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IRS FBAR FAQ – Summary Review of FBAR Penalty Questions & Answers

IRS FBAR Penalty Guide (2017) - Best Review of FBAR Procedures

IRS FBAR Penalty Guide (2017) – Best Review of FBAR Procedures

FBAR Penalty GuideThe IRS Takes FBAR Filing and FBAR Reporting very seriously. The failure to timely file Report of Foreign Bank and Financial Account forms may result in significant Fines and Penalties, which are detailed below.

FBAR Penalties

An FBAR is a Report of Foreign Bank and Financial Account Form; it is also referred to as a FinCEN114 form.

We have discussed the FBAR in great detail on our website, because it is a very important form to file annually, and the failure to report this form may result in significant fines penalties.

Moreover, the threshold for having to file this form is relatively low – any person or business that is required to file a US tax return (whether or not they meet the income threshold requirements for actually filing a tax return) and has an annual aggregate total in their foreign accounts that exceeds US $10,000 on any day during the year must file the form.

Failure to File the FBAR

When a person fails to file an FBAR, they may be subject to extremely high fines and penalties, that can range from a Warning Letter in Lieu of Penalty (Letter 3800) all the way up to a 100% fine of the value of the unreported accounts – when the IRS establishes that a person is willful and subject to a multi-year audit.

As you can see, there is a large discrepancy between the varying ranges of penalties that can be issued against a US taxpayer. To that end, we will provide a brief summary of the various different programs and/or penalty issuance that may impact you if you have foreign accounts overseas and have not filed the FBAR.

**Penalties for failing to file FATCA form 8938 may overlap the penalties for the FBAR. Reference to form 8938 is with respect to a form that is similar to the FBAR but has higher threshold requirements for filing. Filing the 8938 is impacted by whether or not the filer is single, married filing joint or married filing separately – and whether the filer is considered a US resident or not.

What are the Penalties for Failing to File an FBAR?

Recently, the Internal Revenue Service issued a memorandum which details how the IRS “believes” the agents should penalize individuals in accordance with their authority.  Essentially, there are two sets of penalty structures and they are based on whether the taxpayer was willful or non-willful

Willful

Willful is determined by a “totality of the circumstances” analysis.  Somebody is considered to have acted willfully if they intentionally evaded the payment of taxes or disclosure of foreign accounts.  In other words, they willfully or knowingly “knew” about the requirement to disclose and report overseas assets, accounts, and income but chose not to.  In these situations, the Internal Revenue Service has the authority to penalize the taxpayer upwards of 50% of the value of the assets per audit year for failing to file the FBAR (in addition to a slew of several other non-FBAR penalties), but no more than 100% value of the account over an audit period.

Generally, audits last three years and the Internal Revenue Service has made it known that they will not penalize the individual beyond the value of the accounts for the audit periods at issue.  Thus, if you had $1 million in your foreign bank account and you knowingly did not report this information to the IRS and they audit you for three years, they can take all of your $1 million.

If you were “Reckless” your actions may be considered willful as well.

Non-Willful

When a person is non-willful, it generally means they were unaware of the requirement to file an FBAR.  In this situation, the IRS takes some mercy – but nowhere near as much mercy as you can imagine certain people deserve (example: individuals who relocated from overseas and have foreign accounts that they simply did not use or earn much income on, or individuals who inherit money from overseas relatives.)

In these situations, the IRS has four (4) main options in terms of penalizing the taxpayer:

  1. The IRS agent can simply issue a warning letter instead of a monetary penalty to the taxpayer. This will rarely happen (although Golding and Golding has achieved this result on multiple occasions for individuals who have been audited and did not file FBAR statements and/or otherwise do not qualify for one of the IRS offshore voluntary disclosure programs, but were non-willful).
  1. The IRS agent could penalize the taxpayer a total of $10,000 for all of the years that the taxpayer did not file FBAR statements. For example, if the taxpayer is audited for three years and did not file FBARs for those three years, the IRS may penalize the taxpayer $10,000 for the total amount of the audit.
  1. The IRS agent could penalize the taxpayer $10,000 for each year that the FBAR was not filed. So using the example above, if the taxpayer is audited three years and did not file an FBAR for three years, then the IRS could penalize the taxpayer $30,000 – and usually not beyond the value of the account.
  1. The IRS agent could penalize the taxpayer $10,000 per account per year. In other words, if the taxpayer had four different bank accounts and was audited for three years – the IRS could penalize taxpayer $120,000.

One very important thing to remember is that the penalty scheme listed above is for non-willful taxpayers.  In other words, even though the IRS knows the taxpayer did not intentionally attempt to evade tax, the IRS has the power to still issue tens, if not hundreds, of thousands of dollars in penalties in a non-willful situation

Whether a person is willful or non-willful is a complex evaluation which requires a comprehensive factual analysis by an experienced FBAR lawyer to ensure the taxpayer is informed before making any representation to the IRS.

Common Questions & Answers about FBAR Filing & Reporting

Ever since the implementation of FATCA (Foreign Account Tax Compliance Act), FBAR (Report of Foreign Bank and Financial Accounts) reporting has become a major concern for U.S. Taxpayers with foreign accounts.

We are providing you with a Free Summary of the common Frequently Asked Questions regarding questions we have received over the years. While the form itself has a set of instructions and frequently asked questions section, our Frequently Asked Question list is more of “FAQs from the trenches,” in which we will answer questions which are not really provided for by the government.

The Money in the Foreign Accounts is not Mine?

This is not unusual. It is very common in foreign countries to have children or other individuals with a Power of Attorney over another person’s account – even when the money does not belong to the POA holder. To that end, if a person’s name is on the account then they should still file an FBAR statement. There is a section of the FBAR reserved for individuals who have signatory authority or other type of authority on the account, but the money is not theirs.

I do not want to Report my Foreign Parents’ Name on the FBAR

We understand the importance of privacy. Generally, there are ways around reporting the information the FBAR where you disclose certain information but not all the requested information (while still being FBAR compliant). 

The Money is from an Inheritance

It is important to remember that the FBAR is a reporting form. In other words, the Department of Treasury wants to know whether you have the money overseas in case there is no other way for the DOT to track it. In addition, under FATCA, many countries and foreign financial institutions have agreed to report accounts to the U.S.

Thus, even if the money was inherited, you are required to report the account information on the FBAR. If you fail to do so and get stuck in the IRS/DOT crosshairs as a result of the foreign financial institution reporting the account in accordance with FATCA, it will be much harder to explain the situation at that time versus simply filing the FBAR timely or entering into OVDP or the Streamlined Program.

**That does not mean you should file a late FBAR (please see below)

My Accounts are in the name of a Foreign Corporation 

This is where the FBAR starts to get more complicated. The most important thing to remember is the concept of the FBAR is to promote financial transparency. Therefore, if no matter how you structure the business in the end the money is yours, then you should file the FBAR.

This can be distinguished from a company in which you are merely an employee and have signatory authority, which would require a comprehensive analysis of the business and your rights to the business and money before determining whether you should file.

My Accounts are in the name of a Foreign Holding Corporation

It does not matter that the accounts are in a Foreign Holding Corporation – this is not sufficient to avoid filing the FBAR statement. Otherwise, a US taxpayer could simply open a BVI Holding Corp and put the holding Corp. as the owner of the account and thus not to have the file the FBAR – even though all of the account money belongs to the US taxpayer – which is directly contradictory to the purpose of the FBAR.

If you are the “true owner” of the money, then filing the FBAR is required.

My Accounts are in the name of a Foreign PFIC Corporation

The same thing goes for a Passive Foreign Investment Company. Depending on which country you are in and how the country titles the foreign company, these companies come in all shapes and sizes. Back in the 80s, they were used primarily to avoid detection by the United States government of foreign account and asset information. There is no exception to filing an FBAR simply because you transferred your money into the PFIC. 

My Accounts are in the name of a Foreign Trust

As you can imagine, foreign trusts are not immune from having to file an FBAR statement either – in addition to possibly a 3520 and 3520A. Whether the purpose of the foreign trust was “harmless,” and/or you thought you could avoid US detection or possibly to form the foreign credit shelter trust or foreign asset protection, a foreign trust does will not negate your requirement to file an FBAR; if the accounts are in a foreign trust, in which you are the owner of the foreign trust then you have to report the account on the FBAR.

What Types of Accounts must be Reported on an FBAR?

Essentially, any account that is maintained at a foreign financial institution must be reported on the FBAR – but this does not mean every income generating asset has to be included. Here’s an example: if you have a Foreign Bank Account at a Foreign Financial Institution it has to be reported on the FBAR. Conversely, if you have a foreign rental property that is earning foreign rental income, while the foreign rental income must be reported on your tax return, the value of the home need not be reported on the FBAR.

Can If I file a Late FBAR Statement?

This is a very complex issue. Technically, you are not allowed to file a late FBAR statement. Some people have done so in accordance with submitting a Quiet Disclosure, which can result in extremely high fines and penalties.

The Internal Revenue Service a Department of treasury are taking foreign account compliance very seriously and it is a major priority for the IRS. If you have not filed your FBAR statements, you have three main alternatives: Reasonable Cause Statement, Streamlined Disclosure, or OVDP (these are briefly discussed below)

Late FBAR Filings and a Reasonable Cause Statement

If you have not filed your FBAR timely, the first option is to submit the FBAR late accompanied by a Reasonable Cause Statement. The failure to file an FBAR can have extremely high penalties. Therefore, if you opt for the reasonable cause statement as opposed to one of the approved programs discussed below, then you are essentially submitting the account information and asking for forgiveness from the IRS for any penalty.

Two things to keep in mind his first, the IRS is not very sympathetic, and second, if the IRS disagrees with your reasoning you have now disclosed all of your account information to the IRS with no protection from penalties or criminal investigation.

Late FBAR Filings and the Streamlined Program

Under the streamlined program, a person will amend their tax returns for three years as well as file six years of unreported past FBAR statements (assuming that they are a US taxpayer for six years; if they have only been a US taxpayer for four years they would only file four years of past FBAR statement). This program is reserved for taxpayers who were non-willful (in other words, they were unaware of the requirement to file FBAR and report their foreign income).

For more information about the Streamlined Program please Click Here for a summary provided by Golding & Golding.

Late FBAR Filings and OVDP

OVDP is the Offshore Voluntary Disclosure Program. It is a program designed for individuals, businesses and trusts that knowingly intentionally failed to report their foreign account information and foreign income earnings. The program requires the applicant to fil eight years of past FBAR statements along with eight years of original and/or amended tax returns.

For more information about OVDP please click here for a summary provided by Golding & Golding.