Form 8621: The IRS requires U.S. owners of a PFIC to report ownership of their passive foreign investment companies on Form 8621. Common examples include foreign mutual funds and holding companies. In recent years, the IRS has aggressively increased enforcement of offshore reporting. In general, the Internal Revenue Service requires owners of offshore accounts, assets, investments and income to report annually on various different forms. The Form 8621 is one of the more difficult international information returns. This difficulty is compounded when a filer also has excess distributions. If the taxpayer does not file the forms, the IRS may issue various fines and penalties. These penalties can be mitigated with the IRS tax amnesty programs, collectively referred to as voluntary disclosure.
A PFIC is a Passive Foreign Investment Company, which doesn’t mean much to you outside of the fact that if you have a PFIC and meet the threshold requirement, you have to report it.
IRS Form 8621 Filing Requirements
The 8621 form is technically called “Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund” and is used in situations in which a person has a PFIC (Passive Foreign Investment Company).
The failure to file this form may carry one of the stiffest penalties possible – an incomplete tax return, which means that the IRS could feasibly audit the return forever. That leaves your return subject to a number of different penalties.
As you can imagine, there is some major complexity with form 8621. This is not a guide and we highly recommend that you do not rely upon it in preparing your own form (Read: it is one of those forms in which you should have a tax practitioner prepare for you).
Foreign Investments Reported on Form 8621
A foreign corporation is a PFIC if it meets either the income or asset test described below:
75% or more of the corporation’s gross income for its taxable year is passive income (as defined in section 1297(b)).
Example: If you have a foreign corporation which earns all of its income from investments such as investing in stocks, securities, ETF’s, etc. and the income is all generated as a result of passive means, then it would be considered a PFIC under the income tax. To contrast this, if you own your own consulting firm that is a corporation and you earn all of the income due to your consulting skills, then you are earning “earned income” and would probably be able to sidestep the PFIC moniker – absent other facts.
At least 50% of the average percentage of assets (determined under section 1297(e)) held by the foreign corporation during the taxable year are assets that produce passive income or that are held for the production of passive income.
Example: You have a foreign corporation that does little more than hold foreign real estate which generates passive income. The rental income is passive income and the assets within the corporation that are generating passive income are at least 50% of the assets (in this example, all of the real estate held in the Corporation is used to generate passive income). This would probably be a PFIC, because at least 50% of the assets are being used to generate passive income.
Threshold for Reporting PFIC
Back in 2012, the rules changed and all PFICs have to be reported each year when the threshold requirement is met – whether or not any income was distributed. There are minimum threshold requirements, which will vary depending on whether the person is filing single or married filing separate versus jointly.
The person who is single or married filing separate has to file form 8621 in any year that their total number of PFICs exceed $25,000. Therefore, if you have one PFIC worth $50,000 or eight PFICs worth $5,000 each, these would meet the threshold requirements under either alternative and all PFICs would have to be reported.
But for example, if a person only had one PFIC and it was only worth $19,000, then generally, unless there were distributions, it may not have to be reported.
The same concept goes for individuals filing married filing jointly, if combined they have more than $50,000 in PFIC ownership.
*There is discrepancy between the Regulation and Instructions as to whether Form 8621 (Pre-Part I) is required when a Taxpayer is below the 25K/50K with no distributions.
6-Step Guide to 8621 Reporting
We have developed an introductory guide to supplement the Form 8621 Instructions.
Step 1: How Many PFICs Do You Have?
Determine the total number of PFICs and what the total value is in the year. You are permitted to use any reasonable exchange rate, but most people use either the published Department of the Treasury exchange rates or the published IRS exchange rates – both of which are available online.
Step 2: Determine the PFIC Values
Confirm that you exceed the threshold requirements for filing. If you are below the threshold requirements for filing, then confirm that you did not receive any distributions from the PFIC. If you received the distributions, then you have to file the form irrespective of whether you are below the $25,000 or jointly below the $50,000 threshold requirement.
Step 3: Basic Filer Information
Complete the top portion of page 1, which request basic information such as:
- Name of the Shareholder
- Filing Year Of The Shareholder
- Type Of Shareholder
- Name And Address Of The PFIC
Step 4: Summarizing the PFIC
The next step gets a little more complicated. The person is required to provide a basic summary of the annual information required on form 8621. This typically includes:
- Describing each class of shares held by the shareholder
- the date the shares were acquired during taxable year
- the number of shares owned at the end of the year
- the value of the shares
- and whether there were any excess distributions or gain
Step 5: What is an Excess Distribution?
In a prior article, we detailed the Excess Distribution for our readers. Essentially, even if a person falls below the $25,000/$50,000 PFIC reporting threshold, if there were any “Excess Distributions” the taxpayer would still have to report the PFIC.
Here is an excerpt from the article:
Let’s take Matthew. Matthew is originally from India but now resides in the United States. With the help of his father back in India, Matthew invested $200,000 in foreign mutual funds. For many years, there have been no distributions such as dividends or interest from the foreign mutual fund. In addition, Matthew has not sold any shares of the fund and never made any U.S. Tax elections.
Fast-forward to five years later and Matthew received a large distribution. It was a $20,000 dividend distribution, and the first and only distribution he has received from the foreign mutual fund.
The following is a breakdown of the tax analysis for this distribution:
What is an Excess Distribution?
An excess distribution is the catalyst that sparks this complex tax analysis. Essentially, an excess distribution is a distribution in the current year, which exceeds 125% of the average of the three prior years. In this particular scenario, there were no prior distributions and this is not the first year of the investment, therefore it is an excess distribution.
Is it an Excess Distribution?
Yes. Even though this was the first distribution from the foreign mutual fund, it is not the first year of the investment (in which there cannot be an excess distribution because it is not in “excess” of any prior year distribution).
How do I Analyze the Distribution for Tax Purposes?
Unfortunately, you know it’s going to be difficult when programs such as TurboTax do not even carry the form, your CPA never heard of the form, and the instructions themselves tell you to basically use a separate statement to determine the annual tax liability for prior years and literally block out the section of the 8621 form itself. See below for a numerical analysis.
Why the Additional Tax?
The IRS wants payback for the time your Foreign Mutual Fund was sitting overseas and growing – but not being taxed. Had the investment been in a U.S. mutual fund, it would’ve been distributed annually (even if immediately reinvested) and you would have been taxed (albeit at a lower tax rate). This is the IRS’ opportunity to get that money back from you.
It Sounds Bad…
It is. The IRS is going to tax you for each year you held the investment and the IRS is going to tax you at the highest ordinary income tax rate available each year for the portion of the investment earnings allocated for that year (even if you are not in the highest tax bracket). In addition, the IRS is going to tack on interest for the unpaid allocations that you didn’t pay timely, in accordance with the amount of tax allocated for each tax year of total tax amount, even though the tax amount is only being determined for the first time right now with this initial distribution…simple, right?
Step 6: So, You Want to make a Late Election
Making a late election is very difficult. In fact, it is nearly impossible because of the threshold requirements a person has to show. With that said, each individual’s facts and circumstances are different and sometimes a person for example may have relied upon a professional who told them they did not qualify as a PFIC. Years later, they may come to learn that they did qualify and therefore may be able to make the Late Election.
For most individuals, in order to make the late election, they will have to enter the traditional OVDP (presuming that they have undisclosed foreign income, assets, investments, etc.).
Never Filed the Form – Offshore Voluntary Disclosure
If you have never filed this form previously, then you’re out of compliance. In addition, chances are there are probably other forms you’ve not filed as well. Many of these other forms carry very stiff fines and penalties for not reporting them.
If a person wants to get into compliance and is considering making a late election, they would almost always have to submit to the traditional OVDP (as of November 2017, the Streamlined Program does not permit a person to make a late PFIC).
What Can You Do?
Presuming the money was from legal sources, your best options are either the Traditional IRS Voluntary Disclosure Program, or one of the Streamlined Offshore Disclosure Programs.
Get Into IRS Compliance
If you are seeking to get into compliance for a late filed 8621 there are few different alternatives.
The alternatives will depend on whether the form 8621 is a stand-alone issue, whether there are also other unreported foreign accounts, income, etc. in which the person may consider a streamlined application instead of a reasonable cause submission (presuming of course, that the individual was non-willful and/or had reasonable cause), the amount of unreported gift, inheritance or trust distribution, etc.
Typically, the best option may be for you to enter of the approved IRS Offshore Voluntary Disclosure Programs.
Golding & Golding: About Our International Tax Law Firm
Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure.
Contact our firm today for assistance.