U.S. persons who make outbound investments in foreign corporations often have thorny federal reporting obligations. In addition to the commonly filed IRS Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations, these taxpayers may have separate requirements to file an IRS Form 926, Return of a U.S. Transferor of Property to a Foreign Corporation. The penalties for failing to file a timely and complete IRS Form 926 can be severe. This article discusses three important things you should know about the IRS Form 926.
Who Must File
Congress enacted Section 6038B as part of the Deficit Reduction Act of 1984. Under section 6038B, U.S. persons must file an information return for any tax year in which they transfer property to a foreign corporation in an exchange that falls under sections 332, 351, 354, 355, 356, or 361 (the "tax-free corporate provisions"). Thus, an IRS Form 926 must be filed if: (i) a U.S. person (ii) transfers property to a foreign corporation (iii) in a transfer that qualifies under one of the tax-free corporate provisions.
For these purposes, a U.S. person means a U.S. citizen or resident or any domestic corporation, trust, or estate. If a partnership transfers property to a foreign corporation, the U.S. partners (and not the partnership) must separately file the form with each domestic partner treated as a transferor of its proportionate share of the property.
The second element above requires the U.S. person to analyze the "check-the-box" regulations to determine whether U.S. tax law treats the transferee entity as a corporation. Generally, a foreign entity is characterized as a corporation if it is either: (i) a per se corporation, or (ii) all of its members have limited liability.
Finally, the third element requires the U.S. person to have made a transfer of property within one of the tax-free corporate provisions identified in section 6038B. These provisions can be broken down into three groups. The first group, relating to section 351, applies when a U.S. person makes a transfer of property to a controlled foreign corporation—that is, one in which the transferor or transferors own at least 80% of the voting shares of the company and at least 80% of the total number of non-voting shares of the company. The second group, relating to section 332, applies only when a U.S. corporate subsidiary liquidates into a foreign corporate parent. The third group—consisting of sections 354, 355, 356, and 361—generally relate to corporate reorganizations and spin-offs. Readers should recognize that there are exceptions to the IRS Form 926 filing requirement regarding certain tax-free corporate reorganizations, which may be found in the instructions to the IRS Form 926 (e.g., Type E recaps).
- Example: A U.S. citizen, C, creates a Malta Public Limited Company (PLC). After its formation, C transfers appreciated real estate to the PLC in exchange for 100% of PLC's ownership. Because section 351 governs the transfer, C has an IRS Form 926 filing obligation.
- Example: Z lc (ZLC) is a New Zealand limited company. It owns 100% of all of the outstanding stock of Y Corporation, a U.S. company. On December 31, 2023, Y Corporation completely liquidates and distributes all of its assets to ZLC. Because section 332 governs the transfer, Y Corporation must file an IRS Form 926 with respect to the corporate liquidation.
Cash Transfers Sometimes Qualify
Significantly, a U.S. person's transfer of cash in certain circumstances may cause an IRS Form 926 filing requirement. Indeed, although Congress enacted the tax-free corporate provisions as a means for taxpayers to defer gain recognition on appreciated property, federal courts have long held that a transfer of cash also constitutes property under many of the tax-free corporate provisions. See, e.g., Halliburton v. Comm'r, 78 F.2d 265 (9th Cir. 1935).
Thus, under the regulations, a U.S. person must file an IRS Form 926 if the transfer of cash otherwise qualifies under the tax-free corporate provisions and either: (i) immediately after the transfer of cash, the transferor holds 10% or more of the voting power or value of the foreign corporation (directly, indirectly, or by attribution), or (ii) the amount of cash transferred to the foreign corporation by the transferor, including certain related parties, exceeds $100,000 during the 12-month period ending on the date of the transfer.
- Example: A, B, and C form a U.K. Public Limited Company (PLC). B is a U.S. citizen. A,B, and C each transfer $50,000 to the PLC in exchange for equal 33.33% interests in the PLC. B has an IRS Form 926 filing requirement with respect to the transfer because B holds at least 10% of the voting power and value of the PLC.
- Example: A, B, and C form a U.K. Public Limited Company (PLC). B is a U.S. citizen. A and C transfer $1.9 million each to the PLC for a cumulative 95% interest in the PLC. B transfers $200,000 for the remaining 5% interest. Although B does not meet the 10% vote/value test, B nevertheless has an IRS Form 926 filing requirement because his cash transfer exceeds $100,000.
Consequences Of Not Filing
There are numerous adverse consequences associated with failing to file an IRS Form 926. First, the IRS may impose a monetary civil penalty against the taxpayer equal to 10% of the fair market value of the transferred property (not to exceed $100,000 unless the failure was due to intentional disregard). Similar to other international information return penalties, however, U.S. persons may avoid the penalty altogether to the extent they can show reasonable cause.
Second, the statute of limitations for the agency to make additional assessment of tax remains open until taxpayer files the Form 926 and, if filed, for three years thereafter. If the taxpayer's failure to file was due to reasonable cause, this open statute of limitations period only applies to the items that should have been reported on the form. If the taxpayer does not have reasonable cause, the open statute of limitations period applies to the entire income tax return.
Third, the IRS may impose enhanced accuracy-related penalties. Specifically, the general 20% accuracy-related penalty increases to 40% if the transfer is not disclosed on an IRS Form 926.
Conclusion
Federal tax law requires U.S. persons to file an IRS Form 926 each year they make certain transfers to foreign corporations. Because significant penalties and other adverse consequences can result from not filing an IRS Form 926, taxpayers who have missed the form's filing deadline should consult with a tax professional to determine what steps may be taken to mitigate penalties and regain compliance. In some instances, taxpayers may qualify for an IRS program such as the Streamlined Filing Compliance Procedures (SFCP).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.