Transfer of Property or Cash To A Foreign Corporation? Filing of Form 926

Correcting Amendments to the FATCA Regulations will be Released TodayJust about everyone reading this blog is aware that the Internal Revenue Service has made international tax enforcement a top priority and that it is attempting to flush out taxpayers hiding assets offshore or earning unreported foreign income. One of the weapons available to the IRS is Form 926 “Return by a U.S. Transferor of Property to a Foreign Corporation”. In the wake of the UBS banking scandal, the IRS made significant changes to Form 926, requiring a greater amount of information than ever before. This is further discussed below.

What is Form 926? When is it Required?

US persons (e.g., US citizens, US green card holders) must make an information report to the IRS when making certain transfers to foreign (non-US) corporations. Specifically, when a US person transfers (or is treated under the tax rules as having transferred) property to a foreign corporation in certain “non-recognition” transactions (e.g., a contribution of capital to the company) a Form 926 must be filed and attached to that year’s income tax return. This is so, whether or not the property has appreciated in value. If cash is transferred to the corporation instead of property, the Form 926 must be filed when the cash transfers exceed US$100,000 over a 12-month period; or, regardless of amount, if immediately after the cash transfer, the transferor holds more than 10% of the total voting power or total value of the foreign corporation.

Expansive Information Required

Form 926 Part III, “Information Regarding Transfer of Property”, is designed to ensure that the information provided on the form is consistent with information reported on another tax form required of most US persons having interests in foreign corporations, Form 5471, “Information Return of U.S. Persons with Respect to Certain Foreign Corporations”. Thus, Form 926 provides the IRS with a way to cross-check information (almost as easy as connecting the dots) and ensures greater tax compliance. The information provided by a taxpayer in Part III can also alert the IRS that an FBAR (Form TD F 90-22.1, “Report of Foreign Bank and Financial Accounts” should be filed. Taxpayers should also carefully examine Part IV of the Form with its detailed sections for information regarding property transfers.

Inadvertence Can Lead To Penalties

Vigilance is the order of the day when it comes to US tax issues involved in making foreign investments. Failure to file the Form 926 can result in harsh penalties. The penalty can be 10% of the fair market value of the property transferred. The penalty is limited to $100,000 unless the failure to file Form 926 was due to intentional disregard of the rules. The failure to file will also extend the statute of limitations until the information is provided to the IRS. So, failing to file the form can mean that your tax matters will never have closure. In addition, due to new rules enacted with FATCA, a 40% penalty can apply to any tax underpayment resulting from an undisclosed foreign financial asset.

Foreign Funds – A Trap For The Unwary

Sometimes, investments by US persons in foreign funds can trigger the obligation to file the Form 926. This can occur by a direct purchase of a fund investment domiciled in a foreign jurisdiction, for example, in a Cayman Islands “exempted company” (often treated for US tax purposes as a “corporation”) if the cash investment exceeds US$100,000 over a 12-month period. It can also occur through indirect purchases of foreign corporations through US domestic partnerships or LLCs, assuming the US$100,000 threshold is exceeded. In the latter case, the relevant information regarding the investor’s proportionate amount of transfers to underlying foreign corporations is usually contained in the investor’s annual Schedule K-1 so he can track the dollar amount of his transfers to each foreign corporation.

Persons investing in foreign funds must also be aware of the so-called PFIC tax regime. More can be learned from my prior posting here.

In accordance with Circular 230 Disclosure

Virginia La Torre Jeker J.D., has been a member of the New York Bar since 1984 and is also admitted to practice before the United States Tax Court. She has 30 years of experience specializing in US and international tax planning as well as international commercial transactions. She has been based in Dubai since 2001; prior to that time she worked in Hong Kong for 15 years as a US tax consultant for international law firms, major banks (including HSBC) international accounting firms (Deloitte) and trust companies. Early in her career she worked in New York with the top-tier international law firm, Willkie Farr & Gallagher.

Virginia is regularly asked to speak at numerous conferences and seminars for various institutes and commercial organizations; publishes a vast array of scholarly works in her area of expertise, been interviewed by CNN and is regularly quoted (or has her articles featured) in local and international publications. She was recently appointed to the Professional Tax Advisory Council, American Citizens Abroad, Geneva, Switzerland. She was a guest lecturer at the University of Hong Kong, LL.M Program (Law Department) and served as an adjunct Business Law professor at the American University of Dubai and at the American University of Sharjah where she also taught the legal / ethical aspects of internet law and internet based transactions.


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