In my practice in the Middle East I’ve found it very common that families create offshore structures (i.e., outside the USA) in various countries to hold a large portion of the family wealth. The underlying reasons for maintaining these structures outside of the family’s home country are varied, but often revolve around a need for keeping the assets in a jurisdiction that is stable both politically and economically, or for expansion of the family business. For the most part, the assets are typically held in foreign corporate entities; less so in foreign partnerships.
As is often the case, over time, some family members will become involved in the USA, perhaps to study or to work. In due course, many of these individuals will obtain green cards or become US citizens. The family may continue providing financial support to that individual (e.g., for advanced education or to support a business venture) and quite frequently, without any aforethought, the funds will be paid from one of the family’s foreign corporations directly into the US individual’s bank account.
Both the family and the recipient will usually view the transfer as one having been made for support based on familial obligations or simply as a gift, made out of disinterested generosity. Unfortunately, this is not how the US tax law will treat the transferred amounts. Subject to specific exceptions, the US tax rules permit the Internal Revenue Service (IRS) to treat a gift received from a foreign corporation or partnership as income to the US recipient on which he or she must pay US income tax.
In general, money or other property received by a US person as a gift (or bequest) is not taxed to the recipient. Under a specific section of the US Internal Revenue Code, it is excluded from the recipient’s gross income. Even though the recipient, will pay no tax on what he receives, there may be reporting duties imposed on the recipient if the giver of the gift was a foreign person. You can read more about these rules and reporting requirements at my blog posts here and here.
When there is a direct or indirect transfer from a foreign corporation or partnership which the US recipient treats as a gift or bequest, the tax rules found in Treasury Regulation Section 1.672(f)-4 allow the IRS to re-characterize the “purported gift”, subject to certain exceptions. The tax rules mandate that the US recipient must include in his US taxable income the value of any “purported gifts” that are transferred from a foreign partnership or foreign corporation, whether transferred directly or indirectly. What this means is that the US recipient reports such a “purported gift” on his US income tax return. He must treat the “purported gift” as if it was in fact a distribution to him from the foreign corporation (e.g., a taxable dividend) or partnership (a taxable partnership distribution). This result will occur regardless of whether the recipient is actually a shareholder or partner in the transferor-entity.
Under the tax rules, a “purported gift” is generally defined as any transfer of property (including cash) by a partnership or foreign corporation, other than a transfer for fair market value, to a person who is not a partner in the partnership or a shareholder of the foreign corporation (or to a person who is a partner in the partnership or a shareholder of a foreign corporation, if the amount transferred is inconsistent with the partner’s interest in the partnership or the shareholder’s interest in the corporation, as the case may be).
Here’s an example how the tax rules governing “purported gifts” would work in the real world. HoldCo is a corporation organized under the laws of Lebanon that is beneficially owned by A, a nonresident alien individual who is resident in the United Arab Emirates. A’s daughter D, is a US green card holder who recently finished her Master’s degree in design and is starting a business venture with some other colleagues. A wants to support his daughter’s endeavor and he directs that HoldCo make a gratuitous transfer of $500,000 directly to D.
D must report on her US income tax return and treat the transfer as a dividend from HoldCo (let’s assume HoldCo has sufficient earnings and profits to support full dividend treatment). In this example, treaty benefits will not be available for "qualified dividend" treatment, and, as a result, D may end up paying a tax of 39.6% (plus a net investment income tax of 3.8%) on the “purported gift. Furthermore, if HoldCo is a “passive foreign investment company” (PFIC), she must treat the amount received as a “distribution” from a PFIC under Code Section 1291 with very harsh tax results that will eat up a great portion of the “gift”. More on this will follow in Part II of this blog post. Part II will also examine some exceptions to the “purported gift” rules.
Part II of this blog post, to follow, will discuss the narrow exceptions that may apply to his “Ouch” rule.
The information provided in this article is for general information purposes only. The information is not intended to be comprehensive or to include advice on which you may rely. You should always consult a suitably qualified professional on any specific matter.
Virginia La Torre Jeker J.D.
Virginia La Torre Jeker J.D., is based in Dubai. Virginia has been a member of the New York Bar since 1984 and is also admitted to practice before the United States Tax Court. She has over 30 years of experience specializing in the international aspects of US tax, including FATCA. She has been quoted in the New York Times and Newsweek, and is regularly quoted in many local news articles and publications."
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