International Tax Lawyers Des Moines | Special Treatment of Foreign Owners of a US Corporation

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There’s also a belief that a Foreign Client who owns a US Corporation is in the same position as a US Client who owns a Domestic Corporation, which is also false.

I think everyone probably knows here that an S Corporation cannot be owned by a foreign person.

There’s also such an interesting form called a Form 5472, just to give you an example, which requires the Domestic Corporation to report certain transactions between the corporation and the 25% or more foreign owner(s) of that corporation and there’s a $10,000 penalty associated with the form for not filing it and which can go up to $50,000.

International Tax Attorney New York | Why an International Tax Lawyer is Superior to An Accountant

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Let’s say that the Business Lawyer understands that he shouldn’t be advising on International Tax Law issues himself; let’s say that he understands that he shouldn’t be dabbling in International Tax Law. Let’s say that he understands this: the difference between US Domestic Law and US International Tax Law.

Then the next question is: Did he choose the right advisor? Now we’re getting into the fourth: the tax professionals equality trap which is basically an assumption that ‘all US Tax Practitioners are equally competent to advise on US International Tax Laws’.

Remember that pie that I described about the difference between them? Let’s put it this way: In the US, the great majority, more than 95% of US Tax Accountants never get out of the baked crust. They don’t know about the thick huge level of cream on top of that pie which is called US International Tax Law; they don’t know about it. So, one of the biggest problems that I’ve seen is when Business Lawyers bring in US Accountants into advising on something like this.

I can tell you that 90% of my cases, of my Offshore Voluntary Disclosure cases come after an Accountant already advised on that case; 90%, that’s a horrific percentage. The clients were trying to do what they were thinking they should be doing.

But it’s that the Accounting Profession operates in a different way; the Accounting Profession operates in a different model. You have to really get to the top of the top of the Accounting Profession before you start getting Accountants who know about this, about US International Tax Law. If you think about it, how do Accountants make their money? By adopting an individualized customized approach to tax returns? No; by turning out as many tax returns as possible within the given time, because they have to standardize, otherwise they won’t get out as many tax returns and their profits will go down.

Lawyers operate in a different way. We charge hourly; so, for us customization, specialization, individualization of the case- that’s very important. We look at each individual and each company and look at that specific set of circumstances and we analyze that set of circumstances. We think about what could happen to that client; what are the requirements that may apply to him? How can we avoid the penalties? How can we structure that particular transaction better?

I can tell you, unfortunately that’s not the case for most of the Accountants, even if they think they are doing that.

International Tax Lawyers Grand Rapids | Why Accountants Should Not Advise on International Tax Law

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The first example consists of a case I was not really involved in but I was brought in to consult on that case. But I really like it as an illustration of what happens when Business Lawyers fall into the Tax Professionals Equality Trap.

In that case there was a Chinese individual who came to a Business Lawyer, a Business slash Immigration Lawyer and they were starting a business in the United States and as a way for the Chinese individual to obtain his green card eventually. What happened there was they brought in an Accountant; an Accountant who the Lawyer knew for about twenty years. So, the Tax Accountant looks at this and says, “Okay, fine.” The Accountant knew about the FBARs at least. FBARs are the report of each Foreign Bank and Financial Account.

The Accountant said, “Well, he has to file the FBARs. But for these Companies, there’s nothing in particular; these are just Foreign Companies, what do we really care? For US Tax Purposes all we really need to disclose… ‘did you hear about the form 8938?’ is that they own and the company and that’s it.”

The reason why a lot more Accountants know about Form 8938 right now is because it is part of the Tax Return first of all, but second, that there has been much more awareness about this form and the Accountants have received some training on it.

So, I was invited to… something triggered my invitation, let’s put it this way, into that situation. By this time, they had already filed the Tax Returns for two years and this guy owned one company, which owned ten other companies, which owned God knows how many subsidiaries. The amount of Forms 5471….. and not Forms 8938 because 8938 only applies where Forms 5471 do not have to be filed; so the Accountant was wrong on that issue as well. On top of that there are all kinds of complex rules. A lot of these were Controlled Foreign Corporations and the Subpart F rules kicked in and it was absolutely a huge mess.

What went wrong here? What went wrong obviously was that a wrong Tax Advisor was brought in this case.