U.S. citizens or residents, domestic corporations or domestic estates or trusts must file Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation, to report any exchanges or transfers of tangible or intangible property that are described in section 6038B(a)(1)(A) of the Internal Revenue Code to a foreign corporation. For transfers occurring after 2017, taxpayers are required to specify whether a reportable property transfer was to a foreign corporation that is a non-controlled “specified 10%-owned foreign corporation” as defined in section 245A.
The U.S. transferor must file the Form 926 and the additional information required under Regulations sections 1.6038B-1(c) and 1.6038-1(d) and Temporary Regulations sections 1.6038B-1T(c)(1) through (5) and 1.6038B-1T(d) with their income tax return for the tax year that includes the date of the transfer. Spouses may file Form 926 jointly, but only if they file a joint income tax return.
If the transferor is a partnership (domestic or foreign), the domestic partners of the partnership, not the partnership itself, are required to file Form 926. Each domestic partner is treated as a transferor of its proportionate share of the property.
A U.S. person that transfers cash to a foreign corporation (in a transfer that is described in section 6038B(a)(1)(A)) must report the transfer on Form 926 if (a) immediately after the transfer, the person holds, directly or indirectly, at least 10% of the total voting power or the total value of the foreign corporation, or (b) the amount of cash transferred by the person to the foreign corporation during the 12-month period ending on the date of the transfer is more than $100,000.
The U.S. person could be subject to a penalty for failure to file equaling 10% of the fair market value of the property at the time of the exchange/transfer if the taxpayer fails to comply with the filing requirement. The penalty will not apply if the failure to comply is due to reasonable cause and not willful neglect. The penalty is limited to $100,000 unless the failure to comply was due to intentional disregard. A 40% penalty may also be imposed on any underpayment resulting from an undisclosed foreign financial asset understatement unless the understatement is due to reasonable cause. Moreover, pursuant to section 6501(c)(8), the period of limitations for assessment of any tax with respect to any tax return, event, or period to which the information relates is extended to the date that is 3 years after the date on which the information required to be reported is provided.
For additional information regarding penalties, refer to penalties.
Persons filing Form 926 may also be required to file a FinCEN Report 114, Report of Foreign Bank and Financial Accounts (“FBAR”) (formerly TD F 90-22.1), if they have $10,000 or more in a financial account held in a foreign country during the year.
The forms and instructions are available as follows:
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FinCEN Report 114 supersedes TD F 90-22.1 (the FBAR form that was used in prior years) and is only available online through the BSA E-Filing System website. The system allows the filer to enter the calendar year reported, including past years, on the online FinCEN Report 114.
Note: Financial institutions are reminded that they must use FinCEN reports, which are available only electronically through the BSA E-Filing System. For more information, see Notice on E-Filing Mandate PDF.
Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury regulations, or other official tax guidance, visit Tax code, regulations, and official guidance. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.