Beware the Potential Tax Pitfalls of Investing in Offshore Mutual Funds or Owning Foreign Insurance Policies

Beware the Potential Tax Pitfalls of Investing in Offshore Mutual Funds or Owning Foreign Insurance Policies

If you have never reported your foreign investments on your U.S. Tax Returns, the IRS has established the Offshore Voluntary Disclosure Program (OVDP) which allows taxpayers to come forward to avoid criminal prosecution and not have to bear the full amount of penalties normally imposed by IRS.  When entering into OVDP, a taxpayer must file amended income tax returns reporting worldwide income and file all required informational tax forms.  Many taxpayers who attempt to do this on their own and who have Foreign Mutual Funds or Foreign Insurance Policies are finding that their OVDP submissions are being rejected or examined because of some arcane tax laws and tax procedures associated with these investments that most laypeople are not aware.

Do You Have Foreign Mutual Funds?

U.S. taxpayers ought to be aware of the potential tax heartaches associated with investing in mutual funds held by foreign banks or foreign brokerage firms. When making such investments through U.S. firms, any appreciation or depreciation of value of the funds is not recognized as gain or loss until the fund is sold or liquidated.  This is not the case with the same type of investments in foreign firms.  Each year the U.S. investor must pick up as income or record a loss in the appreciation or depreciation of value of the funds even though there was no sale or liquidation of the funds.  Essentially, such an investor loses the advantage of deferring gains which is enjoyed by those investors dealing with U.S. firms.

To understand how this operates – under the Internal Revenue Code, there is a concept called Passive Foreign Investment Company or “PFIC”.  A foreign corporation is classified as a PFIC if it meets one of the following tests:

1. Income Test– 75% or more of the corporation’s gross income is passive income (interest, dividends, capital gains, etc.)
2. Asset Test– 50% or more of the corporation’s total assets are passive assets; passive assets are investments that produce interest, dividends or capital gains.

The IRS has extended the characterization of a PFIC to include most foreign-based mutual funds, hedge funds and other pooled investment vehicles.

A. U.S. taxpayer with these investments is required to fill out Form 8621, Information Return by a Shareholder of a Passive Foreign Investment Company or Qualifying Electing Fund, and include it with his Form 1040 along with the appropriate PFIC income and tax computations.  The IRS offers various complicated methods of reporting PFIC income.  Under one such method, “Mark-to-Market”, the IRS requires the reporting of the value of a mutual fund from year to year and taxes any appreciation in the mutual fund values from year to year.  The tax rate that applies is 20%. This is in addition to the normal taxation of dividends and capital gains that domestic mutual funds are taxed on.

Reporting the appreciation of a mutual fund from year to year may end up being no small task as oftentimes a typical stock portfolio will contain twenty to thirty funds which may involve lots of trade activity over the course of many years.  The taxpayer needs to keep accurate and comprehensive records of all information on the mutual fund(s) including share basis, yearly balances, and any sales or purchases from year to year. With such level of activity to record each year, no wonder how laypeople and even tax preparers cannot get these computations right leading to higher penalties and perhaps jeopardizing a taxpayer’s Voluntary Disclosure Submission.

Do You Have A Foreign Insurance Policy?

There is an excise tax under Internal Revenue Code Sec. 4371 imposed on insurance policies issued by foreign insurers. Any person who makes, signs, issues, or sells any of the documents and instruments subject to the tax, or for whose use or benefit they are made, signed, issued, or sold, is liable for the tax.

The following tax rates apply to each dollar (or fraction thereof) of the premium paid.

1. Casualty insurance and indemnity, fidelity, and surety bonds: 4 cents. For example, on a premium payment of $10.10, the tax is 44 cents.
2. Life, sickness, and accident insurance, and annuity contracts: 1 cent. For example, on a premium payment of $10.10, the tax is 11 cents.
3. Reinsurance policies covering any of the taxable contracts described in items (1) and (2): 1 cent.

However, the tax doesn’t apply to casualty insurance premiums paid to foreign insurers for coverage of export goods in transit to foreign destinations.  Premium means the agreed price or consideration for assuming and carrying the risk or obligation. It includes any additional charge or assessment payable under the contract, whether in one sum or installments. If premiums are refunded, claim the tax paid on those premiums as an overpayment against tax due on other premiums paid or file a claim for refund.

The liability for this tax attaches when the premium payment is transferred to the foreign insurer or reinsurer (including transfers to any bank, trust fund, or similar recipient designated by the foreign insurer or reinsurer) or to any nonresident agent, solicitor, or broker. A person can pay the tax before the liability attaches if the person keeps records consistent with that practice.

The person who pays the premium to the foreign insurer (or to any nonresident person such as a foreign broker) must pay the tax and file the return (Form 720, Quarterly Federal Excise Tax Return). The Form 720 covers the last calendar quarter and is due no later than the last day of the month succeeding the reporting quarter.  For example, a Form 720 covering the quarter ended September 30, 2016 is due October 31, 2016.  If you are required to file this Form, you will also need to secure a Taxpayer Identification Number (not your social security number) as these excise taxes are tracked separately by IRS just like employment taxes.

The fact that a tax treaty with the foreign county exempts the taxation of these insurance policies does not waive the requirement for you to file the Form 720.  Attach any disclosure statement to the first quarter Form 720 you would need to file. You may be able to use Form 8833, Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b), as a disclosure statement.

Conclusion.

If you are a U.S, taxpayer with foreign mutual funds or foreign insurance policies, make sure your tax filings are compliant and complete by enlisting the assistance of counsel experienced in the reporting of these investments.