IRS Form 8938 Statute of Limitations (2018) – 6 Year Audit Risk
IRS Form 8938 is a relatively new form that is required to be filed in accordance with your tax return (if you meet the threshold requirements for filing the form).
IRS Form 8938 Basics
Most commonly, IRS Form 8938 is required to be filed by any individual who has foreign/offshore accounts or other Specified Foreign Assets worth at least $50,000 on the last date of the year.
Even if the (U.S. based) individual has less than $50,000 in Specified Foreign Assets on the last day of the year, if he or she had more than $75,000 at any time during the year, they must still file the form (the threshold requirements are higher if you are Married Filing Jointly and/or Reside in a Foreign Country).
What is IRS Form 8938?
The purpose of Form 8938 is to update the IRS as to your various Offshore and Foreign Specified Assets (Read: keeping tabs on your assets). The form was created in accordance with FATCA (Foreign Account Tax Compliance Act). Under FATCA, more than 110 countries and 300,000 Foreign Financial Institutions have agreed to report U.S. Account Holders to the U.S.
It is important to note that if you complete this form (and you should if you are required to do so) that you do it properly and you submit to full compliance. Otherwise, the IRS will have the opportunity to penalize you extensively. Moreover, due to the modified statute, the IRS may have significantly longer time to audit you.
6 Year IRS Audit Statute of Limitations
Under certain circumstances such as having a significant amount of unreported income (or improper deductions which deflated the income significantly) or foreign income of more than $5000 that stems from a section 6038 asset – the statute is extended to six years.
In other words, the IRS gets to tack on an additional three years to audit you. Therefore, using the example above, the IRS would have an additional three years audit if it is determined that David had significant amount of unreported income or over embellished deductions.
Typically, the IRS does not start by going back six years. Rather, the IRS will audit you for three years and then depending on the facts and circumstances of your situation expand the audit another three years.
Therefore, if you happen to be out of compliance for prior years then — even if you decide not to go back and file returns in prior years — you should consider being in compliance for at least the three most current years with either the IRS Offshore Voluntary Disclosure Program or IRS Domestic Voluntary Disclosure Program.
Why? Because even if you are audited for three years and can pretty much show that you’ve done your best to be in compliance for the last 3-years, the IRS agent may have no aforethought to believe he or she could go back another three years, because there would be no facts or circumstances in your current three-year audit that would lead the agent to believe they had reason to go back another three years (see Offshore Disclosure Options below).
5 Key Issues to Consider
The following are a list of Hidden Dangers regarding IRS Form 8938
Quiet Disclosure or Incomplete Disclosure
Many individuals who contact us have only recently learned about the Form 8938 filing requirements. In learning about the FATCA Form 8938, they realized that they missed the time to file the Form 8938, as well as the FBAR (Report of Foreign Bank and Financial Account) in current/prior years as well.
Instead of properly submitting to either the IRS Voluntary Disclosure Program or making a Reasonable Cause Submission – they go ahead and file the current year form 8938 properly — without prior year forms. This is a bad strategy because there are hidden dangers in form 8938. Moreover, by knowingly failing to report prior accounts, they have turned a non-willful situation into a Willful/Tax-Fraud scenario, which could land them in serious danger with the IRS, DOT, or DOJ.
Form 8938 – Did you Open the Account “This Year”
In completing form 8938, the form requests that you mark the box if the account was opened in the current year. Let’s say the account was not opened in the current year, and therefore you do not mark the box. If you are audited in the future and did not meet the threshold for filing in prior years, then IRS inquiry would be no big deal on this issue.
BUT, if even though this is the first year you are reporting the account, you met the threshold requirement for reporting the account in prior years, then the IRS may further question you as to why you did not report the account in prior years on either a FATCA Form 8938 or FBAR (or submit to Voluntary Disclosure).
If the IRS believes you were willful or reckless in failing to do so (and/or failed to get into compliance), then in a multi-year audit situation you may be subject to 100% penalty on the value of the accounts for willfully or recklessly failing to comply.
Form 8938 Asks you for “Income Generated by the Assets”
Form 8938 also asks you to complete how much Interest, Dividend, Capital Gain or Royalties you earned from these foreign accounts/assets. Most importantly is the Capital Gain issue. Specifically, if you had Capital Gain income in the current year, chances are you did not also purchase or acquire the asset in the current year.
If you did not purchase the asset in the current year, and you are audited, the IRS may inquire further…which can lead to questions as to why you did not report the asset in prior years and/or get into compliance properly. The same goes for Interest, Dividend, or Royalties; again, if you owned the asset(s) or account in prior years and therefore did not mark off that the accounts were opened or asset was acquired in the current year, it could lead to an IRS presumption that you were are also earning the same type of income in prior years only you did not report it — and subject you to extensive fines and penalties.
Form 8938 Asks you if you Filed a Form 5471
Four 5471 is a reporting form used for individuals who have a certain interest or ownership in a foreign corporation. In any year in which you are required to file a form 5471, you are not required to file a form 8938 as well.
But, if you mark off in the current year that you are filing a form 5471, it may lead the IRS to look at the 5471 (which requires you to identify when you obtained your interest in the Foreign Corporation). If the IRS audits or examines you and learns that you have had the ownership in years prior, the penalties can be severe and start a $10,000 per year, per required 5471 form.
Form 8938 Asks you if you Filed a Form 8621
Form 8621 is used to report any interest you may have (even fractional interest) in a Passive Foreign Investment Company. Like the 5471, you are not required to file and 8938 for any asset in which the current year you are filing form 8621. The analysis of taxes and interest due under IRC 1291 et seq. and reported on Form 8621 are intense and beyond the scope of this article, but if you are curious or bored, you can find a complete analysis we prepared here.
Here’s where it gets tricky and VERY DANGEROUS: While there is no specific financial penalty for failing to file a form 8621 (although monetary penalties may be enforced through the language of 8938), by failing to file the form your tax return is not considered complete and the statute of limitations does not begin to run. Therefore, your prior tax return will remain open indefinitely if it turns out that the IRS realizes you should have been filing 8621 information returns in prior years.
Ready to Get Into Compliance – IRS Voluntary Disclosure
The safest and most effective method of getting into compliance is by submitting to one of the IRS offshore voluntary disclosure programs or a Reasonable Cause submission.
Already Out of Offshore Compliance?
If you are already out of tax compliance with the IRS for prior years involving foreign and offshore accounts, assets, investments, income, etc., one of the best methods for safely getting into compliance is through the IRS offshore voluntary disclosure programs.
Experienced Offshore Disclosure Attorneys
Experienced IRS Offshore Disclosure Representation is crucial for a successful OVDP disclosure. There are only a handful of Law Firms that focus their entire tax practice on IRS Offshore Voluntary Disclosure (We are one of them!). We have represented several hundred clients in OVDP, Streamlined and Offshore Disclosure.
You will want to make sure you use an OVDP Attorney who has:
- Litigation Experience
- IRS Audit Experience
- At Least 15-20 years of Attorney Experience
- An advanced Master’s of Tax Law Degree (LL.M.); and
- Either a CPA or Enrolled Agent (EA) license.
Why? Because you never know how the OVDP or Streamlined submission will go. Sometimes, a person is already under IRS investigation and may not know it. Then, when the person submits to OVDP they are rejected. In this type of situation, you need an Attorney with all the above required experience.
Using a CPA or Junior Attorney with no real experience, is not going to help (and you will then realize why the fees they charged were so low). We know this, because each year we receive many inquiries from clients seeking to retain our services after their initial OVDP or Streamlined junior tax attorney (without the experienced mentioned above) flubbed their submission and made numerous mistakes in the submission process.
Alternatively, once you are in OVDP, you may want to:
- Make an MTM Election
- Argue FAQ 55 Penalty Reductions
As a result, for this highly specialized area of law, you need an OVDP Attorney who is experienced specifically in OVDP, but also has the background and experience to fight on your behalf.
OVDP Attorney Fees
If you receive an OVDP Fee Quote from a CPA or Attorney that seems too Low…you should be careful.
That is not to say you should resign yourself to mortgaging your house for representation, but there are many CPAs and Attorneys who see a frightened human being as little more than a “Mark” or “Target.”
They will provide artificially low fee quotes to bait you in, only to request more money down-the-line. Most of the these Attorneys do not have real experience, and do not understand the comprehensive nature of an OVDP.
Golding & Golding, A PLC
At Golding & Golding, we have successfully handled numerous OVDP (Offshore Voluntary Disclosure Program) and IRS Streamlined Program applications for 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.
In order to assist you to better understand the distinction between the two different IRS offshore/foreign account disclosure programs, we are providing the following summary for your reference.
We Take OVDP Representation Very Seriously
The main takeaway from this article is that you understand the risks and pitfalls of entering either over OVDP or the Streamlined Offshore Disclosure Program unprepared.
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.
IRS Offshore Voluntary Disclosure
There are five main methods people/businesses use to get into compliance. Four of these methods are perfectly legitimate as long as you meet the requirements for the particular mechanism of disclosure. The fifth alternative, which is called a Quiet Disclosure a.k.a. Silent Disclosure a.k.a. Soft Disclosure, is ill-advised as it is illegal and very well may result in criminal prosecution.
5 IRS Methods for Offshore Compliance
- Streamlined Domestic Offshore Procedures
- Streamlined Foreign Offshore Procedures
- Reasonable Cause
- Quiet Disclosure (Illegal)
We are going to provide a brief summary of each program below. We have also included links to the specific programs. If you are interested, we have also prepared very popular “FAQs from the Trenches” for FBAR, OVDP and Streamlined Disclosure reporting. Unlike the technical jargon of the IRS FAQs, our FAQs are based on the hundreds of different types of issues we have handled over the many years that we have been practicing international tax law and offshore disclosure in particular.
After reading this webpage, we hope you develop a basic understanding of each offshore disclosure alternative and how it may benefit you to get into compliance. We do not recommend attempting to disclose the information yourself as you may become subject to an IRS investigation insofar as you will have to answer questions directly to the IRS, which you can avoid with an attorney representative.
If you retain an attorney, then you will get the benefit of the attorney-client privilege which provides confidentiality between you and your representative. With a CPA, there is a relatively small privilege which does provide some comfort, but the privilege is nowhere near as strong as the confidentiality privilege you enjoy with an attorney.
Since you will be dealing with the Internal Revenue Service and they are not known to play nice or fair – it is in your best interest to obtain an experienced Offshore Disclosure Attorney.
OVDP is the Offshore Voluntary Disclosure Program — a program designed to facilitate taxpayer compliance with IRS, DOT, and DOJ International Tax Reporting and Compliance. It is generally reserved for individuals and businesses who were “Willful” (aka intentional) in their failure to comply with U.S. Government Laws and Regulations.
The Offshore Voluntary Disclosure Program is open to any US taxpayer who has offshore and foreign accounts and has not reported the financial information to the Internal Revenue Service (restrictions apply). There are some basic program requirements, with the main one being that the person/business who is applying under this amnesty program is not currently under IRS examination.
The reason is simple: OVDP is a voluntary program and if you are only entering because you are already under IRS examination, then technically, you are not voluntarily entering the program – rather, you are doing so under duress.
Any account that would have to be included on either the FBAR or 8938 form as well as additional income generating assets such as rental properties are accounts that qualify under OVDP. It should be noted that the requirements are different for the modified streamlined program, in which the taxpayer penalties are limited to only assets that are actually listed on either an FBAR or 8938 form; thus the value of a rental property (reduced by any outstanding mortgage) would not be calculated into the penalty amount in a streamlined application, but it would be applicable in an OVDP submission.
An OVDP submission involves the failure of a taxpayer(s) to report foreign and overseas accounts such as: Foreign Bank Accounts, Foreign Financial Accounts, Foreign Retirement Accounts, Foreign Trading Accounts, Foreign Insurance, and Foreign Income, including 8938s, FBAR, Schedule B, 5741, 3520, and more.
What is Included in the Full OVDP Submission?
The full OVDP application includes:
- Eight (8) years of Amended Tax Return filings;
- Eight (8) Years of FBAR (Foreign Bank and Account Reporting Statements);
- Penalty Computation Worksheet; and
- Various OVDP specific documents in support of the application.
Under this program, the Internal Revenue Service wants to know all of the income that was generated under these accounts that were not properly reported previously. The way the taxpayer accomplishes this is by amending tax returns for eight years.
Generally, if the taxpayer has not previously reported his accounts, then there are common forms which were probably excluded from the prior year’s tax returns and include 8938 Forms, Schedule B forms, 3520 Forms, 5471 Forms, 8621 Forms, as well as proof of filing of FBARs (Foreign Bank and Financial Account Reports).
The taxpayer is required to pay the outstanding tax liability for the eight years within the disclosure period – as well as payment of interest along with another 20% penalty on that amount (for nonpayment of tax). To give you an example, let’s pick one tax year during the compliance period. If the taxpayer owed $20,000 in taxes for year 2014, then they would also have to include in the check the amount of $4,000 to cover the 20% penalty, as well as estimated interest (which is generally averaged at about 3% per year). This must be done for each year during the compliance period.
Then there is the “FBAR/8938” Penalty. The Penalty is 27.5% (or 50% if any of the foreign accounts are held at an IRS “Bad Bank”) on the highest year’s “annual aggregate total” of unreported accounts (accounts which were previously reported are not calculated into the penalty amount).
For OVDP, the annual aggregate total is determined by adding the “maximum value” of each unreported account for each year, in each of the last 8 years. To determine what the maximum value is, the taxpayer will add up the highest balances of all of their accounts for each year. In other words, for each tax year within the compliance period, the application will locate the highest balance for each account for each year, and total up the values to determine the maximum value for each year.
Thereafter, the OVDP applicant selects the highest year’s value, and multiplies it by either 27.5%, or possibly 50% if any of the money was being held in what the IRS considers to be one of the “bad banks.” When a person is completing the penalty portion of the application, the two most important things are to breathe and remember that by entering the program, the applicant is seeking to avoid criminal prosecution!
2. Streamlined Domestic Offshore Disclosure
The Streamlined Domestic Offshore Disclosure Program is a highly cost-effective method of quickly getting you into IRS (Internal Revenue Service) or DOT (Department of Treasury) compliance.
What am I supposed to Report?
There are three main reporting aspects: (1) foreign account(s), (2) certain specified assets, and (3) foreign money. While the IRS or DOJ will most likely not be kicking in your door and arresting you on the spot for failing to report, there are significantly high penalties associated with failing to comply.
In fact, the US government has the right to penalize you upwards of $10,000 per unreported account, per year for a six-year period if you are non-willful. If you are determined to be willful, the penalties can reach 100% value of the foreign accounts, including many other fines and penalties… not the least being a criminal investigation.
Reporting Specified Foreign Assets – FATCA Form 8938
Not all foreign assets must be reported. With that said, a majority of assets do have to be reported on a form 8938. For example, if you have ownership of a foreign business interest or investment such as a limited liability share of a foreign corporation, it may not need to be reported on the FBAR but may need to be disclosed on an 8938.
The reason why you may get caught in the middle of whether it must be filed or not is due largely to the reporting thresholds of the 8938. For example, while the threshold requirements for the FBAR is when the foreign accounts exceed $10,000 in annual aggregate total – and is not impacted by marital status and country of residence – the same is not true of the 8938.
The threshold requirements for filing the 8938 will depend on whether you are married filing jointly or married filing separate/single, or whether you are considered a US resident or foreign resident.
Other Forms – Foreign Business
While the FBAR and Form 8938 are the two most common forms, please keep in mind that there are many other forms that may need to be filed based on your specific facts and circumstances. For example:
- If you are the Beneficiary of a foreign trust or receive a foreign gift, you may have to file Form 3520.
- If you are the Owner of a foreign trust, you will also have to file Form 3520-A.
- If you have certain Ownerships of a foreign corporation, you have to file Form 5471.
- And (regrettably) if you fall into the unfortunate category of owning foreign mutual funds or any other Passive Foreign Investment Companies then you will have to file Form 8621 and possibly be subject to significant tax liabilities in accordance with excess distributions.
Reporting Foreign Income
If you are considered a US tax resident (which normally means you are a US citizen, Legal Permanent Resident/Green-Card Holder or Foreign National subject to US tax under the substantial presence test), then you will be taxed on your worldwide Income.
It does not matter if you earned the money in a foreign country or if it is the type of income that is not taxed in the country of origin such as interest income in Asian countries. The fact of the matter is you are required to report this information on your US tax return and pay any differential in tax that might be due.
In other words, if you earn $100,000 USD in Japan and paid 25% tax ($25,000) in Japan, you would receive a $25,000 tax credit against your foreign earnings. Thus, if your US tax liability is less than $25,000, then you will receive a carryover to use in future years against foreign income (you do not get a refund and it cannot be used against US income). If you have to pay the exact same in the United States as you did in Japan, it would equal itself out. If you would owe more money in the United States than you paid in Japan on the earnings (a.k.a. you are in a higher tax bracket), then you have to pay the difference to the U.S. Government.
3. Streamlined Foreign Offshore Disclosure
What do you do if you reside outside of the United States and recently learned that you’re out of US tax compliance, have no idea what FATCA or FBAR means, and are under the misimpression that you are going to be arrested and hauled off to jail due to irresponsible blogging by inexperienced attorneys and accountants?
If you live overseas and qualify as a foreign resident (reside outside of the United States for at least 330 days in any one of the last three tax years or do not meet the Substantial Presence Test), you may be in for a pleasant surprise.
Even though you may be completely out of US tax and reporting compliance, you may qualify for a penalty waiver and ALL of your disclosure penalties would be waived. Thus, all you will have to do besides reporting and disclosing the information is pay any outstanding tax liability and interest, if any is due. (Your foreign tax credit may offset any US taxes and you may end up with zero penalty and zero tax liability.)
*Under the Streamlined Foreign, you also have to amend or file 3 years of tax returns (and 8938s if applicable) as well as 6 years of FBAR statements just as in the Streamlined Domestic program.
4. Reasonable Cause
Reasonable Cause is different than the above referenced programs. Reasonable Cause is not a “program.” Rather, it is an alternative to traditional Offshore Voluntary Disclosure, which should be considered on a case by case basis, taking the specific facts and circumstances into consideration.
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