Question: If a U.S. citizen forms a Puerto Rican corporation (or Puerto Rico LLC classified as a corporation for U.S. tax purposes) and contributes capital, is IRS notification required?
Answer: Yes. A Puerto Rican entity is treated as a foreign corporation, so U.S. citizens contributing capital must file Form 926, Return by a U.S. Transferor of Property to a Foreign Corporation, to report the transfer.
Filing Requirements for Form 926
Under IRC §6038B(a)(1), U.S. persons transferring property to a foreign corporation in a §351 exchange or similar transaction must report the transfer on Form 926, submitted with their tax return for the relevant year. Reporting is required not only for cash but also for other property transferred under these provisions.
Certain transfers, including those under §§332, 354, 355, 356, or 361, also require filing. While Form 926 primarily applies to §351 exchanges, these transactions involve property exchanged for stock, with transferors retaining at least 80% control of the corporation.
Puerto Rican Corporations Are Foreign Entities
Puerto Rican corporations are classified as foreign because IRC §7701(a)(4) defines “domestic” corporations as those formed under U.S. state or federal law. This classification applies regardless of the taxpayer’s bona fide Puerto Rico residency.
Though some IRS forms (e.g., Form 5471 or Form 8938) include exceptions for Puerto Rican entities, Form 926 has no such exclusions.
Special Considerations for LLCs
Puerto Rican LLCs default to corporate tax treatment unless a classification election (Form 8832) is filed. When classified as a pass-through entity for U.S. purposes, Puerto Rican tax treatment must align.
For U.S. persons transferring cash to foreign corporations, reporting is only required if:
- The transferor owns at least 10% of the corporation post-transfer.
- Total cash contributions exceed $100,000 within 12 months.
Penalties and Compliance
Failure to file Form 926 may result in penalties of 10% of the property’s value, capped at $100,000, unless intentional noncompliance is proven. Additionally, the statute of limitations for audit remains open until the form is submitted. Immediate corrective action—filing amended returns—can help avoid penalties.
Example: Cash Contribution Reporting
- Year 1: Sarah, a Puerto Rico resident, forms a Puerto Rican LLC without electing pass-through status, defaulting to corporate classification. She contributes $10,000 in cash and a customer list valued at $200,000. Both must be disclosed on Form 926. The customer list, deemed intangible property, triggers annual royalty income reporting under §367(d).
- Year 2: Sarah contributes an additional $5,000 to the LLC. This transaction qualifies as a §351 exchange, requiring Form 926 for Year 2 as well.
Conclusion
The IRS Large Business and International Division emphasizes Form 926 compliance, especially for Act 60 businesses and residents. Taxpayers should review prior filings, address potential omissions, and consult advisors proactively, as failure to file may lead to extended audits, penalties, or worse.