Offshore Tax Avoidance vs. Evasion (Tips, Examples & Solutions)
Offshore Tax Avoidance vs. Evasion (Tips, Examples & Solutions)
This is a question we receive often, and it is a very good question. How someone determines whether the activities they are doing is a form of tax planning (which is creative and perfectly legal) or a form of tax fraud or tax evasion (which is illegal) is a very important analysis.
The differences between them are not that disparate. Rather, oftentimes whether or not someone was acting legally or illegally would depend on the timing of the avoidance.
Offshore Tax Avoidance vs. Evasion
David decides he wants to launch his own foreign company. It is less expensive for him to form a company overseas (as a wholly-owned subsidiary) in order to operate overseas, than it would be to create a company in the United States to operate overseas — since he still has to register the company abroad (usually in each country it operates in) in order to conduct foreign business.
In addition, the tax liability would be different for let’s say an S Corp. or LLC that is formed in the United States and operating internationally versus a wholly-owned subsidiary of a particular country that might only operate in that one country (aka Foreign Tax Credit Limitations, R&D Credits, etc.).
David Forms a Sociedad Anonima
David’s goal is to own numerous rental properties throughout Costa Rica and Nicaragua. Through his work overseas, David has made numerous connections in these two different countries and believes it could be a moneymaker in the future.
As a result, David starts with Costa Rica. He forms a Sociedad Anonima. We have written numerous blogs about this type of corporation because it is a bit of an oddity; it is one of the primary types of entities that is formed in Latin American countries, and even though oftentimes it is used for estate planning and to hold real estate, United States identifies it as an IRC 301 per se corporation.
In other words, when David has to file his form 5471, he will not have the option to disregard the entity as is common with LLCs within the United States. Rather, the Corporation maintains default corporate status.
Is there anything illegal about David opening a Sociedad Anonima? No.
David Doesn’t Want a Controlled Foreign Corporation (CFC)
David does not want the Corporation to be a Controlled Foreign Corporation, because then David will be subject to subpart F income. David is not really sure what that means, but after having a few consultations with different experienced International Tax Attorneys, the recurring theme is that subpart F income revolves around passive income and it may be taxed even if it is not distributed.
David hopes that owning rental properties and bed-and-breakfasts worldwide will become his only source of income. Therefore, David offers ownership in the company to three other individuals who are non-US persons, instead of just limiting it one non U.S. local Person (usually a Sociedad Anonima will require at least one local person to own 10% of the corporation).
What’s So Bad About a CFC
Briefly, a Controlled Foreign Corporation means the Corporation is owned more than 50% by U.S. persons, with each owning at least 10% share — with attribution rules applied (husband-and-wife would be considered owners of each other’s share).
If it is a Controlled Foreign Corporation and depending on if there is current year earning profits (E&P), there could be immediate tax liability with subpart F income — even it has not ever been distributed to David.
If it is just a foreign corporation, then the same rules do not apply.
David Does Not Take any Distributions nor Salary
Since it is not a US corporation and does not operate in the United States, the Corporation is not subject to US tax law. Issues such as Mandated Salary, Earnings and Profit (E&P), Accumulated Earnings Tax (AET) and other very boring corporate tax laws are not applicable.
In addition, David is not taking any salary. As a result, during the early years, David is not earning any income.
Is this legal? Yes, under most situations it would be. Presuming the Corporation is acting properly under its own jurisdiction, the United States does not have authority over the Corporation. Therefore, reasonable salary and other related issues that oftentimes impact S-corporations and C-Corporations in the United States may not impact the foreign corporations.
If the corporation begins to purchase US Situs or make US investments, the rules may change. But with its current status as a foreign corporation, in which David holds a minority interest, which does not operate in the United States, or own any US assets (and is not a controlled foreign corporation) it may mean that there is no tax liability to David unless he receives income.
**There are a number of different loopholes, exclusions, and exemptions to consider but from a tax avoidance standpoint, David is acting legally.
Illegal Offshore Tax Avoidance
Peter is not as astute as David. Peter is looking to earn money in the low tax jurisdiction and do his best to avoid any current income tax – but he still wants the money and he wants it now.
Therefore, Peter opens up the same type of corporation in Costa Rica. Peter has about $2 million of investment that he’s looking to invest outside of the United States.
Just as David did in the previous example, Peter opens up his own Sociedad Anonima. But, unlike David, Peter doesn’t trust anybody. Therefore, Peter will be the sole owner of the Sociedad Anonima — aside from the strawman that he uses as the 10% owner that is required by local law.
Is there anything illegal about this setup? No. But, since Peter is a US person who owns more than 50% of the business, it will be considered a controlled foreign corporation.
Peter Invests in Rentals and Mutual Funds
Peter decides to purchase different foreign mutual funds under the corporate name. The mutual funds and rental property immediately begin generating income. The income is distributed to Peter, but instead of Peter having it distributed to him, he has it distributed to a BVI he’s owned since 2004 and before the BVI shares need to be registered.
Peter’s BVI is receiving about $200,000 a year in income.
Must Peter report the income? Yes. Even though Peter hasn’t received the money personally, the money is most likely going to be considered subpart F income. Moreover, even though Peter owns the BVI 100% himself and it is technically an entity – it is also a controlled foreign corporation owned entirely by Peter.
Therefore, anything that was distributed to the BVI would have to be reported by Peter as income since it is passive income and distributed to the BVI – which Peter owns.
Peter Does Not Report the Income
Peter keeps the money in Hong Kong. Even though the money was issued to the BVI, the address of the BVI is in Hong Kong – which is very common. The money is accumulating in a bank account in Hong Kong of which Peter is the only owner and signatory.
Peter has done a lot of business with this particular bank over the years and therefore the bank does not ask Peter any questions about the source of the money.
Peter Files Tax Returns
Peter understands that he is a US citizen with a Social Security number, and he has been filing tax returns every year for his entire adult life. Therefore, it would be somewhat strange if Peter suddenly stopped filing taxes.
When it comes time to file his tax returns, all Peter reports is the consulting income he earns from a California LLC for consulting he does in California. Moreover, Peter uses a CPA and even though Peter has not told the CPA about these other investments, Peter has confirmed to the CPA when he was asked that he does not have any foreign or offshore investments or income.
What Reporting Errors has Peter made?
Peter has violated US tax law and may get himself in some serious trouble. Here are the main issues Peter will have to contend with and why his actions are illegal and considered tax avoidance:
Peter Did Not Report the Income
Since Peter is the primary owner of the foreign business, it is a controlled foreign corporation, and it earned passive income, Peter is required to report this information on his taxes and claim it as income. Without getting into too much detail, Peter’s company is a foreign personal holding company and earns all of its income at the current time from dividends and interest.
For purposes of this case, you can presume that there are no related entity exceptions to the dividend distributions or look through exceptions.
As such, Peter was required to report these earnings as income. Peter’s CPA is a well-versed CPA on international tax law. Peter knew this so the fact that he purposely did not tell his CPA about these earnings further alludes to his willfulness in the criminal aspect of his nondisclosure.
Peter Did Not Report the Accounts
In addition, Peter did not report his foreign accounts. Even though Peter is not the owner of the account, Peter is the only signature authority on the account and the main account holder is a corporation that Peter is the 100% owner of. As such, Peter is required to report these accounts on the annual FBAR and FATCA Form 8938.
Peter did Not File a Form 5471 or 8621
Since Peter did not want to report this information to either the CPA or the IRS, he did not complete the necessary forms 5471 or 8621. These are reporting forms that are required for individuals who have a certain percentage ownership of various foreign entities. Since Peter is the 90% owner and 100% owner respectively of these foreign corporations, Peter would be required to report the information to the IRS.
Peter Can Get in Real Trouble
If Peter is not careful – and even if he is – Peter could get into some serious trouble if the IRS finds him. He knowingly did not report foreign income nor disclose offshore accounts and file the forms necessary to report his foreign businesses.
He has hundred thousands of dollars per year in unreported income and it is clear that by using these types of foreign businesses he had the intent to evade tax.
What Can Peter Do – Offshore Disclosure
Since Peter’s income was earned legally, Peter may have the opportunity to enter OVDP. Under the traditional OVDP (offshore voluntary disclosure program), Peter may agree to pay a fine/penalty to avoid much larger fines and penalties as well as significantly reduce any chance of any criminal prosecution against him by the IRS.
The IRS finds Peter first and Peter is under examination or audit for any reason, he loses the right to enter the program.
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:
Instead of providing exact instructions, the IRS provides guidelines and examples.
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.
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.
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.
IRS Voluntary Disclosure is All We Do!
We represent all different types of clients. High net-worth investors (over $40 million), smaller cases ($100,000) and everything in-between.
We represent clients in over 60 countries and nationwide, with all different types of assets, including (each link takes you to a Golding & Golding free summary):
- Unfiled Tax Returns
- Unreported Income Penalties
- International Tax Investigations (FATCA and more)
- FBAR Investigations
- International Tax Evasion
- Structuring Investigations
- Eggshell and Reverse Eggshell Audits
- Divorce and Offshore Accounts
- Foreign Mutual Funds
- Foreign Life Insurance
- Fixing Quiet Disclosure
- Foreign Real Estate Income
- Foreign Real Estate Sales
- Foreign Earned Income Exclusion
- Subpart F Income
- Foreign Inheritance
- Foreign Pension
- Form 3520
- Form 5471
- Form 8621
- Form 8865
- Form 8938 (FATCA)
Who Decides to Enter IRS Voluntary Disclosure
All different types of people submit to IRS Voluntary Disclosure. We represent Attorneys, CPAs, Doctors, Investors, Engineers, Business Owners, Entrepreneurs, Professors, Athletes, Actors, Entry-Level staff, Students, and more.
You are not alone, and you are not the only one to find himself or herself in this situation.
Sean M. Golding, JD, LL.M., EA – Board Certified Tax Law Specialist
Our Managing Partner, Sean M. Golding, JD, LLM, EA is the only Attorney nationwide who has earned the Certified Tax Law Specialist credential and specializes in IRS Offshore Voluntary Disclosure and closely related matters.
In addition to earning the Certified Tax Law Certification, Sean also holds an LL.M. (Master’s in Tax Law) from the University of Denver and is also an Enrolled Agent (the highest credential awarded by the IRS.)
He is frequently called upon to lecture and write on issues involving IRS Voluntary Disclosure.
Less than 1% of Tax Attorneys Nationwide
Out of more than 200,000 practicing attorneys in California, less than 400 attorneys have achieved this Certified Tax Law Specialist designation.
The exam is widely regarded as one of (if not) the hardest tax exam given in the United States for practicing Attorneys. It is a designation earned by less than 1% of attorneys.
Our International Tax Lawyers represent hundreds of taxpayers annually in over 60 countries.
IRS Penalty List
The following is a list of potential IRS penalties for unreported and undisclosed foreign accounts and assets:
A Penalty for failing to file FBARs
United States citizens, residents and certain other persons must annually report their direct or indirect financial interest in, or signature authority (or other authority that is comparable to signature authority) over, a financial account that is maintained with a financial institution located in a foreign country if, for any calendar year, the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the year. The civil penalty for willfully failing to file an FBAR can be as high as the greater of $100,000 or 50 percent of the total balance of the foreign financial account per violation. See 31 U.S.C. § 5321(a)(5). Non-willful violations that the IRS determines were not due to reasonable cause are subject to a $10,000 penalty per violation.
FATCA Form 8938
Beginning with the 2011 tax year, a penalty for failing to file Form 8938 reporting the taxpayer’s interest in certain foreign financial assets, including financial accounts, certain foreign securities, and interests in foreign entities, as required by IRC § 6038D. The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 3520
Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts. Taxpayers must also report various transactions involving foreign trusts, including creation of a foreign trust by a United States person, transfers of property from a United States person to a foreign trust and receipt of distributions from foreign trusts under IRC § 6048. This return also reports the receipt of gifts from foreign entities under IRC § 6039F. The penalty for failing to file each one of these information returns, or for filing an incomplete return, is the greater of $10,000 or 35 percent of the gross reportable amount, except for returns reporting gifts, where the penalty is five percent of the gift per month, up to a maximum penalty of 25 percent of the gift.
A Penalty for failing to file Form 3520-A
Information Return of Foreign Trust With a U.S. Owner. Taxpayers must also report ownership interests in foreign trusts, by United States persons with various interests in and powers over those trusts under IRC § 6048(b). The penalty for failing to file each one of these information returns or for filing an incomplete return, is the greater of $10,000 or 5 percent of the gross value of trust assets determined to be owned by the United States person.
A Penalty for failing to file Form 5471
Information Return of U.S. Persons with Respect to Certain Foreign Corporations. Certain United States persons who are officers, directors or shareholders in certain foreign corporations (including International Business Corporations) are required to report information under IRC §§ 6035, 6038 and 6046. The penalty for failing to file each one of these information returns is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return.
A Penalty for failing to file Form 5472
Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business. Taxpayers may be required to report transactions between a 25 percent foreign-owned domestic corporation or a foreign corporation engaged in a trade or business in the United States and a related party as required by IRC §§ 6038A and 6038C. The penalty for failing to file each one of these information returns, or to keep certain records regarding reportable transactions, is $10,000, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency.
A Penalty for failing to file Form 926
Return by a U.S. Transferor of Property to a Foreign Corporation. Taxpayers are required to report transfers of property to foreign corporations and other information under IRC § 6038B. The penalty for failing to file each one of these information returns is ten percent of the value of the property transferred, up to a maximum of $100,000 per return, with no limit if the failure to report the transfer was intentional.
A Penalty for failing to file Form 8865
Return of U.S. Persons With Respect to Certain Foreign Partnerships. United States persons with certain interests in foreign partnerships use this form to report interests in and transactions of the foreign partnerships, transfers of property to the foreign partnerships, and acquisitions, dispositions and changes in foreign partnership interests under IRC §§ 6038, 6038B, and 6046A. Penalties include $10,000 for failure to file each return, with an additional $10,000 added for each month the failure continues beginning 90 days after the taxpayer is notified of the delinquency, up to a maximum of $50,000 per return, and ten percent of the value of any transferred property that is not reported, subject to a $100,000 limit.
Fraud penalties imposed under IRC §§ 6651(f) or 6663
Where an underpayment of tax, or a failure to file a tax return, is due to fraud, the taxpayer is liable for penalties that, although calculated differently, essentially amount to 75 percent of the unpaid tax.
A Penalty for failing to file a tax return imposed under IRC § 6651(a)(1)
Generally, taxpayers are required to file income tax returns. If a taxpayer fails to do so, a penalty of 5 percent of the balance due, plus an additional 5 percent for each month or fraction thereof during which the failure continues may be imposed. The penalty shall not exceed 25 percent.
A Penalty for failing to pay the amount of tax shown on the return under IRC § 6651(a)(2)
If a taxpayer fails to pay the amount of tax shown on the return, he or she may be liable for a penalty of .5 percent of the amount of tax shown on the return, plus an additional .5 percent for each additional month or fraction thereof that the amount remains unpaid, not exceeding 25 percent.
An Accuracy-Related Penalty on underpayments imposed under IRC § 6662
Depending upon which component of the accuracy-related penalty is applicable, a taxpayer may be liable for a 20 percent or 40 percent penalty
Possible Criminal Charges related to tax matters include tax evasion (IRC § 7201)
Filing a false return (IRC § 7206(1)) and failure to file an income tax return (IRC § 7203). Willfully failing to file an FBAR and willfully filing a false FBAR are both violations that are subject to criminal penalties under 31 U.S.C. § 5322. Additional possible criminal charges include conspiracy to defraud the government with respect to claims (18 U.S.C. § 286) and conspiracy to commit offense or to defraud the United States (18 U.S.C. § 371).
A person convicted of tax evasion
Filing a false return subjects a person to a prison term of up to three years and a fine of up to $250,000. A person who fails to file a tax return is subject to a prison term of up to one year and a fine of up to $100,000. Failing to file an FBAR subjects a person to a prison term of up to ten years and criminal penalties of up to $500,000. A person convicted of conspiracy to defraud the government with respect to claims is subject to a prison term of up to not more than 10 years or a fine of up to $250,000. A person convicted of conspiracy to commit offense or to defraud the United States is subject to a prison term of not more than five years and a fine of up to $250,000.
What Should You Do?
Everyone makes mistakes. If at some point that you should have been reporting your foreign income, accounts, assets or investments the prudent and least costly (but most effective) method for getting compliance is through one of the approved IRS offshore voluntary disclosure program.