Stopped Filing U.S. Tax Returns & Want to Go Streamlined Offshore?

Stopped Filing U.S. Tax Returns & Want to Go Streamlined Offshore?

15 Important Tips About IRS Form 5471

15 Important Tips for Getting the 5471 Form Correctly Filed: The purpose of the form is to ensure that individuals who meet the threshold requirements for having ownership and/or control of a Foreign Corporation (whether or not it is a Controlled Foreign Corporation and/or issues Subpart F Income) file the necessary information with the IRS on an annual basis. 

Specifically, the IRS purpose is for certain U.S. citizens and residents who are officers, directors, or shareholders in certain foreign corporations file this form and schedules to satisfy the reporting requirements of sections 6038 and 6046, and the related regulations.

Even though a person may not have any control, or earn any income from the foreign corporation, they still have to file the Form 5471.

15 Things You Need to Know

What is Form 5471?

Form 5471 is used as an information return of U.S. persons with respect to certain foreign corporations. In other words, it is a form that is used to describe ownership and business operations of a foreign corporation. More specifically, the form is used to report the operations of the foreign business (Balance Statement, Income, Equity, Liabilities), but that does not mean the form will result in the individual having to pay any additional tax on the income.

Taxation will depend largely on whether the corporation is a Controlled Foreign Corporation or not, if the income is subpart F income or not, and whether any distributions, salary, or incomer were made to the U.S. person owner.

Different Categories of Filers

Without getting too technical, there are typically four types of filers/categories (2-5),  since they eliminated category one.

Category 2:  A person who owns at least 10% or more of the foreign corporation

Category 3:  A person acquires stock in total of stock ownership exceeds 10%

Category 4: A U.S. person who had control (defined below) of a foreign corporation for an uninterrupted period of at least 30 days during the annual accounting period

Category 5: A U.S. shareholder who owns stock in a foreign corporation that is a CFC for an uninterrupted period of 30 days or more during any tax year of the foreign corporation, and who owned that stock on the last day of that year.

Did You Own More Than 10% of the Foreign Corporation?

Many individuals with mere ownership/investment interest in a foreign corporation do not consider themselves the owner of a corporation simply because they own more than 10%. In other words, if you were to purchase 15% of a foreign corporation but did not have any input or other management of the Corporation, you probably would not consider yourself to be an “owner” as much as an “investor.” With that said, if you own more than 10% of a foreign corporation then your required to file a form 5471 annual return each year (certain exceptions/exclusions apply)

Did You Control the Corporation for More than 30 Days?

Even if you only control the corporation for a small period of time, usually exceeding 30 days, you are still required to file form 5471. In fact, if you had control over the foreign corporation for at least 30 days, than you also need to file various different schedules regarding specifics of the Corporation. Depending on whether you are a category 2,3,4, or 5 Filer will help determine which schedules you have to file.

It Does Not Need to be a Controlled Foreign Corporation

This is where many individuals begin to get confused – and understandably so because the information available online is often incorrect. The general standpoint, the IRS has very strict rules regarding certain types of income when the corporation is a foreign corporation and a controlled foreign corporation. A controlled foreign corporation (CFC) is when U.S. persons own more than 50% of the corporation and each shareholder owns at least 10% (attribution rules apply). Therefore, simply because you do not own a foreign corporation that is considered a CFC does not mean you are exempt

You Do Not Need to have Subpart F Income

This is another complicated topic that seems to throw off many individuals and inexperience CPAs or tax attorneys who hold themselves out as “experts.” Support F income is a specific type of income which is usually passive income in which a person has to pay tax on even if that money was not distributed. Without getting too technical, the purpose of Subpart F income is to avoid companies hoarding money offshore through passive means and not paying any tax on the earnings. It is not an uncommon concept under U.S. Tax Law, just as corporations may be taxed an additional 20% when the retained earnings are too high.

*Whether or not your controlled foreign corporation has subpart F income is important, but not respect to meeting the threshold performance of having to file a Form 5471.

You Did Not Need to Have Received Any Income 

Four 5471 is an informational tax return. This is to report information regarding the foreign corporation. If income was paid to owners or shareholders of the business, it would be reported on the return, but it is not a threshold requirement of having to file the Form 5471. In other words, if you otherwise meet the threshold requirement as a category two, three, four, or five filer — than the mere fact that you did not earn any income from the foreign corporation does not exempt you from filing.

It Does Not Matter Where You Live

Whether or not you reside in the United States or not, you are still required to file this form when you otherwise meet the requirement as a category two, three, four, or five filer. There is some bad information online which indicates that if you live abroad, you do not need to file this form. That is incorrect in a while if you qualify to streamline foreign offshore disclosure program you may receive a waiver of penalty on otherwise includable ownership of a 5471 Corporation, you still must file the form.

Some Foreign Corporations are Per Se 

A common scenario for individuals who owned LLCs in the United States is to disregard the entity and file the business information directly on a form schedule C which is filed with a US tax return. While a person can feasibly disregard a foreign entity as well, the IRS lists hundreds of per se corporations which are de facto  — and which cannot be disregarded. In other words, if you own this particular type of foreign entity, then you must file a form 5471 and cannot otherwise disregard the entity.

Sociedad Anonimas

We represent numerous individuals worldwide, especially in Latin American countries where this is a very common form of corporate and estate planning structure. For many individuals, they will form a 90/10 S.A. with a local individual in order to operate the foreign property or business. For example, many individuals will have rental properties are small businesses such as resort that they operate in a foreign country, and establish the business as an S.A. Whether the S.A. is being used for estate planning for business purposes, a form 5471 must still be filed.

Foreign Accounts Owned the By The Corporation

If the foreign company has accounts of which you have signature authority or other ownership of, chances are you are going to have to file an FBAR (report of foreign bank and financial account) for each account you have ownership of signature authority of. In addition, you may also need to file a form 8938 regarding the specific accounts.

IRS Form 5471 Penalties

When it comes to IRS penalties and foreign corporations, the penalty for failing to file form 5471 can be severe. In fact, Form 5471 Penalties can reach as high as $50,000 per penalty.

If you have been issued a penalty for an un-filed form 5471, you may consider retaining experienced counsel to try to fight or reduce the penalty aka obtain an IRS Penalty Abatement

Alternatively, if you have not yet been issued a penalty for failing to file form 5471, you should consider getting into compliance proactively by submitting to IRS Offshore Voluntary Disclosure.

Failure to file Form 5471 and Schedule M

A $10,000 penalty is imposed for each annual accounting period of each foreign corporation for failure to furnish the required information within the time prescribed. If the information is not filed within 90 days after the IRS has mailed a notice of the failure to the U.S. person, an additional $10,000 penalty (per foreign corporation) is charged for each 30-day period, or fraction thereof, during which the failure continues after the 90-day period has expired. The additional penalty is limited to a maximum of $50,000 for each failure.

Any person who fails to file or report all of the information required within the time prescribed will be subject to a reduction of 10% of the foreign taxes available for credit under sections 901, 902, and 960. If the failure continues 90 days or more after the date the IRS mails notice of the failure to the U.S. person, an additional 5% reduction is made for each 3-month period, or fraction thereof, during which the failure continues after the 90-day period has expired. See section 6038(c) (2) for limits on the amount of this penalty.

Failure to file Form 5471 and Schedule O

Any person who fails to file or report all of the information requested by section 6046 is subject to a $10,000 penalty for each such failure for each reportable transaction. If the failure continues for more than 90 days after the date the IRS mails notice of the failure, an additional $10,000 penalty will apply for each 30-day period or fraction thereof during which the failure continues after the 90-day period has expired. The additional penalty is limited to a maximum of $50,000.

Criminal Penalties

Criminal penalties under sections 7203, 7206, and 7207 may apply for failure to file the information required by sections 6038 and 6046.

Note. Any person required to file Form 5471 and Schedule J, M, or O who agrees to have another person file the form and schedules for him or her may be subject to the above penalties if the other person does not file a correct and proper form and schedule.

Section 6662(j): Penalties may be imposed for undisclosed foreign financial asset understatements. No penalty will be imposed with respect to any portion of an underpayment if the taxpayer can demonstrate that the failure to comply was due to reasonable cause with respect to such portion of the underpayment and the taxpayer acted in good faith with respect to such portion of the underpayment. See sections 6662(j) and 6664(c) for additional information.

How to Get Into IRS Compliance for Form 5471?

If you are already out of compliance for failing to report form 5471 and want to avoid penalties, then one of the most effective ways for getting back into compliance is through IRS Offshore Voluntary Disclosure. Depending on the specific facts and circumstances of your case, their options and alternatives, including traditional OVDP, Streamlined Program, or Reasonable Cause.

Golding & Golding: About Our International Tax Law Firm

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