FOREIGN TAX REPORTING/OFFSHORE VOLUNTARY DISCLOSURE INITIATIVE
The Internal Revenue Service has special voluntary disclosure initiative designed to bring offshore money back into the U.S. tax system and help people with undisclosed income from hidden offshore accounts get current with their taxes. Taxpayers must disclose their foreign bank account, pay a penalty equal to 27.5% of the high balance of the bank account since 2003, 12.5% of the account balance if the account did not surpass $75,000, pay the tax, a 20% penalty on the tax and accrued interest in order to avoid higher penalties, including a fraud penalty or possible criminal prosecution.
Under the Foreign Account Tax Compliance Act (“FATCA”), it requires certain U.S. taxpayers holding foreign financial assets with an aggregate value exceeding $50,000 to report certain information about those assets on a new form (Form 8938) that must be attached to the taxpayer’s annual tax return. Reporting applies for assets held in taxable years beginning after March 18, 2010. For most taxpayers this will be the 2011 tax return they file during the 2012 tax filing season. Failure to report foreign financial assets on Form 8938 will result in a penalty of $10,000 (and a penalty up to $50,000 for continued failure after IRS notification). Further, underpayments of tax attributable to non-disclosed foreign financial assets will be subject to an additional substantial understatement penalty of 40 percent.
FATCA will also require foreign financial institutions (“FFIs”) to report directly to the IRS certain information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. To properly comply with these new reporting requirements, an FFI will have to enter into a special agreement with the IRS by June 30, 2013. Under this agreement a “participating” FFI will be obligated to:
(1) undertake certain identification and due diligence procedures with respect to its accountholders;
(2) report annually to the IRS on its accountholders who are U.S. persons or foreign entities with substantial U.S. ownership; and
(3) withhold and pay over to the IRS 30-percent of any payments of U.S. source income, as well as gross proceeds from the sale of securities that generate U.S. source income, made to (a) non-participating FFIs, (b) individual accountholders failing to provide sufficient information to determine whether or not they are a U.S. person, or (3) foreign entity accountholders failing to provide sufficient information about the identity of its substantial U.S. owners.
U.S. persons (and executors of estates of U.S. decedents) file Form 3520 to report:
- Certain transactions with foreign trusts,
- Ownership of foreign trusts under the rules of sections Internal Revenue Code 671 through 679, and
Receipt of certain large gifts or bequests from certain foreign persons.
- A separate Form 3520 must be filed for transactions with each foreign trust.
Form 3520-A is the annual information return of a foreign trust with at least one U.S. owner. The form provides information about the foreign trust, its U.S. beneficiaries, and any U.S. person who is treated as an owner of any portion of the foreign trust.
Form 5471 is used by certain U.S. citizens and residents who are officers, directors, or shareholders in certain foreign corporations. The form and schedules are used to satisfy the reporting requirements of sections 6038 and 6046, and the related regulations.