2018 IRS Streamlined Filing Compliance Procedures for Offshore Bank Account Reporting
If you hold certain types of assets offshore, you are required to report these assets to the Internal Revenue Service (IRS) on your annual returns. Ownership of these assets (referred to as “specified foreign financial assets”) can trigger additional tax liability. As a result, the IRS takes individual taxpayers’ failure to report these assets very seriously. Violations can lead to civil or criminal penalties – including the potential for federal prison time – and federal prosecutors are aggressively targeting taxpayers who have failed to meet their reporting obligations. To mitigate their risk of federal prosecution, taxpayers accused of underreporting offshore assets must promptly engage experienced legal representation. Attorney Kevin E. Thorn, Managing Partner of Thorn Law Group, has earned a nationwide reputation for defending clients in high-stakes federal tax matters, and he can use his expertise in the area of foreign financial reporting requirements to protect you against devastating consequences.
However, the IRS also recognizes that, under certain circumstances, taxpayers may legitimately not realize that they have reporting obligations. For example, someone who inherits an offshore bank account or who establishes an offshore trust or business entity may not realize (and their tax preparer may not inform them) that this is a required, reportable event. To address this type of situation, the IRS has adopted procedures that are designed to drastically reduce (or eliminate, in some cases) the penalties that these taxpayers owe for failing to timely report their foreign financial assets by permitting what's commonly referred to as an "IRS Voluntary Disclosure."
Until September 2018, taxpayers who needed to disclose their assets had another option as well. Under the Offshore Voluntary Disclosure Program (OVDP), taxpayers could mitigate their liability for penalties triggered by failure to report foreign financial assets in circumstances involving both willful and non-willful failures. But, with the expiration of the OVDP, taxpayers’ options are now limited and for those who are eligible, submitting a streamlined filing can be the best way to avoid unnecessary liability. The IRS announced that it would be winding down the OVDP in March 2018, at which time Acting Commissioner David Kautter stated, “All along, we have been clear that we would close the program at the appropriate time, and we have reached that point.” According to the IRS, the wind-down of the OVDP, “also reflects advances in third-party reporting and increased awareness of U.S. taxpayers of their offshore tax and reporting obligations.”
Importantly, submitting a streamlined filing also carries certain risks. Submitting a streamlined filing does not guarantee protection from the full penalties that would otherwise apply. If the IRS determines that you are ineligible to make use of the 2018 IRS Streamlined Disclosure Program of Offshore Accounts, your filing could trigger an audit or investigation. As a result, making informed decisions is critical; and, before you file, it is essential that you discuss your options for making an IRS Voluntary Disclosure with a streamlined filing lawyer like Kevin E. Thorn. Call 202-349-4033 or email Kevin E. Thorn, Managing Partner of Thorn Law Group at firstname.lastname@example.org.
What are the Eligibility Criteria for Streamlined Filing?
Under the Internal Revenue Code (IRC), there are five basic eligibility criteria for a taxpayer to make use of the 2018 IRS Streamlined Disclosure Program of Offshore Accounts. The IRS eliminated three additional eligibility criteria in 2012 (including a criterion that limited the program to U.S. taxpayers residing outside of the United States) and today, establishing eligibility is a fairly straightforward process with one significant exception – the requirement to demonstrate that the prior failure to report was “non-willful.”
1. Individual Filer
The streamlined filing compliance procedures are only available to “individual taxpayers, including estates of individual taxpayers.” As a result of the 2012 amendments, this includes individual taxpayers residing in the U.S. and overseas. However, a taxpayer’s country of residence will determine whether he or she must comply with the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures.
2. Non-Willful Failure
The streamlined filing procedures are only available to individual taxpayers who are able to certify that, “that the failure to report all income, pay all tax and submit all required information returns, including FBARs (FinCEN Form 114, previously Form TD F 90-22,1) was due to non-willful conduct.” The IRS’s guidance further instructs that, in order to be deemed “non-willful,” a failure to file must be the result of either:
- Mistake, or
- A good-faith misunderstanding of the requirements of the law.
3. No Civil Examination or Criminal Investigation
At the time of filing, the taxpayer must not be subject to a civil examination by the IRS, “for any taxable year, regardless of whether the examination relates to undisclosed foreign financial assets.” The Streamlined Domestic Offshore Procedures and Streamlined Foreign Offshore Procedures are also unavailable to taxpayers who are under criminal investigation by the IRS’s Criminal Investigation Division.
4. Payment of Outstanding Penalties
Under the 2018 IRS Voluntary Disclosure Program, taxpayers who have previously made use of the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures may file again for subsequent non-willful delinquent filings. However, “any penalty assessments previously made with respect to those [prior] filing[s] will not be abated.”
5. Valid Tax ID Number
Finally, the streamlined filing procedures are only available to taxpayers who have a valid Taxpayer Identification Number or who are simultaneously filing for an Individual Taxpayer Identification Number (ITIN). A valid Taxpayer Identification Number can either be a Social Security Number (SSN) or an ITIN.
Will the IRS Consider Your Non-Disclosure “Willful”?
As noted above, for most taxpayers, the primary challenge in establishing eligibility under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures is demonstrating that their failure to timely report foreign assets was “non-willful.” Even if a taxpayer certifies as to non-willfulness, the IRS may still challenge the taxpayer’s certification and deny streamlined filing eligibility. The IRS examines a number of factors when assessing a taxpayer’s certification of non-willfulness when making an IRS Voluntary Disclosure, and each of the following represents a potential red flag for a fraudulent certification:
- Accounts held in the name of an offshore entity, particularly in a tax haven such as Panama or the British Virgin Islands;
- Accounts identified solely by a number;
- Cash deposits into or cash withdrawals from foreign accounts;
- Transfers between foreign accounts;
- Instructions for any mail related to the account not to be forwarded to the taxpayer’s residence in the United States;
- Records indicating that a taxpayer requested for his or her foreign bank not to disclose information to the IRS;
- Incorrectly representing that the taxpayer does not hold a financial interest in a foreign bank account; and,
- Holding a significant amount of money in a foreign bank account (which the IRS may view has “hard to forget” and therefore indicative of a willful failure to file).
With these considerations in mind, prior to submitting a streamlined filing under the 2018 IRS Streamlined Disclosure Program of Offshore Accounts, taxpayers in the U.S. and abroad should assess whether any circumstances are likely to trigger scrutiny from the IRS. This is one area in particular where working with an experienced federal tax lawyer can help. If a taxpayer can lawfully certify as to non-willfulness but certain circumstances are likely to raise questions at the IRS, it will be prudent to address any potential inquiries proactively in order to avoid unnecessary delays or denials (as well as the potential for a criminal tax fraud investigation). Managing Partner Kevin E. Thorn is a highly-regarded expert in this this area, and he has assisted countless clients in avoiding unwanted scrutiny from the IRS. Contact 202-349-4033 or email@example.com today to discuss the particulars of your situation.
What is Involved in IRS Streamlined Filing Compliance Procedures?
Submitting a streamlined filing is a complicated process that requires a comprehensive understanding of the laws, rules and procedural requirements involved. From determining eligibility for an IRS Voluntary Disclosure and identifying the forms that need to be filed to corresponding with IRS agents, every step in the process requires the advice and guidance of an expert tax attorney.
Required IRS and FinCEN Forms
Submitting a streamlined filing under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures requires submission of IRS Form 1040X, Amended U.S. Individual Income Tax Return, as well as any other information returns and the forms that are specific to the streamlined filing procedures. These forms are:
- FinCEN Form 114
- IRS Form 8938
- IRS Form 14654
1. FinCEN Form 114
While not specifically related to the streamlined filing procedures, U.S. taxpayers seeking the benefits of a streamlined filing must submit a Report of Foreign Bank Accounts (FBAR) using Financial Crimes Enforcement Network (FinCEN) Form 114, if applicable. This form is used to report interests in foreign bank accounts, brokerage accounts, mutual funds, trusts and certain other foreign financial assets. The key here is the applicability of FinCEN Form 114 to “foreign financial accounts” (as opposed to “foreign financial assets”). U.S. individual taxpayers who own foreign financial assets other than foreign financial accounts may be exempt from the FBAR requirements but still be subject to reporting requirements with the IRS. The FBAR filing requirements are subject to certain minimum thresholds as well. Similar to failing to report foreign financial assets to the IRS, failing to report foreign financial accounts to the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) can have drastic consequences, and hiring an expert tax attorney is the best way to protect yourself against civil or criminal prosecution.
2. IRS Form 8938
IRS Form 8938, Statement of Specified Foreign Assets, is the primary form used to report foreign financial assets to the IRS pursuant to the streamlined filing procedures. This includes:
- Financial accounts held at foreign financial institutions;
- Financial accounts held at a foreign branch of a U.S. financial institution;
- Foreign stock or securities not held in a financial account;
- Foreign mutual funds; and
- Foreign hedge funds and foreign private equity funds.
3. IRS Form 14654
U.S.-resident taxpayers who file IRS Form 8938 must also file IRS Form 14654, Certification by U.S. Person Residing in the U.S. This form requires the taxpayer to certify:
- Eligibility to file under the Streamlined Domestic Offshore Procedures;
- Filing of all required FinCEN Form 114s;
- “Non-willful” failure to file any delinquent forms and pay any delinquent taxes; and,
- Accurate calculation of the offshore penalty.
A General Overview of the Process for Taxpayers Residing in the U.S.
When working with counsel to submit streamlined filings under the 2018 IRS Streamlined Disclosure Program of Offshore Accounts, in addition to supplying the information necessary to meet the eligibility criteria discussed above, taxpayers residing in the U.S. must satisfy a number of technical filing requirements as well. The basic requirements for compliance with the IRS Streamlined Disclosure of Domestic Offshore Account Procedures include:
1. Submit IRS Form 1040X and All Related Forms
In order to obtain the benefits of a streamlined filing, taxpayers must file IRS Form 1040X, Amended U.S. Individual Income Tax Return. The standard IRS Form 1040 cannot be used for this purpose. Along with a fully-completed IRS Form 1040X, taxpayers must also file, “any required information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621) even if these information returns would normally not be submitted with the Form 1040 had the taxpayer filed a complete and accurate original return.”
2. Note Intent to File Under Streamlined Domestic Offshore Account Procedures
The Streamlined Domestic Offshore Procedures require taxpayers to write “Streamlined Domestic Offshore” in red at the top of the first page of each amended tax return (it is possible to file returns for up to three years’ worth of past-due filings).
3. Complete and Submit IRS Form 14654
Along with IRS Form 1040X, IRS Form 8938 and any other required information returns, taxpayers must also complete and submit IRS Form 14654. Taxpayers must submit the originally-signed form as well as copies of the firm for each amended tax return and information return being submitted. Taxpayers must also maintain the documentation relied upon to calculate their offshore penalty, and must “be prepared to provide it [to the IRS] upon request.”
4. Submit Payment of All Tax Due
At the time of filing, taxpayers utilizing the 2018 IRS Voluntary Disclosure Program must submit payment of all tax due under each amended return being filed, as well as all applicable statutory interest.
5. Submit Payment of the Offshore Penalty
At the time of filing, taxpayers must also submit payment of the self-certified offshore penalty.
6. Comply With Income Deferral Election Requirements (if Applicable)
For taxpayers seeking relief under the Streamlined Domestic Offshore Procedures in relation to income that is subject to deferral (i.e. for qualifying retirement plans), taxpayers must also submit:
- A written request for an extension to make the deferral election; and,
- A statement signed under penalty of perjury describing the reason for the failure to previously elect for deferral and the events leading to discovery of the failure.
For certain plans, additional documentation may be required as well.
7. Mail in Paper Forms
Once all documents have been prepared and all taxes, interest and penalties have been accurately calculated, the filing must be submitted in paper form to the IRS’s Streamlined Domestic Offshore processing address.
8. File Any Delinquent FBARs
At the time of filing IRS Form 1040X and all associated documentation, taxpayers must file any required delinquent FBARs (FinCEN Form 114s) as well.
Special Considerations for Taxpayers Residing Abroad
For U.S. taxpayers residing abroad, the filing requirements vary slightly. This includes technical variations (such as writing “Streamlined Foreign Offshore” in red at the top the first page of each return and submitting the filing to the IRS’s Streamlined Foreign Offshore processing address), as well as certain changes in the substantive requirements. For example, if the taxpayer has not previously filed a U.S. tax return, he or she must file using IRS Form 1040 instead of IRS Form 1040X. More information is available from the IRS: U.S. Taxpayers Residing Outside the United States.
Special Considerations for Businesses, Trusts and Foundations
For U.S. taxpayers with interests in businesses, trusts and foundations holding offshore assets, complying with the requirements for protection under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures involves some special considerations as well. For example, when calculating the offshore penalty, business owners must include their ownership interest in their penalty base, unless the business entity is a disregarded entity for federal tax purposes. Similarly, for U.S. taxpayers with interests in foreign trusts and foundations, if the entity is not disregarded, then the taxpayer must report the ownership interest (and calculate his or her offshore penalty based on the value of the ownership interest) rather than the individual financial accounts and other financial assets held by the trust or foundation.
Due to the risks of improperly reporting ownership interests in businesses, trusts and foundations, both resident and non-resident taxpayers should discuss their reporting obligations with an experienced federal tax attorney. Kevin E. Thorn, Managing Partner of Thorn Law Group, has helped hundreds of clients worldwide with these and other complex filing issues.
If you own an interest in a foreign entity and would like to speak with Kevin E. Thorn, Managing Partner of Thorn Law Group directly about the requirements for streamlined filing protection under the 2018 IRS Streamlined Disclosure Program of Offshore Accounts, you should call 202-349-4033 or email Kevin E. Thorn at firstname.lastname@example.org.
What Can You Expect During an Offshore Bank Account Streamlined Filing Audit?
Although submitting a compliant filing pursuant to the IRS’s streamlined filing procedures for foreign financial assets can result in avoidance of significant liability to the federal government, submitting a streamlined filing entails certain risks as well. Most notably, submitting a streamlined filing does not preclude the possibility of an IRS audit, and taxpayers who improperly seek relief under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures may end up inadvertently exposing themselves to federal criminal prosecution.
However, facing an IRS audit does not necessarily mean that a taxpayer will ultimately face criminal charges. In fact, taxpayers in the U.S. and abroad routinely navigate the audit process without facing further inquiry or additional liability. Once again, hiring experienced legal counsel is critical, as knowing what to expect when using the 2018 IRS Voluntary Disclosure Program – and how to prepare for it – affords the best opportunity to address any potential issues and to correct any flawed assumptions or misapplications of the law on the part of the IRS.
1. Challenges to Your Certification of Non-Willfulness
During audits triggered by streamlined filings, one of the most-common issues examined is the taxpayer’s certification of non-willfulness in IRS Form 14654. Filing of IRS Form 14654 is mandatory when submitting a filing under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures; and, among other things, the form requires taxpayers to certify that their prior failure to report offshore financial assets and pay taxes on those assets was non-willful.
As part of the IRS Voluntary Disclosure process, if the IRS determines that a certification of non-willfulness is false, not only can a taxpayer face consequences for “willfully” failing to report and pay taxes on foreign financial assets, but the taxpayer can also face consequences for submitting a fraudulent certification to the federal government. As a result, the importance of determining one’s eligibility to make use of the streamlined filing procedures cannot be overstated, and taxpayers must work closely with a streamlined filing lawyer to ensure that they will be able to substantiate their claims of non-willfulness.
2. Challenges to Your Calculation of Taxes, Interest and Offshore Penalties
When filing under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures, taxpayers must also determine how much they owe in taxes and interest, and they must self-certify as to the offshore penalties they owe. Individual filers who calculate any of these amounts incorrectly for any tax year can expect to face broad and intensive scrutiny during the audit process.
3. Challenges to Technical Deficiencies in Your Streamlined Filing
Taxpayers who submit streamlined filings with technical deficiencies can expect to have their filings comprehensively reviewed to determine if other mistakes were made as well. Since even minor errors and oversights can delay the filing process and trigger enhanced scrutiny, taxpayers must devote the time, effort and resources necessary to ensure that their returns and certifications meet all applicable statutory requirements.
4. In-Depth Examination of Your Tax Returns
When issues with streamlined filings raise questions, individual taxpayers can expect the IRS to audit their prior years’ tax returns in addition to their streamlined filings. If an audit reveals any other reporting or tax payment deficiencies, the IRS can pursue additional interest, penalties, and potentially even criminal prosecution based upon allegations of intentional tax evasion.
FAQs: Making Use of the IRS’s Streamlined Filing Compliance Procedures
The following are answers to some frequently-asked questions prepared by top streamlined filing lawyer and Managing Partner of Thorn Law Group, Kevin Thorn.
If you have additional questions about making an IRS Voluntary Disclosure and would like legal advice that is custom-tailored to your unique offshore holdings, you can call 202-349-4033 or email Kevin Thorn at email@example.com for a confidential initial consultation.
Q: Can I still be penalized if I comply with the streamlined filing procedures?
Yes. When you report foreign financial assets pursuant to the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures, in addition to paying your back taxes, you must also pay interest on the past-due amount as well as an offshore penalty. However, this penalty is less than the penalty to which you would be exposed if you did not voluntarily report your offshore assets and waited for the IRS to independently launch an examination into your filing history and offshore holdings.
But, while making a streamlined filing under the 2018 IRS Streamlined Disclosure Program of Offshore Accounts can have financial benefits, it carries certain risks as well. If you incorrectly assess your eligibility and the IRS determines that you do not qualify for the reduced offshore penalty, the IRS can process your filing outside of the streamlined procedures and pursue full liability (potentially including criminal penalties) for tax reporting and payment violations.
Q: What if I am concerned that my non-disclosure could be deemed willful?
If you are concerned that the IRS may deem non-disclosure of your foreign financial assets willful, this is something should weigh heavily in your decision regarding whether to submit a streamlined filing. You should discuss your situation with an experienced federal tax lawyer and make an informed decision based upon the potential benefits and risks involved. If you ultimately decide to file under the 2018 IRS Voluntary Disclosure Program, it will be important to assemble all available evidence to document the non-willfulness of your delinquency and to be prepared to present this evidence to the IRS if necessary.
Q: What are the penalties for willfully failing to disclose offshore assets to the IRS?
Taxpayers who fail to report offshore assets can face penalties including a $10,000 fine, liability for past-due taxes and an additional 40 percent penalty. In criminal tax evasion cases, prison time can also be on the table.
Q: What should I do if I am facing an IRS enforcement action concerning offshore assets?
If you have received a letter from the IRS concerning your foreign financial assets or you have been contacted by agents from the IRS’s Criminal Investigation Division, you should speak with a tax attorney as soon as possible. At this point, you need to be very careful about any information you provide to (or withhold from) the IRS, and you need to make sure you are not unnecessarily exposing yourself to civil penalties or criminal prosecution.
At Thorn Law Group, streamlined filing compliance procedures lawyer Kevin E. Thorn and his team has extensive experience representing clients in this situation. We can help you mitigate your liability to the greatest extent possible. Call 202-349-4033 today.
Q: Should I consider a streamlined filing or a filing under the Offshore Voluntary Disclosure Program (OVDP)?
While the Offshore Voluntary Disclosure Program (OVDP) used to provide an alternative for taxpayers who could not meet the non-willfulness standard for a streamlined filing, the OVDP was phased out at the end of 2018. Going forward, taxpayers have two primary options: (i) to file under the Streamlined Domestic Offshore Procedures or the Streamlined Foreign Offshore Procedures; or, (ii) to file under the IRS Criminal Investigation Voluntary Disclosure Program. When choosing between these two options (as well as any other options that may be available given the particular circumstances at hand), taxpayers must weigh the varying benefits and risks that each program entails and make a strategic decision focused on avoiding any unnecessary consequences.
Q: What if I don’t have a Social Security Number (SSN) or Individual Taxpayer Identification Number (ITIN)?
If you are not eligible for a Social Security Number (SSN) and you have not yet obtained an Individual Taxpayer Identification Number (ITIN), you can file for an ITIN simultaneously with your streamlined filing. The IRS will reject your filing if you do not simultaneously file an ITIN application.
The IRS has published FAQ answers for U.S.-resident and non-resident individual taxpayers as well. For more answers, you can visit:
- Streamlined Filing Compliance Procedures for U.S. Taxpayers Residing in the United States Frequently Asked Questions and Answers
- Streamlined Filing Compliance Procedures for U.S. Taxpayers Residing Outside the United States: Frequently Asked Questions and Answers
Additional Resources: IRS Streamlined Filing Compliance Procedures
In addition to these FAQ answers, the IRS has published a number of additional resources for individual taxpayers interested in taking advantage of the streamlined filing procedures for reporting foreign financial assets. For more information from the IRS, you can read:
- Streamlined Filing Compliance Procedures
- Instructions for U.S. Taxpayers Residing in the United States
- Instructions for U.S. Taxpayers Residing Outside the United States
- Delinquent FBAR Submission Procedures
- Delinquent International Information Return Submission Procedures
Fast Facts: What Domestic and Foreign Filers Need to Know about the IRS Streamlined Filing Procedures
When it comes to understanding when and how individual taxpayers can (and should) make an IRS Voluntary Disclosure and take advantage of the IRS’s streamlined filing procedures for reporting foreign financial assets, there is much to dissect, and individual taxpayers must carefully assess their options in light of their own personal filing history, foreign holdings and other factors. Here is an overview of the key facts about the IRS’s Streamlined Domestic Offshore Procedures and Streamlined Foreign Offshore Procedures:
1. The Streamlined Filing Procedures are Designed for Individual Taxpayers Who Have Committed Non-Willful Violations.
The IRS’s streamlined filing procedures are only available to individual taxpayers who have inadvertently failed to report their foreign financial assets to the IRS. When you submit your filing, you will minimally need to file IRS Forms 1040X, 8938 and 14654 (in most cases); and, in IRS Form 14654, you must certify that your failure to file was “non-willful.”
2. Taxpayers Who Utilize the Streamlined Filing Procedures Must Pay a Penalty, But This Penalty is Far Less Than the Penalty That Would Otherwise Apply.
Submitting a streamlined filing does not allow you to avoid penalties entirely; however, the penalty you will pay (i.e. five percent for domestic filers) is far less than the penalty you would pay if the IRS targeted you in an audit or investigation (i.e. a $10,000 fine and an additional 40 percent penalty).
3. The IRS Will Examine Your Streamlined Filing to Determine if It is Compliant.
When you submit a streamlined filing, success is not guaranteed. The IRS will carefully scrutinize your certification and all of your returns; and, if it determines that you are ineligible for relief, it will process your filing under its standard examination procedures.
4. Submitting a Streamlined Filing Does Not Protect You from Additional Liability.
If the IRS determines that your previous failure to file was willful, you can face the full penalties for a delinquent filing as well as the potential for a comprehensive audit and even possible criminal investigation. For this reason, it is imperative to ensure that you can clearly demonstrate your eligibility to submit a streamlined filing.
5. When You Submit a Streamlined Filing, You May Also Need to Submit an FBAR.
The streamlined filing procedures and reporting requirements for foreign financial assets are entirely separate from the procedures and requirements for reporting foreign financial accounts. If you have a foreign financial account that triggers a reporting obligation under the Foreign Account Tax Compliance Act (FATCA) and a reporting obligation under the Bank Secrecy Act, then you may need to file IRS Form 8938 (along with all other request forms) and FinCEN Form 114.
Discuss Your Situation with a Streamlined Filing Compliance Procedures Lawyer
If you would like help determining whether you are eligible to submit a streamlined filing (or determining whether you have foreign financial assets that you need to report), we encourage you to contact us for a confidential initial consultation.
If you have been contacted by IRS or other federal agents regarding your offshore holdings, you need to speak with a streamlined filing lawyer immediately to discuss your options under the 2018 IRS Voluntary Disclosure Program. Kevin E. Thorn, Managing Partner of Thorn Law Group, is recognized nationally and around the globe for his expertise and results in this area. To request an appointment, please call 202-349-4033 or email him directly at firstname.lastname@example.org.