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U.S. Beneficiaries of Foreign Trusts May Be In for an Unpleasant Surprise This Year by Arthur Dichter, JD

Posted on February 14, 2019 by Arthur Dichter

The Tax Cuts and Jobs Act (TCJA) has had broad-reaching impact on all taxpayers for 2018 and going forward. This includes U.S. persons who are beneficiaries of foreign non-grantor trusts.

As a result of the TCJA suspending the deduction for miscellaneous itemized deductions, which includes the deduction for investment management fees, trust distributable net income (DNI) is likely to be higher in 2018 than it was in prior years. Therefore, to avoid accumulation of income and later imposition of the onerous “throwback” tax rules, foreign trusts will likely have to make larger distributions (before March 6, 2019) to their U.S. beneficiaries to clear out all 2018 DNI. This will result in more taxable income and higher tax liabilities for the U.S. beneficiaries on their personal income tax returns. Finally, if a trust has insufficient cash available to pay those larger distributions (since it used the cash to pay those non-deductible investment management fees), it may have to sell assets to generate cash, which could result in an unexpected increase in DNI for 2019. This cycle could continue until 2026, when miscellaneous itemized deductions may be reinstated or indefinitely if the miscellaneous itemized deductions are not reinstated.

Let’s take a step back and review how we got here.

Every trust is presumed to be a foreign trust unless it meets both the court test and the control test. A trust meets the first test if a court within the U.S. is able to exercise primary supervision over the administration of the trust. A trust meets the control test if one or more U.S. persons have the authority to control all substantial decisions of the trust with no other person having the power to veto any of the substantial decisions. In other words, if one foreign person has authority to make one substantial decision, the control test is not met, and the trust is a foreign trust.

A foreign trust will be considered a grantor trust if either (i) the trust is revocable and, upon revocation, the assets re-vest in the settlor, or (ii) during the lifetime of the settlor and the settlor’s spouse, the only beneficiaries of the trust are the settlor and/or the settlor’s spouse.

A grantor trust is essentially disregarded for income tax purposes. The grantor or owner of the trust, usually the Settlor or other person making contributions to the trust, will be considered the owner of the trust and that person will continue to be subject to U.S. income tax on the income derived by the trust. A non-grantor trust is a separate taxpayer.

U.S. Income Taxation during a Settlor’s Life

Distributions made from a foreign grantor trust to a U.S. beneficiary during the lifetime of the settlor are typically considered gifts to the beneficiary from the settlor. The U.S. beneficiary has an obligation to file IRS Form 3520 to report receipt of any and all distributions from a foreign trust, even if the amount is just $1. Should the trust make a distribution to the settlor, who then makes a gift to a U.S. beneficiary, the beneficiary must file IRS Form 3520 only when the aggregate value of all such gifts exceeded $100,000 during the year.

While both of these circumstances subject U.S. beneficiaries to reporting obligations, they do not expose beneficiaries to U.S. income tax on the gifts/distributions they receive. On the other hand, when a corporation or partnership owned by a foreign grantor trust or its settlor makes a “gift” to U.S. beneficiaries, the IRS may recharacterize the transfer as a taxable dividend to the U.S. recipient. Furthermore, when gifts came from a foreign corporation or partnership owned by the trust or the settlor in 2018, the reporting threshold for Form 3520 is only $16,076. For this reason, direct transfers from a foreign corporation or partnership to a U.S. beneficiary should be avoided.

U.S. Income Taxation after a Settlor’s Death

A trust that was a grantor trust during the settlor’s life will be considered a foreign non-grantor trust for U.S. income tax purposes upon the settlor’s death. In additional to being reportable on Form 3520, any distributions to a U.S. beneficiary after that point are subject to U.S. income tax to the extent that the foreign non-grantor trust has current or accumulated income.

Distribution of a non-grantor trust’s current DNI to a U.S. beneficiary is taxable to the beneficiary and the character of that income generally flows through from the trust. Therefore, distributions attributable to the trust’s qualified dividend income or long-term capital gain entitles the beneficiaries to a reduced U.S. tax rate of 20 percent plus the 3.6 percent net investment income tax (NIIT). On the other hand, distributable net income that is not distributed in the same year becomes accumulated (undistributed) net income (UNI). Distributions of UNI are subject to a complicated set of “throwback tax” rules which allocate the UNI over the amount of time the trust has been in existence and imposes income tax, plus an interest charge, as if the income had been distributed pro rata over the accumulation period. The tax rate may be as high as 39.6%, plus NIIT and the interest charge may be substantial depending on the length of time that the trust has been in existence.

The trustee of the foreign trust typically provides an annual Foreign Non-Grantor Trust Beneficiary Statement to help beneficiaries understand and apply the appropriate U.S. tax treatment to the distributions they receive from foreign non-grantor trusts.

Impact of TCJA

Trusts are generally treated like individuals for tax purposes. For example, under the TCJA, a foreign trust that files a U.S. income tax return because it has income from a U.S. business, will face a top tax rate of 37 percent, reduced from 39.6 percent, on taxable income in excess of $12,500. At the same time, the TCJA reduces or eliminates many of the deductions to which trusts were previously entitled, including a new $10,000 limit on the deduction for state and local income taxes.

More importantly, the new tax law’s suspension of miscellaneous itemized deductions is likely to have a dramatic impact on the U.S. tax liability of U.S. beneficiaries of foreign trusts. These items, including tax-preparation fees, investment-management fees and unreimbursed business expenses, are no longer deductible for purposes of computing a trust’s DNI for 2018. The good news, however, is that expenses paid in the administration of an estate or a trust and that would not have been incurred if the property were not held in such estate or trust and that were not subject to the 2 percent adjusted gross income (AGI) limitation under prior law and are still fully deductible to the trust. This includes trustee fees and accounting, legal, and tax-return preparation fees to the extent such fees would not have otherwise been incurred by an individual.

In order to avoid the accumulation of income and the application of the throwback tax in future years, many foreign trusts will distribute all their DNI on an annual basis. Since it is difficult to compute a trust’s income for the year prior to the last day of the year, Section 663(b) of the tax code allows a trustee of a foreign trust to annually elect to treat a distribution in one year as though it was made on the last day of the prior year, as long as the distribution is made within the first 65 days of that next year. Thus, a calendar-year trust can make a distribution on or before March 6, 2019, to clear out all of its DNI from 2018 as long as it files its election with the IRS on or before June 15, 2019.

In order to make the 663(b) distribution on or before that 65th day, the trustee may find that they do not have sufficient cash on hand because they used the cash to pay those investment management fees. In that case, they may decide to sell assets which would potentially create additional gain that would be included in DNI for that year and the cycle starts all over again.

If you are a trustee of a foreign trust, you might consider starting the DNI computation process a little earlier this year to make sure that there is sufficient time to generate the cash needed to make the 663(b) distribution. If you are the beneficiary of a foreign trust, you might want to communicate with the trustee to make sure they are aware of these new rules.

The advisors and accountants with Berkowitz Pollack Brant work with settlors, trustees and beneficiaries of foreign trusts to help them understand and comply with U.S. tax and reporting obligations and to compute DNI and UNI.

About the Author: Arthur Dichter, JD, is a director of International Tax Services with Berkowitz Pollack Brant, where he works with multi-national businesses and high-net worth foreign individuals to structure their assets and build wealth in compliance with U.S. and foreign income, estate and gift tax laws. He can be reached at the CPA firm’s Miami office at (305) 379-7000 or via email at


Information contained in this article is subject to change based on further interpretation of tax laws and subsequent guidance issued by the Internal Revenue Service.

Time is Running Out for Consumers to Qualify for a Tesla Tax Credit by Rick D. Bazzani, CPA

Posted on February 12, 2019 by Rick Bazzani

Both GM and Tesla have sold in excess of 200,000 plug-in electric vehicles and have surpassed the limit to be eligible for the full federal tax credit.

If you are still considering the purchase of a Tesla or GM electric, plug-in vehicle, you may want to close the deal sooner than later to qualify for a potential tax credit that expires soon.

Under the Internal Revenue Code, consumers are eligible to receive a tax credit when they purchase or lease passenger cars or light trucks that qualify as plug-in electric-drive motor vehicles. However, by law, those credits begin to phase out when a manufacturer sells 200,000 qualifying vehicles in the United States. Both Tesla and GM surpassed that threshold during the last half of 2018. As a result, the tax credits that consumers may receive when they purchase or lease electric cars manufactured by Tesla or GM will phase out according to the following schedule:

Tesla                                                  GM

$7,500 Tax Credit No Longer Available Vehicles Purchased by March 31, 2019
$3,750 Tax Credit Vehicles Purchased by June 30, 2019 Vehicles Purchased from April 1 to September 30, 2019
$1,875 Tax Credit Vehicles Purchased from July 1 to December 31, 2019 Vehicles Purchased from October 1 to March 31, 2020
No Tax Credit Vehicles purchased after December 31, 2019 Vehicles purchased after March 31, 2020

It is important to note that as of Jan. 1, 2019, Tesla and General Motors are the only manufacturers whose sales of electric cars have reached the threshold limiting the tax credit. Consumers can continue to receive the full value of the plug-in car tax credit when they purchase electric vehicles manufactured by brands that include Audi, BMW, Ford, Honda, Porsche and Toyota, among others.

About the Author: Rick D. Bazzani, CPA, is a senior manager with Berkowitz Pollack Brant’s Tax Services practice, where he provides individuals with a broad range of tax-efficient estate-, trust- and gift-planning services.  He can be reached at the CPA firm’s Ft. Lauderdale, Fla., office at (954) 712-7000, or via email at


Information contained in this article is subject to change based on further interpretation of tax laws and subsequent guidance issued by the Internal Revenue Service.



Get Ready for Taxes by Adam Slavin, CPA

Posted on February 06, 2019 by Adam Slavin

As you wind down your holiday celebrations, it’s important to remember that the federal income tax filing deadlines for 2018 are just around the corner. To avoid the burden and stress of last-minute preparations, consider taking the time now to do some advance planning and get your tax house in order.

Gather Relevant Records

Whether you forgot to save your 2018 tax records or you stuffed them into shoe boxes or file folders throughout the year, now is the time to get all of your documents organized for the April tax-filing deadline. For example, if you contributed cash or other assets to a charitable organization in 2018 and you plan to itemize your deductions for the year, you will need to substantiate those contributions with either a bank record of the canceled check or a written communication from the charity that received your gift.

After the first of the New Year, you will start to receive W-2 wage statements from your employer(s) and/or 1099 statements of nonemployee compensation, royalties and rental income paid to you in 2018. You should also keep an eye out for other tax forms that specify additional income you received during the year in the form of Social Security benefits, interest income, dividends and/or capital gains. Similarly, make it a point to hold on to statements that detail the expenses you paid, including student and mortgage loan interest, state and local sales tax and contributions to retirement accounts, which you may be able to deduct from your taxable income. Because you will need these documents to file your federal and state income tax returns, consider organizing them in a folder and scanning them to save electronically on computers, back-up hard drives and/or flash drives. If you work with an accounting firm that prepares your annual tax returns, ask if it has a secure portal through which you may upload and store those documents temporarily.

The IRS’s online tool that helps taxpayers retrieve transcripts of their previously filed tax returns should be used only as a last resort, since it has been the target of data breaches and email phishing scams.

Know How Long to Hold Records

As a general rule, the IRS recommends taxpayers hold onto their tax returns and supporting documentation for a minimum of three years. However, you should consider keeping those documents for at least seven years, which is the length of time the IRS has to audit a previously filed return that understates income by more than 25 percent. If you failed to file a tax return for any year or if you filed a fraudulent return, there is no statute of limitations, and the IRS can audit you at any time in the future. Therefore, you may consider keeping certain documents, such as those relating to the purchase and sales of real estate and securities, for an even longer period of time.

Know How to Dispose of Documents

Tax records contain your personal information, including your social security number and bank and financial account details, which can get into the wrong hands and result in fraud and/or identify theft. Therefore, it is critical that you shred documents you are disposing of and wipe computer hard drives and any mobile devices on which you store sensitive data.

If you are unsure of what documents you need to meet your tax-filing obligations, how best to retain those documents and for how long, please contact your tax advisors.


About the Author: Adam Slavin, CPA, is a senior manager with Berkowitz Pollack Brant’s Tax Services practices, where he provides tax planning and consulting services to high-net-worth individuals and closely held business. He can be reached at the CPA firm’s Boca Raton, Fla., office at (561) 361-2000 or via email at



Information contained in this article is subject to change based on further interpretation of tax laws and subsequent guidance issued by the Internal Revenue Service.


Partnerships Must Take Immediate Action to Review Operating Agreements, Name Partnership Representatives on 2018 Tax Returns by Dustin Grizzle

Posted on February 01, 2019 by Dustin Grizzle

Most of the buzz surrounding the 2018 tax year centered on the overhaul of the U.S. tax code and how individuals and businesses can comply with the provisions of the Tax Cut and Jobs Act (TCJA). Consequently, taxpayers may have forgotten the new centralized partnership audit regime, established by the Bipartisan Budget Act of 2015 (BBA), which went into effect for tax years after Dec. 31, 2017.

The new law shifts the responsibility for correcting a partnership’s tax underpayments away from its individual partners/members to the partnership entity (at the highest individual rate of 37 percent, rather than 29 percent). Moreover, it requires each partnership and LLC treated as a partnership for tax purposes to designate on its 2018 tax returns one person or entity to serve as its partnership representatives (PR) who has the sole authority to act on the partnership’s behalf before the IRS. One challenge faced by many entities has been understanding who or what qualifies as a PR.

In August 2018, the IRS issued the following regulations regarding the designation and authority of a PR under the new federal partnership audit rules:

  • A partnership must designate a partnership representative on its federal partnership income tax returns (Form 1063) for each applicable tax year. The designation must be made prior to the start of any IRS administrative proceedings. If the partnership does not appoint a PR, the IRS may appoint one for the partnership.
  • A PR must have a substantial presence in the U.S., which the law defines as someone who has a U.S. street address, telephone number and taxpayer identification number, and who is able to meet with the IRS at a “reasonable” time and place.
  • A PR may be a person or an entity, including the partnership itself and/or a disregarded entity.
  • A partnership named as a PR must have a substantial presence in the U.S., and it must appoint a designated individual (DI) to act on the entity’s behalf in the partnership’s role as a PR.
  • An individual named as a PR or DI need not be an employee of the partnership.
  • A partnership/LLC and each of its partners/members have the unilateral power to revoke a PR designation, including those made by the IRS, as long as the partnership receives IRS consent to do so.
  • A partnership may change its designated PR through revocation without IRS consent only when it receives notification that its tax return has been selected for IRS examination/audit.
  • Certain small partnerships may qualify to annually elect out of the PR designation requirement when they have 100 or less direct or indirect partners, who are either individuals, C Corporations, foreign entities treated as U.S. C Corporations, S Corporations, or estates of deceased partners. If an entity fails to elect out of the law, it must designate a PR.

With enactment of the partnership audit rules taking effect in 2018, parties to a partnership should meet with experienced advisors and accountants to review their operating agreements and take steps, as needed, to make changes to protect themselves from personal liabilities that may result from any decisions the PR makes on the partnership’s behalf. Under certain circumstances, it may be beneficial to specify in partnership/LLC agreements that any IRS audit decisions require a vote of the partners/members. In addition, meeting with professional advisors can help ensure that all partners/members understand their responsibilities to correct underpayments and remit taxes at the highest individual rate plus penalties and interest in effect during the adjustment year, rather than the audit year, regardless of whether or not they were in fact partners during the audit year.

About the Author: Dustin Grizzle is an associate director of Tax Services with Berkowitz Pollack Brant, where he provides tax-planning and compliance services to high-net-worth individuals and businesses in the manufacturing, real estate management and property investment industries. He can be reached at the CPA firm’s Boca Raton, Fla., office at (561) 361-2000 or via email at


Information contained in this article is subject to change based on further interpretation of tax laws and subsequent guidance issued by the Internal Revenue Service.

IRS Waives Penalties for Underpayments of 2018 Federal Tax Liabilities by Jeffrey M. Mutnik, CPA/PFS

Posted on January 30, 2019 by Jeffrey Mutnik

The IRS is providing penalty relief to the millions of taxpayers it says may have fallen short of their total tax liabilities for 2018 due to the revamp of the U.S. tax code under the Tax Cuts and Jobs Act (TCJA).

Thanks, in part, to the efforts of the accounting profession, including of the American Institute of CPAs (AICPA), the IRS recognizes that many individual taxpayers may not have properly adjusted their withholding and estimated tax payments to reflect the provisions of the new law. As a result, taxpayers who paid at least 85 percent of their total tax liabilities for last year through withholding and/or estimated tax payments can avoid underpayment penalties. Typically, a penalty waiver requires taxpayers to have paid 90 percent of their tax liabilities during the tax year.

U.S. taxes are based on a pay-as-you-go system for which individual taxpayers are required by law to pay most of their tax obligations during the year, either by having federal taxes withheld from their paychecks or by making quarterly estimated tax payments directly to the IRS. While the federal tax withholding tables released by the IRS in early 2018 reflected the lower tax rates and higher standard deductions under the TCJA law, they did not consider all of the changes brought about the new law. Despite efforts by the IRS and CPAs to encourage taxpayers to get a paycheck checkup and confirm that they had enough taxes withheld from their paychecks, many taxpayers did not submit revised W-4 withholding forms to their employers or increase their estimated tax payments.

According to the IRS, many taxpayers filing their 2018 will be surprised to learn they owe additional taxes to the federal government. To avoid an unexpected tax bill in future years, taxpayers should meet with their advisors and accountants during the first half of 2019 to confirm the accuracy of their estimated tax payments and to check the withholding on their most recent paychecks to ensure they are having enough tax withheld from their wages based on their filing status, number of dependents and other factors.

About the Author: Jeffrey M. Mutnik, CPA/PFS, is a director with the Taxation and Financial Services practice of Berkowitz Pollack Brant Advisors and Accountants, where he provides tax and estate-planning counsel to high-net-worth families, closely held businesses and professional services firms. He can be reached in the CPA firm’s Ft. Lauderdale office at (954) 712-7000 or via email at



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