The year 2010 saw the swift passage of the Hiring Incentives to Restore Employment Act 1 (the HIRE Act) to jump-start employment and the U.S. economy with revenue-raising provisions streamlined as new “offshore anti-abuse” compliance statute provisions. This article analyzes the foreign trust provisions and offers some practical guidance for practitioners to consider in their development of best practice procedures.
Foreign transactions continue to proliferate, especially with an increasingly mobile society and the growth in global family wealth. The former safe haven of foreign secrecy laws is slowly being eroded as tax treaty countries seek more transparency and exchange of tax information. Starting in 2001, more transparency resulted from nearly unilateral government initiatives, such as the U.S. qualified intermediary (QI) system. 2 The HIRE Act makes this trend more effective for Treasury and raises the bar for taxpayers and their advisers with stiffer penalties and information disclosure and reporting requirements. The HIRE Act was signed into law on March 18, one day after Congress passed it. It includes new and amended foreign trust statutory provisions.
Foreign Account Tax Reporting
Increased Disclosure of Beneficial Owners
The HIRE Act created a new Chapter 4, Taxes to Enforce Reporting on Certain Foreign Accounts, in Subtitle A of the Code, Secs. 1471–1474 of which contain new reporting provisions. 3 Essentially, foreign financial institutions with U.S. account holders will now have the choice of entering into agreements with the IRS (similar to QIs) to provide information about their account holders or becoming subject to a 30% U.S. withholding tax on U.S. source payments to foreign financial institutions, foreign trusts, and foreign corporations. Under Sec. 1441, qualified intermediary program participants must comply with the new requirements as well. Under new Sec. 1471, foreign financial institutions will be subject to the 30% withholding tax on income from U.S. financial assets (withholdable payment made to foreign financial institutions) unless they agree to disclose the (1) identity (name, address, TIN) of any U.S. person, including the U.S. owner of any account holder that is a U.S.-owned foreign entity with an account at the foreign institution (or affiliate), (2) account number, (3) account balance or value, and (4) gross receipts and gross withdrawals or payments from the account. 4 New Sec. 1471 further authorizes Treasury to establish verification and due diligence procedures with each foreign institution.
Alternatively, the foreign financial institution can elect to report as if it were a U.S. person under Sec. 6041 (information at source), Sec. 6042 (returns regarding payments of dividends and corporate earnings and profits), Sec. 6045 (returns of brokers), and Sec. 6049 (returns regarding payments of interest). This election would require the foreign financial institution to report on each account holder that is a specified U.S. person or U.S.-owned foreign entity as if the holder were a natural person and citizen of the United States. 5 A foreign financial institution that meets the reporting requirements of Sec. 1471(b) can elect (under Sec. 1471(b)(3)) to have withholding apply to any withholdable payments made to the institution to the extent that payments are allocable to accounts of recalcitrant account holders. Recalcitrant account holders are those who do not provide the information required or a waiver of a foreign secrecy law needed for the institution to meet the Sec. 1471 reporting requirements. The taxes withheld would be allocated to the recalcitrant account holder’s account balance(s).
The act defines a foreign financial institution as a foreign entity that (1) accepts deposits in the ordinary course of a banking or similar business, (2) is engaged (as a substantial portion of its business) in holding financial assets for the account of others, or (3) is engaged (or holding itself out as being engaged) primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, or any interest in such securities, partnership interests, or commodities. 6 A payment subject to withholding is defined as any U.S.-source payment of interest (including any original issue discount), dividends, rents, salaries, wages, premiums, annuities, compensation, remuneration, emoluments, and other fixed or determinable annual or periodical gains, profits, and income. 7
Nonfinancial institutions, or foreign entities that are not financial institutions, will be exempt from the 30% withholding tax if the payee or beneficial owner of the payment provides the withholding agent with either (1) proper certification that the beneficial owner does not have a substantial U.S. owner or (2) the name, address, and TIN of each U.S. substantial owner. 8 The withholding agent must not know (or have reason to know) that the certification or information provided regarding the substantial U.S. owner(s) is incorrect, and the agent reports the name, address, and TIN of each substantial owner to the IRS. 9 These new Chapter 4 provisions are generally effective for payments after December 31, 2012.
Reporting on Owners of Foreign Trusts
The HIRE Act defines “substantial owner” of a foreign trust as a grantor or holder, directly or indirectly, of more than 10% of the beneficial interest of such trust. 10 The statute authorizes Treasury to issue new regulations to coordinate the tax withholding with other withholding provisions (i.e., Sec. 1441). 11
Practice tip: Practitioners should, in the interest of their foreign trustee clients, monitor tax withholding (such as on Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons) by advising that Form W-8BEN, Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding, be completed satisfactorily with each payer to enable the trust entity to enjoy a reduced U.S. tax treaty withholding rate, if applicable, instead of the higher 30% rate.
Foreign Financial Asset Reporting
New Sec. 6038D imposes new reporting requirements on individuals who hold more than $50,000 in (1) any financial account maintained by a foreign financial institution or (2) any foreign stock, interest in a foreign entity (including a foreign trust), or financial instrument with a foreign counterpart that is not held in a custodial account of a financial institution. The penalty for failure to disclose such information, if applicable, would be $10,000 with increases up to a total maximum penalty of $50,000 if failure continues after notification. 12
The new statutory language that imposes the foreign asset self-reporting requirements does not include the language “during any part of the tax year” in reference to the “aggregate value of the account(s) exceed $50,000” threshold. Presumably, this means that if at any time the threshold amount is exceeded during the year, the requirements apply. IRS Commissioner Douglas Shulman, in prepared remarks, said, “This [new Sec. 6038D reporting requirement] is in addition to existing law that requires the filing of a so-called FBAR form.” 13
Practice tip: The commissioner said taxpayers will report foreign assets worth $50,000 or more on their tax returns. This may require the creation of a new tax form for the 2010 tax year for such reporting (with possible cross-referencing to Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR)).
With respect to penalties for tax underpayments attributable to undisclosed foreign financial assets, the HIRE Act modifies Sec. 6662 by imposing a penalty of 40% of the amount of any underpayment attributable to an undisclosed foreign financial asset, which is defined as any asset for which information must be provided under Secs. 6038 (information reporting on certain foreign corporations or partnerships), 6038B (certain transfers to foreign persons, including trustees), 6038D (newly enacted, for information on foreign financial assets), 6046A (returns as to interests in foreign partnerships), or 6048 (information on certain foreign trusts). 14
Expanded Statute of Limitation Period
The HIRE Act modifies the general three-year statute of limitation prescribed under Sec. 6501(e) to extend it to a six-year statute of limitation if the taxpayer’s gross income omits an amount in excess of 25% of the gross income that is otherwise properly includible, or for omissions of more than $5,000 of income that are attributable to one or more reportable foreign assets (including any applicable foreign trust reporting). 15
For returns filed after March 18, 2010, and for any other return for which the Sec. 6501 assessment period has not yet expired as of that date, the HIRE Act provides that the limitation period for assessment is suspended if a taxpayer fails to provide timely information returns as required with regard to: (1) a passive foreign investment company (PFIC) under Sec. 1295(b) (election by a PFIC shareholder to have the PFIC treated as a qualified electing fund) or under Sec. 1298(f), as amended by the act (requiring a U.S. person that is a PFIC shareholder to file an annual report), or (2) the new self-reporting of foreign financial assets information under Sec. 6038D. 16 The HIRE Act modifies the Sec. 6501(c)(8) assessment limitation period suspension rule generally to provide that for any information required to be reported under these provisions, the statute of limitation for any “tax return, event, or period” to which that information relates will not expire before the date that is three years after the date the required information is furnished to the IRS. However, Section 218(a) of the so-called Education Jobs Act 17 added Sec. 6501(c)(8)(B), which states that in cases where the failure to furnish the required information is due to reasonable cause and not willful neglect, the suspension of the limitation period applies only to the items related to the failure to provide the required information.
Practice tip: The HIRE Act omits a requirement included in an earlier version of FATCA 18 that would have required advisers to disclose certain information to Treasury. Specifically, the language in the earlier version provided that tax advisers who derive gross income in excess of $100,000 for providing service in acquiring or forming a foreign entity (including foreign trusts) would be required to file an information return with Treasury, with penalties for failure to comply with those procedures. Practitioners who were previously concerned with this potential reporting of their services to Treasury should be pleased with the final language as enacted.
Practice tip: The possible repercussions of the expanded statute of limitation provisions provide additional exposure for practitioners. Thus, it is in their best interest to develop “best practice” procedures to determine which clients have not filed the proper information returns in the past and ensure that future returns are timely and accurately filed. Such procedures could include informing all clients of the new Sec. 6038D requirements and reviewing with them the new form that will be created for such reporting for the 2010 tax year.
Treatment of Foreign Trusts with U.S. Beneficiaries
Under prior law, a U.S. person was treated as the owner of the property transferred to a foreign trust if the trust had a U.S. beneficiary. Under the HIRE Act, a foreign trust is treated as having a U.S. beneficiary if any current, future, or contingent beneficiary of the trust is a U.S. person. The act stipulates that a foreign trust would be treated as having a U.S. beneficiary if (1) the trustee has discretion to determine the trust’s beneficiaries, unless the terms of the trust specifically identify the class of beneficiaries and none of them are U.S. persons, or (2) any written, oral, or other agreement could result in a beneficiary of the trust being or becoming a U.S. person (such an agreement or understanding would be treated as terms of the trust instrument). 19 Any U.S. person who directly or indirectly transfers property to a foreign trust will be presumed to have a U.S. beneficiary unless that person can show that certain reporting requirements have been satisfied. 20 See the specific reporting requirements discussed below under “Presumption That a Foreign Trust Has a U.S. Beneficiary.”
Observation: Based on statutory history and interpretations by regulations and other guidance, an inference that income will be treated as accumulated for a contingent beneficiary interest appears to be far-reaching and somewhat vague. At a time when momentum is gaining for tax reform simplification, such language deserves reconsideration and modification. The following analysis of current statutory provisions and IRS interpretations will demonstrate the extent and boundaries of reporting contingent trust beneficiary interests under U.S. tax laws.
Taxpayers and their professional advisers have been accustomed to the IRS guidance and interpretation of Sec. 679(c) in Regs. Sec. 1.679-2, as finalized by T.D. 8955. For purposes of the determination of whether a foreign trust will be treated as having a U.S. beneficiary under Sec. 679, the regulation provides that income or corpus may be paid or accumulated to or for the benefit of a U.S. person during a tax year of the U.S. transferor if during that year, directly or indirectly:
- Income may be distributed to, or accumulated for the benefit of, a U.S. person; or
- Corpus may be distributed to, or held for the future benefit of, a U.S. person.
This determination is made without regard to whether income or corpus is actually distributed to a U.S. person during the year and without regard to whether a U.S. person’s interest in the trust income or corpus is contingent on a future event. 21
As such, these regulations employ a broad approach in determining whether a foreign trust is treated as having a U.S. beneficiary. They further recognize that it may be possible for a U.S. person to obtain a future benefit from a foreign trust under certain unexpected circumstances and that the possibility of these circumstances does not necessarily cause the foreign trust to be treated as having a U.S. beneficiary. The regulations provide a narrow exception to the general determination of whether a U.S. person can obtain such a benefit:
A person who is not named as a beneficiary and is not a member of a class of beneficiaries as defined under the trust instrument is not taken into consideration if the U.S. transferor demonstrates to the IRS’s satisfaction that the person’s “contingent interest” in the trust is so remote as to be negligible. 22
The regulations further provide that for purposes of the exception for certain unexpected beneficiaries, a class of beneficiaries generally does not include heirs who will benefit from the trust under the laws of intestate succession in the event that the named beneficiaries (or members of the named class) have all died (whether or not stated as a named class in the instrument). 23
Also significant are other Code section definitions and treatment of a “constructive ownership interest.” Sec. 318(a)(3)(B)(i) stipulates that a “contingent interest of a beneficiary in a trust shall be considered remote if, under the maximum exercise of discretion by the trustee in favor of [a particular] beneficiary, the value of such interest, computed actuarially, is 5 percent or less of the value of the trust property.” The corresponding regulation, Regs. Sec. 1.318-2(c), Example (2), illustrates and demonstrates the distinction with a vested remainder interest. The act’s language amending Sec. 679(c) will necessitate additional time and effort by the trustee and professional advisers, unless subsequent regulations stipulate a de minimis value in some possible cases that could be disregarded with statutory authority (i.e., the value of which is so small as to make accounting for it unreasonable or administratively impractical).
Further, the legal effects of local law distinctions bearing on the validity of contingent beneficiary interests’ later becoming vested remainder trust interests should be considered in the proposed regulations for amended Sec. 679(c). Such local law authority would constitute the jurisdictional authority for the trust and its class of beneficiary designations for court supervision purposes. It is noteworthy that the amended statute kept intact Sec. 679(c)(1), which includes an exception, as provided in newly designated paragraph (3) of Sec. 679(c), stipulating that a “U.S. beneficiary is disregarded if such beneficiary first became a U.S. person more than five years after the date of such transfer [to the foreign trust].”
Presumption That a Foreign Trust Has a U.S. Beneficiary
The HIRE Act further amended Sec. 679 by redesignating subsection (d) as subsection (e) and providing in new subsection (d) that if a U.S. person directly or indirectly transfers property to a foreign trust, that trust may be treated as having a U.S. beneficiary. 24 However, this new subsection will not apply if that person can demonstrate to the satisfaction of Treasury that under the terms of the trust instrument, no part of the trust income or corpus may be paid or accumulated during the year to or for the benefit of a U.S. person or, if the trust is terminated during the year, no part of the trust assets could be paid to or for the benefit of a U.S. person, and that person provides additional information, as requested by Treasury, regarding the transfer to the trust. 25
Uncompensated Use of Trust Property
The HIRE Act provides that treatment as a taxable distribution applies in the year that the trustee of a foreign trust permits the use of any trust property directly or indirectly by the U.S. grantor, U.S. beneficiary, or any U.S. person related to a U.S. grantor or U.S. beneficiary. If such an event occurs, the fair market value of the use of the property is treated as a taxable distribution to the U.S. grantor or U.S. beneficiary. 26 A later return of the property (to the trustee) treated as a distribution is disregarded for tax purposes. 27 This statutory provision does not apply to the extent that the trust (trustee) is paid the fair market value of the use of the property within a reasonable period of time after the (personal) use. 28
Because any uncompensated use of trust property is treated as a taxable distribution from a foreign trust, the user (i.e., the U.S. beneficiary or U.S. grantor) would be required to report the use of the property as a distribution from a foreign trust under Sec. 6048(b) by filing Form 3520, Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts. Failure to do so in a timely and accurate filing would expose such person(s) to civil penalties up to 35% of the distributed amount(s).
Observation: Neither the statute nor the committee reports say what period of time is considered a reasonable period of time after the use. Guidance on this issue will likely come when the IRS issues regulations.
A loan of cash or marketable securities (or the use of any other trust property) by a foreign trust directly or indirectly to or by any U.S. person will cause the trust to be treated as having a U.S. beneficiary under Sec. 679. 29 As a result, the trust will be treated as a grantor trust for tax purposes.
Practice tip: The issue of personal use of trust property by a grantor, trustee, or beneficiary has legal and ethical overtones, as well as tax issues to analyze. A primary fiduciary duty is to administer the trust solely in the interest of all the trust beneficiaries, including not engaging in any act that puts personal interests in conflict with those of any of the trust beneficiaries. A common type of such conflict of interest is “self-dealing” by the trustee, which includes any means by which the trustee uses or allows others to use trust property for personal use or profit.
The newly enacted Sec. 643(i)(1) expands the professional exposure of practitioners related to the proper disclosure and reporting on these issues. Best practice procedures might include seeking advice from counsel if practitioners suspect such activities in a trust engagement. Another procedure might include advising the trustee to keep daily logs on the use of trust property (real and personal property) by third parties, beneficiaries, or the trustee. Use by any beneficiary or trustee should be documented by recordkeeping procedures to substantiate the appropriate reporting, as well as any payment(s) received by the foreign trust for such use, if personal in nature. Practitioners might also advise trustees that the daily logs should indicate performance of minor maintenance procedures on trust property by third parties, beneficiaries, and trustees. Advice to the trustee could include obtaining written opinions from qualified appraisers as to whether the value of the trust property is being maintained or enhanced by such maintenance. This will help the trustee defend against possible audit issues involving measurement of any economic benefit to the property without payment of compensation.
With regard to the trust assets, beneficiaries have been known to assist the trustee in maintaining and safeguarding the condition of certain trust assets, without compensation from the trustee. For example, beneficiaries will sometimes do lawn and landscape maintenance on real property or wash vehicles owned by the trust without requesting monetary compensation from the trustee. In many such cases, the beneficiary feels that he or she is preserving the value of the particular asset, which may be property rented to third parties by the trustee and later sold to a third party or distributed to the beneficiary (as a property distribution). In such cases the beneficiary is not using the applicable asset for personal use but is instead preserving its value for future disposition by the trustee.
Some practitioners might question Treasury’s ability to audit personal use of trust property, especially when it may be located overseas. However, documentation of use, whether personal, maintenance, repair, or rental to a third party at fair rent, puts the trustee in a more defensible position to answer a challenge if an IRS auditor raises such an issue (i.e., to prove that the issue of a taxable distribution should not be made).
When Treasury issues the proposed regulation on amended Sec. 643(i), it would be helpful for it to include a provision for de minimis amounts for which values are so small as to make accounting for them unreasonable or administratively impractical. It should also consider a provision for an inflation adjustment to increase the de minimis amount by incremental amounts in the future. Such modifications would prevent de minimis amounts from being treated as contributions to or distributions from a foreign trust.
Minimum Penalty on Reporting Requirement for U.S. Owners of Foreign Trusts
The 2010 HIRE Act imposes a minimum penalty of $10,000 on any failure to file an information return (as required under Sec. 6048) for certain transactions involving foreign trusts (e.g., the creation of a foreign trust, the transfer of money or property to a foreign trust, or the death of a U.S. owner of a foreign trust). 30 Thus, the penalty is the greater of $10,000 or 35% of the gross value of the reportable amount of such failure to report.
In the case of the requirement for a U.S. person treated as a grantor of a foreign trust to report the trust activities, a failure to properly report results in the penalties described above, as well as the initial civil penalty of 5% of the gross reportable amount, as stipulated in Sec. 6048(b). Notwithstanding this minimum penalty, the gross amount of penalties that can be assessed cannot exceed the amount required to be disclosed on such return(s). 31
Practice tip: The penalties are payable on notice and demand and can be assessed and collected in the same manner as tax assessments. However, the deficiency procedures that apply to income, estate, gift, and certain excise taxes do not apply for the assessment or collection of these penalties. 32 Because these potential penalties impose such a great exposure for tax practitioners, the importance of using best practice procedures, including checklists and client interview questionnaires, cannot be overlooked. Unfortunately, Notice 97-34 33 continues to be the primary guidance from Treasury on the enforcement of Sec. 6677.
Practice tip: The IRS issued interim guidance on December 7, 2009, for making a “determination” of penalties assessed under Sec. 6677. 34 The memorandum introduced “four redesigned letters” to be used by IRS officials in the determination process procedures. The form letters incorporate each taxpayer’s facts and data and summarize the reasons and amounts of specific penalty assessments based upon the individual taxpayer’s facts and circumstances. However, because of the lack of formal IRS regulations, guidance has not been provided yet as to how this evaluation process will be conducted and when and how “reasonable cause” issues can affect or assist in the determination process.
Tips on Guidelines and Procedures
The FATCA provisions of the HIRE Act have hastened the U.S. development of tax compliance on a global scale. There has been rapid progress in recent years toward establishing common international standards for tax transparency. The Group of Twenty has provided strong political impetus, although the Organisation of Economic Co-operation and Development (OECD) has done most of the practical work. The result has been a rapidly growing framework of agreements and treaties between countries to exchange information and cooperate on tax administration. Tax administrators from over 40 countries reaffirmed their commitment to offshore tax compliance and endorsed the use of joint audits at the sixth meeting of the OECD’s Forum on Tax Administration (FTA), held on September 15 and 16, 2010, in Istanbul. The FTA, chaired by IRS commissioner Shulman, issued a communiqué that outlined its strategies to improve compliance and taxpayer services. It indicated that major improvements in compliance could be obtained through “joint audits,” where two or more countries would join to form a single audit team to conduct a taxpayer tax examination. 35
All tax practitioners are exposed to the severity and scope of the new HIRE Act provisions as analyzed above, regardless of whether they provide international tax services. As long as the U.S. tax regime continues to tax U.S. taxpayers on worldwide income, practitioners will face these “foreign account or foreign trust” reporting issues with their clients. Professional relationships between clients and practitioners face increasing stress and scrutiny. What is not said or not disclosed will continue to expose practitioners to multiple perils for many years after the events. Maintaining adequate continuing education for all owners and staff is paramount. Maintaining quality control policies and procedures that ensure tax compliance is imperative. It now becomes more important for each practitioner and firm to decide how to handle these delicate issues with each and every client and to adequately document the clients’ responses.
1 Hiring Incentives to Restore Employment Act, P.L. 111-147.
2 This system forces non-U.S. banks to become QIs to assist the IRS with U.S. tax withholding responsibility under Sec. 1441.
3 New Secs. 1471–1474 are also referred to as FATCA because they were originally in the Foreign Account Tax Compliance Act of 2009.
14 Sec. 6662(j), as added, effective for tax years beginning after March 18, 2010.
15 Sec. 6501(e)(1)(A), as amended by the HIRE Act.
16 Sec. 6501(c)(8), as amended by HIRE Act §513(b).
17 P.L. 111-226, enacted August 10, 2010, without a title, but commonly referred to as the Education Jobs Act.
18 Foreign Account Tax Compliance Act of 2009, H.R. 3933.
19 Sec. 679(c), as amended by the HIRE Act.
20 Sec. 679(c) will codify current Treasury regulations under former Sec. 679(c); Regs. Sec. 1.679-2, as finalized by T.D. 8955; Sec. 679(d).
21 Regs. Sec. 1.679-2(a)(2)(i).
22 Regs. Sec. 1.679-2(a)(2)(ii).
24 Sec. 679(d) (except for a trust established for deferred compensation or a charitable trust—i.e., Sec. 6048(a)(3)(B)(ii)).
25 Id.; effective for transfers of property after March 18, 2010.
26 Sec. 643(i)(1), as amended by HIRE Act §533(a).
27 Sec. 643(i)(3), as amended by HIRE Act §533(d).
28 Sec. 643(i)(2)(E), as amended by HIRE Act §533(b).
29 Sec. 679(c)(6), as amended by HIRE Act §533(c).
30 Secs. 6677(a) and (b), as amended by HIRE Act §535(a); effective for years beginning after March 18, 2010.
31 Sec. 6677(b), as amended by HIRE Act §535(a); effective for years beginning after March 18, 2010.
32 Sec. 6671(a); Sec. 6677(e), as added by the HIRE Act.
33 Notice 97-34, 1997-1 C.B. 422.
34 Memorandum SBSE-20-0709-016 (12/7/09).
35 Sixth Meeting of the OECD Forum on Tax Administration, Istanbul Communiqué (September 16, 2010).
Lawrence McNamara is a sole practitioner in Bend, OR. He is a member of the AICPA’s Trust, Estate and Gift Tax Technical Resource Panel, its Foreign Trust Task Force, and its Trust Accounting Income Task Force–Technical Issues Working Group. For more information about this article, contact Mr. McNamara at firstname.lastname@example.org.