Northern Mariana Islands

The Settlement Fund was created by the settlement of Johnson v. Inos, approved by the U.S. District Court for the Northern Mariana Islands; it took over assets of the NMI Retirement Fund to pay the members of the settlement class at least 75% of their full defined benefit pensions, from annual payments the Commonwealth government must make to it.^1,2

Likely a foreign trust: its court, though federal, sits in a territory.

Likely a foreign trust, if the Fund is a trust. For the court test a court includes any federal, state, or local court, but the United States means only the States and the District of Columbia, and a court within a territory is not a court within the United States;^3,4 on those words, a federal court sitting in the Northern Mariana Islands is not a court within the United States, so the Fund fails the court test. No ruling addresses the point.

An employer-funded fund read as a §404(a)(4) or §402(b) trust; retirees are paid, not contributors now.

Its money comes from the Commonwealth government, the employer, and from the former Retirement Fund's assets,^1,2 so it reads as an employees' trust: §402(b) if it does not meet §401(a), and the trust §404(a)(4) describes if it would meet §401(a) but for its location.^5,6 Either way you are not treated as owner of a part funded by the employer,^7,8 and pension payments are taxed under §402 and §72 when paid.^9,10 A bona fide resident of the Commonwealth files the income tax return for them with the Commonwealth.¹¹

Proposed regulations: possible for a bona fide resident. Rev. Proc. 2020-17: not settled.

If you are a bona fide resident of the Commonwealth and rely on the 2024 proposed regulations, which you may do now if you apply them in full and consistently with related persons,¹² sections 6048(a) to (c) do not apply to a trust located in a mirror code possession to the extent you are a bona fide resident there.¹³ The Commonwealth is a mirror code possession: the income tax there is the U.S. income tax, read with the Commonwealth in place of the United States.^14,15 A trust is located there if a court there can exercise primary supervision over it and one or more bona fide residents control all its substantial decisions,¹⁶ and a bona fide resident is someone present there at least 183 days in the year, with no tax home or closer connection elsewhere.¹⁷ The app asks both questions when you rely on the proposed regulations. For the Settlement Fund, located there turns on whether bona fide residents of the Commonwealth control all its substantial decisions; the U.S. District Court for the Northern Mariana Islands sits there. Without relying, the cautious course is to keep filing: the proposal would not need this exception if section 6048 did not already reach bona fide residents.¹³

Otherwise only Rev. Proc. 2020-17 could exempt the plan, for an eligible individual,^18,19 and it covers trusts established under the laws of a foreign jurisdiction.²⁰

Whether a U.S. territory is a foreign jurisdiction is not settled, and no IRS guidance answers it. For it: the revenue procedure is written for trusts that are foreign for U.S. tax purposes, which a territory's trusts are;^20,4 the Code treats a company organized under a territory's law as foreign, because only the States and the District of Columbia are the United States, and the Joint Committee on Taxation says entities organized there are generally foreign persons;^21,22,23 the IRS's examination manual says the territories are generally treated as foreign for U.S. tax purposes unless the Code says otherwise;²⁴ and the Form 8938 reporting the revenue procedure gives as a reason for the exemption counts an account at a territory's financial institution as a foreign asset.^25,26 Against it: the revenue procedure and the 2024 preamble explain the exemption by the restrictions imposed under the laws of the country where the trust is established,^27,28 and a territory is not a country. The Code names foreign countries and U.S. possessions separately, and Treasury defines a foreign country as territory under another government's sovereignty.^29,30 The FBAR rules count the territories as part of the United States,³¹ and a bona fide resident of a territory leaves accounts at its own institutions off Form 8938,³² so the duplicate reporting the revenue procedure relies on may not exist for them. The 2024 proposal deals with territory trusts in an exception of their own, by the filer's residence and only for some territories.¹³ The proposed regulations' exemption for retirement and savings trusts uses the same words as the revenue procedure, so the same doubt applies to it.³³ Until the IRS says, the cautious course is not to rely on either exemption for a trust in a U.S. territory, and to report it in full.

No treaty: the Commonwealth is a U.S. territory.

No treaty: the United States has no income tax treaty with its own territories, and federal tax rules apply to them in a way different from both the States and foreign countries.³⁴ The IRS has a tax coordination agreement with each of the five territories, which resolves inconsistent treatment between the two tax systems;³⁵ no guidance says one changes Forms 3520 and 3520-A.

No Part I, Part II, or Form 3520-A. Cautious course: pension payments go on Part III.

No Part I: no contribution to a plan trust described in §402(b) or §404(a)(4) is a Part I event, and retirees make none.³⁶ No Part II or Form 3520-A: a participant is not treated as owner of the part the employer funds.^7,8 Pension payments go on Part III unless the Fund is a §402(b) trust and you report them as compensation, so the cautious course is to report them on Part III.^37,38,39 No Form 4970: payouts from an employees' trust are not taxed under the trust distribution rules.⁴⁰

A bona fide resident of the Commonwealth who relies on the proposed regulations files none of these if the Fund is located there.^13,16 FBAR (FinCEN Form 114) and Form 8938 are separate, and an exemption from Forms 3520 and 3520-A does not remove them.^41,42

Commonwealth employees hired from January 1, 2007 save in individual accounts in a defined contribution plan, into which both the employers and the members pay.^43,44 The law says the plan is meant to qualify under §§401(a), 414(d), 414(k), and 457.⁴⁵

A foreign trust, if its fund is a trust.

If the plan's fund is a trust, it is a foreign trust: set up under Commonwealth law and supervised by its courts, it fails the court test.^46,4 A qualified trust under §401(a) is one created or organized in the United States.⁴⁷

Read as a plan meant to qualify under §401(a), taxed as one; if not, a §402(b) trust.

We read it as a plan that would qualify under §401(a) but for its trust's location: its participants are then taxed under §402 as in a qualified plan, and §402(b) does not apply.^10,45 If it does not meet §401(a), it is a §402(b) employees' trust, and once your own contributions exceed the Commonwealth's you are treated as owner of the part yours fund.^5,48

As for the Settlement Fund above.

A bona fide resident of the Commonwealth who relies on the proposed regulations reports nothing for a trust located there,¹³ and Rev. Proc. 2020-17 is not settled for a territory.²⁰

No treaty: the Commonwealth is a U.S. territory.

No treaty: the United States has no income tax treaty with its own territories.³⁴

No Part I. Part II only if the plan fails §401(a). Cautious course: Part III for payouts.

No Part I: no contribution to a plan trust described in §402(b) or §404(a)(4) is a Part I event.^36,6 No Part II or Form 3520-A for a plan that meets §401(a) apart from its trust's location: §679 does not apply to transfers to it.^8,49 For a plan that fails §401(a), Part II and Form 3520-A each year once your own contributions exceed the Commonwealth's.^48,50 Payouts go on Part III unless the plan is a §402(b) trust and you report them as compensation, so the cautious course is to report them on Part III.^37,38 No Form 4970: payouts from an employees' trust are not taxed under the trust distribution rules.⁴⁰ A bona fide resident of the Commonwealth who relies on the proposed regulations files none of these for a trust located there.¹³ FBAR (FinCEN Form 114) and Form 8938 are separate, and an exemption from Forms 3520 and 3520-A does not remove them.^41,42

Employers in the Commonwealth set up retirement plans under the Internal Revenue Code as the Commonwealth applies it, as a local territorial income tax read with the Commonwealth in place of the United States.^51,52 The employer pays in, and employees may too.

A foreign trust: the Commonwealth's courts are not U.S. courts for the court test.

A foreign trust. A trust is domestic only if a U.S. court can exercise primary supervision over it and U.S. persons control its substantial decisions, and the courts of a territory are not courts within the United States for that test,^53,4 so a trust supervised by the Commonwealth's courts is a foreign trust.

§402(b) only for a plan that fails §401(a); otherwise its participants are taxed as in a qualified plan.

A plan that would be qualified but for its trust's location is treated, for §402, as if its trust were exempt, so its participants are taxed as in a qualified plan and §402(b) does not apply;¹⁰ that is the trust §404(a)(4) describes.⁶ A plan that fails §401(a) in other ways is a §402(b) employees' trust: your employer's contributions are U.S. income to you as they vest, you are not treated as owner of the part they fund, and once your own contributions exceed your employer's you are treated as owner of the part yours fund.^5,54,7,48

As for the Settlement Fund above.

A bona fide resident who relies on the proposed regulations reports nothing for a trust located in the Commonwealth,¹³ and Rev. Proc. 2020-17 is not settled for a territory.²⁰

No treaty: the Commonwealth is a U.S. territory.

No treaty: the United States has no income tax treaty with its own territories.³⁴

No Part I. Part II only for a plan that fails §401(a). Cautious course: Part III for payouts.

No Part I: transfers to a trust described in §402(b) or §404(a)(4) are excepted.^36,6 No Part II or Form 3520-A for a plan that meets §401(a) apart from its trust's location: §679 does not apply to transfers to it.^8,49 For a plan that fails §401(a), Part II and Form 3520-A each year once your own contributions exceed your employer's.^48,50 Payouts go on Part III unless the plan is a §402(b) trust and you report them as compensation, so the cautious course for a plan that meets §401(a) is to report its payouts on Part III.^37,38,39 No Form 4970: payouts from an employees' trust are not taxed under the trust distribution rules.⁴⁰ A bona fide resident who relies on the proposed regulations files none of these for a trust located in the Commonwealth.¹³ FBAR (FinCEN Form 114) and Form 8938 are separate, and an exemption from Forms 3520 and 3520-A does not remove them.^41,42

Because the Code is the Commonwealth's income tax law with the Commonwealth in place of the United States, an individual retirement account under Commonwealth law is the U.S. kind, a trust created or organized in the United States for an individual's exclusive benefit, read as created in the Commonwealth.^52,55 Only the individual pays in. No IRS guidance addresses these accounts.

Read as a foreign trust: a trust created in the Commonwealth, not the United States.

We read such an account as a foreign trust: it is not a U.S. IRA, which must be a trust created or organized in the United States,⁵⁵ and a trust supervised by the Commonwealth's courts fails the court test.⁴ An IRA with a U.S. trustee under U.S. law is a U.S. IRA and is not reported on these forms.

Does not apply: only you pay in.

§402(b) reaches only an employer's contributions to an employees' trust,⁵ so it does not apply to an account only you pay into.

Proposed regulations: none for a bona fide resident who relies on them. Rev. Proc. 2020-17: not settled.

If you are a bona fide resident of the Commonwealth and rely on the proposed regulations, nothing is reported for an account located there, as the Settlement Fund block above explains.^13,12 Otherwise only Rev. Proc. 2020-17 could apply, and whether it reaches a territory is not settled.²⁰

No treaty: the Commonwealth is a U.S. territory.

No treaty: the United States has no income tax treaty with its own territories.³⁴

Full reporting, unless you are a bona fide resident who relies on the proposed regulations.

On our reading, you are treated as owner of the account, because its income is held for you,^56,8 so Part II and Form 3520-A are due each year,⁵⁰ each contribution is a Part I transfer,⁵⁷ and payouts go on Part III.³⁷ If the trustee does not file Form 3520-A, you attach a substitute to your Form 3520.⁵⁸ No Form 4970: the account's income is taxed to you each year as its owner.⁵⁹ A bona fide resident who relies on the proposed regulations files none of these for an account located in the Commonwealth.¹³ FBAR (FinCEN Form 114) and Form 8938 are separate, and an exemption from Forms 3520 and 3520-A does not remove them.^41,42

A trust set up under Commonwealth law, during someone's life or by their will, in which a trustee holds investments or a business for family members.⁴⁶ If the trustee mainly runs a business for profit rather than holding property for the family, U.S. law may classify the arrangement as a business entity rather than a trust.⁶⁰

A foreign trust: the Commonwealth's courts are not U.S. courts for the court test.

Usually an ordinary trust, because the trustee holds property for the beneficiaries,⁴⁶ and a foreign trust. A trust is domestic only if a U.S. court can exercise primary supervision over it and U.S. persons control its substantial decisions, and the courts of a territory are not courts within the United States for that test,^53,4 so a trust supervised by the Commonwealth's courts is a foreign trust.

A U.S. person who funds it is owner when it has a U.S. beneficiary; a foreign settlor only in two narrow cases.

Who is treated as owner decides who files Part II and Form 3520-A. A U.S. person who transfers property to the trust is treated as owner of the part it funds for any year in which the trust has a U.S. beneficiary,⁸ and a U.S. citizen living in the Commonwealth is a U.S. person, as is any family member who is a U.S. citizen or resident.⁶¹ Someone who funds the trust while not a U.S. resident and becomes one within 5 years is treated, for this rule and for Part I, as transferring that part of the trust on the day their U.S. residency starts.⁶² A settlor who is not a U.S. person is treated as owner only if they can revoke the trust alone, or if only they or their spouse can receive distributions during their life.⁶³ Otherwise no one is owner, and the trust is taxed as a separate, non-grantor trust.⁶⁴

No treaty: the Commonwealth is a U.S. territory.

No treaty: the United States has no income tax treaty with its own territories.³⁴

As for any foreign trust, unless a bona fide resident relies on the proposed regulations.

A U.S. person who transfers property to the trust files Part I for that year.⁵⁷ A U.S. owner files Part II and makes sure Form 3520-A is filed, or files a substitute, each year.^50,58 A U.S. beneficiary who receives a distribution files Part III for that year.³⁷ A distribution from a non-grantor trust that carries out income the trust kept in earlier years is an accumulation distribution, taxed with an interest charge on Form 4970.⁶⁵ Owing no U.S. tax on the trust's income does not remove any of these: transfers and distributions are reportable whether or not they have U.S. income tax consequences.⁶⁶ Rev. Proc. 2020-17 does not apply: it covers only retirement trusts and medical, disability, or educational savings trusts.⁶⁷

Reporting the trust's income on a Commonwealth return does not file anything with the IRS. A bona fide resident of the Commonwealth who relies on the proposed regulations files none of these for a trust located there, to the extent of their own part as transferor, owner, or recipient; a U.S. person living elsewhere still reports.^13,16 FBAR (FinCEN Form 114) and Form 8938 are separate and may also apply.⁶⁸