Foreign Trust Reporting and Compliance

By

Lucy S. Lee, Esq. Caplin & Drysdale, Chartered

Washington, D.C. &

Paula Charpentier Ernst & Young Sociétét d’Avocats

© 2008 Lucy S. Lee and Paula Charpentier

I. In General The United States generally imposes an income tax filing requirement on all U.S. persons and certain foreign persons, including certain foreign trusts with U.S. owners or other U.S. nexus. For purposes of U.S. federal income tax and reporting, section 7701(a)(30) of the Internal Revenue Code (the “Code”)1 defines the term a “U.S. person” to mean a citizen or resident of the U.S., a domestic partnership, a domestic corporation, any estate other than a foreign estate and certain trusts. Section 7701(a)(31) defines the term a “foreign trust” broadly to mean any trust other than a trust treated as a U.S. person. Section 6012 contains the requirements for when an individual or entity is required to file a U.S. federal income tax return. U.S. persons are generally required to file annually a Form 1040 to report their worldwide income, while foreign persons are generally required to file annually a Form 1040NR to report their fixed determinable and periodic (“FDAP”) income from sources within the U.S. and income that is effectively connected with a U.S. trade or business for the year (“effectively connected income” or “ECI”).2 Section 6012 also contains the exceptions for when an individual is not required to file a Form 1040.3 For purposes of U.S. federal income tax reporting, a foreign nongrantor trust is treated as a foreign individual and, thus, must file annually a Form 1040NR to report its U.S.-source FDAP income and effectively connected income. In addition, the Code imposes certain information reporting requirements on foreign grantor trusts with certain U.S. nexus and on any U.S. persons who maintain certain connections with foreign trusts during the year, including (1) ownership of a foreign grantor trust, (2) transfer of property to a foreign trust (i.e., the U.S. transferor must notify the IRS of the transfer and provide the IRS with the identify of the trustees and

1 Unless otherwise noted, all section references herein are to the Internal Revenue Code of 1986, as amended, and the regulations thereunder. 2 I.R.C. § 6012(a); Treas. Reg. § 1.6012-1(b)(1); see also Instructions to Form 1040NR. 3 I.R.C. § 6012(a)(1)(A) The only true exception to when a U.S. citizen or resident individual has to file a Form 1040 (or Form 1040A or 1040EZ) is where the individual does not meet certain income thresholds. Sections 6012(a)(1)(C) and (D) create certain exceptions to the exception in section 6012(a)(1)(A).

2

2

beneficiaries),4 and (3) receipt of property from a foreign trust. Reporting is also required for any testamentary transfer of property, as well as the death of a U.S. citizen or resident who was considered to own any portion of a foreign trust or in whose estate are included a foreign trust’s assets.5 In the case of testamentary transfers and the death of a U.S. owner of a foreign trust, notice must be furnished by the decedent’s executor.6 Since U.S. federal income tax reporting requirements vary depending on the residence and classification of trusts, the return preparer must determine both the residence and classification of the trust. The following discussion in Section II is provided to serve as a general guideline of factors to be considered in making these determinations. However, since the determination of a trust’s residence and classification often entail intricate analyses of trust terms and agreements, practitioners should consult appropriate advice before determining the residence and classification of trusts for purposes of U.S. federal income tax and reporting. II. Determining the Residence and Classification of a Trust

A. Determination of an Entity as a “Trust”

Before considering the residence and classification of a trust, the entity in question must be a “trust” from the U.S. perspective. For purposes of U.S. federal income tax, a "trust" is defined to mean an arrangement by which title to property is held by a person or persons, with a fiduciary responsibility to conserve or protect the property for the benefit of another person or persons.7 Thus, a trust is an arrangement by which trustees take title to property for the purpose of protecting or conserving the property for the beneficiaries.8 Depending on the terms and conditions of a trust, a trust can be treated as a grantor trust, a simple trust or a complex trust for purposes of U.S. federal income tax. However, certain arrangements are not treated as trusts because they behave more as business entities by actively engaging in the operation of a business, rather than merely holding and conserving the assets for the beneficiaries. These trusts are referred to as “business trusts” and are classified as corporations or partnerships for U.S. federal tax purposes.9 In addition, certain investment trusts are not classified as trusts.10 Note that certain foreign countries have structures that are similar to a trust, although they may not be technically referred to as a “trust” in the foreign country.

4 I.R.C. § 6048(a). In Notice 97-34, 1997-25 I.R.B. 22, the IRS clarified section 6048(a)’s notice requirements. The Form 3520, used to report transfers to foreign trusts, is filed with a U.S. transferor’s annual income tax return. 5 I.R.C. § 6048(a)(3). 6 I.R.C. § 6048(a)(4). 7 Treas. Reg. § 301.7701-4(a). 8 Id. 9 Treas. Reg. § 301.7701-4(b). 10 Treas. Reg. § 301.7701-4(c). An investment trust is classified as a business trust if either (i) there is a power under the trust agreement to vary the investment of the certificate holders or (ii) with certain limited exceptions, the trust has multiple classes of ownership interests. Id.

3

3

B. Determination of a Trust’s Residence

A trust is defined as a “United States person” if (1) a court within the United States is able to exercise primary supervision over the administration of the trust (the “court test”), and (2) one or more United States persons have the authority to control all substantial decisions of the trust (the “control test”).11 A trust which satisfies both the “court test” and the “control test” is treated as a U.S. person for purpose of U.S. federal income tax and reporting. A trust that is not a U.S. person is treated as a foreign trust.12

1. Court Test In determining whether a trust satisfies the “court test,” consideration must be given to all of the terms of the trust instrument. If the trust instrument states that the trust is to be administered outside of the U.S., then the trust fails the “court test” and it will be considered a foreign trust for purposes of U.S. federal income tax and reporting.13 If the trust instrument is silent on where the court is to be administered, the trust may be considered administered in the U.S., unless the trust is subject to an automatic migration provision (the “flee clause”).14 The flee clause is a provision which indicates that if a U.S. court attempts to take primary control over the administration of the trust, then the trust will “migrate” to a foreign jurisdiction. If a trust contains the flee clause, then the trust is considered foreign for purposes of U.S. federal income tax and reporting.15 The regulations provide further guidance regarding whether a trust meets the “court test.” In particular, the regulations provide that a trust will satisfy the “court test” if it meets all of the following three prongs: (1) the court with primary supervision over the trust must be within the 50 States or the District of Columbia;16 (2) the U.S. court must be “able to exercise” its authority over the trust, i.e., the U.S. court must have the authority to render judgments, orders, or resolve issues regarding the trust’s administration;17 and, (3) the U.S. court must have “primary supervision” over the trust, i.e., the U.S. court must have authority regarding substantially all of the issues regarding the trust’s administration.18 Note that a trust may satisfy the “court test” even if a U.S. court and a foreign court both have primary supervision over the trust.19 Thus, for example, a U.S. court may be considered to have primary supervision over the trust even if a foreign court has primary supervision over the trustee or one of the beneficiaries. The regulations contain several safe harbor provisions for certain trusts to qualify as domestic trusts. In particular, the regulations provide that a trust will satisfy the “court test” and, thus, be treated as a domestic trust if: (1) the trust is registered with a State court under provisions

11 I.R.C. § 7701(a)(30)(E). 12 I.R.C. § 7701(a)(31). 13 Treas. Reg. § 301.7701-7(c)(1)(i). 14 Treas. Reg. § 301.7701-7(c)(1) 15 Treas. Reg. § 301.7701-7(c)(4)(ii). 16 Treas. Reg. § 301.7701-7(c)(3)(ii). 17 Treas. Reg. § 301.7701-7(c)(3)(iii). 18 Treas. Reg. § 301.7701-7(c)(3)(iv). 19 Treas. Reg. § 301.7701-7(c)(4)(i)(D).

4

4

similar to Article VII of the Uniform Probate Code;20 (2) the trust is created pursuant to a will probated in the U.S. and all fiduciaries have been qualified; or (3) the trustee or fiduciary of the trust takes affirmative steps with a U.S. court to cause the administration of the trust to be subject to the primary supervision of that U.S. court.21

2. Control Test Similar to the “court test,” the criteria for satisfying the “control test” are set forth in the regulations. In particular, the regulations define a “substantial decision” to mean:

[a] decision that persons are authorized or required to make under the terms of the trust instrument and applicable law and that are not ministerial. Decisions that are ministerial include decisions regarding details such as the bookkeeping, the collection of rents, and the execution of investment decisions. Substantial decisions include, but are not limited to, decisions concerning— (A) Whether and when to distribute income or corpus; (B) The amount of any distributions; (C) The selection of a beneficiary; (D) Whether a receipt is allocable to income or principal; (E) Whether to terminate the trust; (F) Whether to compromise, arbitrate, or abandon claims of the trust; (G) Whether to sue on behalf of the trust or to defend suits against the trust; (H) Whether to remove, add, or replace a trustee; (I) Whether to appoint a successor trustee to succeed a trustee who has died,

resigned, or otherwise ceased to act as a trustee, even if the power to make such a decision is not accompanied by an unrestricted power to remove a trustee, unless the power to make such a decision is limited such that it cannot be exercised in a manner that would change the trust’s residency from foreign to domestic, or vice versa; and

(J) Investment decisions; however, if a U.S. person under section 7701(a)(30) hires an investment advisor for the trust, investment decisions made by the investment advisor will be considered substantial decisions controlled by the U.S. person if the U.S. person can terminate the investment advisor’s power to make investment decisions at will.22

In addition, the regulations define “control” to mean:

…having the power, by vote or otherwise, to make all of the substantial decisions of the trust, with no other person having the power to veto any of the substantial decisions. To determine whether United States persons have control, it is necessary to consider all

20 Treas. Reg. § 301.7701-7(c)(4)(i)(A). 21 Treas. Reg. § 301.7701-7(c)(4)(i)(C). 22 Treas. Reg. § 301.7701-7(d)(ii).

5

5

persons who have authority to make a substantial decision of the trust, not only the trust fiduciaries.23

C. Determination of a Trust’s Classification Generally, a trust that is not classified as a business trust is classified as either a nongrantor trust or a grantor trust. 1. Foreign Nongrantor Trust A foreign nongrantor trust is either a “simple” trust or a “complex” trust, depending on what distributions are required by the trust agreement. An analysis of the foreign trust deed will be necessary to determine if the trust qualifies as a simple trust or a complex trust for U.S. federal tax purposes. In general, a simple trust is one in which the trust deed (i) requires that the trust distribute all of its income currently for the taxable year, and (ii) does not provide that any amounts may be paid, permanently set aside, or used in the taxable year for charitable purposes.24 If a trust is not considered to be a grantor trust or a simple trust, then the trust should be considered to be a complex trust for U.S. federal tax purposes. Generally, a complex trust is one which is not required to distribute all income annually.25 A foreign nongrantor trust, whether simple or complex, is treated as a separate taxpayer for U.S. federal tax purposes. Income is allocated between the trust and its beneficiaries using the concept of distributable net income or “DNI,” limiting the amount of the distribution deduction available to the trust (see discussion below in Section III-A for a more detailed discussion of DNI).26 However, note that distribution deductions are calculated differently for “simple” and “complex” foreign trusts. The following are two primary examples of foreign nongrantor trusts: • Section 651 “simple” trusts are nongrantor trusts where the trust instrument requires that

all income be distributed currently. Trusts where the income may be paid to or permanently set aside for a charity are specifically excluded, as are trusts that make distributions of accumulated income or trust corpus. All income of a foreign trust that is classified as a simple trust is considered to be distributed to beneficiaries, whether or not it is actually distributed. Many foreign trust instruments that provide for distribution of current income do not specifically include capital gains in the amounts required to be distributed. Therefore, it is unclear whether such a foreign trust may be characterized as one that calculates the distribution deduction under section 651.27

• Section 661 “complex” trusts are typically nongrantor trusts where the trustees have

discretion to determine the amounts that should be distributed by the trust to the

23 Treas. Reg. § 301.7701-7(d)(iii). 24 Treas. Reg. § 1.651(a)-1. 25 I.R.C. §§ 651 and 661. 26 I.R.C. §§ 651 and 661. 27 See discussion of foreign trust DNI at III-A below

6

6

beneficiary class. The amount of the distribution deduction for this type of trust is limited by the amount of DNI in the trust in a given year.28

2. Foreign Grantor Trust A trust is a grantor trust for U.S. federal income tax purposes when the grantor or another person is treated as the owner of that trust’s assets because the grantor, trustee or beneficiary has certain powers over the trust's income or corpus.29 The term "grantor", however, is not defined in the Code. Under the regulations,30 the term a “grantor” generally includes "any person to the extent such person either creates a trust, or directly or indirectly makes a gratuitous transfer…of property to a trust." A gratuitous transfer is then defined "as any transfer other than a transfer for fair market value."31 Whether the transfer is gratuitous or not becomes a question of fact, which must be resolved by analyzing the terms of the trust instrument and related documents. In the case of a grantor trust, all items of income, deduction and credit of the trust are includable in the grantor’s income as if the assets were owned by the grantor personally.32 A domestic trust is a grantor trust if it meets any one of the criteria set forth under sections 671 through 679. The rules for foreign trusts with nonresident grantors, however, differ significantly. In particular, a foreign trust with a nonresident grantor can only be a grantor trust if it meets the test set forth in section 672(f). The trust deed must provide that all payments of income or corpus are payable only to the grantor or his spouse during the grantor’s lifetime, or the trust deed must provide that the grantor is able to revest himself of all trust property at any time.33 Further, if a U.S. beneficiary of the trust is treated as indirectly transferring property to the trust through a foreign intermediary, then such U.S. beneficiary will be treated as the owner of the trust and the trust will be treated as a grantor trust with respect to that beneficiary.34 The rules of section 672(f) apply to all foreign trusts, however, if a foreign trust were a grantor trust pursuant to section 676 or 677 (except for subsection (a)(3) thereof) on or before September 19, 1995, and no additional contributions to trust capital have been made since September 19, 1995 or, if additional contributions have been made, they were separately accounted for, the trust would be considered a “grandfathered” foreign grantor trust.35 In addition, a foreign trust with a U.S. settlor or transferor may be treated as a grantor trust with respect to the U.S. settlor or transferor. In particular, where a U.S. person transfers property to a foreign trust, section 679 may treat such U.S. transferor as the owner of the trust’s assets for U.S. federal tax purposes if the foreign trust that has one or more U.S. beneficiaries.

28 I.R.C. § 661(a)(2) 29 I.R.C. § 671. 30 Treas. Reg. § 1.671-2(e)(1). 31 Treas. Reg. § 1.671-2(e)(2). 32 I.R.C. § 671 and Treas. Reg. § 1.671-2(c). 33 I.R.C. § 672(f)(2). 34 I.R.C. § 672(f)(5). 35 Pub. L. No. 104-188, section 1904(d)(2) & (e); Treas. Reg. § 1.672(f)-3(a)(3), (b)(3), (d).

7

7

Section 679 applies only if: (1) the transferor is a U.S. person; (2) the transferor makes a direct or indirect transfer to the trust (or the trust migrates to the U.S.); (3) the trust is a foreign trust; and (4) the trust has a U.S. beneficiary in the taxable year in question.36 Certain types of direct or indirect transfers are excluded for purposes of applying section 679, including (1) testamentary transfers,37 (2) transfers for fair market value, including transfers in exchange for qualified obligations,38 and (3) transfers to charitable or employee benefit trusts.39 Note that section 679 also applies to transfers in trust by certain foreign persons who later become a U.S. person. In particular, if a nonresident alien individual directly or indirectly transfers property to a foreign trust and thereafter becomes a resident of the United States within 5 years after the transfer, such individual will be treated as if he or she made the transfer on the residency starting date.40 Further, if a nonresident alien spouse of a U.S. person transfers property to a foreign trust in which, under applicable law, the U.S. spouse has a community property interest, section 679 should apply to the U.S. spouse to the extent of his or her one-half interest in the community property which has been used to fund the trust.41 III. U.S. Federal Income Taxation and Reporting of Foreign Trusts

A. Foreign Nongrantor Trusts A nongrantor trust is treated as its own taxpayer, separate from the grantor or settlor, but is taxed as if it were an individual.42 However, note that the current highest tax bracket rate of 35% applies to nongrantor trusts with only $7,500 in taxable income.43 In determining the taxable income of a nongrantor trust, it is important to understand the concept of DNI as it applies to trusts. DNI serves a quantitative and qualitative role. In particular, (1) it acts as a limitation on the distribution deduction that that the trust may deduct in computing its own taxable income; (2) it sets the limit on the amount of income that would be taxable in the beneficiary's hands; (3) it acts to characterize the type income that is taxable to the beneficiaries (income can retain its character in the hands of the beneficiary); and (4) it acts to characterize the type of income included in the trust’s distribution deduction (e.g., capital gains or dividends). The term “DNI” is generally defined to mean taxable income with certain modifications.44 These modifications adjust taxable income by adding back certain deductions such as the distribution deduction, the personal exemption, capital losses (capital gains are subtracted from

36 I.R.C. § 679; see also Zaritsky, Howard M., U.S. Taxation of Foreign Estates, Trusts and Beneficiaries, BNA 911-2nd, A-23. 37 I.R.C. § 679(a)(2)(A). 38 I.R.C. § 679(a)(2)(B). 39 I.R.C. §§ 679(a)(1) and 6048(a)(3)(B)(ii). 40 I.R.C. § 679(a)(4). 41 See Zaritsky, supra note 44 at A-24. 42 I.R.C. § 641(b). 43 I.R.C. § 1(e). 44 I.R.C. § 643(a).

8

8

taxable income), and tax exempt interest. DNI conceptually represents the total income of the trust before any distributions to beneficiaries, etc. A major distinction between the taxation of a foreign trust compared to a U.S. domestic trust is the inclusion of capital gains and losses in DNI.45 For U.S. trusts, capital gains and losses are generally included in DNI only if there is a specific provision to that effect in the governing trust instrument.46 In contrast, capital gains and losses of a foreign trust are always included in DNI, regardless of whether or not they are allocated to income under the governing trust instrument. Accordingly, capital transactions which may be considered on account of capital in the foreign jurisdiction become part of DNI for U.S. tax purposes. This may have a significant impact on the computation of undistributed net income ("UNI").47 Another major distinction is the continued application of the “throwback rules” to distributions of income determined to be accumulated in the trust.48 The combined impact of these two distinctions is that (i) the foreign trustees will accumulate income in the trust each year that they do not pass out the combined income and capital gains and (ii) a U.S. resident beneficiary of foreign nongrantor trust who receives a distribution of what constitutes accumulated income under U.S. tax rules may be faced with onerous taxation in the year of distribution. 1. U.S. Federal Income Taxation of Foreign Nongrantor Trusts In a year when a foreign nongrantor trust makes distributions in excess of the current year DNI calculation, the U.S. beneficiaries will be required to calculate tax due on any part of that distribution which qualifies as an “accumulation distribution.”49 That is, where a trust has made a distribution in excess of the trust’s current year DNI, the trust either makes a distribution of capital or an accumulation distribution. An accumulation distribution is a distribution of prior year's undistributed net income which the trust has accumulated. An accumulation distribution triggers the throwback rule, as discussed below. The throwback rule is designed to cause the beneficiary to pay approximately the same income tax that would have been imposed if the trustees had distributed income to the beneficiaries on an annual basis rather than accumulating income in the trust. That is, the receipt of an accumulation distribution triggers an income tax (including an interest charge) for previous years even though the beneficiary may never have received anything from the trust in those years. The rules for computing the throwback tax are the time-consuming and complex completion of Form 4970 summarized below:

45 I.R.C. § 643(a)(6). 46 I.R.C. § 643(a)(3); Treas. Reg. § 1.643(a)-3. 47 To the extent that all DNI is not distributed to a beneficiary in any U.S. tax year, the undistributed amount is added to the trust's UNI. This has serious implications on future distributions in a number of ways. First, to the extent that the trust has income that would be subject to favorable U.S. tax rates (i.e., the 15% long term capital gain rate on assets held greater than one year and the 15% rate on "qualified dividends"), the benefit of the favorable rates is lost. All UNI is treated as ordinary income when it is distributed to a U.S. beneficiary. 48 I.R.C. § 666 and 667. 49 I.R.C. § 666(a).

9

9

1. Establish preceding tax years to which the accumulated income is attributable:50 a. The undistributed net income or “UNI” for each year must be calculated. b. The average annual accumulation must be determined by dividing the

accumulation distribution by the number of years of accumulation and any year where the trust’s UNI is less than 25% of the average annual accumulation shall be disregarded in a-calculating the number of years. Accumulations in all years and taxes paid in the accumulation years are included in the total accumulation.

2. Determine which of the preceding five tax years the should be used as base years in the

calculation: 51 a. Of the beneficiaries five immediately preceding tax years, ignore the years with

the highest and lowest taxable income. 3. Add to the beneficiaries’ taxable income for these three years the average annual

accumulation:52 4. Calculate the additional tax due in each of these three years and determine the average

increase in tax. 5. Determine the tax on the accumulation distribution by multiplying the average of the

annual additional tax by the number of years of accumulation. The beneficiary can receive a foreign tax credit for taxes the trust has paid on the income in accumulation years53:

6. Calculations of the section 668 interest charge due on this accumulation distribution

partial tax can be done using the tables attached to Form 3520. 2. U.S. Federal Income Tax Reporting: Form 1040NR As a nongrantor trust is taxed as an individual, it also files U.S. income tax returns reporting its U.S.-source FDAP income and effectively connected income.54 However, unlike domestic trusts, which file Form 1041 to report their income, foreign nongrantor trusts, to the extent that they are not fully withheld at source, would file Form 1040NR, and modify the form to conform to the trust accounting rules.55 As section 1441 imposes withholding on payments of U.S.-source FDAP to all foreign payees, the foreign trust must have in place the appropriate withholding forms. The trust would file a

50 I.R.C. § 667(b)(1)(A). 51 I.R.C. § 667(b)(1)(B). 52 I.R.C. § 667(b)(1)(C). 53 I.R.C. § 667(d)((1)(C)(ii) 54 Treas. Reg. § 1.6012-1. 55 See Instructions to Form 1040NR.

10

10

Form W-8 BEN for itself, but to the extent that the trust distributes income to beneficiaries, the trust should provide the U.S. payor with a Form W-8IMY, and attached to the W-8IMY the appropriate Form W-8BEN (for foreign beneficiaries) and Form W-9 (for U.S. beneficiaries).56 In addition, section 1446 also imposes withholding on payments of effectively connected income from partnerships to nonresident alien partners and section 1445 imposes withholding tax on the sale of U.S. real property interest by nonresident aliens. If a foreign nongrantor trust holds a U.S. partnership interest or sells U.S. real property, similar rules to those described above would govern the proper withholding documentation for the trust and the beneficiaries. Nothing in the IRS instructions for Form 1040NR or Form 1041 provide guidance on how to show that a foreign trust in receipt of FDAP or ECI with associated withholding is not the final taxpayer because a distribution deduction has been made to the trust beneficiary. The 2006 Form 1040NR instructions merely indicate that, “[i]f you are filing Form 1040NR for a nonresident alien estate or trust, change the form to reflect the provisions of Subchapter J, Chapter 1, of the Internal Revenue Code.” The most successful method to adapt the Form 1040NR to reflect distribution deductions may be to use offsetting negative entries on the Form 1040NR, accompanied by a description of the ultimate beneficial taxpayer, including their employer identification number (“EIN”) or taxpayer identification number (“TIN”). This method may still require correspondence with IRS to correctly credit the withholding to the ultimate beneficial owner of the income. Therefore, it is wise to ensure the trustees understand that correct U.S. withholding documentation is important. 3. Practical Considerations As witnessed by the summary of the steps necessary to determine taxation on accumulation distributions, it may be in the interest of foreign trustees and U.S. beneficiaries to avoid accumulation distributions. It is important to note that any distribution of income or principal from a foreign trust to a U.S. beneficiary is generally treated as an accumulation distribution includable in the beneficiary's gross income unless adequate records can be provided to the IRS to determine the proper treatment of the distribution. Practitioners may consider recommending that the trustee supply the beneficiary with a "Foreign Nongrantor Trust Beneficiary Statement,” which would indicate the exact composition of the distribution. As such, the beneficiary would not have to rely on the default rule to compute the throwback tax. The statement should indicate whether the distribution is made from income or principal of the trust and thus is required to evaluate whether the distribution exceeds the trust's DNI or accounting income for the year. Further, to avoid accumulation distributions, practitioners may consider utilizing the “65-day election” under section 663(b) to calculate the annual DNI of the foreign trust during the first sixty-five days of the succeeding tax year and ensure that an amount equal to or greater than the DNI (including capital gains) has been passed out to the trust beneficiaries during that period.

56 See Instructions to Forms W-8BEN, W-8IMY, and W-9.

11

11

This technique is especially important for foreign trusts located in jurisdictions where the local tax rates on trust income are lower than the beneficiaries’ tax rate. B. Foreign Grantor Trusts 1. U.S. Federal Income Taxation of Foreign Grantor Trusts Although foreign grantor trust status is often an issue for nonresident aliens who become U.S. residents within five years of settling a foreign trust, one may encounter nonresident aliens whose trusts meet the grantor trust requirements of section 672(f). These types of trusts often result from estate or gift planning done in the taxpayer’s local jurisdiction which may result in the foreign trust holding U.S. partnership interests that generate U.S. ECI. 2. U.S. Federal Income Tax Reporting: Form 1040NR Foreign grantor trusts would file a Form 1040NR indicating on Page 1 that (1) it is a grantor trust taxable under sections 671-679 of the Code and (2) that a statement of income taxable to the grantor is attached. This is similar to the way that Forms 1041 are completed for U.S. domestic grantor trusts. As the regulations under section 1441 generally differentiate amongst whom the ultimate recipient of the income is, it is imperative that the foreign trust have in place the appropriate withholding forms to avoid the 30 percent at-source withholding on U.S.-source FDAP. The foreign grantor trust would provide the U.S. payor with a Form W-8IMY and either a Form W-8BEN (for a foreign grantor) or a Form W-9 (for a U.S. grantor) to take advantage of any reduced withholding rates.

3. Practical Considerations

Filing a Form 1040NR for a foreign grantor trust with ECI or FDAP income that is not properly withheld at source may also require correspondence with the IRS to ensure that the ultimate beneficiary receives proper credit for the withholding at source. If the foreign trust company is not a qualified intermediary able to provide copies of Form 1042-S or other IRS approved withholding forms, it may be helpful to ask the foreign trustee to provide a statement on the Trust Company letterhead to attach to the beneficial owners return, showing the withholding at source attributable to the beneficiaries “Foreign Grantor Trust Owner Statement.” C. Mechanics of Filing: When/Who/How Form 1040NR is due on June 15th of the year following the calendar year when the nonresident alien individual, estate or trust received the taxable income. There is an exception for nonresidents that receive wages as an employee subject to U.S. income tax withholding. The Form 1040NR in this case is due by April 15th of the year following the receipt of the wages. The form must be signed by the trustee or executor, if it is for a trust or estate, or by the individual taxpayer on the return showing his beneficial share of the income.

12

12

D. Obtaining an EIN for a Foreign Trust It appears that the IRS has adopted a policy of denying EINs to foreign trusts where they cannot identify the trust settlor’s social security number (“SSN”) or taxpayer identification number (“TIN”), although the IRS generally will assign an EIN automatically when a foreign trust files a Form 3520-A. Therefore, if an EIN is not needed before filing Form 3520-A, the trustees may prefer to obtain an EIN by filing the Form and having the IRS automatically assign an EIN, even where no EIN may be technically required. However, the Form 3520-A will also require the trust settlor’s EIN and time constraints may require that the trustee’s obtain an EIN before the first Form 3520-A for the foreign trust is filed. For nongrantor trusts, for example, the EIN will be necessary to process the 65-day election, as discussed above in Section III-A-3. The most challenging exercise may be obtaining an EIN for a foreign nongrantor trust when the settlor of the trust is deceased or does not already have a taxpayer identification number. In the difficult cases, it is best to obtain a photo identification card of one of the directors of the Trust Company to send in with the SS-4 application if the Form SS-4 cannot be completed with a TIN for the settlor. IV. Reportable Events of Foreign Trusts In addition to the U.S. federal income tax and reporting discussed above in Section III, the U.S. generally imposes information reporting requirements on foreign trusts and U.S. persons that engage in certain transactions. Reporting of information is generally required on Form 3520, Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts, and/or Form 3520-A, Annual Information Return of Foreign Trust With a U.S. Owner. A. Foreign Grantor Trust: Form 3520-A The trustee of a foreign grantor trust must file an annual Form 3520-A.57 Section 6048(b) provides that a U.S. grantor of a foreign grantor trust is “responsible for ensuring” that the trustee (i) files a return with the IRS for each taxable year of the trust setting forth a full and complete accounting of all trust activities and operations,58 and (ii) furnishes specified income (i.e., Schedule K-1’s) and other information to each U.S. grantor and trust beneficiary who directly or indirectly receives a trust distribution for that year.59 The Form 3520-A discloses the trust assets and the identity of the settlor and the name, social security number and contact details of the trust’s agent in the U.S. who has been authorized to apply sections 7602, 7603, and 7604 with respect to any request by the IRS to examine records or produce testimony concerning the U.S. tax treatment of the amounts distributed.

57 I.R.C. § 6048(b). 58 I.R.C. § 6048(b)(1)(A). 59 I.R.C. § 6048(b)(1)(B).

13

13

In addition to the Form 3520-A filing requirement imposed on the foreign grantor trust, the U.S. grantor is also required to file a Form 3520 to report his contributions to and distributions from the foreign grantor trust during each calendar year that the trust is in existence and the settlor retains U.S. nationality. B. Reporting of Transfers to Foreign Trusts: Form 3520 The Code requires any U.S. person who transfers property to a foreign trust to notify the IRS of the transfer and provide the IRS with the identity of the trustees and beneficiaries.60 Reporting a transfer to a foreign trust is done on Form 3520, which is attached to the U.S. transferor’s Form 1040 for the year.61 1. Reportable Transfers The instructions for Form 3520 provide that the following categories of filers must file a Form 3520: (i) responsible filers for reportable events or related party holders of qualified obligations of foreign trusts; (ii) U.S. persons who are treated as owning any part of a foreign trust; (iii) U.S. persons who received a distribution from a foreign trust or a related foreign trust held an outstanding obligation issued by you which is treated as a qualified obligation. For purposes of Form 3520, the term “responsible parties” include: (i) the grantor in the case of an intervivos trust; (ii) the transferor in the case of a reportable event other than by reason of death; or (iii) the executor of the decedent’s estate. The term “reportable events” include: (i) the creation of a foreign trust; (ii) the transfer of money or property to a foreign trust; and (iii) the death of a U.S. citizen or resident if the decedent owned any portion of a foreign trust or if any portion of a foreign trust was includable in the decedent’s estate.62 Additional guidance on the trust reporting provision is found in Notice 97-34. For purposes of reporting transfers of property to a foreign trust, the section 671 regulations distinguish between “gratuitous” and “nongratuitous” transfers.63 Gratuitous transfers of property to foreign trusts are reportable under section 6048(a). A gratuitous transfer is any transfer other than a transfer for fair market value (to an unrelated foreign trust) or corporate or partnership distributions.64 The determination of whether a transfer is gratuitous is made without regard to whether the

60 I.R.C. § 6048(a). 61 Form 3520 is filed separately from Form 1040, but the Form is due on the date the individual’s U.S. income tax return (Form 1040) is due (including extensions). Form 3520 must be filed timely to avoid penalties for failing to timely report. See Instructions for Form 3520. 62 These reporting rules apply generally to “reportable events” occurring after August 20, 1996, the date of enactment of the 1996 Small Business & Jobs Protection Act, Pub. L. No. 104-188. The 1996 Act created five types of reportable events: (1) the creation of a foreign trust by a U.S. person; (2) the transfer of any money or property by a U.S. person to a foreign trust (including by way of a testamentary transfer); (3) the death of a U.S. person who was the owner of any portion of a foreign trust under the grantor trust rules or in whose estate are included a foreign trust’s assets; (4) the U.S. residency starting date of the grantor of a foreign trust subject to tax under section 679(a)(3) (relating to certain pre-immigration trusts); and (5) outbound trust migrations. Note that section 684 imposes a capital gains tax on transfers of appreciated property to foreign nongrantor trusts. A trust that migrates from domestic to foreign nongrantor trust status is subject to the tax imposed under section 684(a). 63 Treas. Reg. § 1.671-2(e)(2)(i). 64 Treas. Reg. § 1.671-2(e)(2)(ii).

14

14

transfer is a gift for U.S. federal gift tax purposes.65 A gratuitous trust transfer is reported on Part I, Schedule B of Form 3520.66 Transfers to foreign trusts for fair market value include only transfers that are consideration for the fair market value of the property transferred to the foreign trust.67 Any trust interest received by a U.S. transferor will be excluded from the amount considered to be the fair market value received by the transferor.68 Notice 97-34 also provides that an election to recognize gain under section 1057 will not be treated as a transfer for fair market value.69 A sale of property by a U.S. person to a foreign trust must be reported as a transfer to a foreign trust unless the trust pays fair market value for the property.70 A credit sale to a trust will not be treated as a fair market value sale unless the obligation issued by the trust is a “qualified obligation.”71 To be treated as a “qualified obligation,” an obligation must: (i) be reduced to writing by an express written agreement; (ii) have a term not exceeding five years including options to renew and rollovers; (iii) be denominated in U.S. dollars; (iv) have a yield to maturity of between 100% and 130% of the applicable AFR on the date the obligation was issued; (v)have a U.S. person willing to extend the statute of limitations for assessment of any income or transfer tax changes attributable to the transfer to three years beyond the maturity date of the obligation; and (vi) have a U.S. person report on the status of the obligation and the interest and principal payments on Form 3520. 2. Exceptions Form 3520 need not be filed for the following transactions: (i) transfers to foreign trusts described in sections 402(b) relating to nonexempt employee benefit trusts, 404(a)(4) relating to employee stock bonus, pension or profit-sharing trust organized outside the U.S., or 4040A relating to certain foreign deferred compensation plans; (ii) most fair market value transfers to foreign trusts, unless they are transfers in exchange for obligations treated as qualified obligations; (iii) transfers to foreign trusts having a current determination letter from the IRS recognizing their status as tax exempt under section 501(c)(3); (iv) transfers to, ownership of or distributions from a Canadian registered retirement savings plan or a Canadian registered retirement income fund, where the U.S. citizen or resident alien is eligible to file Form 8891, U.S. Information Return for Beneficiaries of Certain Canadian Registered Retirement Plans; (v)distributions from foreign trust taxable as compensation and which have been reported as compensation on the applicable tax return; (vi) transfers from foreign trusts to domestic trusts having a current determination letter from the IRS recognizing their status as tax exempt under section 501(c)(3); (vii) domestic trusts that become foreign trusts to the extent the trust is treated as owned by a foreign person after the application of section 672(f).72

65 Treas. Reg. § 1.671-2(e)(2)(i). 66 See Instructions for Form 3520. 67 Treas. Reg. § 1.684-3(d). 68 Notice 97-34, section III. 69 Id. 70 Section 679 provides for exceptions to the exception for transfers at fair market value to a foreign trust that is a related party (for transfers occurring after February 5, 1995. 71 Notice 97-34, section III C 2. 72 I.R.C. 6048(a)(3)(B)(ii); Notice 97-34.

15

15

C. U.S. Beneficiary Receives a Distribution: Form 3520 Whenever a U.S. beneficiary receives a distribution, either directly or indirectly, from a foreign trust, the Code requires such U.S. beneficiary to file a Form 3520.73 For this purpose, a distribution from a foreign trust includes: (i) any gratuitous transfer of money or property from a foreign trust, whether or not the trust is deemed to be owned by another U.S. person; (ii) the receipt of trust corpus and the receipt of a gift or bequest that is not otherwise subject to income tax; and (iii) a direct or indirect loan of cash or marketable securities to a U.S. grantor or U.S. beneficiary by a foreign trust. Note that a distribution is reportable whether is it actually or constructively received. V. Filing Mechanics: Form 3520 and 3520-A

A. Form 3520

Form 3520 has several uses, which may cause confusion. Generally, Part 1 covers transfers to a foreign trust by a U.S. person, including a U.S. citizen or resident alien, a U.S. domestic partnership, corporation, trust or estate. Part II provides information on the owner of a foreign trust settled by a U.S. person. However, Part III is only used for beneficiaries of nongrantor trusts and should not be completed by U.S. foreign trust settlors. Part IV is not at all related to trust distributions and is only used for U.S. persons that receive large gifts from foreign donors. Note that a trust distribution will not constitute a foreign gift and should be reported on Part III rather than Part IV. Form 3520 is filed separately from the personal income tax return of the U.S. settlor, transferor or recipient and is due on the date of such personal income tax return, including extensions. The 2006 Instructions for Form 3520 indicate that the Form 3520 should be sent to: Internal Revenue Service Center, P.O. Box 409101, Ogden, UT 84409. It is a good practice to attach a copy of the personal tax return extension to the Form 3520 to avoid notices concerning late filing penalties.

1. Potential Penalties There are significant penalties for not filing the form in a timely manner. For failure to file or incomplete filing of Form 3520, section 6048 imposes a penalty of 35% of the gross value of property transferred to the foreign trust or 35% of the value of distributions received from a foreign trust. This penalty is imposed on the trust settlor or beneficiary. Recipients of large foreign gifts are subject to penalties of 5% of the amount of the gift per month for each month that the failure to file continues, up to a maximum of 25%. Further, if the IRS mails a notice of a failure to file, and the person does not comply within a 90 day period, section 6677 imposes an additional penalty of $10,000 for each 30-day period. The penalties cannot, however, exceed the gross reportable amount. The penalties may not be imposed if the failure to file is shown to be due to reasonable cause. 73 I.R.C. 6048(c)

16

16

To avoid penalties under section 6677, it is advisable to a file Form 3520 by attaching it to a settlor’s or transferor’s timely filed income tax return (with regard for any applicable extensions).74 In the case of a testamentary transfer of property, as well as the death of a U.S. citizen or resident who was considered to own any portion of a foreign trust or in whose estate are included a foreign trust’s assets, Notice 97-34 appears to put the burden on the decedent’s executor to file Form 3520 with the decedent’s final income tax return. 2. Schedules to Form 3520 U.S. owners of foreign trusts should complete Parts I and II and it is usually advisable for them to appoint a U.S. agent in the first filing year and to obtain a Foreign Grantor Trust Owner Statement (‘FGTOS’) which the Trustee has engaged a U.S. tax preparer to complete from the Trust financials to attach to the Form 3520. U.S. beneficiaries of foreign trusts should complete Part III and it is usually advisable for them to obtain a Foreign Nongrantor Trust Beneficary Statement (‘FNGTBS’) or a Foreign Grantor Trust Beneficiary Statement (‘FGTBS’)which the Trustee has engaged a U.S. tax preparer to complete from the Trust financials to attach to the Form 3520. Recipients of large foreign gifts should complete Part IV for gifts received with values of more than $100,000 from a nonresident alien individual or estate or more than $12,760 from foreign corporations or foreign partnerships. B. Form 3520-A Form 3520-A is generally filed by the trustee or fiduciary of the foreign grantor trust, unless the trust is a Canadian registered retirement savings plan, a Canadian registered retirement income fund, or another Canadian eligible plan.75 To avoid penalties, a complete Form 3520-A must be filed with the Internal Revenue Service Center, P.O. Box 409101, Ogden, UT 84409, by the 15th day of the 3rd month after the end of the trust’s tax year.76 The trust must also provide copies of the FGTOS and FGTBS to the U.S. owners and U.S. beneficiaries by the 15th day of the 3rd month after the end of the trust’s tax year or the Form 3520-A filing due date including extensions.

1. Potential Penalties Penalties for failure to file or incomplete filing for Form 3520-A can be significant. In particular, the U.S. owner of the foreign trust is subject to a penalty equal to 5% of the gross value of the portion of the foreign trust assets he is treated as owning under U.S. law.77

74 Treas. Reg. § 1.6081-1; see also Notice 97-34, section VIII A; Instructions for Form 3520. 75 See Instructions for Form 3520-A; see also Rev. Proc. 2002-23, 2002-15 I.R.B. 744, section 3, for other eligible Canadian plans. 76 See Instructions for Form 3520-A. 77 I.R.C. § 6677(b)(2).

17

17

Therefore, it is in the interest of the grantor to alert the foreign trustee to the importance of timely and accurate filing of Form 3520-A. In addition, if the IRS notifies the grantor of a failure to file, and Form 3520-A is not filed within 90 days of the date of mailing of the IRS notice, an additional penalty of $10,000 per 30 days (or fraction thereof) is assessed until the Form 3520-A is filed.78 The total monetary penalty for a trustee’s failure to furnish the annual trust return or to provide the specified trust accounting information to any U.S. grantor or beneficiary cannot exceed the gross value of the trust assets considered owned by the U.S. grantor.79 The monetary penalty is in addition to any applicable criminal penalty.80 As with most failure to file timely penalties, the IRS can abate the section 6677(b) penalty if the person responsible for filing Form 3520-A can demonstrate that the failure to file timely was due to reasonable cause, and not willful neglect.81 2. Schedules and Attachments to Form 3520-A The trustee must attach to the Form 3520-A the “Foreign Trust Income Statement,” the FGTOS and the FGTBS. Further, as noted above, the trustee must provide a copy of the FGTOS to each U.S. person considered to own a portion of the trust and a copy of the FGTBS to each U.S. beneficiary who received a trust distribution during the taxable year.82 Note that the “Foreign Trust Income Statement” requires a substantial amount of information to be disclosed to the IRS, including: (i) certain background information (which, for practical purposes, requires that the foreign trust obtain a U.S. employer identification number, since a 5% penalty can be imposed for failure to furnish complete information to the IRS); (ii) a trust balance sheet indicating both beginning and year-end balances and that establishes the trust’s assets, liabilities, and retained earnings; (iii) an annual income statement determined under U.S. tax accounting principles; (iv) the “owner statement,” which includes a statement of net trust income attributable to the owner (with separate statements attached for each U.S. owner); and (v) the “beneficiary statement” (with separate statements attached for each U.S. beneficiary receiving a trust distribution during the taxable year).83 It may also be beneficial for the trustee to retain a U.S. tax preparer to ensure that the “Foreign Trust Income Statement,” the “Foreign Grantor Trust Owner Statement” and the “Foreign Grantor Trust Beneficiary Statement” correctly report, using U.S. generally accepted accounting principles, the income arising in and distributions from the trust. Further, it is advisable for the foreign Trustee to retain a U.S. tax preparer to analyze the trust financials and prepare the “Foreign Grantor Trust Owner Statement” for income arising in the trust taxable to the grantor or “Foreign Grantor Trust Beneficiary Statement” for income arising in the trust distributed to someone other than the settlor.

78 I.R.C. § 6677(a). 79 Id. 80 I.R.C. § 7203. 81 I.R.C. § 6677(d). 82 Notice 97-34. 83 Notice 97-34; see also Instructions for Form 3520-A.

18

18

VI. Returns Relating to Foreign Bank Accounts A. In General Each U.S. person having a financial interest in, or signature or other authority over, any foreign financial accounts with an aggregate value exceeding $10,000 at any time during the calendar year must report such relationship by filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”), in addition to noting that they have such foreign account filing requirement on Schedule B of Form 1040 and including the income from these accounts on the United States person’s U.S. federal income tax return.84 The Form TD F 90-22.1 was recently revised in October 2008. The revised form provides additional definitions and clarifications. It also generally expands the class of individuals and companies required to make annual reports, including certain foreign persons in and doing business in the United States (including a branch of a foreign entity) and certain trusts with U.S. settlors. There are also more detailed rules regarding consolidated reports for corporate parents and subsidiary corporations. The revised form confirms that there is no extension of time for filing the form. B. Who Must File Form TD F 90.22-1 is required to be filed by every U.S. person for each calendar year in which such person has a financial interest in, or signature or other authority over, any foreign financial accounts with an aggregate value exceeding $10,000 at any time during the calendar year.85 Note that the test is based in the alternative – financial interest in or signature authority over the account. Thus, there may be multiple potential filers for a single account, with certain exceptions, noted below, for officers and employees of widely-held or publicly-traded companies. 1. Definitions For purposes of FBAR, the term “United States person” means a citizen or a resident of the United States, or a person in and doing business in the United States.86 A foreign subsidiary of a U.S. person is not required to file this report, although its U.S. parent corporation may be required to do so.87 A branch of a foreign entity that is doing business in the United States is required to file this report even if not separately incorporated under U.S. law.88 The term “financial account” generally includes any bank, securities, securities derivatives or other financial instrument accounts, including any accounts in which the assets are held in a

84 See Instructions for Form TD F 90-22.1 (revised October 2008). 85 See id. 86 See id. 87 See id. 88 See id.

19

19

commingled fund, and the account owner holds an equity interest in the fund.89 The term also means any savings, demand, checking, deposit, time deposit, or any other account (including debit card and prepaid credit card accounts) maintained with a financial institution or other person engaged in the business of a financial institution.90 Individual bonds, notes, or stock certificates held by the filer are a financial account, nor is an unsecured loan to a foreign trade or business that is not a financial institution.91 Any of the financial accounts described above is considered to be a foreign financial account for purposes of FBAR, if it is located outside the United States, Guam, Puerto Rico, and the Virgin Islands.92 However, an account maintained with a military banking facility93 is not considered to be a foreign financial account for purposes of FBAR, even if the military banking facility is located in a foreign country.94 The geographical location of the account, not the nationality of the financial entity institution in which the account is founds determines whether it is in an account in a foreign country.95 That is, the situs of a financial account is determined by the location where the branch is, not the location of the institution’s home office. Thus, for example, an account maintained at a German branch of a U.S. bank is a foreign financial account, but an account maintained at a U.S. branch of a German bank is not a foreign financial account. 2. Ownership of Accounts The instructions to Form TD F 90-22.1 explain that a U.S. person has a financial interest in a bank, securities, or other financial account in a foreign country under either of the following circumstances: 1. A U.S. person is the owner of record or has legal title, whether the account is maintained

for his or her own benefit or for the benefit of others including non-U.S. persons. If an account is maintained in the name of two persons jointly, or if several persons own a partial interest in an account, each of those U.S. persons has a financial interest in that account.96

2. A U.S. person has a financial interest in each bank, securities, or other financial account

in a foreign country for which the owner of record or holder of legal title is:

a. A person acting as an agent, nominee, attorney, or in some other capacity on behalf of the U.S. person;

89 See id. 90 See id. 91 See id. 92 See id. 93 Such facilities are generally known as a “United States military banking facility” or a “United States military finance facility” that are operated by a U.S. financial institution designated by the U.S. government to serve U.S. government installations abroad. 94 See id. 95 See id. 96 See id.

20

20

b. A corporation in which the U.S. person owns directly or indirectly more than 50 percent of the total value of shares of stock or more than 50 percent of the voting power of all shares of stock;

c. A partnership in which the U.S. person owns an interest in more than 50 percent

of the profits (distributive share of income) or more than 50 percent of the capital of the partnership; or

d. A trust in which the U.S. person either has a direct or indirect present beneficial

interest in more than 50 percent of the assets or from which such person receives more than 50 percent of the current income.97

3. A U.S. person has a financial interest in each bank, securities, or other financial account

in a foreign country for which the owner of record or holder of legal title is a trust, or a person acting on behalf of a trust, that was established by such U.S. person and for which a trust protector has been appointed.98

3. Signature Authority

For purposes of Form TD F 90.22-1, a U.S. person is considered to have signature authority over a foreign financial account if such person can control the disposition of money or other property in the account by delivering his or her signature (or his or her signature and that of one or more other persons) to the bank or other person maintaining the account. In addition, a U.S. person has “other authority” subject to FBAR reporting if such person can exercise comparable power over an account by direct communication to the bank or other person maintaining the account, either orally or by some other means. 4. Exceptions Notwithstanding the general rules, Form TD F 90.22-1 is not required to be filed under the following circumstances: 1. An officer or employee of a bank which is currently examined by Federal bank

supervisory agencies for soundness and safety need not report that he or she has signature or other authority over a foreign bank, securities or other financial account maintained by the bank, if the officer or employee has NO personal financial interest in the account.99

2. An officer or employee of a domestic corporation whose equity securities are listed upon

U.S. national securities exchanges or which has assets exceeding $10 million and 500 or more shareholders of record need not file such a report concerning the other signature authority over a foreign financial account of the corporation, if he has NO personal financial interest in the account and he has been advised in writing by the chief financial

97 See id. 98 See id. 99 See id.

21

21

officer of the corporation that the corporation has filed a current report, which includes that account.100 There are additional exceptions for domestic and foreign subsidiaries.

3. As noted above, a U.S. person is not required to report any account maintained with a

branch, agency, of other office of a foreign bank or other institution that is located in the United States, Guam, Puerto Rico, and the Virgin Islands.101

C. Mechanic of Filing

Reporting on Form TD F 90-22.1 is required for each calendar year that a U.S. person maintains such interest or authority over foreign financial accounts.102 The Form TD F 90-22.1 must be filed on or before June 30 each calendar year. An extension for filing one’s U.S. income tax return does not extend the deadline for making a TD F 90-22.1. That is, there is no extension of time available for the late filing.103

D. Practical Considerations Each U.S. person subject to this reporting requirement must also maintain records showing, (1) the name in which each such account is maintained, (2) the number or other designation of such account, (3) the name and address of the foreign bank or other person with whom such account is maintained, and (4) the type of such account, and the maximum value of each such account during the reporting period.104 These records must be retained for a period of 5 years and must be kept at all times available for inspection as authorized by law.105 VII. Potential IRS Penalties The failure to file the required tax returns and information returns may result in civil and criminal penalties, as discussed below. A. Form 1040NR, Form 3520 and Form 3520-A 1. Failure to file tax returns or to pay tax (section 6651): In addition to the tax due, if a

taxpayer fails to file a return, there may be imposed a penalty of 5% per month of the amount of tax required to be shown on a tax return. There is an exception if the failure was due to reasonable cause, not willful neglect.

2. Substantial underpayment of tax (section 6662): In addition to the tax due in (1) above,

taxpayer could be subject to a penalty of 20% of the amount of the underpayment. This 100 See id. 101 See id. 102 31 CFR § 103.24. Such persons will be required to provide detailed information concerning each account when so requested by the Secretary or his delegate. Id. 103 See id. 104 31 CFR § 103.32. 105 Id.

22

22

penalty is imposed on both (a) negligence or disregard of rules or regulations, and (b) any substantial underpayment of tax (understatement of greater than 10% or $5,000). Note that this penalty is imposed in addition to the amount of tax due.

EXCEPTION 1: There is a reasonable cause exception whereby the substantial underpayment of tax penalty may be alleviated if there was a reasonable cause for the underpayment (i.e., there is "substantial authority" for or adequate disclosure of the position and the position is not a tax shelter) and the taxpayer acted in good faith with respect to the underpayment.106

EXCEPTION 2: If the taxpayer is subject to the (worse) fraud penalty, then the substantial underpayment penalty does not apply. Fraud penalty (section 6663): If the underpayment is based on fraud, in addition to the tax due, taxpayer could be subject to a penalty of 75% of the portion of the underpayment attributable to fraud. However, the Code provides an exception for reasonable cause.

3. Failure to file returns (section 6046): In addition to (1) and (2) above, there may

be imposed a penalty of $10,000 for failure to file a return or for filing a return which does not show the information required under section 6046. The amount of the penalty can go up to $50,000 if taxpayer fails to correct the failure within 90 days after receiving notice from the IRS. However, there is also a reasonable cause exception.

4. Information with respect to certain foreign trusts (section 6048): Section 6048(a)

imposes a penalty equal to 35% of the gross value of the property transferred to a trust on the person responsible for filing Form 3520. Section 6677(b) imposes an additional penalty of $10,000 per 30-day period for failing to comply within 90 days of notification by the IRS that Form 35020 has not been filed.107 The total penalty for failure to report a trust transfer, however, cannot exceed the amount of the property transferred.108 The monetary penalty is in addition to any applicable criminal penalty.109 If the person responsible for reporting can demonstrate that the failure to timely file was due to reasonable cause, and not willful neglect, the Secretary can abate the penalty under section 6677(a) or 6677(b).110

To avoid penalties under section 6677, preparer must file Form 3520 by attaching it to a settlor’s or transferor’s timely filed income tax return (with regard for any applicable extensions).111 In the case of a testamentary transfer of property, as well as the death of a U.S. citizen or resident who was considered to own any portion of a foreign trust or in whose estate are included a foreign trust’s assets, the burden appears to be on the decedent’s executor to file Form 3520 with the decedent’s final income tax return.112

106 I.R.C. § 6662(d)(2) 107 I.R.C. § 6677(a). 108 Id. 109 I.R.C. § 7203. 110 I.R.C. § 6677(d). 111 Treas. Reg. § 16.3-1(e); Treas. Reg. § 1.6081-1; Notice 97-34, § VIII A; Instructions for Form 3520. 112 Notice 97-34.

23

23

5. Failure to file correct information return (section 6721): In addition to (1), (2) (3) and (4) above, there may be imposed a penalty of $50 for each return (not to exceed $250,000 per year) which fails to include all of the required information or includes incorrect information. There is an exception to this penalty if the failure is corrected within 30 days after the required filing date. However, if the failure is based on intentional disregard, then no exception applies (including the $250,000 cap) and the amount of the penalty is the greater of $100 or 10% of the aggregate amount of the items required to be reported. There is no reasonable cause exception.

6. Failure to comply with other information reporting requirements (section 6723): In

addition to (1), (2), (3) (4)and (5) above, there may be imposed a penalty of $50 for each failure to comply with a required information reporting (not to exceed $100,000 per year). There is no exception, including a reasonable cause exception.

7. Criminal penalties: In addition to the above, criminal penalties under sections 7203

(monetary and penal penalties for willful failure to file supply information), 7206 (monetary and penal penalties for fraud and false statements) and 7207 (monetary and penal penalties for fraudulent statements) may apply.

B. Form TD F 90.22-1 A willful violation of the Form TD F 90.22-1 requirements (i.e., failure to file Form TD F 90.22-1, failure to supply information on the report, or filing a false or fraudulent report) could result in the imposition of civil and/or criminal penalties.113 For example, if any U.S. person willfully violates the Form TD F 90.22-1 filing requirement, such person may be liable to the U.S. government for a civil penalty of not more than $25,000114, in addition to the following criminal penalties: 1. If a U.S. person willfully violates the reporting requirement, such person may be subject

to a fine of not more than $250,000, or imprisoned for not more than 5 years, or both;115 and

2. If a U.S. person willfully violates the reporting requirement while violating another law

of the United States, or as part of a pattern of any illegal activity involving more than

113 The instructions for Form TD F 90.22-1 specifically provide that criminal penalties for failing to comply with FBAR are provided in 31 U.S.C. § 5322(a) and (b), and 18 U.S.C. § 1001. In addition, civil penalties for failure to comply with the BSA or regulations issued under the authority of the BSA are generally provided in 31 U.S.C. § 5321. 114 31 U.S.C. § 5321. Section 5321 generally provides that if a U.S. person willfully violates a provision of the BSA or a regulation issued under the BSA, such person may be liable for a civil penalty of not more than the greater of the amount (not to exceed $100,000) involved in the transaction (if any) or $25,000. With respect to reporting on Form TD F 90.22-1, a U.S. person is not reporting a transaction but, rather, reporting his interest or signature authority over a foreign financial account. Thus, the maximum amount of potential civil penalty is $25,000. 115 31 U.S.C. § 5322(a).

24

24

$100,000 in a 12-month period, such U.S. person may be subject to a monetary fine of not more than $500,000, or imprisoned for not more than 10 years, or both.116

In addition, if a U.S. person, with respect to Form TD F 90.22-1, (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact, (2) makes any materially false, fictitious, or fraudulent statement or representation, or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry, such person may be fined, or imprisoned for not more than 5 years, or both.117

116 31 U.S.C. § 5322(b). 117 18 U.S.C. § 1001.