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.