foreign Trusts and Receipt of Foreign Gifts
U. S. persons that have interests in foreign trusts or have received foreign gifts may be required to report certain information on Form 3520, Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts. Form 3520 is generally due on the 15th day of the fourth month following the end of the U.S. person’s tax year for income tax purposes (i.e., April 15 for individuals). If a U.S. person is granted an extension of time to file their federal income tax return, the due date for filing Form 3520 is the 15th day of the 10th month following the end of the U.S. person’s tax year (i. e., Oct. 15). Unlike many of the other reporting forms discussed above, Form 3520 is not attached to the U.S. person’s federal income tax return and is filed to a separate address.
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Form 3520 filing requirements relating to trusts apply only with respect to foreign trusts. A foreign trust is defined as any trust that is not a U.S. trust. A trust is a U.S. trust if: (1) a court within the United States (not including U.S. territories or possessions) is able to exercise primary supervision over its administration; and (2) one or more U.S. persons have the authority to control all substantial decisions of the trust.40 The jurisdiction in which the trust was organized is irrelevant for purposes of determining whether a trust is foreign.
Generally, Form 3520 must be filed when a U.S. person: (1) creates a foreign trust (whether or not the trust has U.S. beneficiaries); (2) transfers any money or property to a foreign trust, including a transfer by reason of death; (3) receives any distribution from a foreign trust, receives the uncompensated use of property of a foreign trust, or receives a loan from a foreign trust; or (4) is treated as the U.S owner of a foreign trust under the so-called grantor trust rules.41
Additionally, if a U.S. person is treated as the U.S. owner of a foreign trust under the grantor trust rules, they are responsible for ensuring that the trust both files an annual return on Form 3520-A, Annual Information Return of Foreign Trust With a U.S. Owner, and furnishes the required annual statements to its U.S. owners and beneficiaries.42 Information about the trust, its U.S. beneficiaries, and any U.S. person who is treated as an owner of any portion of the trust must be reported on Form 3520-A. Importantly, the due date for Form 3520-A differs from the due date for Form 3520. Form 3520-A generally must be filed by the 15th day of the third month after the end of the trust’s tax year (i.e., March 15th if the trust has a calendar tax year), unless the trust submits a timely request for an automatic six-month extension.
Receipt of Foreign Gifts: Form 3520
Generally, gifts are not subject to U.S. federal income tax if the transfer proceeds from the donor’s “detached and disinterested generosity … out of affection, respect, admiration, charity or like impulses.”43 A gift is subject to U.S. gift tax when made by a foreign donor (who would pay the tax) only if it is a gift of tangible personal property physically situated in the United States.44 However, even if a gift does not give rise to U.S. federal income tax or gift tax liability, if a U. S. person receives gifts from a foreign person, the U.S. person may be required to report such gifts.
More specifically, if the value of the aggregate foreign gifts received by a U.S. person during any tax year exceeds a certain threshold, the U.S. person is required to report certain information on such foreign gifts on Form 3520.45 For this purpose, a "foreign gift" is any amount received from a foreign person that the recipient treats as a gift or bequest.46 Thus, foreign gifts could include gifts of cash or personal property (such as cars, art, or furniture), as well as gifts of residential real property. In addition, foreign gifts could include payments made by the foreign person on behalf of the U.S. person.47 Certain transfers for medical or educational expenses, however, are not required to be reported on Form 3520.
With respect to the threshold, a U.S. person must report the receipt of gifts from a foreign individual or foreign estate if the aggregate amount of gifts from that foreign individual or foreign estate exceeds $100,000 during the tax year.48 Form 3520 further requires that the U.S. person separately identify each gift in excess of $5,000 by providing the date of the gift, a description of the property received, and the fair market value (FMV) of the property received.49
In addition, the U.S. person must report the receipt of purported gifts from foreign corporations and foreign partnerships if the aggregate amount of purported gifts from all such entities exceeds a certain threshold ($18,567 for tax years beginning in 2023) during the tax year.50 With respect to each such purported gift, the U.S. person must provide the following information on Form 3520: (1) the date of the gift; (2) the name of the foreign donor; (3) the address of the foreign donor; (4) the tax identification number of the foreign donor (if any); (5) whether the foreign donor is a corporation or a partnership for U.S. tax purposes; (6) a description of the property received; and (7) the property's FMV.51
Resolving Prior Noncompliance
If a taxpayer has failed to file accurate prior-year information returns reporting their foreign assets and the receipt of foreign gifts, there are several options for coming into compliance, depending upon the facts and the extent of the taxpayer's noncompliance. In order to use any of the options below, the taxpayer must not be under a civil examination or criminal investigation by the IRS. In addition, the taxpayer must not have already been contacted by the IRS about prior-year noncompliance.
The delinquent international information return52 and delinquent FBAR submission procedures53 may be appropriate if the taxpayer failed to file international information returns or FBARs but does not need to file delinquent or amended tax returns to report and pay additional tax or owe tax on any unreported income. Delinquent international information returns should be attached to an amended return and filed according to the applicable instructions for the amended return. Taxpayers may attach a reasonablecause statement to each delinquent information return filed for which reasonable cause is being asserted in order to request abatement of penalties. Delinquent FBARs should be submitted electronically and should include a statement as to the reason for the late filing. These procedures are relatively simple and do not require extensive disclosure beyond the submission of the relevant returns and FBARs, but they may not resolve all prior-year issues, depending on a taxpayer's specific facts.
The streamlined filing compliance procedures54 may be appropriate where the taxpayer's failure to report and to pay all tax was due to nonwillful conduct (i.e., conduct that is due to negligence, inadvertence, or mistake, or conduct that is the result of a good-faith misunderstanding of the law's requirements). The procedures and eligibility requirements differ somewhat depending upon whether the taxpayer resides in the United States. Generally, the streamlined filing process involves filing delinquent tax returns for the last three years and delinquent FBARs for the last six years, full payment of tax and interest, and filing of a statement explaining the taxpayer's eligibility for the program. In certain cases where a taxpayer has recently resided in the United States, a penalty may be imposed.
The voluntary disclosure program (VDP)55 may be appropriate where noncompliance may be viewed by the IRS as the result of willful conduct. Willful conduct generally includes the voluntary, intentional violation of a known duty. However, in recent years, the IRS has applied (and some courts have endorsed) a lower standard of willfulness that includes recklessness or even “willful blindness” (i. e., intentionally ignoring or failing to inquire about one’s legal obligations).56 The VDP process is lengthy, requires disclosure of a significant amount of taxpayer information, and generally involves the imposition of penalties (though usually reduced from penalties the taxpayer might otherwise face). The main benefit is that the IRS is unlikely to pursue a criminal tax case against a taxpayer who makes a full, timely, and truthful disclosure. A disclosure will not be timely if the IRS has received information from a third party alerting it to the taxpayer’s noncompliance or if the Service has acquired information directly related to the specific liability of the taxpayer from criminal enforcement actions (such as a search warrant or a grand jury subpoena). Following the disclosure, the taxpayer must comply with U.S. law for all tax periods going forward and file returns according to standard filing procedures, or otherwise risk the revocation of the IRS’s acceptance of the taxpayer into the program and possible criminal prosecution.
A taxpayer will occasionally attempt a “quiet disclosure” by reporting a previously unreported asset and the related income on an amended or delinquent tax return and/or FBAR, but not through a formal disclosure program. In some instances, the taxpayer will not attempt to correct prior-year filings but will correct their reporting on a going-forward basis. Filing a quiet disclosure does not provide any protection with respect to civil and criminal penalties. Additionally, as the IRS devotes additional resources to enforcement and technological updates, it is increasingly likely that correcting on a going-forward basis will alert the IRS to prior-year noncompliance. Thus, submitting a disclosure through a formal disclosure program is generally preferable.
Importance of Acting Promptly
The IRS is better able than ever to detect reporting noncompliance, thanks to technological improvements and required reporting by foreign financial institutions about their U.S. customers. Armed with these tools and information, as well as additional funding following the passage of the Inflation Reduction Act in 2022,57 the IRS can be expected to increase enforcement efforts in this area, particularly with respect to high-net-worth taxpayers. Taxpayers should work closely with their tax advisers to ensure that they are properly complying with all tax and reporting obligations, and to take any necessary steps to address prior noncompliance promptly.
Foreign reporting requirements can be complex. If you have any questions, give us a call to discuss your situation, and provide professional insight and clarification.
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