- 1 Form 14653 Certification
- 2 Non-Willful vs Willful
- 3 Both Spouses Must meet Residency Rules
- 4 Original Tax Returns
- 5 US Citizen or LPR (330-Day Rule)
- 6 Non-Permanent Resident (Substantial Presence Test)
- 7 Form 14653 is Not a Dissertation
- 8 Retaining Records Via Form 14653
- 9 Still Subject to Audit
- 10 Willfulness is a Problem
- 11 Golding & Golding: About Our International Tax Law Firm
Form 14653 Certification
When it comes to submitting the Streamlined Foreign Offshore Procedures to the Internal Revenue Service in order to resolve prior-year non-compliance with international tax and offshore reporting issues (such as FBAR and FATCA), the most important form that must be submitted is the non-willful certification form which is submitted on IRS form 14653. While at first glance the form does not seem overly complicated, after having completed thousands of submissions, it is important to understand certain nuances that the IRS looks at. In addition, in order to best effectively prepare a submission, it is important that the US taxpayer understand what the IRS is looking for or not when it comes to preparing and submitting the Form 14653 document. Let’s take a run through 10 important facts about IRS form 14653.
Non-Willful vs Willful
In order to qualify for the streamline procedures and submit a Form 14653, a person has to qualify as non-willful. Unfortunately, there is no bright-line rule involving when a person qualifies as willful versus non-willful — but instead, it is based on a totality of the circumstance analysis.
Both Spouses Must meet Residency Rules
In order for both spouses to qualify for the Streamlined Foreign Offshore Procedures, both spouses must meet the residency rules. If one spouse does not meet the residency requirements then they would not be able to both submit to the streamline foreign, and the non-foreign resident spouse would typically instead submit to the Streamlined Domestic Offshore Procedures (Foreign and Domestic refer to the location of the taxpayer, and not the location of the assets).
Original Tax Returns
When submitting form 14653, one benefit of the Streamlined Foreign Offshore Procedures is that taxpayers may submit either amended or original tax returns. This is different than the Streamlined Domestic Offshore Procedures in which the taxpayer must submit a Form 14654 instead of a 14653 — and must include only amended returns (SDOP presumes the original returns were filed timely).
US Citizen or LPR (330-Day Rule)
In order to qualify as a foreign resident for someone who is a US citizen or lawful permanent resident, they must have been out of the United States for at least 330 days in any single tax year – – not every tax year within the three-year compliance.
Non-residency requirement applicable to individuals who are U.S. citizens or lawful permanent residents (i.e., “green card holders”): 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.
Under IRC section 911 and its regulations, which apply for purposes of these procedures, neither temporary presence of the individual in the United States nor maintenance of a dwelling in the United States by an individual necessarily mean that the individual’s abode is in the United States. For more information on the meaning of “abode,” see IRS Publication 54, which may be found at Publication 54.
Non-Permanent Resident (Substantial Presence Test)
When a person is only considered a US resident because they met the substantial presence test, the test is different. In order to qualify for submitting a Form 14653, the applicant must simply not meet the Substantial Presence Test in any one of the past three years.
Form 14653 is Not a Dissertation
When taxpayers approach us after having had their own submission rejected or having used a different firm and having their submission rejected, it is usually due to the same issue. The Taxpayer or their attorney authors a 30-page dissertation about the Taxpayer’s entire life story. Not only does the Internal Revenue Service not want to receive this type of lengthy submission statement — but by doing so, it may have a negative impact on the submission.
Retaining Records Via Form 14653
If a taxpayer has records regarding their foreign accounts, assets, investments, and income and they make a streamlined foreign submission — then they should hold onto those records.
Still Subject to Audit
Even if a person qualifies and is approved for the streamline procedures by submitting a Form 14653, they may still be subject to audit. That’s why it is important to retain a firm that offers flat-fee, full-service for tax and legal — from beginning-to-end at the IRS level.
Willfulness is a Problem
If you are willful, then you do not qualify for the Streamlined Procedures. If you still try to submit to the streamlined procedures and get caught, the IRS may pursue willfulness and criminal investigations.
Golding & Golding: About Our International Tax Law Firm
Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure.
Contact our firm today for assistance with getting compliant.