Form 8938 tax attorney Minneapolis

FATCA PFIC Reporting | International Tax Attorney

FATCA PFIC Reporting is an important feature in today’s U.S. tax compliance. In this article, I will focus on the explanation of the FATCA PFIC Reporting requirement for U.S. shareholders of a PFIC.

FATCA PFIC Reporting: FATCA Background

The Foreign Account Tax Compliance Act (“FATCA”) is contained in Chapters 1471–1474 of the Internal Revenue Code (“IRC”) as enacted into law by section 501(a) of the Hiring Incentives to Restore Employments (HIRE) Act 2010. FATCA was enacted specifically to combat offshore tax evasion by US persons with secret foreign accounts.

There are two large parts of FATCA. The first part concerns only foreign financial institutions (FFIs). Under FATCA, the FFIs are now required to identify US accountholders and report their accounts to the IRS. The second part of FATCA requires US taxpayers to report their foreign assets and foreign income on Form 8938, which is filed with the taxpayers’ US tax return.

This article is mostly concerned with the FATCA PFIC reporting on Form 8938.

FATCA PFIC Reporting: PFIC Background

A Passive Foreign Investment Company, commonly known as PFIC, is one of the most complex tax designations in the United States. The annual tax compliance for PFICs (especially default Section 1291 PFICs) can be tremendously burdensome. Furthermore, distributions and capital gains from PFICs may be subject to a much higher PFIC income tax (and PFIC interest on the PFIC tax).

A PFIC is any foreign corporation that falls within the definition of IRC Section 1297(a), which states that a foreign corporation is a PFIC if: “(1) 75 percent or more of the gross income of such corporation for the taxable year is passive income, or (2) the average percentage of assets (as determined in accordance with subsection (e)) held by such corporation during the taxable year which produce passive income or which are held for the production of passive income is at least 50 percent.” Foreign mutual funds is one of the most common examples of PFICs; however, other companies may also fall within the scope of the IRC Section 1297(a).

If a U.S. taxpayer has PFICs, he is required to file Form 8621 “Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund”. A separate form 8621 should be filed for each PFIC (often, it is more convenient to file a separate Form 8621 for various blocks of the same PFIC; however, one needs to make sure that the same identification number is provided on each Form 8621 filed for the same PFIC).

FATCA PFIC Reporting: Relationship Between Form 8938 and Form 8621

In general, the FATCA foreign financial asset reporting on Form 8938 overlaps with the PFIC reporting obligation on Form 8621, but the relationship between the two forms is fairly clear. If forms 8621 must be filed (and, since 2013, this is pretty much always the case for PFICs), then the PFICs do not need to be reported on Form 8938. The number of forms 8621 must still be specified on Form 8938.

It is also important to remember that PFICs must still be disclosed on FBARs even if they are reported on Forms 8621 and 8938.

Contact Sherayzen Law Office for Help with FATCA PFIC Reporting

PFIC calculations themselves are some of the most complex requirements in the IRC. FATCA PFIC reporting further complicates the already difficult issues surrounding PFICs. It is very easy to make mistakes which result in the imposition of high IRS penalties. The correction of these mistakes will also likely result in additional legal fees.

This is why you need to secure the help of an experienced international tax law firm as early as possible and Sherayzen Law Office is the perfect fit. We have helped numerous US taxpayers around the world with their FATCA PFIC matters and we can help you.

Contact Us Today to Schedule Your Confidential Consultation!

Form 8938 Definition of Foreign Financial Institution

Financial accounts maintained by a Foreign Financial Institution constitute one of the main categories of Specified Foreign Financial Assets that need to be reported on IRS Form 8938. While it seems trivial, it is important to understand what is meant by “Foreign Financial Institution” within the context of Form 8938 – i.e. what is the Form 8938 Definition of Foreign Financial Institution.

There are two parts of Foreign Financial Institution that need to be separately defined: “foreign” and “financial institution”.

Form 8938 Definition of Foreign Financial Institution: What is “Foreign”?

For the purposes of Form 8938, a financial institution is foreign if the financial institution is organized under the laws a of a jurisdiction other than United States and its territories. Thus, a domestic financial institution is the one that is organized under the laws of any of the 50 states of the United States, the district of Columbia, and US territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico or US Virgin Islands – everything else is foreign.

It is important to note that a foreign financial institution is defined by the laws of a jurisdiction under which it was organized, not by where it operates. Thus, a domestic institution that operates overseas is not foreign.

Form 8938 Definition of Foreign Financial Institution: What is a “Financial Institution”?

Now that we were able to define the “foreign part of the Foreign Financial Institution, let’s turn our attention to the second part of this term – “financial institution”. This concept is defined broadly. In order for a Foreign Financial Institution to be considered a financial institution, it has to do one of the following:

1. Accept deposits in the ordinary course of a banking or similar business);

2. Hold financial assets for the account of others as a substantial part of its business; and

3. Engage (or holds itself out as being engaged) primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, or any interest (including a futures or forward contract or option) in such securities, partnership interests, or commodities.

This definition easily covers banks, credit unions, brokerages, various financial advisors, and everyone who is involved in any of the activities listed above. This even includes financial trusts.

Moreover, a foreign financial institution includes various investment vehicles such as foreign mutual funds, foreign hedge funds, and foreign private equity funds. It should be noted that these types of investment vehicles may also need to be reported on Form 8621 as PFICs.

Contact Sherayzen Law Office for Help With Form 8938 Filing

Filing a correct Form 8938 is an essential part of your US tax compliance. Moreover, failure to file Form 8938 may lead to various penalties and complicate your Offshore Voluntary Disclosure.

This why you need to help of the experienced tax team of Sherayzen Law Office. We have helped hundreds of US taxpayers to bring and maintain their US tax affairs into full compliance and we can help you.

Contact Us Today to Schedule Your Confidential Consultation!

Do I need an Accountant or Attorney for Form 8938 Offshore Assets Disclosure?

A lot of taxpayers are still confused about whether they need an attorney or an account to file delinquent Forms 8938. As I explain below, Form 8938 is an essentially legal disclosure form and its voluntary disclosure should be handled by an experienced international tax attorney.

Form 8938 Requires Legal Disclosure

It is important to understand that Form 8938, more than any other form except the FBAR now Form 114 (TD F 90-22.1), requires a legal disclosure of specified foreign assets. The form does not involve any accounting calculations of tax liability or even knowledge of US GAAP (something that other information tax returns, like Forms 5471 or 8865, may require). The taxpayer simply needs to disclose his ownership of specified offshore assets according to the instructions of Form 8938.

Failure to File Form 8938 Is a Legal Issue

Since Form 8938 is a legal disclosure form, the failure to file the form and the penalties associated with the form constitute a legal problem that should be handled by an international tax attorney, not an accountant.

This is even more the case because the strategy with respect to handling Form 8938 and the explanation of the reasonable cause require advocacy – a critical skill which is a part of an attorney’s basic training, but which the accountants are not likely to possess.

Clients need an advocate to deliver their position to the IRS in a clear manner. Clients need an advocate to be able to interpret the law, not simply assume that what the IRS agent is saying is the only true version of the law. Finally, clients need an advocate to defend their interests with skill and persuasion.

Tax attorneys are advocates, not simply calculators. Despite the seeming confusion over the role of the two professions, an attorney’s entire approach is likely to be radically different from that of an accountant simply because attorneys are trained to think and act in a completely different manner.

Contact Sherayzen Law Office for Legal Help with Your Voluntary Disclosure of Specified Foreign Assets

If you have undisclosed offshore assets that should have been disclosed on Form 8938, contact Sherayzen Law Office NOW. Our experienced international tax firm will thoroughly analyze your case, estimate your potential Form 8938 penalties, identify all non-compliance issues, and develop a comprehensive approach to your offshore voluntary disclosure.

Accountants Beware: Offshore Disclosure with Form 8938 is a Legal Issue

In an earlier article, I already explained why the FBAR disclosure is a legal issue. In terms of their lineage, Forms 8938 are very similar to the FBARs. While the FBARs are the creation of Bank Secrecy Act, Form 8938 is a creation of a legislation of a similar nature – FATCA (Foreign Account Tax Compliance Act).

The intent of both laws is similar – to produce legal disclosure of foreign assets by U.S. taxpayers. Notice that I am talking about legal disclosure, not an accounting calculation.

While the penalties associated with failure to file Form 8938 are not as severe as those of the FBAR, they are still substantial and have legal and tax repercussions. Where non-compliance is such that it requires voluntary disclosure, the issues associated with Form 8938 take on a new importance that requires the full protection of the attorney-client privilege and complex legal advocacy.

This is why it is so important for the accountants to avoid committing malpractice and recognize that an offshore disclosure that involves filing delinquent Forms 8938 is a legal issue that should be left to international tax attorneys who are trained and experienced in this area of law.

Contact Sherayzen Law Office for Legal Help with Your Voluntary Disclosure of Offshore Assets

If you have undisclosed offshore assets, contact Sherayzen Law Office NOW. Our experienced international tax law firm will thoroughly analyze your case, estimate your potential FBAR penalties, identify all non-compliance issues, and develop a comprehensive approach to your offshore voluntary disclosure.

Form 8938 Penalties

As discussed in an earlier article, Form 8938 is used by specified individuals to report the ownership of specified foreign financial assets if the total value of those assets exceeds an applicable threshold amount.

Similarly to most international tax forms issued by the IRS, Form 8938 has its own system of penalties. What makes Form 8938 penalties stand out are the scope of coverage, the severity of penalties, and the effect on the IRS statute of limitations.

A. Scope of Form 8938

Form 8938 is much more intrusive than the now-famous FBARs. While the threshold amount for filing the FBAR is much lower (only $10,000), the type of information requested by Form 8938 is much broader. The FBARs only require disclosure of foreign bank and financial accounts.

Form 8938, however, requires the disclosure not only of the interest held in foreign bank and financial accounts (which may also be somewhat different from the FBAR definition), but also of the interest held in foreign entities and “other foreign financial assets” – the definition of which includes an array of varies types of swaps, contracts, and stocks.

Moreover, Form 8938 directly ties assets disclosed on Forms 3520, 3520-A, 5471, 8621, 8865 and 8891 to the assets that need to be reported on Form 8938 (pursuant to the “duplication” rule, the taxpayers do not need to report on Form 8938 the assets already reported the five aforementioned forms). Therefore, Form 8938 makes it much easier for the IRS to to uncover potential issues with the other six forms (all of which have their own applicable penalty standards).

A word of caution: even if a specified foreign financial asset is reported on any of the six forms listed above, the taxpayer must still include the value of the asset in determining whether the aggregate value of the taxpayer’s specified foreign financial assets is more then the reporting threshold that applies to the taxpayer.

Finally, the IRS can use Form 8938 to analyze if the taxpayer was supposed to file the FBAR and failed to do so (or failed to do so correctly).

Thus, it becomes obvious that Form 8938, which popularly known as a “Son of FBAR”, far excels its father-FBAR in enhancing the IRS capacity to gather additional taxpayer data, use this data for deeper analysis of the taxpayer non-compliance, and imposing civil and criminal penalties on non-compliant taxpayers.

B. Form 8938 Penalties

Form 8938 has a severe penalty system.

1. Failure-to-File Penalty

If the taxpayer is required to file Form 8938, but fails to file a complete and correct Form 8938 by the due date (including extensions), he may be subject to a penalty of $10,000.

If the IRS discovers non-compliance and mails the corresponding notice to the taxpayer, but the taxpayer still does not file Form 8938 within 90 days after the mailing of the notice, additional penalties of $10,000 may be imposed for each 30-day period (or part of a period) of non-compliance after the expiration of the 90-day period. This additional penalty is currently capped at $50,000.

What about the situations where the taxpayer believes that the assets in question are below the threshold amount but the IRS asks the information about the assets in any case? In this case, if the taxpayer fails to respond to the IRS inquiry, the IRS has the power to presume that the taxpayer owns specified foreign financial assets with a value of more than the reporting threshold (even if it is not so in reality). Hence, the IRS can impose failure to file penalties if Form 8938 is not filed.

Common to other forms, From 8938 instructions provide for the reasonable cause exception. However, to avoid the penalties, the taxpayer must affirmatively show the facts that support a reasonable cause claim. The IRS does not consider the potential imposition of civil and criminal penalties by a foreign jurisdiction as a reasonable cause.

Keep in mind that the married taxpayers who file a joint income tax return have a joint and several liability for all IRS penalties.

2. Accuracy-Related Penalty

While Form 8938 is a purely reporting requirement, it contains a provision related to enhancing the accuracy-related penalties. If the taxpayer underpays his tax as a result of a transaction involving an undisclosed specified foreign financial asset, the IRS may impose a penalty of 40% of the underpayment.

For example, if the taxpayer does not report a foreign pension on Form 8938 and he receives a taxable distribution from the pension plan that he did not report on his income tax return, the taxpayer will be subject to the 40% penalty on the underpayment.

The same would be true with respect to any specified foreign financial asset, including ownership of shares in a foreign corporation or an interest in a foreign partnership.

3. Civil Fraud Penalty

If the taxpayer commits civil fraud which results in non-payment of penalties and involves Form 8938, the taxpayer will be subject to the civil fraud penalty of 75% of the underpayment due to fraud.

4. Criminal Penalties

In addition to civil penalties, the IRS may initiate a criminal prosecution of (and impose criminal penalties on) the taxpayers who fail to file Form 8938, fail to report an asset on Form 8938 or have an underpayment of tax.

C. Form 8938 Effect on the Statute of Limitations

Similar to other FATCA provisions (with respect to Forms 5471, 8621, 8865, et cetera), the IRS greatly extended the statute of limitations for the purposes of Form 8938. Unlike the other forms, however, Form 8938 contains a singular provision without a precedent.

The IRS sets forth this general rule in its instructions: the failure to file Form 8938 or the failure to report a required specified foreign financial asset keeps the statute of limitations open for all or a portion of the taxpayer’s income tax return. Once the correct Form 8938 is filed, the statute of limitations is subject to the common three-year rule (i.e. the IRS has three years to audit the taxpayer’s tax return and assess additional tax and penalties), subject to the aforementioned singular provision.

This provision states that, if the taxpayer does not include in his gross income an amount relating to one or more specified foreign financial assets and this amount is more than $5,000, then the statute of limitations is extend to six years after the taxpayer files a complete tax return that contains Form 8938.

Furthermore, for the purpose of the six-year extended statute of limitations provision, “specified foreign financial assets” include any such asset regardless of: (i) the reporting threshold that applies to the taxpayer, or (ii) whether this asset is excepted from reporting because it was reported on certain other forms (such as Form 5471, 8621, 8865, et cetera).

These provisions constitute an incredible increase in the IRS power to extend the statute of limitations and assess additional tax and penalties on the taxpayers.

Contact Sherayzen Law Office For Legal Help With Form 8938

Given the severe penalties that accompany Form 8938, it is very important that you properly comply with the Form’s requirements. Therefore, if you need to file Form 8938, contact Sherayzen Law Office for legal help. Our experienced international tax compliance firm will guide you through the complex web of the U.S. international tax reporting requirements and assist you in bringing your tax affairs in full compliance with the U.S. tax system.