Numerous countries have agreed to take part in FATCA (Foreign Account Tax Compliance Act) and the number of countries continues to grow. Hong Kong was one of the more recent countries to agree to FATCA.
Hong Kong and FATCA
As provided by the Hong Kong government in a Press Release “Hong Kong and the United States (US) today (November 13) signed an inter-governmental agreement (IGA) (Note 1) that will facilitate compliance with the US Foreign Account Tax Compliance Act (FATCA) (Note 2) by financial institutions in Hong Kong.
– Under the IGA, financial institutions in Hong Kong need to register and conclude separate individual agreements with the US Internal Revenue Service (IRS). Under these agreements, these institutions shall seek the consent of their account holders who are US taxpayers for reporting their account information to the US IRS annually.The IGA reduces reporting burden and facilitates compliance with FATCA by financial institutions in Hong Kong. It covers exemptions for financial institutions or products which present low risks for tax evasion by US taxpayers.
-The due diligence and reporting requirements under FATCA target specified US taxpayers including US citizens, US resident individuals, and specified entities established in the US or controlled by US persons. Under the IGA, the first reporting will take place in March 2015.
-Financial institutions are reminded to assess their relevant FATCA compliance implications for their operation and clientele. They shall have the procedures and systems in place to protect clients’ monies, investments or other interests in financial instruments from withholding by third parties; avoid aiding clients to engage in tax evasion locally or overseas; and promote the orderliness of market operation.
-The two governments were represented by the Secretary for Financial Services and the Treasury, Professor K C Chan, and the Consul-General of the US to Hong Kong and Macau, Mr Clifford A Hart, Jr, for the signing of the IGA.
Get FATCA Compliant
If you are a US citizen, Legal Permanent Resident, or Foreign National otherwise subject to US tax and you maintain accounts in Hong Kong, it is important that you get compliant. It may be in your best interest to have your U.S. International Tax Lawyer contact the foreign financial institution directly in order to determine what you may be required to do.
In addition, if you receive a FATCA Letter at any time from any of your foreign financial institutions, it is crucial that you contact an International Tax Lawyer to assess what needs to be done next and whether you qualify for any of the US compliance programs.
FATCA is the Foreign Account Tax Compliance Act and is an IRS International Tax Law that brings unreported foreign income & overseas assets into IRS Tax compliance.
Unfortunately, most people only learn of FATCA when they receive a letter from their bank demanding that they show proof of FATCA compliance; otherwise, the bank or foreign financial institution will freeze or even forfeit the foreign accounts.
I have Overseas Accounts and Income, now What?
To make matters worse, you or your friend probably conducted online research, and gathered enough misinformation to conclude that:
- The IRS and Department of Treasury will be kicking in your door at any minute to interrogate you;
- You have resigned yourself to the fact that your only options are either doing a hard 20 in federal prison, or escaping into the middle of the night under a cloak of darkness and assuming a new identity; or
- You contacted CPAs, enrolled agents, or inexperienced international tax attorneys (or any inexperienced attorney) who employed fear and scare tactics in an attempt to sell you.
Under FATCA, Does the IRS want to Arrest and Prosecute people?
As one of the few small international tax law firms in the country that has represented numerous taxpayers in both the offshore voluntary disclosure program (OVDP) and newly implemented modified streamlined program both in the United States and overseas, we can tell you that there is almost nothing to be afraid of. The purpose of these international tax law programs is to “generate revenue” for the United States.
The IRS accomplishes this by mandating individuals who have not otherwise complied with US tax law involving overseas and foreign accounts to either enter one of the voluntary disclosure programs or risk facing significant monetary penalties and possible prison time for noncompliance (which can be resolved by entering one of these programs).
The Basics of FATCA, OVDP, and the “Streamlined” Program?
In an effort to try to ease your concerns, Golding & Golding put together a very basic FAQ list to try to clear up the misinformation you will find online:
What Does Willful Mean?
There is no specific definition for the term willful; rather, it is simply a fact-based test (aka “Totality of the Circumstances”). At its core, the IRS wants to know whether you knew you were responsible for filing these taxes and disclosing this information about your foreign accounts.
- Based on a whole set of background facts, including: whether you are US citizen, how long you have been residing in the US, do you still reside in the US, did you file your taxes yourself, if you used a tax professional – did he or she ask you about your foreign accounts, and other type of background questions will determine whether you were willful or not.
If I Was Willful Can I Still Enter The Program?
Yes, and this is where the misinformation online begins. Whether or not you were willful is not the threshold question to determine whether you can enter into one of these disclosure programs. Rather, willful will determine which program you are entitled to enter. If you are not willful, you may enter the streamlined program and have your penalties reduced to 5% or possibly completely eliminated depending on your country of residence and how long you resided overseas – if it all.
- If you were willful, then you should enter the traditional OVDP and pay the 27.5% penalty or 50% (if anyof your money was being maintained at one of the IRS’s “Bad Banks”). That is because as long as you are truthful (read: full compliance) in your disclosure, you will usually not be subject to criminal liability. The modified streamlined program generally takes the place of the previous mechanism which was entering into the traditional OVDP and then “opting out” of the penalty, in order to risk audit.
- The problem with “opting out” was that for individuals who were not willful, it is a very heavy burden to bear in terms of the paperwork that was required as well as penalties on taxes — which seemed highly unfair (20% tax on overdue income). Thus, for the non-willful individuals who would have ordinarily opted out of the traditional OVDP, the IRS modified the prior streamlined program — which was previously much more limited in scope.
What is The Difference Between OVDP and The IRS Streamlined Program?
In a nutshell, the traditional OVDP is for individuals who knowingly or otherwise were aware of the requirement of filing and disclosing offshore and foreign assets and tax information but chose not to. On the other hand, if an individual was unaware of the requirement to disclose or otherwise file tax information for their overseas and foreign offshore accounts, and there was no intent, and thus generally no finding of ‘willfulness’.
Golding & Golding, A PLC
We have successfully represented clients in more than 1,000 streamlined and voluntary disclosure submissions nationwide and in over 70-different countries.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe.
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Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver. He has also earned the prestigious IRS Enrolled Agent credential. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo, and various Law Journals nationwide.
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