Classification of Taxpayers for U.S. Tax Purposes

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U.S. law treats U.S. persons and foreign persons differently for tax purposes. Therefore, it is important to be able to distinguish between these two types of individual taxpayers.  This area of the tax law can be quite confusing.

For an individual to be classified as ”United States person” for tax purposes means he or she is one of the following:

  • A citizen of the United States
  • A resident of the United States who holds a Green Card or “H1B” Visa
  • A resident of the United States who meets the “Substantial Presence Test” for the calendar year

The following individuals if NOT residents or citizens of the U.S. should be treated as foreign persons:

  • An individual temporarily present in the United States as a foreign government-related individual under an “A” or “G” visa.
  • A teacher or trainee temporarily present in the United States under a “J” or “Q” visa, who substantially complies with the requirements of the visa.
  • A student temporarily present in the United States under an “F”, “J”, “M”, or “Q” visa, who substantially complies with the requirements of the visa.
  • A professional athlete temporarily in the United States to compete in a charitable sports event.

Under the “Substantial Presence Test” you will be considered a U.S. resident for tax purposes if you meet the substantial presence test for calendar year 2013. To meet this test, you must be physically present in the United States on at least:

  1. 31 days during 2013, and
  2. 183 days during the 3-year period that includes 2013, 2012, and 2011, counting:
    1. All the days you were present in 2013, and
    2. 1/3 of the days you were present in 2012, and
    3. 1/6 of the days you were present in 2011.

Example.

You were physically present in the United States on 120 days in each of the years 2011, 2012, and 2013. To determine if you meet the substantial presence test for 2013, count the full 120 days of presence in 2013, 40 days in 2012 (1/3 of 120), and 20 days in 2011 (1/6 of 120). Because the total for the 3-year period is 180 days, you are not considered a resident under the substantial presence test for 2013.

If you are determined to be a U.S. person, you are required to report your world-wide income on your U.S. income tax returns and annually disclose all foreign bank accounts to the U.S. Treasury where the aggregate value of those accounts exceed $10,000.00.

For those U.S. persons who have not satisfied these requirements in any of the last six calendar years, in addition to the back taxes, interest and penalties, the government may impose include a fine of not more than $500,000.00 and imprisonment of not more than five years, for failure to file a report, supply information, and for filing a false or fraudulent report.

The IRS has established the Offshore Voluntary Disclosure Initiative (OVDI) which allows U.S. persons to come forward to avoid criminal prosecution and not have to bear the full amount of penalties normally imposed by IRS.  U.S. persons who hire an experienced tax attorney in Offshore Account Voluntary Disclosures should result in avoiding any pitfalls and gaining the maximum benefits conferred by this program.

Disclosing Foreign Bank Accounts Through the OVDI Program

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A taxpayer who has not disclosed foreign bank accounts to the IRS and to cure this delinquency and avoid criminal repercussions applies to the Offshore Voluntary Disclosure Initiative (“OVDI”), generally must pay a miscellaneous Title 26 offshore penalty, in lieu of traditional penalties that would apply to foreign assets or entities outside of OVDI.  The most significant penalty that the offshore penalty replaces is the penalty for failure to file a Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”).  The civil penalty for willful failure to file an FBAR equals the greater of $100,000 or 50% of the total balance of the foreign account per violation.  Non-willful violations that are not due to reasonable cause incur a penalty of $10,000 per violation.

Generally, the miscellaneous offshore penalty under the OVDI program equals 27.5% of the highest aggregate balance in the foreign assets or entities during the years covered by the OVDI program, but may be reduced in limited cases to 12.5% or 5%.  For example, consider a taxpayer who has the following account balances for the eight-year OVDI disclosure period 2005 through 2012:

Year

Interest Income

Account Balance

2005

$1,000

$1,001,000

2006

$1,000

$1,002,000

2007

$1,000

$1,003,000

2008

$1,000

$1,004,000

2009

$1,000

$1,005,000

2010

$1,000

$1,006,000

2011

$1,000

$1,007,000

2012

$1,000

$1,008,000

 

A taxpayer in the OVDI program will pay any additional tax and a 20% accuracy-related penalty for the unreported interest income each year, plus the offshore penalty equal to 27.5% of the highest account balance during the disclosure period, or $277,200 ($1,008,000 x 27.5%).

By contrast, if the taxpayer does not participate in the OVDI program, the IRS could charge a fraud penalty of 75% instead of the 20% accuracy-related penalty for the unreported interest income each year, plus the offshore penalty equal to 50% of the highest account balance during the disclosure period, or $504,000 ($1,008,000 x 50%) (50% of the highest account balance for each of the past six years).  The IRS could also proceed with criminal prosecution that could include incarceration.

Certain taxpayers may qualify for even greater savings through a reduction of the offshore penalty.  Taxpayers whose highest aggregate foreign account balance is less than $75,000 for each of the years in the OVDI disclosure period may qualify for a reduced 12.5% offshore penalty.

Taxpayers who fall into one of three specific categories may qualify for a reduced 5% offshore penalty.  The first category includes taxpayers who inherited the undisclosed foreign accounts or assets.  Second, taxpayers who are foreign residents and who were unaware that they were U.S. citizens may qualify for a reduced 5% offshore penalty.  Finally, U.S. taxpayers who are foreign residents may also qualify for the reduced penalty in certain circumstances.  The taxpayer in the example above would only pay an offshore penalty of $50,400 ($1,008,000 x 5%). The IRS has been very strict in applying the 5% rate so it would be in your best interest to have the tax attorneys of the Law Office Of Jeffrey B. Kahn, P.C. represent you to avoid any pitfalls and gain the maximum benefits conferred by this program, including a possibility of reduced offshore penalties.

Beware the Potential Tax Pitfalls of Investing in Offshore Mutual Funds – “PFIC” Concerns

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U.S. persons ought to be aware of the potential tax heartaches associated with investing in mutual funds held by foreign banks or foreign brokerage firms. When making such investments through U.S. firms, any appreciation or depreciation of value of the funds is not recognized as gain or loss until the fund is sold or liquidated.  This is not the case with the same type of investments in foreign firms.  Each year the U.S. investor must pick up as income or record a loss in the appreciation or depreciation of value of the funds even though there was no sale or liquidation of the funds.  Essentially, such an investor looses the advantage of deferring gains which is enjoyed by those investors dealing with U.S. firms.

To understand how this operates – Under the Internal Revenue Code, there is a concept called Passive Foreign Investment Company or “PFIC”.  A foreign corporation is classified as a PFIC if it meets one of the following tests:

  1. Income Test– 75% or more of the corporation’s gross income is passive income (interest, dividends, capital gains, etc.)
  2. Asset Test– 50% or more of the corporation’s total assets are passive assets; passive assets are investments that produce interest, dividends or capital gains.

The IRS has extended the characterization of a PFIC to include most foreign-based mutual funds, hedge funds and other pooled investment vehicles.

A. U.S. taxpayer with these investments is required to fill out Form 8621 and include it with his Form 1040 along with the appropriate PFIC income and tax computations.  The IRS offers various complicated methods of reporting PFIC income.  Under one such method, “Mark-to-Market”, the IRS requires the reporting of the value of a mutual fund from year to year and taxes any appreciation in the mutual fund values from year to year.  The tax rate that applies is 20%. This is in addition to the normal taxation of dividends and capital gains that domestic mutual funds are taxed on.

Reporting the appreciation of a mutual fund from year to year may end up being no small task as oftentimes a typical stock portfolio will contain twenty to thirty funds which may involve lots of trade activity over the course of many years.  The taxpayer needs to keep accurate and comprehensive records of all information on the mutual fund(s) including share basis, yearly balances, and any sales or purchases from year to year.

If you have never reported your foreign investments on your U.S. Tax Returns, the IRS has established the Offshore Voluntary Disclosure Initiative (OVDI) which allows taxpayers to come forward to avoid criminal prosecution and not have to bear the full amount of penalties normally imposed by IRS.  Taxpayers who hire an experienced tax attorney in Offshore Account Voluntary Disclosures should result in avoiding any pitfalls and gaining the maximum benefits conferred by this program.

Avoiding Penalties Through the First Time Abate Policy

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Taxpayers who are facing a potentially large IRS penalty for late or unpaid taxes may be eligible for relief through the First Time Abate policy. This provides an opportunity for people who have fallen behind to become current on their tax obligations while eliminating any penalties from a previous tax issue. The First Time Abate program allows a person to work with an IRS attorney to relieve the stress in their lives.

In order to qualify for the First Time Abate program, a taxpayer needs to have not had a previous delinquency with the IRS. You will want to work with an income tax attorney to determine if your case qualifies for the First Time Abate policy, as not all types of tax filings are eligible to have penalties waived. Examples of event filings that could qualify include:

  • Form 706 U.S. Estate Tax Returns
  • Form 709 United States Gift Tax Returns
  • Form 1120 U.S. Corporation Income Tax Returns

You’ll need to be current with your taxes in order to be eligible to have your penalties waived through the First Time Abate policy. This means that if you have taxes that aren’t fully paid off but you are on a payment plan negotiated between your tax attorney in San Jose and the IRS, you can still qualify.

The First Time Abate policy gives you a second chance at resolving a tax problem. If you are facing penalties but can’t prove “reasonable cause” that you can’t afford the penalties, the Law Offices Of Jeffrey B. Kahn, P.C. believes you should consider the First Time Abate policy.

Amending a Filing Will Not Trigger an Audit

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There is a common belief that if you amend your tax return, you are raising a red flag for an IRS tax lawyer to trigger a review of your return. In fact, many people won’t correct an incorrect, previously-filed

tax return because they are afraid of a potential audit. This is the wrong approach to take. The Law Offices Of Jeffrey B. Kahn, P.C. urges you to correct any errors on past tax returns in order to avoid potential problems in the future.

The reality is that you won’t trigger an audit by amending a previous tax return. If the IRS did this, it would be a major deterrent for taxpayers to correct mistakes or update previous tax filings with new information. The IRS wants people to pay the right amount in taxes and not overpay or underpay. Allowing taxpayers the chance to work with an Orange County tax lawyer to amend their previous filings makes sense for the IRS as well as taxpayers.

An amended tax filing will go through the same audit review process as any other filing. If you are concerned about how a change in your filing status might impact an audit review, make sure to provide a detailed description of why you are changing your filing status on your Form 1040X.

Not only will you not automatically trigger a tax audit by amending your tax return, you may leave yourself open to serious issues in the future if you don’t correct a tax filing. Not correcting a filing can be viewed similarly as willingly making a false tax filing and could open you up for major consequences that require a criminal tax attorney.

Warding Off a Tax Levy with a Payment Plan

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If you owe more in taxes than you can afford, you have several options to avoid going into default and incurring a tax lien or levy. One way to avoid protracted tax levy and lien issues with an IRS lawyer is to enter into a payment plan. Working with the Law Offices Of Jeffrey B. Kahn, P.C. is one of the most effective ways to negotiate a payment plan with the IRS that is right for you.

Depending on how much you owe will drive how much verification information/documents that IRS requires to consider a payment plan.  If you owe more than $50,000 in taxes, the IRS will require full verification of your financial information.  Likewise, if you are self-employed, you can expect the IRS to look at your financial information. No matter how much you owe, the IRS will be looking to set up a payment plan that will erase your debt within 60 or 72 months. If you owe more than you can pay within that timeframe, you’ll want to hire in tax lawyer in Fairfield or elsewhere to work on an Offer of Compromise to potentially reduce your debt.

You have a strong chance of having your payment plan accepted if you owe less than $10,000 and meet certain requirements including:

  • Having filed taxes on time for the previous five years while paying in full and not having requested an installation agreement.
  • Showing the IRS that you are unable to pay your tax bill in full.
  • Agreeing to pay your debt within three years.

Working with a tax attorney lawyer is the best way to assure that you get a payment plan that works for your situation and prevents IRS collection action to be taken against you.

The Pros and Cons of an Installment Agreement

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Owing back taxes doesn’t mean that you have to live in fear of penalties, the garnishment of wages or even criminal prosecution. If you live in the Bay Area and owe back taxes, it makes sense to work with a tax attorney in San Francisco to find a way to settle your debts. The IRS has several options available for taxpayers who owe back taxes and one of the easiest to enter into an installment agreement with the IRS. Before you reach out to a tax settlement attorney, learn a bit more about this option.

With an installment agreement, you pay off your tax debt in monthly installments. It eases the burden on you and allows you to pay off the debt in a comfortable manner. If you fail to make a payment, you do run the risk of going into default; setting up an automatic payment method such as direct withdrawal can help you to avoid this. Most installment agreements are set up with level monthly payments but there are also different types and terms of installment agreements which if you qualify may be more suitable for you.  Before you set up an installment agreement, you’ll want to contact an IRS audit attorney to determine what type of installment agreement would be best.

An installment agreement isn’t always the perfect option. For example, if you owe a large amount of money and can only afford to make minimum payments each month, you might find yourself paying for years without making a major dent into the principal amount that you owe. In this case, an option like an Offer in Compromise might be the better choice for you. Contacting the Law Offices Of Jeffrey B. Kahn, P.C. can help you in evaluating your options.

Using an Offer in Compromise to Avoid a Tax Lien

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Working with a tax lawyer in Los Angeles to reach an Offer in Compromise with the IRS is an effective tool for reducing the amount you owe in federal taxes. It can save you from dire consequences such as a lien against your property or having your wages garnished. If you are seeking an Offer in Compromise to reduce your debt and avoid a tax lien, the Law Offices Of Jeffrey B. Kahn, P.C. wants to let you know some variables that the IRS will consider when evaluating your case:

Health: If you have recurring health issues that are keeping you from earning a steady paycheck. The IRS might consider this as a factor in reducing or even eliminating the amount you owe in taxes. This may also happen if you are caring for a seriously ill dependent.

Age: People who are nearing or past retirement age will have less prospects for earning money in the future; this will mean that a tax relief attorney can sometimes successfully argue for the IRS to collect a smaller amount upfront to settle the debt since there is no guarantee of long-term future payments.

Amount of Offer: Working with a tax attorney can help you to greatly reduce the amount of your tax debt whereby you can settle for “pennies on the dollar”.  Because every potential Offer In Compromise is different, an offer amount that would be suitable for one taxpayer may not be high enough for another taxpayer.  That is where professional guidance from the tax attorneys at the Law Offices Of Jeffrey B. Kahn, P.C. comes in handy as we can set the balance between paying the lowest amount possible to the IRS with providing an Offer that the IRS would be interested in accepting — even though it’s for a small percentage of the total amount owed.

IRS Increases User Fee For Establishment Of Payment Plan

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Effective January 1, 2014, the user fee charged by IRS to establish a payment plan has been increased from $105.00 to $120.00.

If you cannot pay all that you owe now and do not qualify for an offer in compromise, an IRS installment agreement may be your next best option. Payment Agreements allow you to pay IRS debt in full in smaller, more manageable amounts, usually in equal monthly payments. The amount of your installment payment will be based on the amount you owe and your ability to pay that amount within the time available to the IRS to collect tax debt from you.  However, be aware that because you are financing your liability with IRS, interest and penalties will continue to accrue.

The IRS has different types of plan available and some even allow the IRS to refrain from filing a Federal Tax Lien which if filed would adversely effect your credit.  Additionally, the IRS cannot levy against your property (1) while your request for a Payment Agreement is under consideration, (2) while your agreement is in effect, (3) for 30 days after your request for an agreement has been rejected, or (4) for any period while an appeal of the rejection is being evaluated by the IRS.

Most people do not have the necessary skills or knowledge of the IRS collection process to propose a payment plan that can meet IRS standards and be within a person’s budget.

The tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. have extensive experience with getting reasonable payment plans processed by the IRS for the lowest possible monthly payment and secure a final acceptance with IRS.

IRS Increases Application Fee For Offer In Compromise

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Effective April 27, 2020, the application fee charged by IRS to apply for an Offer In Compromise has been increased from $186.00 to $205.00.

Established by the Internal Revenue Service, the Offer in Compromise Program is a formal application to the IRS requesting that it accept less than full payment for what you owe in taxes, interest, and penalties.

An offer in compromise may allow you to settle back taxes or IRS liability at a substantial discount on the basis of doubt as to collectability, liability, or effective tax administration. In addition, while your offer is under consideration, the Internal Revenue Service is prohibited from instituting any levies of your assets and wages.

Most people do not have the necessary skills or knowledge of the IRS collection process to make an offer in compromise that is in their best interest and can be processed by the IRS. Government figures show that 75% of offers are returned at the beginning due to forms being filled out incorrectly, and of the 25% that are processed, approximately 50% are rejected.

The tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. have extensive experience with getting Offers processed by the IRS for the lowest possible amount and secure a final acceptance with IRS.