Delinquent FBAR Submission Procedures

Delinquent FBAR Submission Procedures

Delinquent FBAR Submission Procedures

Delinquent FBAR Submission Procedures: The IRS has developed various amnesty programs to assist taxpayers with delinquent information return filing, such as the FBAR and Form 8938. For Taxpayers who have not reported foreign accounts in the past, the delinquent FBAR submission procedures are a form of FBAR Amnesty used to avoid offshore fines and penalties. It is an alternative to the streamlined and voluntary disclosure programs.

In recent years, the Internal Revenue Service has increased enforcement of foreign accounts compliance.

In order to go back and report previously unreported offshore accounts, assets, and investments, the IRS has developed these various amnesty programs, collectively referred to as offshore voluntary disclosure.

We will summarize the delinquent FBAR submission procedures, and how to submit late FBARs.

Late FBAR Filing Procedures

The FBAR Delinquency Procedures are a great option for non-willful taxpayers who do not have unreported income.

In order to qualify the IRS requires the following:

  • have not filed a required Report of Foreign Bank and Financial Accounts (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

Alternatives to Delinquent FBAR Submission

There are typically four types of IRS Voluntary Disclosure programs for taxpayers to submit Delinquent FBARs.

They include:

How Many Years Delinquent Can You File?

Generally, when a person submits delinquent FBARs, they will go back and file (or amend) for up-to 6-years.

The concept of FBAR delinquency has several moving parts.

For example:

  • Was there unreported income along with unreported accounts?
  • Was the non-compliance willful or non-willful?
  • Are the penalties civil, criminal — or both?

What are the Penalties for Delinquent FBAR Filing?

FBAR Penalties can be civil or criminal in nature.

Civil penalties involve financial penalties, while criminal penalties involve money and possible loss of freedom.

Let’s start with the most common FBAR penalties, which are civil FBAR penalties.

Civil FBAR penalties are limited to monetary penalties.

A civil FBAR penalty is a penalty that is focused on monetary fines or warning letters (waivers) —

Penalties for Civil FBAR can be broken down further into two (2) categories:

  • Willful FBAR Penalties
  • Non-Willful FBAR Penalties

Non-Willful FBAR

These FBAR Penalties are typically the least severe penalties.

An FBAR non-willful penalty is a “lower-level” penalty for not filing the FBAR.

The non-willful penalties can be high, but are typically not as high as willful penalties.

Willful FBAR 

The Willful FBAR Penalty is typically more severe.

An FBAR Willful Penalty is penalty for acting willful, willfully blind, or with reckless disregard in not filing the FBAR.

Criminal FBAR Penalties

Criminal FBAR penalties may include monetary penalties and incarceration.

In a criminal FBAR scenario, he IRS refers the matter to the Department of Justice (DOJ) or other 3 letter government faction for criminal investigation and possible prosecution.

These are not very common, but unfortunately they are on the rise.

A few important considerations:

  • Most courts have held that the maximum annual FBAR willful penalty is not limited to $100,000.
  • If the court believes you acted with Reckless Disregard, they can still penalize you full Willful FBAR Penalties.
  • If the court believes you acted with Willful Blindness, they can still penalize you full Willful FBAR Penalties.
  • Even in a non-willful setting, the court can issue $10,000 per account, per year penalty.

Golding & Golding: About our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

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