Thursday, October 20, 2011

Do You Have To Report Foreign Gifts?

My brother-in-law is married to an English citizen. My other brother-in-law lives near Saffron Walden, north of London. Perhaps it is because of my wife’s family, but I have paid attention to the tax issues of expatriates for a long time.
Let’s reverse the direction, however, for today’s discussion. Let’s say that you are a U.S. citizen or green card holder. You live in the United States. It is the family that lives abroad. You receive a gift or bequest from the family. To simplify the discussion, let’s stipulate that the family has no ties to the U.S., other than having you in the family. Maybe you are the in-law.
What does your tax radar tell you?
Generally there is no U.S. gift tax on a gift from overseas – with some exceptions. There are always exceptions. The gift could be subject to U.S. gift tax if it is “U.S. situs” property. In general, tangible property located in the U.S. is “U.S. situs” property. Examples would include:
·         Residence
·         Vacation property
·         Boat
·         Cash
Did I say cash? Yep. The IRS considers cash to be tangible property. The IRS could, for example, consider a check given to you in the U.S. to be a gift of personal property subject to the gift tax. I personally would visit the family overseas, receive the check and sidestep this issue altogether. I have never understood why cash is singled out. I like to remember tax law by understanding what the law is attempting to reach, but this rule has never made sense to me.
Generally intangible property is not considered “U.S. situs” property. Intangibles would include stocks and bonds, for example. There is a different rule with respect to U.S. stocks and bonds and the estate tax, but we are discussing only gift tax today.
Short of transferring a house to you, it is unlikely that your in-laws will have a U.S. gift tax return. You however may have to file Form 3520, “Annual Return to Report Transaction With Foreign Trusts and Receipt of Certain Foreign Gifts,” depending on the amount of the gift. The good news is that there is no tax with Form 3520. It is a reporting form. You are required to file Form 3520 only if gifts from individuals exceed $100,000 for the year. There is a lower threshold for gifts from a foreign corporation or partnership - $14,375. I have never seen a gift from a foreign corporation or partnership, however.
But remember to file the 3520, because if you don’t file the penalties will be 5% of the gift amount for each month you don’t file.
I suspect you figured out where the IRS gets its money on foreign gifts.

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