Form 3520: The Form 3520 is a very important form. The IRS requires U.S. persons who receive gifts or trust distributions from Foreign Persons to file a Form 3520. The threshold requirements for filing the 3520 form will vary based on gift vs. trust. In recent years, the Internal Revenue Service has taken an aggressive stance toward non-compliance, and form 3520 penalties have been on the rise. If a U.S. person also has offshore accounts, assets, investments or income, they will have additional offshore reporting. There are numerous reporting forms, with the most common being the FBAR and FATCA Form 8938. If you are out of compliance, the IRS has developed various tax amnesty programs referred to collectively as voluntary disclosure.
We will help you understand your options.
Form 3520 (Reporting Foreign Gifts, Trusts & Inheritance)
The IRS Form 3520 Penalties are on the rise. In recent years, the reporting of Form 3520 foreign gift and trust transactions is a “big deal.” Any U.S. Person who receives a Gift from a non-U.S. Person may have a Form 3520 reporting requirement.
Technically, IRS 3520 is called the Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts.
The 3520 is due to be filed at the same time as your tax return.
Example of Foreign Gift Reporting.
Let’s take a simple example:
A.Your foreign Grandma in Portugal sent you $150,000 to help pay for a down-payment on your new house. (This meets the +$100,000 reporting requirement from a foreign individual).
B. Your dad sent you $40,000 through his foreign business. (This meets the +$16,388 reporting requirement from a foreign entity). 2019 3520 Instructions still in draft form.
C. Alternatively, if you received a foreign trust distribution, you have to report the distribution amount, even if it is a relatively small amount (no minimum threshold reporting requirement).
D. On a sadder note, if you foreign uncle passed away and left you $300,000 that is also reportable, since a foreign inheritance is a type of foreign gift.
Threshold Filing Requirements
The most common scenario is when a person receives a foreign gift, in the form of money or equivalent, from a foreign person. Many countries have various different currency restrictions, which limits the amount of gift an individual can personally provide via transfer (read: China and Taiwan currency restrictions).
With that said, it does not really matter what means the foreign person used to transfer the money to the United States, but rather did that foreign person gift you his or her money.
Threshold Requirement – Gifts from a Foreign Person
Currently, if a person receives more than $100,000 from a foreign person in a single year, in either one transaction or a series of transactions then the person who received the gift or inheritance from the foreign person must file a form 3520. It does not matter how the money was transferred, but rather who owned the money that was transferred.
For Example: Scott’s mother in Taiwan transferred him $500,000 in a single year by having 10 of her friends each transfer $50,000 to Scott’s bank account in the United States. Yes, not one individual actually transferred more than $100,000, but the $500,000 originated from a single person who owned that $500,000 and therefore the recipient would report to get from the owner of the money.
Threshold Requirement – Trust Distribution
Unlike the receipt of a gift or inheritance from a foreign person, when a person receives a trust distribution from a foreign trust, they are required to complete Form 3520 irrespective of how much the person received from the foreign trust.
In other words, there is no minimum threshold requirement involving a receipt of money from a foreign trust, and therefore any receipt of money from a foreign trust must be reported on a Form 3520.
It should be noted, that unlike the other two categories, the reporting requirement for the receipt of a trust distribution from a foreign trust is much more detailed than the reporting requirement for the receipt of a gift from either an individual or business.
It may also necessitate the filing of a Form 3520-A.
Threshold Requirement – Gift From a Foreign Business
The threshold requirement for having to file a form 3520 for the receipt of a gift from a foreign business is much lower than the threshold requirement for receiving a gift from a foreign person. In 2019, the threshold requirement was *$16,388 from either a foreign corporation, foreign partnership or other foreign entity.
Penalties for Late or Delinquent Filing
As provided by the IRS: Section 6677. A penalty applies if Form 3520 is not timely filed or if the information is incomplete or incorrect (see below for an exception if there is reasonable cause).
Generally, the initial penalty is equal to the greater of $10,000 or the following (as applicable):
– 35% of the gross value of any property transferred to a foreign trust for failure by a U.S. transferor to report the creation of or transfer to a foreign trust.
– 35% of the gross value of the distributions received from a foreign trust for failure by a U.S. person to report receipt of the distribution.
– 5% of the gross value of the portion of the foreign trust’s assets treated as owned by a U.S. person under the grantor trust rules (sections 671 through 679) for failure by the U.S. person to report the U.S. owner information.
Such U.S. person is subject to an additional separate 5% penalty (or $10,000 if greater), if the foreign trust (a) fails to file a timely Form 3520-A or (b) does not furnish all of the information required by section 6048(b) or includes incorrect information. See section 6677(a) through (c) and the Instructions for Form 3520-A.
Additional penalties will be imposed if the noncompliance continues for more than 90 days after the IRS mails a notice of failure to comply with the required reporting. For more information, see section 6677.
Don’t Forget FBAR & FATCA
In addition, if the gift was put into a foreign account or used to purchase Foreign Stocks, Securities, or Funds that exceeds the threshold requirements for reporting, the individual may also have to file an FBAR form, Form 8938, and/or Form 8621.
The failure to file these forms may result in significantly high fines and penalties that far outweigh what appears to be a mere failure to report.
Golding & Golding (Board-Certified Tax Law Specialist)
We specialize exclusively in international tax, and specifically IRS offshore disclosure.
We have successfully represented clients in more than 1,000 streamlined and voluntary offshore disclosure submissions nationwide and in over 70-different countries. We have represented thousands of individuals and businesses with international tax problems.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe.
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We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants and Financial Professionals worldwide.
Don’t be misled by inexperienced counsel.
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 IRS 3520 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
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