Streamlined Domestic Offshore Procedures: Since the IRS both closed OVDP (2018) and ended DIIRSP (2020), the big question is whether Streamlined may be next up on the chopping block. The Streamlined Procedures are a great offshore disclosure program. In 2014, the IRS developed the “stand-alone” domestic streamlined offshore program for U.S. resident taxpayers who are delinquent with offshore account and income reporting. Eligibility for the domestic version (SDOP) is for non-foreign residents with previously unreported foreign accounts, assets, income and investments.  These Taxpayers can use the Streamlined Domestic Offshore Procedures to get back into compliance for FATCA, FBAR and other international information reporting forms.

The tax and legal team at Golding & Golding have successfully handled more than 1000 streamlined filing submissions (Streamlined Domestic and Streamlined Foreign).

The three (3) main requirements necessary to qualify for SDOP are:

  • non-willful
  • filed U.S. tax returns timely for three (3) years); and
  • not be under audit

The goal of the program is to proactively bring non-willful taxpayers into offshore compliance. In exchange for making the submission, the Internal Revenue Service agrees to reduce all the offshore penalties to a single,  Title 26 miscellaneous offshore penalty of 5%.

In recent years, the IRS has significantly increased the number of international tax and FBAR audits.

If the Internal Revenue Service initiates an audit before the taxpayer makes a submission, the taxpayer become ineligible for submission.

Purpose of IRS Streamlined Domestic Offshore Program

The purpose of the Streamlined Domestic Program is to leverage a smaller penalty now, against a potentially larger penalty later — noting that in recent years, the IRS has become much more aggressive in enforcing FBAR and offshore penalties.

Streamlined Domestic Offshore Eligibility Criteria

In order to be eligible for the the domestic version of the procedure there are four (4) main requirements.

Within these elements, there are various requirements, nuances, exclusions, exceptions and limitations — but these are the four (4) main components.

A. Were You Non-Willful?

Generally, if a person was unaware that there was a foreign account, foreign income, or foreign asset reporting requirement, the applicant may qualify as non-willful.

Unfortunately, there is no bright-line test, and a more complex “totality of the circumstances” analysis is required.

Non-Willful vs. Lower Standards of Willfulness 

Willfulness does not mean intent.

There can be “lower” forms of willfulness, which do not require willful or intent — these additional willful standard are referred to as:

Even if a person was only non-willful for a small amount of time, or was willful but only had relatively small amounts of unreported income they do not qualify.

Learn what happens if you are willful and try to enter the program.

B. Did You Previously File “Timely” Tax Returns?

In order to qualify for the streamlined domestic offshore procedures (SDOP) a person must have filed original tax returns and those returns had to be filed timely. In other words, you cannot file original tax returns as part of the streamline domestic offshore procedures

*The “timely return” requirement does not apply to the Streamlined Foreign Offshore Procedures.

C. Are You Currently Under Audit or Examination

As provided by the IRS:

“If the IRS has initiated a civil examination of taxpayer’s returns for any taxable year, regardless of whether the examination relates to undisclosed foreign financial assets, the taxpayer will not be eligible to use the streamlined procedures.

Taxpayers under examination may consult with their agent. Similarly, a taxpayer under criminal investigation by IRS Criminal Investigation is also ineligible to use the streamlined procedures.”

D. Are you a Non-Foreign Resident?

If a person is a foreign resident, then they will qualify for the Streamlined Foreign Offshore Procedures aka SFOP (presuming they are non-willful).  When a person qualifies for SFOP, the 5% penalty is waived and the applicant can file original tax returns under the program.

Treatment & Scope of IRS Streamlined Domestic Procedures

A common question we receive  about Streamlined Domestic Offshore Procedures (SDOP), is what type of general treatment an applicant will receive from the IRS under this program.

Here is a brief summary:

A. Unpaid Taxes Due in Prior Years

When a person submits to the streamlined domestic offshore procedures, they are responsible for paying what their tax liability would have been, had they initially paid their taxes timely.

Unlike the voluntary disclosure program, there is no penalty on the amount of tax due — although interest continues to accrue.

B. Title 26 Miscellaneous Offshore Penalty

The penalties are relatively straightforward. The applicant will pay a one-time 5% penalty for the 6-year compliance period (summarized below).

Under the Streamlined Domestic version of the program, a person pays a single, 5% penalty in lieu of all the other penalties the applicant could be hit with:

The calculation for the penalty can be deceivingly complicated. This is primarily due to the fact that some assets are not penalized — such as individually owned real estate.

In addition, other penalties are exempt, such as the value of Canadian RRSP and RRIF.

We have prepared a detailed step-by-step summary about how to calculate the SDOP 5% Title 26 Miscellaneous Offshore Penalty.

Other Offshore Penalties you can Avoid

By submitting the 5% penalty, you can avoid other penalties, including:

IRS Form 14654 Streamlined Domestic Non-Willful Certification 

In order to qualify for the Streamlined Domestic Program, you must be able to certify (under penalty of perjury) that you were non-willful on Form 14654.

Here are a few pointers:

You Cannot Be Even a Little Willful

If you are willful, you do not qualify for the streamlined program. Even if you are willful but sorry and regretful, in the eyes of the IRS — you are still willful. You are signing the form under penalty of perjury.

Your only option for formalized offshore disclosure is the traditional VDP.

Do Not Write a Novel

While the certification statement asks for significant facts to substantiate your non-willfulness, the goal is to be accurate and succinct. 

Even though each person’s facts and circumstances are different, most submissions do not require a 10-page summary.

Be Clear and Concise

The IRS agents are overworked and underpaid. If you could find a way to say the same sentence using seven (7) words instead of 15 words, then you should do it. You should do your best to write and rewrite the statement as many times as necessary to get it as succinct (and concise) as possible — while still including all of the necessary information.

Be Respectful

The IRS agents are only doing their job; it is not as if the agents have it out for you. Whether you want to believe that or not, we’ve been doing this for many years, and we can tell you most agents are not gunning to become the head IRS person in charge.

They have a job, and they have certain protocols for accepting or rejecting a submission.

There is no need to be rude to the agents; be respectful and you will find that being respectful will go a long way in your streamlined submission (and in life).

Review the IRS Form Instructions Before Submitting

The IRS periodically updates the program requirements, and updates the version of the forms.

It is important that you have met all the necessary requirements, both substantively and administratively — so that your submission does not get kick-backed unnecessarily.

First Try Streamlined Dometic, then go (New) VDP?

No, but you’re thinking smart — and that’s always a good thing.

Why can’t you try Streamlined first?

Because if the IRS would let you dip your toe in the Streamlined Pool first, before taking the plunge into OVDP, then everyone would do it — even if the applicant was clearly willful.

As provided by the IRS:

“Once a taxpayer makes a submission under either the Streamlined Foreign Offshore Procedures or the Streamlined Domestic Offshore Procedures, the taxpayer may not participate in OVDP.

Similarly, a taxpayer who submits to an OVDP voluntary disclosure letter pursuant to OVDP FAQ 24 on or after July 1, 2014, is not eligible to participate in the streamlined procedures.”

What are the Fees for Hiring a Streamlined Domestic Offshore Attorney?

Experienced Streamlined Offshore counsel always charge flat-fees and not hourly fees.

Why?

It avoids inexperienced counsel from puffing up your bill and charging you for nonsense services that should be bundled into a flat-fee service (tax and legal).

Golding & Golding: About our International Tax Law Firm

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

Contact our firm today for assistance with getting compliant.