IRS Modifies Offshore Filing Procedures

The IRS has issued FAQs relating to the new streamlined procedures for offshore compliance, and for Delinquent International Information Return Submission Procedures.

The FAQs for the streamlined program provide more detailed guidance on how the 5% penalty will be computed, how 100% owners of an incorporated business will be treated, and how stock of a foreign corporation will be valued.

The FAQ for Delinquent International Information Return Submission Procedures remove an implied requirement of reporting in the prior IRS announcements – the FAQ provides that these procedures can be used even if the taxpayer has unreported income or unpaid tax from the unreported foreign financial assets. Interestingly, the corollary Delinquent FBAR Submission Procedures remain unavailable for taxpayers with such unreported income or unpaid tax.

Below is a more detailed analysis of the new provisions by my partner, Richard Josepher:

IRS ISSUES NEW FAQS–WHAT IS NOT SAID MAY BE MORE IMPORTANT THAN WHAT IS SAID REGARDING DELINQUENT OFFSHORE FILINGS WHERE THERE IS “REASONABLE CAUSE”–HAS DOOR BEEN OPENED TO FILINGS OUTSIDE OF OVDP and OUTSIDE OF NEW PROCEDURES?

A LOOK AT IRS’ LATEST OFFSHORE FAQs CONCERNING: (1) RELATIONSHIP BETWEEN 2012 OVDP FAQ 18 to 2014 DELINQUENT INTERNATIONAL INFORMATION RETURN PROCEDURES WHERE THERE IS OMITTED INCOME AND (2) STREAMLINED PROCEDURES and 3 YEAR INTERNATIONAL INFORMATION RETURN PENALTY vs. 6 YEAR FBAR PENALTY PERIODS

    The IRS issued updates to its 2014 Offshore Voluntary Disclosure Frequently Asked Questions (“FAQs”) on October 8, 2014.  A careful review of the ramifications of these FAQs results in what may be construed as a tacit admission by the IRS that taxpayers have available to them voluntary disclosure options in addition to four offshore voluntary disclosure options provided by the IRS in its June 18, 2014 changes to the 2012 OVDP (“Offshore Voluntary Disclosure Program). The four options were the (1) OVDP, (2) Streamlined Filing Compliance Procedures, (3) Delinquent FBAR Submission Procedures, and (4) Delinquent International Information Return Procedures (hereinafter the “Four Options”).

    While the IRS does has never expressly stated that there are no offshore voluntary disclosure options other of the Four Options, it has strongly discouraged taxpayers from making disclosures other than under the Four Options. 
   
    For an in-depth discussion of the New Offshore Procedures see the several Rubin On Tax Blog prior articles posted in July and August - the final posting which has links to the prior postings can be viewed here.

    I.     Discussion Regarding Former FAQ 18 and Delinquent International Information Return Procedures.  In Delinquent International Information Return FAQ 1, the IRS  clarifies that, unlike 2012 FAQ 18, under the 2014 Procedures:

“Taxpayers who have unreported income or unpaid tax are not precluded from filing delinquent international information returns (emphasis supplied).”

    The new FAQ was necessary because 2014 FAQ 18 had linked the new Delinquent International Information Return Procedures to 2012 FAQ 18 (the “former FAQ 18"). Former FAQ 18  applied only if a taxpayer had not omitted income from an offshore entity and had reported and paid all taxes.  Specifically,  2014 FAQ 18 stated the following:

“If you have circumstances covered by former FAQ 18, you should not  you should not use OVDP and should see section 3 of the “Options Available For U.S. Taxpayers with Undisclosed Foreign Accounts” (section 3 contains the “Delinquent International Information Return Procedures”).

    2012 FAQ 18 read in part as follows:

“The IRS will not impose a penalty for the failure to file the delinquent Forms 5471 and 3520 if there are no under-reported tax liabilities and you have not previously been contacted regarding an income tax examination or a request for delinquent returns.”

    The October 8, 2014 FAQ 1 clearly distinguishes the 2014 Delinquent International Information Return Procedures from the 2012 procedures. Under 2012 FAQ 18, the fact that there was omitted offshore income or unpaid tax does not disqualify a taxpayer from filing a delinquent international information return.

    Neither the October 8, 2014 FAQ, nor the prior information on the IRS Offshore Web-site explains the rationale for the new FAQ.

    The IRS has not previously stated that it will accept delinquent filings where there is omitted offshore financial asset income–even in cases where the taxpayer can establish “reasonable cause” for the non-reporting. 

    The logical inference from the new FAQ 1 is the following: If there is “reasonable cause” for a failure to file a return associated with a foreign financial asset, since there would be no delinquent information return penalty under current statutory law, there is no basis for the IRS’ imposition of an offshore penalty-whether under the OVDP, the Streamlined Procedures or otherwise.

    As explained in the new FAQ 1, as well as in the explanation of the Delinquent Information Return Procedures issued in June, 2014, the IRS may impose a late filing penalty if an IRS examination determines that “reasonable cause was not established.” Further, there are absolutely no assurances that taxpayers filing delinquent offshore returns outside of the OVDP won’t be subjected to significant penalties to contest or pay  if “reasonable cause” is not established.

    II.    Discussion Regarding Additional Streamlined FAQs (for taxpayers residing in the United States) .  The October 8, 2014 Streamlined FAQs clarify the requirement that while only 3 prior years of income tax returns must be amended and filed and whereas penalties for delinquent international information returns apply for only a three year period, there is 6 year FBAR (FinCen From 114) filing and penalty period. The  5% streamlined penalty base applies for such 3 and 6 year periods.  Further, as stated in FAQ 6 below, even if  delinquent international information returns were filed within the most recent 3 years, if related gross income was not reported, then the asset is included in the penalty base. This would be the case regardless of whether there was “reasonable cause” for the omission and should be considered when considering filing within or outside of the Streamlined Procedures.  FAQ 5 addresses the look-through treatment of disregarded entity as opposed to such assets owned by an entity which is not a disregarded entity. Bank accounts owned by the disregarded entity are considered as owned directly by the owning member whereas bank accounts owned by a corporation are not.

     New FAQs 4,  6 and 7 read as follows:

 “FAQ 4: Q:  I am a U.S. resident making a Streamlined Domestic Offshore submission. I am the 100-percent owner of an incorporated business with various assets, including financial accounts. Does the 5-percent penalty base include the stock in the corporation or just the underlying financial accounts?

 A. The penalty base includes the stock in the corporation (and not the underlying financial accounts) unless it is a disregarded entity for federal income tax purposes. Under the instructions for Form 8938, stock in a foreign corporation is a specified foreign financial asset. Whether the stock in the foreign corporation or the underlying foreign financial accounts are reportable on Form 8938, and therefore are included in the penalty base, depends on whether the corporation is a disregarded entity. If it is, the instructions require the reporting of the underlying foreign financial accounts, which would then be included in the penalty base. However, if the corporation is not a disregarded entity, then the instructions provide that the taxpayer is not considered the owner of the underlying assets solely as a result of the taxpayer’s status as a shareholder. The same principle would apply to assets that are held in a foreign partnership or trust.”

“FAQ 6:Q.     How do I calculate the 5-percent penalty for Streamlined Domestic Offshore filers?

 A.    Begin the computation by identifying the assets included in the penalty base for each of the last six years. These assets include:

--For each of the six years in the covered FBAR period, all foreign financial accounts (as defined in the instructions for FinCEN Form 114) in which the taxpayer has a personal financial interest that should have been, but were not reported, on a FBAR;

--For each of the three years in the covered tax return period, all foreign financial assets (as defined in the instructions for Form 8938) in which the taxpayer has a personal financial interest that should have been, but were not, reported on Form 8938.

  --For each of the three years in the covered tax return period, all foreign financial accounts/assets (as defined in the instructions for FinCEN Form 114 or IRS Form 8938) for which gross income was not reported for that year. (Emphasis added).
        
   Once the assets in the penalty base have been identified for each year, enter the value of the taxpayer’s personal financial interest in each asset as of December 31 of the applicable year on the Certification by U.S. Person Residing in the United States for Streamlined Domestic Offshore Procedures (Form 14654). For any year in which a foreign financial account was FBAR compliant and (for the most recent three years) in which a foreign financial asset was both Form 8938 and Form 1040 compliant, the amount entered on the form will be zero. Once the asset values have been entered on the form, add up the totals for each year and select the highest aggregate amount as the base for the 5-percent penalty.”

“FAQ 7:Q.      I am a U.S. resident who filed compliant tax returns (including Forms 8938) and FBARs for the most recent three years for which tax returns were due. However, I failed to properly report a foreign financial asset in years prior to that and did not make a voluntary disclosure. I am otherwise eligible to make a Streamlined Domestic Offshore submission. May I make a streamlined submission and, if so, how is the 5-penalty calculated?

A.     You may make a streamlined submission. Because the most recent three years are fully compliant, there will be no assets in the penalty base for those years. Follow the procedure in answer 6 above for the three years prior to that to calculate the aggregate year-end account balances and year-end asset values for each of those three years. The penalty is 5 percent of the highest aggregate amount.”

    III.    Conclusion.  The IRS has clarified that  filing of delinquent international information returns is permitted under the 2014 Delinquent International Information Return Procedures even though there is omitted income from the offshore entity. Although the October 8, 2014 FAQs don’t concern late filed FBARs in cases where there is omitted income, by analogy to the Delinquent Information Return Procedures, there is now “FAQ precedent” for the proposition that if the taxpayer has “reasonable cause,” delinquent FBAR filings outside of the Streamlined Procedures should be considered where “reasonable cause” can be demonstrated. There appears to be no reason for the distinctions between late international information return procedures and late FBAR procedures, and a late filed FBAR should not automatically result in a streamlined filing and a 5% penalty. This is especially the case where the filings under the Streamlined Procedures carry no assurances of limited penalties.

    Based upon the foregoing, non-compliant taxpayers who have wondered whether they must pay at least a 5% offshore penalty under the Streamlined Procedures as the price of coming into offshore compliance may now have an  answer from the recent FAQs: A viable compliance option is a filing outside of the OVDP and outside of the Four Options in cases where reasonable cause can be established. The cautious taxpayer should consider obtaining “pre-clearance” similar to that available under the OVDP to assure that he is not disqualified from making a voluntary disclosure. Further, all other appropriate due diligence should be performed so that the filing does not result in unanticipated civil or criminal penalties.  After all, surprises are for kids.