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What is IRS Form 5471
IRS Form 5471 is one of the very consequential international information reporting forms, and its purpose is for US persons who are shareholders in a foreign corporation to disclose their ownership of that foreign corporation.
The 5471 is a form that few have to file. But for those who do, it is one the most complicated forms that we work with.
Is Form 5471 based on U.S. sourced income or worldwide income?
Not exactly either. It's definitely not based on U.S. income, and it's not even necessarily based on foreign income per se. For instance, you could have a foreign entity that doesn't generate income, and still have a Form 5471 filing requirement.
Be aware: Form 5471 does not always result in tax due. There have been some changes where there is not a tax return component, but we'll get to that in a little bit.
When was Form 5471 introduced?
Sometime during the 1960s. If you don't file a required 5471, the IRS has limitless time to assess the related tax. This is something which you need to ensure is done correctly, because even if you have just one unfiled 5471, it could keep your entire return open permanently.
What is Form 5471 used for?
It is fairly easy for the government to Summons or Subpoena any bank or business record in the United States. Even with FATCA, however, it is very difficult and expensive for the IRS to do so when records are located overseas.
Form 5471 is intended to make it as easy for the IRS to audit a foreign corporation owned by U.S. persons as it is to audit a domestic corporation owned by U.S. persons. Of course, it doesn’t work that way at all. The form’s complications ensure that there is nothing easy about auditing a foreign corporation.
Yet the Form 5471 labyrinth is enforced by severe penalties.
For many U.S. taxpayers, their best choice is to simply pay the higher costs associated with being in Form 5471 compliance and leave it at that, as they simply have too much to lose.
What about a situation in which you have a dormant 5471 and no income?
If you otherwise don’t have a tax return filing requirement, and you do have a dormant 5471, you might still want to file the Form 5471. Sometimes it might pay to be a bit more conservative with this, and file a 1040 with income, and attach a 5471.
The benefit of being conservative here is that if you do start making money, you likely won’t forget about your Form 5471 requirement.
Is Form 5471 a standalone form?
It is not considered as such, although there can be instances where a standalone Form 5471 needs to be filed. The form is typically attached to a 1040 variant if filed by an individual, or an 1120 variant if filed by a corporation.
What’s the difference between an 1120-F and a Form 5471?
A foreign corporation files an 1120-F to report its income, gains, losses, deductions and credits, and to figure its U.S. income tax liability. A Form 5471 is used to report certain U.S. shareholders’ interests in a foreign entity.
What is Form 5471 and what is Form 5472?
While they are close in numbers, they are actually quite different. Form 5472 is almost the mirror image of the 5471. The 5471 is for U.S. shareholders of a foreign corporation, and the 5472 is for domestic entities that are held more than 25% by non-U.S. persons, and which also might have some non-reportable transactions and reportable transactions. While the Form 5472 doesn’t get the attention Form 5471 does, it should, as the Form 5472 penalties are much higher than the 5471. Tax Reform increased 5472 penalties to $25,000, while Form 5471 penalties remain at a still extreme $10,000.
Who has to file IRS Form 5471
Certain U.S. persons who are shareholders in a foreign corporation need to file. By persons, we mean citizens or residents, or even U.S. entities such as corporations, along with Green Card holders or some VISA holders.
In addition to shareholders, people who are on the board of directors of a foreign corporation may need to file. Even if they don't own the required stock but they are a U.S. person, U.S. resident, or a citizen on the board – and there are some transactions that occur – that person could have a filing requirement as well.
You must file a separate Form 5471 for each of your corresponding entities. There is no option for reporting all of your interests on one consolidated Form 5471.
Who must file a Form 5471?
If you are a U.S. person who has a filing requirement, you need to file this form. Typically, this includes U.S. persons who are shareholders in a foreign corporation, and certain U.S. persons who are directors or officers of that corporation.
If you have interests in multiple foreign entities that need this reporting, you could be looking at multiple $10,000 penalties in a single year, and the IRS is not shy about assessing those penalties year over year. Additionally, those penalties increase to $50,000 if the IRS requests a Form 5471, and one that is substantially complete is not delivered timely.
Is an LLC or other limited liability entity considered a corporation for Form 5471?
Yes. By default, the tax code treats them as corporations because of the limited liability. Form 5471 requires shareholders of limited liability companies to file, however, that is a misnomer. LLCs don’t typically have shareholders, they have members. Regardless, this is just one example of how international taxation is often about fitting a square peg into a round hole and vice-versa.
When employees are given restricted stock or preferred stock, are those reportable on Form 5471?
Yes, the Form 5471 contemplates all classes of stock. If your employee stock units are a type of preferred stock, even that will need to be considered for a 5471 filing requirement.
If you don't own more than 10% of the stock, is there any situation in which you would have to file a Form 5471?
Yes. Some of the categories of filer for the 5471 could potentially give a person a filing requirement, where they don't own more than 10% of the stock. All situations where you have immediate family members who also own stock that would put you, when combined over 10%, or even over 50%. Along with the situation where there is board of directors or an officer, a person could technically have a filing requirement even if he or she does not own greater than 10%.
We've seen a lot of tax preparation software where the prompt only asks whether you own more than 10%, which is the only trigger they use for their Form 5471 subroutines. This is simply bad programming. You could be under 10% and still have a form 5471 obligation, because it depends on how the IRS calculates 10%. You actually don't have to own stock for the IRS to say you own stock! They do this through what is known as attribution. You always need to look for that and verify whether the attribution rules have changed – which Tax Reform did change.
If you don't have a Form 5471 filing requirement, there could be other forms on which your stock ownership would have to be reported on a personal return, such as IRS Form 8938.
Are there ways that you can legally avoid filing IRS Form 5471?
There are situations where if you have a partner or friend who is not a U.S. person at all – that is, a foreign national who has no relationship to the United States, and who is not a blood relative otherwise. If you are in a good working relationship with that person and you have a potentially taxable transaction where you transfer your shares to that non-U.S. person, that's a way to fall below those filing thresholds and therefore legally avoid the 5471, but the tradeoff is that you no longer have the control of the company. Beyond that, the other problem is that the IRS may treat you as owning the company anyway. If corporate formalities are followed and you still treat it as your business, or just as an alter ego, the IRS may not care who you claim the owner to be, and you could be looking at some real trouble.
Also, keep this in mind: it's not just about the total value of all stock that the Form 5471 could potentially capture. It's also voting power. You can't transfer most of the stock while retaining all the voting power for yourself, and then avoid filing Form 5471.
Can you avoid a Form 5471 requirement by disregarding the entity, by making a check-the-box election on Form 8858?
Yes. You could do a check-the-box election to treat a foreign LLC or other type of entity that is not a per se corporation as a disregarded entity to avoid the 5471, but that doesn't mean you've avoided other reporting requirements.
Oftentimes, people who come to us with these issues have many years of delinquent Forms 5471, and a late election for different treatment often isn't viable.
Here’s a warning on that: Don’t file naked, old 5471s outside of a disclosure program without getting a professional opinion first. Don't do it – don’t amend them, because you will likely be assessed automatic $10,000 penalties for each year, and these penalties are difficult to undo.
Is a Form 5471 required if you only own 50%?
Let's assume any spouses or parents. Let's just say you own 50% – would a 5471 be required? Potentially yes, if it's for the year in which you gained the 50%. If there's no attribution and you're not over the 50% for stock ownership or voting power, then no, but as mentioned earlier, there may be other forms such as the 8938 that you'd have to disclose that on as well. If it's missing on the 8938, that could be substantially incomplete, and thus open up the penalties.
If you got to your 50% by making contributions, you might look for a possible Form 926 requirement, which has a significant penalty as well.
Do I need to file Form 8938 if I file Form 5471?
Yes. Form 8938's threshold still incorporates the value of the entities on the 5471s and other information reporting forms. There is a section on the first page of the 8938 in which you'd indicate how many of those different forms you had filed, by checking a box listing the number.
Can I file a Form 5471 separately from a Form 1040 tax return?
No, it's an attachment.
When employees acquire more than 10% of stock in a company, are they reportable on Form 5471?
Yes, it is likely. If you exceeded 10%, even as an employee, you could have a 5471 information reporting requirement.
Do I need to file a 5471 if my parents are not U.S. citizens?
Having non-U.S. parents who own stock in the same company can create a Form 5471 obligation where one would not have existed otherwise.
The reason is attribution. If you own shares of a foreign limited liability entity and so do your parents, who are non-U.S. persons, the attribution rules still apply. While some parts of the Form 5471 won't apply because your parents are not U.S. persons, most of the form will still apply. Perhaps some of the deemed income items won't apply, but a filing requirement has likely been triggered.
Do hedge funds have to file Form 5471?
Yes, if the fund would otherwise have a filing obligation. The question is who owns the interest – the partnership, or the individuals who are in the partnership – which determines who exactly has the obligation.
If the fund owns an interest in a foreign fund, which happens to be a partnership, it could be a Form 8865 that is required, not a Form 5471.
How to fill out and Prepare Form 5471
I don't have the information to file 5471. What should I do?
In these situations, the law requires you to make your best efforts. There hasn’t been a situation where we haven’t been able to reconstruct a missing Form 5471. The strategy in this instance would be to file now with what you have, continue to try to gather the missing information, and if you're able to get it later on, amend the return. However, this is a risky move that you must not make without consulting with a professional first.
At a minimum, document all of your efforts to obtain the records, because if you are audited, you can then show the IRS, "Look, this is what I've tried to do. I've exhausted my best efforts." That could really help avoid that big penalty exposure.
How does one report earnings on Form 5471 for a shareholder in the U.S?
There is a profit and loss statement as part of the main body of the Form 5471, in addition to a balance sheet that you have to furnish. That's required for a couple of different categories of filer of the 5471, including someone who is a transactional filer – even if you don't have the year-over-year filing requirement, you'd still have to report profit and loss.
That said, if you are receiving wages from your foreign entity that you also happen to be a part-owner of, then those wages are going to go onto your line seven regardless. In addition, the deemed income items – such as Subpart F and GILTI (Global Intangible Low- Taxed Income) – have some schedules attached that will show their respective calculations, but those will just flow over to your personal returns.
Should organizational costs be deducted in full on Form 5471?
If it's part of the ordinary or necessary expenses of the business for setting it up, or for its continual operation, then yes – that is an item that should go into the profit and loss statement.
Do I need to file IRS Form 5471 if I only have dividend income on an otherwise dormant company?
First, you are able to do a dormant filing even with some income out of the business, but it's a very low threshold. If the business is paying a dividend above that certain amount, even if the company overall is inactive, it cannot be dormant and you have a full 5471 filing requirement. Either way, there is a form 5471 to file. The point is, be sure you remember to file Form 5471 for dormant corporations and keep those thresholds in mind. The same $10,000 penalty can be assessed — even if the dormant company made no money and was worth nothing.
Is Form 5471 prepared in accordance with U.S. GAAP, or statutory accounting?
The form calls for U.S. GAAP. If someone wanted to use statutory accounting, we would ask why, and see if the goal can be accomplished through GAAP.
Do I pay taxes on Form 5471 revenue?
Maybe, in a way.
Under the old rules, what essentially became the conventional wisdom is the idea that you don't pay tax on the money until you "bring it back to the United States." What this meant in practice was that you were paying yourself a dividend or wage, but in the manner of a dividend up from the foreign company to yourself – as either the corporate shareholder, or the individual shareholder.
That is how that income would get reported on your personal return, but with Subpart F income created in the '60s and then the GILTI tax created in 2017, there are now two types of deemed income that could flow through to your personal return, which are what people have in mind when they say, "Will the revenue be taxed?" GILTI is a bit more comprehensive than what Subpart F was, but Subpart F has a lot of intricate rules whereby you might have Subpart F income and not realize it.
How does Form 5471 treat K-1 affiliates?
Typically, if there is a U.S. person, whether a corporation, partnership, or other individual, then someone will need to file the form 5471. To be clear, the form 5471 would be attached to a partnership or exempt organization return, and partnerships are identified as U.S. persons for 5471 purposes. Whoever is tasked with making sure the K-1 affiliate's paperwork is filed will need to keep the 5471 in mind.
How does one report income from Form 5471 to a US 1040 tax return?
This is an important question, because it's not clear on the 1040, and it is not even really clear on the 5471 itself.
For wages, we typically report them on line seven. Interest and dividends we report on lines eight and nine respectively. For those deemed income items, like Subpart F and GILTI, we usually place that on line 21 as other income.
Do Treasury Regulations 318 apply to Form 5471?
Yes. This is the basis for the attribution rules that can be difficult to follow.
When is Form 5471 due?
With your tax return, whether in April or extended to October, or if you filed a discretionary extension to December 15th.
Do I report controlled foreign corporation bank account information on Form 8938, since it's already on Form 5471?
No, and that’s the reason why, in part, there is a section on the 8938 to show how many 5471s have been filed. The instructions essentially say, “if it is something that is going to be captured by the 5471 filing, there is no need to file it additionally on the 8938.” This rule doesn’t apply to the FBAR. Many of our clients file an FBAR, a Form 5471, and a Form 8938.
Look over the rules for FBARs, because you could have a filing obligation even for business accounts you have signature authority over. There are situations where a shareholder has no form 5471 filing obligation but still has an FBAR obligation. Or, the situation could be a shareholder not having signature authority, but still needing an FBAR because he or she controls that corporation, and by extension has a financial interest in the accounts. It is important to get this right, as FBAR penalties can sometimes be even worse than Form 5471 penalties.
Where on Form 5471 do you track foreign taxes paid?
There are some particular schedules on the Form 5471 where you would show foreign income taxes paid, though not all taxes paid qualify as a credit. It is important to get this right.
Can a foreign corporation tax be used as a tax credit on Form 5471?
Not in the way that we think of taking a credit on a 1040. If the foreign entity paid foreign income taxes, that will go into the calculation for its earnings and profits, but it's not necessarily a credit in the same way. For it to be a credit in the way that we think about personal tax credits, the credit is not the foreign entity itself, but the U.S. person who's the shareholder. So either the domestic corporation, the citizen, the Green Card holder, or the permanent resident.
Tracking credits is actually one of the hardest things to do, and the IRS even admits that they have a hard time following the credits. It is just a very common thing that can hang up having a return processed.
How does one value a company based on Form 5471?
You will come up with an equity value overall on the balance sheet on the Form 5471, but the valuation of a company is a bit different from what the Form 5471 is trying to do.
Is a Form 5471 balance sheet required to be in U.S. dollars?
Yes, the balance sheet is required to be in U.S. dollars.
What schedule does Subpart F income go into on Form 5471?
It has traditionally been on Schedule I, although there are separate worksheets in the instructions that you will need to attach, which actually show the Subpart F calculation. The Schedule I is the part of that form where Subpart F is shown.
How does one amend a Form 5471?
Technically, you amend a Form 5471 by amending your personal return. You would attach a 1040X to the top of the 5471, and then show the new calculations with an explanation statement attached, detailing what your changes are. It can get pretty complicated, and changes can get lost, so attaching an explanation statement is important.
Amending a Form 5471 can potnetially trigger huge penalties. The IRS has disclosure programs that you may wish to discuss with us before filing any tax amended or late return.
How to determine your category on Form 5471
How do I know what Category I am for Form 5471?
You can always contact IRSMedic if you have questions about your category or schedules. For now, here are some rules of thumb:
- If you know that you directly, indirectly, or constructively own greater than 50% of the foreign entity, then you are probably a Category Four and/or Five filer.
- If you have had a change in the percentage of ownership of a foreign company, are an officer or director of the company, then you could be a Category Two or Three filer.
- The big change is that Category One is back. Tax Reform brought back Category One, and thanks to the transition tax, this can be a big issue.
Form 5471 Schedule questions
Do I need Form 5471 schedule H? What is schedule H?
Schedule H is the schedule that documents what your earnings and profits are for the year. You will only need this if you are Category Four or Five filer.
When was Form 5471 schedule J introduced?
Schedule J has been around for as long as we've been doing the form. Schedule P is new.
Are there any state Forms 5471? For New York or California?
We are not aware of any particular information reporting forms at the state level. Some of the issues in recent years have been whether states will actually be taxing GILTI inclusion amounts.
Is net income on Form 5471 schedule C cash flow?
Not by default, and only in limited circumstances. Schedule C is used in situations where there is a disregarded entity, or just a sole proprietorship. You do not use a Schedule C to report income from a foreign corporation. If you “check the box” and possess an eligible LLC abroad, then you may be able to use schedule C income at that point.
Dormant Form 5471 questions
We've had clients incorrectly assume that because their foreign corporation is dormant, they don't have to worry about completing a Form 5471. Unfortunately, according to Revenue Procedure 92-70 for Dormant Foreign Corporation, the IRS disagrees.. You still have a reporting requirement, albeit minimal. But even minimal requirements can still have penalties assessed against them.
What does dormant actually mean?
Let's define dormant per IRS standards. Per Revenue Procedure 92-70, there are eight, very specific, conditions that must all be met in order for a foreign corporation to be considered dormant:
- The foreign corporation conducted no business and owned no stock in any other corporation other than another dormant foreign corporation
- No shares of the foreign corporation (other than the directors’ qualifying shares) were sold, exchanged, redeemed, or otherwise transferred, nor was the foreign corporation party to a reorganization
- No assets of the foreign corporation were sold, exchanged, redeemed, or otherwise transferred, except for minimis transfers described in 4 and 5 below
- The foreign corporation received or accrued no more than $5,000 of gross income or gross receipts
- The foreign corporation paid or accrued no more than $5,000 of expenses
- The value of the foreign corporation’s assets as determined pursuant to the US generally accepted accounting principles (but not reduced by any mortgages or other liabilities) did not exceed $100,000
- No distributions were made by the foreign corporation; and
- The foreign corporation either had no current or accumulated earnings and profits or had only de minimis changes in its beginning and ending accumulated earnings and profits balances by reason of income or expenses specified in 4 or 5 above
How to avoid IRS Form 5471 Penalties
Not filing a Form 5471 at all when required to do so can trigger a Form 5471 penalty. But also, any Form 5471 that is filed but that the IRS considers not “substantially complete" may result in Form 5471 penalties. So what types of mistakes on a Form 5471 does the IRS consider to "substantially incomplete?" What you can do to protect yourself from Form 5471 penalties.
Typically, Form 5471 penalties are $10,000 per each form that is not filed or is not substantially complete. This penalties can increase up to $60,000 if the IRS asked for a correct Form 5471 and one is not provided timely, or at all. Here are some more details:
- You are required to file Form 5471 even if you don't owe any money (or even if you get a refund!). Remember, Form 5471 is a reporting requirement, not a tax form.
- Form 5471 should be filed with your income tax return. Extensions do apply to this form, so if you get an extension on your 1040 it also applies to Form 5471.
- If you file late, inaccurately, or not at all the Base Penalty is $10,000 per form per year per foreign corporation.
- If the information is not provided within 90 days after the IRS mailed a notice indicating the failure to file, an additional $10,000 penalty (per foreign corporation) may be charged for each 30-day period during which the failure to file continues after the 90-day period has expired. For each failure, the additional penalty is limited to a maximum of $50,000.
- There is also a 10% reduction of foreign taxes available for credit under I.R.C. Sections 901, 902, and 960 which can be applied in addition to the monetary policy per I.R.C. Section 6038(c). If the failure continues 90 days or more after the date the IRS mails notice of the failure, an additional 5% reduction of foreign taxes available for credit is made for each 3-month period during which the failure continues after the 90-day period has expired. The amount of the reduction has several limits such as the greater of $10,000 or the amount of the income of the foreign corporation for its annual accounting period with respect to which the failure occurs.
- Failure to file Form 5471 and your entire tax return remains open for audit indefinitely.
Form 5471 Penalty triggers
Aside from non-filing, Form 5471 penalties can be assessed for forms that are substantially incomplete. We will now turn our discusison as to the types of things the IRS considers substantially incomplete. Note: Form 5471 issues are litigated routinely. The IRS's position is not always what a court will agree with.
Using the wrong accounting method can trigger Form 5471 penalties
International Financial Reporting Standards (IFRS) is the accounting method that are used in 110 countries across the world. There are key differences between IFRS and the Generally Accepted Accounting Principles (GAAP) that is used in the United States and for IRS tax compliance. And yet even IFRS can vary country-to-country. Form 5471 must be filed out according to GAAP. This can require huge time to "translate" IFRS books into GAAP.
Variance may lead to penalties
Multiple Form 5471s for the same entity may need to be filed depending on how many US shareholders of a CFC there are and their ownership percentage. Still Schedule M should be consistent among filers. Sometimes though, you don't know how a co-owner of shares filed. This is critical that you are all on the same page.
Look for missing Form 926 and new traps from Tax Reform
Oftentimes a review of Form 5471 will indicate that a Form 926 is required as well. IRS Form 926 is the “Filing Requirement for U. S. Transferors of Property to a Foreign Corporation." Transfers include, but are not limited to:
How to get relief from IRS Form 5471 penalties/Using a disclosure program to clear up past For 5471 mistakes
It is easy to make a mistke on Form 5471. But it may be even easier to make a mistake fixing a Form 5471. There are careful procedures you must follow or you risk being assessed an automatic $10,000 per year.
Am I going to go to jail for unfiled Form 5471s?
Very unlikely. The form is complicated the IRS Criminal Investigation Division doens't really understand the form. Rather the risk is civil penalties.
Do I have to enter into a Standard Offshore Disclosure Program (OVDP) or a Streamlined Disclosure if I have missing 5471s?
First off, the standard OVDP since late 2019 has become so restrictive now it is difficult to imagine a taxpayer who that is still appropriate for. They do exist; there are just not many.
Second, the Streamlined program may be the best solution but may not the only course of action. The important thing to understand that the best solution for you might not be the same solution as someone else. Feel free to contact us to discuss your concerns, confidentially.
If I file delinquent returns only, isn't that a soft-disclosure — the thing the IRS warns not to do?
No. The delinquent returns procedure is a protocol set up by the IRS in cases where the only non-compliance is missing forms. It is a legitimate procedure that can greatly reduce the risk of (whatever minimal) criminal exposure and civil penalties. But these procedures must be follow exactly. And yet, even if you do, the IRS may still weognfully assess penalties. Firms like our works to ensure that the IRS does what they claim they were going to do. This follow up is essential.
Assuming I am non-willful and made some sort of innocent or negligent mistakes – is the Streamlined program always better than the Full OVDP?
It is hard to imagine a scenario were a taxpayer would NOT want to use the streamlined program over full OVDP. Those who have acted willfully have made their decisions a while ago. But if you just learned about some sort of Form 5471 mistake, then truly – that it really what the the streamlined program is for. And the streamlined program will usually be (but not always be) better.
I have dormant Foreign Corporations. Do I still have a Form 5471 problem?
Yes. If unfiled you could be subjected to the same exact penalty someone with an active forieng corporation is.
I made mistakes on Form 5471s. What should I do?
There are a lot of mistakes you can make on a Form 5471. You could have categorized yourself as the wrong type of filer and not filed the correct Schedules. You could have thought another US Form 5471 filer filed the required schedules. The good news is that Form 5471 can be amended.
Will I raise any red flags by correcting Form 5471 mistakes?
Let's get some perspective on this. You already raised the biggest red flag by being a US person subject to the universal tax jurisdiction of the IRS. You then raised a huge red flag by having investments overseas, where the IRS's default position is that you "are up to something." What you want to do is to lower those red flags by showing compliance to the IRS. "Laying low" isn't really laying low. As right now, you maybe fairly exposed already. So it may really make sense to wrap up any lose ends.
What is the average accounting fee for preparation of a Form 5471?
It is difficult to define an “average” 5471, as there are simply too many variables from case to case. The simpler cases – such as preparing Form 5471 on a dormant corporation – can be of negligible cost, whereas a more complicated or extensive Form 5471s can cost over $15,000 to prepare.
The problem for many is that many firms don’t necessarily want anything other than non-price-sensitive large corporations as clients. So for the global entrepreneur, it can actually be very hard to find a firm that can complete a Form 5471 that would both:
- Survive the toughest scrutiny, and,
- Also be reasonably priced.
This gap in the market we have had great success in filling. Feel free to contact us to discuss your or your client's situation with our international tax team.