The Offshore Voluntary Disclosure Program is specifically designed for taxpayers with exposure to potential criminal liability and/or substantial civil penalties due to a willful failure to report foreign financial assets and pay all tax due in respect of those assets.
On June 18, 2014, the Internal Revenue Service (IRS) announced major changes in its offshore voluntary compliance programs. The changes include an expansion of the streamlined filing compliance procedures and key modifications to the 2012 Offshore Voluntary Disclosure Program (OVDP). The expanded streamlined procedures are available to a wider population of U.S. taxpayers living outside the country and, for the first time, to certain U.S. taxpayers residing in the United States. The modifications to the existing OVDP program in part provide for increasing the offshore penalty percentage from 27.5 percent to 50 percent in certain circumstances.
Options Available for U.S. Taxpayers with Undisclosed Foreign Financial Assets
The IRS now offers taxpayers with undisclosed foreign financial assets the following options:
- Offshore Voluntary Disclosure Program,
- Streamlined Filing Compliance Procedures,
- Delinquent FBAR submission procedures and
- Delinquent international information return submission procedures.
Each of these options and the transitional rules applicable to taxpayers already in the OVDP are discussed below.
Offshore Voluntary Disclosure Program (OVDP)
The OVDP is specifically designed for taxpayers with exposure to potential criminal liability and/or substantial civil penalties due to a willful failure to report foreign financial assets and pay all tax due in respect of those assets. The OVDP provides protection from criminal liability and fixed terms for resolving their civil tax and penalty obligations.
The terms of the OVDP may change at any time. For example, the IRS may increase penalties or limit eligibility for all or some taxpayers or defined classes of taxpayers – or decide to end the program entirely at any point. The terms of the program will also be offered to taxpayers who made offshore voluntary disclosures after the deadline for the 2011 Offshore Voluntary Disclosure Initiative (OVDI). The OVDP is effective for all applications made on or after July 1, 2014. A taxpayer who made an OVDP submission prior to July 1, 2014, may elect to have his case considered under the OVDP.
Participating taxpayers must:
- Provide the following:
- Payment in the total amount of tax, interest, offshore penalty, accuracy-related penalty and, if applicable, the failure-to-file and failure-to-pay penalties. If the taxpayer cannot pay the total amount due, a proposed payment arrangement and certain financial information must be provided.
- Copies of previously filed original (and, if applicable, previously filed amended) federal income tax returns for tax years covered by the voluntary disclosure ("the Disclosure Period");
- Amended federal income tax returns or original Form 1040 (if delinquent) for the Disclosure Period.
- Offshore Voluntary Disclosure Letter.
- Foreign Account or Asset Statement.
- Taxpayer Account Summary with Penalty Calculation.
- Agreements to extend the period of time to assess tax and to assess Report of Foreign Bank and Financial Accounts (FBAR) penalties.
- Copies of filed FBARs reported on FinCEN Form 114.
- Copies of statements for all financial accounts reflecting all account activity for each of the tax years included in the Disclosure Period. For OVDP assets other than foreign financial accounts, provide all relevant documents pertaining to the asset. For example, if a taxpayer has foreign-issued life insurance with cash value, provide all documents governing the policy and, if any, all legal and tax opinions issued to the taxpayer relating to the policy.
- If foreign entities (trusts, corporations, partnerships, etc.) are involved: A statement identifying all foreign entities and a statement concerning ownership or control of such entities. If the foreign entities held OVDP assets, provide complete and accurate information returns. If the taxpayer requests that the IRS waive information reporting requirements, the taxpayer must submit a "Statement on Abandoned Entities" form.
- If the taxpayer is a decedent's estate, provide complete and accurate amended estate or gift tax returns.
- If passive foreign investment companies (PFICs) are involved, provide a statement whether the amended or delinquent returns involve PFIC issues, and if so, whether the taxpayer chooses to elect the alternative to the statutory PFIC computation that resolves PFIC issues on a basis that is consistent with the mark to market (MTM) methodology authorized in Internal Revenue Code (IRC) § 1296 but does not require complete reconstruction of historical data.
- Cooperate in the voluntary disclosure process, including providing information on foreign accounts and assets, institutions and facilitators.
- Pay the 20-percent accuracy-related penalties on the full amount of the tax on unreported offshore-income for all years.
- Pay failure-to-file and failure-to-pay penalties, if applicable.
- Pay a miscellaneous offshore penalty equal to 27.5 percent (or 50 percent in certain circumstances) of the highest aggregate value of OVDP assets.
- Execute a Closing Agreement on Final Determination Covering Specific Matters, Form 906.
- Agree to cooperate with IRS and Department of Justice offshore enforcement efforts, if requested, by providing information about financial institutions and other facilitators who helped the taxpayer establish or maintain an offshore arrangement.
Foreign and Domestic Disclosure. In addition to disclosing all items relating to foreign financial accounts, OVDP submissions must correct any previously unreported income from domestic sources; inappropriate deductions or credits claimed; or other incomplete, inaccurate or untruthful items on the originally filed returns. The OVDP resolves only liabilities and penalties related to offshore noncompliance. Domestic portions of a voluntary disclosure are subject to examination.
Comment: This is a key point since many taxpayers taking advantage of the OVDP focus solely on the foreign assets and not on "domestic" issues, resulting in the filing of an erroneous amended tax return that could potentially complicate the matter further.
The 50-Percent Penalty. Beginning on August 4, 2014, any taxpayer who has an undisclosed foreign financial account will be subject to a 50-percent miscellaneous offshore penalty if, at the time of submitting the preclearance letter to IRS Criminal Investigation, an event has already occurred that constitutes a public disclosure that either:
- (a) the foreign financial institution where the account is held, or another facilitator involved in the taxpayer's offshore arrangement, is or has been under investigation by the IRS or the Department of Justice (DOJ) in connection with accounts that are beneficially owned by a U.S. person;
- (b) the foreign financial institution or other facilitator is cooperating with the IRS or the Department of Justice in connection with accounts that are beneficially owned by a U.S. person; or
- (c) the foreign financial institution or other facilitator has been identified in a court-approved issuance of a summons seeking information about U.S. taxpayers who may hold financial accounts (a "John Doe summons") at the foreign financial institution or have accounts established or maintained by the facilitator.
Examples of a public disclosure include: a public filing in a judicial proceeding by any party or judicial officer, or public disclosure by the DOJ regarding a Deferred Prosecution Agreement or Non-Prosecution Agreement with a financial institution or other facilitator.
The foreign banks and facilitators meeting this criteria as of June 18, 2014, are as follows:
Bank and Promoter List
- UBS AG
- Credit Suisse AG, Credit Suisse Fides and Clariden Leu Ltd.
- Wegelin & Co.
- Liechtensteinische Landesbank AG
- Zurcher Kantonalbank
- swisspartners Investment Network AG, swisspartners Wealth Management AG, swisspartners Insurance Company SPC Ltd. and swisspartners Versicherung AG
- CIBC FirstCaribbean International Bank Limited, its predecessors, subsidiaries, and affiliates
- Stanford International Bank, Ltd., Stanford Group Company and Stanford Trust Company, Ltd.
- The Hong Kong and Shanghai Banking Corporation Limited in India (HSBC India)
- The Bank of N.T. Butterfield & Son Limited (also known as Butterfield Bank and Bank of Butterfield), its predecessors, subsidiaries and affiliates
Comment: The IRS has not identified the persons who are cooperating with the government or who are the subject of court-approved summons. It is highly unlikely that the government will announce the names of cooperating persons, and unless the taxpayer carefully watches the press, a taxpayer will be unaware if the bank or advisor involved is the target of a summons. Consequently, it may be very challenging for taxpayers to know in advance whether their foreign assets will be subject to the 50-percent penalty.
Once the 50-percent miscellaneous offshore penalty applies to any of the taxpayer's accounts or assets, the 50-percent miscellaneous offshore penalty will apply to all of the taxpayer's assets subject to the penalty, including accounts held at another institution or established through another facilitator for which there have been no events constituting public disclosures of (a) or (b) above.
Time Frame. The Disclosure Period is the most recent eight tax years for which the due date has already passed. For taxpayers who submit a voluntary disclosure before the due date (or properly extended due date) for the 2013 tax year, the disclosure must include each of the tax years 2005 through 2012. For taxpayers who submit a voluntary disclosure after the due date (or properly extended due date) for 2013, the disclosure must include each of the tax years 2006 through 2013 in which they have undisclosed OVDP assets.
Eligibility. Taxpayers who have legal source funds invested in undisclosed OVDP assets and meet the requirements of Internal Revenue Manual (IRM) 220.127.116.11 are eligible to apply for IRS Criminal Investigation's Voluntary Disclosure Practice and the OVDP penalty regime. The OVDP is available only to address the taxpayer's own liability. Individuals who facilitated the tax noncompliance of others are not eligible to participate in OVDP. The aforementioned IRM provides in part that:
- It is currently the practice of the IRS that a voluntary disclosure will be considered, along with all other factors in the investigation, in determining whether criminal prosecution will be recommended. …
- A voluntary disclosure will not automatically guarantee immunity from prosecution; however, a voluntary disclosure may result in prosecution not being recommended. This practice does not apply to taxpayers with illegal source income.
- A voluntary disclosure occurs when the communication is truthful, timely and complete, and when:
- A taxpayer shows a willingness to cooperate (and does in fact cooperate) with the IRS in determining his/her correct tax liability.
- The taxpayer makes good faith arrangements with the IRS to pay, in full, the tax, interest and any penalties determined by the IRS to be applicable.
- A disclosure is timely if it is received before:
- The IRS has initiated a civil examination or criminal investigation of the taxpayer, or has notified the taxpayer that it intends to commence such an examination or investigation.
- The IRS has received information from a third party (e.g., informant, other governmental agency or the media) alerting the IRS to the specific taxpayer's noncompliance.
- The IRS has initiated a civil examination or criminal investigation that is directly related to the specific liability of the taxpayer.
- The IRS has acquired information directly related to the specific liability of the taxpayer from a criminal enforcement action (e.g., search warrant, grand jury subpoena).
Comment: The IRM and the OVDP are slightly inconsistent in the sense that the IRM states that a voluntary disclosure will be taken into account in determining whether criminal prosecution will be recommended, while the OVDP provides that if the voluntary disclosure is truthful, timely and complete, there will be no recommendation for criminal prosecution to the DOJ.
If the IRS has initiated a civil examination for any year, regardless of whether it relates to undisclosed OVDP assets, the taxpayer will not be eligible to participate in the OVDP. A taxpayer under criminal investigation by IRS-CI is also ineligible. In these circumstances, the IRS recommends that the taxpayer or the taxpayer's representative should discuss undisclosed financial accounts and assets with the agent.
Comment: Notwithstanding the IRS recommendation to discuss the undisclosed account with the agent in the course of a civil examination, that decision should be made only after consultation with an attorney experienced in criminal tax matters.
"Quiet Disclosures." Some taxpayers have made "quiet disclosures" by simply filing amended returns, by filing delinquent FBARs and by paying the tax liability in hopes that these filings will end the taxpayer's compliance issues. The IRS encourages such taxpayers to participate in the OVDP and to avail themselves of the protection from criminal prosecution and the favorable penalty structure.
Timely Disclosure in the Face of Summonses and Treaty Requests. The mere fact that the IRS served a John Doe summons, made a treaty request or has taken similar action does not make every member of the John Doe class or group so identified ineligible to participate in the voluntary disclosure. But such activity may subject a taxpayer to a higher offshore penalty at the rate of 50 percent.
However, once the IRS or DOJ obtains information that provides evidence of a specific taxpayer's noncompliance, that particular taxpayer will become ineligible for OVDP. Taxpayers concerned that a party subject to a John Doe summons, treaty request or similar action will provide information about him to the IRS may want to apply to make a voluntary disclosure as soon as possible.
In addition to the above, there are two other ways in which an otherwise eligible taxpayer will become ineligible. First, if a taxpayer appeals a foreign tax administrator's decision authorizing the providing of account information to the IRS and fails to serve the required notice on the Attorney General of the United States, the taxpayer will be ineligible to participate in OVDP. Second, the IRS may determine that certain taxpayer groups that have or had accounts held at a specific financial institution will be ineligible due to U.S. government actions in connection with the specific financial institution.
Applying for Pre-Clearance. Taxpayers must send a fax to the IRS – Criminal Investigation Lead Development Center (LDC) in Philadelphia, Pennsylvania, with:
- (a) Applicant-identifying information, including complete names, dates of birth, tax identification numbers, addresses and telephone numbers, as well as if the application is by a representative, a power of attorney.
Comment: In the prior OVDPs, the foregoing was all the information that was required to request pre-clearance. The OVDP now requires the up-front submission of the following additional information.
- (b) Identifying information of all financial institutions at which undisclosed OVDP assets were held. Identifying information for financial institutions includes complete names, addresses and telephone numbers.
- (c) Identifying information of all foreign and domestic entities through which the undisclosed OVDP assets were held by the taxpayer; this does not include any entities traded on a public stock exchange. Information must be provided for both current and dissolved entities. Identifying information for entities includes complete names, employer identification numbers, addresses and the jurisdiction in which the entities were organized.
Comment: The information provided to IRS Criminal Investigation is a road map for the IRS to the taxpayer's noncompliance. All this information is required before the taxpayer receives any assurance from the IRS that his disclosure is timely. In instances where the taxpayer is notified that his application to the OVDP is "untimely," there is nothing to stop the IRS from using the provided information in a civil examination or a criminal investigation. Accordingly, the decision to apply for pre-clearance must be made with the assistance of experienced criminal tax counsel.
After receipt of the request for pre-clearance and within 30 days, IRS Criminal Investigation will notify taxpayers whether or not they are eligible to make an offshore voluntary disclosure. (Experience shows that the time frame to process the pre-clearance application is between four and six weeks, not 30 days.)
Post Pre-Clearance Requirements. Pre-clearance does not guarantee a taxpayer acceptance into the OVDP. Taxpayers pre-cleared for OVDP must provide an Offshore Voluntary Disclosure Letter and attachment to the IRS within 45 days from receipt of pre-clearance notification.
The Disclosure Letter requires the taxpayer to provide considerable information regarding the taxpayer and the foreign financial account. The "attachment" is filed for each account and asks questions in great detail regarding the account, persons associated with the account and the taxpayer's advisers.
Comment: All of this detail is provided before the taxpayer has any assurance that he or she will be accepted into the OVDP. Criminal prosecution is still a risk, although realistically a slight one for taxpayers who are truthful and complete in their disclosure.
Criminal Investigation reviews the Offshore Voluntary Disclosure Letter and notifies the taxpayers within 45 days whether their offshore voluntary disclosures have been preliminarily accepted as timely or declined. (Again, experience shows that the time frame for preliminary acceptance is closer to five to seven weeks.)
Post Preliminary Acceptance Procedure. Once a taxpayer's disclosure has been preliminarily accepted by CI as timely, the taxpayer must complete the submission and cooperate with the civil examiner in the resolution of the civil liability before the disclosure is considered complete.
The preliminary acceptance letter from CI will instruct the taxpayer to submit the full voluntary disclosure submission to the IRS within 90 days of the date of the timeliness determination.
Comment: Extensions of this time line are routinely granted.
The voluntary disclosure submission is sent in two separate parts.
- Part 1. Payment to the Department of Treasury in the total amount of tax, interest, offshore penalty, accuracy-related penalty and, if applicable, the failure-to-file and failure-to-pay penalties. If the taxpayer cannot pay the total amount due, a proposed payment arrangement and financial information must be submitted.
- Part 2. Provide all the information (tax returns, FBARs, account records, etc.) set forth in OVDP Requirements above.
The taxpayer may be contacted by an examiner for specific additional information. The examiner will certify that the voluntary disclosure is correct, accurate and complete. The examiner will also verify the tax, interest and civil penalties owed.
A taxpayer who holds OVDP assets through a foreign entity is required to file information returns for that entity regardless of whether the taxpayer honored the form of the entity in his dealings with the OVDP assets. However, in cases where the taxpayer certifies that the entity had no purpose other than to conceal the taxpayer's ownership of assets and the taxpayer liquidates and abandons the entity, the IRS may agree to waive the requirement that delinquent information returns be filed. Taxpayers requesting this relief must file a Statement on Abandoned Entities.
Calculating the Penalty. Convert foreign currency by using the foreign currency exchange rate at the end of the year regardless of when during the year the highest value was reached. Each OVDP asset is to be valued separately.
No amount of unreported gross income is considered de minimis for purposes of determining whether there has been tax noncompliance with respect to an OVDP asset. Even one dollar of unreported gross income from an OVDP asset will bring it into the offshore penalty base.
Gain realized on a foreign transaction occurring before the voluntary disclosure period (generally 2005 or 2006) does not need to be included as part of the voluntary disclosure. If the proceeds of the transaction were repatriated and were not offshore during the voluntary disclosure period, they will not be included in the base for the offshore penalty. However, if the proceeds remained offshore during any part of the voluntary disclosure period, they will be included in the base for the offshore penalty.
OVDP Assets. The offshore penalty applies to all offshore holdings that are related in any way to tax noncompliance, regardless of the form of the taxpayer's ownership or the character of the asset ("OVDP Assets"). OVDP Assets include all assets directly or indirectly owned by the taxpayer, including financial accounts holding cash, securities or other custodial assets; tangible assets, such as real estate or art; and intangible assets, such as patents or stock or other interests in a U.S. or foreign business.
"Tax noncompliance" includes failure to report gross income from the assets (e.g., "even one dollar" of unreported rental income pulls the rental property into the penalty calculation), as well as failure to pay U.S. tax that was due with respect to the funds used to acquire the asset (e.g., art work acquired with untaxed U.S. income).
Unlike the published materials in the prior OVDPs, the OVDP clarifies that if a taxpayer holds OVDP assets through an entity or a series of entities, the taxpayer may not apply valuation discounts, such as a discount reflecting lack of marketability; a discount for holding a minority interest; or a discount for holding a tenants in common interest.
Mere Signature Authority and Family Financial Accounts. Where a disclosing taxpayer has mere signature authority over an undisclosed account, that failure to disclose the account will be treated as unrelated to the tax noncompliance the taxpayer is voluntarily disclosing. The taxpayer may cure the FBAR delinquency for this account at any time prior to being contacted by the IRS regarding an income tax examination or delinquent returns by filing the FBAR with an explanatory statement. See Delinquent FBAR Submission Procedures, below.
The treatment might be different if: (1) the account over which the taxpayer has signature authority is held in the name of a related person, such as a family member or an entity controlled by the taxpayer; (2) the account is held in the name of a foreign entity for which the taxpayer had a reporting obligation; or (3) the account was related in some other way to the taxpayer's tax noncompliance (e.g., was used by the taxpayer as a conduit). In these cases, the taxpayer may have an OVDP asset to which the offshore penalty applies.
Signatories with no ownership interest in the account, such as the children with signature authority on parents' accounts, should file delinquent FBARs with explanatory statements. See Delinquent FBAR Submission Procedures, below.
As for the parents in this scenario, only one offshore penalty will be applied with respect to voluntary disclosures relating to the same foreign financial account.
In the case of co-owners, each taxpayer who makes a voluntary disclosure will be liable for the penalty on his percentage ownership of the highest value of the OVDP asset. The IRS may examine any co-owner who does not make a voluntary disclosure. Co-owners examined by the IRS will be subject to all applicable penalties.
Statute of Limitations. As a condition to participate in the OVDP, the taxpayer must agree to the assessment of tax and penalties for all voluntary disclosure years. If the taxpayer does not agree, the case will be referred for a complete examination of all issues. In that examination, normal statute of limitations rules will apply. If no exception to the normal three-year statute of limitations applies, the IRS will be able to assess only additional liabilities for three years. The IRS may assess additional liabilities for six years if the taxpayer failed to report more than 25 percent of gross income. Similarly, if there was a failure to file certain information returns, the statute of limitations will not have begun to run. If the IRS can prove fraud, there is no statute of limitations for assessing tax. In addition, the statute of limitations for assessing FBAR penalties is six years from the date of the violation, which would be the date that an unfiled FBAR was due to have been filed.
Case Resolution, No Discretion and Opting Out. The penalty framework for offshore voluntary disclosure and the agreement to limit tax exposure to an eight year period are nonnegotiable terms. If any part of the closing agreement is unacceptable to the taxpayer, the taxpayer may opt out and the case will be examined and all applicable penalties will be imposed.
Offshore voluntary disclosure examiners do not have discretion to settle cases for amounts less than what is properly due and owing. Under no circumstances will taxpayers be required to pay a penalty greater than what they would otherwise be liable for under the maximum penalties imposed under existing statutes for the years included in the Disclosure Period.
Examiners will compare the amount due under the OVDP to the tax, interest and applicable penalties (at their maximum levels and without regard to issues relating to reasonable cause, willfulness, mitigation factors or other circumstances that may reduce liability) that a taxpayer would owe outside of the OVDP. The taxpayer will pay the lesser amount. If the taxpayer disagrees with the result, the taxpayer may opt out of the OVDP.
An "opt out" is an irrevocable election made by a taxpayer to have his case handled under the standard audit process. Some taxpayers may prefer this approach; in some cases, the results under the OVDP may appear too severe given the facts of the case.
Streamlined Filing Compliance Procedures
Purpose: The Streamlined Filing Compliance Procedures are available to taxpayers certifying that their failure to report foreign financial assets did not result from willful conduct.
General Eligibility: The modified Streamlined Filing Compliance Procedures are designed for only individual taxpayers, including estates of individual taxpayers. The streamlined procedures are available to both U.S. individual taxpayers residing outside of the United States and U.S. individual taxpayers residing in the United States.
Taxpayers using either the Streamlined Foreign Offshore Procedures or the Streamlined Domestic Offshore Procedures will be required to certify that the failure to report all income, pay all tax and submit all required information returns, including FBARs, was due to non-willful conduct.
If the IRS has initiated a criminal investigation or a civil examination of a taxpayer's returns, the taxpayer will not be eligible to use these procedures.
Taxpayers who have made "quiet disclosures" may still use the Streamlined Filing Compliance Procedures. However, any penalty assessments previously made with respect to those filings will not be abated.
General Procedure: Tax returns submitted under either streamlined program will be processed like any other return. Receipt of the returns will not be acknowledged. The streamlined filing process does not include a closing agreement.
Returns submitted will not be subject to IRS audit automatically, but may be subject to IRS examination and even criminal investigation, if appropriate. Taxpayers who are concerned that their failure to report income, pay tax and submit required information returns was due to willful conduct and who therefore seek assurances that they will not be subject to criminal liability and/or substantial monetary penalties should consider participating in the OVDP.
Comment: Whether a taxpayer's conduct was or was not "willful" and the existence of "reasonable" cause for the taxpayer's noncompliance are questions of law which should be analyzed by an experienced criminal defense tax attorney.
Coordination with OVDP: Once a taxpayer makes a submission under the streamlined programs, the taxpayer may not participate in the OVDP. Similarly, a taxpayer who submits an OVDP voluntary disclosure letter on or after July 1, 2014, is not eligible to participate in the streamlined procedures.
A taxpayer eligible for treatment under the streamlined procedures who submits, or has submitted, a voluntary disclosure letter under the OVDP (or any predecessor offshore voluntary disclosure program) prior to July 1, 2014, but who does not yet have a fully executed OVDP closing agreement, may request treatment under the applicable penalty terms available under the streamlined procedures. A taxpayer seeking such treatment does not need to opt out of OVDP, but will be required to certify that the failure to report all income, pay all tax and submit all required information returns, including FBARs, was due to non-willful conduct. As part of the OVDP process, the IRS will consider this request in light of all the facts and circumstances of the taxpayer's case and will determine whether or not to incorporate the streamlined penalty terms in the OVDP closing agreement.
Streamlined Procedures for U.S. Taxpayers Residing Outside the United States
Eligibility. In addition to having to meet the general eligibility criteria described above, individual U.S. taxpayers, or estates of individual U.S. taxpayers, seeking to use the Streamlined Foreign Offshore Procedures must: (1) meet the applicable non-residency requirement described below (for joint return filers, both spouses must meet the applicable non-residency requirement described below); and (2) have failed to report the income from a foreign financial asset and pay tax as required by U.S. law, and may have failed to file an FBAR with respect to a foreign financial account, and such failures resulted from non-willful conduct.
Non-Residency Requirement - Citizen or Green Card Holder. Individual U.S. citizens or lawful permanent residents, or estates of U.S. citizens or lawful permanent residents, meet the applicable non-residency requirement if in any one or more of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the individual did not have a U.S. abode and the individual was physically outside the United States for at least 330 full days. "Abode" has been variously defined as one's home, habitation, residence, domicile or place of dwelling. It does not mean a person's principal place of business. "Abode" has a domestic rather than a vocational meaning and does not mean the same as "tax home." The location of a person's abode often will depend on where the person maintains his economic, family and personal ties.
Non-Residency Requirement - Other Persons. Individuals who are not U.S. citizens or lawful permanent residents, or estates of individuals who were not U.S. citizens or lawful permanent residents, meet the applicable non-residency requirement if in any one or more of the last three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the individual did not meet the "substantial presence test." To meet this test, the person must be physically present in the United States on at least:
- 31 days during 2013 and
- 183 days during the three-year period that includes 2013, 2012 and 2011, counting:
- all the days the person was present in 2013 and
- 1/2 of the days the person was present in 2012 and
- 1/3 of the days the person was present in 2011.
Scope and Effect of Foreign Streamlined Procedures
U.S. taxpayers (U.S. citizens, lawful permanent residents and those meeting the substantial presence test) who are eligible to use the Streamlined Foreign Offshore Procedures must:
- for each of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, file delinquent or amended tax returns, together with all required information returns;
- for each of the most recent six years for which the FBAR due date has passed, file any delinquent FBARs;
- pay the full amount of the tax and interest due at the time the returns are filed; and
- Complete and sign a Certification by U.S. Person Residing Outside of the U.S. certifying: (1) that the taxpayer is eligible for the Streamlined Foreign Offshore Procedures; (2) that all required FBARs have now been filed; and (3) that the failure to file tax returns, report all income, pay all tax and submit all required information returns, including FBARs, resulted from non-willful conduct.
An eligible taxpayer who complies with all of the applicable procedures will not be subject to failure-to-file and failure-to-pay penalties, accuracy-related penalties, information return penalties or FBAR penalties. Even if returns properly filed under these procedures are subsequently selected for audit under existing audit selection processes, the taxpayer will not be subject to the foregoing penalties, unless the examination results in a determination that the original tax noncompliance was fraudulent and/or that the FBAR violation was willful. Any previously assessed penalties with respect to those years, however, will not be abated.
Comment: There is no miscellaneous offshore (FBAR) penalty in the Nonresident Streamlined Program.
For returns filed under these procedures, retroactive relief will be provided for failure to timely elect income deferral on certain retirement and savings plans where deferral is permitted by the applicable treaty.
Transition Rules. The risk assessment process associated with the 2012 Streamlined Filing Compliance Procedures for Non-Resident, Non-Filer U.S. Taxpayers has been eliminated for all streamlined filers. A taxpayer who has initiated participation in the 2012 Streamlined Filing Compliance Procedures prior to July 1, 2014, and who has not already been notified of a high- or low-risk determination, will not receive correspondence related to their risk determination. The returns will be processed without regard to that risk assessment.
Streamlined Procedures for U.S. Taxpayers Residing In the United States
Eligibility. In addition to having to meet the general eligibility criteria described above, individual U.S. taxpayers, or estates of individual U.S. taxpayers, seeking to use the Streamlined Domestic Offshore Procedures must:
- fail to meet the applicable non-residency requirement described above (for joint return filers, one or both of the spouses must fail to meet the applicable non-residency requirement);
- have previously filed a U.S. tax return (if required) for each of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed;
- have failed to report gross income from a foreign financial asset and pay tax as required by U.S. law, and may have failed to file an FBAR and/or one or more international information returns with respect to the foreign financial asset; and
- such failures resulted from non-willful conduct.
Comment: It appears that the Domestic Streamlined Program is not available to non-filers.
Scope and Effect of Domestic Streamlined Procedures. U.S. taxpayers (U.S. citizens, lawful permanent residents and those meeting the "substantial presence" test) eligible to use the Streamlined Domestic Offshore Procedures must:
- for each of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed (the "covered tax return period"), file amended tax returns, together with all required information returns;
- for each of the most recent six years for which the FBAR due date has passed (the "covered FBAR period"), file any delinquent FBARs;
- pay a miscellaneous offshore penalty;
- pay the full amount of the tax, interest and miscellaneous offshore penalty due in connection with these filings at the time the foregoing returns and FBAR are filed; and
- complete and sign a statement on the Certification by U.S. Person Residing in the U.S., certifying:
- (a) that the taxpayer is eligible for the Streamlined Domestic Offshore Procedures;
- (b) that all required FBARs have now been filed;
- (c) that the failure to report all income, pay all tax and submit all required information returns, including FBARs, resulted from non-willful conduct; and
- (d) that the miscellaneous offshore penalty amount is accurate.
It is important to note that a taxpayer may not file delinquent income tax returns (including Form 1040, U.S. Individual Income Tax Return) using these procedures.
The Miscellaneous Offshore Penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer's foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period.
A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty if:
- the asset should have been, but was not, reported on an FBAR for that year;
- the asset should have been, but was not, reported on a Form 8938 for that year; and
- the asset was properly reported for that year, but gross income in respect of the asset was not reported in that year.
A participating taxpayer will be subject only to the 5-percent miscellaneous offshore penalty and will not be subject to accuracy-related penalties, information return penalties or FBAR penalties. Even if returns properly filed under these procedures are subsequently selected for audit, no such penalties will be imposed unless the examination results in a determination that the original return was fraudulent and/or that the FBAR violation was willful. Any previously assessed penalties with respect to those years, however, will not be abated.
For returns filed under these procedures, retroactive relief will be provided for failure to timely elect income deferral on certain retirement and savings plans where deferral is permitted by the applicable treaty.
Delinquent FBAR Submission Procedures
Taxpayers who do not need to use either the OVDP or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report and pay additional tax, but who:
- have not filed a required FBAR,
- are not under a civil examination or a criminal investigation by the IRS and
- have not already been contacted by the IRS about the delinquent FBARs,
should file the delinquent FBARs and include a statement explaining why the FBARs are filed late.
The IRS will not impose a penalty for the failure to file the delinquent FBARs if the taxpayer properly reported on his U.S. tax returns and paid all tax on the income from the foreign financial accounts reported on the delinquent FBARs, and the taxpayer has not previously been contacted regarding an income tax examination or a request for delinquent returns for the years for which the delinquent FBARs are submitted.
Delinquent International Information Return Submission Procedures
Taxpayers who do not need to use the OVDP or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report and pay additional tax, but who:
- have not filed one or more required international information returns,
- have reasonable cause for not timely filing the information returns,
Comment: This requirement is not present in the case of the Delinquent FBAR Submission Procedures.
- are not under a civil examination or a criminal investigation by the IRS and
- have not already been contacted by the IRS about the delinquent information returns,
- have reasonable cause for not timely filing the information returns,
should file the delinquent information returns with a statement of all facts establishing reasonable cause for the failure to file. As part of the reasonable cause statement, taxpayers must also certify that any entity for which the information returns are being filed was not engaged in tax evasion. If a reasonable cause statement is not attached to each delinquent information return filed, penalties may be assessed in accordance with existing procedures.
All delinquent international information returns other than Forms 3520 and 3520-A should be attached to an amended return. All delinquent Forms 3520 and 3520-A should be filed according to the applicable instructions for those forms. A reasonable cause statement must be attached to each delinquent information return filed for which reasonable cause is being requested.
Transitional treatment under OVDP will allow taxpayers currently participating in OVDP who meet the eligibility requirements for the expanded Streamlined Filing Compliance Procedures an opportunity to remain in the OVDP while taking advantage of the favorable penalty structure of the expanded streamlined procedures.
A taxpayer will be considered to be currently participating in an OVDP for purposes of receiving transitional treatment if:
- Before July 1, 2014, he has mailed to IRS Criminal Investigation his OVDP voluntary disclosure letter and attachments, and
- As of July 1, 2014, he has either:
- remained in OVDP but not yet completed the OVDP certification process where a Form 906 Closing Agreement has been fully executed by the IRS or
- opted out of OVDP, but not yet received a letter initiating an examination and enclosing a Notice 609.
A taxpayer who, as of July 1, 2014, has completed the OVDP certification process where a Form 906 Closing Agreement has been fully executed by the IRS will not be considered currently participating in an OVDP and thus will not be eligible for transitional treatment.
A taxpayer who makes an offshore voluntary disclosure on or after July 1, 2014, will not be eligible for transitional treatment under OVDP, even though he may have made a request for OVDP pre-clearance before July 1, 2014.
Upon IRS approval, taxpayers currently participating in OVDP who meet the eligibility requirements of the:
- Streamlined Foreign Offshore Procedures will not be required to pay the miscellaneous offshore penalty; and
- Streamlined Domestic Offshore Procedures will not be required to pay the miscellaneous offshore penalty at the OVDP rate, but will instead be subject the miscellaneous offshore penalty terms of the Streamlined Domestic Offshore Procedures.
Taxpayers are not required to opt out of the OVDP to receive transitional treatment, but in order to qualify, a taxpayer must provide to the IRS:
- all submission documents required under the voluntary disclosure program in which the taxpayer is currently participating;
- a written statement in the appropriate certification form that would be required under the Streamlined Filing Compliance Procedures signed under penalty of perjury certifying their non-willfulness with respect to all foreign activities/assets, specifically describing the reasons for the failure to report all income, pay all tax and submit all required information returns, including FBARs, and if the taxpayer relied on a professional advisor, including the name, address and telephone number of the advisor and a summary of the advice; and
- full payment of tax, interest and any accuracy-related, failure-to-file and/or failure-to-pay penalties that would be due under OVDP, if not already made.
Requests for transitional treatment will be reviewed to determine whether the taxpayer is eligible, the taxpayer's certification of non-willfulness is complete and the available information is consistent with the certification. The examiner assigned to the case will make the initial determination and the examiner's manager must concur. A central review committee may also review the determination. For those cases designated for central committee review, the examiner will document the facts and rationale for the determination, document the taxpayer statement of facts and prepare a summary of the case to be forwarded to the committee for review.
The central review committee will review the facts of the case and the examiners' determination to determine if it is consistent with other determinations made across the IRS. The central review committee will advise the examiner of concurrence, non-concurrence or additional actions required to process the request. The decision of the central review committee is final and may not be appealed.
If the IRS does not agree that the taxpayer is entitled to transitional treatment, the case remains governed by the terms of the OVDP in which the taxpayer is participating. In these circumstances, if the OVDP miscellaneous offshore penalty is unacceptable to the taxpayer, the taxpayer may opt out of the OVDP and choose to have the case resolved in an examination.
For Further Information
If you would like more information about voluntary disclosure for offshore accounts, please contact Thomas W. Ostrander, the author of this Alert; Hope P. Krebs or James J. Holman in Philadelphia; Jon Grouf or Megan R. Worrell in New York; Anthony D. Martin in Boston; any member of the International Practice Group; Michael A. Gillen of the Tax Accounting Group; or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.