In proposed regulations (REG-133850-13) released May 7, 2024, the IRS provides its interpretation of the statutes governing information reporting for foreign gifts and foreign trusts. The proposed regulations largely draw from Notice 97-34, the last major piece of administrative guidance issued on the subject. The IRS, however, has clarified or expanded key areas that require close attention by tax practitioners, especially as these regulations would impact the preparation of Forms 3520, Annual Return to Report Transactions With a Foreign Trust and Receipt of Certain Foreign Gifts, and 3520-A, Annual Information Return of Foreign Trust With a US Owner.

Background

The proposed regulations would address the following sections of the Internal Revenue Code (IRC):

1. IRC Section 643(i), which treats any loan of cash or marketable securities from a foreign trust as a distribution (potentially resulting in taxable income), if the loan is made to a US person who is either the grantor or beneficiary, or related to the grantor or beneficiary, of a foreign trust
2. IRC Section 679, which treats a US person who transfers property to a foreign trust as the owner of the portion of the trust attributable to the property transferred to the trust if there is a US beneficiary of any portion of the trust
3. IRC Section 6039F, which requires a US person to report the receipt of large gifts or bequests from foreign trusts (failure to properly report permits the IRS to recharacterize the gift or bequest as income)
4. IRC Sections 6048 and 6677, which require a US person to report transactions with foreign trusts and impose penalties on any taxpayer that fails to do so

Loans from a foreign trust: IRC Section 643(i)

Overview of proposed regulations

The proposed regulations, under IRC Section 643(i), generally would confirm and elaborate upon the IRS's guidance on the tax and information reporting consequences in Notice 97-34.

The proposed regulations address the treatment of certain loans and uncompensated use of trust property as "distributions" from a foreign trust. Those distributions may be taxable, to the extent the distribution allocates the "distributable net income" (DNI) or "undistributed net income" (UNI) of a foreign nongrantor trust to a US person. The trust may be eligible for a DNI-limited distribution deduction for amounts distributed to beneficiaries.

The proposed regulations also would:

• Include exceptions to IRC Section 643(i), distribution treatment for "qualified obligations" and fair market value (FMV) compensation for use of trust property
• Address Forms 3520 and 3520-A reporting requirements for loans from a foreign trust and use of a foreign trust's property by certain US grantors, beneficiaries and related persons
• Treat certain loans made through an intermediary, agent, or nominee as being made by the foreign trust
• Address the issuance of Foreign Nongrantor Trust Beneficiary Statements, and the consequences to beneficiaries for failing to issue those statements (e.g., use of actual DNI/UNI to determine beneficiary taxation as opposed to the "default method")

The proposed regulations would include a new anti-abuse rule under which a nonresident alien (NRA) who is a grantor or beneficiary of a foreign trust would be subject to IRC Section 643(i) if the NRA received a loan from the foreign trust and became a US person within two years of the loan. The proposed regulations would subject the NRA to IRC Section 643(i) on the outstanding loan amount on the date the NRA acquires US residence or citizenship, provided "the loan was not a qualified obligation as of the date that it was made."

In addition to the traditional IRC Section 643(i) exceptions for qualified obligations and FMV compensation for the use of trust property, the proposed regulations would not treat a loan or use of property as an IRC Section 643(i) distribution if one of the following exceptions applied:

• The use is a de minimis use of the trust property. The proposed regulations define "de minimis use" as aggregate use of trust property of 14 days or less during the tax year by a US grantor or beneficiary, or certain US relatives thereof.
• A loan of cash is made by a foreign corporation to a US beneficiary of the foreign trust, provided the aggregate amount of all the "loans to the beneficiary does not exceed the undistributed earnings and profits of the foreign corporation attributable to amounts that are, or have been, included in the beneficiary's gross income under [IRC Sections] 951, 951A, or 1293."

The proposed regulations would include a safe harbor rule, allowing for compensation for usage of a foreign trust's property to be paid within 60 days of the usage.

The definition of "qualified obligation" remains largely unchanged from Notice 97-34. A qualified obligation must (i) be in writing with a term that does not exceed five years, (ii) be denominated in US dollars, (iii) meet certain interest and yield to maturity requirements, and (iv) be reported on Form 3520. The proposed regulations, however, would clarify the following requirements:

• The obligation is issued at par and has a fixed interest rate or a qualified floating rate as defined in Treas. Reg. Section 1.1275-5(b).
• All stated interest must be qualified stated interest as defined in Treas. Reg. Section 1.1273-1(c).
• The obligor must make all payments of principal and interest according to the terms of the obligation.

The proposed regulations would continue to treat an IRC Section 643(i) distribution as an amount that may constitute a DNI or UNI distribution to a US person. Regarding the trust, the proposed regulations would treat the distribution as an amount paid, credited or required to be distributed by the trust under IRC Section 661(a)(2) for which the trust may claim a distribution deduction in calculating its taxable income. An IRC Section 643(i) distribution of marketable securities would cause the foreign trust to be deemed as having made an election to apply IRC Section 643(e)(3) to the distribution. The foreign trust would recognize the gain or loss as if the marketable securities had been sold at FMV and the foreign trust would include any recognized capital gain in its DNI. This provision could cause the US beneficiary to be taxed.

The proposed regulations also would include provisions that address:

• Modifications to an obligation and issuance of subsequent obligations
• Certain subsequent transactions with the trust, including repayment of the obligation
• The extent to which a loan or use of trust property from a partial nongrantor trust will be attributable to the nongrantor trust portion
• The amount treated as an IRC Section 643(i) distribution
• The allocation of an IRC Section 643(i) distribution among multiple US grantors and beneficiaries

Implications of IRC Section 643(i) proposed regulations

It has been important for US grantors, beneficiaries and their relatives to closely monitor loans from foreign trusts and use of foreign-trust property. The US federal income taxation and information reporting requirements for US grantors, beneficiaries and relatives are complex and create unique risk.

The proposed de minimis exception could allow for 14 days of use of foreign-trust property without that use being viewed as a potentially taxable trust distribution. However, in practice, this might not be a significant safe harbor. For example, if a family of four (including a US beneficiary of a foreign nongrantor trust, US spouse, and two US children) enjoys rent-free use of a vacation home owned by the trust for four days, it appears the proposed regulations would treat that use as 16 days in the aggregate.

If finalized, the two-year anti-abuse rule would treat loans received within two years of US residency different from a distribution within two years of US residency. Currently, the loan would not be treated as a distribution from the trust, regardless of when the individual became a US person. However, the two-year anti-abuse rule would deem the NRA to have received a foreign trust distribution as of the date US citizenship or residency is acquired, if the NRA (1) obtained a loan from the trust within two years of becoming a US person, (2) the loan remained outstanding and (3) the loan was not a qualified obligation. The existing qualified obligation rules contain numerous requirements, including a five-year repayment requirement that, in most cases, can be problematic from a practical perspective, as typical foreign loans would not be structured as qualified obligations. Further, under the proposed regulations, the loan may be subject to retesting of qualified obligation status in certain cases (e.g., if modified, or if the individual obtains another loan from the trust while the original obligation is still outstanding).

The two-year anti-abuse rule for loans from foreign trusts may be perceived as unexpected because the IRC and Treasury Regulations do not contain a rule for foreign trust distributions to inbound NRAs. That is, an NRA could receive within two years of becoming a US person a non-loan distribution from a foreign trust without US tax consequences.

Although no US income tax would result, Example 5 clearly explains that a US person must report on Form 3520 Part III the use of the trust property, even when a foreign trust is a grantor trust to an NRA. It is odd to report this usage when the provision does not have any revenue-raising ability, other than potential penalties. The example is helpful to clarify the expectation that taxpayers will comply with Form 3520 when making use of foreign trust property with an NRA grantor.

Grantor trust status: IRC Section 679

Overview of proposed regulations

In addition to clarifying certain definitions, the proposed regulations, under IRC Section 679, would introduce guidance on two key provisions incorporated into IRC Section 679 by the Hiring Incentives to Restore Employment (HIRE) Act, P.L. 111-147. This guidance would clarify the circumstances under which a loan from a foreign trust to a US person, or the use of foreign trust property by a US person, would result in the trust being considered as having a US beneficiary. Furthermore, the proposed regulations would address and clarify IRC Section 679(d), which stipulates that a foreign trust is presumed to have a US beneficiary if a US person transfers property to it, under certain conditions.

US person definition

The proposed regulations would clarify that an individual tax resident in both the United States and a foreign jurisdiction (dual resident taxpayer) would not be considered a US person under IRC Section 679 for any year in which the taxpayer calculates US tax liability as an NRA.

The proposed regulations also would eliminate the language specifically providing that an NRA who elects under IRC Section 6013(g) to be treated as a resident of the United States is a US person for purposes of IRC Section 679. This removal is not intended to result in any substantive changes from the current regulation regarding the treatment of individuals who make an election. Persons who elect to be treated as US persons under IRC Section 6013(g) — as well as those who elect under IRC Section 6013(h) — are treated as US persons for all purposes of Chapter 1 of the Code, including IRC Section 679, so no specific reference is required.

Foreign trust loans and uses of trust property

The proposed regulations would clarify the general rule under IRC Section 679(c)(6) that treats any direct or indirect loan of cash or marketable securities by a foreign trust to (or any direct or indirect use of foreign trust property by) a US person as causing the trust's income or corpus to be paid or accumulated for the benefit of the US person for purposes of determining whether the foreign trust is treated as having US beneficiaries. The proposed regulations also would clarify that a loan guaranteed by a foreign trust, or a loan made through an intermediary or by a related person, is an indirect loan from the foreign trust to a US person.

The proposed regulations would include three exceptions to the general rule under IRC Section 679(c)(6). Under those exceptions, the proposed regulations would not consider trust income or corpus as paid or accumulated for a US person's benefit if one of the following apply:

• The recipient of the loan or user of the trust property is an organization recognized under IRC Section 501(c)(3).
• The obligor makes all payments as defined in Prop. Reg. Section 1.643(i)-2(b)(2)(iii)(B)(3) for any cash loan received by a US person in exchange for a qualified obligation.
• The US person using the trust property compensates the foreign trust at the FMV for the use of the property within a reasonable period from the start of usage by the US person. The proposed regulations would include the following two safe harbors: (1) payment occurs within 60 days of the start of the use of the property; or (2) a 14-day de minimis use exception applies, similar to that provided by the IRC Section 643(i) proposed regulations (see earlier discussion).

Lastly, the proposed regulations would clarify that IRC Section 643(i) does not apply to Prop. Reg. Section 1.679-2(a)(5) to the extent that a foreign trust is deemed to have a US beneficiary and considered owned by a US person under IRC Section 679.

Presumption that a foreign trust has a US beneficiary

The proposed regulations would address when a foreign trust is deemed to have a US beneficiary under IRC Section 679(d). The proposed regulations would allow the IRS to treat the trust as having a US beneficiary under Treas. Reg. Section 1.679-1, unless the US person meets both of the following conditions:

• Complies with the information reporting requirements of Prop. Reg. Section 1.6048-2 for the US person making the transfer to the foreign trust
• Submits an explanatory statement with the federal income tax return, demonstrating that the trust meets the conditions outlined in the Treas. Reg. Section 1.679-2(a)(1) requirements immediately after the transfer

Additionally, the proposed regulations would authorize the IRS to request additional information regarding the foreign trust and its potential beneficiaries to ascertain compliance with Treas. Reg. Section 1.679-2(a)(1). The US person would have to provide the requested information within 60 days (or 90 days for US persons outside the US) following the IRS's written notice. Failure to provide the necessary information within the specified timeframe would lead to a presumption by the IRS that the trust has a US beneficiary.

Implications of IRC Section 679 proposed regulations

The proposed regulations would provide relief for dual resident taxpayers by excluding them from the definition of a US person for purposes of IRC Section 679 in the years they are treated as NRAs. This clarification may influence trust planning of foreign nationals who are tax residents in both the United States and a treaty country, particularly in their decisions to invoke the tie-breaker rules. With the changing definition of a US person, however, US grantors may want to consider the deemed sale rules of IRC Section 684 when taking a treaty NRA position.

The clarity provided by the proposed regulations on what is required so that a foreign trust is not treated as having a US beneficiary should bring greater certainty for US persons settling trusts for non-US family members.

Notice of large gifts received from foreign persons: IRC Section 6039F

Overview of proposed regulations

Though the proposed regulations largely mirror the decades-old guidance within Notice 97-34, they would offer clarification, and in a few instances relief, in several important areas within the foreign-gift-and-bequest-reporting regime as follows:

• The proposed regulations would include an exception to foreign gift reporting on Form 3520, Part IV, for gift recipients who claim NRA status under an applicable income tax treaty. Conversely, a US person who receives gifts or bequests from a foreign dual resident taxpayer could be subject to Form 3520 reporting if the gifts (in the aggregate) exceeded the reporting threshold.
• Similarly, if a person acquired or relinquished US citizenship or residence during a tax year, the proposed regulations would treat that person as a "US person" only for purposes of IRC Section 6039F during the relevant period of US citizenship or residency.
• The proposed regulations would require additional identifying information of transferors if gifts or bequests from one non-US person (or a related person) exceed $100,000 in the aggregate. After the $100,000 threshold is met, each gift or bequest over $5,000 would have to be separately detailed on Form 3520, Part IV (which was previously required) with the identifying information from the transferor (which was not previously required).
• In addition to the penalty for failure to report foreign gifts, which ranges from 5%-25%, the proposed regulations would clarify how the IRS might employ a facts-and-circumstances analysis to recharacterize a gift not properly reported on Form 3520, using the purported gift rules (gifts from corporations or partnerships) of Treas. Reg. Section 1.672(f)-4(a)(2).
• New anti-abuse provisions would impose reporting for any transfer classified by the taxpayers as a loan if, under a facts-and-circumstances test, the IRS would determine the transfer actually constitutes a gift. The IRS noted in the Preamble that this provision was required to address perceived abuses by taxpayers seeking to avoid Form 3520, Part IV reporting. The proposed regulations would not outline a set of factors to be considered, but rather would note that "existing principles of Federal tax law" will apply.
• As dictated by the 2015 Surface Transportation Act, P.L. 114-41, the proposed regulations would confirm that the deadline for filing Form 3520, Part IV to report the receipt of large foreign gifts cannot be extended beyond October 15, even if the US person residing outside of the United States could extend their return to December 15.

Implications of IRC Section 6039F proposed regulations

As noted previously, the proposed regulations would create a helpful exception for dual resident taxpayers by simultaneously creating an arguably "new" treatment of them for IRC Section 6039F purposes. While dual resident taxpayers are not considered "US persons" for purposes of reporting their receipt of large foreign gifts under the proposed regulations, these dual resident taxpayers are expressly considered "foreign" for purposes of triggering Form 3520, Part IV reporting for US donees who receive gifts or bequests from a foreign dual resident taxpayer. This provision would obligate the US person donee to know that the donor took a treaty NRA position. Notably, two often requested exceptions were not included in the proposed regulations. First, the IRS declined to provide any exception for interspousal transfers where the transferor is an NRA and the recipient is a US person. Second, the indexed-for-inflation amount of $100,000 (in the aggregate) for gifts to be reportable was not increased at all. Thus, the number of US persons who fall subject to Form 3520, Part IV reporting remains high.

The proposed regulations emphasize the extreme importance of 3520 reporting by allowing the Commissioner to recharacterize a failed 3520 gift/inheritance reporting as income.

Lastly, the proposed regulations demonstrate the IRS has focused on perceived "abuses" within this regime. It introduced new anti-abuse provisions aimed at recasting purported loans as gifts if the facts and circumstances warrant. It also would require more specific information for every gift above $5,000 once the $100,000 threshold has been met.

Information reporting with foreign trusts: IRC Section 6048

Overview of proposed regulations

The proposed regulations under IRC Section 6048 would largely be comprised of guidance previously issued under Notice 97-34 and Revenue Procedure 2020-17, with some additions and updates to offer clarity and relief to taxpayers. Specifically, the proposed regulations would establish that the due date for Form 3520 for calendar-year taxpayers is April 15, with a maximum potential extension to October 15 (and not December 15, even if the taxpayer resides outside the United States). They also would establish a "substitute" method of filing Form 3520-A with Form 3520 for US owners of foreign trusts when the trustees of the trust do not separately file Form 3520-A and clarify the process for appointing a US agent for a foreign trust. Appointing a US agent is often recommended for taxpayers, as not doing so requires the attachment of certain trust documents to Forms 3520 and 3520-A.

Additionally, the proposed regulations would adopt the provisions of Notice 97-34 on the taxation of distributions made to US beneficiaries by a foreign nongrantor trust under both the actual and default methods, but clarify that, for purposes of the default method, the computation of the interest charge must assume the foreign nongrantor trust has existed for 10 years.

The proposed regulations would clarify which transactions are reportable on Forms 3520 and 3250-A, including the inbound and outbound migration of trusts, with a focus on the foreign information reporting requirements (e.g., Forms 3520 and 3520-A) for the inbound and outbound migration of trusts. The proposed regulations, however, would not alter current law on the taxation of those transactions.

In addition, the proposed regulations would include relief from the filing requirements under IRC Section 6048 for taxpayers taking a position, under an applicable US income tax treaty, to be taxed as NRAs for US federal income tax purposes. They also would clarify the IRS's position that contributions and distributions to a foreign trust must be reported on Form 3520 regardless of whether the trust is treated as a grantor trust.

Exceptions to filing Forms 3520 and 3520-A

The IRS also would adopt and expand the exceptions to filing Forms 3520 and 3520-A for certain tax-favored foreign trusts, as provided in Revenue Procedure 2020-17. In Revenue Procedure 2020-17, the IRS excepted certain tax-favored foreign trusts from the IRC Section 6048 reporting requirements that were not statutorily excepted under IRC Section 6048(a)(3)(B)(ii) (e.g., transfers to foreign compensatory trusts, which include IRC Section 402(b) employee trusts). The proposed regulations would expand this relief by applying the exemption for certain tax-favored foreign retirement trusts if one of the following requirements is satisfied:

• The trust has a value of less than $600,000 (adjusted for inflation).
• The trust limits contributions (including limited allowance for unemployed individuals) to a percentage of earned income of the participant, $75,000 annually (adjusted for inflation), or $1 million in a lifetime (adjusted for inflation).

Similarly, the exemption for tax-favored non-retirement trusts generally would remain the same, except the proposed regulations would adjust the contribution limitation for a tax-favored foreign non-retirement savings trust ($10,000 annually, $200,000 in a lifetime) for inflation.

Additionally, the proposed regulations would exempt a third category of tax-favored foreign trusts, "tax-favored foreign de minimis savings trust," from the IRC Section 6048 reporting requirements. A tax-favored foreign de minimis savings trust is a foreign trust that is created, organized, or otherwise established under the laws of a foreign jurisdiction as a trust, plan, fund, scheme, or other arrangement and is not a tax-favored foreign retirement trust or tax-favored foreign non-retirement savings trust. The trust operates as a savings vehicle that meets the following requirements:

• Is generally exempt from income tax or is otherwise tax-favored in the trust's jurisdiction
• Provides annual information reporting about the trust, its participants, or its beneficiaries, or makes the information otherwise available, to the relevant tax authorities in the trust's jurisdiction
• Limits the aggregate value to no more than $50,000 (adjusted for inflation) at any point during the tax year

Under the proposed regulations, a trust would not fail to be treated as a tax-favored foreign retirement or non-retirement savings trust solely because it received a rollover of funds from another tax-favored foreign retirement or non-retirement savings trust (assuming the applicable exemption applied to the initial trust).

Implications of IRC Section 6048 proposed regulations

Notably absent from the proposed regulations under IRC Section 6048 is any further extension of the Form 3520 due date for calendar-year taxpayers residing outside the United States who may have already extended the time to file their US federal income tax returns to December 15. The failure of the proposed regulations to provide for an extension beyond October 15 tasks taxpayers residing outside the United States with managing multiple US tax filing deadlines, even though the Form 3520 is generally linked to the date on which individual taxpayers must file their US federal income tax return.

As noted previously, the IRS has now provided the long-awaited relief for dual resident taxpayers who question whether they should file Forms 3520 and 3520-A, even when properly electing to be taxed as an NRA under an applicable treaty. Practitioners have long advised dual resident taxpayers to file Forms 3520 and 3520-A, if applicable, even if those taxpayers are taking a position that they are an NRA under an applicable US income tax treaty. The proposed regulations would offer relief in this context by not treating those taxpayers as US persons, which would exempt them from needing to file Forms 3520 and 3520-A.

Regarding the taxation of distributions made to a US beneficiary from a foreign nongrantor trust, the proposed regulations would require calculating the interest charge applicable to such distributions using the default method as if the trust has existed for 10 years, regardless of how long the trust has actually existed. While this modification may benefit US beneficiaries receiving a taxable distribution from a foreign nongrantor trust that has existed more than 10 years, this approach may cause additional interest charges to be paid by US beneficiaries of foreign nongrantor trusts that have existed less than 10 years.

The expansion of the exception for tax-favored foreign trusts (foreign retirement plans) could apply more broadly than Revenue Procedure 2020-17, with the addition of inflation adjustments and, perhaps more importantly, the value threshold, which allows tax-favored foreign retirement trusts to qualify for the exception if they do not exceed the $600,000 threshold during the tax year. As more taxpayers have moved abroad (or have come to the United States from abroad), many maintain tax-favored foreign retirement trusts, which may be subject to the IRC Section 6048 reporting requirements. Foreign countries with these types of retirement plans (e.g., Australia, Canada, United Kingdom) have long dealt with the complexities of their nationals moving to the United States with these types of plans and encountering the challenging 3520-A and 3520 reporting requirements. Accordingly, practitioners and governments should consider commenting to the IRS on whether the expansion of the exceptions is sufficient, as it became clear when Revenue Procedure 2020-17 was issued that not enough information about these foreign retirement plans was available to the drafters of these exceptions.

Information reporting penalties: IRC Section 6677

Overview of proposed regulations

The proposed regulations would stick closely to the text of IRC Section 6677 while adding clarifications in limited areas. Some additions to the proposed regulations would follow Internal Revenue Manual 20.1.9.

Specifically, the proposed regulations would impose penalties for failing to file required notices or returns related to certain foreign trusts or providing incomplete or incorrect information. Generally, the penalties would be the greater of $10,000 or a percentage of the gross reportable amount (e.g., amount transferred to or received as a distribution from a foreign trust, amount of trust assets treated as owned by a US person under grantor trust rules). If a person underreported the gross reportable amount, the proposed regulations would base the penalty on the unreported amount.

Following the guidance contained in IRM 20.1.9, the proposed regulations would not consider as reasonable causes for penalty abatement purposes:

• Civil or criminal sanctions imposed by a foreign jurisdiction for information disclosure
• A foreign trustee's refusal to provide information, including difficulty in producing the required information
• The existence of provisions in the trust instrument that prevent the disclosure of required information

The proposed regulations would reiterate that the deficiency procedures do not apply to the assessment or collection of the penalties.

The proposed regulations would treat married US persons who file jointly as a single person for penalty assessment purposes, with joint and several liability, unless they can show that only one spouse was responsible for the reporting requirement.

Implications of IRC Section 6677 proposed regulations

The proposed regulations would maintain stringent penalties for non-compliance with filing obligations, offering limited relief. The significant penalties for failure to comply with filing requirements would be preserved (i.e., the greater of $10,000 or a percentage of the gross reportable amount, in addition to further penalties for not rectifying the failure promptly). Spouses who jointly file US income tax returns can be assessed severe penalties even if they are not involved in their spouse's activities with foreign trusts, unless they can demonstrate that they are not jointly and severally liable. Obtaining information from foreign trustees in a timely manner, which is a common challenge in practice, is explicitly excluded from being considered a reasonable cause.

Applicability dates

The regulations would apply to transactions with foreign trusts and the receipt of foreign gifts in tax years beginning after the date the final regulations are published in the Federal Register. Taxpayers, however, may rely on the proposed regulations for any tax year ending after May 8, 2024, and beginning on or before the date the final regulations are published in the Federal Register, provided they apply the proposed regulations in their entirety and in a consistent manner.