201612.29
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IRS Form 8621 – Information Return by a Shareholder of a Passive Foreign Investment Company (PFIC)

Form 8621 Penalties & Suspending the IRS Statute of Limitations

Form 8621 Penalties & Suspending the IRS Statute of Limitations

IRS Form 8621 (Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund) is an IRS Form required to be filed by individuals who have any interest in a Passive Foreign Investment Company — whether or not they received an Excess Distribution, as long as they are not otherwise exempt from filing.

Unlike IRS Form 5471, there is no minimum ownership requirement. Technically, even if you have “fractional ownership,” of a PFIC you are still required to file — unless you meet one of the very limited exemptions/exclusions.

Moreover, the mere ownership of Foreign Mutual Funds and other foreign passive investments (that you do not technically own in a PFIC company) requires you to file the form.

The form can be daunting, especially when the filer also has a tax liability in accordance with form 8621.

PFIC Reporting

Under the updated PFIC Reporting Rules, individuals are required to file a Form 8621 simply to report their PFIC. This is true, even if the person has no tax liability. Previously, individuals would only have to file a Form 8621 if they had a tax liability/excess distribution.

Failure to File Form 8621

Notwithstanding Excess Distribution calculations, the “main non-numerical” penalty associated with form 8621 is completely unfair (you can read here about the sheer horror of the “Excess Distribution calculation“).

Why? Because technically, while there is no specific numerical penalty included regarding non-filing of Form 8621, a tax return is still considered to be “open” until the 8621 is filed. In other words, the statute of limitations countdown for the IRS to audit your tax return (usually 3 years) does not even begin to tick if the 8621 hasn’t been filed.

*Even if you try to argue the return only remains open as to the 8621, the IRS will most likely still take you to task as to the whole return. Even if you could convince the agent that a post-statute audit should be contained to 8621 issues, the IRS would just need to show some relation from the 8621, to other parts of your return, to continue with a more expansive audit.

Example of an Excess Distribution?

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:

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).

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.

How do I Analyze the Distribution for IRS 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?

Let’s use some numbers:

Step 1: Determine the amount of the excess distribution. In this particular scenario, there were no prior distributions and therefore the total amount of the distribution will be considered an excess distribution (except for the current year distribution allocation will be taxed differently). It is a $20,000 Excess Distribution.

Step 2: Determine the holding period of the investment. In order to keep it simple, which it rarely ever is, lets say the holding period is exactly five (5) Years. That means the holding period was 1826 days (since at least one leap year must be included every 4 years)

Step 3: Divide the excess distribution by the total number of days in order to determine the amount of excess distribution allocated to each day in the holding period. If you happen to have paid foreign tax on any of the distributions, it should be noted at this time as well.

Step 4: Determine how many days in each year the investment was held. For example, if the investment was purchased on January 1 and sold exactly 5 years later, the number of days in each tax year would be 365 with one year being 366.

Step 5: multiply the number of days in each tax year the investment was held by the excess distribution allocated to each day. Using 2011 as one of the five tax years in this example, the $20,000 excess distribution would be divided by 1826 days is $10.95. The $10.95 is then multiplied by 365 days, which equals $3998.

Step 6: Determine the tax liability: Using the example above, the highest tax rate in 2011 was 35%. Therefore, you multiply $3998 (the allocation for tax year 2011) by 35% (the highest tax rate for that year) to determine the increase in tax for that tax year, which comes out to $1399. If you happen to have a foreign tax credit then it may be applied at this time but allocated accordingly.

  • This is then done for each year and itemized separately per year.

Step 7: Interest: You are not done yet. From the IRS’ perspective, not only should you have been paying tax during each year that the money was not distributed (because you have not paid tax for years of undistributed earning) you now have interest due on the undistributed money — which is being taxed at ordinary income tax rates.

– Generally, in order to determine a rough estimate of your interest, you would take the applicable IRS Interest Rate, divided by the number of days in the tax year and then multiply it by the amounts of tax due along with the number of days the tax has not been paid. So for example, the 2011 tax due should of been paid by April 15, 2012 (remember, if you receive an extension that only applies to the filing date but not to the actual date of payment due, 2012) and if you have not paid that tax (how could you…you just learned about it with the initial distribution), the interest can be significant.

Step 8: Rinse, Wash, and Repeat. You must perform the same analysis for each year of the tax, with the understanding that it is rarely going to be 365 days for tax year. Rather, the year in which you purchase the investment in the year and the year in which the investment was sold will presumably be less than 365 days (unless you bought/sold on first or last day of the year).

Step 9: Current Year Distribution: The current year distribution will get taxed at your ordinary income tax rate, and not necessarily the highest tax rate (you do not get capital gains or qualified dividend treatment). In other words, the distribution allocated to the current year will go into your tax return calculation. The tax liability for the excess distribution will end up on line 44 of your 1040.

As you can imagine, depending on the amount of the distribution and holding period, once that foreign mutual fund has its first distribution (aside from the initial year of holding) and it is entirely an excess distribution, you may be paying well beyond 50% – 75% in tax liability, wherein the tax liability for a US mutual fund would have been a lot less.

Failure to File Form 8621 and…

If the analysis above is not enough to give you stomach pains, keep in mind that if you have not filed a proper 8621 for a prior year, then your tax return is not considered complete and the IRS can try to come after you for as long as they would like. With that said, arguments have been made that if the statute of limitations have already expired on auditing your prior returns, then the IRS should be limited to auditing those returns solely for 8621 issues.

In 2013, the IRS initiated a new rule requiring individuals with foreign mutual funds to file Form 8621 even if there was no excess distribution.

**Under the new rule guidelines, if you owned foreign mutual funds pre-2013 and did not file an 8621 prior (and did not have any excess distributions during those years), you are not required to go back and file it for years prior to 2013.

Exceptions to Filing Form 8621

Finally, there are a few exceptions to having to file Form 8621 – namely if the total annual aggregate ownership of your PFIC investments is under $25,000 if you are single or married filing separate or $50,000 if you are married filing jointly, you do not have to file Form 8621.

But, keep in mind that this is for “annual aggregate ownership.” Thus, for example, if you have 10 PFICs each worth $20,000, you still have to file Form 8621 for each PFIC. If you have 10 PFICs each worth $1,000, then you do not have to file Form 8621.

General IRS Statute of Limitations

One of the most brutal aspects of failing to file Form 8621 is that such a failure to file suspends the statute of limitations. In other words, if a person fails to file form 8621, then the IRS can audit the entire return “forever” and would not otherwise be barred by the general statute of limitations.

Under ordinary circumstances, an individual can only be audited on the return for three years (presuming the return was filed timely – if no return was filed, the statue limitations does not even begin). The idea behind a Statute of Limitations is that it provides a form of closure for an individual to know that the tax return was filed and accepted by the IRS; it would be unfair to allow the IRS audit you “forever,” as documents and memories fade over time.

There are other circumstances in which the IRS can audit you for six years instead of three years (significant unreported income from U.S. or domestic sources) or no statute of limitations if the IRS can prove fraud.  Fraud is a lot different than unknowingly not filing a Form 8621 because you never even heard of the form.

Getting into IRS Tax and Reporting Compliance

It is crucial that if you were required to file form 8621, but did not do so that you get into compliance as quickly and safely as possible. One of the most effective methods of getting into compliance is to submit to IRS voluntary disclosure.

We have summarized the IRS voluntary disclosure process for you below:

When Do I Need to Use Voluntary Disclosure?

Voluntary Disclosure is for individuals, estates, and businesses who are out of compliance with the IRS and the Department of Treasury. What does that mean? It means that if you are required to file a U.S. tax return and you don’t do so timely, then you are out of compliance.

If the IRS discovers that you are out of compliance, you may become subject to extensive fines and penalties – ranging from a warning letter all the way up to tax liens, tax levies, seizures, and criminal investigations. To combat this, you can take the proactive approach and submit to Voluntary Disclosure.

Golding & Golding – Offshore Disclosure

At Golding & Golding, we limit our entire practice to offshore disclosure (IRS Voluntary Disclosure of Foreign and U.S. Assets). The term offshore disclosure is a bit of a misnomer, because the term “offshore” generally connotes visions of hiding money in secret places such as the Cayman Islands, Bahamas, Malta, or any other well-known tax haven jurisdiction – but that is not the case.

In fact, any money that is outside of the United States is considered to be offshore; the term offshore is not a bad word. In other words, merely because a person has money offshore (a.k.a. overseas or in a foreign country) does not mean that money is the result of ill-gotten gains or that the money is being “hidden.” It just means it is not in the United States. Many of our clients have assets and bank accounts in their homeland countries and these are considered offshore assets and offshore bank accounts.

The Devil is in the Details…

If you do have money offshore, then it is very important to ensure that the money has been properly reported to the U.S. government. In addition, it is also very important to ensure that if you are earning any foreign income from that offshore money, that the earnings are being reported on your U.S. tax return.

It does not matter whether your money is in a country that does not tax a particular category of income (for example, many Asian countries do not tax passive income). It also does not matter if you are a dual citizen and/or if that money has already been taxed in the foreign country.

Rather, the default position is that if you are required to file a U.S. tax return and you meet the minimum threshold requirements for filing a U.S. tax return, then you have to include all of your foreign income. If you already paid foreign tax on the income, you may qualify for a Foreign Tax Credit. In addition, if the income is earned income – as opposed to passive income – and you meet either the Bona-Fide Resident Test or Physical-Presence Test, then you may qualify for an exclusion of that income; nevertheless, the money must be included on your tax return.

What if You Never Report the Money?

If you are in the unfortunate position of having foreign money or specified foreign assets that should have been reported to the U.S. government, but which you have not reported —  then you are in a bit of a predicament, which you will need to resolve before it is too late.

As we have indicated numerous times on our website, there are very unscrupulous CPAs, Attorneys, Accountants, and Tax Representatives who would like nothing more than to get you to part with all of your money by scaring you into believing you are automatically going to be arrested, jailed, or deported because you have unreported money. While that is most likely not the case (depending on the facts and circumstances of your specific situation), you may be subject to extremely high fines and penalties.

Moreover, if you knowingly or willfully hid your foreign accounts, foreign money, and offshore assets overseas, then you may become subject to even higher fines and penalties…as well as a criminal investigation by the special agents of the IRS and/or DOJ (Department of Justice).

Getting into Compliance

There are five main methods people/businesses use to get into compliance. Four of these methods are perfectly legitimate as long as you meet the requirements for the particular mechanism of disclosure. The fifth alternative, which is called a Quiet Disclosure a.k.a. Silent Disclosure a.k.a. Soft Disclosure, is ill-advised as it is illegal and very well may result in criminal prosecution.

We are going to provide a brief summary of each program below. We have also included links to the specific programs. If you are interested, we have also prepared very popular “FAQs from the Trenches” for FBAR, OVDP and Streamlined Disclosure reporting. Unlikes the technical jargon of the IRS FAQs, our FAQs are based on the hundreds of different types of issues we have handled over the many years that we have been practicing international tax law and offshore disclosure in particular.

After reading this webpage, we hope you develop a basic understanding of each offshore disclosure alternative and how it may benefit you to get into compliance. We do not recommend attempting to disclose the information yourself as you may become subject to an IRS investigation insofar as you will have to answer questions directly to the IRS, which you can avoid with an attorney representative.

If you retain an attorney, then you will get the benefit of the attorney-client privilege which provides confidentiality between you and your representative. With a CPA, there is a relatively small privilege which does provide some comfort, but the privilege is nowhere near as strong as the confidentiality privilege you enjoy with an attorney.

Since you will be dealing with the Internal Revenue Service and they are not known to play nice or fair – it is in your best interest to obtain an experienced Offshore Disclosure Attorney.

Contact Us, We Can Help!