Learning to Live with the New Foreign Nongrantor Trust Rules

The Small Business Job Protection Act of 1996 (the 1996 Act) was intended to deal a heavy blow to the appeal of foreign trusts to U.S. persons. The results were mixed. On the one hand, the 1996 Act imposes an array of reporting requirements, imposes harsh penalties on failures to comply with these requirements, increases the interest charge imposed on taxes paid on distributions of accumulated income from foreign trusts, treats loans of cash from foreign trusts as distributions, and expands the kinds of gifts that can be treated as indirect transfers from foreign trusts. On the other hand, curiously, the 1996 Act encourages the creation of foreign trusts by its adoption of a set of criteria for foreignness that is both more objective than the criteria formerly used and more biased in favor of foreign status.

This Article discusses how to create foreign trusts, examines their exposure and the exposure of their U.S. beneficiaries to U.S. income tax, and describes the reporting requirements imposed on their creators, their beneficiaries, and the trusts themselves. In addition to explaining the rules, this Article also considers the extent to which foreign trusts continue to be useful planning tools for U.S. persons.