Series 107: Ownership and Reporting of Foreign Businesses for Individuals

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Have you wondered how you should report your interest in foreign businesses? Well there are many types of foreign businesses and related forms to report. This article will cover reporting for foreign corporations, partnerships and disregarded entities.

Foreign Corporations

Foreign corporations are reported in multiple ways for US tax purposes. Generally the level of reporting and associated IRS form depends on various factors, such as percentage of total ownership, your relation to the foreign corporation as a shareholder, director, officer or other executive, and the corporation’s own activities.

First, you will have to correctly determine that you own or are associated with a foreign corporation to correctly report it.

Generally, a foreign corporation is any corporation that is not a domestic corporation. For purposes of determining what qualifies as a corporation, it includes associations, joint stock companies and insurance companies. Additionally, there are various types of foreign entities besides associations, joint stock companies and insurance companies that can elect to be treated as a corporation. This election can be done under the “check-the-box regulations”. Finally, there are per se corporations, that are automatically treated as a corporation and cannot change their classification. The regulations on pre se corporations provide a list of entities formed in foreign jurisdictions that are per se corporations. If you have a questions as to whether the foreign entity you own is a foreign corporation, please contact us for a review.

Once you’ve determined you own a foreign corporation, you will have to properly report its income and activity on the correct IRS forms.

Reporting of Certain Foreign Corporations – Form 5471, Information Return of US Persons With Respect to Certain Foreign Corporations

Form 5471 is used by US persons who are officers, directors, or shareholders in certain foreign corporations to report their ownership interest in said corporations or specified transactions with said corporations. There are 5 categories of US persons who must file Form 5471. If an individual meets any one of these 5 categories, they must file Form 5471 along with their individual return for the year. As a note, a separate Form 5471 must be filed for each different foreign corporation a US person meets one of the 5 categories of filers for Form 5471.

Category 1 Filer: US Shareholders of Foreign Corporation Subject to the “Transition Tax”

Generally, an US individual is a Category 1 filer if they are the owner of a foreign corporation subject to the “transition tax” in a given tax year. Without getting too much into the details of the “transition tax”, this was a one-time tax that the US government imposed against foreign corporations as part of the most recent tax reform  passed in December of 2017. Essentially, the “transition tax” is a tax that imposed against the accumulated earnings and profits of foreign corporate subsidiaries that had not yet been subject to taxation in the US. Before the passage of the tax reform in 2017, foreign corporations income was only subject to tax if it repatriated back to the US or if it generated specified types of income known as “Subpart F” income. After the passage of the tax reform in 2017, certain foreign corporation income is now subject to an annual test to determine if it is taxable in the US. In order to convert untaxed earnings and profits under the old system into a system that subjects such earnings to an annual test, the US had to impose a tax on foreign corporations that subjected their earnings and profits as if it had been subject to the now imposed annual test all along.

Category 1 filers is a limited set of filings due to the limited nature of the “transition tax”. The “transition tax” is only applicable to qualifying foreign corporations in the 2017 tax year for those that abide by a calendar tax year and 2018 for those foreign corporations with a fiscal tax year. However, if a foreign corporation was subject to the “transition tax” the Us individual who owned such foreign corporation must continue to file as a Category 1 filer so long as the corporations has accumulated earnings and profits related to the “transition tax” or has previously taxed earnings and profits from the “transition tax”.

In order to be a US shareholder that qualifies as a Category 1 filer, a US person must have owned 9dreictly or indirectly) at least 10% or more of the total combined voting power of the stock for the foreign corporation. Additionally, the corporation itself must either be a “controlled foreign corporation” (the definition of which is discussed later) or a foreign corporation which has a US person who owns 10% or more of its combined voting power.

Category 2 Filer: U.S. Based Officer or Director of a Foreign Corporation which a US person Acquired More Than 10% of in a Given Year

If the title of this filer didn’t give it away, a Category 2 filer includes a US citizen or resident, who is a officer or director of a foreign corporation, in which a US person acquired—

  • Stock holdings over 10% ownership of the foreign corporation; or
  • An additional 10% or more of outstanding stock of the foreign corporation.

The 10% ownership requirement is met if a US person owns 10% of more of the total value or combined voting power of all classes of stock with voting rights of the foreign corporation. Additionally, the acquisitions of the 10% threshold can be over a series of transactions—it does not have to be the result of a single transaction.

While a US person for purposes of category 2 intuitively includes an citizen or resident of the United States (a definition we expand upon in Series 103: US International Tax System for Individuals, US Residents v. Non-US Residents [Insert Link Here to Other Article] , it also includes a domestic partnership, corporation, and estate or trust. This same definition is used for Category 3 filers as well.

If you are a US officer or director of a foreign based corporation, please make sure to check with your company to ensure that your are subject to this filing requirement. Generally, small foreign corporations will not give out information on who their owners are and how much stock they acquired in a give year.

Category 3 Filer: US Persons who Acquire or Who Dispose Stock of a Foreign Corporation to Bring Them Above or Below the 10% Ownership Threshold

Again, the name of this category of filer is intuitive—generally, if you are a US person who acquires stock in a foreign corporation that bring you above the 10% ownership threshold or dispose of enough stock to bring you below the 10% ownership threshold, then you are a Category 3 filer. Specifically, this category of filer includes the following—

  • A US person who acquires enough stock in a foreign corporation to bring their total ownership over the 10% ownership threshold of the foreign corporation;
  • A US person who acquires stock, without regard to stock owned, which meets the 10% ownership requirement with respect t the foreign corporation;
  •  A person who becomes a US person while meeting the 10% stock ownership threshold of the foreign corporation;
  • A US person who disposes enough stock in the foreign corporation to reduce their interest to less than the 10% stock ownership requirement.

Category 4 Filer: US Person With Control of Foreign Corporation

Category 4 is relatively straight forward and includes a US person who had control of a foreign corporation during the annual accounting period of the foreign corporation.

For purposes of Category 4, US person is not defined the same as it is in Category 2 or 3. Specifically, A US person for Category 4 includes—

  • A citizen or resident of the US;
  • A non-resident alien who elects to be treated as a resident of the US;
  • A domestic partnership;
  • A domestic corporation; and
  • An domestic estate or trust.

Well, what does ‘control” mean? Control is present for purposes of Category 4 if the US person owns more than 50% of the total combined voting power of all classes of stock or value of the foreign corporation’s stock at any point during the year. Yes, that is right—even if you meet this threshold of a single day out of the year, you will be required to file as a Category 4 filer.

This definition of control also has a look through rule, where if a person has control of a foreign corporation, and that foreign corporation has control of another foreign corporation, the person is deemed to be in control of both such corporations.

Category 5 Filer: US Shareholder of a “Controlled Foreign Corporation”

Category 5, while not seemingly different form Category 4, applies to US shareholders who own a portion of a “controlled foreign corporation” at any time during the tax year of the foreign corporation, and who owned that sock on the last day in the year the foreign corporation was a “controlled foreign corporation”.

So, who qualifies as a “US Shareholder” for purpose of Category 5? Generally, this incudes a US person who owns (directly or indirect through ownership attribution rules) 10% or more of the combined voting power or value of all classes of stock of a “controlled foreign corporation”.

Within this definition are more definitions—“US person” and a “controlled foreign corporation”.

Category 5 has its own definition of US Person. This generally includes a citizen or resident of the US, or a domestic partnership, corporation, or estate or trust.

What about “controlled foreign corporation”? What are better known as “CFC”s in the world of international tax, a CFC is a foreign corporation of which US shareholders own (directly, indirectly, or constructively) on any day in the tax year of the foreign corporation more than 50% of the combine voting power or value of all calluses of stock of the corporation.

Exceptions to Filing for Multiple Filers of the Same Information– Categories 1 through 5

If there are several persons who are required to file the same information based upon their category of filer (see filing requirements below) a single person may file Form 5471 an date applicable schedules for those other persons for the same period.

Forms, Information, and Schedules to Be Filed With Form 5471 Depends on Your Category of Filer

Each category of filer for Form 5471 has their own specific information and schedules they must include with their filing. Generally, the more involvement you have with a foreign corporation, the more information you will have to file with your 5471. For example, it makes sense that a Category 4 filer who controls a CFC during a year should have to file more information than a Category 2 filer who only acquired more than 10% of the foreign corporation for the first time.

However, if you qualify for more than one category of filer, you will be required to file all the forms and information associated with that category. You cannot simply choose to align with one category over another.

Below is a chart of the schedules, forms and information that must be filed with each respective category of filer for Form 5471—

Required Information*Category of Filer
12345
The identifying information on page 1 of Form 5471 above Schedule A, see Specific Instructions
Schedule A   
Schedule B, Part I   
Schedule B, Part II 
Schedules C and F   
Separate Schedule E  
Schedule E-1 (included with separate Schedule E)  
Schedule G  
Separate Schedule H   
Schedule I   
Separate Schedule I-1   
Separate Schedule J  
Separate Schedule M    
Separate Schedule O, Part I    
Separate Schedule O, Part II    
Separate Schedule P  

Source: Internal Revenue Service [Link: https://www.irs.gov/instructions/i5471#idm140511155544016]

If you are an owner, officer, or director of a foreign corporation, please contact our team to make a determination if you are required to file Form 5471. We can help make that determination for you, and help you prepare and file the proper Form 5471.

Foreign Partnership

Similar to the treatment of foreign corporations, foreign partnership are reported in various way to the US government. The amount of information required to be filed depends on your overall ownership of the partnership, the type and amount of property contributed to the foreign partnership, and the acquisition or disposition of the partnership’s ownership in the given tax year.

Before looking into the reporting requirements of owning a foreign partnership, a determination must first be made if the entity you hold ownership in is in fact a “partnership”. Generally, a foreign entity is by default treated as a foreign partnership if it has two or more owners, at least one of which does not have limited liability. However, an election can be made to treat such an entity as a foreign corporation. Thus, it is important to understand (1) the amount of owners; (2) the liability protection provided by the foreign entity; and (2) whether or not an election has been made to treat the entity as something different than a foreign partnership.

Once a proper determination is made that the entity owned is a foreign partnership, then a determination as to what category of filer one falls in must be made to properly report their ownership interest in such entity on IRS Form 8865.

Reporting Certain Foreign Partnerships – Form 8865 Return of US Persons With Respect to Certain Foreign Partnerships

Form 8865 is used by US persons who own, make transfers to or from, or acquire or dispose of foreign partnerships in a given tax year. There are a total of 4 categories of filers, each of which has its own required reporting with respect to the ultimate filer. If a US person meets one of the four categories provided, they must include Form 8865 with individual tax return for the year and include the required information and schedules as prescribed by the category of filer they meet.

Category 1: US Person Holding Control of a Foreign Partnership

A taxpayer is a Category 1 filer is they are a US person who controlled the foreign partnership at any time during the partnership’s tax year, or a US person who transfer IRC 721(c) built in gain property to a foreign partnership. An explanation as to the latter of these two is beyond the scope of this article.

For the former, a US person is an US citizen or resident of the US, or a domestic partnership, corporation, and estate or trust.

Additionally, control is defined as owning more than 50% of the partnership’s interest at any point in the year. For purposes of this control test, a “partnership’s interest” includes 50% of the overall capital of the partnership, 50% of the profits of the partnership, or 50% of deduction or losses of the partnership. Furthermore, a person can be imputed ownership in a foreign partnership through the “constructive ownership” rules provided by 267(c). Below is a quick overview of these rules—

  • An interest owned directly or indirectly by or for a corporation, partnership, estate or trust shall be considered as being owned proportionately by its owners, partners or beneficiaries; and
  • An individual is considered to won an interest owned directly or indirectly by or for their family (spouse, bother, sister, ancestors, and lineal descendants).

The determination of whether some holds a controlling interest and how the constructive ownership rules applies is not straightforward. If you have questions or concerns as to how these rules apply, please contact our team to aid you with this determination.

Category 2: US Person Owning at Least 10% of a Controlled Foreign Partnership

A Category 2 filer for Form 8865 includes a US person who, at any time during the tax year of the foreign partnership, owned 10% of more of the partnership while the partnership was controlled (i.e. grater than 50% ownership) by US persons owning at least 10% of said partnership.

However, if the foreign partnership had a Category 1 filer at any time during the tax year, no person will be considered a Category 2 filer.

The 105 ownership interest is determined under the same rules as is the 50% ownership interest. The 10% ownership interest must equal at least 10% of the partnership’s capital, 10% of its profits, or 10% of its deductions or losses.

Additionally, the same constructive ownership rules that applies of the 50% ownership test provided for Category 1 filers applies for purposes of determining the 10% ownership interest test.

Category 3: US Person Contributing Certain Property to a Foreign Partnership

Generally, a Category 3 filer includes a US person who contributes property (during their tax year) to a foreign partnership in a non-taxable exchange under IRC 721 if either—

  • They owned directly or constructive at least a 10% interest in the foreign partnership immediately after the contribution; or
  • The value of the property contribution (or sum of properties contributed) exceeds $100,000.

IF a domestic partnership contributes property to a foreign partnership, the partners of the domestic partnership are considered to have transferred a proportionate share of the property contributed to the foreign partnership. In order to avoid having each of the domestic partnership’s partners have their own Form 8865 filing requirement due to sch a transfer, the domestic partnership can file Form 8865 thus relieving its partners of their obligation to do so.

Category 4: US Person Engaged in Reportable Acquisitions, Dispositions, and Changes in Proportional Ownership Interest

A US person is a Category 4 filer if they engage in certain acquisitions, dispositions or changes in proportional ownership interests with and of the foreign partnership.

An acquisition qualifies a US person as a Category 4 filer if—

  • The person acquires a 10% ownership interest or more in a foreign partnership, and they did own at least 10% prior to the acquisition; or
  • If after the last reportable event, the person’s ownership interest increases by at least 10%.

A disposition qualifies a US person as a Category 4 filer if—

  • The person owned at least a 10% ownership interest in the foreign partnership, and as a result of a disposition, the same person now owns less than 10%; or
  • If after the last reportable event, the person’s ownership interest decreased by at least 10%.

A change in a US person’s proportional ownership interest of a foreign partnership triggers Category 4 filing status if after their last reportable event, the person’s direct proportional interest has increased or decreased by at least 10%.

Exception to Filing – Multiple Category 1 Filers

If during the foreign partnership’s tax year more than one US person qualifies as a Category 1 filer, only one of these persons will be required to file Form 8865. However, the filer cannot be a US person who own’s a controlling interest in the losses or deductions of the foreign partnership if the other person holds a controlling interest in the capital and profits of the foreign partnership. Only the latter is allowed to file in such a situation.

For the US person not reporting, they must attach a specified statement to their return essentially notifying the IRS that there is more than one Category 1 filer and the identifying information of the person who will be filing such Form 8865.

What is important to note under this exception is that if one of the Category 1 filers also qualifies as a Category 3 or 4, they will be required to file their own, separate Form 8865 required under Category 3 or 4.

Exception to Filing – Constructive Category 1 or 2 Owners

If a US Person qualifies as a Category 1 or 2 filer solely due to the constructive ownership rules, then they are not required to file Form 8865 if one of the following three qualification is met-

  • Form 8865 is field  by the US person through which the indirect person constructively owns an interest in the foreign partnership;
  • The US person through which the indirect partner constructively owns an interest in the foreign partnership also is a constructive owner and meets all the exceptions to filing Form 8865; or
  • Form 8865 is filed by another Category 1 filer under the multiple Category 1 filer exception.

Similar to the previous exception, if a US person meets one of the above qualifications to avoid filing Form 8865, they must include a statement to their return containing the applicable exception and the identifying information of the person who will be filing Form 8865.

Exception to Filing – US Person Qualifying as both Category 3 and 4 Filers due to Contribution       

Another exception applicable to the filing Form 8865 lies for US persons who qualifies as both a Category 3 and 4 filer due to contributing property to a foreign partnership in exchange for a 10% or greater interest in such partnership. IF this exception is met, the US person isn’t require to report this transaction under both Category 3 and 4 filing requirements—rather, they are only required to report such a transaction under the requirements of Category 3.

Exception to Filing – Category 1 and 2 Filer When Foreign Partnership Files Form 1065

If a US person qualifies as a Category 1 or 2 filer, they will not be required to file Form 8865 if the foreign partnership files a Form 1065 wit the IRS (i.e. a partnership tax return) and the US person attaches a copy of the filed Form 1065 in place of the otherwise required Form 8865.

Forms, Information, and Schedules to Be Filed With Form 8865 Depends on Your Category of Filer

Similar to the requirements of filing Form 5471, each Category of filer for Form 8865 is required to include a different set of information and schedules. The information and schedules required is outlined in the table below.

Generally, the more involved someone is a with a foreign corporation, the more information they will be required to file. Additionally, if a US person meets more than one category of filer, they will be required to fill out all information for all such category of filer they meet. As noted above, there are certain exceptions to this rule.

Filing RequirementsCategory of Filers
1234
Identifying information—(page 1 of Form 8865)
Schedule A—Constructive Ownership of Partnership Interest
Schedule A-1—Certain Partners of Foreign Partnership  
Schedule A-3—Affiliation Schedule
Schedule B—Income Statement—Trade or Business Income   
Schedule G—Statement of Application of the Gain Deferral Method Under Section 721 
Schedule H—Acceleration Events and Exceptions Reporting Relating to Gain Deferral Method Under Section 721(c) 
Schedule K—Partners’ Distributive Share Items   
Schedule L—Balance Sheets per Books   
Schedule M—Balance Sheets for Interest Allocation   
Schedule M-1—Reconciliation of Income (Loss) per Books With Income (Loss) per Return   
Schedule M-2—Analysis of Partners’ Capital Accounts   
Schedule N—Transactions Between Controlled Foreign Partnership and Partners or Other Related Entities  
Schedule D—Schedule D (Form 1065), Capital Gains and Losses   
Schedule K-1—Partner’s Share of Income, Deductions, Credits, etc. (direct partners only)  
Schedule O—Transfer of Property to a Foreign Partnership   
Schedule P—Acquisitions, Dispositions, and Changes of Interests in a Foreign Partnership   

Source: Form 8865 Instructions [Link: https://www.irs.gov/instructions/i8865#idm140609575985536]

If you are a potential filer of Form 8865 and have questions as to whether you are required to file, how to prepare Form 8865, or other questions regarding your foreign partnership, please contact our team to assist you.

Foreign Disregarded Entities and Foreign Branches – Form 8858

Unlike the previous forms discussed which are only used to report the activity of a single type of foreign entity, Form 8858 is used to report the activity of two separate types of entities – a foreign disregarded entity and a foreign branch.

Foreign Disregarded Entities. Unlike the normal principles of US tax law, foreign disregarded entities are required to have their activity reported on a specific form to the IRS. This is Form 8858. If not for extra reporting requirements with respect to foreign disregarded entities, the activity would only be reported directly on the return of the disregarded entity’s owner. For example, a domestic disregarded entity’s activity is reported directly on Schedule C for an individual without any further reporting requirements for federal purposes (i.e. sometimes States will require independent reporting of a disregarded entity).

Similar to the analysis for foreign corporations and partnerships, in order to be required to file Form 8858, a person must own a foreign entity treated as a disregarded entity. Foreign entities formed are, by default, treated as a disregarded entity if there is a single owner of a foreign entity and they are not afforded limited liability protection through their entity. Additionally an foreign entity that is by default treated as an corporation can make an election to be treated as a disregarded entity if it only has a single owner.

Once a proper determination has been made that the foreign entity you own is treated as a foreign disregarded entity, Form 8858 will have to be filed with your annual federal tax filings.

Foreign Branches. A foreign branch is defined as an integral business operation carried on by a U.S. person outside the United States. Facts indicating the existence of a foreign branch include a separate set of books and an office or other fixed place of business used by employees in carrying out business activities outside the United States. A permanent establishment under a treaty is deemed to be a foreign branch. Any U.S. person, including an individual, may have a foreign branch.

Additionally, for purposes of filing a Form 8858, an foreign branch also includes a qualified business unit (QBU) defined in Regulations section 1.989(a)-1(b)(2)(ii). A QBU is any separate and clearly identified unit of a taxpayer’s trade or business that maintains separate books and records. For purposes of determining what is a QBU, a corporation is automatically a QBU. However, a partnership, trust  or estate is a QBU of a partner or beneficiary. Additionally, and individual is not a QBU, but the activities of an individual qualify as a QBU if a complete set of books and records is maintained and the activities of the individual constitutes a trade or business.

If you can make a proper determination as to whether you have a foreign branch or a QBU, then Form 8858 will have to be filed with respect to that business activity constituting the foreign branch or a QBU.

US Persons Required to File Form 8858. The following US Persons that are tax owners of a foreign disregarded entity must file form 8858

No. of FilerRequirement to FileInformation and Schedules to be Completed
1A U.S. person that is a tax owner of an foreign disregarded entity or operates an foreign branch at any time during the U.S. person’s tax year.Complete the entire Form 8858, including the separate Schedule M (Form 8858), Transactions Between Foreign Disregarded Entity (foreign disregarded entity) or Foreign Branch (foreign branch) and the Filer or Other Related Entities.
2A U.S. person that directly (or indirectly through a tier of foreign disregarded entities or partnerships) is a tax owner of an foreign disregarded entity or operates an foreign branch. Complete the entire Form 8858, including the separate Schedule M (Form 8858).
3Certain U.S. persons that are required to file Form 5471 with respect to a controlled foreign corporation (CFC) that is a tax owner of an foreign disregarded entity or operates an foreign branch at any time during the CFC’s annual accounting period.Complete the entire Form 8858, including the separate Schedule M (Form 8858).
4Category 4 filers of Form 5471.Complete the entire Form 8858 and the separate Schedule M (Form 8858).
5Category 5 filers of Form 5471.Complete only the identifying information on page 1 of Form 8858 (for example, everything before Schedule C) and Schedules G, H, and J. Do not complete the separate Schedule M (Form 8858).
6Certain U.S. persons that are required to file Form 8865 with respect to a controlled foreign partnership (CFP) that is a tax owner of an foreign disregarded entity or operates an foreign branch at any time during the CFP’s annual accounting period.If the U.S. person required to file by operation of this rule is a U.S. individual, the U.S. person is not required to complete lines 10 through 13 of Schedule G. If the U.S. person is not an individual, the U.S. person is required to report its distributive share of the items on lines 10 through 13 of Schedule G.
7Category 1 filers of Form 8865.Complete the entire Form 8858 and the separate Schedule M (Form 8858).
8Category 2 filers of Form 8865. Complete only the identifying information on page 1 of Form 8858 (for example, everything above Schedule C) and Schedules G, H, J, and the separate Schedule M (Form 8858).You are not required to complete Form 8858 if there is a Category 1 filer of Form 8865 that completes the entire Form 8858 and separate Schedule M (Form 8858) with respect to the foreign disregarded entity or foreign branch.
9A U.S. partnership that directly (or indirectly through a tier of foreign disregarded entities or partnerships) is a tax owner of an foreign disregarded entity or operates an foreign branch.Lines 10 through 13 of Schedule G should be completed as if the U.S. partnership filing the Form 8858 was a U.S. corporation. A U.S. partnership is not required to complete lines 10 through 13 of Schedule G if all partners are U.S. individuals.
10A U.S. corporation that is a partner in a U.S. partnership, which is required to file a Form 8858 because the U.S. partnership is the tax owner of an foreign disregarded entity or an foreign branch.Even though the U.S. corporation is not the tax owner of the foreign disregarded entity and/or the foreign branch, the U.S. corporation must complete lines 1 and 2 of the identifying information section and report its distributive share of the items on lines 10 through 13 of Schedule G for each foreign disregarded entity and foreign branch of the U.S. partnership. The U.S. partnership must furnish all information necessary to the U.S. corporate partner for the partner to complete the Form 8858.

Exceptions to Filing Form 8858 – Multiple Filers of the Same Information

While there are many triggers to filing Form 885, there are a few exceptions to reporting in the case that it would cause duplicative reporting between various filters.

With respect to Category 4 or 5 filers of Form 5471, or Category 1 filers of Form 8865 who are also required to file Form 885, one person may file Form 8858 and Schedule M, if applicable, for other persons who have the same filing requirements with respect to both Form 885 and Form 5471 or Form 8865.

If two persons are required to file the same information for a foreign disregarded entity or indirect foreign branch for the same period, this may be field in the same manner as the multiple filer exception for Category 1 filers of a Form 5471 and Form 8865.

In Conclusion

In conclusion, understanding the nuances of the difference in reporting different foreign entities owned by an induvial is complex and overburdensome for someone who is not well versed in the US international tax system.

If you have questions regarding the reporting of your foreign owned entity or want to understand the rules outlined above, please do not hesitate to contact our team to set up a consultation and have a discussion of how we can be of assistance to you. This could entail minor consulting on the requirements imposed upon you, aiding you in the preparation and filing of the applicable entity form, or even help bring you back into compliance through various disclosure programs if you have failed to properly report your ownership in foreign entities in prior years.