The IRS has various ways to find out about international or overseas bank accounts. The Foreign Account Tax Compliance Act (“FATCA”) which was passed by Congress in March 2010 requires foreign financial institutions to register with and report to the IRS certain information about their U.S. account holders.
The foreign financial institutions include, but are not limited to depositary institutions (e.g., banks), custodial institutions (e.g., mutual funds), investment entities (e.g., hedge funds or private equity funds) and certain types of insurance companies that have cash value products or annuities.
The foreign financial institutions are required to report information such as the identities of their U.S. account holders, the social security numbers of the U.S. account holders, the account numbers, account balances and income, such as interest and dividends earned on the foreign account. If the foreign financial institutions do not register and agree to report, they face a 30% withholding tax on certain U.S.-source payments made to them. With July 1, 2014 being the deadline under FATCA for compliance, virtually all foreign financial institutions have now established procedures to identify U.S. account holders and have each U.S. account holder sign a Form W-8 BEN or face closure of their account.
In addition, under the Bank Secrecy Act of 1970 financial institutions are required to report any deposit, withdrawal and transfer of $10,000 or more to the IRS. These reporting requirements include international transactions and have been used as a basis to investigate taxpayers who have assets overseas. So even if a U.S. taxpayer were to refuse to cooperate with the foreign financial institution and that bank were to close the account, the transfer of the funds out of that institution would be reported to IRS.
Another tool used by IRS is to get a Federal Court to issue “John Doe summonses” and have them served on financial institutions to investigate a foreign financial institution’s compliance in reporting U.S. account holders. Unlike a normal summons which allows the IRS to find out information regarding a specific taxpayer whose identity the IRS knows, a John Doe summons allows the IRS to get the names of all taxpayers in a certain group. In 2009, this very powerful tool allowed the IRS to get the names of many non-complying taxpayers in its investigation of Swiss banking giant UBS, eventually leading to UBS paying $780 million to settle the investigation.
Finally, the IRS has created a special unit to compare information they have received from the foreign financial institutions with what was reported to the IRS by each taxpayer on his or her present and past income tax returns. You can bet that if you did not file FBAR’s or report your worldwide income, this group will pick up this discrepancy and have an audit or investigation started on you.
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. Once the IRS contacts you, you cannot get into this program and would be subject to the maximum penalties (civil and criminal) under the tax law. 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.
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