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IRS seeks to bolster rules for foreign trusts and gifts

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An IRS rule proposal could give tax professionals and clients who receive assets through foreign trusts and gifts answers to technical questions they’ve been posing for decades.

Last month, the agency held a public hearing on a proposal the IRS released in May that would alter the guidelines for the reporting of transactions involving foreign trusts and gifts reflected on Forms 3520 and 3520-A

The proposal is less controversial than another IRS proposal that would enforce new rules for donor-advised funds or the agency’s audit crackdown on tax avoidance methods used by wealthy households and won’t make as much of an impact as the expiration of many provisions of the Tax Cuts and Jobs Act at the end of next year. Still, financial advisors whose clients have offshore holdings may soon be dealing with new guidelines.

The IRS proposal would bring “more clarity or certainty on needing to report transactions,” said Brian Harvel, an Atlanta-based partner with the Alston & Bird law firm. 

“The key takeaway for me is that the IRS and Treasury want people to report more rather than less,” Harvel said in an email. “That is in line with what other countries are doing around the world, except that the U.S. places more emphasis on privacy and recognizes that there are a lot of legal and beneficial uses for trusts — asset protection, privacy, personal safety — compared to other countries who are gathering information on trusts and making it public or semi-public. Those types of disclosures defeat the purpose of a trust in the first place.”

READ MORE: 7 impactful tax strategies for HNW business clients

The proposal stems largely from a 1996 law, the Small Business Job Protection Act, which targeted “abusive tax schemes” that included that use of foreign trusts, according to a legislative history in the proposal. 

“In these schemes, foreign trusts were used to transfer large amounts of assets offshore, where it was much more difficult for the IRS to identify whether U.S. persons owned an interest in such trusts, and whether such persons were reporting and paying the required taxes on their income from such trusts,” the rule said. “Many of the foreign trusts were established in tax haven jurisdictions with bank secrecy laws.”

In rolling out the proposal earlier this year, the agency’s statement cited stakeholders who informed the IRS of “potential opportunities for improvement” of the penalty process relating to the forms and a new working group seeking to identify further changes that would reduce taxpayer burdens and “incentivize voluntary compliance.”

“The proposed regulations address potential uncertainty under current law, including the necessary requirements for complying with the foreign trust and gift provisions, and the relevant tax consequences and potential penalties for compliance failures,” according to the preamble to the rule.

The proposal would alter the regulatory definition of the terms “U.S. persons” and loans known as “qualified obligations,” and the treatment of indirect loans from foreign trusts that some taxpayers have used to bypass the rules, according to a guide to the potential rule written earlier this year by Ian Weinstock and Heather Fincher of the Kostelanetz law firm. 

In addition, the proposal expands reporting requirements to more kinds of transactions known as “constructive” transfers and distributions from trusts while filling in more details about exceptions to those guidelines and spelling out more rules for how to legally accept foreign gifts with proper notification to the IRS.

“For nearly thirty years, taxpayers have been waiting for the IRS to issue regulations related to foreign trusts and foreign gifts,” Weinstock and Fincher wrote. “Since 1996, when Congress enacted a myriad of provisions to prevent tax avoidance through the use of foreign trusts and gifts, taxpayers have had to rely on less formal guidance (e.g., Notice 97-34, Revenue Procedures 2014-55 and 2020-17) on those provisions.”

READ MORE: Trusts are useful but complicated. Here are some basics

In other words, tax professionals welcomed the codification of some highly specific policies, but they still asked the agency through more than 1,500 public comments and testimony at the Aug. 21 hearing to tweak the proposal further, according to a summary of the proceedings by Thomson Reuters Tax & Accounting.

For example, the American Institute of CPAs praised the May rule proposal, even as the organization called in July for shifts in at least 13 different sections of the guidelines.

“Practitioners have needed guidance in this area for more than 25 years,” Eileen Sherr, AICPA’s director of tax policy and advocacy, said in a statement at the time.

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GASB issues guidance on capital asset disclosures

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The Governmental Accounting Standards Board issued guidance today that will require separate disclosures for certain types of capital assets for the purposes of note disclosures.

GASB Statement No. 104, Disclosure of Certain Capital Assets, also establishes requirements and additional disclosures for capital assets held for sale. 

The statement requires certain types of assets to be disclosed separately in the note disclosures about capital assets. The intent is to allow users to make better informed decisions and to evaluate accountability. The requirements are effective for fiscal years beginning after June 15, 2025, and all reporting periods thereafter, though earlier application is encouraged.

The guidance requires separate disclosures for four types of capital assets:

  1. Lease assets reported under Statement 87, by major class of underlying asset;
  2. Intangible right-to-use assets recognized by an operator under Statement 94, by major class of underlying asset;
  3. Subscription assets reported under Statement 96; and,
  4. Intangible assets other than those listed in items 1-3, by major class of asset.

Under the guidance, a capital asset is a capital asset held for sale if the government has decided to pursue the sale of the asset, and it is probable the sale will be finalized within a year of the financial statement date. A government should disclose the historical cost and accumulated depreciation of capital assets held for sale, by major class of asset.

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Accounting

On the move: RRBB hires tax partner

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Suha Uddin

BRIAN BOUMAN MEMORY CREATIO

Suha Uddin was hired as a tax partner at RRBB Advisors, Somerset. 

Sax, Paterson, announced that its annual run/walk event SAX 4 Miler, supporting the Child Life Department at St. Joseph’s Children’s Hospital in Paterson, has achieved $1 million in total funds raised since its inception in 2012.    

Withum, Princeton, rolled out a new outsourcing service offering as part of its sustainability and ESG practice designed to help companies comply with the European Corporate Sustainability Reporting Directive, the mandate requires reporting of detailed sustainability performance as it pertains to the European Sustainability Reporting Standards , effective January 2023.

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Armanino takes on minority investment from Further Global

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Top 25 Firm Armanino LLP has taken on a strategic minority investment from private equity firm Further Global Capital Management.

The deal, which closed today, is the latest in the series of investments by private equity in large accounting firms that began in 2021 — but with a key difference, Armanino CEO Matt Armanino told Accounting Today.

“What’s maybe the punchline here — what’s really unique, I think — is that we wanted to focus on a minority investment that allowed us to retain not just operational control of the business, but ownership control of the business,” he said. “Those are some of the guiding principles that we’ve been thinking about over the last number of years, and we felt like if we could accomplish those things strategically with the right partner, it would really be just a home run, and that’s where we think we’ve landed.”

As is common with CPA firms taking on private equity investment, Armanino LLP will restructure to an alternative practice structure, splitting into two independently owned and governed professional-services entities: Armanino LLP, a licensed CPA firm wholly owned by individual CPAs, will provide attest services to clients, and Armanino Advisory LLC, a consulting and advisory firm, will perform non-attest services.

Inside the deal

As have many large firms, Armanino LLP had been looking at private equity for some time.

“We’ve been analyzing the PE trend over the last few years and our discussions with Further Global actually began several years ago, and along the way we confirmed our initial inclination that Further Global would be a great partner for us,” CEO Armanino said.

“We had the opportunity to meet with dozens of leading private equity firms,” he explained. “Ultimately we concluded that Further Global would be the best partner for us based on their expertise in partnering with professional service businesses in particular, and our desire for a minority deal structure.”

Matt Armanino
Matt Armanino

Robert Mooring

While citing Further Global’s “deep domain expertise” in financial services and business services firms, Armanino noted that this would be the PE firm’s first foray into the accounting profession: “This is their first accounting firm deal, and I think they’re only focused on this one at this time.”

An employee-owned PE firm, Further Global invests in companies in the business services and financial services industries, and has raised over $2.2 billion of capital.

Guggenheim Securities LLC served as the financial advisor and sole private placement agent to Armanino LLP, while Hunton Andrews Kurth LLP acted as its legal counsel. Further Global was advised by Pointe Advisory, with Kirkland & Ellis as legal counsel.

“Armanino ranks as high as any CPA firm in the country with the private equity community,” commented Allan Koltin, CEO of Koltin Consulting Group, who has advised Armanino for over two decades. “Their deal with Further Global fit just like a glove. They will keep control and now have the capital structure to compete on the biggest of stages.”

Internally, the Armanino partner group was unanimous in its support for the deal — and in its insistence on only selling a minority stake.

“We’ve had transparent discussions at the leadership level around not only adding an outside investor, but we knew very early on that a minority investment was the best path forward for us, and we were very excited that there was unanimous support from the entire partnership group around that decision,” Armanino said. “This structure is also going to allow the long-term owners and partners of Armanino to maintain full control over our day-to-day operations, and the proud culture that we’ve built.”

“No other firm in the Top 25 has a structure like this, and I think that’s pretty significant,” he added.

Capital plans

The goal of the deal is to give Armanino the capital it needs to take itself to a new level of growth while also addressing some of the most pressing challenges in accounting: investing in technology, pursuing inorganic growth through M&A, and attracting and retaining talent.

The firm has always been tech-forward, and recently has been a major pioneer in artificial intelligence.

“The capital will enable us to fast-track our investments in advanced technology solutions, particularly AI,” said Matt Armanino. “We’ve seen growing desire from our clients to deploy real applications for AI solutions. And while we’ve been at the forefront of automation and AI since the early days, with the development of our AI Lab a few years ago, innovative AI-driven solutions that address our clients’ most urgent challenges remain a top priority for us.”

Beyond technology investments, the firm plans to continue its aggressive M&A strategy, which has brought on 19 acquisitions since 2019.

“Those transactions have allowed us to expand our capabilities and enter into new markets and drive greater value to our clients,” said Armanino. “And we think we can accelerate that now with this capital structure that we have.”

All that M&A has brought the firm a lot of fresh talent, but no firm these days has enough, and that’s a third purpose for the new capital.

“We think there remains a lot of ripe talent across the country out there,” he said. “I think the capital will support our efforts to attract, retain, develop and reward top talent by investing in people who drive our entrepreneurial spirit here at the firm.”

The deal will allow the firm to reward top talent, for instance through equity plans that allow them to extend the firm’s ownership culture beyond the partner group that it has traditionally been restricted to.

“In many cases, for our most senior employees today, there’s not a natural mechanism to align their effort to the success of the firm to the growth of our enterprise value and how that ultimately rewards them,” explained Armanino. “And we are very excited that we have new mechanisms, and plans in place, that are going to allow us to do that very well, and effectively push down the benefits of ownership and that ownership culture to our most senior employees.”

“Finally,” he added, “speaking to our innovative culture — and that’s a big part of our brand — the capital will empower us to say ‘Yes’ more frequently to great ideas, to entrepreneurial ideas and initiatives that truly make a difference for our clients and set us apart as a leader in this industry.”

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