OFFSHORE VOLUNTARY DISCLOSURE PROGRAM STEER CLEAR OF UNWANTED TAX PENALTIES WITH INFORMATION THAT BRINGS YOU UP TO SPEED ON THE IRS OFFSHORE VOLUNTARY DISCLOSURE PROGRAM Presented by: Jeffrey D. Moss, Esq. Dawda, Mann, Mulcahy & Sadler, PLC 39533 Woodward Avenue, Suite 200 Bloomfield Hills, MI 48304 (248) 642-1485 jmoss@dmms.com June 25, 2014 and June 26, 2014
Definition Of Account • Financial Account. A financial account includes, but is not limited to, a securities, brokerage, savings, demand, checking, deposit, time deposit, or other account maintained with a financial institution (or other person performing the services of a financial institution). A financial account also includes a commodity futures or options account, an insurance policy with a cash value (such as a whole life insurance policy), an annuity policy with a cash value, and shares in a mutual fund or similar pooled fund (i.e., a fund that is available to the general public with a regular net asset value determination and regular redemptions). 2
Foreign Financial Account . A foreign financial account is a financial account located outside of the United States. For example, an account maintained with a branch of a United States bank that is physically located outside of the United States is a foreign financial account. An account maintained with a branch of a foreign bank that is physically located in the United States is not a foreign financial account. 3
I. History of OVDP • 2009 OVDP – March 23, 2009 – October 15, 2009 • 2009 US – Switzerland Agreement • 2011 OVDI – February 8, 2011 to September 9, 2011 • 2012 OVDP – No Set Deadline • IRS Objectives – Bring taxpayers with foreign accounts and entities into tax compliance and stop undisclosed and unreported accounts • As of January, 2014 there have been over 38,000 taxpayer disclosures and over 5.5 Billion dollars of revenue collected thus far. 4
II. The Penalty Framework (2012) • How Does The Penalty Work? • What Are The Benefits To Your Clients If They Participate In OVDP? • What Are The Ramifications If Someone Doesn’t Participate And They Are Caught? 5
How does the Offshore Penalty Framework Work? Can you give us an example? The values of foreign accounts and other foreign assets are aggregated for each year and the penalty is calculated at 27.5% of the highest year’s aggregate value during the period covered by the voluntary disclosure. If the taxpayer has multiple accounts or assets and the highest value of some accounts or assets is in different years, the values of accounts and other assets are aggregated for each year and a single penalty is calculated at 27.5% of the highest year’s aggregate value . 6
For example, assume the taxpayer has the following amounts in a foreign account over the period covered by his voluntary disclosure. It is assumed for purposes of the example that the $1,000,000 was in the account before 2007 and was not unreported income in 2007. Year Amount on Deposit Interest Income Account Balance 2007 $1,000,000 $50,000 $1,050,000 2008 $50,000 $1,100,000 2009 $50,000 $1,150,000 2010 $50,000 $1,200,000 2011 $50,000 $1,250,000 2012 $50,000 $1,300,000 2013 $50,000 $1,350,000 2014 $50,000 $1,400,000 For purposes of illustration, assume a five (5%) percent interest rate or earnings factor. 7
(NOTE:) This example does not provide for compounded interest, and assumes the taxpayer is in the 35-percent tax bracket, does not have an investment in a Passive Foreign Investment Company (PFIC), files a return but does not include the foreign account or the interest income on the return, and the maximum applicable penalties are imposed. 8
• If the taxpayers in the example come forward and their voluntary disclosure is accepted by the IRS, they face this potential payment scenario: • They would pay a total of $518,000 plus interest. This amount includes: Tax of $140,000 (8 years at $17,500) plus interest. An accuracy-related penalty of $28,000 (i.e., $140,000 x 20%), and An additional penalty, in lieu of the FBAR and other potential penalties that may apply, of $385,000 (i.e., $1,400,000 x 27.5%) against highest account balance. 9
What Penalties Are Possible If They Don’t Come Forward • If the same taxpayers didn’t come forward, when the IRS discovered their offshore activities, they could face up to $3,993,000 in tax penalty, accuracy-related penalty, and FBAR penalty. The taxpayers would also be liable for interest and possibly additional penalties, and an examination could lead to criminal prosecution. 10
The civil liabilities outside the Offshore Voluntary Disclosure Program potentially include: The tax, accuracy-related penalties, and, if applicable, the failure to file and failure to pay penalties, plus interest, i.e., $168,000, as described above. Plus FBAR penalties totaling up to $3,825,000 for willful failure to file complete and correct FBARs (2009 - $575,000, 2010 - $600,000, 2011 - $625,000, 2012 - $650,000, and 2013 - $675,000 and 2014 - $700,000). 11
• The potential of having the fraud penalty (at 75%) apply, and • The potential of substantial additional information return penalties if the foreign account or assets is held through a foreign entity such as a trust or corporation and required information returns such as Form 5472, or Form 8865 were not filed. • Note that if the foreign account activity started before 2007, the Service may still examine tax years prior to 2007 if the taxpayer is not part of the OVDP. 12
III. Features – What Does OVDP Require? • Preclearance – Names, Date of Birth, Address, SSN – Send to Criminal Division • Preliminary Acceptance – OVDP Letter • Obtain Prior Returns • Obtain Statements from Offshore Bank or Banks 13
What Does OVDP Require? • Prepare Amended Returns • Calculate and Pay Tax & Interest • Prepare Prior FBARs • Extend Statute of Limitations and Cooperate • Pay 20% Accuracy Penalty on Tax • Pay 27.5% Penalty on Highest Balance – Proxy for FBAR Penalty. • Sign Closing Agreement – Form 906. 14
IV. Quiet Disclosures – Why Not? A. What is a “Quiet Disclosure”? B. Unlike OVDP, no Statute of Limitation Protection. C. Bare Amended Returns do not meet requirements of IRM 9.5.11.9. as a Voluntary Disclosure. 15
V. Late FBARs Or Late 5471 Or Late 3520 Only Is OVDP appropriate when all offshore income tax reported and income tax paid? · - No – Q & A 17 – LATE FBAR • Report of Foreign Bank and Financial Accounts (Form TD F 90-22.1) a/k/a FBAR. Now called FinCEN Form 114. • FinCEN stands for “Financial Crimes Enforcement Network”. • Must be filed electronically. 16
Who Must File an FBAR . A United States person that has a financial interest in or signature authority over foreign financial accounts must file an FBAR if the aggregate value of the foreign financial accounts exceeds $10,000 at any time during the calendar year. Penalty for Non-Filing: For willful violations, greater of $100,000 or 50% of Account per year. Non-willful violations are penalized at $10,000 per year. 17
More On FBAR • Purpose . FinCEN Form 114, Report of Foreign Bank and Financial Accounts, is used to report a financial interest in or signature authority over a foreign financial account. The FBAR must be received by the Department of the Treasury on or before June 30 th of the year immediately following the calendar year being reported. The June 30 filing date may not be extended. 18
LATE FORM 5471 OR LATE FORM 3520 For Late Form 5471 (Controlled Foreign Corporation) or Late form 3520 (Foreign Trust) – Taxpayer can file late per Q & A 18. No Penalty Imposed. 19
VI. Applying the 27.5% Penalty • Combining Personal and Business Accounts . Yes Required. • How are prior transactions before disclosure period handled? • Does penalty apply to other assets such as art or real estate (Q & A 35 and 36)? • Examine source of assets and impact on non- compliance. 20
VII. Situations • Joint Accounts. • Multiple holders. • Movement from one bank to another. • Ownership v. Signature Authority. 21
VIII. Opting Out – Does The IRS Have Discretion To Vary The Terms Or Settle Cases • General Answer – No. • However, in some situations the OVDP penalty might be higher in the Program than outside the Program. • 27.5% is supposed to be proxy for FBAR Penalty. 22
Non-opt out example with lower penalty. FACTS: Offshore account with $100,000 (one year only) and foreign income producing RE valued at $1,000,000. In this scenario – FBAR Penalty is $100,000 because only bank account is subject FBAR Penalty but OVDP Penalty is $302,500. 23
Opt-Out Examples Example 1 – US Citizen residing and working abroad has $2,000,000 account with $150,000 in account income, he reports and pays tax in foreign country only. • Has US unreported income but not income tax due. • Under OVDP would owe offshore penalty of $555,000. • If “reasonable cause for non - disclosure” (non -filing FBAR) – TP could opt out and try for non-willful FBAR penalty of $10,000 per year ($60,000). 24
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