FBAR Australian Superannuation

FBAR Australian Superannuation: The FBAR Australian Superannuation rules are complicated. While the IRS has not developed definitive rules for the tax treatment of a Super, the FBAR reporting rules are relatively clear.

The Australian Superannuation is reported each year on the FBAR (FinCEN Form 114). The FBAR deadline due date is the same as the tax return, including extensions.

Currently, the FBAR is on automatic extension. Generally, the superannuation is also reported on Form 8938. The Super is typically not considered a foreign grantor trust, so it is not usually reported on a form 3520-A. The failure to report the superannuation may lead the FBAR penalties. The IRS has developed FBAR Amnesty programs to reduce or avoid penalties — which are collectively referred to as offshore voluntary disclosure.

Reporting an Australian Superannuation in the U.S.

FBAR Australian Superannuation reporting is more than just the FBAR. Some of the more common International Reporting forms for the Australian Superannuation and U.S. include:

  • FBAR (FinCEN 114)
  • 8938 (FATCA)
  • 3520-A (Foreign Trust)
  • 8621 (Passive Foreign Investment Company)
  • 5471 (Foreign Corporation)
  • 8833 (Treaty Position)
  • 8840 (Closer Connection Test)

Do I Include Australian Superannuation on my U.S. Tax Return?

There are two preliminary Questions:

Who is a U.S. Person?

U.S. person is different than U.S. Citizen. U.S. Person (individuals) generally includes 3 categories:

  • U.S. Citizen
  • Legal Permanent Resident
  • Foreign National who meets the Substantial Presence Test

Does Country of Residence Impact Superannuation Reporting?

Yes and No (what did you expect, this is tax right?).

Yes, if you have a Super, you are a U.S. Person and you reside outside of the United States then you have to report, BUT some of the thresholds for reporting are higher for foreign residents than they are for U.S. residents (such as FATCA Form 8938)

Common Superannuation International Reporting Forms

Here are a list of some of the more common forms:

FBAR (FinCEN 114) Australian Superannuation

The FBAR is used to report “Foreign Financial Accounts.” This includes investments funds, and certain foreign life insurance policies.

The threshold requirements are relatively simple. On any day of the year, if you aggregated (totaled) the maximum balances of all of your foreign accounts, does the total amount exceed $10,000 (USD)?

If it does, then you most likely have to file the form. The most important thing to remember is you do not need to have more than $10,000 in each account; rather, it is an annual aggregate total of the maximum balances of all the accounts.

Form 8938 Australian Superannuation

This form is used to report “Specified Foreign Financial Assets.”

There are four main thresholds for individuals is as follows:.

  • Single or Filing Separate (in the U.S.): $50,000/$75,000
  • Married with a Joint Returns (In the U.S): $100,000/$150,000
  • Single or Filing Separate (Outside the U.S.): $200,000/$300,000
  • Married with a Joint Returns (Outside the U.S.): $400,000/$600,000

Form 3520 Australian Superannuation

Form 3520 is filed when a person receives a Gift, Inheritance or Trust Distribution from a foreign person, business or trust. There are three (3) main different thresholds:

  • Gift from a Foreign Person: More than $100,000.
  • Gift from a Foreign Business: More than $16,076.
  • Foreign Trust: Various threshold requirements involving foreign Trusts

Form 3520-A Superannuation Foreign Grantor Trust

At its most basic level, a superannuation is a foreign trust. There is money that is being deposited and being held by a third-party for the benefit of a beneficiary (you). In addition, because the trust is a foreign trust, there are very significant tax repercussions depending on whether it is considered a grantor trust and/or passive foreign investment company.

Grantor Trusts and PFICs require very significant tax reporting responsibilities, as well as possible penalties for the amount of money that is being gained in the foreign trust/PFIC that was not distributed in prior years. 

From the IRS’ perspective, if the purpose of the trust is to accumulate passive income, and/or a majority of the assets in the trust are being used to generate passive income, it may be a PFIC – which has a very complicated tax penalty associated with it. Moreover, there are also very complicated forms that you may have to file such as form 3520A and/or form 8621 – which are associated with the Foreign Trusts and PFICs.

Form 5471 Australian Superannuation

Form 5471 is filed in any year that you have ownership interest in a foreign corporation, and meet one of the threshold requirements for filling (Categories 1-5). These are general thresholds:

  • Category 1: U.S. shareholders of specified foreign corporations (SFCs) subject to the provisions of section 965.
  • Category 2: Officer or Director of a foreign corporation, with a U.S. Shareholder of at least 10% ownership.
  • Category 3: A person acquires stock (or additional stock) that bumps them up to 10% Shareholder.
  • Category 4: Control of a foreign corporation for at least 30 days during the accounting period.
  • Category 5: 10% ownership of a Controlled Foreign Corporation (CFC).

Form 8621 Australian Superannuation

Form 8621 requires a complex analysis, beyond the scope of this article. It is required by any person with a PFIC (Passive Foreign Investment Company).

The analysis gets infinitely more complicated if a person has excess distributions. The failure to file the return may result in the statute of limitations remaining open indefinitely.

*There are some exceptions, exclusions, and limitations to filing.

Form 8833 Australian Superannuation

The IRS has provided form 8833 for U.S. taxpayers to use when they take a treaty position on their tax return, as to why a certain type of income should not be taxed when it would otherwise appear taxable in accordance with U.S. tax law principles.

You may be able to take a “Treaty Position” if to avoid taxation of Super distributions

Out of FBAR Compliance for Australian Superannuation?

If you are out of FBAR compliance, the penalties can be severe. Therefore, you may consider entering the IRS offshore voluntary disclosure/tax amnesty, before it is too late.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.

Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide Are Certified Specialists

Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.

Recent Golding & Golding Case Highlights

  • We represented a client in an 8-figure disclosure that spanned 7 countries.
  • We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
  • We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
  • We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
  • We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced FBAR Counsel?

Generally, experienced attorneys in this field will have the following credentials/experience:

  • Board Certified Tax Law Specialist credential
  • Master’s of Tax Law (LL.M.)
  • Dually Licensed as an EA (Enrolled Agent) or CPA
  • 20-years experience as a practicing attorney
  • Extensive litigation, high-stakes audit and trial experience

Interested in Learning More about Golding & Golding?

No matter where in the world you reside, our international tax team can get you IRS offshore compliant. 

Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.

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