Foreign Trusts: IRS CP15 Penalty Notices For Late Form 3520-A Traumatize Many Innocent Taxpayers!

Foreign Trust Penalty Notice

Reprinted here from

It was early on a Monday morning, and I dragged myself in after a long weekend of reg. buzzing and Code section perusing. I was not looking forward to the day. I played a message on my answering machine that made me want to return home and crawl back into bed. It was left in the middle of the previous night by a crazed and panicked client living in Norway. She had just gotten a CP15 Notice from the IRS that said she had been charged a penalty in the amount of $10,000 under Section 6677 of the Internal Revenue Code (IRC) for failure to file Form 3520-A, under the requirements of IRC Section 6048(b).

The client was the owner of a foreign trust, and I knew we had properly filed Form 3520, "Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts." Foreign trusts with U.S. owners have the responsibility to file Form 3520-A, "Annual Information Return of Foreign Trust With a U.S. Owner," which few of them do. So since IRC Section 6048(b) requires the owner of a foreign trust to ensure that this happens, we attached "substitute" Form 3520-A to Form 3520, in accordance with the instructions to Form 3520. Form 3520 and the attached substitute Form 3520-A were filed in August, but we had filed an automatic extension for the client's tax return, which, according to the instructions to Form 3520, also extended the filing date for Form 3520.

It's Cool

I called the client back with the confidence of a guy who thought he knew what he was talking about. I consoled and cajoled her with the promise that this was simply a terrible mistake on the part of the IRS. We had filed the Form 3520 with substitute Form 3520-A attached, and had filed Form 4868 to give us till October 15 to file these forms. I could sense her blood pressure returning to near normal levels. She asked if she should call the IRS, just to make sure. I said please don't - I would call and get it straightened out.

The day got away from me and I didn't get the call made. I figured since early morning was the best time to get through to the IRS, I would call early Tuesday. I went home that night and got lost in a great article on PFICs I had been meaning to read.

It's Not Cool

Tuesday morning I felt like Bill Murray's character in "Groundhog Day" - it was Monday morning all over again. I was greeted with a frantic phone message and two or three nasty e-mails. She had called the IRS.

The lady at the IRS assured her that the notice was not a mistake, and that she had better pay up. The IRS lady referred her to the instructions to Form 3520-A, which clearly state that Form 3520-A must be filed by the 15th day of the 3rd month after the end of the trust's tax year, and that an extension of time to file Form 3520-A may be granted by filing Form 7004, "Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns." Had she or her preparer filed Form 7004, the IRS lady asked? If not, the IRS lady explained, her Form 3520-A was late and the $10,000 penalty indeed applied.

Nooooo!!! Why hadn't I told her about Form 7004?, she screamed into the phone. She called me a few things I won't repeat, and my blood pressure now had the "Check Engine" light flashing. Had I been wrong about this? Was I supposed to file Form 7004 by March 15? Was I really just a hack with a lot of letters after my name? Maybe I should just sell the practice and find a job delivering pizza. "Wait a minute," I thought. "Get a hold of yourself. This can't possibly be right."

So Who's Right?

IRC Section 6048(b) requires a U.S. person who is treated as owning a foreign trust under the grantor trust rules of Sections 671 through 679 to report information with respect to the trust (file Form 3520). Such person must also "ensure that the such trust makes a return for such year which sets forth a full and complete accounting of all trust activities . . ." (files Form 3520-A). (Sec. 6048(b)(1)(A).)

The Code section does not explain how an owner is to "ensure" that Form 3520-A is filed, and regulations under Section 6048 are non-existent. However, the instructions to Form 3520 instruct a U.S. owner of a foreign trust who has not received a Foreign Grantor Trust Owner Statement from the foreign trust to complete a substitute Form 3520-A to the best of his/her ability and attach it to his/her Form 3520. (See also CCA 201150029 - "Information With Respect to Certain Foreign Trusts.")

If the trust owner fails to file Form 3520 when required by IRC Section 6048(b), or the foreign trust that is treated as owned by the U.S. person fails to file Form 3520-A and that person does not file a substitute Form 3520-A, the U.S. person will owe a penalty under IRC Section 6677(b) equal to the greater of $10,000 or 5 percent of the value of the foreign trust's assets that are treated as owned by the U.S. person at the end of the year. (IRC Section 6677(c)(2)).

The critical point of contention here is: When is the stupid substitute Form 3520-A due, and how can the due date be extended? After all, this is not the Form 3520-A required of the foreign trust. This is a "substitute" form, which is filed as an attachment to the trust owner's Form 3520.

The due date to file Form 3520 is the 15th day of the 4th month following the end of the U.S. person's tax year. The instructions to Form 3520 explain that if the U.S. person is granted an extension of time to file Form 1040, the due date for filing Form 3520 is the 15th day of the 10th month following the end of the U.S. person's tax year. (Also see IRM In other words, Form 4868 extends the time to file Form 3520 along with Form 1040.

It seems logical that the due date for an attachment to Form 3520 would be the same as Form 3520 itself, and the Internal Revenue Manual happens to agree. Buried deep within the IRM is this:

If the foreign trust does not file Form 3520-A, but the U.S. owner completes and attaches a substitute Form 3520-A for the foreign trust to the U.S. owner's timely filed Form 3520 in accordance with the instructions for Form 3520, the U.S. owner will not be subject to the penalty for failure to file Form 3520-A.



I called the IRS, made my point, and was told to submit a formal protest letter. The letter was submitted. I called again after 30 days, was told the protest letter was lost and to submit it again. Still we wait for a response from the IRS after nearly four months after the second protest submission.

In the meantime, four additional clients have received the exact penalty letter under the exact same circumstance. We are in the process of protesting all of these penalties, but have yet to resolve any of them.

Devious Means? 

In such a high stakes game created by outrageous penalties imposed by Congress for a late filed information return, it seems that either Congress or the IRS would make it perfectly clear, to both IRS personnel and to taxpayers, when a "substitute" Form 3520-A is due. However, neither the due date for this form, nor the means of extending the due date, is mentioned in the Form 3520 instructions. If our small client base has received five of these penalty notices, imagine how many thousands of notices have been mailed. Imagine how many taxpayers have paid the bogus penalty just to get the IRS off their backs.

Hey, wait a minute. Isn't that what scammers do - send out bogus tax notices to get people to send them money? I can imagine the conversation:

Some High Ranking IRS Official #1: "I've got a great idea. We send out $10,000 penalty notices to everyone who filed a Form 3520 with substitute Form 3520-A attached and tell them they filed late."

Some High Ranking IRS Official #2: "But that's not really honest is it?"

Some High Ranking IRS Official #1: "Of course not. But think about all the revenue we can raise with such little effort. It's the perfect scam."

Some High Ranking IRS Official #2: "But aren't we supposed to be warning taxpayers to beware of scammers?"

Some High Ranking IRS Official #1: "Well sure, beware of anyone pretending to be the IRS, but we ARE the IRS. It's perfect!"

Just kidding, of course. That's not our IRS. Or is it . . .?


Progress was made at the IRS after this post was published in TaxConnections. For example, see Great News for IRS Form 3520-A Filers Affecting Thousands of Taxpayers. The instructions to Form 3520 and Form 3520-A now clearly explain the proper due date for Substitute Form 3520-A. Additionally, phone procedures have been updated in the Internal Revenue Manual allowing the abatement of erroneous late penalties for Substitute Form 3520-A by IRS personnel, on showing that the form was filed by the due date of Form 3520, without the approval of a manager.

About Gary W. Carter, PhD, MT, CPA


  1. Z.Nk on August 1, 2019 at 1:45 pm

    Hello. Do you have capacity to take new client. We are in same situation (we filed 3520 late and received penalty notice form the IRS)

    • Gary W. Carter, PhD, MT, CPA on August 1, 2019 at 5:56 pm

      Sure, please contact me directly at

  2. just little old me on August 11, 2019 at 6:32 am

    Hi Gary, Thank you so much for your story and it made me feel . ever so slightly better that my accounting aren’t the only ones who . did not know about this. I just received my “Notice of Penalty” letter today stating that “you have been charged a penalty under Section 6677 of the Internal Revenue Code for Failure to File Form 3520-A” even though my accountant did file along with my other forms in a timely matter within the extension time granted but this particular form is not included in that extension as is pointed out in . the article. But the real kicker and . the thing that freaks me out the most…the penalty charge is $246,000.05 and no that is not a typo, almost a quarter of a million dollars for turning in a paper a couple of months late (according to them). My accountant is now trying to deal with several of these but mine is by far the worst. I feel sick to my stomach at the thought that they might not grant penalty relief because “we should have known” even though accountants all over the place also didn’t know. Devious Scammers would be the nicest term, I could think of a few others…

  3. Tax Man on August 20, 2019 at 8:12 pm

    Great article! I’m a tax attorney and I’ve had several prospective clients contact me for similar issues. These taxpayers filed their 3520s late but did not owe any taxes or owed very minimal taxes. The IRS is a very broken system right now. You’re absolutely right in calling it what it is. It is a scam. The 3520 is a compliance campaign this year headed by IRS executive John Cardone. I’m sure tens of thousands of taxpayers have received these penalty notices and the IRS knows that the particular population of persons (i.e., immigrants) that these type of notices impact have the money and will end up paying the penalties. I’m sure it makes the IRS executives look great. I hope someone looks into it. Shameful!

    • Gary W. Carter, PhD, MT, CPA on August 21, 2019 at 9:27 am

      Thanks for your comment. I have spoken to a representative of the TA Systemic Advocacy group and a member of the Taxpayer Advocacy Panel, who both promised to take the issue on. I have also contacted all of my elected representatives. I’m afraid people like Cardone who are currently in charge at the IRS will destroy voluntary compliance for years to come.

  4. Martin on October 1, 2019 at 2:36 am

    Hi Gary. Probably the most clearly explained post on the issue anywhere. Was the issue resolved/retracted? I have just submitted a 1040x for last year with a 3520 because I wasn’t aware I was a beneficiary of a foreign ng trust. I’m a little nervous.