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May 18, 2010 - Phil Hodgen

New foreign trust tax rules, Part 1 – overview

The HIRE Act is the latest tax law enacted in the United States.  The astonishing largesse of the Federal government will apparently be paid for entirely by chasing Americans who have money outside the United States.

Foreign trusts are increasingly useless for normal use by normal people.  The effect of the tax legislation is to make it uneconomic for U.S. citizens to use foreign trusts in their routine estate planning.  More perniciously, the new tax legislation makes it uneconomic for non-U.S. banks to take on U.S. citizens as customers, because U.S. tax enforcement — as a job — continues to be outsourced by the government without compensation.

This is a summary of the new rules.  With, of course, my patented* completely unbiased and totally objective opinion where necessary.

What’s New

The new tax laws governing foreign trusts cover the following topics:

  • They clarify the rules for when you a foreign trust does (or does not) have a beneficiary in the United States.  (This is an amendment to Internal Revenue Code Section 679).
  • They create a presumption in some cases that a foreign trust in fact has a beneficiary in the United States.  (This is another amendment to Internal Revenue Code Section 679).
  • If a beneficiary is a U.S. taxpayer and gets to use trust property without paying for it, there is income tax to pay — this is treated as a distribution to the beneficiary.  (This is an amendment to Section 643 of the Internal Revenue Code).
  • There is a new reporting requirement.  Yay, party time!  More f-ing paperwork!  (This is an amendment to Section 6048 of the Internal Revenue Code).
  • And of course, there are bigger penalties.  (This is an amendment to Section 6677 of the Internal Revenue Code).

Each of these points will be its own separate post (or maybe more than one post, depending on how much there is to bite off, chew, swallow, digest, and, well, you know. . . .).**

Footnotes

* No, I’m not a patent troll, because I actually create this stuff as compared to just sitting and sandbagging noble inventors.  Leave aside the technicality that copyright and not patent law will cover this.  “Patent troll” is so evocative, though.

** OK, MetaphorBoy, don’t push this too far.

Tax and Trusts