US persons with ownership interests in foreign corporations or who are directors or officers of foreign corporations are subject to special reporting rules. The first article of this series provided the general reporting requirements under Form 5471 which was followed by the second article of this series about the reporting requirements of “Category 2 Filers”, which are the reporting requirements of a US citizen or resident who is an officer or director of a foreign corporation. This article will focus on the reporting requirements of “Category 3 Filers”, which are the reporting requirements that are generally triggered when US persons acquire and dispose of stock in a foreign corporation.
By statute, a Category 3 Filer includes a US person who acquires (1) stock in a foreign corporation which, when added to stock already owned by that person, equals a 10% or more stock ownership interest in the foreign corporation by vote or value (“10% Stock Ownership Requirement”) or (2) stock which meets the 10% Stock Ownership Requirement. It also includes anyone who becomes a US person while owning stock that meets the 10% Stock Ownership Requirement. Thus, Category 3 Filer reporting requirements are restricted to stock acquisitions.
However, the regulations and instructions for Form 5471 enlarge the scope of the Category 3 Filer’s reporting requirements to include US persons who previously had sufficient stock to meet the 10% Stock Ownership Requirement, who then dispose of sufficient stock in the foreign corporation to reduce their ownership interest to less than the 10% Stock Ownership Requirement. A US person who is required to report as a Category 3 Filer due to stock disposition could argue that the requirement is invalid because it is outside the scope of the statute, but the prudent and probably less expensive approach will be for the US person to follow the regulations and instructions to Form 5471 and report the stock disposition as a Category 3 Filer. The primary reason that the regulations and instructions to Form 5471 enlarge the scope of the reporting requirement is to catch stock dispositions that ordinarily create US taxable income for US persons.
For purposes of a Category 3 Filer, the term “US Person” means a citizen or resident of the US, a domestic partnership, corporation, estate, or trust. In determining whether there is a reporting requirement as a Category 3 Filer, it will be important to understand the requirements of stock acquisition, disposition, and ownership.
In determining whether a US Person meets the 10% Stock Ownership Requirement, certain constructive ownership rules apply. The constructive ownership rules of a Category 3 Filer are the same as a Category 2 Filer. US Persons are considered to own stock owned by their spouses, siblings (whether by the whole or half blood), ancestors, and lineal descendants. Also, stock owned directly or indirectly by or for a foreign corporation or a foreign partnership is considered as being proportionately owned by its shareholders or partners.
There are certain exceptions. If any US person is required to file as a Category 3 Filer, and if such information is filed by another person having an equal or greater stock interest, the first US person may satisfy his/her filing obligation by filing a statement with his/her return indicating that the obligation has been satisfied and identifying the return in which such item of information was included.
Also, a Category 3 Filer is not required to file Form 5471 with respect to a foreign corporation if (1) the person has no direct interest in the foreign corporation and is a Category 3 Filer solely because of constructive ownership from another US person and (2) that US person files a Form 5471 that includes all of the information required of the Category 3 Filer. US persons with direct stock ownership in a foreign corporation are not eligible for this exception. Further, this exception requires that the US person from whom the ownership is being attributed, not only file Form 5471, but file Form 5471 and include all of the information required of that individual or entity. In other words, the exception is based on reliance that another US person correctly files Form 5471. The prudent approach is to have the Category 3 Filer make his/her own protective filing under these circumstances.
The penalties for failing to report a reportable transaction are significant. A Category 3 Filer who fails to file or report all of the information requested is subject to a $10,000 penalty for each failure to report a reportable transaction. If the failure continues after a notice is received from the IRS, the penalty could reach a maximum of $50,000 for each failure to report a reportable transaction. Criminal penalties could also be imposed for failure to file as required as a Category 3 Filer.