Foreign-owned disregarded entities must now file Form 5472
TAX ALERT |
On Dec. 12, 2016, the IRS released final regulations under sections 6038A and 7701 that would for the first time require foreign-owned U.S. disregarded entities (DREs), such as a single-member Delaware LLC owned by a German corporation (as an example), to obtain an employer identification number and file an information return with the IRS. The IRS has justified this proposed requirement by citing its obligations to exchange information with its treaty partners, which would presumably include information on U.S. DREs owned by persons or entities in treaty partner jurisdictions. No comments were received in response to these regulations when previously proposed, and thus, the final regulations differ very little from the original proposal.
The final regulations treat a DRE as a domestic corporation and a reporting corporation, solely for purposes of the certain information reporting and recordkeeping requirements of the Internal Revenue Code, if its single owner is foreign. Under these rules, a U.S. corporation with greater than 25 percent foreign ownership must report certain information about itself and its transactions with related parties on Form 5472, and must keep records relating to the same. Under the proposed regulations, foreign-owned DREs would also be required to file Form 5472 and report similar information, including information regarding distributions and contributions to or from its sole owner. However, several exceptions that currently apply to reporting corporations (including the small corporation, de minimis related party transaction, parent filing 5471 and foreign sales corporation exceptions) do not apply to foreign-owned U.S. DREs. Thus, these rules are much expansive in scope in their application to DREs.
These new disclosure rules will apply to taxable years of DREs beginning on or after Jan. 1, 2017, and ending on or after Dec. 13, 2017. The tax year of a DRE is the tax year of its sole owner if the sole owner has a U.S. filing requirement, otherwise it is deemed to be the calendar year. Penalties for failure to comply are the same as for any other failure to file a required Form 5472: generally $10,000, with increased penalties for failure to comply after notification by the IRS and/or willful failures to file.
Because a foreign-owned U.S. DRE has never had to file its own U.S. return in the past, it is possible that tax advisors may not even be aware of DREs in some inbound investment structures. Foreign tax advisors, in particular, should review structures with their clients and determine if an entity viewed as a ‘foreign limited liability company’ from the perspective of a foreign country’s tax system might be a DRE with new reporting and recordkeeping obligations under the final regulations.