On 6/18/14 we posted "IRS Makes Changes to Offshore Programs; Revisions Ease Burden and Help More Taxpayers Come into Compliance", where we discussed the program now provides for the following clarifications to the OVDP program:
- Continuation of 2012 OVDP.
- Increased penalty in certain situations.
- Reduced penalty structure eliminated.
- Potential penalties for non-disclosers.
- Potential criminal charges for non-disclosers.
- Effect of prior "quiet disclosures."
- Submitting payment & bank statements with application. The new procedure now requires taxpayers to submit all account statements and pay the offshore penalty at the time of the OVDP application.
- Penalties waived under streamline procedure for nonresidents. For eligible taxpayers residing outside the U.S., the revised Streamline Procedure provides that all penalties will be waived.
- 5% penalty streamline procedure for residents. For eligible taxpayers residing in the U.S., the revised Streamline Procedure provides that the only penalties will be a miscellaneous offshore penalty equal to 5 percent of the foreign financial assets that gave rise to the tax compliance issue.
- Effective date. The revised FAQs are effective for all new submissions made on or after July 1, 2014. (FAQ #1.2).
Charles Rettig, posted in Forbes links to the latest IRS OVDP Procedures including:
1. IRS Makes Changes to Offshore Programs; Revisions Ease Burden and Help More Taxpayers Come into Compliance (IR-2014-73, June 18, 2014). On June 18, 2014, the IRS announced major changes in its OVDP, providing new options to help both taxpayers residing overseas and those residing in the United States. The changes include an expansion of the streamlined filing compliance procedures announced in 2012 and important modifications to the 2012 OVDP. The expanded streamlined procedures are intended for U.S. taxpayers whose failure to disclose their offshore assets was “non-willful.” http://www.irs.gov/uac/Newsroom/IRS-Makes-Changes-to-Offshore-Programs;-Revisions-Ease-Burden-and-Help-More-Taxpayers-Come-into-Compliance
2. Offshore Income and Filing Information for Taxpayers with Offshore Accounts (FS-2014-7, June 2014). U.S. citizens, resident aliens and certain nonresident aliens are required to report worldwide income from all sources including foreign accounts and pay taxes on income from those accounts at their individual rates. Taxpayers with undisclosed accounts should consider options available under the expanded streamlined filing process or the Offshore Voluntary Disclosure program. Filing and reporting requirements are generally discussed at http://www.irs.gov/uac/Newsroom/Offshore-Income-and-Filing-Information-for-Taxpayers-with-Offshore-Accounts
4. Options Available For U.S. Taxpayers with Undisclosed Foreign Financial Assets. The implementation of FATCA and the ongoing efforts of the IRS and the Department of Justice to ensure compliance by those with U.S. tax obligations have raised awareness of U.S. tax and information reporting obligations with respect to non-U.S. investments. Because the circumstances of taxpayers with non-U.S. investments vary widely, the IRS describes various options for addressing previous failures to comply with U.S. tax and information return obligations with respect to those investments. http://www.irs.gov/Individuals/International-Taxpayers/Options-Available-For-U-S–Taxpayers-with-Undisclosed-Foreign-Financial-Assets
5. STREAMLINED FILING COMPLIANCE PROCEDURES
a. Streamline Filing Compliance Procedures. The procedures described below are available to taxpayers certifying that their failure to report foreign financial assets and pay all tax due in respect of those assets did not result from willful conduct on their part. The streamlined procedures are designed to provide to taxpayers in such situations (1) a streamlined procedure for filing amended or delinquent returns and (2) terms for resolving their tax and penalty obligations. These procedures will be available for an indefinite period until otherwise announced. http://www.irs.gov/Individuals/International-Taxpayers/Streamlined-Filing-Compliance-Procedures
b. U.S. Taxpayers Residing Outside the United States. Streamlined procedures for non-residents are referred to as the Streamlined Foreign Offshore Procedures. Eligibility, description of the scope and effect of the procedures as well as submission instructions are available at http://www.irs.gov/Individuals/International-Taxpayers/U-S-Taxpayers-Residing-Outside-the-United-States
c. Certification by U.S. Person Residing Outside of the U.S. Persons residing outside the United States applying for the new streamlined procedures must complete and submit the “non-willful” certification statement available at http://www.irs.gov/pub/irs-utl/CertNonResidents.pdf
d. U.S. Taxpayers Residing in the United States. Streamlined procedures for non-residents are referred to as the Streamlined Domestic Offshore Procedures. Eligibility, description of the scope and effect of the procedures as well as submission instructions are available at http://www.irs.gov/Individuals/International-Taxpayers/U-S-Taxpayers-Residing-in-the-United-States
e. Certification by U.S. Person Residing in the U.S. Persons residing in the United States applying for the new streamlined procedures must complete and submit the “non-willful” certification statement available at http://www.irs.gov/pub/irs-utl/CertUSResidents.pdf
6. STREAMLINED FILING COMPLIANCE SUBMISSION PROCEDURES
a. Delinquent FBAR Submission Procedures. Taxpayers who do not need to use either the OVDP or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report and pay additional tax but (1) have not filed a required Report of Foreign Bank and Financial Accounts (FBAR) (FinCEN Form 114, previously Form TD F 90-22.1), (2) are not under a civil examination or a criminal investigation by the IRS, and (3) have not already been contacted by the IRS about the delinquent FBARs, should follow the procedures described at http://www.irs.gov/Individuals/International-Taxpayers/Delinquent-FBAR-Submission-Procedures
b. Delinquent International Information Return Submission Procedures. Taxpayers who do not need to use the OVDP or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report and pay additional tax, but who (1) have not filed one or more required international information returns, (2) have reasonable cause for not timely filing the information returns, (3) are not under a civil examination or a criminal investigation by the IRS, and (4) have not already been contacted by the IRS about the delinquent information returns should file the delinquent information returns with a statement of all facts establishing reasonable cause for the failure to file. As part of the reasonable cause statement, taxpayers must also certify that any entity for which the information returns are being filed was not engaged in tax evasion. If a reasonable cause statement is not attached to each delinquent information return filed, penalties may be assessed in accordance with existing procedures. Additional required information is discussed at http://www.irs.gov/Individuals/International-Taxpayers/Delinquent-International-Information-Return-Submission-Procedures
7. FAQ’s – OVDP and Transition Guidance for Eligible Taxpayers Desiring to Switch to the Streamlined Procedures
a. Offshore Voluntary Disclosure Program Frequently Asked Questions and Answers. FAQs Effective for OVDP Submissions Made On or After July 1, 2014 are available at http://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers-2012-Revised
b. Transition Rules Frequently Asked Questions. FAQs regarding OVDP participants applying for the new streamlined procedures are available at http://irs.gov/Individuals/International-Taxpayers/Transition-Rules-Frequently-Asked-Questions-FAQs
8. REVISED OVDP VOLUNTARY DISCLOSURE LETTER
a. Offshore Voluntary Disclosure Letter. Taxpayers participating in the OVDP are required to submit the Offshore Voluntary Disclosure letter available at http://www.irs.gov/pub/irs-utl/OVDIntakeLtr.pdf
b. Offshore Voluntary Disclosure Letter Attachment. Taxpayers participating in the OVDP are required to submit the attachment to the Offshore Voluntary Disclosure letter available at http://www.irs.gov/pub/irs-utl/OVDIntakeLtrAttach.pdf
9. UPDATED INFORMATION REGARDING ONGOING GOVERNMENT INVESTIGATIONS OF FOREIGN FINANCIAL INSTITUTIONS
a. List of Foreign Financial Institutions or Facilitators. Beginning on August 4, 2014, any taxpayer who has an undisclosed foreign financial account will be subject to a 50-percent miscellaneous offshore penalty if, at the time of submitting the preclearance letter to IRS Criminal Investigation: an event has already occurred that constitutes a public disclosure that either
i. the foreign financial institution where the account is held, or another facilitator who assisted in establishing or maintaining the taxpayer’s offshore arrangement, is or has been under investigation by the IRS or the Department of Justice in connection with accounts that are beneficially owned by a U.S. person;
ii. the foreign financial institution or other facilitator is cooperating with the IRS or the Department of Justice in connection with accounts that are beneficially owned by a U.S. person or
iii. the foreign financial institution or other facilitator has been identified in a court- approved issuance of a summons seeking information about U.S. taxpayers who may hold financial accounts (a “John Doe summons”) at the foreign financial institution or have accounts established or maintained by the facilitator.
iv. Examples of a public disclosure include, without limitation:
1. a public filing in a judicial proceeding by any party or judicial officer; or
2. public disclosure by the Department of Justice regarding a Deferred Prosecution Agreement or Non-Prosecution Agreement with a financial institution or other facilitator.
v. A list of foreign financial institutions or facilitators meeting this criteria is available at http://www.irs.gov/Businesses/International-Businesses/Foreign-Financial-Institutions-or-Facilitators
10. REVISED FREQUENTLY ASKED QUESTIONS REGARDING THE MODIFIED OVDP
a. The Disclosure Period. For calendar year taxpayers the voluntary disclosure period is the most recent eight tax years for which the due date has already passed. The eight year period does not include current years for which there has not yet been non-compliance. The years involved in an OVDP disclosure are identified in FAQ #9 available at http://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers
b. Requesting Pre-Clearance into the OVDP. For the OVDP, pre-clearance may be requested as follows: 1.Taxpayers or representatives send a facsimile to the IRS – Criminal Investigation Lead Development Center (LDC) with: (a) identifying information (name, date of birth, social security number and address) and (b) an executed power of attorney (if represented) at (267) 941-1115 to request pre-clearance before making an offshore voluntary disclosure. In the case of jointly filed returns, if each spouse intends to apply for OVDP, each spouse should request pre-clearance. 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 45 days from receipt of the fax notification to make an offshore voluntary disclosure. Pre-clearance does not guarantee a taxpayer acceptance into the OVDP. Taxpayers must truthfully, timely, and completely comply with all provisions of the OVDP. Taxpayers or representatives with questions regarding pre-clearance may call the IRS CI OVDP hotline at (267) 941-1607. For all other offshore voluntary disclosure questions call the IRS OVDP Hotline at (267) 941-0020. Additional information is available at FAQ #23 http://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers
c. FBAR Form to use for the OVDP. After June 30, 2013, taxpayers must file FBARs electronically. Taxpayers who are unable to file electronically may contact FinCEN’s Regulatory Helpline at 1-800-949-2732 or (if calling from outside the United States) 1-703-905-3975 to determine possible alternative for timely reporting. 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 January 2012. 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 FBAR guidance that was applicable for the calendar year that is being reported (e.g., IRS Announcement 2010-16 or IRS Notice 2010-23) in determining their FBAR reporting obligations. Additional information is available at FAQ #44 http://www.irs.gov/Individuals/International-Taxpayers/Offshore-Voluntary-Disclosure-Program-Frequently-Asked-Questions-and-Answers
d. Special Requirements for the OVDP Power of Attorney. In addition to being authorized to represent the taxpayer for tax years within the voluntary disclosure period, the power of attorney must specifically authorize you to represent the taxpayer for income tax, civil penalties and FBARs. A sample is available at http://www.irs.gov/pub/irs-utl/f2848-ovdp.pdf
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