Foreign Financial Account & Asset Reporting: FinCen (FBAR) v. FATCA

Transcription

1 Foreign Financial Account & Asset Reporting: FinCen (FBAR) v. FATCA Presented by David J Lewis, Attorney, of Krugliak, Wilkins, Griffiths & Dougherty Co. LPA and Patricia L Gibbs, CPA, of CBIZ MHM September 2015

2 A. FinCen 114 (FBAR) AGENDA B. FATCA Form 8938 C. Offshore Voluntary Disclosure Program D. Other FATCA Considerations 2

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4 Report of Foreign Bank Accounts Form FinCEN 114 required under the Bank Secrecy Act which was enacted in 1970 Originally enforced by the US Treasury, since 2004, IRS has been delegated full investigatory and enforcement authority Purpose to assist IRS in identifying unreported income maintained or generated abroad and in identifying or tracing funds used for illicit purposes Filed on a calendar year basis regardless of fiscal year of U.S. person Due date is June 30 th of each year with no extensions Effective for the 2016 tax year, the due date will change to align with individual income tax returns due April 15, and to allow a six-month extension Penalties Failure to file penalty up to $10,000 If reasonable cause for failure and account is properly reported, no penalty will be imposed Willful failure to file penalty equal to greater of $100,000 or 50 percent of account balance Criminal penalties may also be assessed 4

5 Report of Foreign Bank Accounts Who must file: U.S. person with a financial interest in, or signature or other authority over one or more foreign accounts valued at more than $10,000 at any time during the calendar year In March 2011, the Treasury revised the FBAR and instructions; this included changes to the definition of signature authority US Person ( US includes US territories for FBAR purposes): A citizen or resident of the US, An entity created or organized in the United States or under the laws of the United States ( entity includes but is not limited to a corporation, partnership, and limited liability company), A trust formed under the laws of the US, or An estate formed under the laws of the US 5

6 Report of Foreign Bank Accounts Financial account: Securities, brokerage, savings, demand, checking, deposit or time deposit account maintained with a financial institution Commodities futures or options account Insurance or annuity policy with a cash value Shares in a mutual fund or similar pooled fund Any other accounts maintained in a foreign financial institution, such as foreign retirement accounts (for ex. Canadian RRSP & TFSA and Mexican individual retirement accounts) Foreign financial account: Located outside the U.S. Ownership of the financial institution is irrelevant 6

7 Report of Foreign Bank Accounts Financial interest: Direct and indirect ownership is considered Owner of record or holder of legal title Owner of record is: An agent, nominee or attorney acting on behalf of a US person A corporation in which the U.S. person owns directly or indirectly more than 50% of the total value or voting power of all shares of stock A partnership in which the U.S. person owns directly or indirectly more than 50% of the partnership s profits or capital A trust in which the U.S. person has a greater than 50% present beneficial interest in the assets or income of the trust A trust in which the U.S. person is the grantor or has an ownership interest for Federal income tax purposes Any other greater than 50% entity 7

8 Report of Foreign Bank Accounts Exceptions to filing (FBAR instructions): Certain accounts jointly owned by spouses (see instructions for requirements) Consolidated FBARs (additional requirements in Part V) Foreign financial accounts of governmental entities International financial institutions (if the U.S. government is a member, for ex the World Bank and the IMF) IRA owners and beneficiaries Participants in and beneficiaries of tax-qualified retirement plans 8

9 Report of Foreign Bank Accounts Signature Authority (including Other Authority): Authority, alone or in conjunction with another, to control the disposition of funds held in the financial account by direct communication, in writing or otherwise, with the person who maintains the account Exceptions: An officer or employee of a bank that is examined by the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the FDIC, the Office of Thrift Supervision, or the NCUA An officer or employee of a financial institution that is registered with and examined by the SEC or CFTC An officer or employee of an Authorized Service Provider (i.e., an entity that is registered with and examined by the SEC) An officer or employee of an entity that has a class of equity, securities or ADRs listed on any U.S. national securities exchange An officer or employee of a U.S. subsidiary if the US parent has a class of equity securities listed on any U.S. national securities exchange and the subsidiary is included in a consolidated FBAR of the US parent An officer or employee of an entity that has a class of equity securities or ADRs registered under section 12(g) of the Securities Exchange Act 9

10 FATCA Overview Form

11 FATCA Form 8938 Filing Requirements For tax years beginning after March 18, 2010, specified individuals must file new Form 8938 with their income tax returns to report ownership of specified foreign financial assets if the total value of those assets exceeds an applicable threshold amount Determination of value-see form instructions and the regulations The threshold amount varies depending on the individual s residency and filing position IRS anticipates issuing regulations that will require domestic entities to file Form 8938, but to-date has only issued in proposed form Specified Individual: A US citizen A resident alien of the US for any part of the tax year A nonresident alien who makes an election to be treated as a resident alien for purposes of filing a joint income tax return A nonresident alien who is a bona fide resident of America Samoa or Puerto Rico 11

12 FATCA Form 8938 Filing Requirements (con t) Specified Foreign Financial Assets: Financial accounts maintained by a foreign financial institution The following foreign financial assets if they are held for investment and not held in an account maintained by a financial institution: Stock or securities issued by someone that is not a US person, Any interest in a foreign entity, and Any financial instrument or contract that has an issuer or counterparty that is not a US person Financial accounts maintained by a US payer are exempt. Financial accounts maintained by a dealer or trader in securities or commodities are exempt if all of the holdings in the account are subject to the mark-to-market accounting rules or an election under IRC 475(e) is made to treat the holdings as such. 12

13 FATCA Form 8938 Reporting Duplicate Information Individuals do not have to report a specified foreign financial asset on Form 8938 if they report it on one or more forms timely filed with the IRS for the same tax year. For example: Form 5471 Form 8621 Form 8865 Form 3520 The individual is still required to file Form however they only need to list the form(s) on which the specified foreign financial asset was reported. 13

14 FATCA Form 8938 Filing Requirements (con t) Interest in Specified Foreign Financial Assets Individuals have an interest in a specified foreign financial asset if any income, gains, losses, deductions, credits, gross proceeds, or distribution from holding or disposing of the asset are or would be required to be reported, included or otherwise reflected on their income tax return. Interests held by disregarded entities if the individual is the owner of a disregarded entity, they have an interest in any specified foreign financial asset owned by the disregarded entity. Interests in assets held in financial accounts if the individual has an interest in a financial account that holds specified foreign financial assets, they do not have to report the assets held in the account. 14

15 FATCA Form 8938 Individual Filing Thresholds The filing threshold is based on the taxpayers filing status: Filing Status Value* on the last day of the tax year is at least: Or, at any time during the year, the value is greater than: Unmarried taxpayers, living in the US 50,000 75,000 Married taxpayers filing jointly, living in the US Married taxpayers filing separately, living in the US Taxpayers not filing a joint return, living abroad** 100, ,000 50,000 75, , ,000 Taxpayers filing jointly, living abroad 400, ,000 * Fair market value translated using US Treasury Financial Management Service rate for December 31 **Living abroad means bona fide residents of a foreign country or individuals present in foreign countries for 330 full days during a 12 month time period 15

16 FATCA Form 8938 Penalties Failure to File Penalty $10,000 penalty for not filing a correct Form 8938 by due date (including extensions) Additional penalties (up to maximum of $50,000) may be assessed if the individual receives a notice of failure to file and does not comply Reasonable cause exception applies Accuracy-Related Penalty Fraud Criminal Penalties could also be assessed 16

17 Comparison Chart Form 8938 v FBAR and-fbar-requirements 17

18 Form 8938 and Offshore Voluntary Disclosure Program FATCA s efforts are aimed at foreign financial institutions, requesting cooperation to prevent tax evasion by U.S. taxpayers Alternatively, the Offshore Voluntary Disclosure Program (OVDP) focuses its efforts on taxpayers, allowing them to come forward and report undeclared foreign income and assets Participation in the OVDP requires taxpayers to produce relevant foreign financial documentation and forms, including Form OVDP FAQ 7, 25 IGAs (Intergovernmental Government Agreements) will cause disclosure of foreign financial information to the IRS, with or without taxpayer cooperation. Thus, taxpayers may be encouraged to participate in the OVDP, in an effort to avoid foreign reporting penalties. 18

19 Offshore Voluntary Disclosure Program What is OVDP? Amended Forms 1040 for the prior eight years for which non-compliance has occurred. FinCEN Form 114 Pay additional tax on amended Forms 1040, interest, 20 percent accuracy penalty on understated tax, and high-water mark on value of previously unreported foreign accounts and other assets that generated income for which there was no compliance at 27.5 percent. Closing agreement and complete taxpayer cooperation. Closing agreement expresses government s agreement not to prosecute for related non-compliance Only available for legal income cases No prior IRS contact nor investigation regarding taxpayer s non-compliance IRS reserves the right to close program at any time For additional information see the OVDP FAQs at Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers 19

20 Streamlined Filing Compliance Procedure On September 1, 2012, the IRS launched its Streamlined Procedure to allow non-u.s. taxpayers who failed to report foreign financial assets, not a result of willful conduct, to file/amend delinquent reports and resolve tax and penalty obligations. On July 1, 2014 changes occurred to the program including: Extension of eligibility to U.S. taxpayers residing in the United States; Elimination of the $1,500 tax threshold; and Elimination of the risk assessment processes associated with the streamlined filing compliance announced in

21 Streamlined Filing Compliance Procedure Requirements: Taxpayers wanting to participate in the Streamlined Program must sign statements, under penalties of perjury, stating in part that:» My failure to report all income, pay all tax, and submit all required information returns, including FBARs, was due to non-willful conduct.» I understand that non-willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law. I recognize that if the Internal Revenue Service receives or discovers evidence of willfulness, fraud, or criminal conduct, it may open an examination or investigation that could lead to civil fraud penalties, FBAR penalties, information return penalties, or even referral to Criminal Investigation. In addition to this statement, taxpayers must provide specific reasons for their failure to report all income, pay all tax, and submit all required information returns, including FBARs. Streamlined Program requires the filing of amended tax returns for the past 3 years reporting all foreign sourced and domestic sourced income and required information returns including Form 8938 for years 2010 through 2012; Additionally, participants must submit FBARs for the past 6 years; The only penalty under the Streamlined Program is the miscellaneous offshore penalty equal to 5 percent of the foreign financial assets that gave rise to the tax compliance issue all income tax related penalties associated with the foreign source income will be waived; But, the Streamlined Program does not limit the civil penalties otherwise associated with the reporting of U.S. source income. The 5 percent offshore penalty only resolves liabilities and penalties related to foreign noncompliance domestic portions of a voluntary disclosure are subject to examination; and The Streamlined Program does not provide protection against a possible criminal investigation and its resulting consequences including possible imprisonment, payment of back taxes and interest, and civil penalties. 21

22 Voluntary Disclosure Summary With rapidly expanding lists of IGA countries, IRS access to foreign account information is the new reality As a return preparer or tax adviser, have your firm s standards expanded to ask enough information and proactively raise the issue of reporting foreign assets? Going forward, tax preparers need to be aware of the possible preparer liability in connection to foreign financial reporting (Treasury Circular 230) 22

23 Miscellaneous: Trusts as FFIs In the current Regulations, financial institutions are defined to include, among other entities, any non-u.s. entity that acts as an investment entity. An investment entity is defined as an entity: that trades in financial instruments, manages individual or collective portfolios, or otherwise invests, administers, or manages financial assets on behalf of others; that invests or trades in financial assets and is managed by an investment adviser, depository institution, custodial institution or insurance company; and that functions as a collective investment vehicle, mutual fund, exchange traded fund, private equity fund, hedge fund, venture capital fund, leveraged buyout fund or any similar investment vehicle. Treas. Reg (e)(1) and (4) 23

24 Miscellaneous: Trusts as FFIs Based on this broad concept of investment entity, many tax advisers are warning that trusts and private investment companies could be considered financial institutions under FATCA Consequently, taxpayers who are service providers or managers of foreign trusts or private investment companies need to be aware of the FATCA registration and reporting requirements 24

25 Contact Information Patricia L. Gibbs, CPA CBIZ MHM 4040 Embassy Parkway, Suite 100 Akron, OH Direct Dial: David J. Lewis, Esq. Krugliak, Wilkins, Griffiths & Dougherty Co., LPA 50 South Main Street, Suite 501 Akron, OH Direct Dial:

26 The End! Questions??? Comments??? Thunderous Applause??? 26