Streamlined Non-Willful Certification Statement - Were You Truthful? by Golding & Golding, A PLC

Streamlined Non-Willful Certification Statement – Were You Truthful?by Golding & Golding, A PLC

Even if you were Willful and submitted a Streamlined Certification Statement, you may still be able to limit the collateral Damage.

Streamlined…But Willful

Depending on what stage your IRS Streamlined Submission is in, and what the facts and circumstances are surrounding why you submitted to the Streamlined Program when you know you were willful (Read: Bad Legal Advice from Inexperienced Counsel) you may still have options for compliance before it is too late.

We have been called upon many times by clients directly, other Attorneys and CPAs to help individuals in two types of situations relating to bad advice by counsel:

– A Client submitted to OVDP, but was really non-willful; or
– A Client was coaxed into Streamlined, but was willful


The main threshold in determining whether a person will qualify for the IRS Streamlined Program (though it still may not be the best option based on the Taxpayer’s specific set of facts & circumstances) or traditional OVDP is whether they were willful or non-willful.

In recent months, we have received a number of inquiries from individuals who were sold into streamlined, even though they told the attorney that they believed they were willful – and are now regretting it.

What If I am Willful?

If a person is willful, then they lose the right to enter the streamlined program – that is the end of the analysis.

The streamlined program is a program designed for individuals who were clearly non-willful. The streamlined program offers a reduced penalty as well as reduced paperwork – but it comes at a risk. 

The risk is that a person may still be audited or examined under the Streamlined Program. While a person may, in very rare circumstances (and usually only when the OVDP disclosure also involves unreported U.S. Income) still be audited or examined under traditional OVDP, it is very uncommon. That is because even the IRS has stated that as long as a person makes a full disclosure under OVDP they will avoid an examination/audit or criminal investigation.

Willful vs. Non-Willful, The Amount of Money is Immaterial

The issue of being willful and going IRS Streamlined is becoming more of an issue than it ever was before. The primary reason why this is becoming such an issue is twofold:

– The IRS (up until recently) had not began auditing the streamlined offshore applications

– Inexperienced Counsel is recommending to clients with lower dollar amounts that streamlined is a safe haven, because their chance of audit is low, even if they were willful or reckless in their noncompliance.

Inexperienced Counsel and Reverse Fear Mongering

The way inexperienced counsel sells individuals in going streamlined (even though they were willful) is telling the client that there is no chance of audit, or that the chances are slim-to-none.

While the chance of audit is relatively low, by putting yourself into position where you are making a proactive misrepresentation to the IRS in writing, you may be setting yourself up for serious issues down the line.

We cannot recommend enough that if a person is willful, they should never enter the streamlined program under any circumstance; it is equivalent of throwing yourself into the lion’s den, unarmed.

Foreign Money May Not Need Be What Causes The Audit

This is a situation in which is getting many individuals into trouble. While it is true that the streamlined program in and of itself has not been the catalyst that leads to an IRS Audit, if a person is otherwise potentially subject to audit, and they are audited — the IRS is still going to inquire about the foreign accounts, income, investment, etc.

People can be audited for any one of a number of reasons, which has nothing to do with offshore disclosure. For example, the following situations are relatively common, and if you are already “audit prone” will put you into an potential audit situation.

  • Self-Employed
  • Distributions from a Self-Owned S corporation and Reasonable Compensation Issues
  • Business Startup or Travel Expenses
  • Unreimbursed Expenses
  • Self-Employed Increase in Earnings

How Much Does the IRS Know Already About You?

That is anybody’s guess. Any attorney with significant criminal tax and litigation experience, and who has sat through trial and complex audit matters will tell you that you should never underestimate the IRS.

Specifically, with the introduction and enforcement of FATCA, there are more than 300,000 Foreign Financial Institutions (FFIs) that are proactively reporting information to the IRS, including reporting individual “U.S. Account Holder” names to the IRS.

But I Only Have Small Amounts of Foreign Income?

Having a small amount of money when you are willful…still makes you willful. And, going Streamlined when you are willful just because the amount of unreported income is minimal is terrible advice.

In the last year or so, clients have been telling us that much less experienced attorneys are undermining the advice provided by us and other experienced Offshore Disclosure lawyers, trying to coerce them to enter the streamlined program even when they are willful.

Why, Because the attorneys misrepresent to these scared clients that “The IRS is not going after people with small amounts of income, so why would they come after you?”

This logic is faulty for two reasons: First, the audit may not necessarily stem from the foreign offshore accounts and therefore the audit is actually the result of the domestic audit but now the client has filed streamlined and is stuck in the IRS crosshairs. 

Second, it is very easy for the IRS to know if you are willful or non-willful, even when the amounts of unreported income are small.

Common Example – Indian Accounts

Let’s take a common scenario in which individuals may have had no initial intent to defraud. We have represented numerous individuals from India, who have accounts in Financial Institutions such as ICICI, Axis, HSBC, and SBOI.

Sidd is originally from India, and moved to the United States in 2008. As the value of the Rupee continues to drop, Sidd has been able to purchase more FDs in India. During one trip, Sidd updated the institution that he was residing in the United States on a visa, and therefore to please forward his information to his US address.

In 2015 Sidd receives a FATCA Letter which was accompanied by a W-9 and W-8 BEN form. The letter told Sidd that if he was a US person (he is now a Legal Permanent Resident/Green-Card Holder) he needed to sign the W-9 form and return it back to them. Sidd reads the letter and understands that as a U.S. Account Holder, he is required to sign and return the W-9, but he does not do so.

Nevertheless, 2015 and 2016, Sidd file tax returns, but does not file the requisite form 8938 or FBAR.

In 2017, Sidd speaks with an inexperienced offshore disclosure attorney who tells him that he can go streamline, “no-problem” because there will be no issue — since the amount of income is small.

This is Terrible Advice from “Counsel”

Why? Because it turns out in this example, the foreign financial institution already sent a copy of the FATCA information to the IRS regarding regarding Sidd — as well as tens of thousands of other US account HoldersThereafter, Sidd is audited. Even though the audit has nothing to do the foreign accounts, in reviewing the file the IRS agent realizes that Sidd received the FATCA letter back in 2015 and therefore had knowledge of the reporting requirement.

Golding & Golding, A PLC

We have successfully represented clients in more than 1,000 streamlined and voluntary disclosure submissions nationwide and in over 70-different countries.

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe.