FOREIGN INCOME, ASSETS, AND IRS AMNESTY PROGRAMS

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1 FOREIGN INCOME, ASSETS, AND IRS AMNESTY PROGRAMS Ahuja & Clark, PLLC By: Madhu Ahuja, CPA, CVA, CFE Ravi Modi, CPA

2 WHO IS SUBJECT TO TAX FILING REQUIREMENTS? U.S. Citizen and Green Card Holders Resident alien (substantial presence >183 days) of the U.S. for the taxable year Nonresident alien with U.S. source income

3 Overall Objective of IRS Taxation of Global/Worldwide Income

4 AVAILABLE OPTIONS FOR UNDISCLOSED FOREIGN ASSETS Streamlined Filing Compliance Procedure Offshore Voluntary Disclosure Program (OVDP) Delinquent International Information Return Submission Procedures Delinquent FBAR Submission Procedures

5 STREAMLINED FILING COMPLIANCE PROCEDURE To Qualify: Must be a resident in the U.S Have previously filed a U.S. Tax Return (if required) for each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed Have failed to report gross income from a foreign financial asset and pay tax as required by the U.S. Law Taxpayers must certify that the conduct was not willful IRS must not have already begun a Civil Examination on any of the taxpayer s tax return

6 STREAMLINED FILING COMPLIANCE PROCEDURE 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 Handled on a case by case process by the IRS

7 STREAMLINED FILING COMPLIANCE PROCEDURE Streamlined penalty is 5% Generally, the penalty is calculated based on your highest aggregate balance in the past 6 years versus 8 years in the OVDP

8 STREAMLINED FILING COMPLIANCE PROCEDURE No criminal protection Returns may be selected for audit under the existing audit selection process Upon examination, returns submitted under the streamlined procedures may be subject to IRS examination, additional civil penalties, and even criminal liability, if appropriate

9 OFFSHORE VOLUNTARY DISCLOSURE PROGRAM The IRS is offering taxpayers with undisclosed income from offshore accounts another opportunity to get current with their tax returns. The 2014 OVDP (cont. of 2012 OVDP) has a higher penalty rate than the previous programs, but offers clear benefits to encourage taxpayers to disclose foreign accounts now rather than risk detection by the IRS and possible criminal prosecution

10 OFFSHORE VOLUNTARY DISCLOSURE PROGRAM Eligibility: If you have undisclosed foreign income, accounts or assets Individuals, corporations, partnerships, and trusts If you made a quiet disclosure, you can apply for the OVDP If you are under examination, you are not eligible

11 WHAT YEARS ARE INCLUDED IN THE OVDP PERIOD? 8 year period

12 WHY SHOULD I MAKE A VOLUNTARY DISCLOSURE? Avoid civil penalties and eliminate the risk of criminal prosecution Avoid risk of fraud penalty and foreign information return penalties Avoid chance of criminal prosecution

13 PROCESS FOR OVDP Step 1 Step 2 Step 3 Fax to the Criminal Investigation Lead Development Center (LDC) Criminal Investigation will grant permission Cleared taxpayers should submit documents in 45 days *Pre-clearance does not guarantee a taxpayer OVDP

14 WHAT ARE THE TERMS FOR OVDP? After Pre-Clearance, provide copies of previously filed original federal income tax returns Provide complete and accurate original and amended federal income tax returns File complete and accurate original or amended offshore-related information returns Pay 20% accuracy-related penalty and penalty up to 27.5% of highest balance in the account or 50% for compromised banks

15 WHAT ARE THE TERMS FOR OVDP? (CONT..) Pay failure to file penalties, if applicable Submit full payment of all tax, interest, accuracy-related penalty, and the failure to file and pay penalties Execute a closing agreement (Form 906)

16 Year Amount on Deposit Interest Income Account Balance 2006 $1,000,000 $50,000 $1,050, $50,000 $1,100, $50,000 $1,150, $50,000 $1,200, $50,000 $1,250, $50,000 $1,300, $50,000 $1,350, $50,000 $1,400,000 EXAMPLE OF THE PENALTY FRAMEWORK A S I N G L E P E N A LT Y I S C A L C U L A T E D A T % O F T H E H I G H E S T VA L U E

17 TAX & PENALTIES INVOLVED IN OVDP Tax of $140,000 (8 years at $17,500) assuming tax rate at 35% Interest Penalties 20% Accuracy Related: $140,000 times 20% = $28,000 Miscellaneous Offshore Penalty of $385,000 ($1.4Mill times 27.5%) Late Filing Penalty (if applicable)

18 WHO WILL PROCESS MY VOLUNTARY DISCLOSURE? A civil examiner will complete the certification for accuracy HOW LONG SHOULD THE PROCESS TAKE BEFORE IT S COMPLETED? There is no way to predict

19 WILL MY VOLUNTARY DISCLOSURE BE UNDER EXAMINATION? No examination will occur, but the IRS reserves the right to an examination Normal process is to assign the OVDP to an examiner for review Examiner has the right to ask questions

20 WHAT IS THE ROLE OF THE STATUTE OF LIMITATIONS? You must complete and sign agreements to extend the time to process tax and FBAR penalties

21 WHAT IF I VE COMPLETED A QUIET DISCLOSURE? Quiet disclosures Paying previously unreported foreign income on an amended return IRS is Monitoring Quiet Disclosures Taxpayers can submit an application and their original and amended returns to the IRS

22 WHAT IF I CAN T PAY IN FULL? Taxpayer has to pay the tax, interest, and accuracy-related penalty, and the failure to file and failure to pay penalties Arrangements can be made with the IRS for payment issues File Form 433-A

23 KEY COMPARISONS STREAMLINED VS OVDP Streamlined 5% Offshore Penalty Interest penalties May be subject to IRS Examination, additional civil penalties, and even criminal liability, if appropriate File 3 years of Amended Tax return and applicable information forms File 6 years worth of FBAR MUST BE NON-WILLFUL No Certainty if the Offshore issues are resolved or not OVDP 27.5% Offshore Penalty (max. 50%) & 20% Accuracy related penalty on tax due Late Filing, Late payment, & Interest penalties Avoid substantial civil penalties, and generally eliminate the risk of criminal prosecution for all issues relating to tax and noncompliance and failing to file FBARs Provides the opportunity to calculate, with a reasonable degree of certainty, the total cost of resolving all offshore tax issues File 8 years of Amended/delinquent tax returns, informational returns, and FBARs Extensive documentation of information and submission requirements

24 What if I ve already reported my taxable income? OVDP and Streamlined is for individuals who did not report taxable income

25 DELINQUENT INTERNATIONAL INFORMATIONAL RETURN SUBMISSION PROCEDURES Taxpayers who do not have unreported income and have not filed one or more required international information returns may use this option. They should: Have reasonable cause for not timely filing the information returns, Are not under a civil examination or criminal investigation by the IRS, and Have not already been contacted by the IRS about the delinquent information returns These Persons should file the delinquent information returns with a statement of all facts establishing reasonable cause for the failure to file

26 DELINQUENT FBAR SUBMISSION PROCEDURES Taxpayers who do need to use either the OVDP or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report tan pay additional tax, but who: Have not filed a required Report of Foreign Bank and Financial Accounts (FBAR) (FinCen Form 114, Previously Form TD F ) Are not under a civil examination or a criminal investigation by the IRS, and Have not already been contacted by the IRS about the delinquent FBARs Should file the delinquent FBARs according to the FBAR Instructions.

27 DELINQUENT FBAR SUBMISSION PROCEDURE The IRS will not impose a penalty for the failure to file the delinquent FBARs: if you properly reported on your U.S. tax returns paid all tax on, the income from the foreign financial accounts reported on the delinquent FBARs you have not previously been contacted regarding an income tax examination or a request for delinquent returns for the years for which the delinquent FBARs are submitted FBARs will not be automatically subject to audit but may be selected for audit through the existing audit selection processes that are in place for any tax or information returns

28 QUESTIONS?

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