Offshore Disclosure Forms

FORM TD F 90-22.1 REPORT OF FOREIGN BANK ACCOUNTS (FBAR)

If you have a financial interest in or signature authority over a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account, the Bank Secrecy Act may require you to report the account yearly to the Internal Revenue Service by filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR). The FBAR is required because foreign financial institutions may not be subject to the same reporting requirements as domestic financial institutions. The FBAR is a tool to help the United States government identify persons who may be using foreign financial accounts to circumvent United States law. Investigators use FBARs to help identify or trace funds used for illicit purposes or to identify unreported income maintained or generated abroad.

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A person who is required to file an FBAR and fails to properly file may be subject to a civil penalty not to exceed $10,000 per violation. If there is reasonable cause for the failure and the balance in the account is properly reported, no penalty will be imposed. A person who willfully fails to report an account or account identifying information may be subject to a civil monetary penalty equal to the greater of $100,000 or 50 percent of the balance in the account at the time of the violation. See 31 U.S.C. §§ 5321(a)(5). Willful violations may also be subject to criminal penalties under 31 U.S.C. §§ 532 (a), 31 U.S.C. § 5322(b), or 18 U.S.C. § 1001.

FORM 5471 – INFORMATION RETURN OF U.S. PERSONS WITH RESPECT TO CERTAIN FOREIGN CORPORATIONS

Form 5471 is used by certain U.S. citizens and residents who are officers, directors, or shareholders in certain foreign corporations. The form and schedules are used to satisfy the reporting requirements of IRC §§ 6038 and 6046, and the related regulations. A U.S. shareholder may have to pay a penalty if it is required to disclose a reportable transaction under IRC § 6011 and fails to properly complete and file Form 8886, Reportable Transaction Disclosure Statement. Substantial penalties may also apply ranging from $10,000 for each failure to file form 5471. If the failure continues for more than 90 days after the date the IRS mails notice of the failure, an additional $10,000 penalty will apply for each 30-day period the failure continues with a maximum of $50,000. Criminal penalties under IRC §§ 7203, 7206, and 7207 may apply for failure to file the information required by IRC §§ 6038 and 6046.

FORM 5472 – INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS

Corporations file this form to provide information required under sections 6038A and 6038C when reportable transactions occurs during the tax year of a reporting corporation with a foreign or domestic related party. A reporting corporation is either: (i) a 25% foreign-owned U.S. corporation; or (ii) a foreign corporation engaged in a trade or business within the United States. A penalty of $10,000 will be assessed on any reporting corporation that fails to file Form 5472 when due and in the manner prescribed. The penalty also applies for failure to maintain records as required by Regulation § 1.6038A-3. Filing a substantially incomplete Form 5472 constitutes a failure to file Form 5472. Each member of a group of corporations filing a consolidated information return is a separate reporting corporation subject to a separate $10,000 penalty and each member is jointly and severally liable. If the failure continues for more than 90 days after notification by the IRS, an additional penalty of $10,000 will apply. This penalty applies with respect to each related party for which a failure occurs for each 30-day period (or part of a 30-day period) during which the failure continues after the 90-day period ends. Criminal penalties under sections 7203, 7206, and 7207 may also apply for failure to submit information or for filing form 5472.

FORM 3520 – ANNUAL RETURN TO REPORT TRANSACTIONS WITH FOREIGN TRUSTS AND RECEIPT OF CERTAIN FOREIGN GIFTS

U.S. persons (and executors of estates of U.S. decedents) file form 3520 to report:

  • Certain transactions with foreign trusts,
  • Ownership of foreign trusts under the rules of sections Internal Revenue Code §§ 671 through 679, and
  • Receipt of certain large gifts or bequests from certain foreign persons.

A separate Form 3520 must be filed for transactions with each foreign trust. Under IRC § 6677 a penalty generally applies if Form 3520 is not timely filed or if the information is incomplete or incorrect. Generally, the initial penalty is equal to the greater of $10,000 or:

  • 35% of the gross value of any property transferred to a foreign trust for failure by a U.S. transferor to report the creation of or transfer to a foreign trust or
  • 35% of the gross value of the distributions received from a foreign trust for failure by a U.S. person to report receipt of the distribution or
  • 5% of the gross value of the portion of the trust’s assets treated as owned by a U.S. person for failure by the U.S. person to report the U.S. owner information.

Additional penalties will be imposed if the noncompliance continues after the IRS mails a notice of failure to comply with the required reporting. For more information, see IRC § 6677. No penalties will be imposed if the taxpayer can demonstrate that the failure to comply was due to reasonable cause and not willful neglect. The fact that a foreign country would impose penalties for disclosing the required information is not reasonable cause. Similarly, reluctance on the part of a foreign fiduciary or provisions in the trust instrument that prevent the disclosure of required information is not reasonable cause. See section 6677(d) for additional information. In the case of a failure to report foreign gifts described in IRC § 6039F, a penalty equal to 5% of the amount of such foreign gifts applies for each month for which the failure to report continues (not to exceed a total of 25%). No penalty will be imposed if the taxpayer can demonstrate that the failure to comply was due to reasonable cause and not willful neglect. Penalties may be imposed under IRC § 6662(j) for undisclosed foreign financial asset understatements. No penalty will be imposed with respect to any portion of an underpayment if the taxpayer can demonstrate that the failure to comply was due to reasonable cause with respect to such portion of the underpayment and the taxpayer acted in good faith with respect to such portion of the underpayment. See section 6662(j) and section 6664(c) for additional information.

FORM 3520A – ANNUAL INFORMATION RETURN OF FOREIGN TRUST WITH U.S. OWNER

Form 3520A is the annual information return of a foreign trust with at least one U.S. owner. The form provides information about the foreign trust, its U.S. beneficiaries, and any U.S. person who is treated as an owner of any portion of the foreign trust. The U.S. owner is subject to an initial penalty equal to the greater of $10,000 or 5% of the gross value of the portion of the trust’s assets treated as owned by the U.S. person at the close of that tax year, if the foreign trust: (a) fails to file a timely Form 3520-A or (b) does not furnish all of the information required by section 6048(b) or includes incorrect information. See IRC § 6677(b). Additional penalties will be imposed if the noncompliance continues after the IRS mails a notice of failure to comply with the required reporting. For more information, see IRC § 6677. Criminal penalties may be imposed under IRC §§ 7203, 7206, and 7207 for failure to file on time and for filing a false or fraudulent return. Penalties may also be imposed under section 6662(j) for undisclosed foreign financial asset understatements. Reasonable cause exception: No penalties will be imposed if the taxpayer can demonstrate that the failure to comply was due to reasonable cause and not willful neglect. Note. The fact that a foreign country would impose penalties for disclosing the required information is not reasonable cause. Similarly, reluctance on the part of a foreign fiduciary or provisions in the trust instrument that prevent the disclosure of required information is not reasonable cause.

FORM 8938 – STATEMENT OF SPECIFIED FOREIGN FINANCIAL ASSETS (FATCA)

Form 8938 is used to report specified foreign financial assets if the total value of all the specified foreign financial assets in which U.S. Taxpayers have an interest, is more than the appropriate reporting threshold.

FORM 8938 REPORTING THRESHOLDS:

For U.S. Taxpayers that do not live outside the United States, the reporting threshold that applies to you is as follows:

  • Unmarried taxpayers. If you are not married, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000 at any time during the tax year.
  • Married taxpayers filing a joint income tax return. If you are married and you and your spouse file a joint income tax return, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $100,000 on the last day of the tax year or more than $150,000 at any time during the tax year.
  • Married taxpayers filing separate income tax returns. If you are married and file a separate income tax return from your spouse, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $50,000 on the last day of the tax year or more than $75,000.

For U.S. Taxpayers that live outside the United States and your tax home is in a foreign country, the reporting threshold that applies to you is as follows:

  • Unmarried taxpayers. If you are not married, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $200,000 on the last day of the tax year or more than $300,000 at any time during the tax year.
  • Married taxpayers filing a joint income tax return. If you are married and you and your spouse file a joint income tax return, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $400,000 on the last day of the tax year or more than $600,000 at any time during the tax year.
  • Married taxpayers filing separate income tax returns. If you are married and file a separate income tax return from your spouse, you satisfy the reporting threshold only if the total value of your specified foreign financial assets is more than $200,000 on the last day of the tax year or more than $300,000 at any time during the tax year.

FOR 8938 & REPORT OF FOREIGN BANK AND FINANCIAL ACCOUNTS (FBAR):

Filing Form 8938 does not relieve you of the requirement to file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR), if you are otherwise required to file the FBAR.

FORM 8938 REPORTING REQUIREMENTS:

You must attach Form 8938 to your annual return and file by the due date (including extensions) for that return. An annual return includes the following returns:

  • Form 1040 U.S. Individual Income Tax Return
  • Form 1120 U.S. Corporation Income Tax Return
  • Form 1120-S U.S. Corporation Income Tax Return for an S Corporation
  • Form 1065 U.S. Return of Partnership Income
  • Form 1041 U.S. Income Tax Return for Estates and Trusts
  • Form 1040NR U.S. Nonresident Alien Income tax Return

EXCEPTIONS TO REPORTING FORM 8938:

You do not have to report any asset on Form 8938 if you report it on one or more of the following forms that you timely file with the IRS for the same tax year:

  • Form 3520, Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts.
  • Form 5471, Information Return of U.S. Persons With Respect To Certain Foreign Corporations.
  • Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund.
  • Form 8865, Return of U.S. Persons With Respect to Certain Foreign Partnerships.
  • Form 8891, U.S. Information Return for Beneficiaries of Certain Canadian Registered Retirement Plans. Instead, you must identify on Form 8938 the form(s) on which you report the specified foreign financial asset and how many of these forms you file.

FORM 8938 PENALTIES:

You may be subject to penalties if you fail to timely file a correct Form 8938 or if you have an understatement of tax relating to an undisclosed specified foreign financial asset as follows:

  • Failure­to­File Penalty – If you are required to file Form 8938 but do not file a complete and correct Form 8938 by the due date (including extensions), you may be subject to a penalty of $10,000.
  • Continuing failure to file– If you do not file a correct and complete Form 8938 within 90 days after the IRS mails you a notice of the failure to file, you may be subject to an additional penalty of $10,000 for each 30-day period (or part of a period) during which you continue to fail to file Form 8938 after the 90-day period has expired. The maximum additional penalty for a continuing failure to file Form 8938 is $50,000.
  • Married taxpayers filing a joint income tax return – If you are married and you and your spouse file a joint income tax return, the failure to file penalties apply as if you and your spouse were a single person. You and your spouse’s liability for all penalties are joint and several.
  • Presumption of maximum value – If the IRS determines that you have an interest in one or more specified foreign financial assets and asks you for information about the value of any asset, but you do not provide enough information for the IRS to determine the value of the asset, you are presumed to own specified foreign financial assets with a value of more than the reporting threshold that applies to you. In such case you are subject to the failure-to-file penalties if you do not file Form 8938.
  • Reasonable cause exception – No penalty will be imposed if you fail to file Form 8938 or to disclose one or more specified foreign financial assets on Form 8938 and the failure is due to reasonable cause and not to willful neglect. You must affirmatively show the facts that support a reasonable cause claim. The determination of whether a failure to disclose a specified foreign financial asset on Form 8938 was due to reasonable cause and not due to willful neglect will be determined on a case-by-case basis, taking into account all pertinent facts and circumstance.

FORM 8865 – RETURN OF U.S. PERSONS WITH RESPECT TO CERTAIN FOREIGN PARTNERSHIPS:

Form 8865 is used to report the information required under IRC § 6038 (reporting with respect to controlled foreign partnerships), IRC § 6038B (reporting of transfers to foreign partnerships), or §6046A (reporting of acquisitions, dispositions, and changes in foreign partnership interests). The penalty for failure to file form 8865 is $10,000 for each tax year each foreign partnership failure to furnish the required information within the time period prescribed. An additional $10,000 penalty is charged for each 30-day period during which the failure continues with a maximum penalty ranging from $50,000 to $100,000 depending on the category of filer. Reductions to foreign tax credits can also apply.

FORM 8621 – INFORMATION RETURN BY A SHAREHOLDER OF A PASSIVE FOREIGN INVESTMENT COMPANY OR QUALIFIED ELECTING FUND (PFIC):

For purposes of income tax in the U.S, persons owning shares of a passive foreign investment company (PFIC) may choose between (i) current taxation on the income of the PFIC or (ii) deferral of such income subject to a deemed tax and interest regime. By definition, a foreign mutual fund that is not registered with the U.S. Securities and Exchange Commission is a PFIC and can result in extremely disadvantageous phantom tax consequences for U.S. Taxpayer, even if no distributions are received or no disposition of the investment occurs. A foreign corporation is a PFIC if it meets either the income or asset test as follows:

  • Income test. 75% or more of the corporation’s gross income for its taxable year is passive income (as defined in section 1297(b)).
  • Asset test. At least 50% of the average percentage of assets (determined under section 1297(e)) held by the foreign corporation during the taxable year are assets that produce passive income or that are held for the production of passive income.

PFIC FORM 8621 FILING REQUIREMENTS:

A U.S. Person that is a direct or indirect shareholder of a PFIC must file Form 8621 for each tax year under the following three circumstances:

  1. Receives certain direct or indirect distributions from a PFIC;
  2. Recognizes gain on a direct or indirect disposition of PFIC stock; or
  3. Is making an election to treat the PFIC as a Qualifying Electing Fund (QEF)

A separate Form 8621 must be filed for each PFIC in which stock is held directly or indirectly. Form 8621 is attached to the shareholder’s tax return and filed by the due date, including extensions. Where there are no distributions to the shareholders, there are no explicit penalties for a failure to file the form. Generally, it is to the advantage of a U.S. taxpayer to file this form and to make an election to pay taxes on the current income of the PFIC. If an election is not made to pay taxes on the current income of the PFIC, then any future distributions may be subject to the punitive tax on excess distributions. In addition, the QEF election may permit the taxpayer to retain the benefits of the lower tax rate on long term capital gains realized by the PFIC.

2012 OVDP & PFIC:

To date, a significant number of cases submitted under the 2009 OVDP and 2011 OVDI involve PFIC investments. A lack of historical information on the cost basis and holding period of many PFIC investments makes it difficult for taxpayers to prepare statutory PFIC computations and for the Service to verify them. As a result, resolution of voluntary disclosure cases could be unduly delayed. Therefore, for purposes of this program, the IRS is offering taxpayers an alternative to the statutory PFIC computation that will resolve PFIC issues on a basis that is consistent with the Mark to Market (MTM) methodology authorized in Internal Revenue Code § 1296 but will not require complete reconstruction of historical data. The details of this method are set forth in the 2012 OVDP FAQ Number 10.

FORM 8891 – U.S. INFORMATION RETURN FOR BENEFICIARIES OF CERTAIN CANADIAN REGISTERED RETIREMENT PLANS:

Form 8891 is used by U.S. citizens or residents to report:

  • Contributions to Canadian registered retirement savings plans (RRSPs) and registered retirement income funds (RRIFs);
  • Undistributed earnings in RRSPs and RRIFs; and
  • Distributions received from RRSPs and RRIFs.

Form 8891 can also be used to make an election pursuant to Article XVIII (7) of the U.S.-Canada income tax treaty to defer U.S. income tax on income earned by an RRSP or an RRIF that has been accrued, but not distributed. Taxpayers who have not previously made the election can make it on this form by checking the box on line 6(c). Form 8891 must be completed and attached to Form 1040 by any U.S. citizen or resident who is a beneficiary of an RRSP or RRIF. Form 8891 should not be filed by itself. A U.S. citizen or resident who is an annuitant of an RRSP or RRIF must file the form for any year in which he or she receives a distribution from the RRSP or RRIF. A separate Form 8891 must be filed for each RRSP or RRIF for which there is a filing requirement. If you and your spouse are both required to file Form 8891, each of you must complete and attach a separate Form 8891 to Form 1040, even if you file a joint return.

Failure to File Form 8891.

If you are a U.S. Taxpayer and have a Canadian registered retirement savings plan (RRSP), registered retirement income fund (RRIF), or other similar Canadian plan and did not make a timely election pursuant to Article XVIII (7) of the U.S. – Canada income tax treaty to defer U.S. income tax on income earned by the RRSP or RRIF that has not been distributed and have not filed form 8891, you may have several option under the 2012 OVDP FAQ 54, or the new IRS Streamlined Procedure.