U.S. Tax Treatment of U.K. Pension Plans

Kunal Patel


U.S. Tax Treatment of U.K. Retirement & Pension Plans

Few things are more confusing for U.K. foreign nationals and U.S. expats residing in the U.K. than the U.S. tax code, especially as it applies to cross-border pensions. Here’s a short primer for the dazed and confused.

Types of U.K. Pensions

U.K. pensions can be grouped into 4 categories:

  1. Private pensions: These are pensions that are arranged by the individual with a financial institution. Upon retirement, 25% of the pension can be withdrawn tax-free in the U.K. The remainder can be used to purchase a lifetime annuity, or continued to be invested in the pension. A common private pension is a SIPP.
  2. Workplace pensions: A workplace pension us set up by an employer. Both the employee and employer pay into the pension. The employee’s contribution is tax-free. The 25% tax-free distribution upon retirement applies to workplace pensions also.
  3. Defined benefit plans: The pension amount is based on the employee’s final salary.
  4. State pensions: State pensions (aka Government Pension or Old Age Pension) are based on the number of years of National Insurance (NI) contributions made by the employee.

Step 1: Defined benefit vs. defined contribution foreign pensions

The U.S. tax treatment of foreign pensions can be downright confusing. The first step is classifying the foreign pension under the U.S. code – which sometimes feels like fitting a square peg in a round hole. To make matters confusing, even the same type of pension can have different tax treatment depending on how it’s structured. All pensions plans are either defined benefit or defined contribution:

  • A defined benefit plan provides a specified payment amount upon retirement.
  • A defined contribution plan allows employees and employers to contribute and invest the funds over time; the amount in the pension will depend on the investment growth.

Some practitioners take the position that a defined benefit retirement plan isn’t really an account, so it does not need to be reported on the FBAR or Form 8938. It might not be an account, but it is a specified foreign financial asset. Consistent with Form 8938 instructions, we either use the distribution amount as the fair market value of the defined benefit pension. If no distribution was made during the year, then the value is $0.

If you have a defined benefit plan, consider yourself lucky. You report the distributions as taxable income, fill out Form 8938, and you’re done. There are very rare exceptions for defined benefit plans which are considered not “broad-based”. Owners of defined contribution plans can read further.

Step 2: Employees’ trust vs. grantor trust

In the U.S., qualified pension plans such as a 401(k) have favorable tax treatment – taxes on investment growth is deferred until retirement. In order for a defined benefit pension or retirement account to qualify for this favorable tax treatment, there are detailed and stringent rules that must be met.

Very few foreign pensions qualify under for deferred tax-treatment under IRC 401. There are none in the U.K. that we’ve encountered.

A non-qualifying defined benefit pension plan is by default a trust. As a trust it can be an employees’ trust under IRC 402 or a grantor trust. Most U.K. private pensions will be considered grantor trusts. Defined benefit workplace pensions might be either.

A plan is self-funded if more than 50% of the assets in the plan are attributable to the employee’s contributions. And if so, the pension would be reported as a grantor trust. Generally, the owner of a foreign pension classified as a grantor trust would file Form 3520 and Form 3520-A, and report the capital gains on the growth of the investment. However, as we’ll see below, the U.S.-U.K. tax treaty provides some relief there.

Step 3: Broad-based & non-discriminatory

If the plan is not considered self-funded, then it is an employee’s trust and falls within the domain of IRC 402. Within IRC 402, there is a maze of further classification rules.

Is the plan broad-based and non-discriminatory? Under a broad-based plan (which meets both coverage and participation tests), the pension is not taxed until distribution. If a plan is non-broad-based then highly-compensated employees will be taxed on earnings within the pension. A highly-compensated employee is one that has either a 5% or greater owner of the company or has compensation of at least $120,000 annually (periodically inflation adjusted).

U.S.-U.K. Tax Treaty

To keep things simple, here’s a watered-down version of Articles 17 and 18 of the tax treaty for U.S. residents with U.K. pensions:

Generally, all U.K. pension distributions paid to a U.S. resident are taxable in the U.S. and only by the U.S., except:

  1. Any amounts that would’ve been excluded from tax in the U.K. had that person remained a U.K. resident, would also be excluded from U.S. tax. For example, if 25% of a distribution from a SIPP would be excluded in the U.K., that is also excluded in the U.S.
  2. Distributions from U.K. social security type pensions are taxable only in the U.K.

Further, Article 18 provides relief from tax on earnings to those with pensions classified as grantor-trusts or discriminatory employees’ trusts. Article 18 provides that a pension scheme established in the U.K. is taxed only when distributed (and not transferred to another pension scheme). The later part is interpreted that a U.K. pension rollover to a another U.K pension is not a taxable event in the U.S. But be careful not to rollover into a U.S. pension – which would be a taxable event! (See IRS Chief Counsel Memorandum).

In addition to treaty relief, foreign tax credits can be claimed on the U.S. return for any taxes paid on the same income in the U.K. The foreign earned income exclusion is not available for pension income.

In addition to reporting all taxable income and applicable international information returns, the taxpayer should also disclose all treaty positions on Form 8833, other than those that are not required under IRC 6114 or 7701(b).

Kunal Patel, partner at Mitchell & Patel LLC, comes from a diverse background that includes IRS, Big 4 public accounting, and legal experience. He focuses almost exclusively in offshore compliance matters and has successfully brought numerous taxpayers into compliance with with U.S. tax laws concerning offshore accounts and income.

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.

IRS Wins Default Judgment in $18M FBAR Penalty Case

Kunal Patel


IRS Wins Default Judgment in $18M FBAR Penalty Case

Recently, a California U.S. District Court entered default judgment in favor of the Government in an FBAR penalty suit in the case of United States v. Masud Sarshar, Case No.: 2:18-cv-7751.

Summary of the FBAR suit

From the Government’s motion:

Masud Sarshar is a United States citizen who, for tax years 2006 through 2012, maintained accounts subject to the reporting requirements of 31 U.S.C. § 5314, as implemented under 31 C.F.R. §§ 1010.350(a) and 1010.306(c). These provisions require that each United States person having a financial interest in, or signature or other authority over a financial account in a foreign country report that interest annually on a form called a Report of Foreign Bank and Financial Accounts, which is also referred to as an FBAR. As set forth in 31 U.S.C. § 5321(a)(5)(C)(i), for willful violations of the FBAR-reporting requirements, Congress authorized a maximum penalty of the greater of (1) $100,000 or (2) 50% of the balance in the account at the time of the violation.

For tax years 2006 through 2012, Sarshar willfully did not disclose all of his foreign accounts as required by law. In February 2017, Sarshar executed an agreement with the Internal Revenue Service in which he agreed that he was liable for a penalty of $18,242,537.65 under 31 U.S.C. § 5321(a)(5) for his failure to file FBARs for calendar years 2006 through 2012. In that agreement, Sarshar waived all defense to the assessment and collection of the FBAR penalty, including interest and penalties. As of November 30, 2018, the outstanding balance of the liability for the penalty imposed under 31 U.S.C. § 5321(a)(5) plus accrued interest and the late penalty provided for under 31 U.S.C. § 3717(e)(2) is $18,853,787.60.

More details about the FBAR assessment from the DOJ press release:

According to court documents, Masud Sarshar, a U.S. citizen, maintained several undeclared bank accounts at Bank Leumi and two other Israeli banks, both in his name and in the names of entities that he created…For decades, with the assistance of at least two relationship managers from Bank Leumi and a second Israeli bank (Israeli Bank A), Sarshar hid tens of millions of dollars in assets in these accounts in an effort to conceal income and obstruct the Internal Revenue Service (IRS). Between 2006 and 2009, Sarshar diverted more than $21 million in untaxed gross business income to those undeclared accounts and earned more than $2.5 million in interest income from the funds. Sarshar reported none of this income on his 2006 through 2012 individual and corporate tax returns. He also filed false Reports of Foreign Bank and Financial Accounts, commonly known as FBARs, with the U.S. Department of Treasury on which he omitted his ownership and control of these offshore accounts.

What is an FBAR penalty suit?

Typically in a tax collections case, the government has several administrative options for collecting unpaid debt – such as filing tax liens and levying of assets, including garnishment of wages and other income.

However, the FBAR statute is contained in Title 31 of the U.S.C, which means the typical collections options in a tax case are unavailable in an FBAR penalty collection. As any other creditor, the Government must file suit in District Court to reduce the previously assessed FBAR penalty to judgment. However, prior to referring it for collections, the IRS will provide an opportunity to discuss alternative payment arrangements.

Maximum FBAR penalty amount

For willful FBAR violations,  the IRS is allowed to assess a maximum penalty of the greater of:

  • $100,000, or
  • 50 percent of the undisclosed account(s)

31 U.S. Code § 5321(a)(5)(C)

FBAR penalty statute of limitations on assessment

The assessment statute (ASED) is the time period within which the IRS may assess an FBAR penalty. Under Title 31, the ASED is 6 years from the due date of the FBAR report.

FBAR penalty statute of limitations on collection

After an FBAR penalty has been assessed, the Government has a two-year  limitation period for filing an FBAR penalty collection suit.

Challenging FBAR penalties — pre-assessment vs. post assessment Appeals

An FBAR penalty, once assessed, the penalty becomes a claim of the U.S. government. There are administrative options to challenge the penalty assessment prior to that to. After the FBAR examination process, a taxpayer can protest any penalty assessment with the IRS Office of Appeals. Married couples under FBAR examination are treated as individual cases.

An FBAR penalty can be challenged either prior to (pre-assessment) or after (post-assessment) the issuance of Letter 3709 (FBAR 30-day Letter) with the Office of Appeals. Once assessed, the penalty becomes a claim of the U.S. government. Therefore, post-assessed FBAR cases in excess of $100,000 cannot be compromised by Appeals without approval of the Department of Justice (DOJ). If DOJ does not agree with the Appeals settlement proposal, then Appeals will reject the offer and the case will be closed.

Fast Track Settlement and Alternative Dispute Resolution are also not available post-assessment.

Whether the penalty is pre- or post-assessed when it comes to Appeals, it is considered the same penalty and only one appeal is available.

Taxpayers seeking to challenge an FBAR penalty after appeals may either (1) pay a portion of or the entire penalty and file a refund suit, or (2) wait until the government files suit in district court to collect the penalty and challenge the assessment. A third option, less often used, is an Administrative Procedure Act (APA) challenge.

What should non-compliant taxpayers do?

Taxpayers should attempt to correct past non-compliance to avoid FBAR and other international information penalties. If taxpayers are non-compliant with the foreign asset and income reporting requirements, they should consider applying to one of IRS’ voluntary disclosure programs:

Why hire Mitchell & Patel?

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.

How to Read Tax Treaties

Kunal Patel


How to Read Tax Treaties – Example IRA distribution for U.S. expat in the U.K.

The United States has tax treaties with a number of foreign countries (link). Under these treaties, residents of foreign countries are taxed at a reduced rate, or are exempt from U.S. taxes on certain items of income they receive from sources within the United States. While they can seem extremely convoluted initially, they’re easier to decipher once you understand how they work.


Bob is a U.S. citizen residing in the U.K. and has a traditional IRA in the U.S.  He receives a distribution from the IRA while residing in the U.K. Is he subject to tax on it in the U.K. or the U.S., or both?

Step 1: Determine residency

After locating the applicable treaty (link), Bob would read Article 4 to see if he qualifies as a “resident” of either the U.S. or the U.K. (or both) under the U.S.-U.K. treaty.

Generally, an individual is a U.S. resident under U.S. domestic law and for treaty purposes if he is a 1.) U.S. citizen, 2.) U.S. green card holder, or 3.) meets the substantial presence test. Exceptions may apply (e.g., certain visa exceptions to SPT, first year elections).
To determine if Bob is also a resident of the U.K. it would be necessary to look to the domestic laws of the U.K. If Bob is a resident of both the U.S. and the U.K., treaty tie-breaker rules will apply to resolve competing claims to residency.
For purposes of this example, we’ll assume Bob is determined to be a resident of the U.K after applying treaty-tie breaker rules.

Step 2: Classify the income

After determining that he has a U.S. private pension, Bob would locate the applicable provision in the tax treaty – in this case Article 17 “Pensions, Social Security, Annuities, Alimony, and Child Support.”

Pensions and other similar remuneration beneficially owned by a resident of a Contracting State shall be taxable only in that State.
Bob is a resident of the U.K.; therefore, “Contracting State” and “State” refer to the U.K. If this is not a lump-sum payment or annuity, Bob need not read any further of Article 17. The provision above allows the U.K. to tax the IRA distribution.

Step 3: Determine if the saving clause applies

It would be a mistake for Bob (and a very common one) to stop at Step 2 and claim a tax treaty position on the U.S. return to exclude the IRA distribution.

All tax treaties that the U.S. is a party to contain a provision that is referred to as a “savings clause.” This provision reserves the right of each contracting state to tax its residents and citizens, even if they are residents of the other contracting state.

Article 1 Paragraph 4 states that:

Notwithstanding any provision of this Convention except paragraph 5 of this Article, a Contracting State may tax its residents (as determined under Article 4 (Residence)), and by reason of citizenship may tax its citizens, as if this Convention had not come into effect.

In other words, despite what Article 17 says, the U.S. still has the right to tax its residents (as defined under U.S. law) on worldwide income.

Then what exactly is the point of even having Article 17? The tax treaty assigns primary taxing jurisdiction to one or the other country (sometimes both). In this case, the primary taxing jurisdiction with respect to the pension distribution is the U.K. The U.S. may also tax the income, but must provide foreign tax credits to offset taxes paid to the U.K.

Step 4: Determine if there is an exception to the savings clause

Because life’s not fun without an exception to an exception – Article 1 Paragraph 5 contains a number of exceptions to the savings clause. The one relating to Article 17 is:

The provisions of paragraph 4 of this Article shall not affect….sub-paragraph b) of paragraph 1 and paragraphs 3 and 5 of Article 17 (Pensions, Social Security, Annuities, Alimony, and Child Support).

Sub-paragraph b of Article 17, paragraph 1 would apply if the U.S. pension was non-taxable to a U.S. resident (or vice versa for the U.K). Paragraph 3 of Article 17 would apply to social security type distributions. And Paragraph 5 of Article 17 would apply to pension distributions made under alimony and child support agreements. None of these apply to this situation.

Step 5: Claim either a treaty-based return position or foreign tax credits

Applying Article 17 and the savings clause, Bob should report his pension distribution on his U.K. tax return. Then he should report the distribution on his U.S. return and claim a foreign tax credit for the U.K. taxes paid on the distribution. Note: the foreign credit would would classified as “certain income resourced by treaty” instead of as passive category income.

If the situation were different and Bob was able to exclude the income on his U.S. return, he would make a treaty-based return position disclosure on Form 8833.

Tax treaties are complicated and they should be read thoroughly when applying for tax treaty benefits. For example, any one of these two situations could have drastically changed the above result: a Roth instead of traditional IRA or a lump-sum distribution.

Opinion Letters

We’ve advised a number of taxpayers and CPAs with tax treaty issues. An opinion letter from a tax attorney can be useful when taking an uncertain treaty position to help protect against penalties. While the treaty itself is clear enough, its application of the facts can fall into a gray area..

Schedule an appointment to see how we can help.

MMA Fighter in Court Battle re: FBAR Penalty Suit

Kunal Patel


FBAR Penalty Suit: U.S. v. Gracie et al

A mixed martial artist and his spouse challenge over $210,000 in penalties for failing to report foreign bank accounts in  U.S. v. Royce Gracie and Marianen Cuttic (2:17-cv-3308).

On the heels of last year’s Colliot and Wahdan decisions, Gracie and Cuttic filed for motion for partial summary judgment on 12/11/2018, arguing that a 1986 regulation (31 CFR § 1010.820(g)) caps civil penalties for willful FBAR violations to $100,000. The Government recently filed its response.

Obligation of U.S. persons to report foreign financial accounts

A person who has foreign financial accounts has the following information and tax reporting duties:

  1. Form 1040, Schedule B – if required to file a Schedule B, taxpayer has a duty to disclose the existence and location of all foreign financial accounts
  2. Form 1040, Form 8938 – if the accounts exceed the thresholds prescribed under the regulations to I.R.C. 6038D, taxpayer is required to report specified foreign financial assets on Form 8938
  3. Form 1040 – taxpayers who are U.S. tax residents are required to report all income, including from foreign sources
  4. FinCEN 114 “FBAR” – if foreign financial accounts exceed $10,000 in the aggregate, a U.S. person is required to report them annually to the Department of Treasury on the FBAR

Applicable statute and regulation

31 U.S.C. § 5321(a)(5) (after 2004)

(C)Willful violations.—In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314—

(i) the maximum penalty under subparagraph (B)(i) shall be increased to the greater of—

(I) $100,000, or

(II) 50 percent of the amount determined under subparagraph (D)

31 CFR § 1010.820

(2) In the case of a violation of § 1010.350…involving a failure to report the existence of an account or any identifying information required to be provided with respect to such account, a civil penalty not to exceed the greater of the amount (not to exceed $100,000) equal to the balance in the account at the time of the violation, or $25,000.

Alleged FBAR violations in U.S. v. Gracie et al

In May 2017, the Government filed suit against Gracie and Cuttic to reduce FBAR penalty assessments to judgment in the U.S. District Court for the Central District of California, alleging the following:

  1. During the years 2007 through 2012 defendants (United States citizens) had financial interests, signature authority, and /or otherwise controlled at least three foreign bank accounts
  2. During the years 2007 through 2009, defendants had a foreign bank account, including an investment account, at HSBC bank, located in Switzerland, and a foreign bank account at Caixa Penedes bank, located in Spain. The high balance in the Swiss account for each of the years 2007 through 2009 was over $1 million.
  3. In August 2009, the defendants closed the Swiss account, and opened a bank account at First Gulf bank, located in the United Arab Emirates.
  4. On August 11, 2009, defendants transferred approximately $1.4 million from the Swiss account to the UAE account.
  5. Defendants held funds in the Spanish account and the UAE account during the years 2009 through 2012. The high balance in the UAE account was over $1 million in 2009 and 2010, and the high balance in the UAE account was over $500,000 in 2011 and 2012.
  6. Defendants were required by law to file FBARs reporting their financial interest in their foreign accounts for the years 2007 through 2012, as well as any other year that satisfied the FBAR reporting requirements
  7. Defendants did not file FBARs disclosing their foreign accounts for the years 2007 through 2012.

Alleged facts supporting penalty assessment for willful FBAR violations:

  1. Defendants filed joint individual federal income tax returns (Forms 1040) for the years 2007 through 2012. The tax returns were prepared by the same tax return preparer, D.P., located in Hermosa Beach, California.
  2. On Schedule B to their 2007, 2011,  2012 Form 1040, defendants falsely stated that then did not a have an interest in any foreign bank account in 2007.
  3. On Schedule B to their 2009 and 2010 Forms 1040, defendants falsely stated that they only had an interest in a Spanish bank account in 2009, the year they caused $1.4 million to be transferred from the Swiss account to the UAE account
  4. Defendants did not disclose their Swiss account or their UAE account to their tax return preparer for any of the years 2007 through 2012
  5. During the years 2007 through 2011, defendants transferred by wire transfer approximately $2 million from their foreign bank accounts to pay personal expenses in the United States, including to pay for residential real estate purchases and credit card expenses.
  6. In 2010, defendants wired approximately $500,000 from the UAE account to an account in the United States to fund the purchase of residential real estate in Mammoth Lakes, California.
  7. In 2011, defendants wired approximately $20,000 from the UAE account to American Express credit card company in the United States.
  8. In May 2012, while under audit by the Internal Revenue Service, defendant Royce Gracie, falsely stated within the judicial district, under penalty of perjury, that during the years 2001 through 2012 he had no interest in any foreign bank account.
  9. In May 2012, while under audit by the Internal Revenue Service, defendant Marianne Cuttic, falsely stated within the judicial district, under penalty of perjury, that during the years 2001 through 2012 she only had an interest in one foreign bank account, located in Spain.

On about May 8, 2015, the IRS assessed willful FBAR penalties against defendants Royce Gracie and Marianne Cuttic each in the total amount of $210,081.75 for the year 2008. Penalties were assessed with respect to their interests in foreign bank accounts at Caixa Penedes (Spain) and HSBC (Switzerland).

Defendants’ motion for partial summary judgment

On 12/18/18, Defedants filed a motion for partial summary judgment. A summary of the summary judgment:

Prior to October 2004, 31 U.S.C. § 5321(a)(5) allowed the Treasury Secretary to impose civil penalties for failing to file an FBAR in the amount of $25,000 or the balance of the unreported account up to $100,000. The corresponding Treasury regulation (31 C.F.R. § 103.57), which was issued via notice and comment, was in accordance with the statute.

In 2004, Congress amended § 5321 to increase the maximum penalty for a willful FBAR violation.  The maximum penalty that can be imposed for a willful violation is the greater of $100,000 or 50% of the amount in the account on the date of the violation.

Congress changed the statute, but the Treasury affirmatively kept the regulations in place, capping a willful FBAR violation at $100,000. FinCen subsequently renumbered the regulations, and § 103.57 became § 1010.820.

So, as we have it, the regulation was never updated to increase the cap on FBAR penalties, even though the 2004 statute was updated.

Government’s response

On 1/31/2019 the Government filed a response to Defendants’  motion for partial summary judgment. A summary on the response to Defendants’ motion for partial summary judgment:

  1. The government argues that the 1986 regulation and its purported $100,000 penalty cap have been superseded by statute.
  2. Alternatively, 31 C.F.R. § 1010.820(g) continues to establish a maximum FBAR penalty amount of $100,000, it does so on an individual penalty and per-account basis; it does not provide an aggregate cap for penalties based on a defendant’s failure to report multiple foreign accounts.
  3. That Colliot and Wahdan did not support an aggregate limit on FBAR penalty assessments because both cases dealt only with FBAR penalties that individually exceeded $100,000.


We hope that the court seriously considers defendants’ affirmative argument that FBAR fines are a violation of the 8th Amendment’s prohibition of excessive fines, and its broader impact on offshore compliance cases.

The Government’s interest in FBARs is two fold: 1.) prevention of tax evasion and 2.) information.

  1. Tax evasion. In the vast majority of cases, the FBAR penalty is grossly disproportionate to the Title 26 violation(s). FBAR penalties are not correlated at all to the amount of unpaid tax; they’re assessed on the amount of monies in the foreign account, the source of which is oftentimes previously taxed income, or non-taxable income. Moreover, there are a multitude of Title 26 penalties that are available and applied along with FBAR penalties – failure-to-pay, accuracy penalties, civil fraud penalties, and information related penalties (6038D, etc). In short, there are sufficient penalties available under Title 26 without the need for stacking on FBAR penalties for tax evasion.
  2. Information. According to the BSA, the FBAR is used to “fight fraud, money laundering, terrorist financing, tax evasion and other financial crime.” In probably 99% of cases where taxpayers have failed to file an FBAR, they are not involved in any of these nefarious activities, and the Government has not been deprived of any important information. Yet, these taxpayers are subject to enormous FBAR penalties for failing to file an information form.

There’s probably a lot more going on in this case than what meets the eye. But the judicial interpretation of willfulness reverberates down to “small fish” cases, often leading to absurd results. A hypothetical – which is not so much a hypothetical since practitioners who handle offshore compliance cases will routinely come across a variation of this fact pattern:

Bob immigrated to the U.S. four years ago, leaving behind foreign financial accounts in his home country. He hired a CPA to prepare his tax returns. Bob failed to file his FBARs and report foreign interest income. The amount of unreported interest income is about $4,000/yr, resulting in $1,000/yr in additional tax. His foreign accounts total $500,000. While Bob was completely unaware of his FBAR filing requirements, he did check ‘no’ on his Schedule B on the foreign account question. He also filled out his CPA’s organizer on which he indicated that he did not have interest income. Maybe he carelessly checked off boxes on the organizer, not realizing the importance of the question and the repercussions.

With how ‘willfulness’ has been interpreted judicially, Bob could be charged with constructive knowledge of the FBAR filing requirement, leaving him open to willful failure to file FBAR penalties. But before he gets to that point, Bob goes to a tax attorney to come into compliance. This puts the practitioner in a very difficult position. Bob could probably apply under the streamlined procedures and certify that he was ‘non-willful” without any issues. Under the streamlined procedures, he would be paying $4,000 in taxes ($1,000 per year) plus a $25,000 misc. offshore penalty – which is still an absurd result. But there’s a real chance that he could end up in an audit where after IRS requests Bob’s organizers from his CPA, could argue he was willfully blind – an even more absurd result. And who knows how a court would find, since these types of “small fish” cases haven’t been litigated much, or at all. And no one wants to be the guinea pig. So what is Bob to do?

If Bob was willful, the maximum authorized FBAR penalties for willful penalties could lead to enormous penalties, forcing the practioner to apply Bob under the traditional voluntary program, leading to “lesser” penalties that are still several hundred or thousands of times the amount of unpaid tax. Sure, we could argue that in practice, the IRS can be fair and will mitigate the penalty, or they won’t go after the “small fish”. But who gets to decide, and what exactly keeps the IRS from assessing the maximum FBAR penalties? The concept of willfulness is edging on strict liability (e.g., Schedule B, constructive knowledge by virtue of signing a tax return) in the FBAR context, which is a very dangerous trend.

In short, the evolving interpretation of ‘willfulness’ continues to stack the cards against the taxpayer, forcing them into “one size fits all” voluntary compliance options.

What should non-compliant taxpayers do?

If taxpayers are non-compliant with the foreign asset and income reporting requirements, they should consider applying to one of IRS’ voluntary disclosure programs:

Why hire Mitchell & Patel?

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.

Hiring an Attorney for your Voluntary Disclosure Case

Kunal Patel


1. Find an attorney that primarily or exclusively works on offshore compliance matters.

Offshore compliance is complicated, and requires an attorney to have a deep understanding of the laws relating to offshore compliance, and to keep up with the changes. The last thing you want for your voluntary disclosure matter is an attorney who also works on 5 other practice areas. At Mitchell & Patel, each attorney focuses on one practice area. Some have experience in two areas. Mr. Patel is the only one at the firm that handles international tax matters. Your offshore compliance matter will not be assigned to another attorney.

Make sure that your attorney uses Certified Public Accountants (CPAs). Many of our clients don’t want to pay a “voluntary disclosure lawyer” several hundred dollars an hour to prepare a tax return, and we agree. While we do have accountants on staff, they do not assist with offshore compliance cases. As most law firms, we use an independent Certified Public Accountant for tax preparation in offshore compliance cases.  We work with you and the CPA during the disclosure process. We understand that clients want to retain attorney-client privilege, and when necessary we retain the CPA through a Kovel letter to preserve that privilege. Clients should also understand that the attorney-client privilege does not extend to communications between a taxpayer and an attorney relating to the preparation of a tax return. (article)

Moreover, if same attorney/firm that handles your disclosure is preparing your tax returns, there’s a privilege conflict. For instance, if your tax preparer is subpoenaed, and your “voluntary disclosure specialist” also happens to be the tax preparer, will your attorney put on his attorney hat, or his enrolled agent/CPA/tax preparer hat? What’s privileged and what isn’t? Good luck with that.

2. We have the experience.

We’ve noticed attorneys falsely claiming that certain experience and other requirements are necessary to become a “voluntary disclosure lawyer” which puts them in the top percentage of all attorneys nationwide. And unsurprisingly, only that attorney happens to meet these very specific requirements that they came up with. We hope that clients are more sophisticated than that, but we routinely have unhappy former (and current) clients from such companies contact us to take over their case.

We’ve helped many dozens of clients come into compliance with undisclosed foreign accounts. All of our streamlined filings have been accepted as filed. But the greatest testament to our success is the number of referrals we get from CPAs and past clients.

3. Watch out for free consultations and fear mongering

Call a few attorneys if you must. Do your research and be prepared with good questions to gauge whether the attorney has handled cases like yours before. Most will charge you for a consultation; but you get what you pay for with a free consultation. Oftentimes, we get clients after they’ve called one of the firms offering “free consultations,” only to be subjected to scare tactics and high-pressure sales. That’s not how we run our practice. When you contact us for a consultation, you receive an objective evaluation of your risks and the various ways to come into compliance. If you then happen to go with us, great. Our only goal is to help you better understand what your risks are and how to come into compliance. Choose an attorney you feel comfortable with, not just the first ad you happened to land on in Google.

Schedule an appointment to see how we can help.

Offshore Tax Compliance — How Fast are you Speeding?

Kunal Patel


Offshore Tax Compliance — How Fast are you Speeding?

In my offshore tax compliance practice, I’ve talked to hundreds of individuals from around the world – from people who’ve unintentionally violated U.S. foreign financial and tax reporting laws to those who’ve knowingly or recklessly violated them.

Two questions are invariably asked – “what are my risks, and what penalties am I facing?”

The penalty question is easier to answer. There’s a laundry list of penalties applicable to the failure to report foreign accounts and/or foreign income. The maximum penalties authorized for such violations is clear.

The difficult question is that of ‘risk.’ It involves two components: 1.) “getting caught” and 2.) the application of penalties. I’ve found that many people have a difficult time understanding risk, and think of it in black and white instead of as a continuum. This is especially the case when clients don’t understand the law. The laws involving the reporting of foreign assets and income are complicated.

To help clients understand risk in the context of offshore account compliance, I often use speeding as an example. The faster you’re speeding, the greater your risk.

Willfulness, non-willfulness, and reasonable cause

Bob, the willful speeder

Bob lives life in the fast lane, literally. He often drives 25-30 miles over the speed limit. Chances are good that he will eventually get a speeding ticket. It’s certainly much higher than someone who goes 5 or 10 miles over the speed limit.

Officer Biff spots Bob barreling down the highway in his shiny new red sports car going 100 mph on a 60 mph speed limit. When he pulls Bob over, he discovers that Bob has a radar detector.

Bob tries to explain to the officer that he didn’t mean to go fast and that he didn’t know the speed limit. However, a reasonable person would know that going that fast would likely be unlawful. Officer Biff certainly doesn’t buy it and arrests him for reckless driving. Bob hires an attorney and they litigate the charges to no avail. The government argues that Bob knowingly sped based on his possession of a radar detector. In the alternative, he was acting recklessly or was willfully blind as to the speed limit. Bob’s license is suspended, receives a huge fine, and spends 30 days in jail.

Similarly, in the world of foreign accounts compliance, the chances of “being caught” depend much on the degree of non-compliance. The higher your undisclosed account balances and unreported foreign income, the higher the odds are of an FBAR audit or other type of audit. A FBAR audit can then result in the discovery of other violations, including unreported foreign income and other missing international information forms, such as Form 8938, 5471, etc. Each one of these violations carries separate penalties, the most significant of them being the willful failure to file an FBAR. A person can be considered willful when they’ve knowingly violated the law or acted recklessly or willfully blind.

Sarah, the non-willful speeder

If you’re like me, you’re sometimes distracted while driving. You look down at your speedometer to notice that you’ve exceeded the speed limit by 5 miles. Or maybe you thought the speed limit was 60, but it turns out it was actually 50 and you simply missed the sign. In either case, you did not speed knowingly; nor were you acting recklessly or willfully blind like Bob.

Sarah is cruising along the road at 45 mph, completely oblivious that the speed limit on the road dropped from 45 to 35. Officer Biff pulls her over. Sarah then remembers she forgot to renew her inspection last week which is now expired.

Things could go a number of ways. Officer Biff might not notice the expired inspection. Or he notices it but is having a pleasant day and Sarah is charming enough, so he writes her a warning for both violations. Or maybe Biff is a stickler for the law and writes her a ticket for both violations, and even one for veering slightly outside the lane.

Sarah is awarded two tickets from Officer Biff but doesn’t want to pay them, so she hires an attorney. Her attorney meets with the prosecutor. The prosecutor settles to let her off on the expired inspection ticket because she immediately corrected it, and reduces the speeding ticket since this was her first violation in 5 years. Or it could turn out that they can’t come to an acceptable agreement and decide to litigate.

Most people who’ve failed to report foreign financial assets are non-willful. Those that non-willfully fail to report foreign accounts or income from them and are caught will likely pay a penalty. Again, the risk of “getting caught” in the first place would seem to depend on the degree of the violation.

Just like in Sarah’s situation where penalties can vary based on the police officer, an FBAR or opt-out audit would be very much the same. IRS examiners are humans, and like all of us, they have different temperaments. Some might be sticklers and will look for every possible violation. Others might be more reasonable.

After penalties are assessed in examination, a taxpayer can protest the assessment with the IRS Office of Appeals. Typically, appeals officers are reasonable and trained to factor in the “hazards of litigation.” In the vast majority of cases, an acceptable settlement is made. Otherwise, it would be necessary to litigate it in either tax court or district court, depending on the type of penalty.

David, the reasonable cause speeder

David is driving with his son and notices that his son is having a severe allergic reaction. He locates the nearest hospital and hits the pedal. Before he can reach the hospital, Officer Biff stops him for speeding. After learning of David’s situation, the officer obviously does not write him a ticket. David had a very good reason for speeding.

Or it could be a very rare situation where one gets ticket for driving just a few miles over the speed limit. It’s technically breaking the law, but one would think an officer has more important priorities. Let’s say it does happen. David lives in Texas where the speed limit is 75. He’s driving to Louisiana for the first time where the speed limit is 70. He gets pulled over just as he passes through the state border for driving at 72 mph. Officer Biff doesn’t like out-of-staters and gives him a ticket, even if it’s just 2 miles over. Biff hires an attorney to dispute the ticket. Since David was barely over the speed limit and due to his other circumstances, the prosecutor decides to dismiss it.

A smaller number of people who’ve failed to report foreign financial assets will have reasonable cause for not filing.

FATCA, red light cameras, and speed traps

Till now, we’ve assumed the only way of identifying law-breakers was through officers patrolling the highway. More recent technological advancements allow authorities to identify traffic violations through automated enforcement such as red light cameras and speed traps.

The Foreign Account Tax Compliance Act (FATCA), is a U.S. federal law that requires foreign financial institutions to search their customer databases to identify individuals suspected of being U.S. persons. For those individuals, the foreign financial institution (FFI) is required to disclose the account holders’ names, identification numbers, addresses, and transactions to the U.S. Dept of Treasury.

FATCA is essentially a huge red light camera. A red light camera, however, only collects information about drivers who’ve ran the red light. Imagine if the cameras collected information about every vehicle that passed through and some license plate numbers are missing or blurry – it would be quite difficult to find the violators. This is exactly the enforcement problem with FATCA, which requires FFIs to report information about all U.S. persons with foreign financial accounts – possibly hundreds of millions of accounts. There’s too much information, and the IRS doesn’t seem to have figured out a good way to identify the non-compliant taxpayers.

So you’re non-compliant — now what?

For the past several years, the IRS has offered taxpayers an opportunity to voluntarily come forward in a number of ways, in most cases with payment of taxes and reduced penalties. It’s not exactly because the government is being nice. It’s a business decision. The IRS, like all government agencies, has limited resources. It cannot possibly go after all FBAR and other offshore non-compliance. But the government has the cards stacked up against such taxpayers because of the maximum potential penalties. They’ve bet correctly that people will voluntarily come forward, as hundreds of thousands of taxpayers already have.

It is important that taxpayers who are non-compliant come forward before the IRS eventually reaches out to them. Taxpayers can voluntarily disclose their foreign assets and report income through one of three ways:

Why hire Mitchell & Patel?

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.

Reporting Foreign Trusts

Kunal Patel


Reporting Beneficial Interest in a Foreign Trust & Form 3520

According to the IRS, foreign trusts are a major compliance issue:

Citizens and residents of the United States are taxed on their worldwide income. To help prevent the use of foreign trusts and other offshore entities for tax avoidance or deferral, Congress has enacted several specific provisions in the Internal Revenue Code. Some provisions trigger recognition of gains that would otherwise be deferred. Others deny deferral of tax on income moved offshore.

A specialized industry has developed in attempting to circumvent these provisions. The promoters of offshore schemes often advance technical arguments which purport to show that their scheme is legal. These arguments are used to provide some comfort to their clients, who are then induced to enter into a scheme which usually involves concealing the true ownership and control of assets and income.

The foreign trusts rules in I.R.C. 671-679 are some of the most complex set of rules in the tax code. Foreign trust tax compliance typically poses three challenges: 1.) properly defining the type of entity, 2.) financial and information reporting of a U.S. person’s beneficial interest in a foreign trust 3.) and a U.S. person’s reporting of trust income and distributions. This article will discuss the first two.

Defining the entity — what is a “foreign trust”?

The Regulations define a trust as an arrangement created by either a will or inter vivos declaration whereby trustees take title to property for the purpose of protecting or conserving it for the beneficiaries.

An arrangement will be treated as a trust if it can be shown that its purpose is to vest in trustees responsibility for the protection and conservation of property for beneficiaries who cannot share in the discharge of this responsibility and, therefore, are not associates in a joint enterprise for the conduct of business for profit.

An entity created to operate a business rather than to protect or conserve assets is not recognized as a trust for U.S. tax purposes. Instead, entities conducting business activities are more properly classified as business entities.

Where a trust exists solely for tax avoidance purposes, it is an “abusive trust arrangement” or “sham” whereby the IRS may ignore the purported form for U.S. tax purposes.

Is it a foreign trust or a U.S. trust?

A trust is considered to be a foreign trust unless it meets both of the following tests: the Court Test, and the Control Test

A trust meets the Court Test if a court within the United States can exercise primary supervision over the administration of the trust.

The Court Test has a “safe harbor” rule that is satisfied if:

  • The trust instrument does not direct that the trust be administered outside of the U.S.;
  • The trust is administered exclusively in the U.S.; and
  • The trust is not subject to an automatic migration provision.

A trust meets the Control Test if one or more United States persons have the authority to control all substantial decisions of the trust with no other person having the power to veto any of the substantial decisions.

Is it a grantor trust or non-grantor trust?

Determining whether a trust is a grantor or non-grantor trust is important because it affects who is taxed on the income of the trust and when they are taxed. The consequence of grantor trust status is that the trust is generally not recognized as a separate taxable entity. Instead, the grantor continues to be treated as the owner of the property transferred to the trust and all items of trust income, gain, deduction, loss, and credit are reported directly by and taxable to the grantor.

A non-grantor trust, on the other hand, is recognized as a separate taxable entity. That is, in general, a non-grantor trust will be liable for tax on any income (including capital gains) that it retains, while to the extent the non-grantor trust distributes income to its beneficiaries, the beneficiaries will be liable instead.

I.R.C. §§ 673-679 contain various rules for determining whether an entity is a grantor trust.

I.R.C. § 679 takes precedence over the rules. IRC §679 was designed to prevent U.S. taxpayers from achieving tax-free deferral by transferring property to foreign trusts. A foreign trust that has U.S. beneficiaries will be treated as a foreign grantor trust under IRC §679 to the extent a U.S. person has gratuitously transferred property to it.

Under § 673-677, a U.S. person who is the grantor of a foreign trust will be treated as the owner of all or a portion of the trust if the grantor retains certain interests in or powers over the trust. In general, these interests and powers include:

  • a reversionary interest worth more than 5 percent of the total value of the portion to which the reversion relates,
  • certain powers of disposition over the trust property that are generally exercisable in favor of persons other than the grantor,
  • certain administrative powers that allow the grantor to deal with the trust property for his or her own benefit,
  • a power to revoke the trust, and
  • a right to the present possession, future possession, or present use of the income of the trust.

Finally, § 678 applies if a person, other than the grantor, has a power to appoint trust income or corpus to himself or herself. That person is deemed to be the owner of all or a portion of the trust, provided the grantor is not otherwise treated as the owner of all or that portion of the trust.

International information reporting

Form 3520, Annual Return to Report Transactions with Foreign Trusts. Form 3520 is due on the date your income tax return is due, including extensions. It is filed separately from your income tax return. The penalty for failure to file a Form 3520 is equal to the greater of $10,000 or 25% of the gross value of any property transferred to a foreign trust for failure by a U.S. transferor to report the creation of or transfer to a foreign trust.

A Form 3520 is required in circumstances such as where a U.S. person:

  • Creates or transfers money or property to a foreign trust
  • Receives (directly or indirectly) any distributions from a foreign trust
  • Is treated as the U.S. owner of a foreign trust

Form 3520-A, Annual Information Return of Foreign Trust with a U.S. Owner. In addition to filing Form 3520, each U.S. person treated as an owner of any portion of a foreign trust under the grantor trust rules is responsible for ensuring that the foreign trust files Form 3520-A and furnishes the required annual statements to its U.S. owners and U.S. beneficiaries.

Form FinCEN 114, Report of Foreign Bank and Financial Accounts (“FBAR”). The FBAR is required to be filed annually by “each United States person having a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country.”

A person who is required to file an FBAR and fails to properly file may be subject to a civil penalty not to exceed $10,000 per violation. A person who willfully fails to report an account or account identifying information may be subject to a civil monetary penalty equal to the greater of $100,000 or 50 percent of the balance in the account at the time of the violation.

If you are required to file an FBAR, you must file it with the Department of Treasury by April 15th of each tax year. It is automatically extended to October 15 if you file an extension for your individual income tax return.

Beneficiaries: FBAR filings on FinCEN Form 114 are generally required to be made by U.S. persons who have reportable financial interests in or signature authority over a foreign financial account (“FFA”). A U.S. person who has more than a 50% present beneficial interest in a trust’s income or assets may be deemed to have an FFA interest and may be required to make an FBAR filing. A beneficiary of a foreign non-grantor trust is exempt from FBAR reporting if a trustee who is a U.S. person makes an FBAR filing disclosing the trust’s FFAs and provides information as required.

Trustees: A U.S. trustee of a foreign trust generally has signature authority over and/or a financial interest in the trust’s foreign accounts and thus, must file the FBAR form.

Form 1040, Schedule B. Part III, Foreign Accounts and Trusts must be completed if you receive a distribution from, or were grantor of, or a transferor to a foreign trust. Further, if as a trustee or beneficiary you have more than 50% beneficial interest or signature authority over trust (or personal) accounts exceeding $10,000 in the aggregate, you must indicate as such under Part III.

Form 8938, FATCA. The “FATCA” (Foreign Account Tax Compliance Act) provisions require specified individuals to report ownership of specified foreign financial assets if the total value exceeds the applicable reporting threshold. Form 8938 is due on the date your income tax return is due, including extensions. It is filed with your income tax return. Failure to report foreign financial assets on Form 8938 may result in a penalty of $10,000, and a penalty up to $50,000 for continued failure after IRS notification.

An interest in a foreign trust or a foreign estate is not a specified foreign financial asset unless you know or have reason to know based on readily accessible information of the interest. If you receive a distribution from the foreign trust or foreign estate, you are considered to know of the interest.

For a beneficiary of a foreign trust, the maximum value of your interest in the trust is the sum of 1.) the value of all of the cash or other property distributed during the tax year from the trust to you as a beneficiary, and 2.) the value using the valuation tables under section 7520 of your right as a beneficiary to receive mandatory distributions as of the last day of the tax year.

Furthermore, to alleviate the burden of duplicative tax reporting, an specified financial asset is not required to be reported on Form 8938, if that it is reported on another international information return, such as Form 3520, Form 5471, Form 8621, or Form 8865.

Reporting of foreign gifts and inheritances

A little-known related compliance issue is the reporting of foreign gifts and inheritance. Under I.R.C. 6039F, the receipt of a gift or inheritance by a U.S. person from a nonresident alien individual in excess of $100,000 is required to be reported to the IRS. Congress, in its infinite wisdom, required this information to be reported on Form 3520, the same form used to report transactions with foreign trusts.

While the use of foreign trusts can be used for tax avoidance purposes, that is not the case when one receives a foreign gift or inheritance – as there is no tax assessed on a foreign gift or inheritance. Last year the IRS announced a compliance campaign which targets noncompliance with foreign trust reporting on Form 3520/3520-A.

In furtherance of this campaign, the IRS service center has been automatically assessing penalties on Form 3520/3520-A even if a reasonable cause statement is attached. Unfortunately, individuals who simply file a late Form 3520 to report a foreign gift or inheritance are swept up in this compliance campaign (again, a campaign with has nothing to do with foreign gifts and inheritances). Penalties can be severe – up to 25% of the amount of the gift or inheritance.  Therefore, if you are late filing a Form 3520, you should be ready for an automatic penalty assessment and then for a lengthy appeals process to dispute it. It appears there is discussion about potential changes to the statute: link here.

Why hire Mitchell & Patel?

Schedule an appointment to see how we can help.

IRS Sues Taxpayer to Collect on $5M FBAR Penalty

Kunal Patel


IRS Sues Taxpayer to Collect on $5M FBAR Penalty

Earlier this month, in United States v. Arvind Ahuja (E.D. Wisc. Dkt. No. 18-cv-01934), the IRS sued a prominent neurosurgeon to reduce to judgment an unpaid FBAR penalty for his failure to report his interest in foreign financial accounts for calendar year 2009.

The penalty previously assessed was for a willful failure to file an FBAR. Of particular interest to clients with unreported foreign accounts are the factors that led to a finding of a willful failure to file the FBAR.

What is a willful failure to file an FBAR?

Actual and constructive knowledge

The most basic definition of willfulness is an intentional violation of a known legal duty. Per IRM

Willfulness is shown by the person’s knowledge of the reporting requirements and the person’s conscious choice not to comply with the requirements. In the FBAR Situation, the only thing that a person need know is that he has a reporting requirement. If a person has that knowledge, the only intent needed to constitute a willful violation of the requirement is a conscious choice not to file the FBAR.

That a taxpayer knowingly disregarded his FBAR reporting obligation can be proven through their actual or constructive knowledge of those obligations.

Willful blindness and recklessness

The court in United States v. McBride, 908 F. Supp. 2d 1186, 1210 (D. Utah 2012), held that willfulness for civil FBAR violations includes both recklessness and willful blindness.

A taxpayer who understands that there may be a filing requirement, but deliberately avoids learning about FBAR filing requirements can be considered to have acted willfully. The law does not protect deliberate ignorance or conscious avoidance.

The IRM provides an example:

An example that might involve willful blindness would be a person who admits knowledge of and fails to answer a question concerning signature authority at foreign banks on Schedule B of his income tax return. This section of the return refers taxpayers to the instructions for Schedule B that provide further guidance on their responsibilities for reporting foreign bank accounts and discusses the duty to file Form 90-22.1. These resources indicate that the person could have learned of the filing and record keeping requirements quite easily. It is reasonable to assume that a person who has foreign bank accounts should read the information specified by the government in tax forms. The failure to follow-up on this knowledge and learn of the further reporting requirement as suggested on Schedule B may provide some evidence of willful blindness on the part of the person. For example, the failure to learn of the filing requirements coupled with other factors, such as the efforts taken to conceal the existence of the accounts and the amounts involved may lead to a conclusion that the violation was due to willful blindness. The mere fact that a person checked the wrong box, or no box, on a Schedule B is not sufficient, by itself, to establish that the FBAR violation was attributable to willful blindness.

The taxpayer’s background and level of education may help establish willful blindness, where a failure to file an FBAR could be construed as willful without a showing of actual or constructive knowledge of filing requirements.

FBAR willfulness factors in U.S. v. Arvind Ahuja

Below are some of the facts in this case:

  1. Taxpayer was a citizen of the U.S. during the 2009 tax period for which the FBAR was due.
  2. Taxpayer is a prominent neurosurgeon, specializing in treatments for disorders of the brain, spine, arteries and peripheral nerves.
  3. In 2008-2009 Taxpayer actively day-traded stocks, foreign currencies, and futures.
  4. Taxpayer maintained accounts with HSBC India, which held approximately 59 Certificates of Deposit in various sub-accounts and in various foreign currencies.
  5. Taxpayer transferred funds from his United States bank account to his HSBC India account to buy, and rollover, the CDs.
  6. In 2009 the highest aggregate balance in Taxpayer’s HSBC India accounts was $9,245,081.
  7. On his IRS Form 1040 for 2009, Taxpayer checked “no” on that part of Schedule B requiring him to disclose his interest in foreign bank accounts.
  8. Around October 8, 2009, Taxpayer closed his accounts at HSBC India and directed over $3 million be deposited in a domestic account in his wife’s name.
  9. In August of 2008 and on subsequent dates, Taxpayer’s accountant informed Taxpayer of his obligation to report his interest in any foreign financial accounts. Taxpayer knew or should have known he had a duty to report his interest in the foreign financial accounts.
  10. Taxpayer underreported his foreign income by $2.7 million for years 2005 through 2009 on his U.S. tax returns.
  11. Taxpayer failed to file his 2009 FBAR which was due on June 30, 2010.

Based on these and other facts, on August 22, 2012, Taxpayer was found guilty by a jury in his district for, among other charges, his willful failure to submit a Report of Foreign Bank and Financial Accounts and filing a false income tax return for the year ending December 31, 2009.

The facts supporting a finding of ‘willfulness’ here are that:

  • On at least a few occasions, Taxpayer’s accountant informed Taxpayer of his FBAR filing obligations
  • Taxpayer checked ‘no’ on Schedule B regarding the FBAR filing obligation

The Government was able to show actual or constructive knowledge based on those two facts. In the absence of that, Taxpayer’s education/profession, efforts to conceal, the number and size of the foreign accounts, day trading activity, and significant underreporting of income may have supported a finding of willful blindness or recklessness.

FBAR willfulness penalty assessment

On July 12, 2017, a delegate of the Secretary of the Treasury timely made an assessment in the amount of $4,622,540.50, under 31 U.S.C. § 5321, against the defendant, Arvind Ahuja, for his willful failure to submit a FBAR for the year ending December 31, 2009, and assessed both a late-payment penalty of $63,069.19, under 31 U.S.C. § 3717(e)(2) and 31 C.F.R. § 5.5(a), plus interest. The amount assessed under 31 U.S.C. § 5321 is commonly known as a “FBAR Penalty.” The FBAR Penalty assessed is 50% of the account balance on the day of the FBAR violation.

With interest and other statutory accruals, the amount due with respect to the assessment described above is, as of September 19, 2018, $5,007,288.38. The United States is entitled to judgment in its favor and against Ahuja in this amount, plus statutory additions including interest according to law.

What should non-compliant taxpayers do?

If taxpayers are non-compliant with the foreign asset and income reporting requirements, they should consider applying to one of IRS’ voluntary disclosure programs:

Why hire Mitchell & Patel?

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.

IRS Updates Procedures for Voluntary Disclosures

Kunal Patel


IRS Updates Voluntary Disclosure Practice

The IRS issued a memorandum on November 29, 2018 that updates the process for domestic and offshore voluntary disclosures after the 2014 offshore voluntary disclosure program ended on September 28, 2018.

The OVDP program began in 2014 as a modified version of the 2012 OVDP program, which itself followed voluntary disclosure programs offered in 2011 and 2009.

What is IRS Voluntary Disclosure?

Voluntary disclosure is a long-standing practice of the IRS to provide taxpayers with criminal exposure a means to come into compliance with the law and potentially avoid criminal prosecution.

The traditional IRS Voluntary Disclosure Practice is outlined in I.R.M.  The IRS memorandum updates this IRM section. The traditional voluntary disclosure process did not have much of a framework. These new procedures provide more certainty, much like the now-discontinued OVDP program.

Steps for Making a Voluntary Disclosure Under the Revised Guidelines

1. Make a pre-clearance request

Criminal Investigation (CI) will screen all voluntary disclosure requests whether domestic, offshore, or other to determine if a taxpayer is eligible to make a voluntary disclosure.

To accomplish this, CI will require all taxpayers wishing to make a voluntary disclosure to submit a preclearance request.

Taxpayers must request pre-clearance from CI via fax or mail.
Fax: (267) 466-1115
IRS Criminal Investigation
Attn.: Voluntary Disclosure Coordinator
2970 Market St.
Philadelphia, PA 19104

2. Submit required voluntary disclosure documents

For all cases where CI grants preclearance, taxpayers must then promptly submit to CI all required voluntary disclosure documents using a forthcoming revision of Form 14457. This form will require information related to taxpayer noncompliance, including a narrative providing the facts and circumstances, assets, entities, related parties and any professional advisors involved in the noncompliance.
Once CI has received and preliminarily accepted the taxpayer’s voluntary disclosure, CI will notify the taxpayer of preliminary acceptance by letter and forward the voluntary disclosure letter and attachments to the LB&I Austin unit for case preparation before examination.

3. Go through an examination

All voluntary disclosures handled by examination will follow standard examination procedures. Examiners must develop cases, use appropriate information gathering
tools, and determine proper tax liabilities and applicable penalties. Under the voluntary disclosure practice, taxpayers are required to promptly and fully cooperate during civil examinations.

Disclosure Periods and Examination Process

Like the OVDP, the updated voluntary disclosure practice has a civil resolution framework with a discrete disclosure period.

In general, voluntary disclosures will include a six-year disclosure period. The disclosure period will require examinations of the most recent six tax years.
  • In voluntary disclosures not resolved by agreement, the examiner has discretion to expand the scope to include the full duration of the noncompliance and may assert maximum penalties under the law with the approval of management
  • In cases where noncompliance involves fewer than the most recent six tax years, the voluntary disclosure must correct noncompliance for all tax periods involved
  • With the IRS’ review and consent, cooperative taxpayers may be allowed to expand the disclosure period. Taxpayers may wish to include additional tax years in the disclosure period for various reasons (e.g., correcting tax issues with other governments that require additional tax periods, correcting tax issues before a sale or acquisition of an entity, correcting tax issues relating to unreported taxable gifts in prior tax periods).

Taxpayers must submit all required returns and reports for the disclosure period

Penalty Calculation

Examiners will determine applicable taxes, interest, and penalties under existing law and procedures. Penalties will be asserted as follows:

  • The civil penalty under I.R.C. § 6663 for fraud or the civil penalty under I.R.C. § 6651(f) for the fraudulent failure to file income tax returns will apply to the one tax year with the highest tax liability. In limited circumstances, examiners may apply the civil fraud penalty to more than one year in the six-year scope (up to all six years) based on the facts and circumstances of the case. Examiners may apply the civil fraud penalty beyond six years if the taxpayer fails to cooperate and resolve the examination by agreement.
  • Willful FBAR penalties will be asserted in accordance with existing IRS penalty guidelines under IRM 4.26.16 and 4.26.17.
  • A taxpayer is not precluded from requesting the imposition of accuracy related penalties under I.R.C. § 6662 instead of civil fraud penalties or non-willful FBAR penalties instead of willful penalties.
  • Penalties for the failure to file information returns will not be automatically imposed. Examiner discretion will take into account the application of other penalties (such as civil fraud penalty and willful FBAR penalty) and resolve the examination by agreement.
  • Penalties relating to excise taxes, employment taxes, estate and gift tax, etc. will be handled based upon the facts and circumstances with examiners coordinating with appropriate subject matter experts.
  • Taxpayers retain the right to request an appeal with the Office of Appeals.

Who Needs to Use the Voluntary Disclosure Practice?

The objective of the voluntary disclosure practice is to provide taxpayers concerned that their conduct is willful or fraudulent, and that may rise to the level of tax and tax-related criminal acts, with a means to come into compliance with the law and potentially avoid criminal prosecution.

Taxpayers with unfiled returns or unreported income who had no exposure to criminal liability or substantial civil penalties due to willful noncompliance could come into compliance using the Streamlined Filing Compliance Procedures (SFCP), the delinquent FBAR submission procedures, or the delinquent international information return submission procedures, or or by filing an amended or past due tax return.

Why hire Mitchell & Patel?

Schedule an appointment to see how we can help.

IRS Includes FATCA in 5 New Compliance Campaigns

Kunal Patel


IRS Adds FATCA as a Compliance Campaign

Each year the IRS rolls out campaigns to identify the the top compliance issues for the year. For each of these campaigns, the IRS will deploy resources, training, and tools, metrics and feedback to enforce compliance in these areas. One recent campaign that may have a substantial impact in the world of offshore compliance is the FATCA campaign.

The campaign comes after TIGTA recently reported that despite spending $380 million for FATCA compliance, it was not yet prepared to enforce the law.

FATCA Filing Accuracy

Per the IRS website:

The Foreign Account Tax Compliance Act (FATCA) was enacted in 2010 as part of the HIRE Act. The overall purpose is to detect, deter and discourage offshore tax abuses through increased transparency, enhanced reporting and strong sanctions. Foreign Financial Institutions and certain Non-Financial Foreign Entities are generally required to report the foreign assets held by their U.S. account holders and substantial U.S. owners under the FATCA. This campaign addresses those entities that have FATCA reporting obligations but do not meet all their compliance responsibilities. The Service will address noncompliance through a variety of treatment streams, including termination of the FATCA status.

While this doesn’t directly impact individual taxpayers, it will have a downstream effect because the IRS uses the data provided by FFIs to identify non-compliance on Form 8938 on individual income tax returns.

Several other compliance campaigns this year are related to individual offshore tax compliance and cross border activities.

Individual Foreign Tax Credit (Form 1116)

Practice Area: Western Compliance Practice Area

Lead Executive: Paul Curtis

Individuals file Form 1116 to claim a credit that reduces their U.S. income tax liability for the amount of foreign taxes paid on foreign source income. This campaign addresses taxpayer compliance with the computation of the foreign tax credit limitation on Form 1116. Due to the complexity of computing the Foreign Tax Credit and challenges associated with third-party reporting information, some taxpayers face the risk of claiming an incorrect Foreign Tax Credit amount. The IRS will address noncompliance through a variety of treatment streams including examinations.

Individual Foreign Tax Credit Phase II

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone, director of Withholding & International Individual Compliance

Section 901 of the Internal Revenue Code alleviates double taxation through a dollar-for-dollar credit against U.S. tax on foreign-sourced income in the amount of foreign taxes paid on that income.

Individuals who meet certain requirements may qualify for the foreign tax credit. This campaign addresses taxpayers who have claimed the credit but do not meet the requirements. The IRS will address noncompliance through a variety of treatment streams, including examination.

Foreign Earned Income Exclusion Campaign

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

Individuals who meet certain requirements may qualify for the foreign earned income exclusion and/or the foreign housing exclusion or deduction. This campaign addresses taxpayers who have claimed these benefits but do not meet the requirements. The Internal Revenue Service will address noncompliance through a variety of treatment streams, including examination.

Offshore Service Providers

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone, director of Withholding & International Individual Compliance

The focus of this campaign is to address U.S. taxpayers who engaged Offshore Service Providers that facilitated the creation of foreign entities and tiered structures to conceal the beneficial ownership of foreign financial accounts and assets, generally, for the purpose of tax avoidance or evasion. The treatment stream for this campaign will be issue-based examinations.

1120-F Delinquent Returns Campaign

Practice Area: Cross Border Activities

Lead Executive: Orrin Byrd, director of Field Operations (East)

The objective of the Delinquent Returns Campaign is to encourage foreign entities to timely file Form 1120-F returns and address the compliance risk for delinquent 1120-F returns. This is accomplished by field examinations of compliance risk delinquent returns and external education outreach programs. The campaign addresses delinquent-filed returns, Form 1120-F U.S. Income Tax Return of a Foreign Corporation.

Form 1120-F must be filed on a timely basis and in a true and accurate manner for a foreign corporation to claim deductions and credits against its effectively connected income. For these purposes, Form 1120-F is generally considered to be timely filed if it is filed no later than 18 months after the due date of the current year’s return. The filing deadline may be waived, in situations based on the facts and circumstances, where the foreign corporation establishes to the satisfaction of the commissioner that the foreign corporation acted reasonably and in good faith in failing to file Form 1120-F per Treas. Reg. Section 1.882-4(a)(3)(ii). LB&I Industry Guidance 04-0118-007 dated 2/1/2018 established procedures to ensure waiver requests are applied in a fair, consistent and timely manner under the regulations.

Swiss Bank Program Campaign

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

In 2013, the U.S. Department of Justice announced the Swiss Bank Program as a path for Swiss financial institutions to resolve potential criminal liabilities. Banks that are participating in this program provide information on the U.S. persons with beneficial ownership of foreign financial accounts. This campaign will address noncompliance, involving taxpayers who are or may be beneficial owners of these accounts, through a variety of treatment streams including, but not limited to, examinations and letters.

Nonresident Alien Schedule A and Other Deductions

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

This campaign is intended to increase compliance in the proper deduction of eligible expenses by nonresident alien (NRA) individuals on Form 1040NR Schedule A. NRA taxpayers may either misunderstand or misinterpret the rules for allowable deductions under the previous and new Internal Revenue Code provisions, do not meet all the qualifications for claiming the deduction and/or do not maintain proper records to substantiate the expenses claimed. The campaign will address noncompliance through a variety of treatment streams including outreach/education and traditional examinations.

NRA Tax Credits

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

This campaign is intended to increase compliance in nonresident alien individual (NRA) tax credits. NRAs who either have no qualifying earned income, do not provide substantiation/proper documentation, or do not have qualifying dependents may erroneously claim certain dependent related tax credits. In addition, some NRA taxpayers may also claim education credits (which are only available to U.S. persons) by improperly filing Form 1040 tax returns. This campaign will address noncompliance through a variety of treatment streams including outreach/education and traditional examinations.

F3520/3520-A Non-Compliance and Campus Assessed Penalties

Practice Area:  Withholding & International Individual Compliance

Lead Executive: John Cardone, Director, WIIC

This campaign will take a multifaceted approach to improving compliance with respect to the timely and accurate filing of information returns reporting ownership of and transactions with foreign trusts. The Service will address noncompliance through a variety of treatment streams including, but not limited to, examinations and penalties assessed by the campus when the forms are received late or are incomplete.

Forms 1042/1042-S Compliance

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

Taxpayers who make payments of certain U.S.-source income to foreign persons must comply with the related withholding, deposit, and reporting requirements. This campaign addresses Withholding Agents who make such payments but do not meet all their compliance duties. The Internal Revenue Service will address noncompliance and errors through a variety of treatment streams, including examination.

Nonresident Alien Tax Treaty Exemptions

Practice Area: Withholding & International Individual Compliance

Lead Executive: John Cardone

This campaign is intended to increase compliance in nonresident alien (NRA) individual tax treaty exemption claims related to both effectively connected income and Fixed, Determinable, Annual Periodical income. Some NRA taxpayers may either misunderstand or misinterpret applicable treaty articles, provide incorrect or incomplete forms to the withholding agents or rely on incorrect information returns provided by U.S. payors to improperly claim treaty benefits and exempt U.S. source income from taxation. This campaign will address noncompliance through a variety of treatment streams including outreach/education and traditional examinations.

OVDP Declines-Withdrawals Campaign

The Practice Area is Withholding & International Individual Compliance

Lead Executive: Pamela Drenthe

The Offshore Voluntary Disclosure Program (OVDP) allows U.S. taxpayers to voluntarily resolve past non-compliance related to unreported offshore income and failure to file foreign information returns. This campaign addresses OVDP applicants who applied for pre-clearance into the program but were either denied access to OVDP or withdrew from the program of their own accord. Taxpayers, who have yet to resolve their non-compliance and who meet the eligibility criteria, are encouraged to consider entering one of the offshore programs currently available. The IRS will address continued noncompliance through a variety of treatment streams including examination and letters.

Virtual Currency

Practice Area: Withholding & International Individual Compliance

Executive Lead: John Cardone, director, Withholding & International Individual Compliance

U.S. persons are subject to tax on worldwide income from all sources including transactions involving virtual currency. IRS Notice 2014-21 states that virtual currency is property for federal tax purposes and provides information on the U.S. federal tax implications of convertible virtual currency transactions. The Virtual Currency Compliance campaign will address noncompliance related to the use of virtual currency through multiple treatment streams including outreach and examinations. The compliance activities will follow the general tax principles applicable to all transactions in property, as outlined in Notice 2014-21. The IRS will continue to consider and solicit taxpayer and practitioner feedback in education efforts, future guidance, and development of Practice Units. Taxpayers with unreported virtual currency transactions are urged to correct their returns as soon as practical. The IRS is not contemplating a voluntary disclosure program specifically to address tax non-compliance involving virtual currency.

What should non-compliant taxpayers do?

If taxpayers are non-compliant with the foreign asset and income reporting requirements, they should consider applying to one of IRS’ voluntary disclosure programs:

Why hire Mitchell & Patel?

We assist taxpayers who have undisclosed foreign financial assets. Schedule an appointment to see how we can help.