2011 Offshore Voluntary Disclosure Initiative Frequently Asked Questions and Answers 03-09-2011
Overview
1. Why did the IRS announce a new special offshore voluntary disclosure initiative at this time?
The IRS’s prior Offshore Voluntary Disclosure Program (2009 OVDP), which
closed on October 15, 2009, demonstrated the value of a uniform penalty
structure for taxpayers who came forward voluntarily and reported their
previously undisclosed foreign accounts and assets. Not only did the
initiative offer consistency and predictability to taxpayers in
determining the amount of tax and penalties they faced, it also enabled
the IRS to centralize the civil processing of offshore voluntary
disclosures. Therefore, it was determined that a similar initiative
should be available to the large number of taxpayers with offshore
accounts and assets who applied to IRS Criminal Investigation’s
traditional voluntary disclosure practice since the October 15 deadline.
This new initiative, the 2011 Offshore Voluntary Disclosure Initiative
(2011 OVDI) will be available to those taxpayers and other similarly
situated taxpayers who come forward and complete all requirements on or
before August 31, 2011.
2. What is the objective of this initiative?
The objective remains the same as the 2009 OVDP – to bring taxpayers
that have used undisclosed foreign accounts and undisclosed foreign
entities to avoid or evade tax into compliance with United States tax
laws.
3. How does this initiative differ from the IRS’s longstanding voluntary disclosure practice or the 2009 OVDP?
The Voluntary Disclosure Practice is a longstanding practice of IRS
Criminal Investigation whereby CI takes timely, accurate, and complete
voluntary disclosures into account in deciding whether to recommend to
the Department of Justice that a taxpayer be criminally prosecuted. It
enables noncompliant taxpayers to resolve their tax liabilities and
minimize their chance of criminal prosecution. When a taxpayer
truthfully, timely, and completely complies with all provisions of the
voluntary disclosure practice, the IRS will not recommend criminal
prosecution to the Department of Justice.
This current offshore initiative is a counter-part to Criminal
Investigation’s Voluntary Disclosure Practice. Like its predecessor, the
2009 OVDP, which ran from March 23, 2009 through October 15, 2009, it
addresses the civil side of a taxpayer’s voluntary disclosure by
defining the number of tax years covered and setting the civil penalties
that will apply. 4. Why should I make a voluntary disclosure?
Taxpayers with undisclosed foreign accounts or entities should make a
voluntary disclosure because it enables them to become compliant, avoid
substantial civil penalties and generally eliminate the risk of criminal
prosecution. Making a voluntary disclosure also provides the
opportunity to calculate, with a reasonable degree of certainty, the
total cost of resolving all offshore tax issues. Taxpayers who do not
submit a voluntary disclosure run the risk of detection by the IRS and
the imposition of substantial penalties, including the fraud penalty and
foreign information return penalties, and an increased risk of criminal
prosecution. The IRS remains actively engaged in ferreting out the
identities of those with undisclosed foreign accounts. Moreover,
increasingly this information is available to the IRS under tax
treaties, through submissions by whistleblowers, and will become more
available as the Foreign Account Tax Compliance Act (FATCA) and Foreign
Financial Asset Reporting (new IRC § 6038D) become effective.
5. What are some of the civil penalties that might apply if I don't come in
under voluntary disclosure and the IRS examines me? How do they work?
Depending on a taxpayer’s particular facts and circumstances, the following penalties could apply:
-
A penalty for failing to file the Form TD F 90-22.1 (Report of
Foreign Bank and Financial Accounts, commonly known as an “FBAR”).
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 accounts exceeded $10,000 at any time
during the year. Generally, 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 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.
-
A penalty for failing to file Form 3520, Annual Return to Report
Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts.
Taxpayers must also report various transactions involving foreign
trusts, including creation of a foreign trust by a United States person,
transfers of property from a United States person to a foreign trust
and receipt of distributions from foreign trusts under IRC § 6048.This
return also reports the receipt of gifts from foreign entities under
section 6039F.The penalty for failing to file each one of these
information returns, or for filing an incomplete return, is 35 percent
of the gross reportable amount, except for returns reporting gifts,
where the penalty is five percent of the gift per month, up to a maximum
penalty of 25 percent of the gift.
-
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 five percent of the gross value of
trust assets determined to be owned by the United States person.
-
A penalty for failing to file Form 5471, Information Return of U.S.
Persons with Respect to Certain Foreign Corporations. Certain United
States persons who are officers, directors or shareholders in certain
foreign corporations (including International Business Corporations) are
required to report information under IRC §§ 6035, 6038 and 6046.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.
-
A penalty for failing to file Form 5472, Information Return of a 25%
Foreign-Owned U.S. Corporation or a Foreign Corporation Engaged in a
U.S. Trade or Business. Taxpayers may be required to report transactions
between a 25 percent foreign-owned domestic corporation or a foreign
corporation engaged in a trade or business in the United States and a
related party as required by IRC §§ 6038A and 6038C. The penalty for
failing to file each one of these information returns, or to keep
certain records regarding reportable transactions, 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.
-
A penalty for failing to file Form 926, Return by a U.S. Transferor
of Property to a Foreign Corporation. Taxpayers are required to report
transfers of property to foreign corporations and other information
under IRC § 6038B. The penalty for failing to file each one of these
information returns is ten percent of the value of the property
transferred, up to a maximum of $100,000 per return, with no limit if
the failure to report the transfer was intentional.
-
A penalty for failing to file Form 8865, Return of U.S. Persons With
Respect to Certain Foreign Partnerships. United States persons with
certain interests in foreign partnerships use this form to report
interests in and transactions of the foreign partnerships, transfers of
property to the foreign partnerships, and acquisitions, dispositions and
changes in foreign partnership interests under IRC §§ 6038, 6038B, and
6046A. Penalties include $10,000 for failure to file each return, 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, and ten percent of the value of any
transferred property that is not reported, subject to a $100,000 limit.
-
Fraud penalties imposed under IRC §§ 6651(f) or 6663. Where an
underpayment of tax, or a failure to file a tax return, is due to fraud,
the taxpayer is liable for penalties that, although calculated
differently, essentially amount to 75 percent of the unpaid tax.
-
A penalty for failing to file a tax return imposed under IRC §
6651(a)(1). Generally, taxpayers are required to file income tax
returns. If a taxpayer fails to do so, a penalty of 5 percent of the
balance due, plus an additional 5 percent for each month or fraction
thereof during which the failure continues may be imposed. The penalty
shall not exceed 25 percent.
-
A penalty for failing to pay the amount of tax shown on the return
under IRC § 6651(a)(2). If a taxpayer fails to pay the amount of tax
shown on the return, he or she may be liable for a penalty of .5 percent
of the amount of tax shown on the return, plus an additional .5 percent
for each additional month or fraction thereof that the amount remains
unpaid, not exceeding 25 percent.
-
An accuracy-related penalty on underpayments imposed under IRC §
6662. Depending upon which component of the accuracy-related penalty is
applicable, a taxpayer may be liable for a 20 percent or 40 percent
penalty.
6. What are some of the criminal charges I might face if I don't come in under voluntary disclosure and the IRS examines me?
Possible criminal charges related to tax returns include tax evasion
(26 U.S.C. § 7201), filing a false return (26 U.S.C. § 7206(1)) and
failure to file an income tax return (26 U.S.C. § 7203). Willfully
failing to file an FBAR and willfully filing a false FBAR are both
violations that are subject to criminal penalties under 31 U.S.C. §
5322.
A person convicted of tax evasion is subject to a prison term of up
to five years and a fine of up to $250,000. Filing a false return
subjects a person to a prison term of up to three years and a fine of up
to $250,000. A person who fails to file a tax return is subject to a
prison term of up to one year and a fine of up to $100,000. Failing to
file an FBAR subjects a person to a prison term of up to ten years and
criminal penalties of up to $500,000. KEY FEATURES OF INITIATIVE
7. What are the terms of the 2011 Offshore Voluntary Disclosure Initiative?
Under the terms of the 2011 Offshore Voluntary Disclosure Initiative, taxpayers must:
-
Provide copies of previously filed original (and, if applicable,
previously filed amended) federal income tax returns for tax years
covered by the voluntary disclosure;
-
Provide complete and accurate amended federal income tax returns (for
individuals, Form 1040X, or original Form 1040 if delinquent) for all
tax years covered by the voluntary disclosure, with applicable schedules
detailing the amount and type of previously unreported income from the
account or entity (e.g., Schedule B for interest and dividends, Schedule
D for capital gains and losses, Schedule E for income from
partnerships, S corporations, estates or trusts).
-
File complete and accurate original or amended offshore-related
information returns (see FAQ 29 for certain dissolved entities) and Form
TD F 90-22.1 (Report of Foreign Bank and Financial Accounts, commonly
known as an “FBAR”) for calendar years 2003 through 2010;
-
Cooperate in the voluntary disclosure process, including providing
information on offshore financial accounts, institutions and
facilitators, and signing agreements to extend the period of time for
assessing tax and penalties;
-
Pay 20% accuracy-related penalties under IRC § 6662(a) on the full amount of your underpayments of tax for all years;
-
Pay failure to file penalties under IRC § 6651(a)(1), if applicable;
-
Pay failure to pay penalties under IRC § 6651(a)(2), if applicable;
-
Pay, in lieu of all other penalties that may apply, including FBAR
and offshore-related information return penalties, a miscellaneous Title
26 offshore penalty, equal to 25% (or in limited cases 12.5% (see FAQ
53) or 5% (see FAQ 52)) of the highest aggregate balance in foreign bank
accounts/entities or value of foreign assets during the period covered
by the voluntary disclosure;
-
Submit full payment of all tax, interest, accuracy-related penalty,
and, if applicable, the failure to file and failure to pay penalties
with the required submissions set forth in FAQ 25 or make good faith
arrangements with the IRS to pay in full, the tax, interest, and these
penalties (see FAQ 20 for more information regarding a taxpayer’s
ability to fully pay) (the suspension of interest provisions of IRC §
6404(g) do not apply to interest due in this initiative); and
-
Execute a Closing Agreement on Final Determination Covering Specific Matters, Form 906.
8. How does the penalty framework work? Can you give us an example?
The values of accounts and other assets are aggregated for each year
and the penalty is calculated at 25 percent of the highest year‘s
aggregate value during the period covered by the voluntary disclosure.
If the taxpayer has multiple accounts or assets where the highest value
of some accounts or assets is in different years, the values of accounts
and other assets are aggregated for each year and a single penalty is
calculated at 25 percent of the highest year‘s aggregate value. For
example, assume the taxpayer has the following amounts in a foreign
account over the period covered by his voluntary disclosure. It is assumed for purposes of the example that the $1,000,000 was in the account before 2003 and was not unreported income in 2003.
|
Year
|
Amount on Deposit
|
Interest Income
|
Account Balance
|
|
2003
|
$1,000,000
|
$50,000
|
$1,050,000
|
|
2004
|
|
$50,000
|
$1,100,000
|
|
2005
|
|
$50,000
|
$1,150,000
|
|
2006
|
|
$50,000
|
$1,200,000
|
|
2007
|
|
$50,000
|
$1,250,000
|
|
2008
|
|
$50,000
|
$1,300,000
|
|
2009
|
|
$50,000
|
$1,350,000
|
|
2010
|
|
$50,000
|
$1,400,000
|
(NOTE: This example does not provide for compounded interest, and
assumes the taxpayer is in the 35-percent tax bracket, does not have an
investment in a Passive Foreign Investment Company (PFIC), files a
return but does not include the foreign account or the interest income
on the return, and the maximum applicable penalties are imposed.)
If the taxpayers in the above example come forward and their
voluntary disclosure is accepted by the IRS, they face this potential
scenario:
They would pay $518,000 plus interest. This includes:
-
Tax of $140,000 (8 years at $17,500) plus interest,
-
An accuracy-related penalty of $28,000 (i.e., $140,000 x 20%), and
-
An additional penalty, in lieu of the FBAR and other potential penalties that may apply, of $350,000 (i.e., $1,400,000 x 25%).
If the taxpayers didn’t come forward, when the IRS discovered their
offshore activities, they would face up to $4,543,000 in tax,
accuracy-related penalty, and FBAR penalty. The taxpayers would also be
liable for interest and possibly additional penalties, and an
examination could lead to criminal prosecution.
The civil liabilities outside the 2011 Offshore Voluntary Disclosure Initiative potentially include:
-
The tax, accuracy-related penalties, and, if applicable, the failure
to file and failure to pay penalties, plus interest, as described above,
-
FBAR penalties totaling up to $4,375,000 for willful failures to file
complete and correct FBARs (2004 - $550,000, 2005 - $575,000, 2006 -
$600,000, 2007 - $625,000, 2008 - $650,000, and 2009 - $675,000, and
2010 - $700,000),
-
The potential of having the fraud penalty (75 percent) apply, and
-
The potential of substantial additional information return penalties
if the foreign account or assets is held through a foreign entity such
as a trust or corporation and required information returns were not
filed.
Note that if the foreign activity started before 2003, the Service
may examine tax years prior to 2003 if the taxpayer is not part of the
2011 OVDI.
9. What years are included in the 2011 OVDI disclosure period?
Calendar year taxpayers must include tax years 2003 through 2010 in
which they have undisclosed foreign accounts and/or undisclosed foreign
entities. Fiscal year taxpayers must include fiscal years ending in
calendar years 2003 through 2010.
10. What are my options if my account involves passive foreign investment company (PFIC) issues?
To date, a significant number of cases submitted under the 2009 OVDP
involve PFIC investments. A lack of historical information on the cost
basis and holding period of many PFIC investments makes it difficult for
taxpayers to prepare statutory PFIC computations and for the Service to
verify them. As a result, resolution of voluntary disclosure cases
could be unduly delayed. Therefore, for purposes of this initiative, the
Service is offering taxpayers an alternative to the statutory PFIC
computation that will resolve PFIC issues on a basis that is consistent
with the Mark to Market (MTM) methodology authorized in Internal Revenue
Code § 1296 but will not require complete reconstruction of historical
data.
The terms of this alternative resolution are:
-
If elected, the alternative resolution will apply to all PFIC
investments in cases that have been accepted into this initiative. The
initial MTM computation of gain or loss under this methodology will be
for the first year of the 2011 OVDI application, but could be made after
2003 depending on when the first PFIC investment was made. Generally,
the first year of the 2011 OVDI application will be for the calendar
year ending December 31, 2003. This will require a determination of the
basis for every PFIC investment, which should be agreed between the
taxpayer and the Service based on the best available evidence.
-
A tax rate of 20% will be applied to the MTM gain(s), MTM net gain(s)
and gains from all PFIC dispositions during the 2011 OVDI period, in
lieu of the rate contained in IRC § 1291(a)(1)(B) for the amount
allocable to the current year and IRC §1291(c)(2) for the deferred tax
amount(s) allocable to any other taxable year.
-
A rate of 7% of the tax computed for PFIC investments marked to
market in the first year of the 2011 OVDI application will be added to
the tax for that year, in lieu of the interest charge mechanism
described in IRC §§ 1291(c) and 1296(j).
-
MTM losses will be limited to unreversed inclusions (generally,
previously reported MTM gains less allowed MTM losses) on an
investment-by-investment basis in the same manner as IRC § 1296. During
the 2011 OVDI period, these MTM losses will be treated as ordinary
losses (IRC 1296(c)(1)(B)) and the tax benefit is limited to the tax
rate applicable to the MTM gains derived during the 2011 OVDI period
(20%). MTM and/or disposition losses in any subsequent year on PFIC
assets with basis that was adjusted upward as a result of the alternate
resolution in voluntary disclosure years, will be treated as capital
losses. Any unreversed inclusions at the end of the 2011 OVDI period
will be reduced to zero and the MTM method will be applied to all
subsequent years in accordance with IRC § 1296 as if the taxpayer had
acquired the PFIC stock on the last day of the last year of the 2011
OVDI period at its MTM value and made an IRC § 1296 election for the
first year beginning after the 2011 OVDI period. Thus, any subsequent
year losses on disposition of PFIC stock assets in excess of unreversed
inclusions arising after the end of the 2011 OVDI period will be treated
as capital losses.
-
Regular and Alternative Minimum Tax are both to be computed without
the PFIC dispositions or MTM gains and losses. The tax from the PFIC
transactions (20% plus the 7% for 2003, if applicable) is added to (or
subtracted from) the applicable total tax (either regular or AMT,
whichever is higher). The tax and interest (i.e., the 7% for the first
year of the 2011 OVDI) computed under the 2011 OVDI alternative MTM can
be added to the applicable total tax (either regular or AMT, whichever
is higher) and placed on the amended return in the margin, with a
supporting schedule.
-
Underpayment interest and penalties on the deficiency are computed in
accordance with the Internal Revenue Code and the terms of the 2011
OVDI.
-
For any PFIC investment retained beyond December 31, 2010, the
taxpayer must continue using the MTM method, but will apply the normal
statutory rules of section 1296 as well as the provisions of IRC §§
1291-1298, as applicable.
Before electing the alternative PFIC resolution, taxpayers with PFIC
investments should consult their tax advisors to ensure that the issue
is material in their cases and that the alternative is in fact
preferable to the statutory computation in their situation. If the
taxpayer does not elect to use the alternative PFIC computation, the
PFIC provisions of §§ 1291-1298 apply. 11. What happens if I fail to make a voluntary disclosure by the August 31, 2011 deadline?
Although the terms of this initiative are available only to taxpayers
who complete the voluntary disclosure process on or before August 31,
2011, Criminal Investigation’s Voluntary Disclosure Practice remains
available to taxpayers who wish to disclose voluntarily their tax
violations after that date. However, these taxpayers will not be
eligible for the special civil terms of this initiative and will be
liable for all applicable civil penalties, including the willful FBAR
penalty. In addition, the civil resolution of their cases may extend to
tax years prior to 2003.
ELIGIBILITY FOR THIS INITIATIVE
12. Who is eligible to make a voluntary disclosure under this initiative?
Taxpayers who have undisclosed offshore accounts or assets are eligible
to apply for IRS Criminal Investigation’s Voluntary Disclosure Practice
and the 2011 OVDI penalty regime for tax years 2003 through 2010.
13. Are entities, such as corporations, partnerships and trusts eligible to make voluntary disclosures?
Yes, entities are eligible to participate in the 2011 OVDI.
14. I’m currently under examination. Can I come in under voluntary disclosure?
No. If the IRS has initiated a civil examination, regardless of whether
it relates to undisclosed foreign accounts or undisclosed foreign
entities, the taxpayer will not be eligible to come in under the 2011
OVDI. Taxpayers under criminal investigation by CI are also ineligible.
The taxpayer or the taxpayer’s representative should discuss the
offshore accounts with the agent.
15. What if the taxpayer has already filed amended returns reporting the
additional unreported income, without making a voluntary disclosure
(i.e. quiet disclosure)?
The IRS is aware that some taxpayers have attempted so-called “quiet”
disclosures by filing amended returns and paying any related tax and
interest for previously unreported offshore income without otherwise
notifying the IRS. Taxpayers who have already made “quiet” disclosures
are eligible to take advantage of the penalty framework applicable to
this initiative by submitting an application, along with copies of their
previously filed returns (original and amended) to the IRS’s Voluntary
Disclosure Coordinator (see FAQ 24) by August 31, 2011.
Taxpayers are strongly encouraged to come forward under the 2011 OVDI
to make timely, accurate, and complete disclosures. Those taxpayers
making “quiet” disclosures should be aware of the risk of being examined
and potentially criminally prosecuted for all applicable years. 16. Some taxpayers have made quiet disclosures by filing amended returns.
Will the IRS audit these taxpayers? If so, will they be eligible for the
25 percent offshore penalty? Is the IRS really going to prosecute
someone who filed an amended return and correctly reported all their
income?
The IRS is reviewing amended returns and could select any amended return
for examination. The IRS has identified, and will continue to identify,
amended tax returns reporting increases in income. The IRS will closely
review these returns to determine whether enforcement action is
appropriate. If a return is selected for examination, the 25 percent
offshore penalty would not be available. When criminal behavior is
evident and the disclosure does not meet the requirements of a voluntary
disclosure under IRM 9.5.11.9, the IRS may recommend criminal
prosecution to the Department of Justice.
17. I have properly reported all my taxable income but I only recently
learned that I should have been filing FBARs in prior years to report my
personal foreign bank account or to report the fact that I have
signature authority over bank accounts owned by my employer. May I come
forward under this new initiative to correct this?
The purpose for the voluntary disclosure practice is to provide a way
for taxpayers who did not report taxable income in the past to come
forward voluntarily and resolve their tax matters. Thus, if you reported
and paid tax on all taxable income but did not file FBARs, do not use
the voluntary disclosure process.
For taxpayers who reported and paid tax on all their taxable income
for prior years but did not file FBARs, you should file the delinquent
FBAR reports according to the instructions (send to Department of
Treasury, Post Office Box 32621, Detroit, MI 48232-0621) and attach a
statement explaining why the reports are filed late. The IRS will not
impose a penalty for the failure to file the delinquent FBARs if there
are no underreported tax liabilities and the FBARs are filed by August
31, 2011. However, FBARs for 2010 are due on June 30, 2011 and must be
filed by that date. 18. Question 17 states that a taxpayer who only failed to file an FBAR
should not use this process. What about a taxpayer who only has
delinquent Form 5471s or Form 3520s but no tax due? Does that taxpayer
fall outside this voluntary disclosure process?
A taxpayer who has failed to file tax information returns, such as
Form 5471 for controlled foreign corporations (CFCs) or Form 3520 for
foreign trusts but who has reported and paid tax on all their taxable
income with respect to all transactions related to the CFCs or foreign
trusts, should file delinquent information returns with the appropriate
service center according to the instructions for the form and attach a
statement explaining why the information returns are filed late. (The
Form 5471 should be submitted with an amended return showing no change
to income or tax liability.)
The IRS will not impose a penalty for the failure to file the
information returns if there are no underreported tax liabilities and
the information returns are filed by August 31, 2011. 19. Is a taxpayer who previously sought relief under the IRS’s traditional
Voluntary Disclosure Practice or who made a quiet disclosure before the
2011 OVDI was announced eligible for the terms of the 2011 OVDI?
A taxpayer who made a voluntary disclosure (other than a voluntary
disclosure under the 2009 OVDP) or made a quiet disclosure is eligible
to apply for the 2011 OVDI. Participants in the 2009 OVDP are not
eligible.
20. If I don’t have the ability to full pay can I still participate in this initiative?
Yes. The terms of this initiative require the taxpayer to pay the
tax, interest, and accuracy-related penalty, and, if applicable the
failure to file and failure to pay penalties with their submission.
However, it is possible for a taxpayer who is unable to make full
payment of these amounts to request the IRS to consider other payment
arrangements (see FAQ 25).
The burden will be on the taxpayer to establish inability to pay, to
the satisfaction of the IRS, based on full disclosure of all assets and
income sources, domestic and offshore, under the taxpayer’s control.
Assuming that the IRS determines that the inability to fully pay is
genuine, the taxpayer must work out other financial arrangements,
acceptable to the IRS, to resolve all outstanding liabilities, in order
to be entitled to the penalty relief under this initiative. 21. If the IRS has served a John Doe summons seeking information that may
identify a taxpayer as holding an undisclosed foreign account or
undisclosed foreign entity, does that make the taxpayer ineligible to
make a voluntary disclosure under this initiative?
No. The mere fact that the Service served a John Doe summons does not
make every member of the John Doe class ineligible to participate.
However, once the Service obtains information under a John Doe summons
that provides evidence of a specific taxpayer’s noncompliance with the
tax laws, that particular taxpayer may become ineligible. For this
reason, a taxpayer concerned that a party served with a John Doe summons
will provide information about him to the Service should apply to make a
voluntary disclosure as soon as possible.
2011 OVDI PROCESS
22. Can my representative talk to the IRS without revealing my identity?
Yes, but hypothetical situations present a potential for
misunderstanding that exists when there is no assurance that the
hypothetical contains all relevant facts. In addition, posing a
situation as a hypothetical does not satisfy the requirements for making
a voluntary disclosure. If the IRS receives information relating
specifically to the taxpayer’s undisclosed foreign accounts or
undisclosed foreign entities while the hypothetical question is pending,
the taxpayer may become ineligible to make a voluntary disclosure.
If practitioners have questions about the terms of the voluntary
disclosure program, they should contact the IRS OVDI Hotline at (267)
941-0020, visit www.irs.gov, or contact their nearest CI office with questions. 23. How do I request pre-clearance before I submit my offshore voluntary disclosure?
For the 2011 OVDI pre-clearance may be requested as follows:
-
Taxpayers or representatives may fax to the Criminal Investigation
Lead Development Center (LDC) identifying information (name, date of
birth, social security number and address) and an executed power of attorney (if represented) to (215) 861-3050 to request pre-clearance before making an offshore voluntary disclosure.
-
Criminal Investigation will then notify taxpayers or their
representatives via fax whether or not they are cleared to make an
offshore voluntary disclosure.
-
Taxpayers deemed cleared should follow the steps outlined below (FAQ
24) within 30 days from receipt of the fax notification to make an
offshore voluntary disclosure.
Pre-clearance does not guarantee a taxpayer acceptance into the 2011
OVDI. Taxpayers must truthfully, timely, and completely comply with all
provisions of the offshore voluntary disclosure program.
Taxpayers or representatives with questions regarding pre-clearance
can call (215) 861-3759 or contact their nearest CI office. For all
other offshore voluntary disclosure questions call the IRS OVDI Hotline
at (267) 941-0020. 24. How do I make an offshore voluntary disclosure and where should I submit
my offshore voluntary disclosure to determine whether I am
preliminarily accepted under this initiative?
For the 2011 OVDI, an offshore voluntary disclosure is submitted as follows:
-
Taxpayers or their representatives should mail their Offshore Voluntary Disclosures Letter to the following address:
Offshore Voluntary Disclosure Coordinator
600 Arch Street, Room 6404
Philadelphia, PA 19106
-
Criminal Investigation will review the Offshore Voluntary Disclosures
Letter received and notify taxpayers or representatives by mail whether
their offshore voluntary disclosures have been preliminarily accepted
or declined. It is intended that Criminal Investigation will complete
its work within 30 days of receipt of a complete Offshore Voluntary
Disclosures Letter.
All other voluntary disclosures that are not covered under this initiative should follow the instructions. 25. After I am notified by CI that my disclosure is timely, what other information will I have to provide?
The letter from CI will instruct the taxpayer or their representative
to submit the full voluntary disclosure package of information to the
Austin Campus:
Internal Revenue Service
3651 S. I H 35 Stop 4301 AUSC
Austin, TX 78741
ATTN: 2011 Offshore Voluntary Disclosure Initiative
on or before August 31, 2011. This package must include:
-
Copies of previously filed original (and, if applicable, previously
filed amended) federal income tax returns for tax years covered by the
voluntary disclosure;
-
Complete and accurate amended federal income tax returns (for
individuals, Form 1040X, or original Form 1040 if delinquent) for all
tax years covered by the voluntary disclosure, with applicable schedules
detailing the amount and type of previously unreported income from the
account or entity (e.g., Schedule B for interest and dividends, Schedule
D for capital gains and losses, Schedule E for income from
partnerships, S corporations, estates or trusts).
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A completed Foreign Account or Asset Statement for each previously
undisclosed foreign account or asset during the voluntary disclosure
period (available at 2011 Offshore Voluntary Disclosure Initiative Documents and Forms).
- For those applicants disclosing offshore financial accounts with an
aggregate highest account balance in any year of $1 million or more, a
completed Foreign Financial Institution Statement for each foreign
financial institution with which the taxpayer had undisclosed accounts
or transactions during the voluntary disclosure period (available at 2011 Offshore Voluntary Disclosure Initiative Documents and Forms);
- Properly completed and signed Taxpayer Account Summary With Penalty Calculation (available at 2011 Offshore Voluntary Disclosure Initiative Documents and Forms);
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A check payable to the Department of Treasury in the total amount of
tax, interest, accuracy-related penalty, and, if applicable, the failure
to file and failure to pay penalties, for the voluntary disclosure
period. If you cannot pay the total amount of tax, interest, and
penalties as described above, submit your proposed payment arrangement
and a completed Collection Information Statement ( Form 433-A, Collection Information Statement for Wage Earners and Self-employed Individuals, or Form 433-B, Collection Information Statement for Businesses, as appropriate) (see FAQ 20).
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For those applicants disclosing offshore financial accounts with an
aggregate highest account balance in any year of $500,000 or more,
copies of offshore financial account statements reflecting all account
activity for each of the tax years covered by your voluntary disclosure.
For those applicants disclosing offshore financial accounts with an
aggregate highest account balance of less than $500,000, copies of
offshore financial account statements reflecting all account activity
for each of the tax years covered by your voluntary disclosure must be
readily available upon request.
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Properly completed and signed agreements to extend the period of time to assess tax (including tax penalties) and to assess FBAR penalties.
Please see the Submission Requirements on the IRS’s website, 2011 Offshore Voluntary Disclosure Initiative Documents and Forms, for a complete description of the forms and other information that must be submitted.
You may also be contacted by an examiner with a request for specific
additional information if needed to process your voluntary disclosure.
The examiner will certify that your voluntary disclosure is correct,
accurate, and complete by reviewing your records along with your amended
or delinquent income tax returns. The examiner will also verify the
tax, interest, and civil penalties you owe.
A full and complete submission is required for acceptance into the program. 26. Who will process my voluntary disclosure after I have submitted the information described in FAQ 25?
After you send in your full and complete submission as described in FAQ
25, your case will be assigned to a civil examiner to complete the
certification of your tax returns for accuracy, completeness and
correctness.
27. Will my voluntary disclosure be subject to an examination?
Normally, no examination will be conducted with respect to a voluntary
disclosure made under this initiative, although the Service reserves the
right to conduct an examination. The normal process is to assign the
voluntary disclosure to an examiner to certify the accuracy and
completeness of the voluntary disclosure. The certification process is
less formal than an examination and does not carry with it all the
rights and legal consequences of an examination. For example, the
examiner will not send the usual taxpayer notices, the certification
process will not constitute a “second examination” if one or more years
in the voluntary disclosure has previously been examined, and the
taxpayer will not have appeal rights with respect to the Service’s
determination. However, the examiner has the right to ask any relevant
questions, request any relevant documents, and even make third party
contacts, if necessary to certify the accuracy of the amended returns,
without converting the certification to an examination.
28. How long should the process take before it is completed?
Because every case is different, there is no way to predict how long the
process will take for you. However, the IRS has taken certain steps to
improve our efficiency in processing cases. Moreover, there are certain
steps you can take to expedite matters. If you have not already done so,
you should have delinquent or amended tax returns prepared now because
they must be submitted with your package by August 31, 2011. You should
also start gathering all of your foreign account statements and other
documentation for all of the years covered by your voluntary disclosure.
You may view a description of the submission requirements necessary to
process your voluntary disclosure at www.irs.gov.
Once the examiner has all the information needed to certify your
voluntary disclosure, most cases should be completed expeditiously. The
2011 OVDI will operate on a first-come, first-served basis. As a result,
complete submissions coming in before the final deadline are likely to
close much faster.
29. My offshore assets were held in the name of a foreign entity that I
controlled. However, the sole purpose of the entity was to conceal my
ownership of the assets, and I intend to dissolve the entity now that I
am making a voluntary disclosure. Do I still have to file the delinquent
information returns for the entity?
A taxpayer who holds assets through a foreign entity he or she controls,
such as a corporation or a trust, is required to file information
returns for that entity (e.g., Form 5471 for a foreign corporation and
Forms 3520 and 3520-A for a foreign trust), regardless of whether the
taxpayer honored the form of the entity in his or her dealings with the
assets. However, in cases where the taxpayer certifies under penalty of
perjury that the entity had no purpose other than to conceal the
taxpayer’s ownership of assets, and where the taxpayer dissolves the
entity, the Service may agree to waive the requirement that delinquent
information returns be filed if it concludes it is in the Service’s
interest to do so. Taxpayers wishing to request the Service to disregard
a foreign entity should submit a Statement on Dissolved Entities.
30. What should I do if I am having difficulty obtaining my records from overseas?
If you are having difficulty, speak with your agent or if your case is
not yet assigned, contact the IRS OVDI Hotline at (267) 941-0020. Our
experience with offshore cases in recent years has shown that taxpayers
are ultimately successful in retrieving copies of statements and other
records from foreign banks.
CALCULATING THE OFFSHORE PENALTY
31. When determining the highest amount in each undisclosed foreign account
for each year or the highest asset balance of all undisclosed foreign
entities for each year, what exchange rate should be used?
Convert foreign currency by using the foreign currency exchange rate at
the end of the year. In valuing currency of a country that uses multiple
exchange rates, use the rate that would apply if the currency in the
account were converted into United States dollars at the close of the
calendar year. Each account is to be valued separately.
32. If a taxpayer's violation includes unreported individual foreign
accounts and business accounts (for an active business), does the 25
percent offshore penalty include the business accounts?
Yes. Assuming that there is unreported income with respect to all the
accounts, they all will be included in the penalty base. No distinction
is drawn based on whether the account is a business account or a savings
or investment account. If the business to which the foreign account
relates is a foreign business, the value of the entire business would be
included in the penalty base, to the extent of the taxpayer’s interest.
33. Is there a de minimis unreported income exception to the 25 percent penalty?
No. No amount of unreported income is considered de minimis for purposes
of determining whether there has been tax non-compliance with respect
to an account or asset and whether the account or asset should be
included in the base for the 25 percent penalty.
34. If the look back period is 2003-2010, what does the taxpayer do if the
taxpayer held foreign real estate, sold it in 2002, and did not report
the gain on his 2002 return? Does the taxpayer compute the 25 percent on
the highest aggregate balance in 2003-2010? What, if anything, does IRS
expect the taxpayer to do with respect to 2002?
Gain realized on a foreign transaction occurring before 2003 does not
need to be included as part of the voluntary disclosure. If the proceeds
of the transaction were repatriated and were not offshore after
December 31, 2002, they will not be included in the base for the 25
percent offshore penalty. On the other hand, if the proceeds remained
offshore after December 31, 2002, they will be included in the base for
the penalty.
35. What kinds of assets does the 25 percent offshore penalty apply to?
The offshore penalty is intended to apply to all of the taxpayer’s
offshore holdings that are related in any way to tax non-compliance,
regardless of the form of the taxpayer’s ownership or the character of
the asset. The penalty applies to all assets directly owned by the
taxpayer, including financial accounts holding cash, securities or other
custodial assets; tangible assets such as real estate or art; and
intangible assets such as patents or stock or other interests in a U.S.
or foreign business. If such assets are indirectly held or controlled by
the taxpayer through an entity, the penalty may be applied to the
taxpayer’s interest in the entity or, if the Service determines that the
entity is an alter ego or nominee of the taxpayer, to the taxpayer’s
interest in the underlying assets. Tax noncompliance includes failure to
report income from the assets, as well as failure to pay U.S. tax that
was due with respect to the funds used to acquire the asset.
36. A taxpayer owns valuable land and artwork located in a foreign
jurisdiction. This property produces no income and there were no
reporting requirements regarding this property. Must the taxpayer report
the land and artwork and pay a 25 percent penalty? What if the property
produced income that the taxpayer did not report?
The answer to the first question depends on whether the non-income
producing assets were acquired with funds improperly non-taxed. The
offshore penalty is intended to apply to offshore assets that are
related to tax non-compliance. Thus, if offshore assets were acquired
with funds that were subject to U.S. tax but on which no such tax was
paid, the offshore penalty would apply regardless of whether the assets
are producing current income. Assuming that the assets were acquired
with after tax funds or from funds that were not subject to U.S.
taxation, if the assets have not yet produced any income, there has been
no U.S. taxable event and no reporting obligation to disclose. The
taxpayer will be required to report any current income from the property
or gain from its sale or other disposition at such time in the future
as the income is realized. Because there has not been tax noncompliance,
the 25 percent offshore penalty would not apply to those assets.
In answer to the second question, if the assets produced income
subject to U.S. tax during 2003-2010 which was not reported, the assets
will be included in the penalty computation regardless of the source of
the funds used to acquire the assets. If the foreign assets were held in
the name of an entity such as a trust or corporation, there would also
have been an information return filing obligation that may need to be
disclosed. See FAQ 5.
37. If a taxpayer transferred funds from one unreported foreign account to
another between 2003 and 2010, will he have to pay a 25 percent offshore
penalty on both accounts?
No. If the taxpayer can establish that funds were transferred from one
account to another, any duplication will be removed before calculating
the 25 percent penalty. However, the burden will be on the taxpayer to
establish the extent of the duplication.
38. If, in addition to other noncompliance, a taxpayer has failed to file an
FBAR to report an account over which the taxpayer has signature
authority but no beneficial interest (e.g., an account owned by his
employer), will that foreign account be included in the base for
calculating the taxpayer’s 25 percent offshore penalty? No. The account the taxpayer has mere signature authority over will be
treated as unrelated to the tax noncompliance the taxpayer is
voluntarily disclosing. The taxpayer may cure the FBAR delinquency for
the account the taxpayer does not own by filing the FBAR with an
explanatory statement by August 31, 2011. The answer might be different
if: (1) the account over which the taxpayer has signature authority is
held in the name of a related person, such as a family member or a
corporation controlled by the taxpayer; (2) the account is held in the
name of a foreign corporation or trust for which the taxpayer had a
Title 26 reporting obligation; or (3) the account was related in some
other way to the taxpayer’s tax noncompliance. In these cases, if the
taxpayer is determined to have a direct or indirect beneficial interest
in the account(s), the taxpayer will be liable for the 25 percent
offshore penalty if there is unreported income on the account. On the
other hand, if there is no unreported income with respect to the
account, no penalty will be imposed.
39. If parents have a jointly owned foreign account on which they have made
their children signatories, the children have an FBAR filing requirement
but no income. Should the children just file delinquent FBARs and have
the parents submit a voluntary disclosure? Will both parents be
penalized 25 percent each? Will each parent have a 25 percent penalty on
50 percent of the balance?
For those signatories with no ownership interest in the account, such as
the children in these facts, they should file delinquent FBARs as
previously described in FAQ 17. As for the parents, only one 25 percent
offshore penalty will be applied with respect to voluntary disclosures
relating to the same account. In the example, the parents will be
jointly required to pay a single 25 percent penalty on the account. This
can be through one parent paying the total penalty or through each
paying a portion, at the taxpayers’ option. However, any joint account
owner who does not make a voluntary disclosure may be examined and
subject to all appropriate penalties.
40. If multiple taxpayers are co-owners of an offshore account, who will be liable for the offshore penalty?
In the case of co-owners, each taxpayer who makes a voluntary disclosure
will be liable for the penalty on his percentage of the highest
aggregate balance in the account. His voluntary disclosure is effective
as to his tax liability only. It does not cover the other co-owners. The
IRS may examine any co-owner who does not make a voluntary disclosure.
Co-owners examined by the IRS will be subject to all appropriate
penalties.
41. If there are multiple individuals with signature authority over a trust
account, does everyone involved need to file delinquent FBARs? If so,
could everyone be subject to a 25 percent offshore penalty?
Only one 25 percent offshore penalty will be applied with respect to
voluntary disclosures relating to the same account. The penalty may be
allocated among the taxpayers with beneficial ownership making the
voluntary disclosures in any way they choose. The reporting requirements
for filing an FBAR, however, do not change. Therefore, every individual
who is required to file an FBAR must file one.
STATUTE OF LIMITATIONS
42. How can the IRS propose adjustments to tax for more than three years
without either an agreement from the taxpayer or a statutory exception
to the normal three-year statute of limitations for making those
adjustments?
Agreeing to assessment of tax and penalties for all voluntary disclosure
years is part of the resolution offered by the IRS for resolving
offshore voluntary disclosures. The taxpayer must agree to assessment of
the liabilities for those years in order to get the benefit of the
reduced penalty framework. If the taxpayer does not agree to the tax,
interest and penalty proposed by the voluntary disclosure examiner, the
case will be referred to the field for a complete examination of all
issues. In that examination, normal statute of limitations rules will
apply. If no exception to the normal three-year statute applies, the IRS
will only be able to assess tax, penalty and interest for three years.
However, if the period of limitations was open because, for example, the
IRS can prove a substantial omission of gross income, six years of
liability may be assessed. Similarly, if there was a failure to file
certain information returns, such as Form 3520 or Form 5471, the statute
of limitations will not have begun to run. If the IRS can prove fraud,
there is no statute of limitations for assessing tax. In addition, the
statute of limitations for asserting FBAR penalties is six years from
the date of the violation, which would be the date that an unfiled FBAR
was due to have been filed. 31 U.S.C. § 5321(b)(1).
43. Will I be required to complete and sign agreements to extend the period
of time to assess tax (including tax penalties) and to assess FBAR
penalties for any years that are otherwise set to expire while my
application is being processed by the IRS?
Yes. Properly completed and signed agreements to extend the period of
time to assess tax (including tax penalties) and to assess FBAR
penalties are required to be submitted by August 31, 2011 (see FAQ 25).
FBAR QUESTIONS
44. If I had an FBAR reporting obligation for years covered by the voluntary
disclosure, what version of the Form TD F 90-22.1 should I use to
report my interests in foreign accounts?
Taxpayers should use the most current version of Form TD F 90-22.1,
for filing delinquent FBARs to report foreign accounts maintained in
prior years. At this time, the most current version is the one that was
revised in October 2008. The taxpayer may, however, rely on the
instructions for the prior version of the form (revised in July 2000)
for purposes of determining who must file to report foreign accounts
maintained during the 2009 and prior calendar years. Taxpayers may rely
on guidance that was applicable for prior FBAR filing seasons (e.g., IRS
Announcement 2010-16 or IRS Notice 2010-23) in determining their FBAR reporting obligations.
45. A taxpayer has two offshore accounts. No FBARs were filed. The taxpayer
reported all income from one account but not the other. Mechanically,
how does the taxpayer report this? Does the taxpayer report both
accounts as a voluntary disclosure or bifurcate it into a delinquent
FBAR filing for the reported account and a voluntary disclosure for the
unreported account?
Because the annual FBAR requirement is to file a single report reporting
all foreign accounts meeting the reporting requirement, it is not
possible to bifurcate the corrected filing. The taxpayer should make a
voluntary disclosure for the omitted income and include the delinquent
FBARs with respect to both accounts. The account with no income tax
issue is unrelated to the taxpayer’s tax noncompliance, so no penalty
will be imposed with respect to that account.
46. If a taxpayer is uncertain about whether he is required to file an FBAR
with respect to a particular foreign account, how can the taxpayer get
help with this question?
Help with questions about FBAR filing requirements is available on the
FBAR Hotline at 1-800-800-2877. Select option 2. You can also submit
written questions about the FBAR rules by e-mail addressed to FBARQuestions@irs.gov. The instructions to the FBAR form are available at www.irs.gov.
Do not call the IRS OVDI Hotline with questions about whether you have
an FBAR filing requirement. The purpose of the Voluntary Disclosure
Hotline is to answer questions about how to make voluntary disclosures
and what penalties apply, assuming a taxpayer was required to file.
TAXPAYER REPRESENTATIVES
47. I have a client who may be eligible to make a voluntary disclosure. What
are my responsibilities to my client under Circular 230?
The IRS anticipates that taxpayers will seek qualified tax and legal
advice and representation in connection with considering and making a
voluntary disclosure. If a taxpayer seeks the advice of a tax
practitioner, the practitioner must exercise due diligence in
determining the correctness of any oral or written representations made
to the client about the program and the implications for that taxpayer
of going forward. If the taxpayer decides to proceed with the
disclosure, the practitioner must exercise due diligence in determining
the correctness of any oral or written representations that the
practitioner makes during the representation to the Department of the
Treasury; and must avoid giving, or participating in giving, false or
misleading information to the Department of the Treasury or giving a
false or misleading opinion to the taxpayer. If the taxpayer decides not
to make the voluntary disclosure despite the taxpayer’s noncompliance
with United States tax laws, Circular 230 requires the practitioner to
advise the client of the fact of the client’s noncompliance and the
consequences of the client’s noncompliance. A practitioner whose client
declines to make full disclosure of the existence of, or any taxable
income from, a foreign financial account, may not prepare a current or
future income tax return for that taxpayer without being in violation of
Circular 230.
48. Are there special considerations for completing Form 2848, Power of Attorney and Declaration of Representative?
Yes. In addition to being authorized to represent the taxpayer for tax
years 2003 through 2010, the power of attorney must specifically
authorize you to represent the taxpayer for income tax, civil penalties
and FBARs. A sample power of attorney can be found at www.irs.gov.
49. If the taxpayer and the IRS cannot agree to the terms of the 2011 OVDI
closing agreement, will mediation with Appeals be an option with respect
to the terms of the closing agreement?
No. The penalty framework and the agreement to limit tax exposure to
years 2003 through 2010 are package terms under the 2011 OVDI. If any
part of the offshore penalty is unacceptable to the taxpayer, the case
will be examined and all applicable penalties will be imposed (see FAQ
51). After a full examination, any tax and penalties imposed by the
Service on examination may be appealed, but the Service’s decision on
the terms of the 2011 OVDI closing agreement may not.
50. Will examiners have any discretion to settle cases?
No. Voluntary disclosure examiners do not have discretion to settle
cases for amounts less than what is properly due and owing. However,
because the 25 percent offshore penalty is a proxy for the FBAR penalty,
other penalties imposed under the Internal Revenue Code, and potential
liabilities for years prior to 2003, there may be cases where a taxpayer
making a voluntary disclosure would owe less if the special offshore
initiative did not exist. Under no circumstances will taxpayers be
required to pay a penalty greater than what they would otherwise be
liable for under the maximum penalties imposed under existing statutes.
For example, if a taxpayer had $100,000 in an offshore bank account in
only one year and foreign income-producing real estate with a fair
market value of $1,000,000, only the bank account would be subject to
the FBAR penalty. Consequently, the maximum FBAR penalty would only be
$100,000 (that is, the greater of $100,000 or 50% of the amount in the
foreign account), which is substantially less than the offshore penalty
of $275,000 (25% of $1,100,000). If this FBAR penalty, plus tax,
interest and all other applicable penalties, are less than what is due
under this offshore initiative, the taxpayer will only pay the lesser
amount.
Examiners will compare the amount due under this offshore initiative
to the tax, interest, and applicable penalties (at their maximum levels
and without regard to issues relating to reasonable cause, willfulness,
mitigation factors, or other circumstances that may reduce liability)
for all open years that a taxpayer would owe in the absence of the 2011
OVDI penalty regime. The taxpayer will pay the lesser amount. If the
taxpayer disagrees with the result, the taxpayer may request that the
case be referred for an examination of all relevant years and issues
(see FAQ 51).
51. If
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