PRIVATE LETTER RULING ON FIDEICOMISOS - THIS ONE DOES NOT HAVE TO FILE FORM 3520 ET. AL.

For the first time ever the IRS has made pronouncement concerning whether a Mexican Fideicomiso beneficiary has to file US tax forms 3520 and 3520A.

The bad news is that it made this pronouncement by way of a Private Letter Ruling which is only binding on the IRS with respect to the taxpayer who applied for the ruling. The IRS  IS NOT bound by the holdings in the ruling with respect to other taxpayers. Other taxpayers also by law can not cite a Private Letter Ruling as authority for their position.

The Private Letter Ruling held that in the particular factual situation of the Taxpayer who applied for the ruling that the US Taxpayer was not required to file the Forms 3520 for that Taxpayer's Fideicomiso.

Whether referring to this private letter ruling will cause the IRS to eliminate penalties for not filing Forms 3520 for a Fideicomiso cannot be determined at this time.  For any filer to be completely certain they did not have to file these forms, the IRS would need to make a written public announcement that such filing was not required.  For the last 7-9 years the IRS has been requested to make such a public written holding, and has not done so to date.   SEE THE REDACTED RULING HERE. THE IRS HAS NOT YET PUBLISHED IT.

IRS Requires Reporting of Foreign Gifts Received from Abroad

If you as a US Citizen, Green Card Holder, or even a resident of the US living here on a visa received  gifts of more than $100,000 (cumulative amounts per calendar year) in gifts or inheritances from a nonresident  foreign individual or gifts of $14,375 from a foreign corporation or partnership (cumulative amounts per calendar year), you must report these amounts to the IRS by filing Form 3520.  Failure to file this form can result in penalties up to  35% of the amount of the gift or inheritance.

The IRS does track large sums transferred from abroad to US residents and will often audit these individuals fail to report these transfers on their tax returns to try to determine if they are not paying US taxes on taxable income from abroad. It is best you have complete documentation for all amounts arriving from abroad which are not taxable  in the event you are audited If the transfer is a  gift or inheritance and fail to file Form 3520, the IRS may impose the penalty.

We have helped hundreds of taxpayers file Form 3520 and we can help you avoid these possible huge penalties and the cost of defending your position in the event you are audited on transfers of funds from abroad.

If you Owe the IRS Back Taxes, you may be detained at the Border when Entering the USA

It is believed that the IRS has established procedures to facilitate tax collection from taxpayers who live outside the United States. If such a  taxpayer has an unpaid tax liability and is subject to a resulting Notice of Federal Tax Lien, the IRS is probably submitting  identifying taxpayer information to the Treasury Enforcement Communications System (TECS), a database maintained by the Department of Homeland Security (DHS). The database allows the DHS to identify taxpayers with unpaid tax assessments who are traveling to the United States for business, employment, or personal reasons . Therefore, it appears  taxpayers traveling to the United States with unpaid tax assessments increasingly are being detained at the border by the DHS.

FBAR (TDF 90-22.1) - When is there willful failure to file which leads to highest penalties?

The  4th District Federal Court has just held that there is willful failure to file an FBAR (TDF 90-22.1) form when you check the box "NO" on schedule B with reference to foreign bank and finanical accounts when you know you have combined highest balances in foreign accounts of $10,000 or more during the year. They stated this is sufficient showing of willfulness whether or not you know the FBAR (TDF 90-22.1) existed or was required to be filed.

If you willfully fail to file an FBAR form the penalties can be the greater of $100,000 or 50% of the highest balance in your accounts for each year. There are also criminal penalties  for willful failure to file of up to five years in Jail and a $250,000 fine.

The penalties for non-willful failure to file the Form can be $10,000 or less.

Passive Foreign Investment Companies -Form 8621

One of the most overlooked forms for US expatriates making investments abroad, or any US taxpayer living in the US that invests in foreign mutual funds is Form 8621.  If you do not file this form and make certain elections allowed by that form (SEE INSTRUCTIONS TO FORM HERE) you may incur extremely adverse US tax consequences  when you finally sell your foreign investment.  This form is complex and often difficult to complete due to the elections you must make and the information which must be included in the form.  Most taxpayers overlook this form and its important elections because they assume a foreign mutual fund will  be treated the same as a US mutual fund.  It is not!

WHEN MUST THIS FORM BE FILED?  It should be filed when you own a foreign mutual fund (not sold in the US securities market) or you own a foreign corporation that as a major portion of its activities invests in foreign equities, foreign mutual funds and other foreign investments.  This form does not need to be filed is you merely own actual foreign stock certificates, or shares in a foreign corporation that does not produce passive investment income.

Form 8621 is filed annually with your personal tax return. A separate Form must be filed for each separate foreign mutual that you own.  If the foreign mutual fund is held in your US  stock brokerage account, you do not need to file this form.  See The Form 8621 here.  Though it appears simple, this form is difficult to complete correctly. Let us know if you need help.

US Taxpayers Must Report Foreign Gifts Received

If you receive over $100,000 a year in foreign gifts (given to you from an individual abroad who is not a US Citizen) or over $14,375 per year in gifts from foreign corporations, partnerships, etc. you must file Form 3520 in order to avoid a possible 25% penalty being imposed by the IRS.  If you fail to file this form when receiving such gifts you also risk the IRS later claiming the gift was taxable income and attempting to collect income taxes, penalties and interest for failing to report it on your US tax return.

This form is informational and does not cause you to pay any tax on the foreign gift.  You just list certain information about the gift and file.  Many fail to file this form thinking it will cause them problems, but the problem will only arise when you fail to file it. The 3520 is filed separately from your tax return but is due on the due date of your 1040. If you can show reasonable cause the penalty for not timely filing this return may be waived by the IRS.

IRS releases new FAQs for Offshore Voluntary Disclosure Program, announces other rules

The IRS just revised and released new guidance on its 2012 Offshore Voluntary Disclosure Program Initiative.  The revised guidance is located  HERE.     Read this article from the Journal of Accountancy  which explains  in general some of the revised guidelines for entering the program and another new program starting 9/1/12 for those who owe little taxes, live abroad, and did not know about filing US tax returns or Foreign Financial Account Reporting Forms (TDF 90-22.1)

We have advised and/or represented over one hundred clients in connection with these programs with great success.

IRS Announces Efforts to Help U.S. Citizens Overseas, Including Dual Citizens and Those with Foreign Retirement Plans

The Internal Revenue Service today announced a plan to help U.S. citizens residing overseas, including dual citizens, catch up with tax filing obligations and provide assistance for people with foreign retirement plan issues.

"Today we are announcing a series of common-sense steps to help U.S. citizens abroad get current with their tax obligations and resolve pension issues," said IRS Commissioner Doug Shulman.

Shulman announced the IRS will provide a new option to help some U.S. citizens and others residing abroad who haven’t been filing tax returns and provide them a chance to catch up with their tax filing obligations if they owe little or no back taxes. The new procedure will go into effect on Sept. 1, 2012. (Click the previous link to go to the current information on the new procedure)

The IRS is aware that some U.S. taxpayers living abroad have failed to timely file U.S. federal income tax returns or Reports of Foreign Bank and Financial Accounts (FBARs).  Some of these taxpayers have recently become aware of their filing requirements and want to comply with the law.

To help these taxpayers, the IRS offered the new procedures that will allow taxpayers who are low compliance risks to get current with their tax requirements without facing penalties or additional enforcement action. These people generally will have simple tax returns and owe $1,500 or less in tax for any of the covered years.

The IRS also announced that the new procedures will allow resolution of certain issues related to certain foreign retirement plans (such as Canadian Registered Retirement Savings Plans).  In some circumstances, tax treaties allow for income deferral under U.S. tax law, but only if an election is made on a timely basis.  The streamlined procedures will be made available to resolve low compliance risk situations even though this election was not made on a timely basis.

Taxpayers using the new procedures announced today will be required to file delinquent tax returns along with appropriate related information returns for the past three years, and to file delinquent FBARs for the past six years. Submissions from taxpayers that present higher compliance risk will be subject to a more thorough review and potentially subject to an audit, which could cover more than three tax years.

The IRS also announced its offshore voluntary disclosure programs have exceeded the $5 billion mark, released new details regarding the voluntary disclosure program announced in January and closed a loophole used by some U.S. citizens.  See IR-2012-64 for more details.

IRS Adds 9 More Questions and Answers on Form 8938 - Reporting Foreign Financial Assets

Basic Questions and Answers on Form 8938 (rev 6/7/12)
Q&A   1-14, posted 02-29-12 Q&A 15-23, posted 06-07-12 1. What are the specified foreign financial assets that I need to report on Form 8938? If you are required to file Form 8938, you must report your financial accounts maintained by a foreign financial institution.  Examples of financial accounts include: Savings, deposit, checking, and brokerage accounts held with a bank or broker-dealer. And, to the extent held for investment and not held in a financial account, you must report stock or securities issued by someone who is not a U.S. person, any other interest in a foreign entity, and any financial instrument or contract held for investment with an issuer or counterparty that is not a U.S. person.  Examples of these assets that must be reported if not held in an account include: Stock or securities issued by a foreign corporation; A note, bond or debenture issued by a foreign person; An interest rate swap, currency swap, basis swap, interest rate cap, interest rate floor, commodity swap, equity swap, equity index swap, credit default swap or similar agreement with a foreign counterparty; An option or other derivative instrument with respect to any of these examples or with respect to any currency or commodity that is entered into with a foreign counterparty or issuer; A partnership interest in a foreign partnership; An interest in a foreign retirement plan or deferred compensation plan; An interest in a foreign estate; Any interest in a foreign-issued insurance contract or annuity with a cash-surrender value.  The examples listed above do not comprise an exclusive list of assets required to be reported. 2. I am a U.S. taxpayer but am not required to file an income tax return.  Do I need to file Form 8938? Taxpayers who are not required to file an income tax return are not required to file Form 8938. 3. Does foreign real estate need to be reported on Form 8938? Foreign real estate is not a specified foreign financial asset required to be reported on Form 8938.  For example, a personal residence or a rental property does not have to be reported. If the real estate is held through a foreign entity, such as a corporation, partnership, trust or estate, then the interest in the entity is a specified foreign financial asset that is reported on Form 8938, if the total value of all your specified foreign financial assets is greater than the reporting threshold that applies to you.  The value of the real estate held by the entity is taken into account in determining the value of the interest in the entity to be reported on Form 8938, but the real estate itself is not separately reported on Form 8938.  4. I directly hold foreign currency (that is, the currency isn’t in a financial account).  Do I need to report this on Form 8938? Foreign currency is not a specified foreign financial asset and is not reportable on Form 8938. 5.  I am a beneficiary of a foreign estate.  Do I need to report my  interest in a foreign estate on Form 8938? Generally, an interest in a foreign estate is a specified foreign financial asset that is reportable on Form 8938 if the total value of all of your specified foreign financial assets is greater than the reporting threshold that applies to you. 6. I acquired or inherited foreign stock or securities, such as bonds.  Do I need to report these on Form 8938? Foreign stock or securities, if you hold them outside of a financial account, must be reported on Form 8938, provided the value of your specified foreign financial assets is greater than the reporting threshold that applies to you.  If you hold foreign stock or securities inside of a financial account, you do not report the stock or securities on Form 8938.  For more information regarding the reporting of the holdings of financial accounts, see FAQs 8 and 9. 7. I directly hold shares of a U.S. mutual fund that owns foreign stocks and securities.  Do I need to report the shares of the U.S. mutual fund or the stocks and securities held by the mutual fund on Form 8938?  If you directly hold shares of a U.S. mutual fund you do not need to report the mutual fund or the holdings of the mutual fund. 8.  I have a financial account maintained by a U.S. financial institution that holds foreign stocks and securities.  Do I need to report the financial account or its holdings?  You do not need to report a financial account maintained by a U.S. financial institution or its holdings.  Examples of financial accounts maintained by U.S. financial institutions include: U.S. Mutual fund accounts IRAs (traditional or Roth) 401 (k) retirement plans Qualified U.S. retirement plans Brokerage accounts maintained by U.S. financial institutions 9.  I have a financial account maintained by a foreign financial institution that holds investment assets.  Do I need to report the financial account if all or any of the investment assets in the account are stock, securities, or mutual funds issued by a U.S. person? If you have a financial account maintained by a foreign financial institution and the value of your specified foreign financial assets is greater than the reporting threshold that applies to you, you need to report the account on Form 8938.  A foreign account is a specified foreign financial asset even if its contents include, in whole or in part, investment assets issued by a U.S. person.  You do not need to separately report the assets of a financial account on Form 8938, whether or not the assets are issued by a U.S. person or non-U.S. person.     10.  I have a financial account with a U.S. branch of a foreign financial institution.  Do I need to report this account on Form 8938? A financial account, such as a depository, custodial or retirement account, at a U.S. branch of a foreign financial institution is an exception to the general rule that a financial account maintained by a foreign financial institution is specified foreign financial asset.  A financial account maintained by a U.S. branch or U.S. affiliate of a foreign financial institution does not have to be reported on Form 8938 and any specified foreign financial assets in that account also do not have to be reported. 11. I own foreign stocks and securities through a foreign branch of a U.S.-based financial institution.  Do I need to report these on Form 8938? If a financial account, such as a depository, custodial or retirement account, is held through a foreign branch or foreign affiliate of a U.S.-based financial institution, the foreign account is not a specified foreign financial asset and is not required to be reported on Form 8938 12. I have an interest in a foreign pension or deferred compensation plan. Do I need to report it on Form 8938? If you have an interest in a foreign pension or deferred compensation plan, you have to report this interest on Form 8938 if the value of your specified foreign financial assets is greater than the reporting threshold that applies to you. 13. How do I value my interest in a foreign pension or deferred compensation plan for purposes of reporting this on Form 8938? In general, the value of your interest in the foreign pension plan or deferred compensation plan is the fair market value of your beneficial interest in the plan on the last day of the year.   However, if you do not know or have reason to know based on readily accessible information the fair market value of your beneficial interest in the pension or deferred compensation plan on the last day of the year, the maximum value is the value of the cash and/or other property distributed to you during the year.  This same value is used in determining whether you have met your reporting threshold. If you do not know or have reason to know based on readily accessible information the fair market value of your beneficial interest in the pension plan or deferred compensation plan on the last day of the year and you did not receive any distributions from the plan, the value of your interest in the plan is zero.  In this circumstance, you should also use a value of zero for the plan in determining whether you have met your reporting threshold.  If you have met the reporting threshold and are required to file Form 8938, you should report the plan and indicate that its maximum is zero. 14. I am a U.S. taxpayer and have earned a right to foreign social security.  Do I need to report this on Form 8938? Payments or the rights to receive the foreign equivalent of social security, social insurance benefits or another similar program of a foreign government are not specified foreign financial assets and are not reportable. 15. If I have to file Form 8938, am I required to report all of my specified foreign financial assets regardless of whether the assets have a de miminis maximum value during the tax year? If you meet the applicable reporting threshold, you must report all of your specified foreign financial assets, including the specified foreign financial assets that have a de minimis maximum value during the tax year.  For exceptions to reporting, see Exceptions to Reporting on page 6 of the instructions for Form 8938. 16.  I filed my income tax return but now realize that I should have filed Form 8938 with my return, what should I do? If you omitted Form 8938 when you filed your income tax return, you should file Form 1040X, Amended U.S. Individual Income Tax Return, with your Form 8938 attached. 17.  Do I have to file both Form 8938 and Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR)? The filing of Form 8938 does not relieve you of the separate requirement to file the FBAR if you are otherwise required to do so, and vice-versa.  Depending on your situation, you may be required to file Form 8938 or the FBAR or both forms, and certain foreign accounts may be required to be reported on both forms. 18.  I have numerous specified foreign financial assets to report on Form 8938.  Is there a continuation sheet for the Form 8938?  If you have more than one account or asset to report in Part I or Part II of Form 8938, or more than one issuer or counterparty to report in Part II of Form 8938, copy as many blank Parts I and/or II as you need to complete, and attach them to Form 8938.  Check the “If you have attached additional sheets, check here” box at the top of Form 8938. 19.  I directly hold tangible assets for investment, such as art, antiques, jewelry, cars and other collectibles, in a foreign country.  Do I need to report these assets on Form 8938? No.  Directly held tangible assets, such as art, antiques, jewelry, cars and other collectibles, are not specified foreign financial assets. 20.  I directly hold precious metals for investment, such as gold, in a foreign country.  Do I need to report these assets on Form 8938? No.  Directly held precious metals, such as gold, are not specified foreign financial assets.  Note, however, that gold certificates issued by a foreign person may be a specified foreign financial asset that you would have to report on Form 8938, if the total value of all your specified foreign financial assets is greater than the reporting threshold that applies to you. 21.  This tax year I sold precious metals that I held for investment to a foreign person.  Do I have to report the sales contract on Form 8938?  The contract with the foreign person to sell assets held for investment is a specified foreign financial asset investment asset that you have to report on Form 8938, if the total value of all your specified foreign financial assets is greater than the reporting threshold that applies to you. 22.  I have a safe deposit box at a foreign financial institution.  Is the safe deposit box itself considered to a financial account?    No, a safe deposit box is not a financial account. 23.  Am I required to hire a certified appraiser or actuary to determine the fair market value of a specified foreign financial asset?  For example, if I have a foreign defined benefit plan, am I required to obtain the services of an actuary? You may determine the fair market value of a foreign financial account for the purpose of reporting its maximum value based on periodic account statements unless you have reason to know that the statements do not reflect a reasonable estimate of the maximum value of the account during the tax year.  For a specified foreign financial asset not held in a financial account, you may determine the fair market value of the asset for the purpose of reporting its maximum value based on information publicly available from reliable financial information sources or from other verifiable sources.  Even if there is no information from a reliable financial information source or other verifiable source, you do not need to obtain an appraisal by a third party in order to reasonably estimate the asset’s maximum value during the tax year.

Reporting Foreign Financial Accounts Due Date for Form TDF 90-22.1 (FBAR) is 6/29/12 or 6/30/12

Your TDF 90-22.1  (FBAR form) where you must report to the IRS your foreign bank and financial accounts must arrive at the designated address by 6/29/12 or be filed on line no later than 6/30/12.  No extensions are allowed. You must report accounts owned by you or that you have signature authority or control over.

This form must be filed for your 2011 foreign financial accounts highest balances during 2011 exceed $10,000 US. Therefore, you need to combine these highest balances to determine if you need to file this form. Foreign financial accounts (but not limited to these) which must be on the form include:

• Bank and savings accounts
• Stock Brokerage Accounts
• Pension plans
• Cash surrender value in foreign life insurance and annuities
• Gold held by another company or person for safe keeping.

Best to file the form Certified mail with return receipt so you have proof of filing or by DHL, UPS, or Fed Exp.

If you are required to file this form, you may also be obligated to file Form 8938 with your personal US tax return.

Link to download  paperTDF 90.22.1(FBAR): http://www.irs.gov/pub/irs-pdf/f90221.pdf

Link to file TDF 90-22.1 on line: http://bsaefiling.fincen.treas.gov/Enroll_Individual.html

Potential Penalties for Not Filing or Filing Late:

The following chart highlights the civil and criminal penalties that may be asserted for not complying with the FBAR reporting and recordkeeping requirements.

Violation	Civil Penalties	Criminal Penalties	Comments
Negligent Violation	Up to $500	N/A	31 U.S.C. § 5321(a)(6)(A) 31 C.F.R. 103.57(h)
Non-Willful Violation	Up to $10,000 for each negligent violation	N/A	31 U.S.C. § 5321(a)(5)(B)
Pattern of Negligent Activity	In addition to penalty under § 5321(a)(6)(A) with respect to any such violation, not more than $50,000	N/A	31 U.S.C. 5321(a)(6)(B)
Willful - Failure to File FBAR or retain records of account	Up to the greater of $100,000, or 50 percent of the amount in the account at the time of the violation.	Up to $250,000 or 5 years or both	31 U.S.C. § 5321(a)(5)(C) 31 U.S.C. § 5322(a) and 31 C.F.R. § 103.59(b) for criminal. The penalty applies to all U.S. persons.
Willful - Failure to File FBAR or retain records of account while violating certain other laws	Up to the greater of $100,000, or 50 percent of the amount in the account at the time of the violation.	Up to $500,000 or 10 years or both	31 U.S.C. § 5322(b) and 31 C.F.R. § 103.59(c) for criminal The penalty applies to all U.S. persons.
Knowingly and Willfully Filing False FBAR	Up to the greater of $100,000, or 50 percent of the amount in the account at the time of the violation.	$10,000 or 5 years or both	18 U.S.C. § 1001, 31 C.F.R. § 103.59(d) for criminal.  The penalty applies to all U.S. persons.
Civil and Criminal Penalties may be imposed together.  31 U.S.C. § 5321(d).