COVID-19 IRS Foreign Filing Due Dates

Update: On April 9, 2020, the Department of Treasury and Internal Revenue Service issued Notice 2020-23 which provided expanded relief to tax filing and payments. In this notice, the relief specifically includes all schedules, returns, and other forms that are filed as attachments to income tax returns or required to be filed by the due date of income tax returns.  For example, these include Forms 3520, 5471, 5472, 8621, 8858, 8865, and 8938, which were previously mentioned in our initial update. One main change is with regards to Form 3520 which was previously thought to be currently due.  Notice 2020-23 also specifically names certain forms including Form 1120-F and 1120-FSC, foreign filings.  The chart listing below has been updated accordingly.

On March 18, 2020, the Department of the Treasury and the Internal Revenue Service issued Notice 2020-17 which postponed the due date for certain federal income tax payments from April 15, 2020 until July 15, 2020. However, Notice 2020-18 restates and expands upon the relief provided in Notice 2020-17 and provides extension to all income tax returns. It is important to recognize that Notice 2020-18 does not necessarily apply to “information” returns that are due on April 15th as stated in Question 10 on the IRS Filing and Payment Deadline FAQ page.  Failure to timely file information returns may result in significant penalties, especially in the context of U.S. filings of foreign activity.  The AICPA issued a letter to the IRS on March 26th asking for a wider tax relief to include all filings due by April 15th to be specifically extended to July 15, 2020. Notice 2020-23 provides the expanded relief requested.

Most foreign information returns are specifically related to and filed with the taxpayer’s U.S. income tax return and is generally extended when the U.S. income tax return is extended. Windham Brannon has evaluated whether the due dates for the foreign information are tied to the U.S. income tax return and whether the returns listed below have been extended.

Please note that this guidance is applicable only for taxpayers whose income tax returns are due between April 1st and before July 15, 2020. All other filing deadlines prior to April 1st, are not included and must maintain their original filing deadline.

 

Form Description Extended?
Form 1042-S: Foreign Person’s U.S. Source Income Subject to Withholding Filed by any U.S. or foreign person that makes certain U.S. source payments to foreign persons that are fixed or determinable annual or periodical (FDAP). No. The original due date for Form 1042-S was March 15th. There are two 30-day extensions that are allowed, first extension to April 15th and second extension to May 15th. Since the original due date was March 15th, it is not included in the July 15th extension. Therefore, it needs to be filed by April 15th if not already filed.
Form 3520: Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts Filed by U.S. persons to report certain transactions with foreign trusts, ownership of foreign trusts, or receipt of gifts or bequests from foreign persons Yes. The due date for Form 3520 has been extended to  July 15th, and can also be extended to October 15 if an income tax return extension is timely requested. To ensure timely filing, you should file either Form 3520 or a protective Form 4868 by July 15.
Form 3520-A: Annual Information Return of Foreign Trust with a U.S. Owner Annual information return filed by a foreign trust with a U.S. owner No. The due date for filing Form 3520-A or an extension request (Form 7004) was March 15 and has already passed. However, in instances where a foreign trust fails to file Form 3520-A by March 15, the U.S. owner must file a substitute Form 3520-A with its Form 3520. As a result, a substitute Form 3520-A is subject to the Form 3520 rules discussed above.
FBAR: Report of Foreign Bank and Financial Accounts (FinCEN Form 114) Filed by U.S. persons to report financial interests in or signature authority over financial accounts located outside the U.S. N/A. The due date for filing the FBAR remains April 15, but pursuant to previously issued guidance, an automatic extension is granted until October 15.
Form 8938: Statement of Specified Foreign Financial Assets Filed by certain “specified persons” to report interests in certain foreign financial assets Yes. You should file Form 8938 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).
Form 926: Return by a U.S. Transferor of Property to a Foreign Corporation Filed by U.S. citizens or residents, domestic corporations, and domestic estates and trusts to report certain transfers of property to a foreign corporation Yes. You should file Form 926 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).
Form 5471: Information Return of U.S. Persons with Respect to Certain Foreign Corporations Filed by U.S. citizens and residents who are officers, directors or shareholders in certain foreign corporations Yes. You should file Form 5471 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).
Form 5472: Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business Filed by U.S. corporations and certain U.S. disregarded entities with foreign owners to report specified transactions involving foreign or domestic related parties Yes. You should file Form 5472 with your 2019 federal income tax return (or pro forma return in the case of a disregarded entity) on or before July 15 (or as extended by a timely requested filing extension).

This extension applies to corporations as well as to disregarded entities filing pro forma returns.

Form 8621: Information Return by a Shareholder of a Passive Foreign Investment Company (PFIC) or Qualified Electing Fund (QEF) Filed by U.S. persons who are direct or indirect shareholders of a PFIC or QEF Yes. You should file Form 8621 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).

If you are not filing an income tax return, you should file Form 8621 separately on or before July 15.

Form 8858: Information Return of U.S. Persons with Respect to Foreign Disregarded Entities (FDEs) and Foreign Branches (FBs) Filed by U.S. persons who own a foreign disregarded entity or operate a foreign branch Yes. You should file Form 8865 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).

If you are not filing an income tax return, you should file Form 8865 separately on or before July 15.

 

Form 8865: Return of U.S. Persons with Respect to Certain Foreign Partnerships Filed by U.S. persons to report information regarding controlled foreign partnerships, transfers of foreign partnerships, and acquisitions, dispositions, and changes in foreign partnership interests Yes. You should file Form 8865 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).

If you are not filing an income tax return, you should file Form 8865 separately on or before July 15.

 

Form 5713: International Boycott Report Filed by U.S. person that has operations in or related to a boycotting country. Yes. You should file Form 5713 with your 2019 federal income tax return on or before July 15 (or as extended by a timely requested filing extension).
Form 8288: U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests Filed by a buyer or transferee of U.S. real property that requires withholding. No. Form 8288 must still be filed by the 20th day after the date of the transfer of property along with the withholding payment.  No extension is permitted for filing.

 

FATCA Filing: In response to the COVID-19 virus, the Internal Revenue Service will provide an extension of time for a Reporting Model 2 FFI or a Participating FFI to file the FATCA Report (Form 8966) to the IRS. The filing deadline for the FATCA Report (Form 8966) will be extended from March 31, 2020 to July 15, 2020. Form 8809-I, Application for Extension of Time to File FATCA Form 8966, will not be required for this extension.

Many other countries have extended their filing due dates.  Check out Bloomberg Tax International Direct Tax COVID Roadmap for more details.

Windham Brannon is closely monitoring the IRS’ response to the COVID-19 crisis. These rules continue to evolve and depend on each taxpayer’s unique circumstances, so we strongly suggest that you consult with your tax adviser if you have any questions about how these changes impact you.  Please contact Brandi Samuel or your Windham Brannon tax advisor with any additional questions.

Disclosure
The CARES Act is intended to assist American individuals and businesses in coping with the Coronavirus pandemic.  Due to the nature of the crisis, the law was written quickly, had multiple changes in drafts, and is expected to have numerous clarifications in the future. As such, WB will provide, on a reasonable efforts basis, consultative services to clients relative to various loan programs and other benefits available under the recently enacted CARES Act.

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