FBAR Lawyer Fees (2018) – Do You Need an FBAR Attorney for Help?
FBAR Lawyer Fees (2018) – Do You Need an FBAR Attorney for Help?
The FBAR is the Report of Foreign Bank Account and Financial Reporting Form (also known as FinCEN 114).
We represent hundreds of clients each year with simple-to-complex FBAR issues.
Unfortunately, there is a lot of mis-information online designed to scare and overwhelm unsuspecting individuals.
Key issues involving the FBAR
- When is the FBAR Due?
- What are the FBAR Instructions?
- What are FBAR Penalties?
- Am I Willful or Non-Willful?
- Do I Need FBAR Amnesty?
Do I Need an FBAR Attorney?
Maybe…and maybe not.
When You May Not Need an FBAR Attorney
If your FBAR filing is timely in the current year, and you have a CPA or Tax Professional who understands the form – and you do not have any years of non-compliance, then you may not need an Attorney.
That is because if there is no untimeliness, and no lack of compliance – then there should be no FBAR penalty issues.
Under most other circumstances, you will need an FBAR Attorney to assist you.
**You may have other international informational returns which should have been filed, but never were. The non-filing of these forms may subject you to additional fines and penalties. Therefore, if in addition to a bank account(s) you also have foreign investments, trusts, businesses, etc. you should consider speaking with an experienced FBAR attorney to assess your tax and international reporting requirements.
When You Need an FBAR Attorney
If you are out of compliance for not properly (aka timely and accurately) filing the FBAR in one or more years, you should speak with an experienced FBAR Attorney.
Each person’s facts and circumstances are different. And, depending on the specific facts and circumstances surrounding the failure of timely filing the FBAR a person may find himself or herself subject to extremely high monetary fines and penalties, including a penalty that reaches a 100% value of the unreported foreign accounts and assets (in a multi-year audit in which a person is found willful) and/or by themselves subject to a criminal investigation for tax fraud or tax evasion.
FBAR Penalties – Standard of Proof
A. Standard of Proof – FBAR Non-Criminal (Willful or Non-Willful)
Courts nationwide have found unanimously at this time that the standard of for FBAR penalties should be a lower standard of proof, being preponderance of the evidence. In the sliding scale of “standards of proof,” preponderance of the evidence ranks as the lowest (as in, the government requires the least amount of evidence to provide its case)
In multiple different cases, Taxpayers have argued that while FBAR Willfulness penalties are “civil penalties,” they are criminal-like in nature, and therefore the government should have to prove a higher clear and convincing standard which is typically quantified at ~75%, as opposed to preponderance of the evidence, which is essentially more than 50%.
B. Standard of Proof – FBAR Criminal (Willful, no Criminal Penalty if Non-Willful)
If a person is being charged with a crime, and their freedom is at stake, the burden to provide guilt increases, so that the US government must show that beyond a reasonable doubt they have willfully violated the law, and they must be charged in a criminal procedure.
C. Why is the Civil FBAR Willful Standard so Low?
That is a very good question in fact, even the own IRS chief counsel believed that the standard of proof would be clear and convincing evidence – which is in the middle, and typically quantified at around 75%.
Chief counsel reached this conclusion because the FBAR Willful Penalties are similar to civil tax fraud and in order to prove civil tax fraud the U.S. government must show clear and convincing evidence.
In the cases to date that have analyzed civil FBAR Penalties, and found that the lower preponderance of the evidence is the proper standard, then all surmised that no matter how much money you may owe for FBAR Willful penalties… It is just money.
What are the Potential FBAR Penalties
A. Non-Willful FBAR Penalties
1. Civil FBAR Penalties Non-Willful
Briefly, if a person was non-willful, then there is no crime, so even though the penalties may be exorbitant, there is no risk of jail or prison.
In order to prove a crime you have to prove intent or some form of intent. While even non-willful penalties can be much higher than anyone anticipated for simply negligently failing to report an FBAR – the non-compliance is not criminal.
And, oftentimes there are procedures such as delinquency procedures, reasonable cause, or streamlined procedures, which may reduce or eliminate penalties.
As provided by the IRS:
For violations occurring after October 22, 2004, a penalty, not to exceed $10,000 per violation, may be imposed on any person who violates or causes any violation of the FBAR filing and recordkeeping requirements. 31 USC 5321(a)(5)(B).
The Penalties for non-willful civil violations range from the following (adjusted for inflation):
- A Warning Letter in lieu of penalty
- One-time $10,000 penalty
- $10,000 Penalty for each year of violation
- $10,000 Per occurrent, per violation for each year of non-compliance
*Mitigation factors may apply to reduce the penalty
2. Criminal FBAR Penalties Non-Willful
There are no criminal penalties for non-willful FBAR violations.
B. FBAR Willful Penalties
1. Civil FBAR Willful Penalties
In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314—
(i)the maximum penalty under subparagraph (B)(i) shall be increased to the greater of;
(I) $100,000, or
(II) 50 percent of the amount determined under subparagraph (D), and (ii) subparagraph (B)(ii) shall not apply. (D) Amount.—The amount determined under this subparagraph is— – in the case of a violation involving a transaction, the amount of the transaction, or – in the case of a violation involving a failure to report the existence of an account or any identifying information required to be provided with respect to an account, the balance in the account at the time of the violation
2. Criminal FBAR Willful Penalties
As provided by the IRS:
(a) A person willfully violating this subchapter or a regulation prescribed or order issued under this subchapter (except section 5315 or 5324 of this title or a regulation prescribed under section 5315 or 5324), or willfully violating a regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91–508, shall be fined not more than $250,000, or imprisoned for not more than five years, or both.
(b) A person willfully violating this subchapter or a regulation prescribed or order issued under this subchapter (except section 5315 or 5324 of this title or a regulation prescribed under section 5315 or 5324), or willfully violating a regulation prescribed under section 21 of the Federal Deposit Insurance Act or section 123 of Public Law 91–508, while violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period, shall be fined not more than $500,000, imprisoned for not more than 10 years, or both.
(c) For a violation of section 5318(a)(2) of this title or a regulation prescribed under section 5318(a)(2), a separate violation occurs for each day the violation continues and at each office, branch, or place of business at which a violation occurs or continues.
(d) A financial institution or agency that violates any provision of subsection (i) or (j) of section 5318, or any special measures imposed under section 5318A, or any regulation prescribed under subsection (i) or (j) of section 5318 or section 5318A, shall be fined in an amount equal to not less than 2 times the amount of the transaction, but not more than $1,000,000.
The IRS Has Ways to Find Undisclosed Accounts?
To resolve this issue, the U.S. Government has developed many tactics to uncover undisclosed for and offshore accounts, assets, and income. Two of the biggest weapons are FATCA and ITEG
FATCA (Foreign Account Tax Compliance Act)
FATCA is the Foreign Account Tax Compliance Act. We have written numerous articles on the subject, but boiled down to its simplest form, the U.S. has entered into bilateral agreements with more than 110 different countries. The agreements require the reciprocal reporting of foreign account information of US account holders to the IRS, and vice versa. More than 300,000 foreign financial institutions have agreed to report this account holder information to the IRS.
ITEG (International Tax Enforcement Groups)
The IRS has developed several International Tax Enforcement Groups designed specifically to review, evaluate and assess tax positions taken on tax returns to determine whether they are proper. Some of these issues include foreign tax credits, foreign earned income exclusion, and the new section 965 repatriation of foreign income, along with various other tax enforcement initiatives.
Offshore IRS Penalties
The IRS has the right to issue excessively high fines and penalties against any individual who violates optional reporting disclosure rules. That is not to say that the IRS issues penalties against everyone who is out of compliance, but, if you are out of compliance than you may be subject to these penalties.
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.
What To Look For in an FBAR Attorney?
Here are a few tips to help you in your search:
1. Research About the FBAR Before Contacting an Attorney
Spend lots of time reading quality articles (if you have the time) from our firm and other firms that specialize in FBAR and Offshore Voluntary Disclosure. Avoid fear-mongering sites and general tax practitioners. We have several free resources available on our site, which you can find on our FAQ page.
You should read as many of these articles as you can, so you can get a solid understanding of how it works.
2. Check if Your Attorney has Advanced Tax Credentials
International tax law, and especially offshore voluntary disclosure is very complex. There are many components to an offshore disclosure, including the tax aspect, the accounting aspect, the legal aspect, and the potential audit or litigation aspect.
Nearly all the top attorneys in this field who focus exclusively on International Tax, and who handle FBAR issues regularly, have an advanced Tax Law Degree (LL.M.) and hold either a CPA or EA designation.
If an attorney is an experienced attorney practicing in this field, it is almost a prerequisite to have both an advanced degree such as an LL.M (which is a Master’s of Tax Law) and either a CPA designation or Enrolled Agent (“EA”) designation (an EA is the Highest Credential awarded by the IRS).
What is an IRS Enrolled Agent (EA)?
An Enrolled Agent (EA) is the highest tax credential awarded by the IRS.
*The EA exam is very difficult, which is why the credential is not well-known. It requires a person to pass three (3) different exams (Individual Tax, Business Tax, and Ethics) during three different sessions on three different days, as well as take more than 72 hours of Continuing Education over 3-years.
Many Attorneys have tried taking the EA exam, but failed the exam due to the fact that they just do not have the tax knowledge necessary to pass all three (3) portions.
Why Use an Attorney with an EA and LL.M. (Masters in Tax)?
It takes this type of Legal and Tax background to be able to properly vet out your case. If your attorney does not have this experience, then who is properly evaluating your case? Sure, they may tell you your case seems easy — but that is because they do not know any better. It’s just not worth the risk.
Click here for a case study example of what happens when you retain inexperienced counsel FBAR disclosure matters.
3. Interview Both the Attorney & CPA/EA if the Attorney is Not a CPA or EA
This is not the time to be bashful.
FBAR can be complex. Ask them the hard questions during the interview, and if they stumble or falter during their explanations, move onto the next Attorney.
4. IRS Offshore Voluntary Disclosure Experience
FBAR penalties can be tough. Before retaining an international tax law firm in a matter in which you may be subject to excessively high fines and penalties, be sure you firm has handled many FBAR related cases.
This will make sure you are being represented by an FBAR Attorney who understands how the IRS determines whether or not to issues a Warning Letter Civil Penalties, or Criminal Penalties — and how to defend you rights!
Then…Watch Out For FBAR Attorney Scams
Once you have vetted out the case, beware of these common FBAR Scams:
The Attorney Fees are Artificially Deflated
In order to properly complete an IRS Offshore Disclosure submission or Reasonable Cause, it takes time. And time, cost money. Yes, you can go to a junior attorney and pay a significantly reduced fee, or a very senior attorney with no real interest in your case — but you typically get what you pay for.
In these types of situations, the client normally comes to us after having paid an artificially low fee to an inexperienced attorney, and realizes the following:
- The Attorney selected the least expensive CPA they could find to handle the tax returns;
- The CPA did not seem to understand the tax laws of the particular country; and
- The Attorney has “no idea” about how the tax returns were prepared.
The Attorney Used to Work for the IRS…
This is another one of those sales pitches to be cautious of.
Working in the Offshore Disclosure Department of the IRS as a Senior Attorney or as an IRS Trial Attorney may be valuable experience. Anything less is just smoke and mirrors being used to divert you from the fact that Attorney lacks complex and detailed FBAR Attorney experience.
The IRS Offshore Disclosure department of the IRS has its own set of rules, policies and procedures – it operates much differently than the rest of the IRS.
You need an Attorney experienced with all aspects of FBAR.
The Attorney Has No Litigation Experience Representing Their Own Clients
While we are not fans of litigating unless necessary, our Attorneys have litigated highly complex cases. Mr. Golding has represented thousands of clients in many complex cases throughout his nearly 20-year law career. He has successfully avoided criminal prosecution for clients in Tax, Business and Corporate matters.
Mr. Golding has represented clients facing prosecution, and on many occasions facilitated all charges being dropped. We have also handled many complex Audits, including Eggshell audits and Reverse Eggshell Audits, without a single client being referred to prosecution.
This experience helps up to best represent our clients. Without experience litigating on behalf of their own clients in court, many newer attorneys or attorneys without any litigation experience are lost (along with you) when the IRS decides to push back.
Are They Selling You on Streamlined, When You Were Willful?
The IRS is clear: If you were willful at all, then you cannot qualify for the IRS Streamlined Program. There are no exceptions for people who were only willful for a year or two, and no exceptions for people who only failed to report “small” amounts of income. We find it reprehensible that there are other attorneys intentionally putting potential clients in serious financial risk, as well as harm’s way for a potential IRS Criminal Investigation, by pushing them into Streamlined when they know the client was willful.
Once you submit to the Streamlined Program, you can not thereafter submit to OVDP.
If a person is willful, they do not qualify for Streamlined or Reasonable Cause. It doesn’t matter whether it was 1-year, 5-years or 10-years worth of non-compliance.
**While the extent of the willfulness penalties might be mitigated through an OVDP Opt-Out, you should never submit a reasonable cause letter or streamlined submission if you were willful. This is especially true, since the IRS has begun auditing Streamlined Submissions.
It is not their money or their freedom on the line – it is yours, so be careful…
Golding & Golding, A PLC
We have represented individuals and businesses around the globe with outstanding unreported foreign accounts ranging from $50,000.00 to nearly $40,000,000.00 in a single disclosure.
We Take Offshore Disclosure Representation Very Seriously
We are passionate about representing individuals in offshore voluntary disclosure matters, and feel horrible when a client calls us after having hired an inexperienced Attorney or CPA who either did a sloppy job, charged them more money than they agreed upon, and/or is overall not providing the level of representation a person deserves.
We Can Help You.