By Anthony Diosdi
This article discusses the “throwback tax” which imposes harsh federal consequences for U.S. beneficiaries of certain foreign trusts. We will begin this article by discussing the grantor trust provisions of the Internal Revenue Code and the significance of a foreign trust being classified as a nongrantor trust compared to a grantor trust. Next, this article will describe the serious consequences of the throwback tax. We will conclude this article with a discussion on how to potentially mitigate the impacts of the throwback tax.
Overview of Federal Taxation of Trusts
The Internal Revenue Code has several regimes for taxing trusts, depending upon whether they are “grantor,” simple or complex trusts. There are also several special rules applicable to foreign trusts.
If a trust is a grantor trust, its income and gains will be taxed to the grantor. In response to reported abuses involving U.S. settlors seeking to retain prohibited controls through suspect mechanisms, Internal Revenue Code Section 679 was enacted to make virtually all foreign trusts settled by U.S. persons for U.S. beneficiaries taxable for U.S. tax purposes as grantor trusts. A “grantor” for purposes of Internal Revenue Code Section 679 is defined in Prop. Regs. Section 1.671-2(e) to include any person to the extent such person either creates the trust or, directly or indirectly, makes a gratuitous transfer to the trust, as well as any person who acquires an interest in a trust in a non-gratuitous transfer from a person who is a grantor of the trust. In addition, if one person creates or funds a trust for an accommodation for another person, the other person will be treated as a grantor with respect to such a trust. Also included are transfers by nonresidents during the five years preceding their immigration to the United States, deemed to occur upon their first becoming U.S. tax residents.
If a trust (whether domestic or foreign) has a grantor that is not a U.S. person, more limited rules apply in determining whether the trust will be treated as a grantor trust. In such a case, a trust generally will be treated as a grantor trust only if: 1) it is revocable by the grantor (either alone or with the consent of a related or subordinate party subservient to the grantor); or 2) distributions (whether of income or corpus) may be made only to the grantor or the grantor’s spouse during the grantor’s lifetime.
In contrast, a nongrantor trust is a separate taxpayer for U.S. federal tax purposes. A nongrantor trust is generally taxed in the same manner as individuals, with certain modifications. Thus, like a U.S. citizen or resident, a domestic trust will pay U.S. tax on its worldwide income and capital gains. Items of ordinary income are taxed at graduated rates after the allowance of certain deductions and credits. Gains from the sale of capital assets are taxed at capital gains rates. Similar to a nonresident alien, a foreign trust will pay U.S. income tax only on its income and certain gains from U.S. sources and on income or gain that is “effectively connected” to a U.S. trade or business.
In calculating its taxable income, a trust will receive a deduction for distributions to its beneficiaries to the extent that these distributions carry out the trust’s “distributable net income” (“DNI”) for the taxable year. Generally, the DNI of a domestic nongrantor trust for a particular year is equal to its taxable income for that year adjusted 1) by adding to taxable income the amount deducted as a personal exemption, the amount of its tax exempt income, and the amount of the trust’s deduction for distributions to beneficiaries and 2) by subtracting from taxable income the trust’s capital gains except to the extent such capital gains are “paid, credited or required to be distributed to any beneficiary during the taxable year.” See IRC Section 643(a)(3). Any DNI so distributed will retain its character in the hands of the recipient beneficiaries and will be taxed to them.
Capital gains of a domestic nongrantor trusts generally do not enter into the DNI calculation and are usually taxed to the trust. Any distributions by a domestic trust to beneficiaries in excess of DNI will be a non-taxable distribution of capital. The DNI of a foreign nongrantor trust includes its capital gains. In addition, a foreign nongrantor trust’s DNI includes the amount of its income from non-U.S. sources subject to certain reductions. Distributions to beneficiaries are considered first to carry out the DNI of the current year (pro rata as to each item of income or gain) and will be taxed to the recipient beneficiaries. If a foreign trust does not distribute all of its DNI in the current year, the after tax portion of the undistributed DNI will become “undistributed net income” (“UNI”).
Distributions of the UNI of a foreign nongrantor trust received by a U.S. beneficiary are taxed under the “throwback rule,” which generally seeks to treat a beneficiary as having received the income in the year in which it was earned by the trust. A foreign nongrantor to UNI for for any particular year is equal to the amount by which its DNI for such year exceeds the sum of:
1. The amount of trust accounting required to be distributed in such year;
2. The amount of any other amount properly paid or credited or required to be distributed for such year; and
3. The amount of any taxes imposed on the trust that are attributable to its DNI for the year. See IRC Section 665(a).
The throwback rule effectively results in federal tax being levied at the recipient’s highest marginal income tax rate for the year in which the income tax rate for the year in which the income or gain was earned by the trust. This means any capital gains accumulated by a foreign trust for distribution in a later taxable year will lose its favorable rate and instead be taxed at ordinary income rates. In addition, the throwback rule adds an interest charge to the taxes on a throwback distribution in order to offset the benefits of tax deferral. The interest charge accrues for the period beginning with the year in which the income or gain is recognized and ending with the year that the UNI amount is distributed, and is assessed at the rate applicable to underpayments of tax, as adjusted compounded daily.
Calculation of Throwback Tax on Accumulation Distribution
If a beneficiary has received an accumulation distribution from a foreign nongrantor trust, the “throwback tax” on the distribution will be calculated by the following nine steps discussed below.
Step 1: An allocation needs to be made for the accumulated income for the prior years. If the amount of accumulated income exceeds the UNI for the earliest year of the trust, the excess income is allocated to the next year for which there is any remaining UNI. This process continues from year to year until all of the accumulation distribution has been properly allocated. Each allocation of accumulated income is distributed on the last day of the year for trust accounting purposes.
Below, please see Illustration 1. which demonstrates Step 1 to calculating the throwback tax.
Tom is a beneficiary of F, a foreign nongrantor trust. F was established in 2007 by Tom’s mother who is not a citizen or resident of the United States. F distributed $100,000 to Tom in 2014, a year in which F’s DNI and trust distributed income was $20,000. Consequently, $80,000 of the distribution is treated as an accumulation distribution. F’s DNI, none of which was distributed, in each of its preceding years was as follows:
2010 – $40,000
Tom’s $80,000 accumulation distribution is deemed to have been made $4,000 on the last day of 2007, $20,000 on the last day of 2008, $30,000 on the last day of 2009, and $40,000 on the last day of 2010.
Step 2: Next, add to the amount deemed, under Step 1, to have been distributed on the last day of a preceding year the taxes that were imposed on such amounts in such a year. Such taxes include U.S. and foreign income taxes.
Below, please see Illustration 2. which demonstrates Step 2 in calculating the throwback tax.
Assume that F, the trust discussed in Illustration 1, paid taxes in each of its preceding taxable years equal to 40 percent of its DNI. The total amount deemed to have been distributed to Tom on the last day of 2007, 2008, 2009, and 2010 will be $5,600, $28,000, $42,000, and $36,400 for each year respectively. Based on this example, the entire amount deemed to be “Throwback Tax” is $112,000. See Example in “The Throwback Tax, by Ellen K. Harrison, Carlyn S. McCaffrey, Amy E. Heller, and Elyse G. Kirshner, February 2015.
Step 3: Next, determine the number of preceding taxable years in which the distribution is deemed to have been made to the beneficiaries of the trust. For purposes of this calculation, if any year’s deemed distribution is less than 25 percent of the total amount of the accumulation distribution divided by the number of preceding taxable years to which the accumulation distribution is allocated, that year will not be included for purposes of calculating the throwback tax.
Below, please see Illustration 3. which demonstrates Step 3 in calculating the throwback tax.
In Illustration 1. and Illustration 2. the number of preceding taxable years in which a distribution is deemed to have been is three. The year 2007 is disregarded because the amount of the accumulation distribution allocated to that year ($4,000) is less than 25 percent of the total accumulation distribution ($80,000) divided by the number of years to which the distribution is deemed allocated is four.
Step 4: Next, it will be necessary to identify the beneficiary’s computation years. The computation years are those three of the beneficiary’s five immediately preceding taxable years left after eliminating the year in which his or her income was the highest and the year in which his or her income was the lowest.
Below, please see Illustration 4. which demonstrates Step 4 in calculating the throwback tax.
Assume that Tom’s taxable income for the 2009, 2010, 2011, 2012, and 2013 tax years was $50,000, $100,000, $200,000, $150,000, and $175,000 respectively. The year of the highest taxable income was in 2011, and the year of the lowest taxable income received in 2009 are both eliminated for purposes of this calculation. Tom’s three computation years are now 2010, 2012, and 2013.
Step 5: Next, it will be necessary to determine the average annual distribution amount. This is done by dividing the amount of deemed distribution by the number of preceding years in which the distribution is deemed to have been made to the beneficiaries.
Below, please see Illustration 5. which demonstrates Step 5 in the calculation of the throwback tax.
In Illustration 2, the amount deemed distributed was $112,000 and the number of preceding years in which the distribution is deemed to have been made was three. The average annual distribution amount is $37,333 ($112,000/3 = $37,333).
Step 6: Next, it will be necessary to determine the amount by which the beneficiary’s income tax would have increased in each of the three computation years if the annual distribution amount had been added to his or her taxable income for these years. To make this calculation, no differentiation is made among the various types of income that were included in the foreign nongrantor’s trust’s UNI (other than tax-exempt income). Consequently, if a portion of the trust’s UNI was long term capital gain, the beneficiary will not receive the advantage of the lower rate that generally applies to such grants. If any foreign income were added in Step 2 to the amount deemed to have been distributed, the amount of such taxes may be allowed as a credit against the increase in tax calculation in this step.
Step 7: Next, it will next be necessary to determine the average tax increase by dividing the sum of the three increases by three.
Step 8: Next, it will be necessary to multiply the average tax increase by the number of preceding taxable years in which the distribution is deemed to have been made as determined under Step 3.
Step 9: Finally, it will be necessary to subtract from the product obtained in Step 8 by the amount of any U.S. income taxes that were added into the calculation in Step 2. The final result is the amount of the beneficiary’s throwback tax.
Calculation of the Interest Charge
If a foreign nongrantor trust makes a distribution of UNI to a U.S. beneficiary, the distribution will not only be subject to the throwback tax, the distribution will also be subject to an interest charge as per Internal Revenue Code Section 668. As per the Internal Revenue Code, the interest rate charged on the throwback tax is the rates applied under Internal Revenue Code Section 6621 to underpayments of federal income tax. This interest is also compounded daily. The number of years over which interest is calculated is determined by a process which is said to produce a “dollar-weighted” number of years.
The interest charge is calculated utilizing a three step formula. This formula is set forth in Schedule C “Calculation of Interest Charge” on Form 3520. First, the UNI for each year must be multiplied by the number of years between such a year and the year of the distribution. Second, all products calculated in the first step must be added together. Finally, the sum of such products calculated in the second step must be divided by the aggregate amount of the nongrantor foreign trust’s undistributed income. The quotient is to be rounded to the nearest half-year. For purposes of this calculation, an accumulation is treated as having come proportionately from each year with respect to which there is UNI.
Can the Default Method Be Utilized to Avoid the Throwback Tax?
The “default” method of calculating distributions from a foreign nongrantor trust may, under certain circumstances enable distributions of UNI to be made to U.S. beneficiaries without triggering a throwback tax. Part III, Schedule A of Form 3520 discusses three steps to determine if accumulated earning distributions can avoid the throwback tax under the default method:
First, the U.S. beneficiary enters the total distributions he or she received from the foreign trust in the three preceding years (or the number of years that the trust has been a foreign trust, if fewer than three). Second, the U.S. beneficiary of the foreign nongrantor trust multiplies that total by 1.25. Finally, the U.S. beneficiary of the nongrantor foreigtn trust divides the total stated in the last step by three or by the number of years that the trust has been a foreign nongrantor trust if it was in existence less than three years. If the amount of the actual distribution from the foreign trust does not exceed the product of the final calculation, the distribution will not be subject to the throwback tax.
The rules pertaining to the taxation of foreign trusts and its beneficiaries are complex.
If you established a foreign trust or are a beneficiary of a foreign trust, not only do you have a number of reporting requirements, you could be subject to serious federal tax consequences. It is important that you consult with a qualified tax attorney that has experience advising grantors and beneficiaries on the tax ramifications and reporting requirements for foreign trusts. We have significant experience advising individuals and professionals on the tax and reporting requirements of foreign trusts.
Anthony Diosdi is a partner and attorney at Diosdi Ching & Liu, LLP, located in San Francisco, California. Diosdi Ching & Liu, LLP also has offices in Pleasanton, California and Fort Lauderdale, Florida. Anthony Diosdi advises clients in tax matters domestically and internationally throughout the United States, Asia, Europe, Australia, Canada, and South America. Anthony Diosdi may be reached at (415) 318-3990 or by email: email@example.com.
This article is not legal or tax advice. If you are in need of legal or tax advice, you should immediately consult a licensed attorney.