(a) Immediate recognition of gain—(1) In general. Any U.S. person who transfers property to a foreign trust or foreign estate shall be required to recognize gain at the time of the transfer equal to the excess of the fair market value of the property transferred over the adjusted basis (for purposes of determining gain) of such property in the hands of the U.S. transferor unless an exception applies under the provisions of §1.684-3. The amount of gain recognized is determined on an asset-by-asset basis.
(2) No recognition of loss. Under this section a U.S. person may not recognize loss on the transfer of an asset to a foreign trust or foreign estate. A U.S. person may not offset gain realized on the transfer of an appreciated asset to a foreign trust or foreign estate by a loss realized on the transfer of a depreciated asset to the foreign trust or foreign estate.
(b) Definitions. The following definitions apply for purposes of this section:
(1) U.S. person. The term U.S. person means a United States person as defined in section 7701(a)(30), and includes a nonresident alien individual who elects under section 6013(g) to be treated as a resident of the United States.
(2) U.S. transferor. The term U.S. transferor means any U.S. person who makes a transfer (as defined in §1.684-2) of property to a foreign trust or foreign estate.
(3) Foreign trust. Section 7701(a)(31)(B) defines foreign trust. See also §301.7701-7 of this chapter.
(4) Foreign estate. Section 7701(a)(31)(A) defines foreign estate.
(c) Reporting requirements. A U.S. person who transfers property to a foreign trust or foreign estate must comply with the reporting requirements under section 6048.
(d) Examples. The following examples illustrate the rules of this section. In all examples, A is a U.S. person and FT is a foreign trust. The examples are as follows:
Example 1. Transfer to foreign trust. A transfers property that has a fair market value of 1000X to
FT. A's adjusted basis in the property is 400X.
FT has no U.S. beneficiary within the meaning of
§1.679-2, and no person is treated as owning any portion of
FT. Under paragraph (a)(1) of this section,
A recognizes gain at the time of the transfer equal to 600X.
Example 2. Transfer of multiple properties. A transfers property Q, with a fair market value of 1000X, and property R, with a fair market value of 2000X, to
FT. At the time of the transfer,
A's adjusted basis in property Q is 700X, and
A's adjusted basis in property R is 2200X.
FT has no U.S. beneficiary within the meaning of
§1.679-2, and no person is treated as owning any portion of
FT. Under paragraph (a)(1) of this section,
A recognizes the 300X of gain attributable to property Q. Under paragraph (a)(2) of this section,
A does not recognize the 200X of loss attributable to property R, and may not offset that loss against the gain attributable to property Q.
Example 3. Transfer for less than fair market value. A transfers property that has a fair market value of 1000X to
FT in exchange for 400X of cash.
A's adjusted basis in the property is 200X.
FT has no U.S. beneficiary within the meaning of
§1.679-2, and no person is treated as owning any portion of
FT. Under paragraph (a)(1) of this section,
A recognizes gain at the time of the transfer equal to 800X.
Example 4. Exchange of property for private annuity. A transfers property that has a fair market value of 1000X to
FT in exchange for
FT's obligation to pay A 50X per year for the rest of
A's life.
A's adjusted basis in the property is 100X.
FT has no U.S. beneficiary within the meaning of
§1.679-2, and no person is treated as owning any portion of
FT. A is required to recognize gain equal to 900X immediately upon transfer of the property to the trust. This result applies even though
A might otherwise have been allowed to defer recognition of gain under another provision of the Internal Revenue Code.
Example 5. Transfer of property to related foreign trust in exchange for qualified obligation. A transfers property that has a fair market value of 1000X to
FT in exchange for
FT's obligation to make payments to
A during the next four years.
FT is related to
A as defined in
§1.679-1(c)(5). The obligation is treated as a qualified obligation within the meaning of
§1.679-4(d), and no person is treated as owning any portion of
FT. A's adjusted basis in the property is 100X.
A is required to recognize gain equal to 900X immediately upon transfer of the property to the trust. This result applies even though
A might otherwise have been allowed to defer recognition of gain under another provision of the Internal Revenue Code.
Section 1.684-3(d) provides rules relating to transfers for fair market value to unrelated foreign trusts.
[T.D. 8956, 66 FR 37899, July 20, 2001]
