Which U.S. Taxpayers Have to E-File an Annual FBAR with FinCEN?
Which U.S. Taxpayers Have to E-File an Annual FBAR with FinCEN?
FBAR litigation is becoming an epidemic without borders. While FBAR penalties can range from a warning letter all the way to 100% penalties in a willful, multi-year audit, there is no straightforward, bright-line test to determine willful vs. non willful.
Just knowing which U.S. taxpayers have to e-File an annual FBAR with FinCEN is an undertaking with way more twists and turns than necessary.
What does FBAR Willful Mean?
FBAR willfulness can mean many things: It can mean intentional non-disclosure, it can mean willful blindness, and it can also mean reckless disregard — but not necessarily constructive knowledge (but maybe, because it was only held insufficient on summary judgment, see flume).
Even though the IRS has stated in a previous memo that the standard of proof should be clear and convincing evidence (the “middle” standard), the courts have seemingly decided the actual level of proof should be preponderance of the evidence…the lowest standard of proof.
Oh, and the U.S Government can (and will) make a formal request to foreign countries to obtain the information it needs to enforce these penalties against you.
So, even if you thought your actions outside of the U,S. were safe & protected, or unsafe but at least confidential — the U.S. Government will still take you to task.
FBAR – Global Enforcement of a U.S. Law
Despite the fact that the FBAR is an entirely U.S. Law (unlike FATCA which spans more than 110 countries and 300,000 Foreign Financial Institutions), the United States may still seek foreign country assistance to enforce Foreign Bank Account (FBAR) Penalties – even for foreign residents when they still have U.S. status.
FBAR Enforcement is Serious
The purpose of this article is to shine some light on just how far the U.S. will go to try to enforce what they believe is FBAR willfulness. Even in a civil situation, in which no “crime” is being alleged, the U.S. Government will go the distance if it feels the defendant was willful. The U.S. will take whatever tactics necessary to make that happen.
One tactic to be aware of is to make a request(s) under the Hague Evidence Convention.
What is the Hague Evidence Convention?
The “Convention on the Taking of Evidence Abroad in Civil or Commercial Matters,” or Hague Evidence Convention is a treaty signed in the Netherlands more than 40 years ago. The purpose of the Hague Evidence Convention, is for one country to be able to make a request to another country for evidence, using a more direct manner than the usual information gathering channels (which are highly bureaucratic).
Greece has been a member of the Hague Evidence Convention since 2005 and Lichtenstein is also a member since 2008 though a backdoor workaround using Article 39 for non-member countries.
Legal Argument – Failure to Disclose Foreign Bank Accounts
In the current action, the U.S. is seeking to show that the Defendant willfully failed to report an account a UBS for tax year 2007 under 31 U.S. C. section 5314 et seq. The government alleges Defendant willfully failed to file the FBAR and disclose the account, even though through her CPA, she was aware of her responsibility to do so.
Factual Allegations of the Government
The Defendant is a U.S. Citizen who resides in Greece. She is alleged to have had control over multiple bank accounts at UBS and had communications with bank as well and requested the bank initiate a transfer.
Therefore, even though the accounts were under the name of a Foundation and Business – the U.S. alleges that the Defendant had control over the account.
The Defendant Met with UBS Client Advisors:
As provided by the Court:
On December 23, 2005, (Redacted) and others had dinner in Athens, Greece, with UBS client advisors, and discussed a new account and the creation of a Hong Kong entity to be the accountholder.
A few days later, on December 29, 2005, a representative from UBS signed the Certificate of Incorporation for (Redacted) creating an entity that is registered in Hong Kong, with an UBS Account ending (Redacted).
On January 3, 2006, on the Form A, “Verification of the beneficial owner’s identity,” (Redacted) was identified as one of the beneficial owners of the (Redacted), for the account ending in (Redacted).
In addition, on said date and on June 1, 2006, (Redacted), as a director, signed several Corporations and Complex Trusts Certifications of Beneficial Owner and Non-US Person Status for the primary and sub-accounts, indicating that (Redacted) was a corporation organized in Hong Kong.
Defendant Argues for Non-Willfulness
Defendant makes very good arguments as to why she would not be considered willful in this type of situation, and under these facts.
– Defendant never signed the 2007 tax return that is in question, has many errors in it, along with misspellings – including her name and location.
– Even though the IRS did interview the CPA who prepared the return, it was conducted 4-years after the “incident” occurred, and there is no proof that he knew about FBAR reporting at the time the returns were filed back in 2007 (We all have 20-20 in hindsight, right?)
– The willful actions, if any, were done by the bankers at UBS, and not necessarily any, if at all by the Defendant or her family.
Letter of Request for International Judicial Assistance
Pursuant to the Hague convention:
The United States District Court for the Western District of New York (“District Court”) presents its salutations to the Greek Central Authority, and requests assistance in obtaining evidence to be used in civil proceedings before this Court.”
Specifically, the District Court requests assistance in obtaining documents and oral testimony from (Redacted), a citizen of Greece, for use at trial. (Redacted) is married to the defendant (Redacted) and is also represented by the defendant’s counsel. This Letter of Request is submitted in both English and Greek.
IRS Voluntary Disclosure
This case summary shows you the lengths the U.S. Government will go to in order to try to penalize you for offshore/foreign related matters. Whether or not your actions were willful or non-willful, there are various actions you can take to safely get yourself into IRS compliance.
Making an IRS Voluntary Disclosure – Use an Attorney
The voluntary disclosure material provided by the IRS indicates that the attorney should make the submission. There is no attorney-client privilege with a CPA, which means the information you discuss with your CPA may not be confidential or protected by privilege.
That also means the IRS maybe able to question a CPA about the contents of the submission. This is why you will not want to utilize a CPA to make this submission but rather an attorney to ensure you have the attorney-client privilege.
IRS Voluntary Disclosure is All We Do!
We represent all different types of clients. High net-worth investors (over $40 million), smaller cases ($100,000) and everything in-between.
We represent clients in over 60 countries and nationwide, with all different types of assets, including (each link takes you to a Golding & Golding free summary):
- Unfiled Tax Returns
- Unreported Income Penalties
- International Tax Investigations (FATCA and more)
- FBAR Investigations
- International Tax Evasion
- Structuring Investigations
- Eggshell and Reverse Eggshell Audits
- Divorce and Offshore Accounts
- Foreign Mutual Funds
- Foreign Life Insurance
- Fixing Quiet Disclosure
- Foreign Real Estate Income
- Foreign Real Estate Sales
- Foreign Earned Income Exclusion
- Subpart F Income
- Foreign Inheritance
- Foreign Pension
- Form 3520
- Form 5471
- Form 8621
- Form 8865
- Form 8938 (FATCA)
Who Decides to Enter IRS Voluntary Disclosure
All different types of people submit to IRS Voluntary Disclosure. We represent Attorneys, CPAs, Doctors, Investors, Engineers, Business Owners, Entrepreneurs, Professors, Athletes, Actors, Entry-Level staff, Students, and more.
You are not alone, and you are not the only one to find himself or herself in this situation.
Sean M. Golding, JD, LL.M., EA – Board Certified Tax Law Specialist
Our Managing Partner, Sean M. Golding, JD, LLM, EA is the only Attorney nationwide who has earned the Certified Tax Law Specialist credential and specializes in IRS Offshore Voluntary Disclosure and closely related matters.
In addition to earning the Certified Tax Law Certification, Sean also holds an LL.M. (Master’s in Tax Law) from the University of Denver and is also an Enrolled Agent (the highest credential awarded by the IRS.)
He is frequently called upon to lecture and write on issues involving IRS Voluntary Disclosure.
Less than 1% of Tax Attorneys Nationwide
Out of more than 200,000 practicing attorneys in California, less than 400 attorneys have achieved this Certified Tax Law Specialist designation.
The exam is widely regarded as one of (if not) the hardest tax exam given in the United States for practicing Attorneys. It is a designation earned by less than 1% of attorneys.
Our International Tax Lawyers represent hundreds of taxpayers annually in over 60 countries.
IRS Penalty List
The following is a list of potential IRS penalties for unreported and undisclosed foreign accounts and assets:
A Penalty for failing to file FBARs
United States citizens, residents and certain other persons must annually report their direct or indirect financial interest in, or signature authority (or other authority that is comparable to signature authority) over, a financial account that is maintained with a financial institution located in a foreign country if, for any calendar year, the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the year. The civil penalty for willfully failing to file an FBAR can be as high as the greater of $100,000 or 50 percent of the total balance of the foreign financial account per violation. See 31 U.S.C. § 5321(a)(5). Non-willful violations that the IRS determines were not due to reasonable cause are subject to a $10,000 penalty per violation.
FATCA Form 8938
Beginning with the 2011 tax year, a penalty for failing to file Form 8938 reporting the taxpayer’s interest in certain foreign financial assets, including financial accounts, certain foreign securities, and interests in foreign entities, as required by IRC § 6038D. The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 3520
Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts. Taxpayers must also report various transactions involving foreign trusts, including creation of a foreign trust by a United States person, transfers of property from a United States person to a foreign trust and receipt of distributions from foreign trusts under IRC § 6048. This return also reports the receipt of gifts from foreign entities under IRC § 6039F. The penalty for failing to file each one of these information returns, or for filing an incomplete return, is the greater of $10,000 or 35 percent of the gross reportable amount, except for returns reporting gifts, where the penalty is five percent of the gift per month, up to a maximum penalty of 25 percent of the gift.
A Penalty for failing to file Form 3520-A
Information Return of Foreign Trust With a U.S. Owner. Taxpayers must also report ownership interests in foreign trusts, by United States persons with various interests in and powers over those trusts under IRC § 6048(b). The penalty for failing to file each one of these information returns or for filing an incomplete return, is the greater of $10,000 or 5 percent of the gross value of trust assets determined to be owned by the United States person.
A Penalty for failing to file Form 5471
Information Return of U.S. Persons with Respect to Certain Foreign Corporations. Certain United States persons who are officers, directors or shareholders in certain foreign corporations (including International Business Corporations) are required to report information under IRC §§ 6035, 6038 and 6046. The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 5472
Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business. Taxpayers may be required to report transactions between a 25 percent foreign-owned domestic corporation or a foreign corporation engaged in a trade or business in the United States and a related party as required by IRC §§ 6038A and 6038C. The penalty for failing to file each one of these information returns, or to keep certain records regarding reportable transactions, is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency.
A Penalty for failing to file Form 926
Return by a U.S. Transferor of Property to a Foreign Corporation. Taxpayers are required to report transfers of property to foreign corporations and other information under IRC § 6038B. The penalty for failing to file each one of these information returns is ten percent of the value of the property transferred, up to a maximum of $100,000 per return, with no limit if the failure to report the transfer was intentional.
A Penalty for failing to file Form 8865
Return of U.S. Persons With Respect to Certain Foreign Partnerships. United States persons with certain interests in foreign partnerships use this form to report interests in and transactions of the foreign partnerships, transfers of property to the foreign partnerships, and acquisitions, dispositions and changes in foreign partnership interests under IRC §§ 6038, 6038B, and 6046A. Penalties include $10,000 for failure to file each return, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return, and ten percent of the value of any transferred property that is not reported, subject to a $100,000 limit.
Fraud penalties imposed under IRC §§ 6651(f) or 6663
Where an underpayment of tax, or a failure to file a tax return, is due to fraud, the taxpayer is liable for penalties that, although calculated differently, essentially amount to 75 percent of the unpaid tax.
A Penalty for failing to file a tax return imposed under IRC § 6651(a)(1)
Generally, taxpayers are required to file income tax returns. If a taxpayer fails to do so, a penalty of 5 percent of the balance due, plus an additional 5 percent for each month or fraction thereof during which the failure continues may be imposed. The penalty shall not exceed 25 percent.
A Penalty for failing to pay the amount of tax shown on the return under IRC § 6651(a)(2)
If a taxpayer fails to pay the amount of tax shown on the return, he or she may be liable for a penalty of .5 percent of the amount of tax shown on the return, plus an additional .5 percent for each additional month or fraction thereof that the amount remains unpaid, not exceeding 25 percent.
An Accuracy-Related Penalty on underpayments imposed under IRC § 6662
Depending upon which component of the accuracy-related penalty is applicable, a taxpayer may be liable for a 20 percent or 40 percent penalty
Possible Criminal Charges related to tax matters include tax evasion (IRC § 7201)
Filing a false return (IRC § 7206(1)) and failure to file an income tax return (IRC § 7203). Willfully failing to file an FBAR and willfully filing a false FBAR are both violations that are subject to criminal penalties under 31 U.S.C. § 5322. Additional possible criminal charges include conspiracy to defraud the government with respect to claims (18 U.S.C. § 286) and conspiracy to commit offense or to defraud the United States (18 U.S.C. § 371).
A person convicted of tax evasion
Filing a false return subjects a person to a prison term of up to three years and a fine of up to $250,000. A person who fails to file a tax return is subject to a prison term of up to one year and a fine of up to $100,000. Failing to file an FBAR subjects a person to a prison term of up to ten years and criminal penalties of up to $500,000. A person convicted of conspiracy to defraud the government with respect to claims is subject to a prison term of up to not more than 10 years or a fine of up to $250,000. A person convicted of conspiracy to commit offense or to defraud the United States is subject to a prison term of not more than five years and a fine of up to $250,000.
What Should You Do?
Everyone makes mistakes. If at some point that you should have been reporting your foreign income, accounts, assets or investments the prudent and least costly (but most effective) method for getting compliance is through one of the approved IRS offshore voluntary disclosure program.