Who Must File Form 1120-F ?

Form 1120-F (“U.S. Income Tax Return of a Foreign Corporation”) is used to report the income, gains, losses, deductions, credits, and to figure the U.S. income tax liability of a foreign corporation. The form is also used to claim any refund due, to transmit Form 8833 (“Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b)”), or to calculate and pay a foreign corporation’s branch profits tax liability and tax on excess interest, if any, under Internal Revenue Code Section 884.

In this article, we will explain who is required to file Form 1120-F. This article is not intended to convey tax or legal advice. Please contact Mr. Eugene Sherayzen, an experienced tax attorney at Sherayzen Law Office, Ltd. if you have further questions.

Who Must File Form 1120-F?

In general, unless an exception exists or a special return is required, a foreign corporation must file Form 1120-F if any of the following is true:

1. A foreign corporation engaged in a trade or business in the United States, whether or not it had U.S. source income from that trade or business, and whether or not income from such trade or business is exempt from U.S. tax under a tax treaty;

2. A foreign corporation had income, gains, or losses that were treated as if they were effectively connected with the conduct of a U.S. trade or business;

3. A foreign corporation was not engaged in a trade or business in the United States, but it had US-source income and its tax liability has not been fully satisfied by the withholding of tax at source (under chapter 3 of the Internal Revenue Code);

4. Special circumstances require the foreign corporation to file Form 1120-F in certain other instances. For example, if a foreign corporation is claiming the benefit of any deductions or credits, or is making a claim for the refund of an overpayment of tax for the tax year, Form 1120F should be filed (also see below for more detailed description of come of these circumstances when Form 1120-F must be filed); or

5. Certain specific types of entities or individuals may be required to file Form 1120-F. In particular, instructions to Form 5471 state that a Mexican or Canadian branch of a U.S. mutual life insurance company is required to file Form 1120-F if the U.S. company elects to exclude the branch’s income and expenses from its own gross income. Furthermore, a receiver, assignee, or trustee in dissolution or bankruptcy must file Form 1120-F, if that person has or holds title to virtually all of a foreign corporation’s property or business. Note that Form 1120-F is due whether or not the property or business is being operated. Finally, an agent of a foreign corporation in the United States should file Form 1120-F if the foreign corporation has no office or place of business in the United States when the return is due.

Form 1120-F Required for Claiming Treaty or Code Exemption

As mentioned above, even if a foreign corporation does not have any gross income for the tax year because it is claiming a treaty or IRC exemption, it still must demonstrate that the income was properly exempted by filing Form 1120-F to provide the IRS with the identifying information and attaching a statement to Form 1120-F noting the nature and amount of the exclusions claimed. If there was tax withholding at source in such a case, the foreign corporation must complete the Computation of Tax Due or Overpayment section of Form 1120-F in order to claim a refund on the amounts withheld.

Entities that Elect to be Taxed as Foreign Corporations

In general, Form 1120-F must be filed by a foreign eligible entity that elects to be classified as a corporation, and it must attach a copy of Form 8832 (“Entity Classification Election”) with Form 1120-F.

Exceptions to Filing Form 1120-F

Various exceptions may apply for foreign corporations that would otherwise be required to file the form. The most prominent examples of these exceptions to filing Form 1120-F are the following: (i) if the foreign corporation did not engage in a U.S. trade or business during the tax year and its full U.S. tax was withheld at source; (ii) if the foreign corporation’s only U.S. source income is exempt from U.S. taxation under Internal Revenue Code Section 881(c) or (d); or (iii) if the foreign corporation is a beneficiary of an estate or trust engaged in a U.S. trade or business, but it would itself otherwise not be required to file.

Contact Sherayzen Law Office for Help With U.S. Compliance For Foreign Corporations

U.S. tax compliance for foreign corporations can involve many complexities and it is easy to ran afoul of the numerous U.S. tax requirements. This is why, if you have a foreign corporation, you are well-advised to seek help from the experienced international tax professionals of Sherayzen Law Office. Contact Us to Schedule Your Confidential Consultation Now!