Many of these missed tax filings relate to U.S. citizens living in Canada who own an interest in Canadian companies or unlimited liability corporations, Canadian partnerships, Canadian trusts, RESPs and TFSAs, or even owners of Canadian-traded mutual funds or exchange-traded funds (ETFs) held in a non-retirement account.
Here are seven key forms, often missed by U.S. tax filers living in Canada, that you should be aware of:
Form 8858: Information return of U.S. persons with respect to foreign disregarded entities
A U.S. person who directly, indirectly or constructively owns a foreign disregarded entity (FDE) must file this form. An FDE is an entity that is not created or organized in the United States and that is disregarded as an entity separate from its owner for U.S. tax purposes. For example, a single member unlimited liability company in Canada that is owned by a U.S. person would trigger filing this form.
Form 8865: Return of U.S. persons with respect to certain foreign partnerships
This form must be filed by a U.S. person who owned more than a 50% interest in a foreign partnership during the year or owned at least a 10% interest if the partnership was controlled by U.S. persons owning a 10% or greater interest. A U.S. person also has a filing requirement if he or she contributed property in exchange for a partnership interest if that person directly, indirectly or constructively owns at least a 10% interest, or the value of the property contributed exceeds $100,000.
Form 5471: Information return of U.S. persons with respect to certain foreign corporations
This form is filed by any U.S. person who is more than a 10% direct or indirect shareholder in a foreign corporation. It is also required for any U.S. shareholder in a controlled foreign corporation (CFC), which broadly speaking is a foreign corporation, more than 50% of which is owned by U.S. persons. A U.S. citizen or resident who is an officer or director of a foreign corporation may also have a filing requirement if he or she acquired stock in a foreign corporation. For example, if you or your business owns a corporation in Canada, then you will want to file this form; the penalty for not filing can be as high as $50,000.
Form 926: Filing requirement for U.S. transferors of property to a foreign corporation
Any U.S. person who transfers property to a foreign corporation and owns more than 10% of the stock, or any amount of stock if cash transferred is more than $100,000, must file this form with his or her U.S. tax return. This form would apply if, for example, a U.S. person were to contribute cash in exchange for stock to form a wholly owned foreign corporation.
Form 3520-A/3520: Annual information return of foreign trust with a U.S. owner
A foreign trust with a U.S. owner, which can sometimes include foreign pension plans, Registered Education Savings Plans (RESPs) and, depending on how you might interpret the IRS Regulations, Tax-Free Savings Accounts (TFSAs), must file this form independently with the IRS by March 15 following the year to which it relates. Additionally, if a distribution or other payment is received from the trust, Form 3520 may be required (and should be filed with the taxpayer’s tax return). Failure to file these forms subjects the U.S. owner to an initial penalty equal to the greater of $10,000 or 5% of the gross value of the trust assets considered owned by the U.S. person at the close of the tax year.
Form 8621: Information return by a shareholder of a passive foreign investment company or qualified electing fund
This form is for reporting any interest in an overseas “passive” corporation (50% or more of its assets produce passive income or 75% of its income is passive). This type of investment comes with other issues, such as whether to make a mark-to-market or qualified electing fund election, and subsequently how income and gains are taxed. As we discussed in a previous article, even owning shares in a Canadian mutual fund or ETF could trigger filing this form.
Form 8938: Statement of foreign financial assets
A U.S. person must file Form 8938 if he or she has an interest in specified foreign financial assets and the value of those assets is more than the applicable reporting threshold. Some assets are not required to be separately listed if they have already been reported on one of the forms listed previously, such as the 8891, 3520 or 5471. Starting with 2013, U.S. entities will be required to file this form as well as individuals.
As a U.S. tax filer, it is very important that you fully disclose all of your worldwide financial interests to your U.S. tax preparer, so that they have a complete understanding of your financial affairs and can properly address all of your U.S. tax filing obligations. Failure to file the above mentioned U.S. tax forms can lead to substantial non-compliance penalties. Furthermore, make sure you always work with a qualified preparer such as a U.S. Certified Public Accountant (CPA) or an Enrolled Agent with the IRS who has a complete understanding of Canadian and U.S. tax laws and has experience servicing U.S. citizens living in Canada. At Cardinal Point, we specialize in assisting U.S. citizens living in Canada with their complex cross-border tax filings and financial planning challenges.