§318 Upstream Trust Attribution | US Foreign Trust Tax Lawyer & Attorney

In a previous article, I discussed the Internal Revenue Code (“IRC”) §318 downstream trust attribution rules. Today, I would like to focus on the §318 upstream trust attribution rules.

§318 Upstream Trust Attribution: Downstream vs. Upstream

There are two types of §318 trust attribution: downstream and upstream. In a previous article, I already covered the downstream attribution rules which attribute the ownership of corporate stocks owned by a trust to its beneficiaries. The upstream attribution rules are exactly the opposite: they attribute the ownership of corporate stocks owned by beneficiaries to the trust. This article focuses just on the upstream attribution.

§318 Upstream Trust Attribution: Main Rule

Under §318(a)(3)(B)(i), all corporate shares owned directly or indirectly by a beneficiary of a trust are considered owned by the trust, unless the beneficiary’s interest is a remote contingent interest. Notice that the proportionality rule does not apply to upstream trust attribution under §318.

For example: if trust T owns 25 shares of X, a C-corporation, and A owns another 25 shares of X, as long as A has a beneficiary interest in T which is not a remote contingent interest, then T will constructively own all of A’s shares of X – i.e. T will own 50 shares of X.

§318 Upstream Trust Attribution: Contingent Interest

If a beneficiary’s interest in a trust is both, remote and contingent, then there is no attribution of stock ownership from the beneficiary to the trust. Hence, the key issue with respect to upstream trust attribution is classification of a beneficiary’s interest in the trust – is it a remote contingent interest or not? Let’s first define what a contingent interest is and then discuss when such an interest is considered remote.

A contingent interest is defined as interest that is not vested. This means that the beneficiary has no present right to trust property and has no present interest in a property with respect to future enjoyment of the trust property. In other words, this interest can only be activated by an occurrence of an intervening event.

§318 Upstream Trust Attribution: Remote Contingent Interest

A contingent interest is remote if “under the maximum exercise of discretion by the trustee in favor of such beneficiary, the value of such interest, computed actuarially, is 5 percent or less of the value of the trust property.” §318(a)(3)(B)(i).

Let’s use an example to demonstrate how this rule works. The fact scenario is as follows: trust T owns 40 shares in X, a C-corporation; A, an individual beneficiary, has a contingent (not vested) remainder in the trust which has a value computed actuarially equal to 3% of the value of the trust property; A also owns the remaining 60 shares of X (X issued a total of 100 shares).

In this situation, A’s beneficiary’s interest is contingent because it is not vested and it is remote because its value is less than 5% of the value of the trust property. Hence, no shares of X are attributed from A to T, because A has a remote contingent interest.

It should be noted that T’s shares in X are still attributed to A under the §318 downstream attribution rules; hence, A would constructively own 1.2 shares of X.

§318 Upstream Trust Attribution: Special Situations

I wish to conclude this article with a discussion of two special situations.

First, if beneficiaries are entitled to trust corpus, this is a vested interest. This is case even if the life tenant in the trust’s property has the right to exercise power of appointment in favor of others. Of course, if such right is actually exercised in favor of others, then the beneficiary will lose its vested interest in the trust.

Second, if a beneficiary interest is conditioned upon surviving a life interest, it is considered a contingent beneficiary interest. For example, in Rev. Rul. 76-213, the IRS stated that a beneficiary had a contingent interest, because his remainder interest in the trust would terminate if the beneficiary predeceased the life tenant.

§318 Upstream Trust Attribution: Grantor Trusts and Employee Trusts

While it is beyond the scope of this article to describe them in detail, there are special rules that apply to the attribution of stock from grantor trusts and employee trusts. I will discuss these rules in more detail in future articles.

Contact Sherayzen Law Office for Professional Help With US International Tax Law

The complexity and importance of US international tax law (in which §318 constructive ownership rules play an important role) makes it extremely risky for US taxpayers to operate without assistance from an experienced international tax lawyer.

Sherayzen Law Office is a highly experienced international tax law firm which specializes in US international tax compliance and offshore voluntary disclosures. We have helped hundreds of US taxpayers to successfully resolve their US international tax compliance issues, and We Can Help You!

Contact Us Today to Schedule Your Confidential Consultation!

Boston Foreign Trust Lawyer | International Tax Attorney

Bostonians who are beneficiaries or owners of a foreign trust face a large number of very complex US tax requirements. Failure to properly identify and comply with these requirements may result in imposition of severe tax penalties. For this reason, these Bostonians need to secure the help of a Boston Foreign Trust Lawyer in order to assure timely and correct compliance with all of the US tax requirements associated with foreign trusts. How does one choose the right Boston Foreign Trust Lawyer? Who is considered to be a Boston Foreign Trust Lawyer? Answering these two questions is the purpose of this article.

Boston Foreign Trust Lawyer Definition: Legal Foreign Trust Services Provided in Boston, Massachusetts

In order to answer a question about who is considered to be a Boston Foreign Trust Lawyer, it is important to first explore the legal origin of the foreign trust laws for which the compliance is required. Since Form 3520, Form 3520-A, Form 8938 and all other related forms are administered by the US Department of Treasury, it becomes clear that Bostonian foreign trust owners and foreign trust beneficiaries are dealing with federal law, not just the local state or city laws.

This means that any international tax lawyer who is licensed to practice in any state of the United States can offer his foreign trust tax services in Massachusetts – i.e. the physical presence in Boston, Massachusetts, is not necessary.

This conclusion clarifies the definition of a Boston Foreign Trust Lawyer. First, the definition includes all of the international tax lawyers who reside in Boston. Second, the definition extends to all US international tax lawyers who offer their tax services with respect to foreign trust compliance who reside outside of Boston or even the State of Massachusetts. This means that your lawyer can physically reside in Minneapolis and still be considered as a Boston Foreign Trust Lawyer.

Boston Foreign Trust Lawyer Must Be an International Tax Lawyer

Throughout the last paragraph, I repeatedly referred to “international tax lawyers”. This is not accidental; on the contrary, it was intentional – a Boston Foreign Trust Lawyer should be an international tax lawyer whose main area of practice is US international tax law and who deeply knows various international tax provisions related to US foreign trust tax compliance.

Where does such a strict competence criteria come from? As it was explained above, US foreign trust compliance is part of a much larger US federal law. However, this is a very specific part of US federal law – US international tax law. We can see now why only an international tax lawyer can be a Boston Foreign Trust Lawyer.

Sherayzen Law Office Can Be Your Boston Foreign Trust Lawyer

Sherayzen Law Office is an international tax law firm that specializes US international tax compliance, including foreign trusts. Its legal team, headed by international tax lawyer Eugene Sherayzen, Esq., has extensive experience concerning all major relevant areas of US international tax law relevant to foreign trust compliance including Form 3520, Form 3520-A, foreign business ownership by a foreign trust, FBAR and FATCA compliance and other relevant requirements.

This is why, if you are looking for a Boston Foreign Trust Lawyer, contact Sherayzen Law Office today to schedule Your Confidential Consultation!

New York Foreign Trust Tax Lawyer | FATCA IRS Attorney

The residents of New York who are beneficiaries or owners of a foreign trust are likely to find themselves facing a difficult legal situation and various US tax complications. Failure to properly identify and comply with their tax obligations may result in imposition of severe penalties. This is why they need the help of a New York Foreign Trust Tax Lawyer to safely navigate through the numerous tax minefields of US international tax law. In this brief essay, I will explain who is considered to be a New York Foreign Trust Tax Lawyer and why Sherayzen Law Office should be your preferred choice.

New York Foreign Trust Tax Lawyer Definition: Legal Foreign Trust Services Provided in New York

While New York is one of the few states where there is some state component with respect to foreign trusts (though, more indirect), the main focus is still on the federal law and federal tax forms. This means that any international tax lawyer who is licensed to practice in any state of the United states can offer his foreign trust tax services in New York – i.e. the physical presence in New York is not necessary.

Armed with this understanding, we can now turn to the definition of a New York Foreign Trust Tax Lawyer. It obviously includes all of the New York international tax lawyers who reside in New York. However, the definition of a New York Foreign Trust Tax Lawyer is not limited to New York residents; rather, this concept also includes all international tax lawyers who offer their tax services with respect to foreign trust compliance in New York. This means that your lawyer can residence in Minneapolis and still be considered as a New York Foreign Trust Tax Lawyer.

New York Foreign Trust Tax Lawyer Must Be an International Tax Lawyer

In the previous paragraph, I stated “all international tax lawyers who offer their tax services”. This focus on international tax lawyers is not an accident, because the essential requirement for a New York Foreign Trust Tax Lawyer is that he should be an international tax lawyer.

This means that a foreign trust lawyer cannot be just any tax lawyer, but a lawyer who devotes the majority of his practice to US international tax law, who is highly knowledgeable of the international tax law issues directly and indirectly relevant to foreign trust compliance, and who has experience in this area. It is this competence criteria that should govern your selection of a New York Foreign Trust Tax Lawyer.

Sherayzen Law Office Can Be Your New York Foreign Trust Tax Lawyer

Sherayzen Law Office should undoubtedly be your best choice for a New York Foreign Trust Tax Lawyer. Sherayzen Law Office is an international tax law firm which developed a deep expertise in the issues of US international tax compliance, including foreign trusts. Its legal team, headed by Attorney Eugene Sherayzen, has extensive experience concerning all major relevant areas of US international tax law relevant to foreign trust compliance including Form 3520, Form 3520-A, foreign business ownership within a foreign trust, FBAR and FATCA compliance and other relevant requirements. We have helped numerous taxpayers with their foreign trust issues, including situations involving multiple trusts and multiple jurisdictions. We have also helped our clients defend against IRS attempts to make our clients owners of a foreign trusts where, in reality, they were simply beneficiaries.

This is why, if you are looking for a New York Foreign Trust Tax Lawyer, you should contact Sherayzen Law Office, Ltd. today to schedule Your Confidential Consultation!

Madison Foreign Trust Lawyer | International Tax Attorney

If you are a US beneficiary or a US owner of a foreign trust and you reside in Madison, Wisconsin, you need the help of an experienced Madison Foreign Trust Lawyer to properly comply with complex US tax reporting requirements regarding foreign trusts and avoid paying very high penalties. Who should you consider retaining as your Madison Foreign Trust Lawyer?

Definition of a Madison Foreign Trust Lawyer: Legal Services Provided in Madison, Wisconsin

First, you want to consider only international tax law firms that offer their services related to foreign trust compliance in Madison, Wisconsin. Note the important language here: “offer their services … in Madison”. Offering services in Madison is not equivalent to residing in Madison.

This means that the definition of a Madison Foreign Trust Lawyer includes not only international tax lawyers who live in Madison, but also lawyers who reside elsewhere (for example, Minneapolis) and offer their services in Madison. It should be, however, a lawyer is licensed to practice law in any of the 50 states or District of Columbia.

Why is the residence not important when it comes to defining who is a Madison Foreign Trust Lawyer? The answer is rather simple – foreign trust law is mainly federal and the high-penalty tax forms are also federal. This means that, unlike situation which concern local law, the input of Madison or even Wisconsin law is very small and, in most situations, none. Since the focus is on the federal tax compliance, the physical residence of your foreign trust lawyer does not matter.

Madison Foreign Trust Lawyer Must Be an Experienced International Tax Lawyer

Now that you know that you can choose your Madison Foreign Trust Lawyer from a larger pool of lawyers and without any geographical limitations, we can turn to the second retainer criteria – a Madison Foreign Trust Lawyer should be an international tax lawyer who is experienced in the are of foreign trust compliance laws and regulations.

A foreign trust lawyer should be aware of all areas of US international tax law that are directly and indirectly relevant to foreign trusts in order to properly help his clients. He should know the foreign trust classification, foreign trust compliance (including Form 3520), foreign trust income reporting, FATCA issues, the rules concerning indirect ownership of foreign assets through a foreign trust and many other relevant issues. Thus, the competence of your lawyer in the area of foreign trusts should be the most important criteria in your selection of an Madison Foreign Trust Lawyer.

Sherayzen Law Office Should Be Retained as Your Madison Foreign Trust Lawyer

Under this criteria, Sherayzen Law Office should be a top choice for your Madison Foreign Trust Lawyer. Led by its founder and international tax attorney Eugene Sherayzen, this firm is one of the leading experts in the field of foreign trust US tax compliance and planning. Not only does it boast a higher devoted and experienced legal team with extensive knowledge of all major relevant areas of US international tax law (including Form 3520, Form 3520-A, PFIC compliance, FATCA, FBAR and other relevant requirements), but it has also helped it clients with foreign trust voluntary disclosures in cases where its clients did not timely and/or correctly complied with the numerous US tax reporting requirements. Sherayzen Law Office has also defended its clients against the IRS attempts to make its clients owners of a foreign trusts where, in reality, they were simply beneficiaries.

This is why, if you are looking for an Madison Foreign Trust Lawyer, you should contact Sherayzen Law Office today to schedule Your Confidential Consultation!

Austin Foreign Trust Lawyer | FATCA IRS Attorney

If you reside in Austin, Texas, and you are a US beneficiary or a US owner of a foreign trust, you need the help of an experienced Austin Foreign Trust Lawyer as soon as possible due to very high penalties associated with US tax noncompliance regarding foreign trust reporting. However, a question arises: who is considered to an Austin Foreign Trust Lawyer?

Austin Foreign Trust Lawyer Definition: Legal Services Provided in Austin, Texas

It is first important to understand that the definition of an Austin Foreign Trust Lawyer is not limited by the physical presence of the lawyer in Austin, Texas. On the contrary, any international tax lawyer can be an Austin Foreign Trust Lawyer as long as he offers legal and tax services related to foreign trusts in Austin, Texas. This means that your foreign trust lawyer can reside in Minneapolis and still be considered as Austin Foreign Trust Lawyer even if he has never been to Austin.

Why? The answer is rather simple – the federal reporting requirements concerning foreign trusts are prescribed by federal law which can be practiced by any attorney who is licensed in any state of the United States. Since the focus is on the federal tax compliance, the physical residence of your foreign trust lawyer does not matter.

Austin Foreign Trust Lawyer Must Be an International Tax Lawyer

What really matters is the experience and knowledge of your Foreign Trust Lawyer with respect to foreign trusts and US international tax law that concerns foreign trust. Furthermore, a foreign trust lawyer should be aware of all areas of US international tax law that are indirectly related to foreign trusts in order to provide a proper advice to his clients.  Thus, the competence of your lawyer should be the most important criteria in your selection of an Austin Foreign Trust Lawyer.

Sherayzen Law Office Can Be Your Austin Foreign Trust Lawyer

If you are looking for a competent Austin Foreign Trust Lawyer, Sherayzen Law Office should be your choice. Sherayzen Law Office occupies a leading position in the world on this subject with extensive knowledge and experience concerning all major relevant areas of US international tax law including Form 3520, Form 3520-A, PFIC compliance, FATCA, FBAR and other relevant requirements. We have helped numerous taxpayers with their foreign trust issues, including situations involving multiple trusts and multiple jurisdictions. We have also helped our clients defend against IRS attempts to make our clients owners of a foreign trusts where, in reality, they were simply beneficiaries.

This is why, if you are looking for an Austin Foreign Trust Lawyer, you should contact Sherayzen Law Office today to schedule Your Confidential Consultation!