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GARY S. WOLFE
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U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)

If a Foreign Trust has a U.S. grantor, and one or more U.S.

beneficiaries, under IRC §679 the Trust is classified as a foreign
grantor trust and all Trust income, deductions and credits must be
reported on the U.S. Grantor’s personal tax returns (Federal tax
return/Form 1040).

The 2010 Hiring Incentives to Restore Employment Act (“2010

HIRE Act”) included the Foreign Account Tax Compliance Act which
imposed new foreign grantor trust reporting obligations on
Responsible Parties (i.e., U.S. Owners/ U.S. Settlor) of foreign
grantor Trust (effective 3/18/10).

Since a U.S. grantor has neither the legal authority or the ability
to force Foreign Trustees to file the Form 3520-A, the 2010 HIRE Act
makes the grantor responsible to submit information to the IRS with
respect to the Trust.

When a U.S. taxpayer forms a Foreign Grantor Trust, the

following mandatory U.S. tax filings are required:

(1) Form SS-4 is to be filed immediately upon formation (this form

is used to obtain the federal tax identification number for the
Trust);
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(2) Form 56 for reporting creation of fiduciary relationship (this

form is filed upon the creation of the Trust, or is due with the
first tax return filed for the Trust);

(3) Form 709

A transfer of Assets to a Foreign Trust may create a gift

tax liability, dependent on whether or not there is a completed
gift.

If the transfer is to an irrevocable, non-amendable trust

there is a completed gift. In 2010, $1M in gifts are exempt
from tax (Husband and Wife: $2M). The top gift tax rate of
35%, will be applicable to transfers over $500,000.

Although the estate tax is repealed in 2010, the gift tax

remains in effect.

In 2010, there is an annual exclusion of $13,000 per

donee for gifts ($26,000 for husband and wife, gift-splitting).
There is an unlimited exclusion for payments of tuition and
medical expenses.

Gifts to a non-citizen spouse are eligible for a gift tax

annual exclusion of up to $134,000 (in 2010).

(4) Form 3520

This form is used to report transactions with foreign Trusts

(and to report receipts of foreign gifts).

Form 3520 is sent to the IRS, P.O. Box 409101, Ogden, Utah
84409.
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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The U.S. Grantor of a Foreign Trust (as a responsible

party) must notify the IRS of a reportable event: i.e., the
creation of a foreign trust by a U.S. person, the transfer of
money to a foreign trust by a U.S. person (including a transfer
by reason of death), the death of a U.S. citizen or resident (if
the decedent was treated as the owner of any portion of a
foreign trust under the grantor trust rules or if any portion of
the trust estate was included in the gross estate of the
decedent).

The notice of “reportable event” is due on or before the

90th day after the reportable event and is satisfied by the
Responsible Party filing Form 3520 (Annual Return to Report
Transactions with Foreign Trusts and Receipt of Certain
Foreign Gifts).

Responsible parties include: the grantor of an inter vivos

trust, the transferor in a reportable event (other than by
death), and the executor of a decedent’s estate.

U.S. beneficiaries of foreign trusts are subject to IRS

reporting requirements, if they receive a distribution from the
trust. IRS reporting includes: the name of the trust, the
aggregate amount of the distributions received from the trust
during the trust year (satisfied by filing Form 3520 with the
IRS).

If a complete Form 3520 is not filed by the due date (including

extensions), the time for assessment of any tax imposed, with
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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respect to any event or period to which the information

required to be reported, will not expire before the date that is
three (3) years after the date on which the required
information is reported.

Penalties (Form 3520 Filing)

If Form 3520 is not timely filed, or the information is

incomplete or incorrect, the penalties imposed:

A penalty generally applies if Form 3520 is not timely filed

or if the information is incomplete or incorrect. Generally,
the penalty is:

• 35% of the gross value of any property transferred to

a foreign trust for failure by a U.S. transferor to report
the transfer,

• 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, or

• 5% of the amount of foreign gifts for each month the

report is not filed (not to exceed 25%)

(5) Form 3520-A

Form 3520-A is the annual information return of a foreign

trust with at least on U.S. owner, which includes:

1. Annual tax Information about the Foreign Trust

2. Annual Tax Information about its U.S. Beneficiaries

U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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3. Annual Tax Information about any U.S. person who is

treated as an owner of any portion of the foreign trust

Form 3520-A is filed with the Internal Revenue Service

Center P.O Box 409101, Ogden, Utah 84405 and is due by
the 15th day of the 3rd month after the end of the trust’s tax
year.

Any U.S. person that is treated as the owner of any

portion of a foreign trust (under the grantor trust rules) is
responsible to ensure that the trust satisfies IRS reporting
requirements, annually, which include: a complete accounting
of trust activities and operations for the year, the name of the
U.S. agent for the trust, and provides information to each U.S.
person who is treated as the owner of any portion of the trust
or who receives a direct or indirect distribution from the trust.
IRS reporting is satisfied by the filing of Form 3520-A and
providing copies of the Foreign Grantor Trust Owner
Statement and the Foreign Grantor Trust Beneficiary
Statement to the U.S. owners and beneficiaries.

Copies of the Foreign Grantor Trust Owner Statement

and Foreign Grantor Trust Beneficiary Statement must be sent
to the U.S. owners and U.S. beneficiaries by the 15th day of
the 3rd month after the end of the Trust’s tax year.

The U.S. owner is subject to a penalty equal to 5% of the

gross value of the Trust’s assets treated as owned by the U.S.
person at the close of that year if the foreign trust:
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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1. Fails to timely file Form 3520-A

2. Does not furnish all of the information required by IRC

§6048(b) or includes incorrect information (IRC
§6677(b))

Penalties:

The U.S. owner of a foreign trust is subject to a penalty of

5% of the gross value of the portion of the foreign trust’s
assets treated as owned by that person at the close of that
year if the foreign trust fails to timely file Form 3520-A or does
not furnish certain required information. Additional penalties
may be imposed if the failure to file or furnish information
continues after the IRS mails a notice to the U.S. owner.

No penalties will be imposed if the U.S. owner can

demonstrate that the failure to comply was due to reasonable
cause and not willful neglect. The fact that a foreign country
would impose penalties for disclosing the required information
is not reasonable cause. Similarly, reluctance on the part of
the foreign fiduciary or provisions in the trust instrument that
prevent the disclosure of required information is to reasonable
cause either.

Additional penalties may be imposed if noncompliance

continues after the IRS mails a notice of failure to comply with
required reporting.
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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Criminal penalties may be imposed under IRC §7203,

7206 and 7207 for failure to file on time and for filing a false or
fraudulent return.

5. Appointment of U.S. Agent

Foreign Trust (U.S. Agent)

Under IRC §6048(b), any person who is treated as a grantor of

all or any portion of a foreign trust must appoint a U.S. Agent for the
Trust.

Failure to execute an authorization of Agent, binding upon the

trust and the agent allows the IRS to make its own determination as
to the amounts to be included by U.S. transferors under the grantor
trust rules (IRC §6048(b)(2), Notice 97-34, Section IV (B)). The
designation of a U.S. agent will not otherwise subject the agent to
legal process and will not alone cause the foreign trust to have an
office in the United States (IRC §6048(b)(2)).

If the Foreign Trust does not appoint a limited U.S. agent, for
purposes of examination of books and witnesses, service of
summons and enforcement of summons (IRC 7602 – 7604), the IRS
may include in the grantor’s income anything it wants to include (IRC
§6048(b)(2)(C)). The IRS can make whatever determination it wishes
based on its own knowledge or information obtained through
testimony or otherwise (IRC §6038A(e)(4) rules regarding judicial
proceedings to quash a summons will apply).

Please see the IRS-approved form for the Appointment of U.S.

Agent for the Trust.
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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AUTHORIZATION OF AGENT

[Name of foreign trust] hereby expressly authorizes [name of U.S. agent] to act as its agent solely
for purposes of sections 7602, 7603, and 7604 of the Internal Revenue Code with respect to any
request to examine records or produce testimony related to the proper treatment of amounts
required to be taken into account under the rules of section 6048(b)(1)(A) or to any summons for
such records or testimony. I certify that I have the authority to execute this authorization of agent
to act on behalf of [name of foreign trust].

_____________________________ _______ ________

Signature of trustee (or other (title) (date)
authorized person)

Type or print your name below

______________________________

______________________________

TIN (if any)

_______________________________

_______________________________

_______________________________
Address

[Name of agent] accepts this appointment to act as agent for [name of foreign trust] for the above
purpose. I certify that I have the authority to execute this authorization of agent to act on behalf of
[name of foreign trust] and agree to accept service of process for the above purposes

_____________________________ _______ ________

Signature of trustee (or other (title) (date)
authorized person)

Type or print your name below

_______________________________

_______________________________
TIN (if any)

_______________________________

_______________________________

_______________________________
Address
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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6. Foreign Gifts

U.S. Persons that receive gifts from foreign individuals or

entities must report such transfers on Form 3520 (Part IV Lines 62-
64).
Generally, a U.S. Person must report on a Form 3520 (1) any
gifts from a non-resident individual or foreign estate that collectively
exceed $ 100,000, (2) any gifts from foreign corporations and foreign
partnerships that collectively exceed $10,000 (adjusted for inflation).
IRC §6039F.
In calculating the $100,000 threshold, the U.S. Person must
aggregate gifts from different, foreign nonresident aliens and foreign
estates if he or she knows (or has reason to know) that one of those
person is acting as the nominee for the other person.
For tax years beginning in 2010, the reporting threshold amount for
gifts from foreign corporations or partnerships is $14,165.
A gift to a U.S. donee does not include any amounts paid for qualified
tuition or medical payments made on behalf of the U.S. donee.
The Form 3520 is due at the same time as the U.S. Person's federal
tax return, including extensions. But the Form is filed separately from
that tax return (a copy should be attached to the Federal Tax Return).
If the U.S. Person, without reasonable cause, fails to disclose a
foreign gift, the IRS has the right to determine the "proper" tax
treatment of the gift, and the IRS's determination (although
reviewable) is subject to an arbitrary and capricious standard.
For each month that the failure continues, the U.S. Person is
subject to a penalty of five percent of the gift for each month, up to a
U.S. Tax Compliance/Foreign Grantor Trusts (Foreign Gifts)
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25 percent maximum.
The IRS must issue a notice of deficiency and follow deficiency
procedures in making any determination regarding the proper tax
treatment of the gift, but it may summarily assess the five percent
additional penalty.

7. Summary U.S. Tax Compliance Foreign Grantor Trusts

(Foreign Gifts)

When a U.S. person receives a foreign gift, or establishes a

foreign grantor trust, the following U.S. tax compliance is required:

1. Form 56 (upon trust formation)

2. Form SS-4 (for trust formation)

3. Form 3520 (on both trust formation within 90 days of the

reportable event, or annually upon receipt of foreign gifts)

4. Form 3520-A (annually)

5. Form 709 (Gift Tax Returns) for transfer of Assets to fund a

Foreign Trust

A copy of both Form 3520 and 3520-A is to be attached to the

U.S. person’s tax return, with separate copies filed with the IRS in
Ogden, Utah.