Not Filing an FBAR Does Not Mean You Are Going to Jail

Not Filing an FBAR Does Not Mean You Are Going to Jail by Golding & Golding, A PLC

Not Filing an FBAR Does Not Mean You Are Going to Jail by Golding & Golding, A PLC

If you did not file an FBAR, that does not mean you are going to jail. Yet, if you read some Attorney and CPA websites — that’s exactly what you would think. 

These Tax “professionals” are intentionally misstating the law as to Offshore and Foreign Account Reporting in order to “Fear Monger,” or “Scare Monger” unsuspecting people.

Don’t be fooled. Yes, some people do go to jail for FBAR related issues, but typically, it involves other issues, such as:

  • Offshore Tax Havens
  • Aggressive Tax Positions
  • Money Laundering
  • Structuring

There is a difference between being hit with “Willful Penalties,” which have a criminal-like component to them, and actually being charged with a crime.

FBAR – Willful vs. Criminal

While you most likely will not be heading to prison for your non-filing of FBARs, due the introduction of a new IRS International Tax Enforcement Group, your chances of getting hit with FBAR Penalties may increase.

In reality, the civil (non-willful) penalties alone are sufficient to motivate individuals to get into foreign account reporting compliance.

With that said, some people will get hit with criminal-like civil penalties (aka Willful) for the non-filing of FBARs. But, this does not mean they will become subject to actual criminal charges. The chances of being indicted for the non-filing of an FBAR(s) is not common.

To be subject to a criminal charge, the IRS typically has to believe you were willful, refer your matter to the IRS Special Agents, who then have to believe you acted criminal, who then refer the case to the Department of Justice (DOJ) for their own investigation…who then decides whether the U.S. Government should pursue criminal charges.

Here are some important considerations to keep in mind as you scour the net:

The IRS Does Not Put You In Jail

The way some of these desperate attorneys try to scare you is by saying that if you do not file your FBAR, then you will go to jail for five years. First, the IRS cannot put you in jail. You will not receive a notice from the IRS saying you did not file your FBAR, so please report to jail for the next five years.

Rather, the IRS has to conduct an investigation against you. And, the IRS is somewhat limited in their power and scope.

If you were audited and the examiner believed you were willful, the first step would be for the IRS Agent to refer your case to the IRS special agents, who represent the criminal investigation Department of the IRS.

Therefore, if you are reading websites online, and come to the conclusion that you should have filed your FBAR, your first reaction should not be whether you are going to Jail or not – it should be contacting an experienced offshore disclosure attorney to discuss the facts and circumstances of your situation, and assess your specific situation.

Civil vs. Criminal Investigation

The IRS is not required to pursue a criminal investigation in order to levy criminal penalties against you. In other words, the IRS must show that you were willful, in order hit you with willful penalties. They do not need to convict you of a crime. And, not everybody who was found to be willful is indicted for criminal charges.

Rather, the IRS keeps the distinction between willful and non-willful as unclear as possible, so they can reserve the right to try to push as many people as they can into the willfulness category as they can (higher penalties(, if they believe a person acted intentionally or recklessly. This is not the same as being charged with a crime.

Thus, the IRS can issue willful penalties (which are intense), but that does not mean that you are being criminally investigated for a crime. In a recent case, the court found that the IRS can issue criminal penalties in a civil arena, without proving the facts beyond a reasonable doubt (which is the standard for criminal cases).

In other words, if you get the wrong agent on the wrong day and they want to issue willful penalties, while it may connote criminal activity – it does not mean you are under criminal investigation and subject to jail or prison. It means you need to fight the penalties.

Criminal Cases are Rare

The IRS has pursued less than 3000 criminal cases in the last year alone. In other words, out of the millions of individuals who have foreign accounts or offshore accounts, the IRS has indicted minute percentage of them. And, in those cases typically there are many other facts and circumstances that push them into the criminal category.

For example, recently Manafort and Gates were indicted for criminal actions, and part of it included knowingly omitting status of the foreign accounts on their tax returns. While you may have also willfully failed to report your foreign accounts, Manafort, had numerous shell companies, illegal transfers of money and issues involving structuring. They had false companies set up to receive money, which were then transferred into other companies in order to avoid detection.

This is probably different than the few accounts you had overseas that you may believe you should have reported but didn’t. Yes, you should probably enter OVDP to avoid the monstrous penalties the IRS can issue if they find you to be willful, but the chance of criminal indictment is relatively small.

Factors to Consider

In deciding whether the IRS is going to recommend a criminal investigation, there are different factors that they will take into consideration. Some of these factors include:

  • Is the money illegally sourced?
  • Have FBAR or similar penalties been issued previously?
  • Has the person been and indicted previously?
  • How many accounts are there?
  • How did the money travel?
  • Was any of the money laundered?
  • Were their issues involving structuring?
  • With a third-party conduits?

These are just some of the many issues and considerations the IRS will look at in determining the types of penalties they want to issue, and whether they should pursue a criminal investigation.

Therefore, just because you may have intentionally or recklessly disregarded the responsibility to report foreign and offshore accounts, assets, investments, or income does not mean you’re going to prison.

But The Monetary Penalties Can Be High

While most non-criminal individuals we do nearly anything to avoid prison, the monetary penalties alone that the IRS can issue is enough of a reason to consider entering into one of the approved IRS offshore voluntary disclosure programs.

Even a person who was non-willful, can be hit with fines as high as $10,000 per account, per year — upwards of six years. If a person is found to be willful, even though they may not spend five years in prison, the IRS, can pursue a 50% penalty per year for up to the 100% value of the account (Use of the 300%, but to avoid any constitutional issue it appears the IRS has limited collection, to only everything you have in the accounts).

IRS’ New International Tax Enforcement Group 

In order to try to hedge its bets and put itself in the best position to try to collect as much money as possible, the IRS is focusing in large part on international tax – and specifically on penalizing individuals through tax enforcement.

Welcome to the IRS’s new International Tax Enforcement Group program.

New International Tax Program

Prior to 2014 and the enforcement of FATCA (Foreign Account Tax Compliance Act), the IRS has less resources to obtain information regarding your offshore, or foreign accounts.  Many foreign financial institutions were simply not reporting US account holder information to the IRS – and why would they? It’s not as if the Foreign Financial Institutions care about what the IRS thinks….until the introduction of FATCA.

Under FATCA more than 110 foreign countries (50 more countries than the US entered into income tax treaties with) have entered into IGA (intergovernmental agreements) with the IRS to promote reciprocal reporting of account holder information. Primarily, it means your Foreign Financial Institution will probably be reporting your account information to the IRS.

Likewise, more than 300,000 Foreign Financial Institutions have agreed to proactively report this information to the IRS. In fact, even financial institutions in countries that have not signed IGAs are apparently reporting as well (in order to stay in the IRS good graces).

OVDP & Streamlined – Running Out of Time

Since the IRS has many more resources to obtain information than individuals voluntarily complying through one of the approved IRS offshore voluntary disclosure programs. This is primarily due to the fact that the IRS has a limited and finite amount of resources and believes those resources are better allocated to specific enforcement group that can focus exclusively on these issues.

As the IRS has provided, this will be an elite group of agents. We don’t know what that means, but we can at least presume that the agents will have some additional and specialized training in offshore reporting matters.

In fact, the IRS is touting these new agents as experts in the field of international tax law. These are agents who have the experience and the knowledge to properly investigate these types of intricate and complicated international tax matters.

What Should You Do?

Even though IRS offshore voluntary disclosure is all we presently handle at our law firm, we never want a client to ever feel pressured or prematurely enter into the disclosure program.

With that said, it does appear that the time for entering the program may be limited or cut short without much forewarning. Therefore, if you are already out of compliance for your offshore and foreign accounts, assets, investments, and income and want to get into compliance-now may be the best time to do it.

OVDP Attorney 

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
  • Opt-Out
  • Argue a FAQ 55 Penalty Reduction

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.

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.

We Take OVDP 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.

Contact Us Today, We Can Help You.