India & U.S. Offshore Tax Compliance for Investments in India (2019) - Golding & Golding

India & U.S. Offshore Tax Compliance for Investments in India (2019) – Golding & Golding

India & U.S. Offshore Tax Compliance for Investments in India (2019): Whether it is the U.S. Taxation of an India Provident Fund, Mutual Fund, Demat, Fixed Deposits (FD), Life Insurance, and/or Real Estate Investments – don’t worry, we’ve got you covered!

India Offshore Tax Compliance 

When it comes to U.S. Tax and India-based investments, both the tax and reporting aspects can be onerous for U.S. Persons.

While an NRE may grow tax-free in India, it is subject to U.S. Tax. So are the annual accruals but non-distributed income earned in an Indian Fixed Deposit.

Also, even though your PPF is accruing but not distributing income yet – the growth is taxable.

To complicate matters even more, due to the mismatch in tax years, and timing (36-month Indian long-term capital gain rule vs. U.S. 12-months rule) – there is a potential tax gap to be aware of.

We have helped hundreds of clients with assets, income, accounts, and investments abroad in India (and we can help you as well).

Who is Subject to U.S. Tax and Reporting?

Typically, a “U.S. Person” (not just U.S. citizens) are subject to U.S. Tax and Reporting.

Who is a U.S. Person (Individual)?

A U.S. Person individual is usually anyone who falls into the three (3) following categories:

  • U.S. Citizen
  • U.S. Legal Permanent Resident (Green Card)
  • Most visa holders such B1/B2, H-1B, L-1, E-2, etc. (certain restrictions for F, J and other visas)

What is Worldwide Income & Reporting?

Worldwide income and reporting is just as bad as it sounds. You have to report ALL of your investments and income worldwide. It does not matter if you owned the accounts or assets before you came to the U.S.

It also doesn’t matter if you pay tax and/or are TDS in India – or if it tax-free in India. Just because it is tax-free in India does not make it tax-free in the U.S.

10  Indian Investments Subject to U.S. Tax & Reporting

1. Fixed Deposits

Even though the FD does not distribute income during the growth period, it is earning income. While you may not touch or access the money during the growth phase (or be penalized), it is still taxable and reportable in the U.S as it accrues and not just the payment at end.

2. U.S. Taxation of India Provident Funds

Just as with the FDs, if your PPF is accruing income, which is not being distributed, it is still “earning income” and is still taxable and reportable in the U.S.

3. Stock Certificates/Demat

Whether or not you have actual stock certificates, or Demat, the values have to be reported. Since Demat is an “Account” and the actual stock certificates are not in an account, the reporting requirements are different.

Generally, the account is reported on the FBAR, and usually the Form 8938 “FATCA.” The certificates are reported on the 8938 but not the FBAR (since it is not in an “account.”) The thresholds for the 8938 vary extensively based on your U.S. Residence and marital status. You may have to file one form and not another form — it all depends.

* The stock earnings such as dividends and capital gains are also taxed and reported in the U.S. but Foreign Tax Credits may apply.

4. Mutual Funds

Mutual Funds are reported on the FBAR. The Mutual Fund is considered a PFIC which you may need to file on Form 8621.

The rules for PFIC are very, very complex. You may have additional reporting (unless you qualify for an exclusion/exception) and you may have additional tax (unless you made an election).

5. Bank Interest

Even if your bank interest is not in an FD, the interest is still taxable and reportable, since income is being earned on the money. This is true of your NRE account growing tax-free in India.

6. Dividends

Dividends are taxable in the U.S., even if they qualify for tax exempt treatment in India. Whether or not they are taxed now, or in the future will depend on whether the income is also PFIC income or not, and if so – if any elections have been made.

7. Capital Gains

Capital Gains are taxable in the U.S.

Certain exclusions for primary residence and other exceptions may apply to limit, reduce or avoid tax.

The Long-Term Capital Gain (LTCG) rules in the U.S. are different than India, so even though a sale may not qualify for LTCG in India, it may qualify for LTCG under U.S. investment tax rules.

8. Rental Income in India

This is a common misconception. Let’s say you earned $10,000 in rental income, but had $11,000 in expenses and taxes – no income to report, right?

Yes and No. Yes, you earned gross rent income, but no, you will have no net income. Nevertheless, the income and expenses have to be parsed out, and reported annually on a 1040 Schedule E.

9. Interest Earned on Future Property Development

This is very common in India. A client will have paid an up-front fee to a developer for a property(s) in India. During the time the property is being constructed, the investor (you) receive interest on the money you invested.

This ROI interest income must be included with your taxes.

10. Retirement Contributions

There is a Tax Treaty between the U.S. and India. Therefore, while the growth within a retirement fund may escape U.S. Tax (until distributed, unless exceptions apply), income contributions being diverted to the retirement does not usually escape U.S. tax.

10 Tax Tips (and Misconceptions) to be aware of:

1. Foreign Tax Credit

If you already paid tax on the income in India, you may be able to receive a Foreign Tax Credit in the U.S.

2. Foreign Tax Credit Refund

If the tax money you paid in India was refunded to you, it may not be worth the headache to claim the credit, since you will have to adjust your tax returns in the future.

3. Income/Gifts

If your parents are managing your accounts, and you let them keep the income (what a nice son/daughter you are), that does not default to income assignment. Rather, it generally means you report the income and you gave them a gift.

4. EPF

EPFs are through employment, and you may be able to defer tax on the growth, per the India-U.S. Tax Treaty

5. FATCA

Just because the FATCA Agreement may exempt certain foreign institutions from having to report accounts, does not mean you (as the individual investor) are exempt.

6. FBAR

If you have to file an FBAR you may also have to file a Form 8938 (or vice versa) – in other words, just because you file, does not mean you can avoid filing the other, if you meet the requirements for having to file both.

7. Foreign Earned Income Exclusion

You may be able to exclude certain earned (not investment) income if you meet either the Physical Presence Test or Bona-Fide Residence Test.

8. Transferring Account Ownership

Once you learn about reporting, the knee-jerk reaction is to consider transferring the accounts to another person. This only makes matters worse, because not only will you be out-of-compliance – but it will look bad to the IRS.

9. Calling the IRS Before Getting Into Compliance (Place Holder)

If you are considering getting into compliance, another knee-jerk reaction is to call the IRS to let them know you plan on getting into compliance. The problem is you may not even be on their radar. By calling them, you have now put yourself on their radar.

10. Be Cautions of Inexperienced Counsel

This has become an epidemic. Inexperienced attorneys tout experience they do not have, and puff their prior experience to make it seem like they have experience in this area of law, when they really do not.

Be sure to vet your attorney properly before retaining a firm.

What if You Have Unreported Income or Assets?

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

What Can You Do If You are Out of Compliance?

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.

What Type of Attorney Should I Hire?

IRS Voluntary Disclosure is a specialized area of law. An IRS Voluntary Disclosure is a complex undertaking. It requires the coordination of several moving parts, including strategy development, Tax Preparation, Legal Analysis, Negotiation and more.

You should hire a Tax Attorney who has the following credentials:

  • ~20 Years of Private Practice experience representing his/her own clients
  • Experienced in Criminal and Civil Tax Litigation
  • Experienced representing clients in Eggshell and Reverse Eggshell Audits.
  • Advanced Tax Degree (LL.M.)
  • EA (Enrolled Agent) or CPA (Certified Public Accountant)
  • Preferably a Board Certified Tax Law Specialist

Get Into Compliance with Experienced Counsel

Offshore Disclosure is complex. It is a specialty area of tax law, which requires a experience firm that specializes exclusively in IRS Offshore Disclosure.

How do you Vet out Potential Attorneys?

Three words: Credentials, Experience, Education.

What is the Board Certified Tax Law Specialist Credential?

Once an Attorney earns the prestigious Board Certified Tax Law Specialist credential, it proves to the general public that the attorney is dedicated to tax law, and has real tax law practice experience as an Attorney.

Few tax attorneys have passed the tax speciality exam (regarded as one of the most difficult tax exams in the country) — and met the additional education, experience, and recommendation requirements necessary for certification.

Once a person becomes “Board Certified in Tax,” it shows they have met the following requirements:

  • Advanced tax education 
  • Extensive tax law experience
  • Attorney & Judge recommendations for certification

In California for example, there are 200,000 active Attorneys, with tens of thousands of Attorneys practicing in some area of tax — and only 350 Tax Attorneys have successfully earned the designation.

Less than 1% of Attorneys nationwide have earned the credential.

Sean M. Golding, JD, LL.M., EA (Board Certified Tax Law Specialist)

IRS Offshore Disclosure is ALL we do.

Our Managing Partner, Sean M. Golding, JD, LLM, EA  earned an LL.M. (Master’s in Tax Law) from the University of Denver and is also an Enrolled Agent (the highest credential awarded by the IRS, and authorizes him to represent clients nationwide.)

Mr. Golding and his team have successfully handled several hundred IRS Offshore/Voluntary Disclosure Procedure cases. Whether it is a simple or complex case, safely getting clients into compliance is our passion, and we take it very seriously.

He is frequently called upon to lecture and write on issues involving IRS Voluntary Disclosure.

Beware of Copycat Law Firms

Unlike other attorneys who call themselves specialists or experts in Voluntary Disclosure but are not “Board Certified,” handle 5-10 different areas of tax law, purchase multiple keyword specific domain names, and even practice outside of tax, we are absolutely dedicated to Offshore Voluntary Disclosure.

*Click here to learn the benefits of retaining a Board Certified Tax Law Specialist with advanced tax credentials.

International Tax Lawyers - Golding & Golding, A PLC

International Tax Lawyers - Golding & Golding, A PLC

Golding & Golding: Our International Tax Lawyers practice exclusively in the area of IRS Offshore & Voluntary Disclosure. We represent clients in 70 different countries. Managing Partner, Sean M. Golding, JD, LL.M., EA and his team have represented thousands of clients in all aspects of IRS offshore disclosure and compliance during his 20-year career as an Attorney. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo and various Law Journals nationwide.

Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)
International Tax Lawyers - Golding & Golding, A PLC