The IRS Form 3520 reports annually information about US persons’ (a) ownership of foreign trusts, (b) contributions to foreign trusts, (c) distributions from foreign trusts and (d) major (USD $100,000+) gifts or inheritances from foreign individuals or foreign estates.
A US person, of course, is not just a US citizen, but is a term which also covers US permanent residents (‘green card’ holders), US work visa holders of any kind, and often, individuals who were “substantially present” in the US, based on a formula based on days the person was physically inside the borders of the US.
The most common condition requiring a US person to file a Form 3520 is owning a self-administered foreign retirement plan or account. Few if any US persons know that their ownership or benefit from such a plan or account is considered ownership of a foreign trust and must be reported on a Form 3520.
We offer a fuller list of potentially US-reportable foreign retirement plans or accounts below under the heading “Foreign Retirements Are Often Treated As Foreign Trust Arrangements in US and Must Be Reported on Form 3520 (And Potentially 3520-A)”
If in a single year you received cash, financial assets, or even real estate (worth in total more than USD $100,000) from a single foreign estate upon the death of a foreign person, you were required to file a Form 3520 for the year of the inheritance.
Similarly, if in a single year you received cash, financial assets, or even real estate as a gift (more than USD $100,000) from a single foreign person, you were required to file a Form 3520.
As an additional (if rarely-applicable rule), multiple gifts or inheritances received in a single year should be aggregated (for purposes of testing where the USD $100,000+ threshold has been exceeded) if you know or have reason to know that the source of those gifts or inheritances (foreign person(s) and/or foreign estate(s)) are related to one another, or one is acting as a nominee or intermediary for the other.
Finally, gifts received from foreign partnerships or corporations have a much lower threshold for reporting. Total gifts from these sources in excess of just $16,076 in a reporting year also trigger the Form 3520 reporting obligation.
Many people fail to recognize foreign gifts for what they are. For example, many countries have a ‘pre-inheritance’ system in which one person (such as a parent) transfers assets while still living, to a relative (such as a child) who would inherit from them after death. Such a transfer is made without receiving anything of value in return from the recipient.
A transfer to another person without receiving anything of equal value in return is either a gift or an inheritance. In the ‘pre-inheritance’ example, the giver has not died, which means that the transfer is a gift. If that pre-inheritance (or any other kind of gift) from a foreign person was in excess of USD $100,000, the US person recipient would be obligated to file a Form 3520 to report the gift.
Failing to file a required Form 3520 exposes a US person to enormous penalties. Form 3520 penalties begin at $10,000 per violation, and can easily reach the millions for those who didn’t report any of the following:
The triggers to the Form 3520 foreign trust reporting and Form 3520 major foreign gift/inheritance reporting obligations are broad and – to be absolutely clear – extremely complex. This is illustrated by the Form’s four different Parts and by its 14 pages of Instructions which (in theory) explain and guide compliance with this sprawling reporting regime.
Rather than recite, at great length, the technical triggers to each of those four Parts, we recommend consulting with a Form 3520 tax attorney if you any of the following apply to you in any year:
Even these ‘triggers’ might be too difficult to analyze accurately unless you’re an international tax expert. Rather than trying to do so, we always recommend a simpler path:
If you even think you have any amount of ownership or beneficial economic relationship with any kind of foreign asset, take a free consultation with international tax attorney Andrew L. Jones, who can promptly help you determine whether you have to file any of the following:
If you failed to file a Form 3520, or filed one that was incorrect, incomplete, or late/delinquent, you are potentially subject to a $10,000 Form 3520 penalty from the IRS for each year of violation.
We invite you to read onward, but the surest way of determining if you have a Form 3520 penalty problem is to actually talk with Form 3520 tax attorney and tax lawyer Andrew L. Jones. Call (415) 745-1924 now to determine:
In working with a Form 3520 tax expert, all options are on the table, and your discussions with tax attorney Andrew L. Jones – who will be your direct point of contact – are protected by the robust attorney-client privilege.
Call (415) 745-1924 for an immediate, free and completely confidential conversation with experienced Form 3520 tax lawyer Andrew L. Jones.
The following events and conditions would trigger your obligation to file a Form 3520:
A small number of US persons deliberately created a trust overseas, or purchased a foreign trust as a product from a tax or legal professional. These individuals obviously know of their reportable relationship with a foreign trust. It is therefore very rare for this group to violate their Form 3520 reporting obligations.
However, there is a far larger population of US persons (US citizens, US permanent residents, US work visa holders, and the very rare condition of an individual who is ‘substantially present’ in the US) who also have a reportable relationship with a foreign trust, but don’t know it.
These US persons are unaware that various assets and economic arrangements they own/control outside the US are – under US law – ‘foreign trust arrangements.’
The reason this large group doesn’t know about their Form 3520 obligation is because their foreign assets and economic arrangements are not actually called trusts. Instead, these assets and arrangements are given all sorts of other titles, and marketed under all kinds of names. These assets and arrangements never contain the term ‘trust.’ As a result, these US persons are ignorant that these assets and arrangements are – for US tax law purposes – foreign trusts.
For the clients of tax attorney Andrew L. Jones, the most common example of an ‘unknown’ foreign trust arrangement is foreign, self-administered retirement accounts.
In all but rare instances, a foreign retirement arrangement is reported and taxed in the US as a foreign trust. And, in all but rare instances, the US person has control over the investment choices, meaning it is a self-administered foreign retirement account, with the result that the taxpayer must file not only Form 3520 but also Form 3520-A.
Contrary to the US person’s expectations, the US almost never grants these foreign retirements tax deferral – even though they are given that favorable treatment in the foreign country. The result is that while the foreign country may not collect any tax on the yearly earnings of the foreign retirement arrangement, the US views the arrangement as a standard taxable investment account, and collects tax on earnings on a standard annual basis.
And if all of the preceding revelations weren’t bad enough, we also find that the foreign retirement accounts often hold diversified foreign fund-type assets. Such foreign fund-type assets, unfortunately, trigger another special reporting obligation: the Form 8621, which reports each of the separate fund-type investments separately on its own annual Form 8621 (reporting these funds as Passive Foreign Investment Company (‘PFIC’) assets.)
If there is still any question about whether you have any relationship with a foreign trust-type asset, the simplest approach of all is to call (415) 745-1924 for an immediate, free and completely confidential conversation with experienced Form 3520 tax lawyer Andrew L. Jones. However, if you do want to self-analyze, understand that foreign trusts include virtually any retirement or future income-oriented contractual arrangement or financial account.
These contracts and accounts go by a nearly limitless variety of names or categories, including:
Note that the preceding is still not an exhaustive list of all US-reportable or US-taxable foreign retirement arrangements, and are not even necessarily complete on a per-country basis. Only an attorney can properly analyze your foreign retirement arrangement to determine if it is subject to Form 3520 or Form 3520-A reporting.
The failure to timely file a Form 3520 (or timely filing an incorrect or incomplete Form 3520) is subject to the higher of the following penalties:
For Foreign Trust Issues
A US person can be subject to another penalty of the greater of $10,000 or 5% of gross value, if this person fails to ensure that the trust files a timely Form 3520-A and gives the required annual statements to US owners and beneficiaries or does not furnish all of the information required by Section 6048(b) or reports incorrect information.
For Foreign Gift or Foreign Inheritance Issues
As an example of the enormous potential size of Form 3520 penalties, consider a US person who inherits a $500,000 home from the foreign estate of her foreign mother.
This inheritance, we know, was reportable on the Form 3520 by April 15 of the trailing year. However, if this US person failed to file the Form 3520 (reporting the inheritance at Part IV) by that April 15 deadline, then just five months after the deadline (so, say, by October 1 of the trailing year), the penalty for the failure to file the Form 3520 would already be $125,000 – calculated as the maximum penalty of 25% of the unreported foreign inheritance of $500,000.
You read that correctly: a US person can be assessed a $125,000 penalty simply for failing to timely file a purely informational return to the IRS.
Consider another example: a US person who received a $500,000 distribution from a foreign trust. This distribution should have been reported on a Form 3520 at Part III, but the US person failed to file by the April 15 (trailing year) deadline. For just that one violation alone, the penalty for the failure to file would be $175,000.
The Form 3520 is due on April 15th of the year after the year the reportable event or condition occurred. The Form 3520 deadline may be extended by April 15 to secure the later deadline of October 15.
If the Form was timely and correctly filed, then the IRS may audit or examine the filing only until 3 years from the April 15th deadline – or the later date if the due date of the return was timely extended.
This means that even if the IRS later has questions or concerns about the Form 3520, as long as it was filed timely and correctly, once this three-year statute of limitations has passed, the IRS cannot assess failure-to-file penalties.
However, if in any year, ever, that US person was required to file the Form 3520 but failed to do so, then the statute of limitations for that violation will never expire – unless and until that Form 3520 is later filed. The statute of limitations for the Form 3520 violation would thereafter expire three years from the late filing.
As described above, the Form 3520 is late or delinquent if it was due but not filed timely. It will always be due until filed, and if not timely filed, then the US person who did not file the required Form 3520 can always be assessed the major IRS penalties described below.
The only defense to Form 3520 penalties is successfully arguing that the noncompliance was due to reasonable cause. This is a challenge that we will shortly see is best met by a Form 3520 tax attorney.
A Form 3520 filing may be audited by the IRS at any time within the statute of limitations. While extremely unlikely, a timely-filed Form 3520 could be found so incomplete or inaccurate that it could be treated as a failure to file and subject the US person to Form 3520 penalties.
Such a Form 3520 examination can also occur when a person obligated to file the Form 3520 didn’t file the Form 3520 when he or she should have.
Whether the US person filed an incomplete or incorrect Form 3520, or the US person completely failed to file a Form 3520 at all, the IRS’ focus in a Form 3520 audit is whether the failure to file a timely, correct and complete Form 3520 is excused by reasonable cause. If reasonable cause exists, the IRS may not impose a Form 3520 penalty.
This means, implicitly, that the Form 3520 penalty regime is indifferent to whether the failure to file the Form 3520 was willful or negligent. This is in sharp contrast to the Foreign Bank Account Report penalty regime, in which a negligent failure to file is treated very differently from a willful failure to file.
In essence, the failure to timely file a complete and correct Form 3520 is a penalizable act/omission unless the taxpayer had reasonable cause for his noncompliance.
If you filed a late, incomplete, incorrect Form 3520 – or didn’t file one at all – you face significant penalties. A reasonable cause argument can help you avoid those penalties – but that argument is best written by a Form 3520 expert tax attorney who has gathered relevant facts, analyzed the error, and can make a winning argument to the IRS.
Involving a Form 3520 tax lawyer will ensure that you have an expert working for you – an expert who knows what facts matter for determining whether your Form 3520 filing violation was (1) willful, (2) negligent (also referred to as non-willful), or (3) occurred for reasonable cause.
Remember that whether a Form 3520 violation was willful or negligent does not change the penalty outcome. (Although a willful failure to file a Form 3520 may be penalizable in other dimensions, such as a fraudulent return filed with the IRS, a false statement to the IRS, etc.)
Instead, the only way to avoid massive Form 3520 penalties is to make a winning reasonable cause argument.
To understand reasonable cause, it will be helpful to contrast it against the legal concept of negligence. Generally stated, negligence (in missing a legal obligation) is characterized by:
By contrast, reasonable cause can (generally and simplistically) be said to exist where there was no reasonable pathway to become aware of an obligation. At a bare minimum, reasonable cause requires that the taxpayer have missed no reasonably-apparent clues to his or her obligation, particularly clues that he or she documentably encountered at any point.
Additionally, the IRS views certain obligations (like the existence of the annual income tax return Form 1040) as so universally known to individuals of average sophistication that failure to comply cannot generally occur for reasonable cause. By contrast, quality fact-gathering and argumentation can convince the IRS that the failure to comply with more obscure Form filing obligations did meet the reasonable cause standard of exercising ‘ordinary business care and prudence.’
Interestingly, we think that the actions of the average US taxpayer would not meet this ‘ordinary business care and prudence’ standard. In our view, the average US taxpayer is routinely sloppy and non-diligent and makes errors on his tax returns (or fails to report or file certain income items altogether).
Additionally, the IRS views certain obligations (like the existence of the annual income tax return Form 1040) as so universally known to individuals of average sophistication that failure to comply cannot generally occur for reasonable cause. By contrast, quality fact-gathering and argumentation can convince the IRS that a taxpayer who failed to comply with more obscure Form filing obligations (like the Form 3520) nonetheless did meet the reasonable cause standard of exercising ‘ordinary business care and prudence.’
Interestingly, we think that the actions of the average US taxpayer would not meet this ‘ordinary business care and prudence’ standard. In our view, the average US taxpayer is routinely sloppy and non-diligent and makes errors on his tax returns (or fails to report or file certain income items altogether).
For this reason, we can say (again, generally and simplistically) that the reasonable cause standard requires the taxpayer behave in an above-average manner – arguably in a manner well above that of the average US taxpayer.
As should be apparent even from this brief discussion, whether the reasonable cause defense to the Form 3520 penalty exists, and whether it can be proven to the IRS is a hyper-technical matter. The fact-gathering, analysis, and (ultimately) write-up for IRS review is thus best left to a Form 3520 tax lawyer.
In short, the reasonable cause defense is beyond the limits of self-advice or self-help – get a professional involved!
‘Standard’ IRS penalty abatement is available for three types of common Form 1040 penalties – the failure-to-file, failure-to-pay, and failure-to-deposit tax penalties. They are typically granted on a standard ‘just this once’ basis, provided a handful of other conditions of good tax-related behavior are met.
Penalties for failure to timely and correctly file the Form 3520 are, by contrast, not granted on a similar ‘for the asking’ or ‘just this one time only’ basis.
Instead, Form 3520 penalties can only be ‘abated’ by a finding that they are not legally justified. The grounds for not assessing a Form 3520 or offering Form 3520 amnesty is actually a finding by the IRS that the failure is due to reasonable cause, a legal concept described immediately above.
In summary, Form 3520 abatement or Form 3520 amnesty are not truly correct terms to describe the actual law (for defending against Form 3520 penalties). They are also not truly correct terms for describing defense against penalties on the grounds of reasonable cause.
Instead, we mention them here to aid the layman in understanding that it is possible to obtain a no-penalty outcome for delinquent or incorrect/incomplete Form 3520 filing. This requires proving reasonable cause.
While Form 3520 amendments are rare, there are certain instances in which it might become necessary or at least advisable to amend an original and timely-filed Form 3520 – perhaps the filer receives late or corrective source documents from the foreign trust after the deadline, or discovers that his calculations of income (as originally reported) or asset value were significantly inaccurate.
Filing a Form 3520 amendment is a problematic act, insofar as the IRS’ automated systems are generally set up to detect a ‘late’ filing (here, the amendment itself) and to automatically assess the Form 3520 penalties outlined here.
For this reason, we typically recommend that when submitting a Form 3520 amendment, the filer also submit (physically attached to the amendment) a detailed legal argument for why it is not the filer’s fault that the original filing contained inaccurate, incomplete, or missing information.
Since this statement must make an argument against Form 3520 penalties because of reasonable cause, we call this attachment, very simply, a reasonable cause statement.
This statement is a legal argument with large IRS penalties at stake. For this reason, the person filing an amended Form 3520 should strongly consider consulting with and/or hiring a Form 3520 tax lawyer. This attorney will first consider the critical question of whether to file an amendment at all. If this is the best path, the attorney will also gather facts, apply the law to these facts, and ultimately write the necessary reasonable cause statement to avoid Form 3520 penalties.
A Form 3520 voluntary disclosure is filing of an amended or delinquent/late Form 3520 with the IRS. Very literally, the US person is voluntarily disclosing a failure to either file a Form 3520 by the deadline, or voluntarily disclosing that an earlier, timely-filed Form 3520 contained substantial errors or omissions.
Any US person considering submitting a late/delinquent or amended Form 3520 to the IRS should strongly consider hiring a Form 3520 voluntary disclosure attorney to draft a reasonable cause statement as a defense to the penalties the IRS might impose for the late or amended filing.
Knowing that (1) a Form 3520 voluntary disclosure submitted late and without a reasonable cause statement is likely to be met with an automatically-assessed penalty and knowing that (2) you’ll want to fight back against that penalty by making an argument of reasonable cause, it makes logical sense to simply submit a reasonable cause statement at the same time you submit the late Form 3520.
To do anything else is simply delaying the inevitable confrontation, and wasting your time and mental bandwidth.
In a Form 3520 quiet disclosure or Form 3520 silent disclosure, the filer submits an amended or late Form 3520, and hopes that the IRS simply (somehow) doesn’t notice the delinquency or assess a penalty.
The IRS is increasingly aware of late or amended Form 3520 filings and has programmed its data management systems to assess penalties for late filings which contain no explanation of why the IRS shouldn’t assess the penalty. Thus, simply stated, Form 3520 quiet disclosure and Form 3520 silent disclosure doesn’t work.
The smart choice is working – from the beginning – with a Form 3520 tax attorney who can make a winning Form 3520 reasonable cause argument. Every single client for whom Andrew Jones has submitted a delinquent or amended return and a reasonable cause statement has avoided IRS penalty assessments.
Expertise is at a premium here. Make the call and speak now – for free – with Form 3520 expert Andrew L. Jones at (415) 745-1924.
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