When do you need to file Form 5471?

Written by: Josh Katz, CPA

Form 5471, also known as the Information Return of US Persons With Respect to Certain Foreign Corporations, is a crucial document for US citizens, residents, and domestic corporations with interests in foreign corporations. Filing this form is essential for maintaining compliance with tax laws and ensuring that the IRS clearly understands your overseas financial activities.

Understanding Form 5471

Before diving into the specifics of when to file, it’s crucial to understand who must file this form. Generally, if you are a US person with a certain level of involvement or ownership in a foreign corporation, you may be obligated to file Form 5471. This includes individuals, corporations, and other entities.

Controlled Foreign Corporation

A Controlled Foreign Corporation (CFC) is a specific type of foreign corporation subject to special tax rules in the United States. The primary characteristic of a CFC is that US shareholders hold a significant portion of its ownership or control. Here are the key features of a Controlled Foreign Corporation. 

  • US Shareholder

    A US shareholder is a US person (individual, corporation, or partnership) who owns 10% or more of the total combined voting power of all classes of stock entitled to vote in the foreign corporation. This includes constructive ownership rules, which can attribute stock ownership to certain family members or entities.

Table of Contents

  • Ownership by US Shareholders

    A CFC is defined by the percentage of ownership held by US shareholders. Specifically, it is a foreign corporation in which more than 50% of the total combined voting power of all classes of stock or more than 50% of the total value of the stock is owned (directly, indirectly, or constructively) by US shareholders on any day during the corporation’s tax year.

Categories of Filers

  • US citizen or resident who is an officer or director of a foreign corporation in which a US person has acquired (in one or more transactions) stock that meets the 10% stock ownership requirement with respect to the foreign corporation.

  • A US person who acquires stock in a foreign corporation which, when added to any stock owned on the date of acquisition, meets the 10% stock ownership requirement with respect to the foreign corporation or who acquires stock that constitutes a 10% or more of the total voting power or total value of the foreign corporation.

  • US person who had control (more than 50% of the total voting power or value of all classes of stock or of the total combined voting power) of a foreign corporation for an uninterrupted period of at least 30 days during the annual accounting period of the foreign corporation. 

  • US shareholder who owns stock in a foreign corporation that is a Controlled Foreign Corporation (CFC) for an uninterrupted period of 30 days or more during any foreign corporation’s tax year and who owns that stock on the last day of that year.

It’s important to note that different filing requirements depend on which category applies to you, and the specific information that needs to be reported may vary.

Subpart F Income

If the company is considered a CFC, certain types of income (Subpart F income) may be taxed and flow through to the US shareholders and cause them to pay tax on that income on their US personal or business tax returns. The rules are complex with respect to determining the types of income of a CFC are subpart F income.

Certain types of income, such as dividends, interest, rental income, insurance income, offshore shipping income, and personal service income, are treated as Subpart F income. Subpart F income, whether distributed or not, is taxable to the US shareholders personal return (or corporate return if a US corporation is the owner) in the year it occurs as ordinary income. However, the income in a Controlled corporation from other types of operating businesses, such as retail stores, factories, etc., that do not have operations in the US and do not purchase goods from a US affiliate of the business is not taxed to the Controlled Corporation shareholders until distribution.

Dividends paid to shareholders of Foreign Corporations are sometimes eligible for the reduced qualified dividend rate (same rate as capital gains) when paid from the foreign corporation that is located in a country with which the US has a tax treaty and not subpart F income from a Controlled Foreign Corporation.

Other types of Corporation

Certain types of foreign corporations (the type varies by Country) have been identified by the IRS as eligible to elect, for US tax purposes only, to be treated as flow-through entities. This means that if the election is made by filing the appropriate form with the IRS, all of the income and expenses of that foreign entity will flow through and be taxed on the income tax returns of the US shareholder in the same manner as US partnership and LLC income flows through and is taxed on the tax returns of the owners.

This often is an advantage if most of the net income is distributed to the shareholders since it allows them to claim the foreign taxes paid by the foreign corporation as a foreign tax credit against their US income tax on that flow-through income and partially or totally offset that US income tax.

Penalties for Non-Compliance

Failing to file Form 5471 when required can lead to significant penalties. The IRS may impose penalties of up to $10,000 per form, which can escalate if they determine that the failure to file was intentional.

Conclusion

Form 5471 is a critical component of US tax law for individuals, corporations, and entities involved with foreign corporations. Knowing when and how to file this form is crucial for maintaining compliance and avoiding potential penalties. If you find yourself in any of the categories mentioned, it’s advisable to consult a tax professional who can provide expert guidance tailored to your specific situation. Staying informed and proactive will ensure you meet your tax obligations and maintain a healthy financial standing in domestic and international contexts.

If you need help filing Form 5471 or require other US expat tax services, feel free to contact Universal Tax Professionals.