OVDP Lawyers | Foreign Holding Company and Bank Account Registration – International Tax
The IRS Offshore Voluntary Disclosure Program (OVDP) is becoming more and more popular as the FATCA noose tightens. The main motivation for many individuals in applying for OVDP is the fact that under FATCA (Foreign Account Tax Compliance Act) the United States is enforcing international tax compliance laws, which could lead to very high penalties, fines, and criminal prosecution.
As such, registering foreign accounts in your offshore holding company is no longer a bulletproof way to avoid foreign account disclosure.
Foreign Holding Company
The main reason why foreign holding companies had become such popular business tools (especially for individuals seeking to avoid U.S. detection) is because of the very relaxed corporate requirements in terms of annual reporting and disclosure. Generally, the jurisdictions which promote their holding companies to U.S. clients do not have the same annual reporting requirements as many other types of companies and therefore it is easier to keep the information confidential. Moreover, there are not any specific capitalization requirements as there are for many other countries informing the corporation (such as forming a KK in Japan)
Foreign Holding Company Tax Treatment
Beyond confidentiality, there is also a tax benefit for holding companies in Tax Haven, which that when a person is not a resident of the country in which the holding company is formed (such as in BVI), dividends, interest, royalties, rents, compensations and other amounts paid (in addition to Capital Gains) are exempt from the provisions of the Income Tax Act. Moreover, there is no estate, inheritance, succession or gift tax, rate, duty, levy or other charge is payable by persons who are not resident in the Tax Haven country.
Previously, before the introduction of FATCA, US taxpayers could more easily hide or shield their foreign assets in foreign holding companies for the purpose of avoiding detection by the IRS.
There are legitimate reasons for placing for property into a foreign holding company, but for many years the use of these foreign holding companies was for the sole purpose of confidentiality, along with avoiding having to disclosure foreign accounts, assets, and income.
U.S. Persons and Worldwide Income
Beyond the reporting requirements under FATCA, a US person is still required to report their worldwide income and file necessary forms when they have a foreign corporation such as 5471. Specifically, since the United States taxes US persons (US Citizens, Legal Permanent Residents, Foreign Nationals Subject to US Income Tax) on their worldwide income, even if the earnings are in a foreign Holding Company. The owners of the Holding Company are still required to be reported on a US tax return (even if the income is not distributed, because under CFC rules the US person may still be liable for tax)
With the introduction of FATCA, it is becoming a lot harder for individuals to fly below the radar and maintain confidentiality in businesses structures such as overseas Holding Companies. Worse yet, if a person is discovered by the IRS, DOT or DOJ to have offshore properties, assets and/or income in their control – whether individually or through a foreign holding company- stiff penalties and criminal investigation may follow.
If you knowingly or willfully held property and/or accounts in a Foreign Holding Company, you may consider entering the offshore voluntary disclosure program to reduce your penalties and try to avoid criminal prosecution.
It is nearly impossible to turn on the news these days and not hear something about international tax law. Whether it is the implementation and enforcement of FATCA (Foreign Account Tax Compliance Act), the reporting requirements under the FBAR Rules (Report of Foreign Bank and Financial Accounts), or the discovery of additional Foreign Banks and Foreign Financial Institutions that helped U.S. Taxpayers facilitate offshore tax evasion, international tax law is big news – and big business.
To date, the IRS has recovered billions of dollars from individuals and businesses that have submitted under OVDP (Offshore Voluntary Disclosure Program) and there is no sign of the IRS slowing down their enforcement activities.
Golding and Golding are very experienced OVDP lawyers. Our International Tax Lawyers have represented applicants in OVDP and Streamlined Applications worldwide in over 35 countries.
This page is designed to provide you a basic summary of OVDP, as well as the the interplay between OVDP and FATCA.
OVDP and FATCA – An Introduction
As a US taxpayer (US citizens, Legal Permanent Residents, and Foreign Nationals otherwise subject to US income tax and reporting requirements) you are required to report and disclose your foreign bank accounts, foreign financial accounts, and certain offshore assets – as well as report your foreign income on an FBAR, Schedule B, and 8938 Form.The main reason for the United States’ sudden interest in international tax law is because the Internal Revenue Service (IRS) has recovered billions of dollars from taxpayers who did not comply with international tax law filing requirements.
Examples of Reportable Accounts include:
- Foreign Bank Accounts
- Foreign Savings Accounts
- Foreign Investment Accounts
- Foreign Securities Accounts
- Foreign Mutual Funds
- Foreign Trusts
- Foreign Retirement Plans
- Foreign Business and/or Corporate Accounts
- Insurance Policies
- Foreign Accounts held in a CFC (Controlled Foreign Corporation); or
- Foreign Accounts held in a PFIC (Passive Foreign Investment Company)
The failure to timely and properly report foreign income and overseas assets and accounts can result in staggeringly high penalties, which the Internal Revenue Service enforces against all taxpayers. If you find yourself in this impossible situation, what are your options?
The most common option for individuals and businesses that have unreported and undisclosed offshore and foreign accounts is to enter the OVDP (Offshore Voluntary Disclosure Program). OVDP is the International Tax Law Program for U.S. Taxpayers (including Legal Permanent Residents and Expats) seeking IRS tax law compliance. The main reason why people enter the OVDP program is because by doing so they can almost always avoid criminal prosecution of their international tax crimes.
Minimal Unreported Foreign Income
It is important to keep in mind that “Account Values” and “Culpability” are two completely different concepts. In other words, knowingly or willfully failing to report offshore assets and foreign income, no matter how small, is considered tax evasion and/or tax fraud and can subject a person to criminal prosecution and penalties reaching 100% of the account value (as well as outstanding taxes, interest and other fines).
Why Enter the OVDP Program?
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 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.
What Type of Accounts Qualify Under OVDP?
Any account that would have to be included on either an FBAR or 8938 form as well as additional income generating assets such as rental properties. 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 at Foreign Financial Institutions 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 are the Requirements of OVDP?
The goal of OVDP is to bring individuals and businesses with unreported foreign and overseas accounts and income into U.S. Tax law compliance. While the requirements may seem overwhelming, if you select an international tax attorney who is experienced in handling these types of submissions, it can be a fairly simple routine — even in this sophisticated area of law — while providing you protection under the Attorney-Client Privilege.
The Result: A stress-free compliance plan program that works for you, your family, and your business to bring you into compliance!
The Key points to OVDP are as follows:
OVDP Pre-Clearance Letter
First, the OVDP Applicant submits a request to enter the OVDP Program (Pre-Clearance). The OVDP pre-clearance letter is simple and straightforward. Essentially, the taxpayer is asking Internal Revenue Service’s criminal investigation unit whether they will qualify for submission. In other words, before a taxpayer is required to divulge all of his/her foreign financial information to the IRS, the taxpayer will have the opportunity to know if they qualify for the program.
For the most part, Pre-Clearance is standard procedure and unless the taxpayer is under a criminal investigation by the Internal Revenue Service or other government authority, the applicant should qualify for the program.
IRS Criminal Investigation Unit Evaluation
The IRS Criminal Investigation Unit determines if the applicant is “cleared” for entrance into the OVDP program. Generally, the process should not take more than 30 days. At around 30-day mark, if the applicant has been successfully approved then the attorney or applicant (if the applicant directly submitted to the program) will receive a letter from the Internal Revenue Service confirming the applicant’s entry into the program and requesting that the initial OVDP application be submitted within 45 days of the date of the letter.
The next phase (45-day letter submission) is not the full submission, but rather it is a summary of the information the taxpayer is going to submit under the program, and includes more specific information about the bank accounts, account numbers, and other identifying information.
Initial OVDP Application Submission
After the Internal Revenue Service receives the applicant’s OVDP letter and attachments, the Internal Revenue Service will review the information. If it is sufficient, then the IRS will send a second letter requesting that the taxpayer submit the full, comprehensive Offshore Voluntary Disclosure Program Application. The next phase of the OVDP is much more intensive and requires the preparation and submission of several documents to the Internal Revenue Service for their review and approval.
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 of all the income that was generated under these accounts that was 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 example: if the taxpayer owed $20,000 in taxes over the last eight years then they would also have to include in check the amount of $4000 the cover the 20% penalty on the $20,000 in outstanding taxes, as well as estimated interest.
What Are the Fees/Penalties under the OVDP Program?
In accordance with OVDP filing requirements, The Applicant will then be required to pay the outstanding tax, along with estimated interest, a 20% penalty on the outstanding tax, as well as an “FBAR” Penalty. The Penalty is 27.5% (or 50% if any of the foreign accounts are held at an IRS “Bad Bank”) on the highest years “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 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 their accounts for each year. Thus, 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 value 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!
When it comes to the Streamlined Program, the penalty is limited to 5% on the highest “year-end” balance for the last 6-years. The reason is that if the person was non-willful, they should not be overly-penalized if there was an artificial increase in the value of the bank accounts – such as from the sale of a home during the tax year.
- Click Here for Golding & Golding’s OVDP Update.
Why Should You Enter the OVDP Program?
It’s simple: if you qualify to enter the IRS OVDP Program, then you can significantly reduce your outstanding tax penalties and usually avoid criminal prosecution.
- Under the new FATCA laws (Foreign Account Tax Compliance Act), thousands of Foreign Financial Institutions (FFIs) are reporting foreign income, assets, bank and financial accounts belonging to U.S. citizens, Legal Permanent Residents, and Non-Residents who live in the U.S. or maintain a U.S. address. Once the IRS gets wind of this information and begins an examination, you are disqualified from entering either the OVDP or Modified Streamlined Programs.
Moreover, many of these FFI’s are starting to freeze and even forfeiting the money in these accounts if the account owner cannot prove compliance with FBAR filing, FATCA and OVDP (if applicable).
- Click Here for a List of Frequently Asked Questions.
FLAT-FEE & FULL-SERVICE
Our experienced International Tax Lawyers and Enrolled Agents (Highest Tax Credential issued by the IRS) have represented numerous individuals and businesses in over 35 countries with OVDP. Unlike other firms, our Tax Attorneys handle the entire OVDP Application process and Streamlined Program application process in-house, on a flat-fee arrangement from start-to-finish – including preparing applicant tax returns. We do not “pawn” you off to an Associate or accountant – usually with little to no experience in International Tax Law and OVDP.
Be Aware – Fraud Warning!
In the last few years, we have been inundated by individuals letting us know that they were “sold” by inexperienced attorneys and CPAs with no real International Tax experience (CPAs may have Accounting or Auditing experience, but not necessarily any ‘Tax’ experience) who “scared” them into entering the program before they felt ready to do so. Unfortunately, these unscrupulous attorneys use scare tactics and “low introductory fees” to bait taxpayers, which results in the OVDP Applicants suffering serious tax issues and complications with the IRS.
Our flat fee, in-house arrangement allows our clients to concentrate on getting themselves and their families OVDP compliant, while allowing our firm to stand by our clients in every phase of process, each step of the way!