201711.02
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Streamlined Voluntary Disclosure Program – IRS Streamlined Voluntary

Streamlined Voluntary Disclosure Program - IRS Streamlined Voluntary (Golding & Golding)

Streamlined Voluntary Disclosure Program – IRS Streamlined Voluntary (Golding & Golding)

Streamlined Voluntary Disclosure Program – IRS Streamlined Voluntary

Streamlined Voluntary Disclosure Program

Making a Streamlined Voluntary Disclosure submission to the IRS is a highly effective method for reducing (or even eliminating) IRS offshore penalties for unreported foreign assets, income, accounts and investments.

Streamlined Voluntary Disclosure goes by many different names:

  • Streamlined Program
  • Streamlined OVDP
  • Streamlined Filing Compliance Procedures
  • Streamlined Domestic Offshore Procedures
  • Streamlined Foreign Offshore Procedures

Streamlined Voluntary Disclosure

We understand that IRS Voluntary Disclosure law can be daunting, overwhelming, and downright confusing.  We have developed this Streamlined voluntary review guide to assist you.

Streamlined Terms & Phrases

Before you can truly understand the Streamlined Program, it is important to understand key terms and Acronyms used when describing the Streamlined Voluntary Disclosure Program.

The following are key important aspects of the the Streamlined Voluntary Disclosure Program:

OVDP

The Traditional Offshore Voluntary Disclosure Program. People who are both Willful and Non-Willful may enter the program, but non-willful individuals typically only submit to OVDP under specific scenarios (MTM Elections, Opt-Out). It was discontinued on 9.28.18.

IRS Streamlined Progam

The IRS Streamlined Program was created in 2014 to assist individuals who are non-willful and meet other filing requirements. It is a much more “Streamlined” submission with less reporting requirements.

IRS Amnesty

The general term that refers to voluntarily coming into IRS Offshore Compliance by reporting Foreign Bank Accounts, Financial Assets, Income and other Foreign Investments.

Voluntary

You are entering the program “voluntarily,” which means you are not currently under audit or examination.

Willful 

While the IRS likes to keep this term a big secret, it generally means a person acted with either Intent, Knowledge or Reckless Disregard in not reporting Foreign Accounts, etc. It is based on a totality of the circumstances surrounding the non-disclosure.

Non-Willful

It means somebody did not act “Willful.” The term is also not defined.

FBAR (FinCEN 114)

This is the Report of Foreign Bank and Financial Account Form. It is required for U.S. Person with more than $10,000 in annual aggregate total in foreign accounts on any given day of the year. This is filed separately from your Tax Return

FBAR Filing

This is the process of filing your FBAR directly on the BSA website.

BSA and BSA E- Filing

Refers to the Bank Secrecy Act. While it sounds very “Cloak and Dagger,” it’s not – it is the same site whether you have accounts in Switzerland, Cayman Islands, Bahamas, Japan or India.

FATCA Form 8938

The is the Foreign Account Tax Compliance Act Form for Individuals. It is to report “Specified Foreign Financial Assets.” It is filed along with your Tax Return, if you meet the threshold requirements.

Non-Willful is an Absolute Requirements

There is no bright-line test to determine willfulness.

It is a ‘Totality of the Circumstances‘ test based on whether or not your specific facts and circumstances reflect that you knew, or should have known that you were required to disclose and report your foreign accounts and offshore income — and made the decision not to disclose.

Generally, if a person was unaware that there was a foreign account/foreign income/foreign asset reporting requirement, the client begins in the “non-willful” category, but more analysis is needed.

How to Analyze 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 your 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?

Original Tax Returns

Original Returns under the Streamlined Domestic Program

If a person qualifies for the Streamlined Foreign Offshore Procedures, which is the same as the domestic procedures  (e.g. both programs are designed to facilitate the voluntary reporting of offshore/foreign money) except that the person resided outside of the United States for at least 330 days in any year, the person can file original tax returns through the program.

The rationale seems to be that if a person resides outside of the United States for 11 out of 12 months in a year, the IRS will cut them a break as tax filing.

Original Returns under the Streamlined Foreign Program

If a person does not qualify for the Streamlined Foreign Offshore Procedures (e.g., they do not qualify as a “Foreign Resident”)  then they must submit under the Streamlined Domestic Offshore Procedures. Under the Streamlined Domestic Offshore Procedures, a person cannot file original returns through the program.

Moreover, the person must have filed timely returns — although in our experience in working with the IRS, there may be some wiggle room as to that threshold (aka how untimely were the original returns)

5% Penalty is Based on the Year-End Value

The 5% penalty under the streamlined domestic offshore procedures is not paid on the Maximum balance of the FBAR and FATCA assets as some people incorrectly believe, and it is only based on the highest year-end balance — not every year.

Specifically, there is only one 5% penalty, and it is only paid for one year’s worth of unreported accounts and asset value — for the year tat has the highest 12/31 annual aggregate value.

In other words, a person will aggregate the total value of their accounts and assets on December 31 for each year individually. Then, the person will pick the highest December 31 annual aggregate total, and use that total only as the penalty base.

As stated above, the penalty is limited to 5%.

Example of the 5% Summary Calculation

There is no penalty for the Streamlined Foreign Program. The Streamlined Domestic has a 5% penalty. The penalty calculation is best explained when it broken down into steps:

We prepared a separate, step-by-step calculation for your review.

There is No Penalty on the Tax

Under traditional OVDP, there is a 20% penalty for each year of unpaid tax liability. Under the Streamlined Voluntary Disclosure Program, there is no penalty on the taxes that are due – although interest is due for each year of tax liability.

You Can Still be Audited

Under the streamlined program, a person can still be audited. Unlike traditional OVDP, in which the IRS pretty much states that as long as a person fully discloses and fully cooperates with the IRS, he or she will not be audited — under the streamlined program the IRS can still audit the applicant.

For many individuals, depending on the facts and circumstances of their case, they may still choose to enter traditional OVDP in order to avoid the unknown of whether they will be audited or examined under the streamlined program.

This is important, because the IRS is not required to provide a clear-cut definition/analysis of how a person is to determine whether they are willful or not.  Therefore, while a person may believe they are non-willful – the IRS may differ.

Moreover, even if a person is audited for an issue outside the Streamlined Program, they may still be questioned and examined about the Offshore Disclosure (usually up to 6 Years)

Streamlined Voluntary Disclosure Options

There are two (2) options for making a Streamlined Voluntary Disclosure:

  • Streamlined Domestic Offshore Procedures (SDOP)
  • Streamlined Foreign Offshore Procedures (SFOP)

U.S. Resident Streamlined Procedures (Domestic)

Streamlined Filing Compliance Procedures for US persons residing in the United States (or do not meet the technical “Foreign Resident Test”) is referred to as the Streamlined Domestic Offshore Procedures for U.S. Residents.

Typically, there are three (3) main eligibility requirements that a U.S. Taxpayer must meet in order to qualify and become eligible for the Streamlined Domestic Offshore Procedures.

The requirements include:

  • Non-Willful Certification Statement using IRS Form 14654
  • Not Qualify as a Foreign Resident
  • Filed Timely Tax Returns

Streamlined Domestic Resources:

U.S. Resident Streamlined Procedures (Foreign)

Streamlined Filing Compliance Procedures for US persons residing outside the United States is referred to as the Streamlined Foreign Offshore Procedures.

Streamlined Foreign Offshore Procedures (SFOP) 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! It allows individuals to come into IRS Tax and Reporting Compliance, without having to pay any penalties.

The requirements include:

  • 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.

Streamlined Domestic Resources:

A detailed summary on eligibility and submission requirements for the Streamlined Foreign Offshore Procedures.

International Informational 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.

How is The Streamlined Penalty Calculated?

The penalty calculation is best explained when it broken down into steps:

We prepared a separate, step-by-step calculation for your review.

Streamlined FAQ?

Golding & Golding, has created a comprehensive streamlined offshore procedures FAQ, which can be found here.  The IRS version can be found here.

IRS Offshore Penalty List

In reality, the IRS doesn’t issue penalties against every individual with undisclosed or unreported foreign money. In addition, the IRS offers various amnesty program to facilitate compliance.

Depending on your facts and circumstances you may qualify for various alternatives to amnesty, which may result in a complete penalty waiver.

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

A Penalty for failing to file FBARs

United States citizens, residents and certain other persons must annually report their direct or indirect financial interest in, or signature authority (or other authority that is comparable to signature authority) over, a financial account that is maintained with a financial institution located in a foreign country if, for any calendar year, the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the year. 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.

FATCA Form 8938

Beginning with the 2011 tax year, a penalty for failing to file Form 8938 reporting the taxpayer’s interest in certain foreign financial assets, including financial accounts, certain foreign securities, and interests in foreign entities, as required by IRC § 6038D. 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

Annual Return to Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts. Taxpayers must also report various transactions involving foreign trusts, including creation of a foreign trust by a United States person, transfers of property from a United States person to a foreign trust and receipt of distributions from foreign trusts under IRC § 6048. This return also reports the receipt of gifts from foreign entities under IRC § 6039F. 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

Information Return of Foreign Trust With a U.S. Owner. Taxpayers must also report ownership interests in foreign trusts, by United States persons with various interests in and powers over those trusts under IRC § 6048(b). 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

Information Return of U.S. Persons with Respect to Certain Foreign Corporations. Certain United States persons who are officers, directors or shareholders in certain foreign corporations (including International Business Corporations) are required to report information under IRC §§ 6035, 6038 and 6046. 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

Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a U.S. Trade or Business. Taxpayers may be required to report transactions between a 25 percent foreign-owned domestic corporation or a foreign corporation engaged in a trade or business in the United States and a related party as required by IRC §§ 6038A and 6038C. 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

Return by a U.S. Transferor of Property to a Foreign Corporation. Taxpayers are required to report transfers of property to foreign corporations and other information under IRC § 6038B. 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

Return of U.S. Persons With Respect to Certain Foreign Partnerships. United States persons with certain interests in foreign partnerships use this form to report interests in and transactions of the foreign partnerships, transfers of property to the foreign partnerships, and acquisitions, dispositions and changes in foreign partnership interests under IRC §§ 6038, 6038B, and 6046A. 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.

Hiring A Streamlined Voluntary Disclosure Attorney

People Can be Whomever They Want to be Online

And that is the problem.

In recent years, we have had many clients come to us after being horribly represented by inexperienced tax counsel. While we are sure it is a problem in many fields, it seems to run rampant in IRS offshore voluntary disclosure.

These Attorneys ‘manipulate’ their past legal experiences, such as working for the IRS —  to make themselves sound more experienced than they are. You later find that they never worked as an attorney for the IRS, or even in the offshore disclosure department.  

The IRS has nearly 100,000 employees, and just being one of them does not make an attorney qualified to be an effective and experienced offshore voluntary disclosure tax attorney specialist.

IRS Offshore Disclosure is complex enough for experienced practitioners who focus exclusively in the area of law, never mind relative newcomers who are trying to handle more than just offshore voluntary disclosure as part of their everyday tax practice.

We know, because those cases usually end up on our door-step.  Examples of recent cases we had to takeover from less experienced Attorneys can be found by Clicking Here (Case 1) and Clicking Here (Case 2).

Streamlined Voluntary Disclosure Lawyers

Nearly all the experienced Attorneys in this field will have 5 Main Attributes:

  • Board Certified Tax Law Specialist
  • Master’s of Tax Law (aka LL.M.)
  • Dually Licensed as an Enrolled Agent or CPA
  • Around 20-Years of Private Practice experience
  • Extensive Litigation, Trial and related high-stakes experience.

Understanding How Tax Prep & Legal Fees Work in Offshore Disclosure

A summary of Offshore Disclosure Lawyer and Tax/Accountant Fees.

Offshore Disclosure — Flat-Fee, Full-Service

All Non-Willful cases should be Flat-Fee, Full-Service for both Tax and Legal.

*If you were willful in not submitting the FBAR, the submission and analysis is much different depending on whether the IRS has contacted you yet, if you are under investigation, etc. — and you should speak with experienced counsel.

Need a Second Opinion about Streamlined Voluntary Disclosure?

Lately, with rumblings of the Streamlined Disclosure Program, aka Streamlined Voluntary Disclosure aka Streamlined Filing Compliance Procedures coming to an end, some younger and inexperienced attorneys are in disarray — and handing out terrible advice to make a quick buck — and putting clients at risk. 

If you are unsure about advice you received about the Streamlined Disclosure program, let Golding & Golding offer you a second opinion about advice you received, with a “reduced-fee consultation.

Contact Us Today; Let us Help You.

International Tax Lawyers - Golding & Golding, A PLC

International Tax Lawyers - Golding & Golding, A PLC

Golding & Golding: Our International Tax Lawyers practice exclusively in the area of IRS Offshore & Voluntary Disclosure. We represent clients in 70 different countries. Managing Partner, Sean M. Golding, JD, LL.M., EA and his team have represented thousands of clients in all aspects of IRS offshore disclosure and compliance during his 20-year career as an Attorney. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo and various Law Journals nationwide.

Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)
International Tax Lawyers - Golding & Golding, A PLC