IRS (IRM) Voluntary Disclosure vs. Reasonable Cause Penalty Waiver (Golding & Golding)

IRS (IRM) Voluntary Disclosure vs. Reasonable Cause Penalty Waiver (Golding & Golding)

IRS (IRM) Voluntary Disclosure vs. Reasonable Cause Penalty Waiver 

Reasonable Cause and the IRS Voluntary Disclosure Program are not the same. When a person submits to Reasonable Cause, they are asking the IRS to waive any penalties, based on the fact that the person acted without intent or reckless disregard — and deserves a break (aka penalty waiver).

Voluntary Disclosure vs. Reasonable Cause

Alternatively, when a person submits to IRS Voluntary Disclosure Program, they are acknowledging that they did something wrong, and want to fix it.

They are not making the claim that they should be spared a penalty — just that the amount of the penalty should be reduced.

The person is hoping to avoid 75% fraud penalties, FBAR and Evasion penalties…and sidestep a criminal investigation

IRS (IRM) Voluntary Disclosure vs. Reasonable Cause 

The following is a summary of the two different types of programs:

IRS Voluntary Disclosure (IRM)

The traditional IRS Voluntary Disclosure Program has been on the books for many years. It can be found in the IRM (Internal Revenue Manual)

Once OVDP was introduced, individuals and businesses with foreign income (along with possible U.S. unreported income) typically preferred OVDP to the IRM Voluntary Disclosure.

Why? Because the procedures were more transparent, the penalty structure more secure, and it had a near guarantee of avoiding a criminal investigation or audit.

So while for some people the penalty amount for OVDP was severe, when the penalty amount was offset against the potential penalties for tax fraud and tax evasion (along with willful FBAR penalties and a possible jail sentence) – the penalties were not so bad.

IRS (IRM) Voluntary Disclosure Practice

Let’s focus on how the non-OVDP IRS Voluntary Disclosure Practice (program) works:

What Must Be Included in the Letter?

Instead of providing exact instructions, the IRS provides guidelines and examples. Here, the Guidelines for voluntary disclosure provide that the IRS requires that a taxpayer include the following in their disclosure:

Willingness to Cooperate

A taxpayer shows a willingness to cooperate (and does in fact cooperate) with the IRS in determining his/her correct tax liability.

Good-Faith Effort

The taxpayer makes good faith arrangements with the IRS to pay in full, the tax, interest, and any penalties determined by the IRS to be applicable.

The Submission Must be Timely

In order for an IRM Voluntary Disclosure submission to be timely, it must be:

Not Under Personal IRS Examination

The IRS has initiated a civil examination or criminal investigation of the taxpayer, or has notified the taxpayer that it intends to commence such an examination or investigation.

Hopefully, Nobody Snitched on You

The IRS has received information from a third party (e.g., informant, other governmental agency, or the media) alerting the IRS to the specific taxpayer’s noncompliance.

No Directly Related IRS Examination

The IRS has initiated a civil examination or criminal investigation which is directly related to the specific liability of the taxpayer.

No Criminal Action Initiated

The IRS has acquired information directly related to the specific liability of the taxpayer from a criminal enforcement action (e.g., search warrant, grand jury subpoena).

What Type of Letter is Submitted?

Unlike the pre-clearance letter in the traditional OVDP, there is no set introductory letter that is submitted for the IRM program. Rather, the Internal Revenue Manual provides examples of what a proper disclosure may consistent of.

Here are examples examples provided by the IRS:

Example 1 (Attorney Letter and Amended Returns)

A letter from an attorney which encloses amended returns from a client which are complete and accurate (reporting legal source income omitted from the original returns), which offers to pay the tax, interest, and any penalties determined by the IRS to be applicable in full and which meets the timeliness standard set forth above. 

Example 2 (Barter Exchange)

A disclosure made by a taxpayer of omitted income facilitated through a barter exchange after the IRS has announced that it has begun a civil compliance project targeting barter exchanges but before it has commenced an examination or investigation of the taxpayer or notified the taxpayer of its intention to do so. In addition, the taxpayer files complete and accurate amended returns and makes arrangements with the IRS to pay in full, the tax, interest, and any penalties determined by the IRS to be applicable.

Example 3 (Tax Scheme, IRS Compliance Project)

A disclosure made by a taxpayer of omitted income facilitated through a widely promoted scheme that is the subject of an IRS civil compliance project. Although the IRS already obtained information which might lead to an examination of the taxpayer, it not yet commenced any such examination or investigation or notified the taxpayer of its intent to do so. In addition, the taxpayer files complete and accurate returns and makes arrangements with the IRS to pay in full, the tax, interest, and any penalties determined by the IRS to be applicable.

Example 4 (Unfiled Returns, IRS Notice)

A disclosure made by an individual who has not filed tax returns after the individual has received a notice stating that the IRS has no record of receiving a return for a particular year and inquiring into whether the taxpayer filed a return for that year. The individual files complete and accurate returns and makes arrangements with the IRS to pay, in full, the tax, interest, and any penalties determined by the IRS to be applicable. This is a voluntary disclosure because the IRS has not yet commenced an examination or investigation of the taxpayer or notified the taxpayer of its intent to do so and because all of the elements set forth in (3), above have been met.

What are Disqualifying Factors?

The IRS has listed various factors that will disqualify a person from successfully making an IRS Voluntary Disclosure. These factors include:

If a taxpayer expresses an interest in making a voluntary disclosure, he/she must be asked the following questions to determine if potential disqualifying factors exist:

  • Are you currently the subject of a criminal investigation or civil examination? (If yes, specify)
  • Has the IRS notified you that it intends to commence an examination or investigation? (If yes, specify)
  • Are you under investigation by any law enforcement agency? (If yes, specify)
  • Is the source of any of your income from illegal activity? 
  • Do you have any reason to believe that the IRS has obtained information concerning your tax liability? (If yes, specify.)

*If the taxpayer responds yes to any of the above questions, the facts and circumstances of each investigation must be clarified to determine if it is a disqualifying factor.

How Does the IRS Evaluate the Disclosure?

As with most issues that have a criminal aspect to it, it is typically the IRS Special Agents who will evaluate the submission.

As provided by the IRS:

– Special agents will evaluate disclosures to determine if the information provided is truthful and complete, and shall make a recommendation to the SAC, as to whether or not the taxpayer has met all voluntary disclosure practice criteria.

– The evaluation should be completed as expeditiously as possible, ideally within 10 working days or less from the date the complete voluntary disclosure communication from the taxpayer has been received. The SAC should be apprised if an evaluation cannot be completed within 30 days.

As part of the evaluation process special agents will query the following databases:

  • The Criminal Investigation Management Information System (CIMIS)
  • Integrated Data Retrieval System (IDRS)
  • The Currency and Banking Retrieval System (CBRS) Database
  • The National Crime Information Center Database (NCIC)

– The special agent needs to query all applicable databases during the evaluation process of the voluntary disclosure matter including a national query for criminal investigations within the CIMIS database as noted above.

– If the indices checks (or any other evaluative steps) disclose potentially disqualifying information the taxpayer should be contacted and offered an opportunity to provide an explanation.

– If a satisfactory explanation cannot be provided, this may constitute a disqualifying factor.

– If the indices checks disclose no disqualifying information, the voluntary disclosure will be referred to the SAC, with a recommendation that the matter be forwarded to SB/SE or LB&I Offshore Identification Unit.

What if You Don’t Make the Cut?

Like with any audition or tryout, not everyone makes the team, gets the part…or is accepted into IRS Voluntary Disclosure.

As provided by the IRS:

– If the SAC determines that a disclosure does not meet all IRS voluntary disclosure criteria, a letter will be sent to the taxpayer informing them of the reason(s) he/she is ineligible to participate in the IRS’s voluntary disclosure practice. It is not necessary to cite specific reasons for the rejection if it would compromise an ongoing investigative matter.

– Criminal Investigation will evaluate the criminal potential of all negative evaluations. Therefore, the assigned special agent should initiate a PI number within CIMIS. This PI number is a separate number from the voluntary disclosure number. If the matter is not acceptable for investigation, it will be forwarded to PSP for whatever action they deem appropriate.

Reasonable Cause 

If you were completely non-willful in your failure to disclosure and were unaware that there was any reporting requirement, then the thought of paying any penalty may sound absurd. Here are three examples in which paying any penalty for your undisclosed foreign accounts may seem unfair.

Reasonable Cause Examples

Example 1: 80-year-old Michael travels worldwide and has 3 accounts in different countries. He only uses the foreign money when he is in the foreign country at issue, he never transfers the money to the US, and there is usually a relatively small amounts of money in each account. The only issue for Michael was that at one point, Michael thought about purchasing a home overseas and left the money in the foreign account for a significant period of time (including 12/31). Foreign taxes were fully paid on the money deposited into the account and foreign taxes were paid on the income the account generated. His only mistake was that he did not report the account and/or the foreign income on his U.S. Tax Return.

Example 2: Michelle, a widow who had never been in trouble with the law, moved to the United States over 30 years ago but has a $1 million USD foreign pension from a private employer through the early 1970s. She has never accessed the account nor has she contributed (or anyone else contributed) since arriving in the United States. The account/earnings are not taxed in the US until distributed, there have been no distributions, and Michelle never reported the account on an FBAR or 8938.

Example 3: David has a foreign account, which he received as an inheritance. He never touched the money, and even though the account earns minimal annual income, there is no tax for passive income in this particular country. He has no other ties to the country and has not used any of the money. David’s son has special needs and he needs to access a large chunk of the money in a short period of time. He has not reported the account on an FBAR or 8938.

Reasonable Cause – Viable Option

As you can see from the aforementioned examples, none of these individuals had any intent whatsoever to perform tax evasion. Moreover, the amount of income earned is relatively minor compared to the outstanding amount in the foreign accounts. In addition, in the case of Michelle, the majority of her money is it a pension account which is not even taxed by the US. Thus, even under the streamlined program she would be paying $50,000 in penalties for an account in which all of the money was earned and reported timely in her foreign country and all foreign taxes were paid on the contributions.

Reasonable Cause – Process

An individual should never attempt offshore disclosure without the assistance of a qualified attorney. With that said, it is even more important to ensure that if you are even considering a reasonable cause submission, that you do so only with the help of an attorney. That is because only with an attorney do you receive the benefit of the attorney-client privilege.

Unlike the Streamlined Program or OVDP where there are strict procedures to be followed, a reasonable cause submission is different. It should be noted that a person can submit a reasonable cause application for any number of different reasons; it is not limited only to offshore money and reporting foreign accounts.

With a reasonable cause submission, the attorney will carefully evaluate and analyze the facts and circumstances of your case in detail. He or she should sit down with you either person or via teleconference if you are non-local and assess the pros and cons of the potential submission in order to determine what the benefits and detriments may be to a reasonable cause disclosure. Thereafter the attorney will amend the returns, prepare the necessary forms, and draft a persuasive Reasonable Cause Letter.

At Golding & Golding, we are Tax Attorneys (with Masters of Tax Law) and Enrolled Agents credentialed by the IRS (Highest Credential awarded by the IRS), so we handle your entire submission (Taxes, Legal, and Audit Defense) in-house, for a flat-fee.

Benefits of Reasonable Cause

The main benefit of reasonable cause is that if it is accepted by the Internal Revenue Service then there is a good chance that penalties will be waived. As a result, when you report your foreign accounts and you can show that your failure to report them prior was due to reasonable cause, you will not be penalized for un-filed forms, including:

  • FBARs (FinCEN 114) – Report of Foreign Bank and Financial Accounts
  • FATCA Form 8938 – Statement Of Specified Foreign Assets
  • 5471 – US Ownership of Foreign Companies.
  • 8621 – US Ownership of Passive Foreign Investment Companies
  • 3520 – Foreign Trust Beneficiary
  • 3520-A Foreign Trust Ownership

This may result in a significant savings versus offshore disclosure – especially when you have significant unreported accounts and assets overseas and minimal income.

Detriments of Reasonable Cause

Reasonable cause does not come without its risks. If the reasonable cause statement is rejected, then you may be subject to fines and penalties that are higher than would have been issued under the Streamlined Program. 

Nevertheless, if penalties are issued, then you are entitled to appeal the penalties and thereafter file with the US Tax Court if you are still unsatisfied with the appeals process. Of course, this may take a lot of time and effort – not to mention attorneys fees depending on the seriousness of the fines and the facts of your case – which is counterintuitive.

Common Questions to Consider – Reasonable Cause

Before convincing yourself that you should be spared any penalty, it’s important to look at the facts and circumstances of your case in the most objective light as possible.

Here’s a list of questions you may consider before making your decision:

  • How many forms did you fail to report?
  • How much unreported foreign income did you have?
  • For how long did you fail to report these forms?
  • Did you work with a CPA, Enrolled Agent, or Tax Accountant and prepare your returns?
  • Did the CPA, Enrolled Agent, or Tax Accountant ask you about your foreign accounts or Foreign Income?
  • Have you otherwise filed your U.S. tax returns timely?
  • Did you pay Foreign Tax on the Foreign Earnings (unless exempt in the Foreign Country)
  • Are you originally from the United States and how long have you been in the United States filing tax returns?
  • How much unreported foreign income do you have?
  • Did a foreign financial institution inform you of your requirement to get FATCA or IRS Tax Compliant?
  • Are you prepared to go the distance and appeal the matter or even bring it the Tax Court if it is rejected?

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.

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.

International Tax Attorney (Specialist) Offshore Asset & Account Disclosure

International Tax Attorney (Specialist) Offshore Asset & Account Disclosure

Golding & Golding: Our international tax lawyers practice exclusively in the area of IRS Offshore & Voluntary Disclosure. We represent clients in 70+ different countries. Managing Partner Sean M. Golding is a Board-Certified Tax Law Specialist Attorney (a designation earned by < 1% of attorneys nationwide.). He leads a full-service offshore disclosure & tax law firm. Sean and his team have represented thousands of clients nationwide & worldwide in all aspects of IRS offshore & voluntary disclosure and compliance during his 20-year career as an Attorney.

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.
International Tax Attorney (Specialist) Offshore Asset & Account Disclosure

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