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Private Client & Offshore Services
US individuals investing in foreign companies should consider a Section 962 election to reduce the GILTI tax burdenUSA | 03 September 2020
The Section 962 election has become one of the most common planning tools for tax professionals over the past couple of years. However, it is important to keep in mind that each situation is different. With variables ranging from projected actual future distributions to local country tax rates, it is always important to consider making a Section 962 election among other planning alternatives, not as the only planning alternative.
A limited liability company (LLC) that is created under the laws of a US state and wholly owned by a single non-US person is required to report transactions with its non-US owner and other related parties to the Internal Revenue Service (IRS) on Form 5472, which must be submitted with a pro forma Form 1120. In response to the COVID-19 outbreak, the IRS has automatically extended the filing due date from 15 April 2020 to 15 July 2020.
Using Form BE-10, the Bureau of Economic Analysis (BEA) conducts a survey on US direct investment abroad. The survey is conducted every five years and currently covers fiscal years ending in 2019. The gathered data is used to produce statistics on the scale and effects of US-owned business activities abroad. All US persons subject to the reporting requirements must file, even if they are not contacted by the BEA. Families and their advisers should not ignore correspondence from the BEA.
On the evening of 9 April 2020, the Inland Revenue Service (IRS) issued Notice 2020-23 postponing additional tax deadlines to 15 July 2020. The notice clarifies that the extended deadline relief includes not just the filing of specified income tax forms, but also all schedules, returns and other forms that are filed as attachments to income tax forms or are required to be filed by the due date of a specified income tax form.
The Internal Revenue Service (IRS) is ramping up compliance initiatives targeting failures to file US tax and information returns. US tax attorneys and accountants are increasingly seeing IRS notifications and penalty assessments. As the new year begins, family advisers and trust officers should review succession planning structures to determine whether any entity or individual has a 15 April US reporting requirement.
US gift, estate and generation-skipping transfer tax exemption amounts have been updated for tax year 2020. Advisers to international families must be able to recognise when a family member has come in contact with the US tax net and plan accordingly. For family members domiciled in the United States, special attention should be paid to the estate tax exemption amount which is scheduled to be automatically reduced at the end of 2025.
Non-US entities, even when not conducting a business in the United States, must sometimes apply for a US tax identification number, known as an employer identification number. Properly completing Form SS-4 will result in smoother processing and support the entity's tax classification and residency position.
The tax drag and unsatisfactory options to deal with accumulated income often result in moving an offshore trust to the United States and giving up the tax deferral. However, there is an alternative method, suitable for very long-term trusts, that takes an almost diametrically opposite approach. Rather than restricting the US beneficiaries to the value of the original trust capital and virtually giving up on future tax deferral, this method sacrifices the original trust capital to a final payment of taxes and interest (or a gift to charity) and tries to maximise the duration of the deferral.
US beneficiaries of foreign trusts are subject to a throwback tax regime and an interest charge when they receive distributions of accumulated income from the trust. To avoid these punitive payments, families often choose to convert or decant the trust to a US domestic trust. However, the easy answer may not be the best answer, as a trust that tries to rebound from an ill-considered move to the United States may face a tax on the way out – a toll charge that precludes returning offshore.
Over the past decade, matriarchs and patriarchs of successful families have increasingly been concluding that their children are sufficiently provided for and have thus shifted the focus of their family's largess to a broader group of individuals by creating so-called 'family banks'. Such banks provide capital to that broader group of individuals for business ventures, public-spirited projects and knowledge in a way that fosters personal commitment, accountability and multi-generational mentoring.
It is important for trustees of foreign trusts not to miss US tax filing deadlines or, if unable to file by the due date, to submit a request for an extension to file. Careful attention should be paid to where and how to submit the request, as procedures are not necessarily the same for all returns. This article sets out the various requirements that must be met by trustees of foreign trusts.
Trusts classified as foreign for US tax purposes, whether established under the law of a US state or of an offshore jurisdiction, must review whether they have any US tax or information reporting filings to make in 2019 with regard to income earned and distributions made in 2018. This article provides trust officers and family advisers with a summary checklist.
Keeping in mind US tax basis and estate tax issues while establishing and maintaining a succession planning structure can protect the estate of a non-US settlor from US estate tax and prove beneficial after the settlor's death where a branch of the family moves to the United States or a family member marries a US citizen. Recent changes to the US Tax Code have prompted some US tax advisers to suggest additional layers of entities to the structure, the additional cost and complexity of which may not result in substantial tax savings.
Trusts remain a flexible succession planning tool for families wishing to pass wealth to future generations in a responsible manner and can include philanthropic goals. The wealth-creating settlor wants to establish such a trust in a jurisdiction with well-established trust laws, a stable business environment, responsive and efficient trust officers and clearly stated comprehensive annual fees. When comparing jurisdictions, the United States should be included.
US citizens and US residents are subject to income, gift and estate taxes. Non-US persons are subject to tax on certain US income and property transfers. Advisers to international families must be able to recognise when a family member has come in contact with the US tax net and plan accordingly. This will often mean seeking advice from competent US tax counsel. Even if no tax is due, running the gauntlet of US reporting obligations requires specialised knowledge.
A limited liability company (LLC) created under the laws of a US state that is wholly owned by a single non-US person (a foreign-owned LLC) will be required to report transactions with its non-US owner and related parties to the Internal Revenue Service. Advisers to families with succession planning structures that use US foreign-owned LLCs should familiarise themselves with Form 5472 and determine whether the LLC has had any reportable transactions with its sole non-US owner or a related party.
The Internal Revenue Service (IRS) recently released an updated Form W-8BEN-E and Form W-8IMY. Non-US entities should use these new forms when requested to certify their status under the Foreign Account Tax Compliance Act. Among other things, the new forms clarify confusion over which global intermediary identification number should be reported for the trustee of a trustee-documented trust.
All over the world, financial institutions are collecting information on and reporting individuals associated with a family's succession planning trust structure. The family's interests are best served when the family office and professional advisers take a proactive approach to complying with the Foreign Account Tax Compliance Act and the Common Reporting Standard as they apply to each entity within the family trust structure.
Particularly since the US presidential election, some US citizens have moved abroad and others are considering such a move. Tax professionals and trust officers worldwide are fielding questions from these individuals, and how to advise them depends on the particular individual's objectives. Regardless of the length of time spent living outside the United States, the US citizen must be advised to continue all annual US tax reporting.
US citizens and US residents are subject to income, gift and estate taxes. Non-US persons are subject to tax on certain US income and property transfers. Advisers to international families must be able to recognise when a family member has come in contact with the US tax net and plan accordingly. This will often mean seeking advice from competent US tax counsel.
Limited liability companies (LLCs) established under the law of a US state are classified by default as disregarded entities if they have only one owner. As such, these LLCs have generally not been required to file a US tax return. Beginning with tax year 2017, US domestic LLCs that are wholly owned, directly or indirectly, by one foreign person, are now required to obtain a US tax identification number and file an annual return reporting transactions between the LLC and its foreign owner.
The leaked Panama Papers highlighted the ways in which offshore companies and structures can be used to cloak the identity of beneficial owners, some of whom have used such entities to avoid paying tax in their country of tax residence. The Internal Revenue Service and US financial institutions will now begin gathering information to identify beneficial owners of certain entities in response to the heightened awareness of abuse resulting from the papers' disclosure.
Even though a trust may be established under US state law and have a US trust company serving as trustee, this does not mean that it is a US domestic trust for income tax purposes. If non-US persons make substantial decisions for the trust, the US-based trust will be classified as a foreign trust under US tax law and, if it has accounts with financial institutions, it must provide certification of its status for Foreign Account Tax Compliance Act purposes.
The Foreign Account Tax Compliance Act (FATCA) is in full swing. Just as international families and their advisers are getting used to myriad requests for FATCA Form W-8 certification forms, more than 90 other countries have indicated that they wish to address tax evasion through a global exchange of financial information by implementing the Common Reporting Standard which, like FATCA, will affect non-US trusts and their trustees.
A certificate of loss of nationality addresses the immigration side of expatriation, but tax issues still remain. Certain 'covered' expatriates pay an exit tax on giving up their US citizenship. Although they themselves may have left the US tax net, there are lingering tax issues for any US family members. The Internal Revenue Service has now issued proposed regulations concerning the tax on certain gifts and bequests from covered expatriates.
The Foreign Account Tax Compliance Act requires non-US financial institutions, including investment entities, to report US account holders to the Internal Revenue Service. This reporting is causing US taxpayers living abroad to consider whether they have been adequately filing their annual income and information returns in the United States.
The Bureau of Economic Analysis has revised the form used to request an extension of time to file the BE-10 survey. The form no longer makes reference to the number of investments in foreign businesses to be reported by the US reporter. Thus, it is now more applicable to a small filer, such as a trust or limited liability company reporting only one foreign affiliate.
The Bureau of Economic Analysis, an agency of the US Department of Commerce, conducts a survey every five years of US investments abroad. Its stated purpose is to "secure current economic data on the operations of US parent companies and their foreign affiliates"; but the survey's reach is much broader than that. The response period for new filers closes on June 30 2015.
The Foreign Account Tax Compliance Act (FATCA) requires entity account holders to document their status for US withholding tax purposes and for FATCA due diligence purposes. In the case of a non-US entity account holder that has made a 'check-the-box election' to be disregarded for US income tax purposes, advisers should consider the instructions to the W-8 forms and provide documentation for the disregarded entity's beneficial owner.
The Foreign Account Tax Compliance Act (FATCA) was enacted to prevent abuse of the US voluntary tax compliance system and to address the use of offshore accounts to facilitate tax evasion. The Internal Revenue Service hopes that FATCA will strengthen the integrity of the US voluntary tax compliance system by requiring foreign financial institutions, beginning in 2015, to identify and report information regarding their US account holders.
In order for the Internal Revenue Service (IRS) to gather information on the foreign financial assets of US persons, more than 145,000 financial institutions have registered through the IRS Foreign Account Tax Compliance Act (FATCA) registration system. FATCA requires these financial institutions to report information on their US account holders beginning in 2015 for reporting year 2014.
For a foreign trust with a foreign professional trust company as trustee, compliance with the Foreign Account Tax Compliance Act (FATCA) is relatively straightforward. However, a private trust company that is not in the business of providing trustee services for compensation should assess its options with regard to how it complies with FATCA.
When the United States and the offshore jurisdictions negotiated intergovernmental agreements in order to implement the Foreign Account Tax Compliance Act (FATCA), they added a category of deemed-compliant foreign financial institution that is not in the final FATCA regulations: the trustee-documented trust. Financial institutions have now begun asking trustees of trustee-documented trusts to provide a FATCA certificate for the trust.
Including: Gift tax; Estate tax; Generation-skipping transfer tax; Income tax; Income tax residency and transfer tax domicile; Anti-avoidance rules; US citizens and green card holders living abroad; Expatriation; Taxation of trusts; Increased reporting obligations; Foreign Account Tax Compliance Act.
As advisers review succession planning structures to determine each foreign entity's Foreign Account Tax Compliance Act classification, they should consider whether each entity has been maintained in a manner consistent with income and estate tax results. Non-US individuals should also prepare for their US bank account information to be reported to their home country's tax authorities.
Withholding is soon scheduled to begin on certain payments of US source income to non-US entities that are not compliant with the Foreign Account Tax Compliance Act (FATCA). International families and their trustee companies are advised to familiarise themselves with the revised compliance deadlines and review succession planning structures to determine where FATCA withholding could take place and then take the necessary steps to prevent it.
The Internal Revenue Service (IRS) recently posted to its website updated model intergovernmental agreements which it is using to implement the 2010 Foreign Account Tax Compliance Act. Changes to the model agreements highlight the IRS's current thinking as implementation moves forward.
It is time for advisers to international families to assess the classifications of the family office, trust company, trusts and holding companies within the family's succession planning structures under the Foreign Account Tax Compliance Act and any relevant intergovernmental agreements, regardless of whether such entities currently have US owners, beneficiaries or investments.
The American Taxpayer Relief Act 2012, which was signed into law by the president on January 2, provides some certainty for international families as they address their succession planning and begin to move wealth to the next generation. In addition, clarification of the Foreign Account Tax Compliance Act has been provided by new final regulations, but the full impact on foreign trusts and their offshore trustees is still to be determined.
Advisers to international families know that the US tax laws will change in the new year and that the implementation of expanded reporting obligations will continue. In this uncertain environment, advisers do their best to help with investment and succession-planning decisions involving complex questions of law, tax and business planning.
The Tax Relief, Unemployment Insurance Reauthorisation and Job Creation Act of 2010 created advantageous tax and wealth-planning opportunities that are scheduled to expire on December 31 2012. Advisers to international families should be aware of these opportunities as it may be advantageous for US family members to take advantage of them while they still exist.
Significant planning opportunities now exist for both US and non-US trusts using state decanting laws. State initiatives are responding to the need to provide flexibility in trust administration, while the tax authorities are studying the tax implications of trustee distributions of all or a portion of the principal of an irrevocable trust to another irrevocable trust.
The Internal Revenue Service has released Form 8938 – Statement of Specified Foreign Financial Assets. Certain individual US taxpayers must use the form to report information about specified foreign financial assets for the 2011 tax year. Advisers to international families should bring this filing requirement to the attention of US beneficiaries of foreign trusts, as certain interests in foreign trusts are considered specified foreign financial assets.
The Dodd-Frank Act removed an exemption from registration previously available for investment advisers with fewer than 15 clients to enable the Securities and Exchange Commission to regulate private fund advisers. A family office falling within the definition of 'investment adviser' has until March 30 2012 either to register or to qualify for the new single family office exemption.
After passing major tax legislation in 2010 and following up with some regulations and guidance notices, the US tax authorities have now released new forms and additional guidance on reporting foreign accounts and the use of foreign trust property. However, despite the new guidance, US tax compliance continues to be complicated and burdensome.
The Internal Revenue Service (IRS) has announced a 2011 Offshore Voluntary Disclosure Initiative, available until August 31 2011. Following the previous initiative, which closed on October 15 2009, the new initiative is again designed to enable taxpayers to bring offshore money into the US tax system and to help those taxpayers become compliant with their US tax and reporting obligations.
US persons with financial interests in, or signature over, foreign bank accounts are required to report such interests in a foreign bank account report (FBAR). On February 24 2011 FinCEN issued a comprehensive final rule amending the Bank Secrecy Act regulations regarding FBARs, requiring reports for accounts exceeding $10,000 and maintained in 2010 to be filed by June 30 2011.
Tax practitioners and family advisers had their work cut out in 2010, wrestling with various changes and new rules; the new year promises more of the same. The Tax Relief, Unemployment Insurance Reauthorisation and Job Creation Act 2010 has provided some certainty, but new forms and guidance are still awaited for earlier reporting and tax laws.
For more than 20 years advisers to US beneficiaries of foreign non-grantor trusts have struggled with the US passive foreign investment corporation rules, which attribute stock owned by a non-grantor trust to its beneficial owners. The American College of Trust and Estate Counsel recently made recommendations to the US Treasury on how regulations could be drafted to avoid tax on phantom income for US beneficiaries.
The new Hiring Incentives to Restore Employment Act includes several provisions that change the rules applicable to foreign trusts and their beneficiaries, causing the use of trust property to be treated as a deemed distribution. In broadening the grantor trust rules and requiring US individuals to disclose "any interest in a foreign entity", the act signals increased scrutiny of foreign trusts, even when no tax obligation exists.
The Treasury Department recently released proposed regulations expanding those US persons who must file annual foreign bank account reports. Meanwhile, Congress has enacted provisions that require US individuals to file a statement disclosing foreign financial assets with their income tax return and US shareholders of passive foreign investment companies to file an annual information return.
The new year has brought new tax law provisions that US accountants, lawyers and family advisers thought would never take effect. Congress did nothing before the end of 2009 to prevent the repeal of estate tax in 2010; it is unclear whether it will act in 2010 and whether such action will be retroactive. Meanwhile, the entity classification of anstalts and stiftungs for US tax purposes have been clarified.
Recent legislative proposals look to change the generally accepted position that a loan of tangible property from a trust does not constitute a taxable distribution to a trust beneficiary. In addition, a recently amended Internal Revenue Service form provides that an expatriate's property for the purposes of exit tax includes the right to use trust property. Such developments may have a significant impact on succession planning.
The Internal Revenue Service has announced an extension of the deadline for its special voluntary disclosure programme. Taxpayers who do not voluntarily disclose unreported accounts by the new deadline may face harsher civil penalties and possible criminal prosecution.
Increasingly, professionals advising international families whose members include US citizens and residents can bring added value to their services if they can highlight US tax reporting requirements and timely compliance procedures. The Internal Revenue Service is making offshore tax matters a top priority, so compliance is crucial to avoid hefty penalties.
The Internal Revenue Service (IRS) is making offshore tax matters a top priority, targeting non-US bank and other financial accounts along with offshore structures. Furthermore, the federal government is considering legislation to prevent US taxpayers from holding assets in accounts of financial institutions located in so-called tax havens without disclosing the existence of those accounts to the IRS.
The new year has brought talk of stimulus packages and the Internal Revenue Service has stepped up its investigation of foreign bank accounts. Not only it is important to know the relevant transfer tax exclusion and exemption amounts, but it is also time to be aware of ever-increasing filing requirements and upcoming deadlines to report 2008 transfers.
The Internal Revenue Service has posted a new version of the Report of Foreign Bank and Financial Accounts. The new form is clearer and easier to use, the instructions include significant clarifications of previously uncertain points and consolidated filing by spouses is now permitted. However, it demands more information and preparation may not be easy for foreign persons.
The Internal Revenue Service has proposed a revenue ruling on private trust companies, addressing whether family ownership and participation in the governance of a trust company serving as trustee of family trusts would trigger adverse transfer and income tax consequences. The proposed ruling represents a step towards providing practical rules on family decision making over family trusts without undue tax risk.
US citizens and long-term residents who are considering relinquishing their US citizenship or terminating their US residency need to consider the impact of the new mark-to-market deemed sale rule ushered in by the Heroes Earnings Assistance and Relief Tax Act 2008.
A US beneficiary of a foreign trust may be subject to tax on income earned by a passive foreign investment company (PFIC) which is owned in whole or in part by the foreign trust. For the first time the Internal Revenue Service recently articulated in a technical advice memorandum how it would seek to apply the PFIC rules to US beneficiaries of non-US trusts owning foreign corporate stock.
US real estate brokers are seeing more sales to foreign buyers than ever before. The Manhattan real estate market is particularly benefiting as buyers with strong currencies against the dollar see New York properties as a relative bargain. However, regardless of where the property is located, foreign purchasers of US land, homes and rental properties need to be aware of the resulting tax consequences.
Modification of a trust under the laws of the various US states has traditionally been possible only through judicial action. Twenty states have enacted, wholly or partly, the Uniform Trust Code, which modernizes traditional trust law by expanding a beneficiary’s and a trustee’s ability to amend an irrevocable trust.
Deductions for charitable contributions are available to US citizens, resident aliens and non-resident aliens when calculating income, gift and estate taxes. A charitable deduction is also available for corporate taxpayers. However, the rules are complicated and differ for each of the taxes and for different types of taxpayer.
Practitioners should be aware of adjustments to the credits, exemptions, exclusions, rates and filing thresholds affecting the four taxes that have an impact on US and non-US individuals alike: income tax, gift tax, estate tax and generation-skipping transfer tax.
Recent US government hearings and reports have focused on abusive international tax planning and the unscrupulous promoters selling those plans. These government investigations should serve as a reminder to all professionals involved in international tax planning that international trust structures, their underlying corporations and transactions between them must be real and have economic substance.
The Foreign Investment in Real Property Tax Act introduced tax and reporting requirements designed to ensure the imposition and collection of tax on gain recognized upon a foreign owner's disposition of US real property. The Internal Revenue Service is to issue regulations revising rules for inbound and foreign-to-foreign asset reorganizations involving the transfer of US real property interests.
The Tax Increase Prevention and Reconciliation Act 2005 has been signed into law. The act does not change the estate tax law; nor does it introduce an exit tax on expatriates - two topics being hotly debated in Washington. Instead, it extends the reduced capital gains tax rate which benefits US beneficiaries of foreign trusts and modifies the housing expense calculation for US citizens living abroad.
Including: Gift Tax; Estate Tax; Generation-Skipping Transfer Tax; Temporary Repeal of Estate and Generation-Skipping Transfer Tax; Income Tax; Anti-avoidance Rules; Expatriation.
The trust law of the various US states has traditionally required trustees to administer trust property solely in the best interests of the beneficiaries, to preserve the property and make it productive. The Uniform Trust Code, enacted in whole or in part by 15 states, modernizes the traditional trust law by providing the settlor latitude to shape the relationship between the trust property and beneficiaries.
The laws of several US states enable a settlor to restrict disclosure to beneficiaries, adapting the trust form to offer a choice reflecting contemporary concerns about the confidentiality and management of wealth transfers. Following the amendment of the model Uniform Trust Code to reflect that states may choose to allow so-called 'quiet trusts', the trend towards settlor freedom is likely to continue.
The American Jobs Creation Act 2004 and Internal Revenue Service Notice 2005-1 have a significant effect on forms of non-qualified deferred compensation planning which make use of so-called offshore 'rabbi trusts'. The act requires immediate inclusion in income of any non-qualified deferred compensation, plus a penalty, unless certain requirements are met.
The American Jobs Creation Act 2004 has eliminated the tax avoidance motive test previously applied to determine whether an individual was subject to the 10-year alternative income tax regime following expatriation and the expatriate estate and gift tax rules following expatriation. The act also amends the gift and estate tax rules to address concerns of tax avoidance opportunities.
President Bush recently signed the American Jobs Creation Act 2004. Although primarily aimed at the taxation of corporations and businesses, several provisions are relevant to tax professionals advising former US citizens and former long-term US residents, trustees of offshore trusts with US beneficiaries, US persons making foreign investments and non-US persons making US investments.
Including: Gift Tax; Estate Tax; Generation-Skipping Transfer Tax; Temporary Repeal of Estate and GST Tax in 2010; Income Tax; Income Tax Residency and Transfer Tax Domicile; Anti-avoidance Rules; Expatriation.
The Taxpayer Relief Act 1997 and the Economic Growth and Tax Relief Reconciliation Act 2001 mandated changes to US transfer taxes over a period of years. Tax professionals and trustees must therefore confirm rates and exemption amounts annually. Certain annual exclusion amounts are also indexed for inflation and must be confirmed each year to ensure maximum advantage for the client.
Non-resident aliens intending to immigrate to the United States should carefully consider the US tax laws and available planning opportunities, especially where they have funded an offshore trust. The complexity and breadth of these rules generally result in the taxation of income earned in the offshore trust to the US-resident settlor, but pre-residency tax planning may ameliorate this result.
The US withholding tax rate was recently reduced to 28%. In other news, new Internal Revenue Service (IRS) regulations require the use of taxpayer identification numbers so that the IRS can properly identify foreign taxpayers seeking to reduce or eliminate tax on dispositions of US real property interests.
New legislation accelerates the lower income tax rates that were scheduled to appear in 2006 under the 2001 tax act. Tax professionals and trustees must consider the impact of these lower rates on offshore trusts benefiting families whose members include US citizens or residents.
April 15 marks the filing due date not only for US income tax returns, but also for the reporting of foreign gifts, distributions from foreign trusts and income earned in foreign grantor trusts. US citizens, resident aliens and domestic partnerships, corporations, estates and trusts which fail to file by this deadline will incur financial penalties.
Including: Gift Tax; Estate Tax; Generation-Skipping Transfer Tax; Income Tax; Income Tax Residency and Transfer Tax Domicile; Expatriation.