Does Your Client Have A Foreign Trust? Is The Form 3520 Nightmare Happening To Your Tax Clients?

Gary Carter

(NOTE: This important article is reposted in case anyone missed it over the July 4th weekend. Is this happening to your tax clients?)

It was early on a Monday morning, and I dragged myself in after a long weekend of reg. buzzing and Code section perusing. I was not looking forward to the day. I played a message on my answering machine that made me want to return home and crawl back into bed. It was left in the middle of the previous night by a crazed and panicked client living in Norway. She had just gotten a CP15 Notice from the IRS that said she had been charged a penalty in the amount of $10,000 under Section 6677 of the Internal Revenue Code (IRC) for failure to file Form 3520-A, under the requirements of IRC Section 6048(b).

The client was the owner of a foreign trust, and I knew we had properly filed Form 3520, “Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts.” Foreign trusts with U.S. owners have the responsibility to file Form 3520-A, “Annual Information Return of Foreign Trust With a U.S. Owner,” which few of them do. So since IRC Section 6048(b) requires the owner of a foreign trust to ensure that this happens, we attached “substitute” Form 3520-A to Form 3520, in accordance with the instructions to Form 3520. Form 3520 and the attached substitute Form 3520-A were filed in August, but we had filed an automatic extension for the client’s tax return, which, according to the instructions to Form 3520, also extended the filing date for Form 3520.

It’s Cool

I called the client back with the confidence of a guy who thought he knew what he was talking about. I consoled and cajoled her with the promise that this was simply a terrible mistake on the part of the IRS. We had filed the Form 3520 with substitute Form 3520-A attached, and had filed Form 4868 to give us till October 15 to file these forms. I could sense her blood pressure returning to near normal levels. She asked if she should call the IRS, just to make sure. I said please don’t – I would call and get it straightened out.

The day got away from me and I didn’t get the call made. I figured since early morning was the best time to get through to the IRS, I would call early Tuesday. I went home that night and got lost in a great article on PFICs I had been meaning to read.

It’s Not Cool

Tuesday morning I felt like Bill Murray’s character in “Groundhog Day” – it was Monday morning all over again. I was greeted with a frantic phone message and two or three nasty e-mails. She had called the IRS.

The lady at the IRS assured her that the notice was not a mistake, and that she had better pay up. The IRS lady referred her to the instructions to Form 3520-A, which clearly state that Form 3520-A must be filed by the 15th day of the 3rd month after the end of the trust’s tax year, and that an extension of time to file Form 3520-A may be granted by filing Form 7004, “Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns.” Had she or her preparer filed Form 7004, the IRS lady asked? If not, the IRS lady explained, her Form 3520-A was late and the $10,000 penalty indeed applied.

Nooooo!!! Why hadn’t I told her about Form 7004?, she screamed into the phone. She called me a few things I won’t repeat, and my own blood pressure now had the “Check Engine” light flashing. Had I been wrong about this? Was I supposed to file Form 7004 by March 15? Was I really just a hack with a lot of letters after my name? Maybe I should just sell the practice and find a job delivering pizza. “Wait a minute,” I thought. “Get a hold of yourself. This can’t possibly be right.”

So Who’s Right?

IRC Section 6048(b) requires a U.S. person who is treated as owning a foreign trust under the grantor trust rules of Sections 671 through 679 to report information with respect to the trust (file Form 3520). Such person must also “ensure that the such trust makes a return for such year which sets forth a full and complete accounting of all trust activities . . .” (files Form 3520-A). (Sec. 6048(b)(1)(A).)

The Code section does not explain how an owner is to “ensure” that Form 3520-A is filed, and regulations under Section 6048 are non-existent. However, the instructions to Form 3520 instruct a U.S. owner of a foreign trust who has not received a Foreign Grantor Trust Owner Statement from the foreign trust to complete a substitute Form 3520-A to the best of his/her ability and attach it to his/her Form 3520. (See also CCA 201150029 – “Information With Respect to Certain Foreign Trusts.”)

If the trust owner fails to file Form 3520 when required by IRC Section 6048(b), or the foreign trust that is treated as owned by the U.S. person fails to file Form 3520-A and that person does not file a substitute Form 3520-A, the U.S. person will owe a penalty under IRC Section 6677(b) equal to the greater of $10,000 or 5 percent of the value of the foreign trust’s assets that are treated as owned by the U.S. person at the end of the year. (IRC Section 6677(c)(2)).

The critical point of contention here is: When is the stupid substitute Form 3520-A due, and how can the due date be extended? After all, this is not the Form 3520-A required of the foreign trust. This is a “substitute” form, which is filed as an attachment to the trust owner’s Form 3520.

The due date to file Form 3520 is the 15th day of the 4th month following the end of the U.S. person’s tax year. The instructions to Form 3520 explain that if the U.S. person is granted an extension of time to file Form 1040, the due date for filing Form 3520 is the 15th day of the 10th month following the end of the U.S. person’s tax year. (Also see IRM In other words, Form 4868 extends the time to file Form 3520 along with Form 1040.

It seems logical that the due date for an attachment to Form 3520 would be the same as Form 3520 itself, and the Internal Revenue Manual happens to agree. Buried deep within the IRM is this:

If the foreign trust does not file Form 3520-A, but the U.S. owner completes and attaches a substitute Form 3520-A for the foreign trust to the U.S. owner’s timely filed Form 3520 in accordance with the instructions for Form 3520, the U.S. owner will not be subject to the penalty for failure to file Form 3520-A.



I called the IRS, made my point, and was told to submit a formal protest letter. The letter was submitted. I called again after 30 days, was told the protest letter was lost and to submit it again. Still we wait for a response from the IRS after nearly four months after the second protest submission.

In the meantime, four additional clients have received the exact penalty letter under the exact same circumstance. We are in the process of protesting all of these penalties, but have yet to resolve any of them.

Devious Means? 

In such a high stakes game created by outrageous penalties imposed by Congress for a late filed information return, it seems that either Congress or the IRS would make it perfectly clear, to both IRS personnel and to taxpayers, when a “substitute” Form 3520-A is due. However, neither the due date for this form, nor the means of extending the due date, is mentioned in the Form 3520 instructions. If our small client base has received five of these penalty notices, imagine how many thousands of notices have been mailed. Imagine how many taxpayers have paid the bogus penalty just to get the IRS off their backs.

Hey, wait a minute. Isn’t that what scammers do – send out bogus tax notices to get people to send them money? I can imagine the conversation:

Some High Ranking IRS Official #1: “I’ve got a great idea. We send out $10,000 penalty notices to everyone who filed a Form 3520 with substitute Form 3520-A attached and tell them they filed late.”

Some High Ranking IRS Official #2: “But that’s not really honest is it?”

Some High Ranking IRS Official #1: “Of course not. But think about all the revenue we can raise with such little effort. It’s the perfect scam.”

Some High Ranking IRS Official #2: “But aren’t we supposed to be warning taxpayers to beware of scammers?”

Some High Ranking IRS Official #1: “Well sure, beware of scammers pretending to be the IRS, but we ARE the IRS. It’s perfect!”

Just kidding, of course. That’s not our IRS. Or is it . . .?

Have a question? Contact Gary Carter.



Gary Carter, President of GW Carter, Ltd., was a tax professor at the University of Minnesota’s Carlson School of Management and the Associate Director of the Carlson School’s Master of Business Taxation Program until June, 2010. He received a B.A. in accounting from Eastern Washington University in 1977, a Master of Taxation degree from the University of Denver in 1980, and a Ph.D. in taxation from the University of Texas at Austin in 1985. Early in his career he worked as a revenue agent for the State of Alaska, and later in public accounting for both a regional CPA firm and a Big Four Firm. His current practice was started in 1999. He has conducted tax seminars on various tax topics and has published several books on taxation.

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1 comment on “Does Your Client Have A Foreign Trust? Is The Form 3520 Nightmare Happening To Your Tax Clients?”

  • It gets worse. We have submitted 3520-A clearly marked “Protective Submission: This is not a Foreign Trust” and explained why not. In one case one of two trustees of a testamentary trust had renounced citizenship, but the trustees had no discretion, all matters listed in the law and regulations to make a trust “foreign” being fixed by the Will, including delegating investment decisions to a named broker. We attached the 3520-A to the usual 1041 and K-1. Typically, IRS refused to address the question of whether the trust is (at least until a replacement U.S. citizen co-trustee can replace the renunciant one, a complicated procedure involving court approval in N.Y.S.) indeed foreign. And we have had arguments in other non-grantor cases whether there is indeed a “U.S. owner”: the IRS seems not to appreciate that the child born abroad to an “accidental American” is likely not a U.S. citizen but there is no way to prove that aside from applying for a passport and being refused: not a good idea if one can’t find positive proof that the (single) mother (of a child born prior to June 12, 2017) never in her 45 years of life spent 365 uninterrupted days in the USA. We have never in fact been charged with the $10k penalty, but such threats, coupled with the nastiness of PFIC taxation, taxation of foreign exchange phantom gains, risk of taxation of foreign government disability and tax-sparing accounts and subsidies, and pension anguish (another 3520 and PFIC morass for U.S. citizens in most foreign countries) motivate renunciation. Or total noncompliance and “going underground”, since (according to our research, to be published by NYU Law’s GlobaLex in November) there have been almost no prosecutions of overseas dual-national Americans without U.S. income, assets, presence or family.

    In the second case above, IRS Ogden continues, every 90 days, to send us a letter saying they need more time. That’s been every 90 days for two years, and despite the fact that over a year ago we sent them a copy of the trustee’s CLN.

    As an advisor one has to advise every client or prospective client to be totally compliant with every relevant country’s tax law. But what about when those laws clash, or conflict with the rights of non-U.S. Persons? Often enough it is in the client’s best interest to do some self-study in matters of “wilfulness”, “statutes of limitation”, “jurisdiction”, “community property”, “transferee liability” and risk-taking. Things that may be inconsistent with the ethics of the advisor accepting that individual as a client. At least unless and until the non-U.S. spouse and family have counsel of their own.

    The very rich (well advised and able to afford the costs and taxes) and the very poor (with little to report and nothing to lose, especially dual nationals living abroad who don’t need their U.S. passports) are largely free of the concerns of 3520, 3520-A, 5471, FBAR and other penalties. It’s the middle class for whom a $10,000 penalty is likely more than a month’s pay, would require liquidation of assets belonging to a non-U.S. spouse or impossibility of payment, that these vicious penalties for ignorance, inadvertence, slothfulness are tragic and family-breaking.

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