Mastering Form 5472: New Filing Requirements for Foreign Individuals, LLCs, and Companies

FOR LIVE PROGRAM ONLY Mastering Form 5472: New Filing Requirements for Foreign Individuals, LLCs, and Companies THURSDAY, JULY 27, 2017, 1:00-2:50 pm Eastern IMPORTANT INFORMATION FOR THE LIVE PROGRAM This program is approved for 2 CPE credit hours. To earn credit you must: Participate in the program on your own computer connection (no sharing) if you need to register additional people, please call customer service at 1-800-926-7926 x10 (or 404-881-1141 x10). Strafford accepts American Express, Visa, MasterCard, Discover. Listen on-line via your computer speakers. Respond to five prompts during the program plus a single verification code. You will have to write down only the final verification code on the attestation form, which will be emailed to registered attendees. To earn full credit, you must remain connected for the entire program. WHO TO CONTACT DURING THE LIVE EVENT For Additional Registrations: -Call Strafford Customer Service 1-800-926-7926 x10 (or 404-881-1141 x10) For Assistance During the Live Program: -On the web, use the chat box at the bottom left of the screen If you get disconnected during the program, you can simply log in using your original instructions and PIN.

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Mastering Form 5472 July 27, 2017 Alison N. Dougherty, J.D., LL.M., Director Aronson, Rockville, Md. adougherty@aronsonllc.com Kirsten Burmester, Member Caplin & Drysdale, Washington, D.C. kburmester@capdale.com

Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY THE SPEAKERS FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.

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6038A and 6038C are designed to assist the IRS in its enforcement efforts with respect to U.S. subsidiaries of foreign multinational groups and foreign corporations engaged in a U.S. trade or business Provides the IRS with powerful tools to obtain information about transactions between such taxpayers and related persons by imposing reporting and record maintenance requirements Requirements of 6038A and 6038C Reporting corporation must file a Form 5472 Reporting corporation must maintain records appropriate to determine the correct treatment of transactions with related parties Foreign related party must authorize the reporting corporation to act as its limited agent for purposes of both requests for information and the service of legal process in connection with summonses for the production of documents and testimony under sections 7602 through 7604 6

MASTERING FORM 5472: NEW FILING REQUIREMENTS FOR FOREIGN INDIVIDUALS, LLCS, AND COMPANIES Alison N. Dougherty July 27, 2017 http://blogs.aronsonllc.com/fedpoint/2012/06/28/international-tax-series-know-the-basics-of-entity-classificationand-check-the-box-when-forming-or-acquiring-a-foreign-company/ http://blogs.aronsonllc.com/tax/new-u-s-international-tax-reporting-disclosures-required-on-2016-u-s-federal-form- 1065-partnership-tax-return/ http://blogs.aronsonllc.com/tax/us-companys-should-process-with-caution-when-filing-tax-returns-with-internationalinterest/ http://blogs.aronsonllc.com/tax/what-should-i-do-if-i-did-not-report/ 2017 All Rights Reserved 805 King Farm Boulevard Suite 300 Rockville, Maryland 20850 301.231.6200 P 301.231.7630 F www.aronsonllc.com

Form 5472 INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 8

FORM 5472 INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 9

FORM 5472 INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS 25% Foreign-owned = at least one direct or indirect 25% foreign shareholder at any time during the tax year 25% foreign shareholder = a foreign person that owns directly or indirectly at least 25% of total vote or value of the corporation To determine 25% foreign shareholder and related parties, I.R.C. 318 attribution and constructive ownership rules apply with modification for 10% threshold instead of 50% 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 11

FORM 5472 INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS Form 5472 is filed only when there is a reportable transaction between a reporting corporation and any U.S. or foreign related party Related party = 1. Any direct or indirect 25% foreign shareholder of the reporting corporation 2. Any person who is related by more than 50% ownership to the reporting corporation 3. Any person who is related by more than 50% ownership to a 25% foreign shareholder of the reporting corporation 4. Any person who is related within the meaning of I.R.C. 482 5. Does not include any corporation filing a U.S. consolidated tax return with the reporting corporation 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 12

FORM 5472 INFORMATION RETURN OF A 25% FOREIGN-OWNED U.S. CORPORATION OR A FOREIGN CORPORATION ENGAGED IN A U.S. TRADE OR BUSINESS Form 5472 is filed only when there is a reportable transaction between a reporting corporation and any U.S. or foreign related party Reportable transaction = 1. Any transaction listed on Part IV for which monetary consideration was paid or received during the reporting corporation s tax year 2. Any transaction listed on Part IV for which part of the consideration was non-monetary or less than full consideration was paid or received 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 13

FORM 5472 FILING EXCEPTIONS A reporting corporation is not required to file Form 5472 if: 1. It had no reportable transactions 2. A U.S. person in control of a foreign related corporation files Form 5471 for the tax year to report information on Schedule M which shows all reportable transactions between the reporting corporation and the related party (the overlap rule) 3. The related corporation qualifies as a foreign sales corporation for the tax year and files Form 1120-FSC 4. A foreign corporation that otherwise would be required to file does not have a permanent establishment in the United States under an applicable U.S. income tax treaty and timely files Form 8333 Treaty-Based Return Position Disclosure 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 14

FORM 5472 FILING EXCEPTIONS A reporting corporation is not required to file Form 5472 if: 5. A foreign corporation whose gross income is exempt from U.S. Federal tax under I.R.C. Section 883 and timely and fully complies with the reporting requirements 6. Both the reporting corporation and the related party are not U.S. persons and the transactions will not generate in any tax year: U.S. source gross income or effectively connected income from a U.S. trade or business, or Any expense, loss or other deduction that is allocable or apportionable to such income 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 15

FORM 5472 CONSOLIDATED REPORTING If a reporting corporation is a member of an affiliated group filing a consolidated U.S. Federal income tax return then it can satisfy the requirements by filing a consolidated Form 5472. The common parent must attach a schedule stating which members of the U.S. affiliated group are reporting corporations and which of those members are joining in the consolidated Form 5472 filing. The schedule must show the name, address and FEIN of each member who is including transactions on Form 5472. A member of an affiliated group is not required to join in the consolidated Form 5472 filing just because other members do. 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 16

FORM 5472 REPORTABLE TRANSACTIONS Inventory and tangible property transactions Rents and royalties Sales, leases, licenses, royalties, etc. of intangible property Compensation for different types of services Commissions Amounts loaned and borrowed Interest Premiums Platform contribution transactions Cost sharing transactions Other amounts Part IV lines 1 to 13 report amounts received by the reporting corporation Part IV lines 14 to 26 report amounts paid by the reporting corporation 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 19

FORM 5472 REPORTABLE TRANSACTIONS Parts IV and V report monetary, nonmonetary and less than full consideration transactions between the reporting corporation and a foreign related party The terms paid and received include accrued payments and accrued receipts Do not complete Parts IV and V for transactions between the reporting corporation and a U.S. related party Part V Attach a schedule with a description of transaction sufficient to determine the nature and approximate monetary value of the transaction Should include a reasonable estimate of value 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 20

FORM 5472 WHEN AND WHERE TO FILE Attach Form 5472 to the reporting corporation s U.S. Federal tax return and file by the due date including extensions For tax years ending after 12/23/2014, Form 5472 cannot be filed separately from U.S. Federal tax return For tax years ending before 12/24/2014, Form 5472 must be filed timely even if U.S. Federal tax return is not filed timely 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 21

FORM 5472 PENALTIES $10,000 USD penalty per Form 5472 for the failure to file a substantially complete return or maintain records Additional $10,000 USD penalty per related party for the failure to file for each 30-day period that failure continues after 90 days since notification by IRS Statute of limitations stays open on entire U.S. Federal tax return unless it is possible to establish reasonable cause 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 22

FORM 5472 COMMON MISTAKES AND ISSUES Failure to properly classify the categories of intercompany transactions Reporting amounts paid by the reporting corporation on Part IV lines 1 through 13 and amounts received by the reporting corporation on Part IV lines 14 through 26 Failure to report reference IDs for 25% foreign shareholders and foreign related parties without U.S. FEIN Motivating taxpayers to disclose intercompany transactions Motivating foreign persons to disclose identifying information Substantially incomplete forms 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 23

FORM 5472 PREPARATION EXAMPLE Forco., Ltd. is a U.K. corporation which wholly owns U.S. Co., Inc. which is a U.S. subsidiary corporation. Forco., Ltd. manufactures widgets which it sells to its U.S. subsidiary corporation U.S. Co., Inc. U.S. Co., Inc. purchases $1,000,000 USD of widgets from its foreign parent corporation Forco., Ltd. U.S. Co., Inc. resells the widgets through its online retail business in the United States. U.S. Co., Inc. also performs market research in the United States for its foreign parent Forco., Ltd. to determine if the U.S. customers are fully satisfied with the quality of the widgets. Forco., Ltd. pays $500,000 USD to its U.S. subsidiary U.S. Co., Inc. as arm s length compensation for the services performed. 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 24

FORM 5472 IRS INFORMATION REQUESTS IRS can request documentation of transactions between a reporting corporation and a foreign related party. If the requested documentation is not provided to the IRS from a foreign person, the IRS is permitted to determine the amount paid for or incurred by the reporting corporation with respect to the transactions at issue based on its own knowledge. The IRS could deny deductions of the reporting corporation due to lack of documentation. 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 26

ALISON N. DOUGHERTY DIRECTOR, TAX SERVICES ARONSON LLC Direct (301) 231-6290 Main (301) 231-6200 Email: adougherty@aronsonllc.com 805 King Farm Blvd, Third Floor Rockville, MD 20850 Washington, DC Metro Area Alison N. Dougherty provides tax services as a Director at Aronson LLC. Alison specializes in international tax reporting, compliance, consulting, planning and structuring as a subject matter leader of Aronson s international tax practice. She has extensive experience assisting clients with U.S. tax reporting and compliance for offshore assets and foreign accounts. She provides outbound U.S. international tax guidance to U.S. individuals and businesses with activities in other countries. She also provides inbound U.S. international tax guidance to nonresident individuals and businesses with activities in the United States. She has worked extensively in the area of U.S. international tax reporting and compliance with the preparation of the U.S. Federal Forms 5471, 926, 8865, 8858, 5472, 1042, 1042-S, 8621, 8804, 8805, 8813, 8288, 8288-A, 8288-B, 1116, 1118, 1120-F, 1040-NR, 3520, 3520-A, 2555, 5713, 8832, 8833, 8840, 8843, 8854, 8938 and FBAR. She has counseled U.S. taxpayers regarding the outbound formation, capitalization, acquisition, operation, reorganization and liquidation of foreign companies. She has significant experience with U.S. Federal nonresident tax withholding, foreign partner tax withholding and FIRPTA withholding. She works closely with nonresident individuals and businesses regarding inbound U.S. real property investment. She often assists U.S. taxpayers with IRS amnesty program disclosures of offshore assets and foreign accounts. Alison completed the LL.M. (Master of Laws) in Securities and Financial Regulation in 2004 with academic distinction at Georgetown University Law Center. She completed the LL.M. (Master of Laws) in Taxation in 2000 and the Juris Doctor in 1999 at the University of Denver College of Law. She completed a Bachelor of Arts degree in Foreign Language in 1995 at Virginia Commonwealth University. 2015 All Rights Reserved Aronson LLC www.aronsonllc.com www.aronsonllc.com/blogs 27

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Regulations were promulgated in an effort to combat the perception that the U.S. serves as a tax haven for non-u.s. persons Many jurisdictions, such as Delaware, permit LLCs to register without disclosing their beneficial ownership Prior to the promulgation of the regulations, DREs had no federal tax reporting requirements The U.S. has reciprocal exchange of information obligations under its FATCA IGAs but, prior to the promulgation of the new regulations, had no mechanism for gathering the information necessary to comply with such obligations 30

New regulations add provisions to Treas. Reg. 301.7701-2 that classify a DRE as a corporation for purposes of section 6038A if The entity is a domestic entity; and One foreign person has direct or indirect sole ownership of the entity Indirect sole ownership means ownership by one person entirely through one or more DREs or grantor trusts The taxable year of a DRE treated as a corporation under the new regulations is The same as the taxable year of foreign owner if that person has a U.S. income tax or information return filing obligation for its taxable year; or If the foreign owner has no U.S. filing obligation, the calendar year 31

DREs classified as corporations for purposes of section 6038A must file a Form 5472 Regulatory exceptions to the 6038A record-keeping requirements and requirement to act as an agent for related parties for small corporations and corporations with de minimis related party transactions do not apply to DREs Regulatory exception for reporting related corporations that qualify as foreign sales corporations filing Form 1120-FSC does not apply to DREs 32

Solely for DREs, the new regulations expand the definition of reportable foreign related party transactions to include any transaction defined by section 1.482-1(i)(7) Includes amounts paid or received in connection with the formation, dissolution, acquisition and dispositions of the DRE Includes contributions to and distributions from the DRE Examples clarify that the following transactions must be reported: Contributions to a domestic DRE from is foreign owner and distributions from a domestic DRE to its foreign owner Transactions between tiers of DREs with a single ultimate foreign owner are reportable related-party transactions 33

New regulations apply to tax years of reporting DREs beginning after December 31, 2016, and ending on or after December 13, 2017 Commissioner is delegated the authority to prescribe the time and manner of filing of the Form 5472 for DREs Form has yet to be updated 34

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$10,000 penalty for each year a reporting corporation fails to file Form 5472 Substantially incomplete filing constitutes a failure to file $10,000 penalty for each year and each related party with respect to which the reporting corporation fails to keep records If IRS mails a notice of failure to the reporting corporation and the corporation does not remedy the failure within 90 days, there is an additional $10,000 penalty for each 30 days or fraction thereof during which the failure continues No cap on this penalty Criminal penalties under section 7203 for willful failure to file and under 7206 for filing a false or fraudulent return Note that the IRS also has broad discretion to determine the income tax consequences of related party transactions where there is a failure of foreign related party to authorize the reporting corporation as an agent or the reporting corporation fails to respond to summonses 36

Penalties for failure to file Form 5472 and maintain records may be excused upon a showing that the taxpayer acted reasonably and in good faith Good faith standard is defined in 6038A regulations Reporting corporation must make an affirmative showing of facts supporting reasonable cause in a written declaration under penalties of perjury Honest misunderstanding of fact and law that is reasonable in light of the experience and knowledge of taxpayer Reasonable reliance on professional Reasonable cause is deemed not to exist after the date on which the IRS mails notice of failure to file or maintain records 37

Reasonable cause standard applied liberally for small corporations (<$20 million gross receipts) if: Corporation has no knowledge of the 6038A; Has limited presence in and contact with the United States; and Promptly complies with all requests to file 5472 and furnish records Accrual of penalties for continued failure to file after notice has been mailed will stop if reporting corporation files Form 5472, furnishes information necessary to complete the Form 5472, or, in the case of failure to maintain records, demonstrates compliance with maintenance of records for the taxable year in which the examination occurs and subsequent years to the satisfaction of the District Director 38

Kirsten Burmester Member, Caplin & Drysdale, Chartered kburmester@capdale.com Disclaimer This communication does not provide legal advice, nor does it create an attorney-client relationship with you or any other reader. If you require legal guidance in any specific situation, you should engage a qualified lawyer for that purpose. Prior results do not guarantee a similar outcome. Attorney Advertising It is possible that under the laws, rules, or regulations of certain jurisdictions, this may be construed as an advertisement or solicitation. 2017 Caplin & Drysdale, Chartered All Rights Reserved. 39