Section 6048 requires US taxpayers to make an annual report regarding financial or asset transfers in relation to the receipt of distributions from foreign trusts. Taxpayers can be penalised if they fail to comply. Unfortunately many taxpayers have been caught out when it comes to reporting foreign retirement investments and other trusts. 

On March 2nd 2020 the IRS released Rev. Proc. 202-17. This change comes into effect on March 16 and provides taxpayers with certain foreign investments with an exemption from section 6048 reporting requirements on those investments. Accordingly, eligible US citizens with some tax favored foreign retirement investments and other trusts, have less duties in their reporting requirements. Furthermore, eligible individuals can now apply for a refund of any penalties that they have incurred as a result of section 6048 reporting requirements with their applicable tax-favored foreign trusts. 

The reason behind the change is that there are already a number of restrictions imposed by the countries where those trusts are located and there are already additional reporting requirements in the US under section 6038D regarding interests in these trusts. This alleviates the pressure of being penalized for meeting the section 6048 reporting requirements and reverses the penalties previously imposed in such cases. 

Once the change comes into place it will apply to any prior tax year that is still open. 

One of the reasons this relief is important is because it covers a requirement that many taxpayers and tax professionals haven’t realized was in place. This is because people tended to assume that the tax and reporting requirements were deferred until the point of retirement and they didn’t understand which international information reporting forms were to be used. Alleviating this reporting requirement will help reduce a lot of confusion in the field. 

If you have a foreign retirement or trust investment that may qualify you should look into Rev. Proc. 2020-17 or seek further advice for your specific situation. 

This article relates to foreign business founders with an active business, who are moving to the US. There is a risk that foreign earnings may be double taxed when your organisation is taxed as a US entity. This is due to the application of US attribution rules (Controlled Foreign Corporation (CFC) rules) and Passive Foreign Investment Company (PFIC) rules.

To avoid being double taxed and ensure that foreign tax credits can be appropriately applied, it may be advisable to make a check-the-box election. This election essentially means that foreign corporations are choosing to elect their US tax status at the point in time that the US tax system becomes ‘relevant’ to them.

This check-the-box system is a tax regime that doesn’t just impact organisations that are set up in the US. It can also impact Australian businesses and global businesses when the foreign founder of the corporation moves to the US.

When does the US tax system become ‘relevant’ to a foreign corporation:

The US tax system is considered to be ‘relevant’ to a foreign corporation when one of the following applies:

a) the foreign corporation derives US sourced income;

b) the foreign corporation is required to file an income tax return in the US; or

c) the owner of a foreign corporation becomes a US tax resident (ie a US Person).

Why might a check-the-box election be made?

The most basic reason for making the check-the-box election is to ensure that the owner of the corporation in the US is properly credited with the foreign tax payments. A check-the-box election will avoid the attribution of income under CFC rules or the loss of long term capital gains tax rate discounts when shares are transferred in a passive foreign investment company (PFIC).

When will a foreign corporation be a CFC?

When US shareholders own more than 50% of the shares, either directly or indirectly, then the foreign corporation will be considered to be a controlled foreign corporation (CFC). To be considered a ‘US shareholder’ the person must own more than 10% of the voting rights or stock value of the foreign company.

When is a foreign corporation a PFIC?

A passive foreign investment company (PFIC) exists when one of the following two conditions are satisfied:

1. Passive investments generate at least 75% of a corporation’s gross income (as opposed to regular business activities); or
2. At least 50% of the corporation’s assets create passive income. Passive income includes interest, dividends and capital gains.

What is a foreign eligible entity?

A foreign eligible entity is defined by whether a member has limited liability or not. This is a default classification under the check-the-box regulations. When all members of the corporation have limited liability the US taxes the foreign eligible entity as a corporation. When at least one member does not have limited liability the entity is not a foreign eligible entity.

An eligible entity may make a check-the-box election to opt out of the default classifications.

Warning on making an election after default classification has been made

It is important to make your election prior to the default classification being applied. This is because making a later election will change the organisation’s classification. Such a change in classification can trigger a liquidation event.

When you should make a check-the-box election:

To ensure the check-the-box election is made appropriately you should consider making the election when you meet all of the following conditions:

1. you own a foreign corporation
2. the US tax system is relevant for your corporation
3. you need to apply foreign tax credits against your US corporate tax regime
4. you wish to avoid applying the CFC or PFIC rules.