Why the FBAR Statute of Limitations Won’t Save You

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Why the FBAR Statute of Limitations Won’t Save You

What is the Statute of Limitations for the IRS to Assess Tax, and Are There Exceptions for Taxpayers Abroad?

The “Limits” of the FBAR Statute of Limitations: Page Contents at a Glance

A favorite trope in crime dramas is to save a protagonist from prosecution because the statute of limitations has expired. In these dramas, the moral dilemma over the justified crime is solved and everyone goes home happy.

But when you’re dealing with tax fraud, the statute of limitations almost never wraps up that cleanly. During an IRS audit, the definition of when the crime occurred may fluctuate a bit. This is especially true when it comes to FBAR statute of limitations and criminal proceedings.

Officially, the FBAR statute of limitations is six years. However, taxpayers facing an audit related to the FBAR statute of limitations for failure to file may find that the six-year time limit has a moving start date.

A few recent District Court rulings have given the IRS some leeway when it comes to determining exactly when the statute of limitations should begin in a FBAR case.

Table of Contents

Understanding FBAR

Foreign Bank Account Reporting – ”FBAR” can be a confusing concept for some American taxpayers, especially those who have used foreign accounts for years to shield some of their income from IRS scrutiny. This was a largely ignored / unenforced practice for many decades.

However, with the new methods the IRS has at its disposal to track income and assets that American taxpayers hold overseas, hiding these accounts simply is not a viable option any longer. The IRS and U.S. government have agreements in place with more than 100 foreign countries, ensuring they will report the foreign asset holdings of American taxpayers to the IRS.

With FBAR, any taxpayer must disclose foreign holdings that equal or surpass the equivalent of $10,000 U.S. during the calendar tax reporting year.

To follow the FBAR reporting rules, the taxpayer must file the proper forms by the FBAR filing deadline. This is where a tax attorney experienced with the FBAR regulations can help, ensuring you don’t miss any of these crucial deadlines or bringing you safely back into compliance if you have undisclosed offshore accounts or unreported foreign income.

Should you miss a filing deadline, even inadvertently, you could be subject to multiple fines and penalties. In egregious cases, you could face criminal tax and foreign information reporting prosecution at the hands of the Department of Justice. Claiming that you didn’t know about FBAR or did not understand FBAR does not exempt you from the need to file FBAR and willful ignorance can result in a criminal prosecution.

Even folks that don’t have any higher-level tax or legal education are likely to be aware of the concept of a statute of limitations. It is the basic idea that there is a limit placed on those trying to bring an action in court. Statutes of limitations govern the timing of both civil and criminal matters and can vary from one year to being non-existent, meaning that an action will never be time-barred. In the realm of tax law, the statute of limitations serves as a helpful constant for tax professionals to advise their taxpayers. But a new development regarding the statute of limitations for criminal tax enforcement and Foreign Bank Account Reporting laws have some tax experts and taxpayers concerned.

How Long is the FBAR Statute of Limitations?

The FBAR Statute of Limitations is six years, but that doesn’t mean that you can’t still get in trouble—even years later. In general, the government has six years to bring a criminal action against a taxpayer who is being accused of committing a tax crime. For example, if a taxpayer were to file a false tax return, the statute of limitations begins to run when the return is filed and will expire six years later. Thus, the government has six years to discover the illegal activity and bring an action against the taxpayer without running afoul of the time bar. Though according to a federal court in New York, this isn’t always the case. In U.S. v. Canale, the United States District Court for the Southern District of New York ruled that a conspiracy to defraud the United States charge was not time-barred because the original offense occurred more than six years before the charges were brought.

Complying With Foreign Inheritance Tax Reporting Laws

According to a press release by the Department of Justice, Peter Canale, along with his brother Michael and others conspired to defraud the United States when they attempted to conceal inherited monies that had been kept by a relative in an undeclared foreign bank account. The inheritance occurred in the year 2000 and in 2005; Canale and his brother caused others in Switzerland to set up secret bank accounts with the intent to hide the inherited funds from the United States. Finally, each year that Canale filed his tax returns, he declared that he did not have ownership or signature authority in any foreign bank accounts.

What is ironic is that foreign inheritances are not ordinarily even taxable in the U.S. as the U.S. cannot legally assert taxing jurisdiction (Nexus) over a nonresident alien (foreigner).  All that is required as long as the inheritance is not of U.S. real estate or U.S. situs assets, is a form 3520 reporting where the inheritance is greater than $100,000 dollars in a given tax year.  If Mr. Canale would have complied with the income tax reporting and information laws they never would have had a problem.

How Does a Finding of Conspiracy Affect FBAR Statute of Limitations?

When the IRS Criminal Investigations Division caught up to Canale, they investigated the matter and referred him to the Department of Justice for prosecution. When he he was facing a myriad of federal charges including the conspiracy charge, Canale’s defensive argument was simple: the statute of limitations on the conspiracy to defraud the United States should have began running when he caused the foreign bank accounts to be established. But the District Court ruled otherwise. In their ruling, the court stated that when dealing with conspiracy, the statute of limitations begins to run at the last overt act in furtherance of the conspiracy and that when Canale declared that he had no interest in a foreign bank account on his taxes each year, he was performing such an additional overt act.

Don’t Rely on Statute of Limitations for Protection

For taxpayers like Canale that have monies in undeclared foreign bank accounts, this news should not be taken lightly. Individuals who set up foreign accounts that are meant to hide money from the IRS can no longer rely on the six-year statute of limitations. Each year that a taxpayer declares that they don’t have ownership interests in a foreign bank account; he or she is extending the statute of limitations on the underlying crime.

Understanding the Offshore Voluntary Disclosure Program

In the end, the ruling in Canale provides the government with more muscle that will be used to bring down the hammer on taxpayers that continue to maintain undeclared bank accounts overseas. The Department of Justice has no qualms with seeking lengthy prison sentences or crippling fines and penalties where offshore income tax evasion is concerned but for taxpayers that want to avoid some of the harshest of the consequences associated with being caught with an undisclosed foreign bank account, the IRS has established the Offshore Voluntary Disclosure Program. Under its terms, a taxpayer can avoid prison or hefty monetary repercussions by coming clean and paying a reduced penalty, back taxes, and interest. But the OVDP is only available to those taxpayers who are currently not under investigation or audit for any tax matter.

Experienced Tax Professionals With FBAR Knowledge

The tax and accounting professionals at the Tax Law Offices of David W. Klasing have years of experience in assisting taxpayers with a myriad of tax matters including participation in the OVDP. As we mentioned before, once the IRS opens an inquiry into your affairs, there is little that can be done to avoid the threat of criminal prosecution. Ensure that you have the most experienced tax professionals on your side when you step into the ring with the IRS: contact the Tax Law Offices of David W. Klasing today for a reduced-rate consultation.