Indirect Ownership of Foreign Entities for Form 5471 Purposes

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Every now and then, I encounter foreign business structures built on the incorrect belief that only direct ownership matters for U.S. tax reporting purposes in general and Form 5471 purposes in particular. In this essay, I broadly address the question of Form 5471 reporting with respect to indirect ownership of a foreign company (I am not discussing the major issue of “constructive ownership” in this essay).

Form 5471 Reporting Requirements

In an earlier article I already discussed the purpose of Form 5471 and the general reporting requirements this form entails, but I will briefly address these issues here.

Form 5471 is used by certain categories of U.S. taxpayers to report their ownership of foreign corporations. Generally, the form is designed to address the reporting requirements of IRC (Internal Revenue Code) Sections 6038 and 6046.

Under these IRC provisions, four general categories of U.S. taxpayers must file Form 5471 together with their U.S. tax returns: (1) U.S. taxpayers considered as U.S. shareholders (generally, U.S. taxpayers who own 10% or more of a foreign corporation) (these are category 3 filers), (2) U.S. persons who are directors and/or officers of a foreign corporation in which there are U.S. shareholders which meet the requirements of Form 5471 (these are category 2 filers), (3) U.S. persons who had control of a foreign corporation for an uninterrupted period of 30 days (these are category 4 filers); and (4) U.S. shareholders who owned a stock in a foreign corporation that is considered to be a Controlled Foreign Corporation for an uninterrupted period of 30 days and who owned that stock on the last day of the year (these are category 5 filers). Note, that Category 1 was repealed by Congress in section 413(c)(26) of the American Jobs Creation Act of 2004.

What truly adds to the complexity of the application of these four categories are the specific definitions of virtually every word in the description of these four categories which may differ from category to category. For example, “US taxpayer”, “US person”, “control”, “owned” – these are some of the words that are separately defined in the IRS regulations with respect to each category above.

Therefore, for a non-attorney, it is extremely dangerous to rely on these general definitions. Rather, the determination of whether Form 5471 requirement applies to you should be made by an international tax attorney.

Ownership Has Broad Definition for Form 5471 Purposes

As mentioned above, word “owned” has a number of diverse and special meanings for Form 5471 purposes. Generally, it includes not only the direct ownership of a stock, but also indirect ownership and constructive ownership. The concepts of “indirect ownership” and “constructive ownership” are described in separate complex IRS regulations.

The upshot of this discussion is that “ownership” is defined very broadly under the IRS regulations related to Form 5471, and one should not rely on direct ownership in determining whether Form 5471 needs to be filed.

Indirect Ownership for Form 5471 Purposes: IRC Section 958

We now came to the main purpose of this article – discussion of “indirect ownership” for Form 5471 purposes. Form 5471 Instructions as well as IRS regulations generally refer to IRC Section 958 for the definition of indirect ownership.

This provision sets forth the rules for determining stock ownership, including direct, indirect and constructive ownership of a stock. For the purposes of our discussion, we concentrate on Section 958(a)(2) which describes the rules for stock ownership through foreign entities. It states as follows:

“(2) Stock ownership through foreign entities: For purposes of subparagraph (B) of paragraph (1), stock owned, directly or indirectly, by or for a foreign corporation, foreign partnership, or foreign trust or foreign estate (within the meaning of section 7701(a)(31)) shall be considered as being owned proportionately by its shareholders, partners, or beneficiaries. Stock considered to be owned by a person by reason of the application of the preceding sentence shall, for purposes of applying such sentence, be treated as actually owned by such person.”

Thus, it becomes clear that, generally, a U.S. shareholder of a foreign company is likely to be considered a shareholder of other foreign companies owned by this foreign company. For example, where foreign corporation A owns 25% of foreign corporation B, a 45% shareholder of Company A is likely to be deemed as a 11.25% owner of company B. Obviously, this is a very general example and there are various facts and circumstances that may change this simplified calculation. Again, you should retain an international tax attorney to determine your ownership of foreign companies under IRC Section 958.

Implications for Form 5471 Reporting and Tax Planning Strategies

The most obvious result of IRC Section 958 are additional Forms 5471 that need to be timely filed with the U.S. shareholder’s US tax return. It is now easy to see why I would encounter in my practice a situation where a client would comply with Form 5471 requirements for the purposes of some of his companies and fail to do so with respect to the others because either he or his accountant simply did not understand the implications of Section 958 indirect ownership rules.

Section 958 also has a major influence on a U.S. person’s tax plan. Where such person and his tax advisor ignore the relevant implications of IRC Section 958, they are engaging in a potentially disastrous course of action. Beyond the penalties associated with the failure to file Form 5471 timely (as well as other potential penalties stemming from other U.S. international tax forms that may need to be filed), the effect of the entire tax structure could be nullified and potentially expose U.S. taxpayer to additional US taxes.

Contact Sherayzen Law Office for Help With Form 5471 and Tax Planning

If you or your business own companies overseas, contact Sherayzen Law Office for help with U.S. tax compliance, including Form 5471, as well as creating a comprehensible tax plan that would allow you to avoid over-payment of U.S. taxes while remaining in compliance with the Internal Revenue Code.

2013 IRS Changes to Lockbox Addresses

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The Treasury Department’s Financial Management Service (FMS) and the IRS are in the process of streamlining the lockbox network. Effective December 31, 2012, the IRS will close lockbox operations located in the Atlanta (State of Georgia) and St. Louis (State of Missouri) areas. Moreover, other P.O. box address closings affect addressed in Hartford, Connecticut and Charlotte, North Carolina. These changes will affect individual taxpayers in nine states and business taxpayers in 26 states.

Effective January 1, 2013, individual and business taxpayers living or located in affected states will send payments to new lockbox sites.

P.O. Boxes Closed on December 31, 2012

The P.O. Boxes for the following lockbox sites will close effective December 31, 2012. To avoid any delays with mail, check your office materials and discard anything referring to these P.O. boxes. If you are an accountant or a tax attorney, make sure that your office discards of the following addresses.

St. Louis, MO – closing 12/31/12
P. O. Box 970007
P.O. Box 970009
P. O. Box 970010
P. O. Box 970019
P. O. Box 970026

Atlanta, GA – closing 12/31/12
P. O. Box 105877
P. O. Box 105659
P. O. Box 105703
P. O. Box 105094
P. O. Box 105092
P. O. Box 105279
P. O Box 105421
P. O. Box 105401
P. O. Box 105900
P. O. Box 105093
P. O. Box 105073
P. O Box 105571

Charlotte, NC- – closing 12/31/12
P. O. Box 1210
P. O. Box 1212
P. O. Box 1213
P. O. Box 1269
P. O. Box 1236
P. O. Box 70503
P. O. Box 660002
P. O. Box 660169

Hartford, CT – – closing 12/31/12
P. O. Box 37001
P. O. Box 37002

2013 New Address for Individual Taxpayers Living in Certain States

Starting January 1, 2013, if you or your individual client live in Alabama, Georgia, Kentucky, North Carolina, South Carolina, Tennessee, Missouri, New Jersey, and Virginia, then the following address changes will affect you:

Forms 1040, 1040A, 1040EZ should be mailed to:

P. O. Box 1000
Louisville, KY
40293-1000

Forms 1040ES should be mailed to:

P. O. Box 1100
Louisville, KY
40293-1100

Forms 4868 should be mailed to:

P. O. Box 1300
Louisville, KY
40293-1300

2013 New Address for Business Taxpayers Living in Certain States

Starting January 1, 2013, if your business or your business clients are located in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Idaho, Iowa, Kansas, Louisiana, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming then the following address changes will affect your business and your business clients:

Forms 940 should be mailed to:

P. O. Box 37940
Hartford, CT 06176-7940

Forms 941 should be mailed to:

P. O Box 37941
Hartford, CT 06176-7941

Forms 943 should be mailed to:

P. O. Box 37943
Hartford, CT 06176-7943

Forms 944 should be mailed to:

P. O. Box 37944
Hartford, CT 06176-7944

Forms 945 should be mailed to:

P. O. Box 37945
Hartford,CT 06176-7945

Automatic 5471 Penalties Submitted With Form 1120

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In an earlier article, I discussed various penalties generally associated with late or inaccurate filing of Form 5471 (this form is required under IRC Section 6038(a) to provide information with respect to certain US shareholders of foreign corporations). These penalties are generally subject to “reasonable cause” exception and are not imposed in every case.

Since 2009, however, this is not the case. Starting January 1, 2009, the IRS automatically assesses a $10,000 penalty (under IRC Section 6038(b)(1)) for each late filed Form 5471 if the related Form 1120 is not filed timely. Note, the automatic assessment of penalty results in this case even if there is no tax due.

Furthermore, IRC Section 6038(c) provides for a 10% reduction of the foreign taxes available for credit under IRC Sections 901, 902 and 960. Per IRC Section 6038(c)(3), this reduction to the foreign taxes can be applied in addition to the monetary penalty. It is important to realize that the automatic assessment of the $10,000 penalty does not preclude a later assessment under IRC Section 6038(c).

In addition, the IRS will also assess the penalty for the failure to file income tax returns (i.e. Form 1120) under IRC Section 6651(a)(1). The penalty is 5% of the tax required to be shown on the income tax return for each month (or fraction thereof) during which such failure continues. The amount of the penalty shall not exceed 25%. No penalty is applicable under IRC Section 6651(a)(1) if no underpayment of tax is shown on the return.

There is an interesting procedural twist with respect to automatic assessment of penalties – the IRS does not want you to include the reasonable cause statement together with Form 5471 filed late together with Form 1120. Rather, the IRS Service Centers will first send the taxpayer a Notice to Respond and the taxpayer can respond with a reasonable cause statement.

Whether or not to follow this procedural suggestion will depend on the individual case and such decision should be made by your tax attorney.

Of course, the situation is radically different if Form 1120 has already been timely filed. In this case, the taxpayer must file Form 1120X with the late Form 5471 and he should include his reasonable cause statement.

Contact Sherayzen Law Office For Help with Form 5471 Penalties

If you have not filed your Form 5471 yet or if you are facing a penalty for the already filed Form 5471, contact Sherayzen Law Office for legal help. Our experienced international tax firm will thoroughly analyze your case, present options for proceeding forward, prepare all of the required documentation and tax forms, and rigorously represent your interests during your negotiations with the IRS.

Additional Medicare Tax: Introduction

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Starting January 1, 2013, Additional Hospital Insurance Tax (Additional Medicare Tax) will come to life as a result of section 9015 of the Patient Protection and Affordable Care Act (PPACA) (as amended).

In essence, PPACA increased the existing Medicare tax for high-income earners. Currently, the Medicare tax rate is a flat 2.9% tax on all wage and self-employment income. Starting January 1, 2013, the flat 2.9% Medicare tax is likely to continue to apply to wages under the threshold amount (see below). However, PPACA imposes Additional Medicare Tax on wages, compensation and self-employment income above a certain threshold amount received after December 31, 2012. The tax rate is 0.9 percent.

The threshold amount depends on your filing status as indicated below:

Married filing jointly $250,000
Married filing separately $125,000
Single $200,000
Head of household (with qualifying person) $200,000
Qualifying widow(er) with dependent child $200,000

It is important to remember that Health Care and Education Reconciliation Act of 2010 further expands the Medicare tax by imposing a 3.8% Medicare tax on investment income – the so-called “unearned income Medicare contribution tax”. The details of this tax increase are discussed in another article.

Tax Year 2012 Income Tax Brackets for Individuals

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The 2012 tax season is nearing. As calendar year 2012 is drawing to its end, the time for any tax planning is getting shorter and shorter. In order to do the tax planning properly, it is essential to know what tax bracket you are likely to be in and whether you can lower this bracket.

For the year 2012, the following tax brackets apply:

Filing Single

10% $0 – $8,700
15% $8,701 – $35,350
25% $35,351 – $85,650
28% $85,651 – $178,650
33% $178,651 – $388,350
35% Over $388,350

Filing Married Filings Jointly

10% $0 – $17,400
15% $17,401 – $70,700
25% $70,701 – $142,700
28% $142,701 – $217,450
33% $217,451 – $388,350
35% Over $388,350

Filing Married Filings Separately

10% $0 – $8,700
15% $8,701 – $35,350
25% $35,351 – $71,350
28% $71,351 – $108,725
33% $108,726 – $194,175
35% $194,176 or more

Filing Head of Household

10% $0 – $12,400
15% $12,401 – $47,350
25% $47,351 – $122,300
28% $122,301 – $198,050
33% $198,051 – $388,350
35% Over $388,350