Making a Quiet Disclosure vs. Streamlined Submission

Quiet Disclosure vs Streamlined: When a U.S. Taxpayer is out of compliance for non-reporting of foreign income or accounts, they have various IRS international amnesty options to get compliant. The Streamlined Procedures are a very popular option for Taxpayers. A Quiet Disclosure is an illegal alternative to the streamlined program, and fraught with peril. The Quiet Disclosure vs Streamlined comparison is to essentially compare legal offshore disclosure with an illegal IRS submission.

Quiet Disclosure vs Streamlined

Quiet Disclosure vs Streamlined

Some taxpayers want to circumvent traditional voluntary disclosure and streamlined filings primarily because of bad information they read on the internet. This is especially true on issues involving FBAR penalties.

Thus, the comparison between Quiet Disclosure vs Streamlined is crucial to help unsuspecting taxpayers from unnecessary fines, penalties, and criminal investigation.

While the Internal Revenue Service has sought to aggressively enforce foreign accounts compliance and unreported foreign income disclosures, they have also developed various programs, such as the Streamlined Procedures, to help taxpayers get compliant.

*We have updated our Quiet Disclosure vs Streamlined IRS Filing Comparison Update.

Examples of an IRS Quiet Disclosure

With a Quiet Disclosure, the Taxpayer files prior year Tax Returns and Informational Reporting Forms (or just begins filing forward) without going through the proper amnesty programs channels.

Example 1 – Unintentional Quiet Disclosure

Joe recently learned about FBAR and FATCA and realized that he had not filed any of these forms in the past. Joe is about the file his most recent return and realizes that he’s also required to include an FBAR and Form 8938. Joe includes these forms with his current tax return in order to get it filed timely (because Joe’s unaware that he qualifies for an automatic extension using IRS Form 8938).

Thereafter, after nights of research, Joe realizes that he should have been filing these forms for many years prior and that by simply filing the current year forms, he may be at much higher risk for Fines, Penalties, or worse than if he performs a proper disclosure. Therefore, Joe contacts an experienced Offshore Voluntary Disclosure Attorney and they come to the conclusion that Joe is non-willful.

*In this particular situation, Joe may still qualify for the streamlined program because the facts show that he was non-willful.

Example 2 – Intentional Quiet Disclosure

Jane recently had a change in her U.S. Tax Status and moved from an H-1B Visa holder to a Legal Permanent Resident. All the while, Jane was under the misunderstanding that as an H-1B she was not required to file and report her foreign income or account information.

After speaking with a qualified Offshore Voluntary Disclosure Lawyer, Jane comes to the sobering realization that she was required to file these forms the entire time. Jane is nervous, because after years of waiting — she finally received her green card. Jane does not want to lose her green card (which she probably wouldn’t anyway if she filed under proper disclosure procedures) and realizes that the chances are low that the IRS would ever detect her if she was to file her prior FBARs and FATCA firm 8938 “quietly”.

Therefore, Jane goes back and files six years of FBARs and three years of amended tax returns to include her FATCA Form 8938 – and Form 3520 for multiple gift she received from her parents in order to purchase a home.

**In the second example, Jane performed a quiet disclosure. She knowingly and intentionally filed prior forms in order to avoid the penalties associated with either filing streamlined program or reasonable cause. She could be subject to an IRS Criminal Investigation.

Common International Reporting Forms

The following is a list of common forms which many people were never aware they had to report, but which the failure to report may lead to extensive fines and penalties:

Reporting Foreign Accounts (FBAR)

If you are a U.S. Person, it does not matter whether or not you have to file a US tax return to determine if you have to file an FBAR. The threshold question is whether you have an annual aggregate total of foreign/offshore bank accounts, financial accounts, retirement accounts, etc. that when combined, exceed $10,000. If so, you are required to file the FBAR Form and report all of the accounts.

FATCA Form (8938)

FATCA is the Foreign Account Tax Compliance Act. For individuals, it requires reporting of financial accounts and certain specified foreign assets (ownership in businesses, life insurance, etc.). There are different threshold requirements, depending on whether a person is Married Filing Jointly (MFJ) or Married Filing Separate (MFS)/Single, and whether a person resides in the United States or outside of the United States.

Foreign Gift Form (3520)

If you receive a gift or inheritance from a foreign person that exceeds $100,000 either in a single transaction, or a series of transactions over a year, you are required to report the gift on this form. You have the file this form, even if you are not required to file a tax return (although it is normally filed at the same time as your tax return).

Foreign Corporation or Foreign Partnership (5471 or 8865)

The rules are somewhat different for these two forms, but essentially the same (with the 5471 being much more commonplace for U.S. investors). If you own at least 10% ownership in either type of business, you required to report the information on either a form 5471 or 8865. Both of these forms require comprehensive disclosure requirements, involving balance statements, liabilities, assets, etc. Moreover, the forms need to be filed annually, even if a person does not have to otherwise file a tax return

Passive Foreign Investment Company (PFIC)

One of the most vilified type of financial assets/investments (from the U.S. Government’s perspective) is the infamous PFIC. A PFIC is a Passive Foreign Investment Company. The reason the United States penalized this type of investment is because it cannot oversee the growth of the investment and income it generates. In other words, if a U.S. person invests overseas in a Foreign Mutual Fund or Foreign Holding Company — the assets grows and generates income outside of IRS and U.S. Government income rules and regulations.

Foreign Trust (3520-A)

A Foreign Trust is another type of Foreign Investment that is frowned upon by the IRS. From the IRS’ perspective, the only purpose behind a Foreign Trust is to illegally avoid US reporting and income tax requirements by moving money offshore. While there are many people who may operate illegally in this fashion, there are various legitimate reasons why you would be a trustee or beneficiary of a Foreign Trust (Your cool grandma really loves you and placed $5 million in trust for you overseas). Form 3520-A is a relatively complex form, which must be filed annually by anybody that owns a foreign trust.

Foreign Real Estate Income

Even if you are earning rental income from property that is located outside of the United States, you still must report the income on your U.S. taxes (even it is exempt from tax in the foreign country). Remember, United States taxes individuals on their worldwide income. Therefore, the income you are earning from your rental property(s) must also be included on your US tax return.

A few nice benefits of reporting the income is that the United States allows depreciation of the structure – which many foreign countries do not allow. Moreover, you can take the same types of deductions and expenses that you otherwise take the property was located in the United States.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.

Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.

*Please beware of copycat tax and law firms misleading the public about their credentials and experience.

Less than 1% of Tax Attorneys Nationwide Are Certified Specialists

Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.

Recent Golding & Golding Case Highlights

  • We represented a client in an 8-figure disclosure that spanned 7 countries.
  • We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
  • We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
  • We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
  • We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.

How to Hire Experienced Offshore Counsel?

Generally, experienced attorneys in this field will have the following credentials/experience:

  • 20-years experience as a practicing attorney
  • Extensive litigation, high-stakes audit and trial experience
  • Board Certified Tax Law Specialist credential
  • Master’s of Tax Law (LL.M.)
  • Dually Licensed as an EA (Enrolled Agent) or CPA

Interested in Learning More about Golding & Golding?

No matter where in the world you reside, our international tax team can get you IRS offshore compliant. 

Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.

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