Domestic Streamlined Disclosure for Taxpayers Living in the U.S.
For decades, many wealthy Americans utilized an array of offshore tax methods to conceal income and assets and reduce their tax burden. These practices were, for a time, successful for many people. However, around the time of the 2007 financial collapse and the ensuing concerns regarding federal budget shortfalls Congress began to look for ways to close the tax revenue gap. One of the methods Congress settled upon was a drastic overhaul of the American and, by extension, worldwide banking system. Under the new system, an array of foreign account and asset disclosure laws were enacted or strengthened that require Americans to make annual disclosures provided that there foreign assets exceed certain thresholds.
However, the limits set by Congress were extremely low and resulted in an obligation to file FBAR or FATCA for millions of Americans including individuals who are doing well, but do not consider themselves wealthy. An array of people living in the United States have an obligation to disclose. Individuals more likely to have foreign accounts requiring such disclosures may include:
- Frequent business travelers who keep foreign accounts and assets for convenience.
- Recent immigrants to the United States who have maintained foreign bank accounts.
- Americans with family members in foreign nations to whom they send remittances.
- Investors seeking a diverse portfolio insulated from domestic volatility.
Unfortunately, penalties for failure to disclose are harsh. However, many individuals never intended to break the law and only failed to disclose due to a lack of knowledge regarding the obligation or a misunderstanding of covered accounts and assets. However, for taxpayers without willfulness concerns, streamlined disclosure can provide a means to achieve compliance while avoiding the majority of offshore penalties imposed under standard OVDP.
What Are the Benefits of Streamlined Disclosure for U.S. Residents?
Taxpayers living in the U.S. including U.S. citizens, legal permanent residents, resident aliens and others who meet the requirements set forth in the substantial presence test can often make use of the benefits provided by Domestic Streamlined Disclosure. Whereas the offshore penalty paid as part of a standard OVDP disclosure can be assessed at either 27.5 or 50 percent, the offshore penalty paid in the Streamlined program is 5 percent of the highest aggregate balance. However, the reduced penalties are not limited to only the offshore penalty. These taxpayers can also avoid the penalties associated with:
- Accuracy of previous tax filings
- Information returns
It is important to note that while new penalties are not imposed, any already existing penalties will remain undisturbed. Other benefits presented by the Streamlined program are related to the amount of new or amended tax and FBAR filings required to be made. Under Streamlined procedures an individual is required to submit only 6 years of FBAR (OVDP requires eight years) and three years of income tax returns (OVDP requires eight years of tax returns).
Who Is Eligible to Correct Offshore Non-Compliance with Domestic Streamlined Procedures?
To be eligible to make use of the Domestic Streamlined Procedures and individual must be considered a U.S. resident for tax purposes. Typically, this means the individual has an abode in the United States. Alternatively, for certain individuals, they must satisfy the substantial presence test. The individual may also be required to have filed a tax return for each of the previous three years. Furthermore, they must have failed to report some portion of their gross income or failed to file required FBARs. Finally, the conduct that gave rise to the failure to file must have been non-willful. Non-willful conduct includes actions that are not taken voluntarily or intentionally to avoid or defeat a known legal duty.
This last requirement is particularly noteworthy because individuals who make use of the Streamlined disclosure procedures are required to certify under penalty of perjury that their non-compliance was the result of a good-faith misunderstanding of the law. Therefore, the filing should be reviewed or prepared by an experienced tax lawyer. Taking this step is prudent because filers who attempt to use Streamlined procedures when conduct was willful have perjured themselves compounding their potential liability. Furthermore, they have likely just disclosed information that may further a potential criminal tax prosecution without receiving the protection from criminal referral that comes with standard OVDP. The disclosure should only be reviewed by a lawyer because the attorney-client privilege can maintain the confidentiality of your disclosures should the or she identify an underlying criminal concern due to willfulness or other reasons.
Separated Spouses Previously Limited to OVDP Due to Joint Return Signature Problems Can Now Use Streamlined Procedures
Previously, spouses who had previously filed a joint tax return but were no longer able to secure the signature of their former partner were limited to the OVDP program. This is because amending a joint return requires the signature of both parties who originally signed it. While the use of a closing agreement in OVDP would allow a taxpayer to overcome this requirement, a similar procedure was not previously available in Streamlined Disclosures. Therefore, even when the taxpayer did not have concerns about potential criminality or willfulness, he or she was forced into OVDP where a 27.5 or 50 percent offshore penalty applied. However, recent guidance has altered this harsh result that is often outside of the control of the taxpayer.
Separated taxpayers residing in the United States can now refer to FAQ #14 of the Streamlined Filing Compliance Procedures for U.S. Taxpayers Residing in the United States Frequently Asked Questions and Answers for guidance as how to complete a Streamlined filing with only one signature. Provided that certain conditions are met, the taxpayer may submit a joint amended income tax return with only one signature. As part of the procedures, the taxpayer must provide a written explanation in the form of a narrative stating why they were unable to secure their former or separated spouse’s signature. Furthermore, the taxpayer should reference “SDO FAQ 14” in red ink where the other spouse would ordinarily sign. While routine processing will result in a request for the missing signature being made, the taxpayer should once again reference “SDO FAQ 14.”
What Steps Must I Take to File for Streamlined Disclosure if I Live in the U.S.?
It is prudent to hire a meticulous and experienced international tax lawyer to handle Streamlined filings. However, it is important for the taxpayer to understand the process of a Streamlined disclosure. Therefore, we will set forth the general steps that are required in making a filing of this type.
Generally, the start of the filing procedures begins with collecting the three most recently filed income tax returns. Under the domestic procedures, these returns must be updated with accurate and comprehensive amended returns making use of only IRS Form 1040X. Furthermore, these amended returns must be accompanied by relevant or required informational returns even if the return would otherwise ordinarily be filed separately. Each of the amended returns must be conspicuously marked that they are being submitted under the Streamlined Domestic Offshore procedures. The taxpayer must also submit any and all tax including offshore penalties that is due and owing.
Additionally, since the Streamlined program is only available to taxpayers who were not willful in their noncompliance, the taxpayer must certify that they were not willful. This certification is made under the penalty of perjury so it is essential that the taxpayer has been forthcoming regarding his or her behaviors and actions. Additional items also certified under penalty of perjury include:
- All delinquent and required FBARS are submitted
- The individual is eligible for Streamlined Domestic Offshore Procedures
- The calculation of the offshore penalty is accurate
This statement must be attached to all tax and information returns or the IRS will process the filings in the standard course and without the benefits of the Streamlined process.
Working with a Tax Attorney Is Often Essential for Domestic Streamlined Filings
Individuals residing in the United States who are considering making a Streamlined Disclosure, should first consult with an experienced tax attorney. At the Tax Law Offices of David W. Klasing our legal team can provide insight and guidance into the process and the likely result of your action. We can review your past actions and filings for potential willfulness concerns since Streamlined procedures do not provide insulation from referral for criminal prosecution. Furthermore, since you are certifying your Streamlined filing under the penalty of perjury, accuracy is essential. However, despite these concerns, the significantly reduced penalties and fines taxpayers can benefit from make Streamlined Domestic Disclosure an extremely favorable means to achieve offshore compliance.
To schedule a confidential reduced-rate consultation with an experienced tax lawyer, call the Tax Law Offices of David W. Klasing at 800-681-1295 today or contact us online. We can provide the guidance you need to fix offshore disclosure mistakes so you can stop living in fear of the consequences of a potential tax audit.