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Lane
Lane, CFP, MBA, CRPS
Category: Tax
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Experience:  Providing Financial & Tax advice since 1986
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A question for form 3520, pls?If a US citizen has RPP (Defined

Resolved Question:

A question for form 3520, pls?
If a US citizen has RPP (Defined benefit registered pension plan) from Canadian employer, but the US citizen didn't make any contribution. In this case, is it still necessary to file form 3520?
Thanks
Submitted: 8 months ago.
Category: Tax
Expert:  Lane replied 8 months ago.

Lane :

Hi,

Lane :

No, the only three area where there COULD be some confuson are Transferor to a Foreign Trust, Responsible Party or Owner of Trust

Lane :

Obviously not a recipient of a distribution, Obligation holder, or gift recipient of eithr a trust or estate

Customer:

But the employee is the owner of RPP, although he has only a small portion of the whole RPP pool, right?

Lane :

But if there was no contributions made, that takes care of Transferor, Responsible party here is the Plan itse;f and finally, he is not an owner, since this is a DB plan ,,, hw IS a beneficiary, but is receiving anything (I presume), ao no. no 3520 needed here

Lane :

NO he is not

Lane :

If thos were a Defined Contribution plan he would be

Lane :

but in a DB plan he is a beneficiary of the trust with the plan sponsor being the obligee and having a legal obligation to pay n actuarially defined benefit

Lane :

but here he is not an owner

Lane :

Th benefit becomes his property a it becomes paid out

Customer:

So, do you mean for a defined benefit plan, the employee will be a beneficiary, instead of an owner if the employee doesn't make any contribution? In this case, when would be the time to file 3520 - when he receive any money from 3520?

Customer:

Sorry, In this case, when would be the time to file 3520 - when he receive any money from RPP?

Lane :

That's exactly right ... He WILL need to, when the benefit starts to pay. As a recipient of a distribution from a foreign trust, you are required to fill out Part III as opposed to Part II.

Customer:

So, how about if the employee makes contribution as well. Should he file 3520 for each year the contribution is made?

Lane :

Yes, part 1, under Transferor to a Foreign Trust

Customer:

Thanks! Could you possible refer me to some IRS guide, pls?

Lane :

Sure, this has both the form, itself AND the full instructions, (instructions are in HTML format, so easier to read through and search):http://www.irs.gov/uac/Form-3520,-Annual-Return-To-Report-Transactions-With-Foreign-Trusts-and-Receipt-of-Certain-Foreign-Gifts

Customer:

Thanks very much. I would like to rate you now. Would you mind I having another question soon?

Lane :

Thank you ... No would love to work with you ... Just go here: View Profile

Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 8 months ago.

Hi: Lane


 


If the same person also has TFSA (Tax Free Savings Account) in Canada. The earnings within this account is tax free in Canada, but no trust held within the account, only some public stocks. In this case, is 3520 still required?


 


Thanks again.

Expert:  Lane replied 8 months ago.

Yes, for these purposes he will have to file the 3520.

Just as with an IRA here in the US there actually is a trust involved.

THe account has/IS an underlying trust,

You might note that the providers either ARE (or you'll see an agreement with in the account contracts WITH) a trust co.

Lane
Customer: replied 8 months ago.

Sorry, what do you mean ARE?


 


But what I know is if it's only deposits within TFSA, it's not necessary to file 3520, right?


 

Expert:  Lane replied 8 months ago.


THat's right if you are talking bout reinvested dividends, etc.

But ALL qualified (registered, in Canada) accounts have a trust document.

That's just part of the mechanics/law of the account.

That's why, again you'll see that the provider is either a bank or trust company or the contract that the person is sent when they first open the account will specify who the custodian of the trust IS.

But no, if NO CONTRIBUTION was made then he's not transferring and I honestly don't thing here he is an owner either, he's technically a full lifetime be

 

See this: http://www.tdcanadatrust.com/products-services/banking/accounts/tax-free-savings-account/tax-free.jsp

 

 

Customer: replied 8 months ago.

Could I ask what do you mean ARE in the previous post?


 


What's the penalty for late filing of 3520? I only found failure of filing penalty. How to apply to waive if it's late for only one month?


 


Would return on capital be taxable on 1040 (sorry, it's in TFSA, but I'm wondering whether all Return on Capital is taxable on 1040, as well)?


 


Thanks very much!


 

Expert:  Lane replied 8 months ago.

Could I ask what do you mean ARE in the previous post?


I just mean that an underlying trust is part of the makeup of any qualified/registered (Govt sponsored or registered, typically retirement, account, where there are tax benefits for saving for retirement) plan.


 


What's the penalty for late filing of 3520? I only found failure of filing penalty. How to apply to waive if it's late for only one month?

 

25% of the transfer, but again, there's no need to file here because no money is flowing into or out of that TFSA shell


 


Would return on capital be taxable on 1040 (sorry, it's in TFSA, but I'm wondering whether all Return on Capital is taxable on 1040, as well)?


No, again, no transfers here, and in a retirement plan trust he's not the owner, he's an unlimited lifetime beneficiary.


 


Thanks very much!


 

Customer: replied 8 months ago.

There is transfer unfortunately.


 


What I understand is if there is transfer (in or out) in the year, 3520 is required. But if not, it's not required until there is transfer again, right?


 


So, do you still think return on capital is not taxable on 1040?

Expert:  Lane replied 8 months ago.

OK, yes, that's right. Only on the transfer (that's the amount the penalty would be calculated on)

And no a return of capital is NOT taxable on 1040.

And in terms of being only a month late ... I think I'd just get it in.

And if they actually say anything we/re back to that first time abatement for reasonable cause discussion.
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 8 months ago.

Thank you so much!

Expert:  Lane replied 8 months ago.

You're welcome Lucia

Lane
Customer: replied 8 months ago.

Hi: Lane one more question, pls,


 


So if only stocks are in TFSA, is form 8621 required? I think if trust units are in TFSA, 8621 is necessary, right?


 


Thanks again!

Expert:  Lane replied 8 months ago.
A U.S. person that is a direct or indirect shareholder of a passive foreign investment company (PFIC) or qualified electing fund (QEF) files this form:
when they receive certain direct or indirect distributions from a PFIC,
recognize a gain on a direct or indirect disposition of PFIC stock, or
are making an election reportable in Part II of the form.
Customer: replied 8 months ago.

But the taxpayer would not know whether the the company or the trust they buy would meet income test (75%) or assets test (50%) or not, as he is only a shareholder among thousands of others.

Expert:  Lane replied 8 months ago.
The TFSA is the trust.

Is this person receiving distributions ?
Customer: replied 8 months ago.

Trust units and stocks are disposed in the year. No dividends, but has interest income.

Expert:  Lane replied 8 months ago.
If All is within the TFSA the no form is needed .... Only when money iis distributed
Customer: replied 8 months ago.

So, what you think whether PFIC or QEC is met, you will consider TFSA as a whole, not not see what in it in details, right?


 


Thanks again.

Expert:  Lane replied 8 months ago.

Yes, another way to think about it is whether there is a taxable event for the taxpayer.

If there's no transaction between the tax advantaged account and the taxpayer, (distribution or contribution) ... transfer in or transfer out, there's no taxable event.

Again there has to be some action between taxpayer and the account -

... when they RECEIVE certain direct or indirect distributions from a PFIC,

... they RECOGNIZE a gain on a direct or indirect disposition of PFIC stock, or

... when they MAKE an election.

Customer: replied 8 months ago.

Thanks a lot, Lane. I know it's late now. Could I possible ask what do you mean "make an election"? If it's too late, you may answer me tomorrow, pls.


 


Thanks again!

Expert:  Lane replied 8 months ago.


Yes, make an election (as done on part II)

A Election To Treat the PFIC as a QEF.

B Election To Extend Time For Payment of Tax.

C Election To Mark-to-Market PFIC Stock.

D Deemed Sale Election.

E elect to treat an amount equal to my share of the post-1986 earnings and profits of the CFC as an excess distribution.

F Election To Recognize Gain on Deemed Sale of PFIC.
amount

G Deemed Dividend Election With Respect to a Section 1297(e)

H Deemed Dividend Election With Respect to a Former PFIC.

Customer: replied 8 months ago.

Hi: Lane


 


If $6000 was withdrawn from TFSA (with total ACB of $2000, including $1000 contributed in the current year, , $1000 contributed in the previous year). therefore he gains $1000 long-term capital gain, $3000 short term capital gain. In this case, does he have to make an election on 8621? If not, how to report $4000 capital gain on 8621? If election has to be made, which one can be chosen?


 

Expert:  Lane replied 8 months ago.

Ahhh there WAS a withdrawal.

Part III of 8621.

no election here... I thought you were saying that there was no real distribution/withdrawal
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 8 months ago.

Ok, great, thank you so much!


 


This is my last question today.


 


Have a really good night!

Expert:  Lane replied 8 months ago.

You too Lucia,

...good night.

Lane
Customer: replied 7 months ago.

Hi: Lane


 


How are you?


 


May I have another question, pls? I actually posted for you to pay attention, but taken by another person now.


 


Regarding RESP, if only cash sits in the account, would 3520 & 3520A still be needed? Thanks


 


Thanks,

Expert:  Lane replied 7 months ago.
Sorry just walked into a meeting ... We'll be out by 4:00 at the latest.

Can u check back?

(Thanks so much for coming to me)

4:00 ea at the latest
Customer: replied 7 months ago.

No problem. Thanks!

Expert:  Lane replied 7 months ago.
Thanks I think we're getting g close here
Expert:  Lane replied 7 months ago.

Hi there.

... free at last!

Hope this finds you well.

No, this is a transaction based form; Note in the title " ...Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts..."

And the 3520 is exempted for Canadian Registered retirement plans whose owners are US residents.They mention o the RRSP or RRIF, specifically, but then say...

"In addition other eligible Canadian plans within the meaning of section 3 of Rev. Proc. 2002-23, 2002-15 I.R.B. 744, are relieved of any obligation to file Form 3520-A with
respect to a U.S. citizen or resident alien beneficiary who has made an election in accordance with section 4 of Rev. Proc. 2002-23 and has relieved no distribution from such plan.

Hope this helps

Lane

Customer: replied 7 months ago.

Thank you for your quick reply, Lane. So to confirm that 3520 & 3520 A are exempted, right?


 


But does the person need to make an election and how to make it?


 

Expert:  Lane replied 7 months ago.

Yes, exempted.

And my assumption is this refers to 8891, to report undistributed earnings.

Customer: replied 7 months ago.

Sorry, just to confirm that my question is regarding RESP, not RRSP.


 


Thanks,


 

Expert:  Lane replied 7 months ago.


Yes, but we addressed this piece above...

"...Canadian plans within the meaning of section 3 of Rev. Proc. 2002-23, 2002-15 I.R.B. 744, are relieved of any obligation to file Form 3520-A with respect to a U.S. citizen or resident alien beneficiary..."

essentially all qualified plans
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 7 months ago.

Thanks very much!

Expert:  Lane replied 7 months ago.


Your welcome!

Thank you for the rating!

Lane
Customer: replied 7 months ago.

Hi: Lane


 


Sorry to bother you late. May I have another question, pls?


If a US Co. (Subsidiary) paid Canadian Co (100% SH) dividend and withheld 5% tax to IRS. From Canadian side, this 5% withholding tax can't be deductible, because dividend income received from US S Co. is completely tax free in Canada. In this case, could US S Co. ask refund from IRS by claiming that dividend paid out is qualified dividend, as all income generated is active business income?


 


Thanks very much.


 

Expert:  Lane replied 7 months ago.

You bet.

That's it.

Lane


Customer: replied 7 months ago.

Sorry, Lane. Do you mean the US Co. can ask refund from IRS? If so, how to do it?


Thanks again!

Expert:  Lane replied 7 months ago.

NO if the tax was withheld against the Canadian Company then that is US tax withholding against any tax owed to US BY the Canadian Company.


See This from IRS:

Withholding Agent

Any person required to withhold tax is a withholding agent. A withholding agent may be an individual, trust, estate, partnership, corporation, nominee (under section 1446), government agency, association, or tax-exempt foundation, whether domestic or foreign.

Liability for tax. As a withholding agent, you are personally liable for any tax required to be withheld. If you fail to withhold and the foreign payee fails to satisfy its U.S. tax liability, then both you and the foreign person are liable for tax, as well as interest and any applicable penalties.

The applicable tax will be collected only once. If the foreign person satisfies its U.S. tax liability, you are not liable for the tax but remain liable for any interest and penalties for failure to withhold.





Si, if as you say they do not owe this tax to the US they will file a Foreign Corporation tax return:

http://www.irs.gov/uac/Form-1120-F,-U.S.-Income-Tax-Return-of-a-Foreign-Corporation

... to get a refund


Customer: replied 7 months ago.

Hi: Lane


I apologize to reply you so late. The power was down in my living area right after I received your reply and hasn't restored so far. I'm outside now, so can access internet again.


So, what you mean is to have Canadian Co file 1120. But the US subsidiary filed 1120 already, and the only US income received by Canadian Co. is dividend from US Sub Co. In this case, would 1120 still be required for Canadian Co.?


Thanks again,

Expert:  Lane replied 7 months ago.

Yes 1120 .... F

Hope everything's OK up there!

Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 7 months ago.

I see. Thanks!


 


Many people live in dark and cold house now. No traffic lights and driving is extremely slow. Hotels in downtown were fully booked... But hope we can have a bright Chrismas!


 


Merry Christmas to you!


 

Expert:  Lane replied 7 months ago.

Merry Christmas to you as well!

Please stay warm ... (1st things first)

My prayers are with ...

Lane

Customer: replied 7 months ago.

Thanks a lot!

Expert:  Lane replied 7 months ago.
Good to hear form you Lucia,

You are very welcome

Lane
Customer: replied 6 months ago.

Hi: Lane


Happy new year to you!


We eventually got power back at Christmas Eve and luckily to spend a warm Chtistmas at home.


Well, could I have another question of 3520 & 3520A, pls?


If a person has an investment account, part of it in cash, part of it in stocks, and part of it in mutual funds (which qualifies as foreign trust). In this case, should 3520 & 3520A be reported for this account and only mutual funds investment should be reported? If there are capital gains generated, should it be reported on form 8621 or sch D?


Thanks again.

Expert:  Lane replied 6 months ago.

Happy new year to you as well!

That's good to hear.

Yes, the Mutual fund, as a trust, will need 3520 and the 8621 will need to be filed as well.

See this:

A separate form 8621 is required to report the existence of and transactions within foreign based mutual funds, pooled investments or partnerships.

The objective of this form is to include in income any realized and unrealized income earned within foreign based funds.

And yes, again, the dividends will ALSO go on schedule D. it's the schedule D that actually affects the taxes. The other two are informational



Customer: replied 6 months ago.

Thank you, Lane.


So what you mean is only mutual funds should be reported on 3520 & 8621, not cash or stocks, right?


On form 8621, should I make an election to treat PFIC as a QEF and fill out part II?


Thanks again,

Expert:  Lane replied 6 months ago.

That's right, the mutual fund (foreign trust issue)

On the 8621, I think that you have to know what the objective of the taxpayer is...and look at what's been done previously.

It's my understanding that QEF status fully avoids the tax and interest regime only if it is effective from the beginning of the shareholder's holding period.
Customer: replied 6 months ago.

If it's the first year to file 1040, would the election of QEF be eligible?


Thanks again,

Expert:  Lane replied 6 months ago.


You bet... that's the time to do it.
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 6 months ago.

Sorry to bother you late, Lane. Could I have two quick questions, pls?


1. Is ETF be treated as a trust?


2. If there is capital loss in TFSA account, should it be reported on sch D?


Thanks very much!

Expert:  Lane replied 6 months ago.
Hi Lucia,

Sorry, ... was at a family obligation until late yesterday.

1. Yes, the ETF is, in structure, the same as a mutual fund or closed end fund and considered a foreign trust for 3520 purposes.

2. No the TFSA, once funds are inside the TFSA, is completely tax deferred I(both gains and losses).

Stay warm!

Lane
Customer: replied 6 months ago.

Thank you very much, Lane. Sorry to bother you last night and in the weekend.


For TFSA, my understanding even the income is within the fund, it's still taxable in the current year for US tax, so can't be delayed. Could you pls show me the guide of deferring income for TFSA, pls?


Thanks very much again!

Expert:  Lane replied 6 months ago.

You are correct Lucia. I stand corrected.

I can find nothing in the tax code, treasury regs, OR PLRs that say the income is taxable.

What I HAVE been able to find is some anecdotal evidence that that because there IS no special treatment or exemption the income is taxed by default.

So, I think that the logic here is that the treatment would be the same for the loss.... no special treatment.

Now, the question becomes whether the loss is a capital loss or an ordinary loss.

I'll keep looking, on that one.


Thoughts?

(1) is all income treated in the TFSA as ordinary?

(2) or because there is essentially NO IRS guidance, should one look to the long term/short term nature of the gains and losses?

Lane
Customer: replied 6 months ago.

Thanks, Lane!


The reason I say capital loss is because the investment in TFSA is stocks, and there was disposition in last year, so to generate capital loss.


My understanding is that the type of income inside TFSA will keep its original nature when to report on 1040, as I can't find any specific IRS guide of recognizing income of TFSA as ordinary income.


Thanks very much again!

Expert:  Lane replied 6 months ago.

I agree.

The more I look at these issues, it seems that one must apply some logic, that, as you have said here, assumes treatment based on the underlying security.

Take a look at this...

http://www.ctf.ca/CTFWEB/EN/Newsletters/Canadian_Tax_Focus/2013/1/130102.aspx

Lane
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 6 months ago.

Thanks very much for your time and efforts!

Customer: replied 5 months ago.

Hi: Lane


 


May I have a question for 3520, pls?


If RESP account only has cash in it, for both contribution and the government grant, should 3520 & 3520A be reported? I know the government grant should be reported on 1040 anyway.



Thanks

Expert:  Lane replied 5 months ago.

Does this person have any control on the account? or is this person Bene?

Also contribution was made this tax year?
Customer: replied 5 months ago.

Yes, this person controls the account, the beneficiary is the kids. Contribution was made in the year.


Thanks,

Expert:  Lane replied 5 months ago.

US person, I'm guessing?

 

If so, yes

 

There will be a requirement to file, for each TFSA or RESP held by the US citizen, form 3520 ("Annual Return To Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts") for any year in which there is a contribution or withdrawal from the plan, and form 3520-A ("Annual Information Return of Foreign Trust with a U.S. Owner") for every year that the plan is in existence.

 

Lane

 

Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 5 months ago.

Thanks very much!

Expert:  Lane replied 5 months ago.
You are very welcome!
Customer: replied 5 months ago.

Sorry to confirm, if there is no contribution (the tax payer doesn't make any contribution, and therefore there is no government grant) or withdrawal, and only cash sits in it, then no necessary to report 3520 & 3520A for the US person, right?


 

Expert:  Lane replied 5 months ago.
If there is no contribution, no 3520.

But the 3520-A, ("Annual Information Return of Foreign Trust with a U.S. Owner"), needs to be filed for every year that the plan is in existence.

Here's an excellent article on this:

http://www.ctf.ca/CTFWEB/EN/Newsletters/Canadian_Tax_Focus/2013/1/130102.aspx
Lane, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 3695
Experience: Providing Financial & Tax advice since 1986
Lane and 9 other Tax Specialists are ready to help you
Customer: replied 5 months ago.

Wonderful, thanks very much!

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