COURT DEEMS A FOUNDATION A FOREIGN TRUST, GREENLIGHTING TAX PENALTIES

Court deems a foundation a foreign trust, greenlighting tax penalties

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Foreign assets are always tricky for U.S. tax reporting. A recent court decision also shows that differentiating a foundation from a trust is pivotal.

The levying of tax penalties stood in a recent federal appeals court decision on whether a private foundation was a foreign trust subject to such penalties.

In the?Rost v. U.S., the U.S. Court of Appeals for the Fifth Circuit upheld tax penalties against U.S. citizen John Rebold, who failed to report his personal-use Liechtenstein “Stiftung” (a non-charitable private foundation) as a foreign trust.?

The decedent Rebold formed the Enelre Foundation in 2005 for the general support and education of him and his children.?He transferred $2 million to the foundation in 2005 and $1 million in 2007 and did not disclose the transactions to the IRS.?

Rebold later learned that the IRS would consider his foundation a foreign trust with the associated reporting requirements. He filed the reports belatedly, in 2013, and the IRS assessed penalties.

Under IRC Sec. 6048, a U.S. person must report creation of a foreign trust, transfers to a foreign trust and distributions received by a foreign trust; ownership of the trust must also be disclosed.?Annual filing forms are 3520 and 3520-A, and penalty for failing to file is the greater of $10,000 or 35% of the gross value of property contributed to a foreign trust.

Rebold paid the penalties and then filed a refund action, arguing that the penalties were improper because the reporting requirements for the private foundation were unclear, even though he’d been told as early as 2010 (a year before the IRS announced a new Offshore Voluntary Disclosure Initiative, aka OVDI) that his tax-reporting position was obvious.

He was assessed $1,380,252.35 in penalties and negotiated to reduce these penalties by half. He paid the reduced penalties and filed for an administrative refund claim, which was ultimately taken over by his estate after his death. The estate argued that the foundation wasn’t a foreign trust, claiming that the rules defining trusts are vague and that the IRS never designated that a?Stiftung?was a foreign trust.

The district court granted summary judgment for the government; the Fifth Circuit has agreed, opining that Enelre’s organizing documents explain its purpose is to support its beneficiaries and limit its transactions to pursuing and realising its purpose – characteristic of an ordinary trust. Proving Enelre was “foreign” meant simply applying the tests of whether a U.S. court processed supervision over the trust administration and if a U.S. person controlled all substantial decisions of the trust. The beneficiaries also didn’t know about the trust for years.

Estate planning with foreign assets can involve especially tricky tax reporting. Your tax specialist needs to be able to handle these and many other issues of wealth, foreign and domestic holdings and income and tax enforcement. If we can help, please let us know.

About the Author?

Alicea Castellanos is the CEO and Founder of Global Taxes LLC. Alicea provides personalized U.S. tax advisory and compliance services to high net worth families and their advisors.?Alicea has more than 17 years of experience. Prior to forming Global Taxes, Alicea founded and oversaw operations at a boutique tax firm, worked at a prestigious global law firm and CPA firm.?Alicea specializes in U.S. tax planning and compliance for non-U.S. families with global wealth and asset protection structures which include non-U.S. trusts, estates and foundations that have a U.S. connection.

Alicea also specializes in foreign investment in U.S. real estate property, and other U.S. assets, pre-immigration tax planning, U.S. expatriation matters, U.S. persons in receipt of foreign gifts and inheritances, foreign accounts and assets compliance, offshore voluntary disclosures/tax amnesties, FATCA registration, and foreign companies wanting to do business in the U.S.?Alicea is fluent in Spanish and has a working knowledge of Portuguese.

Alicea is an active member of the Society of Trusts & Estates Practitioners (STEP), the New York State Society of Certified Public Accountants (NYSSCPAs), the American Institute of Certified Public Accountants (AICPA), the International Fiscal Association (IFA), a member of Clarkson Hyde Global, a world-wide association of accountants, auditors, tax specialists and business advisors and the International Advisory Experts (IAE).

Distinctly, in 2020, Alicea was awarded with a prestigious NYSSCPA?Forty?Under 40 Award.?She was selected as someone that has notable skills and is visibly making a difference in the accounting profession. Alicea has also been recognized as a leading expert for Tax advice and she has been invited to join Advisory Excellence, as their exclusively recommended tax expert in the USA.

In 2021 and 2022, Alicea was the Gold and Silver Winner, respectively, of Citywealth's Powerwomen Awards in the category USA - Woman of the Year - Business Growth (Boutique). Furthermore, Alicea is currently listed in the Global Elite Directory 2022, which is an annual exclusive directory of the world's elite lawyers and outstanding wealth advisors advising ultra-high net-worth clients.

Please note: This content is intended for informational purposes only and is not a replacement for professional accounting or tax preparatory services. Consult your own accounting, tax, and legal professionals for advice related to your individual situation. Any copy or reproduction of our presentation is expressly prohibited. Any names or situations have been made up for illustrative purposes — any similarities found in real life are purely coincidental.?