- 1 U.S. Tax on Singapore Income
- 1.1 U.S. Taxation of CPF Analysis – 3 Sections
- 1.2 1. CPF & U.S. Tax
- 1.3 How is a CPF Taxed in Singapore?
- 1.4 Isn’t CPF the Same as U.S. Retirement
- 1.5 U.S. CPF Taxation – 4 Common Examples
- 1.6 2. CPF and U.S. Reporting
- 1.7 What Forms Do I Report the CPF on?
- 1.8 FBAR (FinCEN 114)
- 1.9 Form 8938
- 1.10 Schedule B, Foreign Accounts
- 1.11 Form 8621
- 1.12 Form 3520-A
- 1.13 3. IRS Voluntary Disclosure/Foreign Amnesty
- 1.14 We Specialize in IRS Voluntary Disclosure
- 1.15 No Case is Too Big; No Case is Too Small.
- 1.16 Who Decides to Submit to IRS Voluntary Disclosure?
- 1.17 The Basics of IRS Voluntary Disclosure
- 1.18 IRS Voluntary Disclosure of Offshore Accounts
- 1.19 When Do I Need to Use Voluntary Disclosure?
- 1.20 Common Un-filed IRS International Tax Forms
- 1.21 Golding & Golding – Offshore Disclosure
- 1.22 The Devil is in the Details…
- 1.23 What if You Never Report the Money?
- 1.24 Getting into Compliance
- 1.25 5 IRS Methods for Offshore Compliance
- 1.26 1. OVDP (Ends on 9/28/2018)
- 1.27 2. Streamlined Domestic Offshore Disclosure
- 1.28 3. Streamlined Foreign Offshore Disclosure
- 1.30 4. Reasonable Cause
Singapore Income and U.S. Taxation – IRS & Singapore Tax Rule Basics
Each year we represent many clients from Singapore. As is very common for clients in the United States who previously worked in Singapore, they will have a CPF (Central Provident Fund).
In addition, many clients will have other investments such us:
- UOB trust
- Life Insurance/Life Assurance
- Mutual Funds
- Investment Funds
U.S. Tax on Singapore Income
A CPF as a government mandated retirement plan. It is one of the few foreign retirement plans in which the United States has issued memoranda as to the U.S. taxation rules of the fund.
While the Social Security Administration (SSA) identifies the CPF as a type of private Social Security (which would ordinarily provide it with certain tax benefits), the IRS has determined it is essentially a type of investment fund that requires taxation on both deferrals and growth within the fund.
- SSA is not binding on the IRS
- There is no Totalization Agreement with Singapore.
U.S. Taxation of CPF Analysis – 3 Sections
1. Tax – Deferrals and Growth
Learn how the CPF contributions and growth are taxed by the U.S.
2. Reporting – FBAR, FATCA, Schedule B & More
Learn how to disclose the account information to the IRS.
3. Amnesty – IRS Foreign Reporting Amnesty Options
Learn how to get into compliance if you have not properly paid tax or reported the account information to to the IRS.
1. CPF & U.S. Tax
When it comes to the U.S. taxation of the CPF, unfortunately the IRS has already determined that it is taxed twofold:
– First, the deferrals from the employer on behalf of the employee that are placed into the CPF ‘fund’ are taxed now, and not deferred.
– Second, the growth within the fund is taxed as well.
At a future date, when you take a withdrawal, you are not taxed again on the withdrawal of the previously taxed money. Rather, you are taxed presently on the growth within the fund (since that is the income that is being generated), and then that same income can subsequently be withdrawn, tax-free.
*The withdrawal is a separate issue — but it is not taxed solely as a result of you actually “touching” the money vs. when it grew within the fund.
How is a CPF Taxed in Singapore?
As provided by the IRAS in Singapore:
-Compulsory CPF Contributions relating to employment in Singapore: Not Taxable
-Voluntary CPF Contributions relating to employment in Singapore, i.e. amount in excess of compulsory contributions to be made by employer: Taxable
-Contributions made from 1 Jan 2004 relating to employment outside Singapore: Not Taxable since the contribution is a foreign-sourced income
-Contributions relating to Director’s Fees: Taxable
Voluntary CPF Contributions
Employers may also make voluntary CPF contributions to an employee’s CPF account.
Voluntary CPF contributions made by the employer relating to employment in Singapore are taxable. The employer must prepare Form IR8S if there is excess CPF contributions made in the current year and give the form to the employee.
If the excess employer’s contributions have been brought to tax and the employer has claimed or is claiming a refund, the employee should forward the completed Form IR8S to IRAS. IRAS will then review the employee’s assessment accordingly.
Generally, CPF withdrawals are not taxed. There are various rules, exceptions, etc. involving:
- How old the person is taking the withdrawal?
- How much is the withdrawal?
- is the person still a Singaporean Citizen or Resident?
- What the purpose of the withdrawal?
- What portion remains for retirement?
Isn’t CPF the Same as U.S. Retirement
Not really, but kind of, sort of…
As to retirement, such as a 401(k), it is not compulsory. While it is typically a good idea to max out your 401(k), you are not required to do show no matter who your employer is or where you live.
If you are working in Singapore, then you have to have salary contributed to the CPF; it is compulsory. If you do not work in Singapore (and there are some other more complex rules involving whether you work for a foreign employer, or Singaporean employer) then you do not have to contribute to the CPF.
For example, since Singapore does not allow dual citizenship, if you are a Singaporean citizen residing in United States as a Legal Permanent Resident or Visa Holder and earning income in the United States from a U.S. employer, then no contributions from the US employer would go to the CPF.
In other words, just because you are a Singaporean citizen does not mean you are required to have contributions from all sources.
Instead of being compulsory, a 401K is voluntary.
Example of Retirement – 401K
David is a US person who works for a U.S. company. This company defers $10,000 each year of David’s salary into his 401(k). That $10,000 is eliminated from David’s tax for the current year. Instead, at a future date when David’s retirement kicks in and he begins taking withdrawals, he will be taxed on the withdrawals at that time.
Purpose: Presumably, David is at a higher tax bracket during his working years versus retirement nears, and therefore he will be taxed at a lower tax bracket upon withdrawal.
Is it the Same as U.S. Social Security
No, not really.
U.S. social security contribution is relatively simple, and a way of life for U.S. Persons (subject to any applicable totalization agreement). We all pay (subject to a totalization agreement) 6.2 percent and your employer pays 6.2 percent. If you’re self-employed, you pay 12.4 percent. You don’t pay Social Security taxes on earnings greater than the annual cap. You and your employer each pay 1.45 percent.
When a person reaches a certain age, they begin receiving social security payments and the age in which a person begins taking social security can vary.. A person can typically elect to begin receiving U.S. Social Security at different ages, and then based on the total income received by the person, that will determine whether a portion or all of their social security is taxed (when a person earns less additional income, then less of the social security is taxed, and vice versa).
Differences between the CPF and U.S. Social Security
– Social Security is a defined benefit; CPF ROI (Distributions) will vary based on investment type and value of the fund.
– CPF has various designated accounts for different purposes; Social Security is a single monthly payment.
– You may be able withdraw the a majority of CPF balance in one withdrawal (or in full under limited circumstances)
– A CPF has a set amount of money (based on earnings) per person that can be withdrawn in full, U.S. Social Security does not; it is a continued benefit.
– A CPF has an account number, specific to the individual, social security does not.
– You cannot choose the fund for investments or investment strategy for Social Security, but you can for a CPF (many different types of investment strategies and risks).
U.S. CPF Taxation – 4 Common Examples
CPF – Non – U.S. Person (Employer Deferrals)
Michael is a Singaporean citizen resides in Singapore. While residing in Singapore he works for a Singaporean company and the company defers money into the CPF each year. The money is allocated into various different accounts within the CPF, and then grows just as a 401(k) would grow.
Michael (absent certain exceptions) is not able to access that money during his working years but will be able to access the money upon retirement (or other milestone). Of course, Michael is a non-U.S. person with not U.S. Income, so the IRS cannot tax him at all on the income.
CPF – U.S. Person (Employer Deferrals)
David is a U.S. citizen and Singaporean Resident who resides in Singapore. While residing in Singapore he works for a Singaporean company and the company defers money into the CPF each year. The money is allocated into various different accounts within the CPF, and then grows just as a 401(k) would grow.
The IRS taxes the deferred income; it is not exempt for U.S. Tax.
This is true, even though (absent certain exceptions) David not able to access that money during his work years.
CPF – Non – U.S. Person (Growth within the Fund)
If a person is in non-US person, then there will be no impact from a US tax perspective; in other words, the IRS would have no business being involved in an non-US person’s non-US retirement. The fund would grow over the lifetime of the investment and then when it is time to retire, the individual can take certain withdrawals.
CPF – U.S. Person (Growth within the Fund)
Unfortunately, if the employee is a US person and there is growth within the fund, then the IRS will tax the growth within the fund. For example, if Brian has a CPF that generated $6,000 in passive income, then Brian will pay tax on the growth — even though he is not withdrawing the money, and even though he would most likely avoid paying any Singaporean tax at that time.
2. CPF and U.S. Reporting
When it comes to reporting your CPF account on your U.S. tax return, it can get a little more complicated. This is typically because many practitioners handle international tax but continue to represent individualists without proper knowledge of the area of practice.
They tell their clients the following (common misconceptions):
- CPF is just like retirement, so it doesn’t need to be reported.
- FATCA agreement says you don’t have to report it.
- You didn’t withdraw any income, so you don’t have to report it.
- It is Government mandated, so it doesn’t need to be reported.
- It’s just like US Social Security ,and doesn’t need to be reported.
These are all incorrect assumptions, as follows:
The rules regarding reporting foreign retirement, investments, and other types of accounts are very clear. The FBAR and other reporting forms are not limited to just bank accounts. It includes all different types of financial accounts and there is no specific exclusion for retirement accounts. Therefore, simply because you have not accessed your CPF does not mean you do not have to report it.
The FATCA Agreement Says I Do Not Have to Report
Some FATCA agreements exclude certain types of reporting. Primarily it is the foreign government/entity that doesn’t have to report it, not the U.S. person. Therefore, if you are a U.S. person, then you are required to report the CPF (if it otherwise meets the threshold reporting requirements).
My CPF Didn’t Distribute any Income
Just because you didn’t receive or “touch” any income, does not have any impact on the reporting aspect of the CPF. In fact, if you have a CPF account, chances are you are earning income, even if you are not withdrawing the income (see above analysis). Nevertheless, even if it wasn’t earning any income, that does not impact whether or not you have to report it; you do have to report it.
A CPF is Government Mandated
Just because you are required to contribute to a CPF, (and just because the government may be exempt from reporting the CPF) does not impact reporting; you still have to report it.
Its Social Security
See above analysis regarding Social Security, but since it has a definitive amount of money, and an assigned account number — it would have to be reported.
What Forms Do I Report the CPF on?
FBAR (FinCEN 114)
We start off with the FBAR, because it is one of the IRS International Reporting forms that receives the most amount of press. The FBAR is used to Report Foreign Bank and Financial Accounts on an annual basis.
The form has a relatively low threshold requirement of $10,000. In other words, if you have an annual aggregate total of foreign accounts (including life insurance or retirement funds) that on any day of the year exceeds $10,000, then you are required to report this form. It does not matter if the money is in one account or spread over numerous accounts. And, it does not matter if the account is in your home country of citizenship or if you opened the account before relocating to the United States.
The US government does not look into the semantics that deeply; rather, if you meet the threshold requirement then you have to file the form.
When it comes to the FBAR, one of the main concerns are the FBAR Penalties.
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.
Form 8938 is a byproduct of FATCA (Foreign Account Tax Compliance Act). It is a form that is required to be filed with the tax return each year when a person meets the threshold requirements for filing. Unlike the FBAR, which is an electronic form which is submitted directly to the Department of Treasury (The FBAR is not submitted with your tax return), Form 8938 is part of your tax return.
Form 8938 requires you to provide extensive information regarding foreign accounts and specified foreign assets. For example, with the FBAR, reporting is limited to accounts and insurance policies (although those terms can have a very broad meaning). Conversely, with form 8938, the person must report Income — along with assets and accounts.
Therefore, if you were to own stock of a foreign company, that would be considered a Specified Foreign Asset that would need to be reported on a Form 8938 — but would not be reported on an FBAR.
Moreover, with the FBAR, a person is required to report the maximum balance in the account, but is not required to report any income that is generated from the accounts. The 8938 is more depth than that. Rather, with form 8938, a person must report the account balance along with the annual income that is generated from form 8938 accounts or assets.
Additionally, the income must be broken down by type of income earned (such as royalties, dividends, interest, capital gains) and/or whether the income was earned through a custodial or deposit account and/or it was earned through one of the specified foreign assets.
Form 8938 Penalties
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.
Schedule B, Foreign Accounts
In almost all situations, if a person has ownership, joint ownership, an interest in, or signature authority over a foreign account (yes, accounts from your home country are considered “Foreign”) the individual will have to mark “Yes” on Schedule B.
This is true, even if you do not meet the FBAR filing threshold, and/or the Form 8938 (FATCA) threshold filing requirement. Schedule B is not asking you how much; rather, it is just asking whether you have any ownership or signature authority over any foreign accounts.
IRS Form 8621 (Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund) is an IRS Form required to be filed by individuals who have any interest in a Passive Foreign Investment Company — whether or not they received an Excess Distribution, as long as they are not otherwise exempt from filing.
Unlike IRS Form 5471, there is no minimum ownership requirement. Technically, even if you have “fractional ownership,” of a PFIC you are still required to file — unless you meet one of the very limited exemptions/exclusions.
Moreover, the mere ownership of Foreign Mutual Funds and other foreign passive investments (that you do not technically own in a PFIC company) requires you to file the form.
The form can be daunting, especially when the filer also has a tax liability in accordance with form 8621.
Form 8621 Penalties
Notwithstanding Excess Distribution calculations, the “main non-numerical” penalty associated with form 8621 is completely unfair (you can read here about the sheer horror of the “Excess Distribution calculation“).
Why? Because technically, while there is no specific numerical penalty included regarding non-filing of Form 8621, a tax return is still considered to be “open” until the 8621 is filed. In other words, the statute of limitations countdown for the IRS to audit your tax return (usually 3 years) does not even begin to tick if the 8621 hasn’t been filed.
Even if you try to argue the return only remains open as to the 8621, but in reality, the IRS will most likely take you to task as to the whole return. Even if you could convince the agent that a post statute audit should be contained to 8621 issues, the IRS would just need to show some relation from the 8621 to other parts of your return to avoid that issue.
A Bit More on PFIC/CFP Rules
Typically, people invest in a Passive Foreign Investment Company accidentally, when they were not apprised of the severe tax consequences prior to investing in the PFIC. The most common “Accidental” PFIC is for foreign mutual funds.
Your CPF may have for mutual funds in it, but that may not necessarily be sufficient to make the entire CPF reportable on Form 8621.
Whether or not you have to file a form 8621 would depend specifically on your particular facts and circumstances. If you are in the situation and believe do You have a mutual fund/PFIC issue, you should speak with experience counsel.
Form 3520-A is a bit different than form 3520. Form 3520-A is required to be filed by a US person if the US person owns a foreign trust. A foreign trust with a U.S. owner must file Form 3520-A in order for the U.S. owner to satisfy its annual information reporting requirements under section 6048(b).
Each U.S. person treated as an owner of any portion of a foreign trust under the grantor trust rules (sections 671 through 679) is responsible for ensuring that the foreign trust files Form 3520-A and furnishes the required annual statements to its U.S. owners and U.S. beneficiaries.
The problem with this form is that if the owner/trustee of the trust does not report the form, then technically the trust may be subject to fines and penalties, which can be very substantial, depending on the facts and circumstances of the reporting.
Form 3520-A Penalties
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 Bit More on Foreign Trust/CPF Rules
The same type of issue similar to a PFIC may occur the situation which you may have a foreign trust. Typically, in these types of situations unless you have contributed more to the fund then the employer and/or are highly compensated employee, reporting a CPF as a foreign trust may not be required.
With that said, you may wish to speak with an experienced tax attorney on this issue.
3. IRS Voluntary Disclosure/Foreign Amnesty
If you have not properly reported your CPF to the US tax authorities you may have an issue. Since the nondisclosure is typically accompanied by the nondisclosure of the income generated, you may also have a potential penalty for not reporting.
Depending on the facts and circumstances you may qualify for one of the following programs:
- OVDP (Expires on 9/28)
- IRS Voluntary Disclosure (Non-OVDP)
- Streamlined Domestic Offshore Procedures
- Streamlined Foreign Offshore Procedures
- Reasonable Cause
We Specialize in IRS Voluntary Disclosure
We have successfully handled a diverse range of IRS Voluntary Disclosure cases. Whether it is a simple or complex case, safely getting clients into compliance is our passion, and we take it very seriously.
Unlike other attorneys who call themselves specialists but handle 10 different areas of tax law, purchase multiple domain names, and even practice outside of tax, we are absolutely dedicated to IRS Voluntary Disclosure.
No Case is Too Big; No Case is Too Small.
We represent all different types of clients. High net-worth investors (over $40 million), smaller cases ($100,000) and everything in-between.
We represent clients in over 60 countries and nationwide, with all different types of assets, including (each link takes you to a Golding & Golding free summary):
- Foreign Mutual Funds
- Foreign Life Insurance
- Fixing Quiet Disclosure
- Foreign Real Estate Income
- Foreign Real Estate Sales
- Foreign Earned Income Exclusion
- Subpart F Income
- Foreign Inheritance
- Foreign Pension
- Form 3520
- Form 5471
- Form 8621
- Form 8865
- Form 8938 (FATCA)
Who Decides to Submit to IRS Voluntary Disclosure?
All different types of people submit to OVDP. We represent Attorneys, CPAs, Doctors, Investors, Engineers, Business Owners, Entrepreneurs, Professors, Athletes, Actors, Entry-Level staff, Students, and more.
You are not alone, and you are not the only one to find himself or herself in this situation.
…We even represent IRS Staff with getting into compliance.
Sean M. Golding, JD, LL.M., EA – Board 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 and closely related 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.
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.
Our International Tax Lawyers represent hundreds of taxpayers annually in over 60 countries.
The Basics of IRS Voluntary Disclosure
There are typically four types of IRS Offshore Voluntary Disclosure programs, and they include:
- Offshore Voluntary Disclosure Program (OVDP)
- Streamlined Domestic Offshore Procedures (SDOP)
- Streamlined Foreign Offshore Procedures (SFOP)
- Reasonable Cause (RC)
IRS Voluntary Disclosure of Offshore Accounts
Offshore Voluntary Disclosure Tax law is very complex. There are many aspects that go into any particular tax calculation, including the legal status, marital status, business status and residence status of the taxpayer.
When Do I Need to Use Voluntary Disclosure?
Voluntary Disclosure is for individuals, estates, and businesses who are out of compliance with the IRS and the Department of Treasury. What does that mean? It means that for one or more years, you were required to file a U.S. tax return, FBAR or other International Informational Return and you did not do so timely, then you are out of compliance.
Common Un-filed IRS International Tax Forms
Common un-filed international tax forms, include:
- 1040 (Tax Returns)
- Schedule B (Ownership or Signature Authority over Foreign Accounts)
- FBAR (FinCEN 114)
- FATCA (Form 8938)
- Form 3520 (Gift from Foreign Person)
- Form 5471 (Foreign Corporations)
- Form 8621 (Foreign Investments, aka PFIC)
- Form 8865 (Foreign Partnership)
If the IRS discovers that you are out of compliance, you may become subject to extensive fines and penalties – ranging from a warning letter all the way up to tax liens, tax levies, seizures, and criminal investigations. To combat this, you can take the proactive approach and submit to IRS Offshore Voluntary Disclosure.
Golding & Golding – Offshore Disclosure
At Golding & Golding, we limit our entire practice to offshore disclosure (IRS Voluntary Disclosure of Foreign and U.S. Assets). The term offshore disclosure is a bit of a misnomer, because the term “offshore” generally connotes visions of hiding money in secret places such as the Cayman Islands, Bahamas, Malta, or any other well-known tax haven jurisdiction – but that is not the case.
In fact, any money that is outside of the United States is considered to be offshore; the term offshore is not a bad word. In other words, merely because a person has money offshore (a.k.a. overseas or in a foreign country) does not mean that money is the result of ill-gotten gains or that the money is being “hidden.”
It just means it is not in the United States. Many of our clients have assets and bank accounts in their homeland countries and these are considered offshore assets and offshore bank accounts.
The Devil is in the Details…
If you do have money offshore, then it is very important to ensure that the money has been properly reported to the U.S. government. In addition, it is also very important to ensure that if you are earning any foreign income from that offshore money, that the earnings are being reported on your U.S. tax return.
It does not matter whether your money is in a country that does not tax a particular category of income (for example, many Asian countries do not tax passive income). It also does not matter if you are a dual citizen and/or if that money has already been taxed in the foreign country.
Rather, the default position is that if you are required to file a U.S. tax return and you meet the minimum threshold requirements for filing a U.S. tax return, then you have to include all of your foreign income. If you already paid foreign tax on the income, you may qualify for a Foreign Tax Credit. In addition, if the income is earned income – as opposed to passive income – and you meet either the Bona-Fide Resident Test or Physical-Presence Test, then you may qualify for an exclusion of that income; nevertheless, the money must be included on your tax return.
What if You Never Report the Money?
If you are in the unfortunate position of having foreign money or specified foreign assets that should have been reported to the U.S. government, but which you have not reported — then you are in a bit of a predicament, which you will need to resolve before it is too late.
As we have indicated numerous times on our website, there are very unscrupulous CPAs, Attorneys, Accountants, and Tax Representatives who would like nothing more than to get you to part with all of your money by scaring you into believing you are automatically going to be arrested, jailed, or deported because you have unreported money. While that is most likely not the case (depending on the facts and circumstances of your specific situation), you may be subject to extremely high fines and penalties.
Moreover, if you knowingly or willfully hid your foreign accounts, foreign money, and offshore assets overseas, then you may become subject to even higher fines and penalties…as well as a criminal investigation by the special agents of the IRS and/or DOJ (Department of Justice).
Getting into Compliance
There are five main methods people/businesses use to get into compliance. Four of these methods are perfectly legitimate as long as you meet the requirements for the particular mechanism of disclosure. The fifth alternative, which is called a Quiet Disclosure a.k.a. Silent Disclosure a.k.a. Soft Disclosure, is ill-advised as it is illegal and very well may result in criminal prosecution.
5 IRS Methods for Offshore Compliance
- Streamlined Domestic Offshore Procedures
- Streamlined Foreign Offshore Procedures
- Reasonable Cause
- Quiet Disclosure (Illegal)
We are going to provide a brief summary of each program below. We have also included links to the specific programs. If you are interested, we have also prepared very popular “FAQs from the Trenches” for FBAR, OVDP and Streamlined Disclosure reporting. Unlike the technical jargon of the IRS FAQs, our FAQs are based on the hundreds of different types of issues we have handled over the many years that we have been practicing international tax law and offshore disclosure in particular.
After reading this webpage, we hope you develop a basic understanding of each offshore disclosure alternative and how it may benefit you to get into compliance. We do not recommend attempting to disclose the information yourself as you may become subject to an IRS investigation insofar as you will have to answer questions directly to the IRS, which you can avoid with an attorney representative.
If you retain an attorney, then you will get the benefit of the attorney-client privilege which provides confidentiality between you and your representative. With a CPA, there is a relatively small privilege which does provide some comfort, but the privilege is nowhere near as strong as the confidentiality privilege you enjoy with an attorney.
Since you will be dealing with the Internal Revenue Service and they are not known to play nice or fair – it is in your best interest to obtain an experienced Offshore Disclosure Attorney.
1. OVDP (Ends on 9/28/2018)
OVDP is the Offshore Voluntary Disclosure Program — a program designed to facilitate taxpayer compliance with IRS, DOT, and DOJ International Tax Reporting and Compliance. It is generally reserved for individuals and businesses who were “Willful” (aka intentional) in their failure to comply with U.S. Government Laws and Regulations.
The Offshore Voluntary Disclosure Program is open to any US taxpayer who has offshore and foreign accounts and has not reported the financial information to the Internal Revenue Service (restrictions apply). There are some basic program requirements, with the main one being that the person/business who is applying under this amnesty program is not currently under IRS examination.
The reason is simple: OVDP is a voluntary program and if you are only entering because you are already under IRS examination, then technically, you are not voluntarily entering the program – rather, you are doing so under duress.
Any account that would have to be included on either the FBAR or 8938 form as well as additional income generating assets such as rental properties are accounts that qualify under OVDP. It should be noted that the requirements are different for the modified streamlined program, in which the taxpayer penalties are limited to only assets that are actually listed on either an FBAR or 8938 form; thus the value of a rental property would not be calculated into the penalty amount in a streamlined application, but it would be applicable in an OVDP submission.
An OVDP submission involves the failure of a taxpayer(s) to report foreign and overseas accounts such as: Foreign Bank Accounts, Foreign Financial Accounts, Foreign Retirement Accounts, Foreign Trading Accounts, Foreign Insurance, and Foreign Income, including 8938s, FBAR, Schedule B, 5741, 3520, and more.
What is Included in the Full OVDP Submission?
The full OVDP application includes:
- Eight (8) years of Amended Tax Return filings;
- Eight (8) Years of FBAR (Foreign Bank and Account Reporting Statements);
- Penalty Computation Worksheet; and
- Various OVDP specific documents in support of the application.
Under this program, the Internal Revenue Service wants to know all of the income that was generated under these accounts that were not properly reported previously. The way the taxpayer accomplishes this is by amending tax returns for eight years.
Generally, if the taxpayer has not previously reported his accounts, then there are common forms which were probably excluded from the prior year’s tax returns and include 8938 Forms, Schedule B forms, 3520 Forms, 5471 Forms, 8621 Forms, as well as proof of filing of FBARs (Foreign Bank and Financial Account Reports).
The taxpayer is required to pay the outstanding tax liability for the eight years within the disclosure period – as well as payment of interest along with another 20% penalty on that amount (for nonpayment of tax). To give you an example, let’s pick one tax year during the compliance period. If the taxpayer owed $20,000 in taxes for year 2014, then they would also have to include in the check the amount of $4,000 to cover the 20% penalty, as well as estimated interest (which is generally averaged at about 3% per year). This must be done for each year during the compliance period.
Then there is the “FBAR/8938” Penalty. The Penalty is 27.5% (or 50% if any of the foreign accounts are held at an IRS “Bad Bank”) on the highest year’s “annual aggregate total” of unreported accounts (accounts which were previously reported are not calculated into the penalty amount).
For OVDP, the annual aggregate total is determined by adding the “maximum value” of each unreported account for each year, in each of the last 8 years. To determine what the maximum value is, the taxpayer will add up the highest balances of all of their accounts for each year. In other words, for each tax year within the compliance period, the application will locate the highest balance for each account for each year, and total up the values to determine the maximum value for each year.
Thereafter, the OVDP applicant selects the highest year’s value, and multiplies it by either 27.5%, or possibly 50% if any of the money was being held in what the IRS considers to be one of the “bad banks.” When a person is completing the penalty portion of the application, the two most important things are to breathe and remember that by entering the program, the applicant is seeking to avoid criminal prosecution!
2. Streamlined Domestic Offshore Disclosure
The Streamlined Domestic Offshore Disclosure Program is a highly cost-effective method of quickly getting you into IRS (Internal Revenue Service) or DOT (Department of Treasury) compliance.
What am I supposed to Report?
There are three main reporting aspects: (1) foreign account(s), (2) certain specified assets, and (3) foreign money. While the IRS or DOJ will most likely not be kicking in your door and arresting you on the spot for failing to report, there are significantly high penalties associated with failing to comply.
In fact, the US government has the right to penalize you upwards of $10,000 per unreported account, per year for a six-year period if you are non-willful. If you are determined to be willful, the penalties can reach 100% value of the foreign accounts, including many other fines and penalties… not the least being a criminal investigation.
Reporting Specified Foreign Assets – FATCA Form 8938
Not all foreign assets must be reported. With that said, a majority of assets do have to be reported on a form 8938. For example, if you have ownership of a foreign business interest or investment such as a limited liability share of a foreign corporation, it may not need to be reported on the FBAR but may need to be disclosed on an 8938.
The reason why you may get caught in the middle of whether it must be filed or not is due largely to the reporting thresholds of the 8938. For example, while the threshold requirements for the FBAR is when the foreign accounts exceed $10,000 in annual aggregate total – and is not impacted by marital status and country of residence – the same is not true of the 8938.
The threshold requirements for filing the 8938 will depend on whether you are married filing jointly or married filing separate/single, or whether you are considered a US resident or foreign resident.
Other Forms – Foreign Business
While the FBAR and Form 8938 are the two most common forms, please keep in mind that there are many other forms that may need to be filed based on your specific facts and circumstances. For example:
- If you are the Beneficiary of a foreign trust or receive a foreign gift, you may have to file Form 3520.
- If you are the Owner of a foreign trust, you will also have to file Form 3520-A.
- If you have certain Ownerships of a foreign corporation, you have to file Form 5471.
- And (regrettably) if you fall into the unfortunate category of owning foreign mutual funds or any other Passive Foreign Investment Companies then you will have to file Form 8621 and possibly be subject to significant tax liabilities in accordance with excess distributions.
Reporting Foreign Income
If you are considered a US tax resident (which normally means you are a US citizen, Legal Permanent Resident/Green-Card Holder or Foreign National subject to US tax under the substantial presence test), then you will be taxed on your worldwide Income.
It does not matter if you earned the money in a foreign country or if it is the type of income that is not taxed in the country of origin such as interest income in Asian countries. The fact of the matter is you are required to report this information on your US tax return and pay any differential in tax that might be due.
In other words, if you earn $100,000 USD in Japan and paid 25% tax ($25,000) in Japan, you would receive a $25,000 tax credit against your foreign earnings. Thus, if your US tax liability is less than $25,000, then you will receive a carryover to use in future years against foreign income (you do not get a refund and it cannot be used against US income). If you have to pay the exact same in the United States as you did in Japan, it would equal itself out. If you would owe more money in the United States than you paid in Japan on the earnings (a.k.a. you are in a higher tax bracket), then you have to pay the difference to the U.S. Government.
3. Streamlined Foreign Offshore Disclosure
What do you do if you reside outside of the United States and recently learned that you’re out of US tax compliance, have no idea what FATCA or FBAR means, and are under the misimpression that you are going to be arrested and hauled off to jail due to irresponsible blogging by inexperienced attorneys and accountants?
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 tax years or do not meet the Substantial Presence Test), you may be in for a pleasant surprise.
Even though you may be completely out of US tax and reporting compliance, you may qualify for a penalty waiver and ALL of your disclosure penalties would be waived. Thus, all you will have to do besides reporting and disclosing the information is pay any outstanding tax liability and interest, if any is due. (Your foreign tax credit may offset any US taxes and you may end up with zero penalty and zero tax liability.)
*Under the Streamlined Foreign, you also have to amend or file 3 years of tax returns (and 8938s if applicable) as well as 6 years of FBAR statements just as in the Streamlined Domestic program.
4. Reasonable Cause
Reasonable Cause is different than the above referenced programs. Reasonable Cause is not a “program.” Rather, it is an alternative to traditional Offshore Voluntary Disclosure, which should be considered on a case by case basis, taking the specific facts and circumstances into consideration.
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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.)
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