Reasonable Cause or IRS Streamlined Offshore - Certified Tax Specialist (Golding & Golding)

Reasonable Cause or IRS Streamlined Offshore – Certified Tax Specialist (Golding & Golding)

Reasonable Cause or IRS Streamlined Offshore – Certified Tax Specialist

If your failure to disclose foreign accounts was non-willful (in other words, you were unaware of the requirement to file the form) and/or you can show Reasonable Cause, you generally have two different options available in order to get compliant.

Reasonable Cause or IRS Streamlined Offshore

The first option is submitting a Reasonable Cause Statement and the second option is to submit to the Streamlined Offshore Disclosure Program.

Sean M. Golding, JD, LL.M., EA – 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 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 Offshore Voluntary Disclosure.

*Click Here to Learn about how Attorneys falsely market their services as “specialists.”

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.

Golding & Golding – We Specialize in IRS Offshore Disclosure

At Golding & Golding, we focus exclusively on IRS Offshore Voluntary Disclosure. 

Golding & Golding limits their practice exclusively to IRS Offshore Voluntary Disclosure matters. Sean represents clients worldwide (in over 60 countries) with Offshore Disclosure (OVDP) and Streamlined Procedures, as well as FBAR & FATCA Compliance.

Throughout his nearly 20 years of practicing as an Attorney, Sean also has gained extensive litigation experience in highly complex civil and criminal matters nationwide.

We have represented individual and business clients in over 60 countries in matters involving FBAR Criminal Penalty and FBAR Civil Penalty mitigation.

Reasonable Cause vs. Streamlined

Each method has its own pros and cons, and oftentimes it will boil down to the specific facts and circumstances of the non-disclosure, coupled by the risk assessment on the part of the account-holder.

Streamlined Disclosure (SFOP or SDOP)

The IRS Streamlined Filing Compliance Procedures (aka “Streamlined Program”) are comprised of the Streamlined Domestic Offshore Procedures and/or the Streamlined Foreign Offshore Procedures.

International Tax Compliance is a major enforcement priority for the IRS. With the introduction of FATCA (Foreign Account Tax Compliance Act),  more than 100 countries and more than 300,000 Foreign Financial Institutions “FFIs” have agreed to report U.S. Account Holders to the IRS.

Why? because the penalties for failing to comply with even the FBAR Requirements can reach as high as $10,000.00 per account, per year (if you were non-willful) and as high as 100% value of the account if you were willful.

Our International Tax Lawyers represent hundreds of taxpayers annually in Streamlined Domestic Offshore Procedure submissions and Streamlined Foreign Offshore Procedures in over 55 different countries.

The Streamlined Offshore Procedures are a highly cost-effective method of quickly getting you into IRS (Internal Revenue Service) or DOT (Department of Treasury) compliance before it is too late!

We will provide you a basic summary to help you understand the differences:

Can the IRS Terminate the Streamlined Programs?

Yes. The Streamlined Filing Compliance Procedures can be terminated at any time. While there have been rumblings about the offshore disclosure programs terminating for some time now, it seems to be that the IRS may really be terminating the programs in the near future, as provided by some of the higher-up at the IRS at a recent conference in late 2017.

As a result, we imagine that many individuals will be considering entering the program before it’s too late. Therefore, while we always recommend using an experienced streamlined disclosure attorney to assist you with handling the process, we also like to try to educate individuals – so that if an applicant is going to try to do it themselves, they will at least have the correct information to do so.

Streamlined Filing Compliance Procedures – The Basics

The Streamlined Domestic Offshore Procedures are more common than the Streamlined Foreign Offshore Procedures, simply because the IRS put up many roadblocks to meeting the Foreign Resident requirement for SFOP.

Streamlined Domestic Offshore Procedures

The Streamlined Domestic Offshore Procedures are designed for non-foreign residents. In other words, in order to apply to this program, you must be a US resident and not considered a foreign resident. Moreover, the applicant must meet two main requirements.

  • Non-Willfulness
  • Filed Timely Original Tax Returns

Streamlined Non-Willfulness

In order to be non-willful, the individual must show that they…weren’t willful – yes, that’s pretty much the extent of the definition provided by the IRS. In other words, the IRS likes to try to place the burden on you, the individual, to prove that you are non-willful.

In fact, the IRS has gone to great lengths to keep the specific analysis it uses to determine that somebody was willful under lock and key — going so far as fighting it in court. In our experience, we have found that typically, common sense rules dictate.

For example, if you literally had no idea that foreign accounts needed to be reported, and your actions, behavior, and history shows that you did not access the foreign accounts, withdraw any money from them, etc., then chances are you will able to show you were non-willful.

The further you sail away from those shores, the murkier the water becomes, and with it is an increased risk that the IRS may dispute your claim that you are non-willful.

The following are common questions to consider regarding willful vs. non-willful

  • What is your U.S. status?
  • How long have you been in the United States for?
  • How many years have you filed U.S. tax returns?
  • What types of investments do you have overseas?
  • Do you utilize a financial planner?
  • Do you have a CPA or EA?
  • Is your CPA or EA experienced in international tax?
  • Did the CPA or EA send you questions in writing asking about Foreign Accounts or Income?
  • Did you respond truthful to the CPA or EA?
  • Did you complete a schedule B?
  • Are you tax compliant in the country in which the accounts are maintained?
  • Did you have unreported income as well?

These are just some of the many questions you should consider prior to determining whether you were non-willful.

What if I was Willful?

*If you were willful, then you should never submit to OVDP. Unfortunately, there has been an influx of inexperienced attorneys who will prey upon you, and convince you to go streamlined instead of OVDP. They will make it seem that if you only have a small amount of income, or were only noncompliant for a few years, that you can still go streamlined.

This is both improper and unethical, and if you come across an attorney trying to sell you on this false bill of goods, you should contact his or her local state bar association. Click Here for a Case Study Example of what happens when the IRS catches you.

Filed Original Returns Timely

In order to qualify for the Streamlined Domestic Offshore Procedures, you must show that you filed your original returns timely. There is some wiggle room regarding the terminology “timely,” and if you filed your returns, but they were filed late — you should consider having a tax attorney contact the streamlined program directly to assess whether you may qualify despite having filed late original returns.

Streamlined Domestic Offshore Procedures Summary

The Streamlined Program requires the applicant to amend and pay outstanding tax liability for the last three (3) years to include unreported foreign income and unreported foreign accounts that were not previously reported on a U.S Tax Return. It also requires the applicant to file six (6) years of FBARs (FinCEN 114) and pay a (relatively) small penalty which equals 5% of the highest year end value for any given year, unless you qualify as a foreign resident for 330-days, in which you can receive a penalty waiver!

  • Amend the last 3 years of Tax Returns
  • File required forms such as 3520, 3520-A, 5471, 8621, 8865, 8938, etc.
  • File 6 Years of FBAR (FinCEN 114) – Report of Foreign Bank and Financial Accounts
  • Take a “snapshot” of the aggregate offshore unreported balances on 12/31
  • Pick the highest year’s 12/31 annual aggregate value
  • Multiply the value by 5%
  • Pay the outstanding Tax, Interest on Taxes due, along with the 5% percent penalty

Streamlined Foreign Offshore Procedures (SFOP)

In order to qualify for Streamlined Foreign Offshore Procedures, you must meet two major requirements:

  • Qualify as Non-Willful; 
  • Meet the 330-Day Foreign Residence Test/Non U.S. Person; and
  • You do not have to have filed all prior year tax returns.

How to Qualify as a Foreign Resident?

If you live overseas and qualify as a foreign resident (reside outside of the United States for at least 330 days in any one of the last three (3) tax years or do not meet the Substantial Presence Test in one of the last three (3) tax years) you may obtain a waiver of all FBAR and FATCA penalties.

IRC 911 (Physical Presence Test vs. Bona-Fide Resident Test)

The Streamlined Foreign “330-day rule,” is a hard and fast rule.

Thus, the Streamlined Foreign “330-day rule” should be distinguished from Internal Revenue Code section 911 which is used by taxpayers trying to claim the Foreign Earned Income Exclusion by showing they qualify for either the physical presence test (330 days) or the bona fide residence test. Thus, even though a person could qualify as a bona fide resident under IRC 911 for the foreign earned income exclusion, it does not mean that they qualify for the streamlined foreign program. 

As provided by the IRS: The discussion of the non-residency requirement for eligibility for the Streamlined Foreign Offshore Procedures refers to IRC § 911 and its regulations.  Does that mean that anyone who is non-resident under IRC § 911 and its regulations is non-resident for purposes of the Streamlined Foreign Offshore Procedures?

*The reference to IRC § 911 and its regulations is only to the parts of those authorities that define “abode,” which are found in IRC § 911(d)(3) and Treas. Reg. § 1.911-2(b).  Non-residency for purposes of the Streamlined Foreign Offshore Procedures is defined in those procedures, and not in IRC § 911 and its regulations.

Streamlined Foreign Offshore Procedures Summary

  • Amend the last 3 years of Tax Returns, or file original returns
  • File required forms such as 3520, 3520-A, 5471, 8621, 8865, 8938, etc.
  • File 6 Years of FBAR (FinCEN 114) – Report of Foreign Bank and Financial Accounts
  • Pay the outstanding Tax, Interest on Taxes due, and the penalty is waived

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?

What Can You Do?

Presuming the money was from legal sources, your best options are either the Traditional IRS Voluntary Disclosure Program, or one of the Streamlined Offshore Disclosure Programs.

We Specialize in Safely Disclosing Foreign Money

We have successfully handled a diverse range of IRS Voluntary Disclosure and International Tax Investigation/Examination cases involving FBAR, FATCA, and high-stakes matters for clients around the globe (In over 65 countries!)

Whether it is a simple or complex case, safely getting clients into compliance is our passion, and we take it very seriously.

Examples of areas of tax we handle

Who Decides to Disclose Unreported Money?

What Types of Clients Do we Represent?

We represent Attorneys, CPAs, Doctors, Investors, Engineers, Business Owners, Entrepreneurs, Professors, Athletes, Actors, Entry-Level staff, Students, Former/Current IRS Agents 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  earned 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, and authorizes him to represent clients nationwide.)

Mr. Golding and his team have successfully handled several hundred IRS Offshore/Voluntary Disclosure Procedure cases. Whether it is a simple or complex case, safely getting clients into compliance is our passion, and we take it very seriously.

He is frequently called upon to lecture and write on issues involving IRS Voluntary Disclosure.

Less than 1% of Tax Attorneys Nationwide are Board Certified Tax Law Specialists 

The Board Certified Tax Law Specialist exam is offered in many states, and is widely regarded as one of (if not) the hardest tax exam given in the United States for practicing Attorneys. Certification also requires the completion of significant ethics and experience requirements.

In California alone, out of more than 200,000 practicing attorneys (with thousands of attorneys practicing in some area of tax law), less than 350 attorneys are Board Certified Tax Law Specialists.

Beware of Copycat Law Firms

Unlike other attorneys who call themselves specialists or experts in Voluntary Disclosure but are not “Board Certified,” handle 5-10 different areas of tax law, purchase multiple keyword specific domain names, and even practice outside of tax, we are absolutely dedicated to Offshore Voluntary Disclosure.

*Click here to learn the benefits of retaining a Board Certified Tax Law Specialist with advanced tax credentials.

IRS Penalty List

The following is a list of potential IRS penalties for unreported and undisclosed foreign accounts and assets:

Failure to File

If you do not file by the deadline, you might face a failure-to-file penalty. If you do not pay by the due date, you could face a failure-to-pay penalty. The failure-to-file penalty is generally more than the failure-to-pay penalty.

The penalty for filing late is usually 5 percent of the unpaid taxes for each month or part of a month that a return is late. This penalty will not exceed 25 percent of your unpaid taxes. If you file your return more than 60 days after the due date or extended due date, the minimum penalty is the smaller of $135 or 100 percent of the unpaid tax.

Failure to Pay

f you do not pay your taxes by the due date, you will generally have to pay a failure-to-pay penalty of ½ of 1 percent of your unpaid taxes for each month or part of a month after the due date that the taxes are not paid. This penalty can be as much as 25 percent of your unpaid taxes. If both the failure-to-file penalty and the failure-to-pay penalty apply in any month, the 5 percent failure-to-file penalty is reduced by the failure-to-pay penalty.

However, if you file your return more than 60 days after the due date or extended due date, the minimum penalty is the smaller of $135 or 100 percent of the unpaid tax. You will not have to pay a failure-to-file or failure-to-pay penalty if you can show that you failed to file or pay on time because of reasonable cause and not because of willful neglect.

Civil Tax Fraud

If any part of any underpayment of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 75 percent of the portion of the underpayment which is attributable to fraud.

A Penalty for failing to file FBARs

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.

A Penalty for failing to file Form 8938

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

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

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

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

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

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

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.

Be Careful of the IRS

With the introduction and enforcement of FATCA for both Civil and Criminal Penalties, renewed interest in the IRS issuing FBAR Penalties, crackdown on Cryptocurrency (and IRS joining J5), the termination of OVDP, and recent foreign bank settlements with the IRS…there are not many places left to hide.

4 Types of IRS Voluntary Disclosure Programs

There are typically four types of IRS Voluntary Disclosure programs, and they include:

Contact Us Today; Let us Help You.