More cross-border issues for you and your advisor to remember for next tax season or extension time
While total global income must be reported on the relevant lines of the 1040, some forms are specific to global tax reporting.
Form 8938 relating to foreign asset reporting is now in its second year.
PFIC reporting—Form 8621 for all foreign mutual funds and private equities held by U.S. residents and citizens—is slowly becoming important.
You must also declare your financial interest in foreign entities via Form 5471.
As we discussed in Part 1 of this article series, if you are a U.S. resident or U.S. citizen (whether NRI, PIO or OCI), you must pay taxes in the U.S. on all of your global income. Here we’ll look closer at the important forms that apply to you.
Foreign assets reporting—Form 8938
Form 8938, Statement of Specified Foreign Financial Assets, must be filed along with the income tax return.
Experts agree that Form 8938, which has been around for half a dozen years, will become a significant tool for the IRS to identify the scope of international tax noncompliance of a given U.S. taxpayer. This form requires a taxpayer to disclose more information that connects various parts of a taxpayer’s international tax compliance, including the information that escaped disclosure on other forms earlier.
Schedule B is a typical example where you may have failed to report foreign financial accounts. Moreover, Form 8938 is far more detailed and asks the opening date of a certain financial account. This can become a tricky situation if you have held a foreign account for a significantly long period of time–and haven’t disclosed it in earlier returns.
What must be reported in 8938?
Foreign financial assets that must be declared in Form 8938 include shareholdings, mutual fund holdings, insurance policy holdings, pension plans and bank balances abroad.
Specified foreign financial assets do not include physical assets such as gold and real estate. However, if you own gold is held in the form of ETFs, it should be included as a specified foreign financial asset.
Tip: Form 8938 is exhaustive and requires you and your tax advisor to enter detailed values of financial assets. Make sure you get in touch with your overseas bankers or financial companies to gather this information ASAP.
PFIC reporting—Form 8621
The U.S. has a peculiar reporting requirement for all foreign mutual funds and private equities held by its residents and citizens. In the U.S., these funds are considered “passive foreign investment companies” (PFICs). According to PFIC rules, any notional gains from a mutual fund or private equity fund holding must be declared every year, and tax must be paid on such notional gains.
If you fail to comply, your gains on sales will be treated under the “excessive distribution” option, which is also the default method. Suppose you did not make any election on PFICs and, throughout the holding period, did not complete Form 8621 for PFIC holdings.
Let’s say you held the PFIC units for, say, 10 years and did not receive any distributions during those 10 years. In the year of sale, let’s say you made a gain of $100. In the year of sale, gains will be distributed over the past 10 years, that is, $10 per year. It will be treated as though you did not pay tax on $10 per year, and hence in Year 10, must pay tax for each of these years plus interest on the delay. Essentially, this default method kicks in at the year of sale.
Tip: If you own foreign mutual funds, collect information such as opening and closing values. If dividends were paid, gather that information as well. It can be a long, drawn-out exercise. The sooner you begin the better.
Declaration of financial interest in Indian entities
Forms 5471 and 8865 are triggered when a U.S. resident, citizen or green card holder has financial interest in foreign corporations or foreign partnerships. So if you have a stake in an overseas company, or are a director or officer of foreign company, you may need to file Form 5471 (for companies) or 8865 (for partnerships) and declare the interest. There are certain conditions that apply to both forms. What is important is that the penalties are very high. There is a penalty of $10,000 for each year for failing to file the form.
Another form, the 926, was also introduced a few years ago. Form 926 captures information on any transfers of property or funds by a U.S. taxpayer to a foreign corporation.
As I mentioned at the beginning of this article series, foreign income compliance is becoming increasingly important to the IRS. As the Foreign Account Tax Compliance Act (FATCA) gathers steam, opportunities to come into compliance without facing harsh penalties will start to diminish. So the sooner you and your tax advisors act, the better.
Robert J. Pyle, CFP®, CFA is president of Diversified Asset Management, Inc. (DAMI). DAMI is licensed as an investment adviser with the State of Colorado Division of Securities, and its investment advisory representatives are licensed by the State of Colorado. DAMI will only transact business in other states to the extent DAMI has made the requisite notice filings or obtained the necessary licensing in such state. No follow up or individualized responses to persons in other jurisdictions that involve either rendering or attempting to render personalized investment advice for compensation will be made absent compliance with applicable legal requirements, or an applicable exemption or exclusion. It does not constitute investment or tax advice. To contact Robert, call 303-440-2906 or e-mail email@example.com.
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