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Anne
Anne, Master Tax Preparer
Category: Tax
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Experience:  Enrolled Agent with 25 Years Experience specializing Individual and Small Businesses
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My wife and I have formed a non-domestic partnership in 2009

Resolved Question:

My wife and I have formed a non-domestic partnership in 2009 but have never filed form 8832. The entity has been dormant from 2009 through 2011 and has received capital contribution in 2012 but has not had any business activity.

We have declared income under forms 8858 and included forms 5471 as well. The late election relief under IRS Rev. Proc. 2009-41 does not seem to apply anymore because more than 3 years + 75 days have passed.

How should this be amended ? By filing the missing 8832 or by amending prior tax returns with form 1120-F? The return for the formation year was prepared by a CPA with form 8858 but the following years were not prepared by a CPA. What is a reasonable cause statement in this case ?

What are the possible consequences?
Submitted: 1 year ago.
Category: Tax
Expert:  Anne replied 1 year ago.

Anne :

Hi

Anne :

could you please tell me a little bit about your company....specifically why you had to file the form 8858 5471

Anne :

hello?

Customer:

hello

Anne :

hi

Customer:

This partnership is a Nevis LLC.

Customer:

it was formed to acquire real estate abroad, which has not happened yet

Anne :

What type of entity is this.........sole proprietor, partnership, corp?

Anne :

sorry

Anne :

missed the fact that you gave me that

Customer:

supposed to be a partnership between me and my wife

Customer:

we live in TX (community property)

Anne :

sorry..........reading your question thoroughly so that I don't have to ask you any information you already provided

Customer:

would this count as "sole proprietorship"

Anne :

at this point you can make it anything you want.........since you haven't filed the 8832 yet

Anne :

you would have to file 2 Schedule

Anne :

Schedule Cs

Anne :

C's

Anne :

sorry not used to my new keyboard........tends to move when I type

Customer:

the key question is whether the fact that this is a Nevis LLC makes this a default partnership like if it was a Delaware LLC

Anne :

If you're asking if the LLC part makes you a partnership, the answer is no

Anne :

LLC can be a sole proprietor, partnership, corp

Customer:

yes, I know that

Anne :

when the cpa filed your taxes, did he file it as a partnership or a corp?

Anne :

I see he filed 1120 F

Anne :

I'm sorry.....when we're in the chat rooms like this one..........your question is consolidated, and we can't always see everything without constantly scrolling back and forth

Customer:

no, he filed 8865

Customer:

but not 1120-F

Anne :

please bear with me a minute..........

Customer:

ok

Anne :

where did the capital contribution come from?

Customer:

my wife and I

Anne :

You stated you declared income under form 8858.........was the income that money you and your wife contributed?

Customer:

no, only interest

Customer:

not the contribution itself

Anne :

I think the best thing for you to do would be to close this business

Customer:

but how to treat the prior tax years ?

Customer:

I will have to go onto a phone call for an hour and then come back to this chat. is that ok >

Customer:

?

Anne :

yes........I have an appt later............but we'll hook back up

Customer:

ok

Anne :

I'm going to post information here while you're gone, and we'll talk about it later if you have any questions

Anne :

 


Exceptions From Filing



A foreign corporation does not have to file Form 1120-F if any of the following apply:



it did not engage in a U.S. trade or business during the year, and its full U.S.


tax was withheld at source.Its only U.S. source income is exempt


from U.S. taxation under section 881(c) or (d). (See link below)


It is a beneficiary of an estate or trust engaged in a U.S. trade or business, but


would itself otherwise not need to fil





26 USC § 881 - Tax on income of foreign corporations not ...


Anne :

That covers your prior tax years.......

Anne :

In order to close out this business, you need to file form 1120-F. If you look at the top right hand side, directly below the line for your EIN. you will see some boxes there. One of those boxes is "final return" check that box

Anne :

Please let me know if you have any questions.

Customer:

OK, I am back, sorry for the interrupiton

Anne :

That's ok.........did you read what I posted for you?

Anne :

I got a message that you posted something , but I can't see it.

Anne :

Can you please repost it here?

Anne :

I too will have to leave the forum in about 15 min

Anne :

Are you still reading the posts I left?

Anne :

sometimes we have to change formats if either the customer or the expert can't see the posting

Customer:

Hello Anne

Customer:

Yes, I just read what you posted.

Anne :

hello

Customer:

I am not yet sure how it applies though

Anne :

I'm not following you..........

Customer:

The fact is that we filed for 8865 without any prior check-the-box election through 8832

Customer:

so we treated this entity as if it had elected to be a disregarded entity

Customer:

and I think the first thing to establish is whether this should be looked as a foreign corporation or not.

Anne :

do you want to close this down now?

Customer:

it would be easier to discuss this over the phone if you are available

Customer:

no, not yet

Anne :

I'm sorry, we can't have contact outside of this forum

Customer:

ok, good. your advice was around for 1120-F

Anne :

give me just a second.......but I have to leave in about 2 min for dr appt

Customer:

but my first question i: do I need a form 8832

Customer:

ok, we can agree on another time

Customer:

and I keep the window open

Anne :

no

Anne :

I thought I read that your cpa filed form 1040-f

Customer:

no, he filed 8865

Anne :

ok.........then that makes this really easy

Anne :

You fell into the exceptions for having to file 1040-F, so there was no need to file the 1120-f for years 2009-2011

Anne :

sorry 1040 f s/b 1120 f

Customer:

so are you saying I should amend the returns with ???

Anne :

ABSOLUTELY NOT

Customer:

I think my first question is still: do I need to file a late 8832 and can I still do that ?

Anne :

you were never required to file them.............they had no income

Customer:

but how about the 8832 ?

Customer:

8832 is not connected to a tax return

Customer:

it needs to be filed upon entity formation apparently

Anne :

yes, you can file the 8832 BUT when they ask you when the business started, you will want to say 2013

Customer:

we had residual interest income of a few dollars which we reported in Schedules of 1040

Anne :

because that will be the first year that you will actually file 1120-f

Customer:

I can't say that whe I filed 8865s for the prioir tax years

Customer:

for example I reported $1.75 interest income ofr this LLC in Schedule 1040B of 2011

Anne :

part c answers this question

Customer:

ok, let me study this during your doctor's appointment

Customer:

should I post follow-up questions here ?

Anne :

epeal of tax on interest of foreign corporations received from certain portfolio debt investments


(1)In general
In the case of any portfolio interest received by a foreign corporation from sources within the United States, no tax shall be imposed under paragraph (1) or (3) of subsection (a).


Anne :

yes........please post your questions here

Anne :

sorry, but I have to run

Customer:

ok, will do. can you send me an SMS when you are back to XXX-XXX-XXXX. I know we cannot talk but this would alert me to get back to this window here

Anne :

Once I post something, you should be alerted

Anne :

I don't like having to say this, because this forum is all about you.....the customer...just as it should be

Customer:

ok, sounds good. Please don;t miss your appointment, Anne. We can connect later, and I will need some time to study the code

Anne :

However, there's a small chance that I may wind up in the hospital again

Customer:

I hope you will be ok, and I understand if you can't reply under these circumstances

Anne :

I absolutely will as soon as I get out...........so no posting today..........means I'll post as soon as I can

Anne :

I wonder if they have WI FI

Customer:

ok, thanks. Good luck, Anne.

Anne :

thanks

Customer:

My hospital does, but I would not expect you to reply while being in treatment

Customer:

I reviewed the code reference you sent me and it seems to apply to foreign corporations. I am not sure if that applies to my Nevis LLC the status of which would need to be clarified first, e.g. whether it is regarded as a foreign corporation, a foreign partnership or a disregarded entity: the entity has been formed in 2009, dormant ever since, with residual interest of ~$2 income which we reported under 1040 Schedule B. No CTB election has been made through form 8832 and no EIN SS4 has been applied form because it is dormant. I have filed forms 8856 assuming the entity classified by default as a "foreign partnership". My worry is that the status of this entity may actually be unclear and that it may actually have to be treated as a disregarded entity requiring forms 8858 instead. My CPA referred to the Nevis LLC statutes that would by default treat any entity that does not make a CTB election as a disregarded (just like the default for a Delaware or other domestic LLCs). I am looking for information to correct or confirm that assumption and then secondly for clarification whether to amend prior tax returns with forms 8858 and whether to file a CTB election 8832 (for which there is no late filing relief anymore after 3 years)

Customer:

clarification of a typo: "I have filed forms 8856" should read "... forms 8865"

Anne :

I'm back

Anne :

let me get caught up on what you posted for a minute

Anne :

well, I can understand your confusion.....this is a very confusing situation

Anne :

which states that you have a foreign corporation

Anne :

which states you have a partnership

Anne :

making this a disregarded entity

Anne :

Basically, between you and your CPA, you have told the IRS that this is a Sole Proprietor business, a partnership, and a corporation

Anne :

At this point in time............your BEST course of action would be to file NOTHING.

Anne :

on the business

Customer:

ok, I understand

Anne :

I honestly don't think you'll hear from the IRS

Customer:

but I also think I confused you: forms 5471 have never been filed, neither have 8858 been filed. Only 8865 has been filed.

Anne :

but if you ever do.........come back here and ask for me by name if you'd like

Customer:

Does that change your assessment ?

Anne :

give me a second to sort this out in my mind

Anne :

 


lost you for a minute

Anne :

my screen went blank

Customer:

ok.

Customer:

do you need me to repost any prior information ?

Anne :

when you said you declared income under 8858 and included form 5471.....doesn't that mean that you actually filed those forms?

Anne :

no thanks.........I finally got it back..

Customer:

no, I misspoke and I apologize for the confusion. Only the form 8865 has been filed each year (without the 8832 CTB election form)

Anne :

ok.........that helps

Anne :

ok........that form says you are a partnership

Anne :

HOWEVER, you never made any money on it

Customer:

only $2 interest income per year which was declared on our 1040 B

Anne :

are you going to continue with the partnership?

Anne :

because you and your wife don't HAVE to file as "partners"

Customer:

the key point though is that unless you file 8832 this is by default regarded as a foreign corporation, no matter whether you have filed 8865 or not.

Customer:

I should have filed 5471 and did not because I fikled 8865

Customer:

We filed our FBARs as equal partners of that entity

Customer:

with the associated bank account

Customer:

we would continue maintaining the entity. Its purpose is to acquire foreign real estate

Anne :

how much $ did you declare on the FBAR

Customer:

the highest value of the associated bank account per year, which was less than $1000 for 2009-2011 and about $150k for last year

Anne :

you filed an FBAR that stated you had $150k?

Customer:

yes filed this year for the max. value during 2012

Customer:

it was a capital contribution

Anne :

so you do have holdings over seas

Customer:

now, yes

Customer:

no real estate yet, though. Just cash in a bank account

Anne :

actually, I think I have an easy fix for you

Anne :

since you stated that any entity that filed without the 8832 defaults to a corporation

Anne :

that's good for us, since I already found that there's no need to file anything if there was no income

Customer:

well, there was income although very little and it was declared on the o 1040B

Anne :

as a husband and wife team...........you might BOTH want to file as "disregarded entities" (sole proprietorship)

Anne :

that way you don't need and EIN

Anne :

you can still split the income/expenses 50/50

Customer:

I am not sure how we can do that for an LLC that was created in 2009

Anne :

and you don't have to pay a CPA to do your return

Anne :

what's your first name?

Customer:

Thoma

Customer:

s

Customer:

yes, we never filed a SS4 for the EIN either because the entity was dormant

Anne :

Thank you it just seems more polite at some point to address you by your name

Customer:

and our CPA said that was not necessary until business starts

Anne :

think of it this way Thomas

Anne :

your CPA was right

Anne :

think of it this way........you OWNED the business in 2009, but to date you have not TREATED it as a business

Customer:

yes, that makes sense to me. But I also understand you need to fileXXXXXand there is a $10k penalty for each year that you did noy

Customer:

t

Anne :

if you had, you would have something to repor

Customer:

so your advice is (1) for both my wife and I to file a 8832 (for which years) to establish it as a disregarded entity, (2) keep the reported 8865s unamended for prior tax years and (3) do not file late 5471s for 2009-2011

Anne :

Since 5471 deals with corps, and we've already found where you do not have to file any forms if there was no businesss transacted

Anne :

no

Anne :

I will give you what I think would be the easiest and most efficient way..........(although you don't HAVE to do it this way....but it will save you some money)

Anne :

give me a minute and I'll lay it out for you

Customer:

ok

Anne :

my advice is to file NOTHING on the business.....since it defaulted to a corp, and corps don't need to file if there's no business transacted

Customer:

ok

Anne :

I think that you & your wife should become sole proprietors....that way you don't have to pay for a partnership return.....

Anne :

please read below, and let me know if you have any questions:

Customer:

and the initial capital contribution of $1000 with related interest income does not count as a business transaction ?

Customer:

how about the $150k contribution last year ?

Customer:

what should I do with the 8865s then that I already filed. I can't remove this from the filings anymore

Anne :

I'm getting lost ....can you please tell me EXACTLY what was filed and when?

Customer:

for 2009-2011 I filed form 8865, 2012 is not yet filed

Anne :

ok......let me catch up.........I'm a slow runner

Customer:

ok, sorry I confused you

Anne :

I'm reading

Anne :

be back soon

Customer:

ok

Anne :

what did you put in section E when it asks for name of partnership?

Customer:

I put my wife's name into section E of form 8865

Anne :

I'm sorry, I meant what did you put in section f-1 when it asked for the name of the partnership

Customer:

Name and address of the LLC in Nevis (without an EIN)

Anne :

I assume you reported no income or expenses on the 8865's?

Customer:

No, however

Customer:

I checked question G-9 as "no" instead of "yes"

Anne :

You stated that your CPA filed form 8858 is this true?

Customer:

no, I meant form 8865

Customer:

he filed for 2009

Customer:

and 2010-2011 I filed myself

Anne :

ok......did you file a partnership return for US? (form 1065)

Customer:

no

Anne :

before I give you my final answer , did you read the information re: husband/wife election and is that something you'd be interested in..........the money you have in the foreign bank can still be used to buy properties.....since its your money......and you won't have to pay for an extra return.

Customer:

which extra return would that be? the 1065 ?

Anne :

yes

Customer:

so , unless we opt for that would we have to file 1065s for 2009-2012 ?

Anne :

yes

Anne :

no

Anne :

wait

Anne :

if you had INCOME in any year you have to file.........since you didn't, you don't need to worry about back years

Customer:

I had interest income of $2 :-)

Anne :

this is more "going forward" and doesn't require an EIN #

Customer:

is this yes or no for income

Anne :

the $2 means nothing

Customer:

well .... we declared he $2 and paid income tax on them in 1040B. I am worried about conflicts

Anne :

That won't matter.........you reported it on the US side

Customer:

is this qualified JV even applicable to foreign LLCs or only domestic ones ?

Customer:

the purpose of the LLC is asset protection, not self-employment

Anne :

yes......it always is

Anne :

well, you pay SE tax either way

Customer:

yes, I understand this should be transparent in terms of amount of tax paid

Customer:

However the big difference will be hot to treat the back years and whether that creates an exposure for penalties/interest

Customer:

if I have to file a form 5471 for the corp then there is an exposure

Anne :

just a second........

Anne :

I'm assuming you're asking all these questions because you're about to buy foreign property?

Customer:

yes, eventually

Anne :

Thomas........I need to get my head wrapped around all of this again..............

Anne :

I don't want to say anything yet

Customer:

ok, I understand

Customer:

I am worried about your time though, lol. this session was charged at $60 or so and we are going way beyond that

Customer:

Also I find this exclusion on the JV:

Customer:

A business owned and operated by the spouses through a limited liability company does not qualify for the election


Only businesses that are owned and operated by spouses as co-owners (and not in the name of a state law entity) qualify for the election. See Rev. Proc. 2002-69, 2002-2 C.B. 831, for special rules applicable to husband and wife state law entities in community property states.

Anne :

So you filed one form (8865) saying you were a partnership

Customer:

And we have a LLC here

Customer:

yes

Anne :

Ok........I'm ready to give you my opinion.........feel free to ask any questions you still need to

Customer:

ok

Anne :

Despite the fact that you did file the 8865.......................there was no income/expenses

Anne :

I personally would do nothing

Anne :

although you OWNED the business, you didn't TREAT it like a business at that time...............and that's what I've told IRS in the past.............

Customer:

nothing for the years 2009-2012. Would that be an exposure if there is business later on ? Did the IRS accept this explanation?

Anne :

I would then choose to file 2 Schedule C's and form 8938

Anne :

yes........the IRS accepted it

Anne :

form 8938 is MUCH easier than form 8865 (which has its own merits)

Customer:

yes, for 8938 I have to file anyway

Customer:

and point to form 8865 in it for example

Customer:

but the 2 Schedule C's for a JV, I doubt if I can do that.

Customer:

It says this does not apply to an LLC

Anne :

Thomas , LLC means NOTHING in and of itself.

Anne :

its how you file the LLC that matters

Customer:

it says a business operated through an LLC does not qualify for the election

Anne :

almost EVERY sole proprietor on up to corp has LLC behind them

Anne :

The form 8938?

Customer:

ok so in summary your recommendation is to leave 2009-2011 untouched and starting 2012 report 2 schedule Cs and form 8938 and then never send a check-the-box election form 8832 ?

Anne :

I'm not seeing it........please tell me where you found it

Customer:

it is the 4th chapter in the link yo sen

Customer:

4th headline written in red

Anne :

what link?

Customer: Election for Husband and Wife Unincorporated Businesses
Customer:

this business currently has the status of a foreign corp

Customer:

b/c we did not make a check the box election

Anne :

hold on

Anne :

ok......sorry about the LLC........even after 27 years there's still things to learn

Customer:

it is amazing how complex this is

Customer:

we cannot find a straight forward way to pay taxes for $2 income and face penalties of $10k if we do not choose the right form.

Customer:

even if the tax on the $2 income has been paid

Anne :

Thomas , you only reported that on the US side...........it truly has no bearing on what type of entity you are/become

Anne :

what country are you considering purchasing property in

Anne :

we have tax treaties with quite a few

Customer:

well, this entire chat is only about US reporting. For me this sounds like a conflict when it says I cannot make this election for a LLC. It is a Nevis LLC but with their statutes it is considered a LLC in the US too

Customer:

how would that be relevant ?

Anne :

Thomas, here's where you are (I think)

Anne :

you didn't check the box on the original form, which made you a corp by default

Anne :

so instead of a partnership, you are not a corp

Anne :

now a corp sorry

Anne :

you weren't required to file any back taxes since the corp had no income/expenses

Customer:

yes

Customer:

there is no tax dlinquency

Customer:

just not the right informational forms filed (eg 5471)

Anne :

but you want to be a partnership, correct?

Customer:

my #1 objective is to have my filings tax compliant

Customer:

then secondly a partnership is a better vehicle for asset protection than the sole proprietorship

Anne :

I understand.......I do too

Anne :

slightly.........it's still a "pass through entity"

Anne :

as a corp, at this moment, you are compliant

Anne :

you weren't required to file any past years since there was no income

Customer:

only assuming that the IRS accepts not getting 5471s because there was no income (other than the $2 interest)

Anne :

exactly

Customer:

I can live with a Foreign Corp too, even better asset protection wise

Customer:

but I don;t want to run afoul of the 5471

Anne :

then believe it or not, we're both at the same place

Customer:

I do not know when I have to start filing one

Anne :

when you start doing business

Customer:

if $2 interest i not enough then how about $600 in 2012 ?

Customer:

what is business? Would buying real estate be ?

Customer:

or only when I start getting rent from it ?

Anne :

when it is "rent ready"

Anne :

if you have to fix up the house before rental....that goes to the basis

Customer:

and if I just buy it as a vacation destination and never rent it

Customer:

Normally I do not have to report foreign real estate if it does not collect any income, just sitting there

Anne :

that's a personal property.......you may write off the interest (up to 2 homes only) on Sch A, and the property taxes for as many PERSONAL properties you own

Anne :

ok.........I can live with you not reporting rental property until its rented

Customer:

ok. then it sounds like the best is not do anything for the years 2009-2011 and stop reporting 8865s starting with the 2012 return and then start reporting 5471s as soon as there is rent ready property owned by the LLC. In the meantime continue reporting interest income on Schedule B of 1040. Is this correct ?

Anne :

yes!

Customer:

and reporting interest income on 1040 B is not a conflict wit the LLC being treated as a foreign corp ?

Anne :

no

Customer:

ok, good! That was a tough one. Thanks so much for your patiencew

Anne :

I'm glad I could help

Customer:

How should I handle payment ?

Anne :

my goal is to make sure you UNDERSTAND

Anne :

more than the payment...........however my creditors are not so opened minded lol

Anne :

I've actually never seen the customer's side

Customer:

ok

Anne :

I think first you rate the answer

Customer:

I will rate the answer as excellent

Anne :

then, if you want, they ask if you want to leave a tip

Customer:

if you do not feel you get paid commensurate of the time spent then let me know underXXX@XXXXXX.XXX

Anne :

if yes...you put it in....if no....then the transaction is complete (I think)

Customer:

ok, understan, thanks !

Customer:

have a good evening, it must be late for you

Anne :

I'm sorry..........your email is "x"d out...........no contact other than ha

Anne :

only 9

Anne :

tax season I stay awake a WHOLE lot longer

Customer:

Im in TX, so it is 8

Anne :

lo

Customer:

ok, enjoy the rest of the evening

Anne :

I'm in MI....never thought of MI as "eastern"

Anne :

you too

Anne :

please ask for me again if I can help you

Customer:

yes, thanks, will "Anne" be enough to identify you ?

Anne :

hold on........believe it or not.......I've forgotten how much I put into my screen name......lol

Customer:

ok, I can ask for Anne from MI, that should narrow it down some

Anne :

yep....Anne........I'm sorry, at one time there was more than one

Anne :

Anne

Anne :

and I couldn't remember who changed

Anne :

must have been her

Customer:

ok, have to leave now. Thanks again !

Anne :

you're welcome

Anne, Master Tax Preparer
Category: Tax
Satisfied Customers: 1921
Experience: Enrolled Agent with 25 Years Experience specializing Individual and Small Businesses
Anne and 3 other Tax Specialists are ready to help you
Expert:  Anne replied 1 year ago.
Thomas, thank you so much for the accept, excellent rating, and your extremely generous bonus!

Please feel free to ask for me by name if I can help you in the future!!

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