Streamlined Filing, Foreign Accounts, and Attorney’s Fees

How much does a streamlined case cost?

Foreign accounts cases are unique and present different challenges. We often get quote requests by email. Hopefully this article will explain why we cannot provide a quote without having a consultation and reviewing your situation.

How a streamlined case is handled

Our policy is that if you’re voluntary coming into compliance for mistakes or omissions made on your tax returns (and which can carry hefty penalties), now is not the time to cut corners.

Step 1: Initial consultations

Clients are often nervous and don’t know what to expect at the start of the process. We provide an overview and go into as much detail as possible, but there’s so much information that most clients will feel overwhelmed.

The attorney should discuss the various options for coming into compliance and you should agree on the best way to disclose your accounts. There is quite a bit of back and forth during the initial phase with clients as they begin to understand the process and feel more comfortable.

Step 2: Research

Offshore compliance is a niche area of tax law. There are thousands of different types of foreign accounts. It’s impossible to determine how your specific accounts should be reported without research.

Our challenge is understanding how each foreign account the client owns should be treated under the U.S. tax code. It’s no cakewalk.

The IRS does not tell you how your specific foreign investment should be reported. And it would be impossible for the IRS to do that.

If you have a U.S. brokerage account, you get a neatly organized 1099-B summary that you can just plug into Turbo Tax. That’s not the case with foreign investments. A foreign investment account can be any number of things:

Correctly reporting an account often requires an attorney to delve into the abyss of our tax code and treasury regulations to determine how the investment should be reported and taxed. The attorney should review any applicable tax treaties. Finally, the attorney should assist you with any questions regarding the organizers that you fill out.

Tax compliance for individuals should not be this complicated, but unfortunately our laws concerning foreign accounts are onerous and there are stiff penalties for some mistakes.

Step 3: Tax preparation

After the attorney has classified the accounts, determined how they should be taxed and reported, determined what forms should be filled out, and determined that you are non-willful and eligible for the streamlined procedures, the tax preparation process can begin.

If your attorney is preparing your tax returns, they should have one of the following:

  1. Prior experience working at an accounting firm
  2. A CPA license

In order to get a CPA license, an accountant must have one to two years of accounting experience and pass a rigorous exam.

I know many good enrolled agents who have prior experience at an accounting firm. By far the biggest mistakes I’ve seen are from enrolled agents with no accounting firm background.

Step 4: Certification

Your certification of non-willful conduct is the important part of your application. In it, you will present your facts to demonstrate non-willfulness under penalties of perjury.

A CPA/accountant should NOT be drafting this form. Charges for the filing of a false statement in a streamlined filing is not a theoretical risk — it is possible if you present incorrect facts.

The narrative on your certification should be concise but should address all the topics.

The IRS is looking for troublesome facts such as:

  • Accounts held in the name of offshore entities (which could show an intent to disguise ownership)
  • Actions taken to disguise or conceal ownership — e.g., accounts identified by code names, nicknames, or numbers; requesting foreign institution to hold mail and only visiting the bank in person for transactions
  • Illegal source funds or significant amounts of previously untaxed legal source funds
  • Accounts located in tax havens

(note: the above factors are not exclusive)

To ensure the IRS has confidence that such facts are not present in your case, your certification should address such topics as your personal and financial background, the source of funds, your reasons for opening the foreign accounts, and the types of contacts with the accounts.

Are the streamlined procedures appropriate?

The Traditional Voluntary Disclosure Program is for taxpayers who need protection from criminal prosecution or civil willfulness penalties. The following factors (not exclusive) are some indicators of willfulness.

  1. Opening an account in a jurisdiction in which the taxpayer has no other ties. Do you have legitimate business or personal ties to the jurisdiction where your foreign assets are located? Or are they located in offshore tax havens such as Switzerland, Panama, Cyprus, Liechtenstein, Luxembourg, Austria, and others where there have (or had) bank secrecy?
  2. A consistent pattern of under-reporting large amounts of income
  3. Use of bank accounts held under fictitious names
  4. Setting up foreign trusts or corporations to conceal sources of income
  5. Selectively filing some forms but not others
  6. Using different passports
  7. Requesting your bank to not send statements
  8. Using code words
  9. Only making cash deposits and withdrawals, and visiting the bank in person
  10. Receiving letters from the foreign bank regarding reporting requirements
  11. Failure to supply an accountant with accurate and complete information
  12. Keeping a double set of books
  13. Hiding, destroying, throwing away, or “losing” books and records
  14. Placing property or a business in the name of another (nominees)
  15. Use of bank accounts held under fictitious names

It is extremely rare for a client to need a traditional voluntary disclosure.

Some factors are more indicative than others of willfulness. The presence of these factors in your case does not automatically make you willful.

For instance, you may have filed your FBARs but not Forms 8938 (see #5), or you reported your foreign bank accounts but not your non-bank foreign financial assets because you did not know you had to (see #5). Or perhaps you only found out about your FBAR requirements after your bank contacted you with a ‘FATCA letter’ (see #10). These can all be explained away in your certification.

On the other hand, the use of a foreign bank account held under fictitious names, on its own, could be enough to show willfulness.

Willfulness is a legal determination, not a bright line rule – which is why a CPA should never handle offshore compliance cases.

Do I Need a Tax Lawyer, or can I use a CPA?

A client should not directly reach out to a CPA in a tax matter where they may be facing significant civil or criminal penalties for a tax violation.

Can we just Forget about my past Non-Compliance and file Correctly Going Forward?

Our job is to bring clients into compliance safely and will not advise or assist you in your strategy of “going forward compliance.”

Here’s what the IRS has to say about quiet disclosures:

What if the taxpayer has already filed amended returns reporting the additional unreported offshore income, without making a voluntary disclosure (i.e. quiet disclosure)?

The IRS is aware that some taxpayers have attempted so-called “quiet” disclosures by filing amended returns and paying any related tax and interest for previously unreported offshore income without otherwise notifying the IRS. Taxpayers who have already made “quiet” disclosures are eligible to take advantage of the penalty framework applicable to this program by submitting an application, along with copies of their previously filed returns (original and amended) to the IRS’s Voluntary Disclosure Coordinator (see FAQ 24)…Those taxpayers making “quiet” disclosures should be aware of the risk of being examined and potentially criminally prosecuted for all applicable years.

We’ve had to represent clients who were audited after submitting a quiet disclosure by tax professionals. It is not worth the risk.

Client tips on hiring an attorney

Be Upfront During your Initial Consultation. This means truthfully and completely answering all questions, and proffering relevant information. It is important to identify any weaknesses so that they may be addressed early on, as well as to identify the full scope of the work involved.

Be Organized. If you’re paying hourly, then obviously good organization on your part will save you money. If your attorney is charging a fixed fee and does not sense that you are organized, you can expect that your fees might be higher to reflect the additional time commitment on the attorney’s part.

Do your Tax Research. Be prepared with good questions to gauge whether the attorney has handled cases like yours before. Our clients who have done their research understand the nuances and complexity of this work, often more than some of the attorneys they end up talking to.

Voluntary offshore disclosure firms to watch out for

Offshore compliance is a somewhat unusual area in tax law. It’s among the most complicated issues on individual tax returns.

Unfortunately, there are many firms nationwide that might take advantage of clients that need help with these legal services. We provide this section only because our clients have requested us to write this.

While you can find many great attorneys that can assist you with your matter, here are some types of firms to watch out for.

CERTIFIED OFFSHORE DISCLOSURE SPECIALISTS

Tax is learned through experience with other knowledgeable and experienced professionals, not by taking exams. Everyone has to start somewhere, but hopefully not on your own right out of school.

We’ve had to take over cases from attorneys claiming to be certified offshore compliance specialists (there’s no such certification). They often misleadingly boast that they are in the top 1% of all attorneys nationwide.

Despite claiming they have decades of experience, the attorney provides no detail of what their prior experience was in or if it was even tax related. Did they work at another firm? Were they working at the IRS? They could’ve been selling real estate for all we know.

DISCOUNTED, REDUCED FEE AND FREE CONSULTATIONS

One business model out there is to advertise and post the same content all over the internet on multiple sites with the hopes of reaching a large number of people.

Once the client stumbles upon one of their websites and has been baited for a reduced fee or discounted consultation, they’ll receive a ridiculous flat fee quote which will leave them overpaying by several thousands of dollars for services they don’t even need.

A client will fall for it because they just don’t know better. Then rinse and then repeat. Please be careful.

There’s no such thing as a free lunch. When you get a free consultation, you get a sales pitch. We charge for consultations and for a good reason. A consultation should be professional, unbiased advice and not fear-mongering to scare you into hiring them.

UNLICENSED LAWYERS

A person does not have to licensed to handle tax matters, as the line between tax (accounting) work and tax (legal) work is blurred. So anyone can state that they practice “tax law” even though they never passed the bar. If you want to verify that your attorney is licensed, you can Google search “State bar of [enter attorney’s state] attorney lookup.” One of the first few search results should take you to the state bar’s attorney lookup page.

Why previous work experience is important

Experience in a previous accounting, law firm, or IRS setting is absolutely critical. Having experience in your own firm is great but not sufficient. You simply cannot know how the tax system works in the real world by passing some exams.

Lawyers without prior outside experience tend to have a myopic view of the tax system and tend to blow matters way out of proportion. We’ve seen that with attorneys making OVDP filings for minor tax non-compliance that could’ve been resolved alternatively.

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

Even if you’ve spoken to someone about your matter, we’re available for a second opinion.