As an incentive to drive taxpayers into the Offshore VoluntaryDisclosure Initiative (OVDI) the U.S. government continues to ramp up its efforts in searching for and flushing out income tax evaders who continue to utilize undisclosed foreign accounts, entities or assets to hide income. Because the IRS has devoted massive resources to publicizing the reporting requirements for offshore assets along with implementing the 2009 and 2011 and the current foreign bank account and asset voluntary disclosure initiatives, taxpayers that are investigated or audited for non-compliance surrounding the reporting of foreign bank accounts or overseas assets, will face an uphill battle in proving they were unaware of their tax reporting obligations.

The U.S. Government is currently taking the following types of actions in an attempt to flush out noncompliance concerning foreign accounts, assets or business activity:

1.         Grand Jury Subpoenas directly to taxpayers suspected of income tax evasion surrounding foreign accounts, assets or business activity.

Perhaps the most aggressive strategy for combating foreign income tax evasion surrounding foreign accounts or assets is where the government is currently issuing subpoenas to individuals suspected of housing funds in Swiss or other off-shore bank accounts that demand copies of their foreign bank statements dating all the way back to 2003.

These subpoenas are out of the ordinary in that they ask the investigated individuals themselves rather than the foreign banks for the statements. These grand jury generated subpoenas specifically asks for copies of statements depicting the highest annual balance for each year since 2003. Anyone who fails to comply with the terms of the subpoena risks being held in contempt of court and facing fines or jail time which often will not end until the jailed individual agrees to comply with the terms of the subpoena.

If the IRS cannot identify a particular taxpayer, it has the option of using a “John Doe” summons. For a John Doe summons, the IRS need only establish that the summons relates to an identifiable group or class, there is a reasonable basis to believe such person(s) have unreported income, and the information sought is not readily available through other sources. In April 2011, a U.S. court authorized service of a John Doe summons on HSBC USA, seeking records from the bank with regard to thousands of suspected non-compliant citizens that used banking services in India.

2.         Investigations surrounding Switzerland’s banking industry

Whenever the U.S. Justice Department obtains evidence of wrongdoing by one or more employees of a corporate entity, through the principle of respondeat superior, the U.S. has a legal basis to file criminal charges against the entity itself. Using the threat of indictment, the U.S. can leverage disclosures of accountholder information and often targeted banking institutions will yield to the request rather than risk the fallout and possible damage to its brand or reputation.

Switzerland’s perceived role as being the world capital in suborning and facilitating U.S. income tax evasion via its 1934 law mandating total privacy of bank accounts has been ground zero for the U.S. government’s attack on income tax and foreign asset noncompliance. It is estimated that Switzerland houses $2 trillion in global capital.

UBS, the biggest Swiss bank, paid $780 million and turned over details concerning 4,450 U.S. account holders to end prosecution by the U.S. Government. The U.S. Justice Department is currently conducting criminal investigations of 11 other Swiss Banks including Credit Suisse, Julius Baer and Basler Kantonalbank.

3.         Investigating Correspondent Banking

Switzerland’s Wegelin & Co. was the employer of three Swiss bankers charged with conspiring to help U.S. clients hide more than $1.2 billion from American tax authorities by making sales pitches to U.S. taxpayer-clients who were fleeing UBS. The indicted bankers allegedly told American clients not to worry about the IRS because their bank “had a long tradition of bank secrecy,” adding that they had advised “their U.S. taxpayer-clients that the bank was less vulnerable to U.S. law enforcement pressure because, unlike UBS, the bank did not have offices outside Switzerland.”

The Wegelin & Co indictment shed light on an obscure corner of hidden offshore wealth concerning the relationships some smaller banks have with bigger banks for moving clients’ money around the world called correspondent banking. In correspondent banking, the smaller bank is the customer of the larger bank, which acts as an agent, or conduit, by accepting deposits, processing other wire transfers and handling other business transactions on behalf of the smaller bank’s clients. Correspondent banking is a staple of the global financial system which allows smaller banks around the world without an overseas presence to send money to clients in other countries via larger banks in those countries.

4.         Pending settlement with Swiss Banking Industry and Swiss Government

A large sector of the Swiss banking industry and the Swiss Government is attempting to hammer out a civil settlement with the U.S. Government covering any wrongdoing. As part of any such settlement, the U.S. Treasury Department is expected to obtain the identity of all Swiss accounts owned by U.S. taxpayers. In order to facilitate the identification of U.S. account holders the banks are increasingly using sophisticated technology, such as face recognition software, to prevent depositors from hiding their true identity.

5.         The implementation of FACTA

The new tax rules that are a part of the Foreign Account Tax Compliance Act (FACTA) of 2010, which applies to individuals and financial institutions, were specifically enacted as part of an effort to cut down offshore tax evasion. Banks worldwide are bracing for new U.S. regulations aimed at reducing tax evasion, which are expected to affect hundreds of billions of dollars’ worth of deposits worldwide. The new tax rules come into full effect starting July 1, 2014.

6.         The implementation of Form 8938 starting with the 2011 tax filing season

A new filing requirement for 2011 and for tax years thereafter is that if the value of your foreign assets is greater than $100,000 at the end of 2011, or if they exceeded $150,000 at any point during 2011, then you need to file Form 8938, Statement of Foreign Financial Assets. This form is specifically designed to identify Foreign Income Generating Assets that have previously not been reported for tax purposes.

7.         Scrutiny over those that renounce citizenship

More and more Americans living outside the U.S. are renouncing their U.S. citizenship on account of increasing tax obligations and stringent reporting requirements. In the Philippines during 2010 for example, more than 1,500 people gave up their U.S. citizenships. Citizens suspected of doing so for the sole purpose of avoiding taxes are barred from re-entering the U.S. under a little known provision in immigration reform called the “Reed Amendment,” which was enacted in 1996. Additionally, if a taxpayer decides to leave the U.S. and declare a different country as their tax home in an attempt to avoid paying U.S. taxes, they must follow an official exit procedure.

8.         Foreign Non filer investigations

The U.S. has income tax treaties with more than 42 countries through which the IRS can ferret out foreign tax filing information by U.S. citizens living in those countries and thus compile a list of persons who have not been filing their U.S. income tax returns. Tax delinquents who subsequently return to the U.S. after living abroad for so many years may likely find themselves swamped by tax assessments and penalties and may be faced with property seizures.

9.         Expats in Asia under investigation

American expats living in Asia are specially coming under close inspection, with their Asian bank accounts being targeted and criminal investigations being intensified since there are suspicions that a lot of overseas companies were set up specifically to avoid payment of U.S. taxes.

10.        Treaties and Mutual Information Exchange Agreements

The U.S. is not the only nation seeking greater compliance and preservation of its taxing authority. There is increasing international pressure for greater transparency with regard to foreign account financial information. The Organization for Economic Co-operation and Development (OECD) and the EU has pushed for the adoption of a model agreement containing provisions allowing for information exchange. In general terms, the model agreement provides for information exchange “without regard to whether the conduct being investigated would constitute a crime under the laws of the requested party if such conduct occurred in the requested party.” Additionally, the agreement would also allow for tax examiners from the requesting country to travel to the requested country to conduct its investigation, including interviews of witnesses and document review.

If you have never reported your foreign investments on your U.S. Tax Returns, you should seriously consider participating in the IRS’s 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.

Description: Let the tax attorneys of the Law Offices Of Jeffrey B. Kahn, P.C. resolve your IRS tax problems, get you in compliance with your FBAR filing obligations, and minimize the chance of any criminal investigation or imposition of civil penalties.

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.