- 1 Streamlined Domestic Offshore Procedures – Overview
- 2 Eligibility for the streamlined domestic offshore procedures
- 3 Disqualification from the streamlined domestic offshore procedures
- 4 Title 26 miscellaneous offshore penalty
- 5 General treatment under the streamlined procedures
- 6 What if I cannot get all my documents from overseas?
- 7 What happens if the IRS rejects your streamlined domestic offshore filing?
- 8 What if I just don’t do anything?
- 9 I’ve closed my foreign accounts. Do I still need to report?
- 10 When are the streamlined domestic offshore procedures ending?
- 11 The perils of DIYing and inexperienced counsel
Streamlined Domestic Offshore Procedures – Overview
The IRS streamlined domestic offshore procedures (SDOP) are one of the two programs available in the streamlined filing compliance procedures. It is available to those who have unreported income from undisclosed foreign financial assets.
U.S. taxpayers eligible to use the domestic offshore procedures will need to:
- file amended returns, together with all required international information returns, for the past three years; and
- file delinquent or amended Report Of Foreign Bank & Financial Accounts (FBAR) (FinCEN Form 114) for the past six years.
Qualified filers must submit the above along with a signed certification statement attesting under penalties of perjury that the failures above resulted from non-willful conduct.
Eligibility for the streamlined domestic offshore procedures
Individuals, including estates of individual taxpayers, are eligible to use the Streamlined Filing program if:
- They are a U.S. Resident.
- They have previously filed a U.S. tax return (if required) for each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed.
- They have failed to report gross income from a foreign financial asset and pay tax as required by U.S. law, and may have failed to file an FBAR (FinCEN Form 114) and/or one or more international information returns with respect to the foreign financial asset.
- The failures above resulted from non-willful conduct.
The failure to report all income, pay all tax, and submit all required information returns, including FBARs, must be due to non-willful conduct.
Non-willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law.
A taxpayer who understands that there may be a filing requirement, but deliberately avoids learning about international information reporting requirements can be considered to have acted willfully. The law does not protect deliberate ignorance or conscious avoidance.
Eligible filers will be assessed a Title 26 miscellaneous offshore penalty equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period.
Disqualification from the streamlined domestic offshore procedures
Even if a taxpayer meets the previously-discussed eligibility requirements, the taxpayer is disqualified if either of these situations apply.
- Client is under examination. If the IRS has started a civil examination of taxpayer’s returns for any taxable year, regardless of whether it relates to undisclosed foreign financial assets, the taxpayer will not be eligible to use the streamlined procedures. Taxpayers under examination may consult with their agent. Similarly, a taxpayer under criminal investigation by IRS Criminal Investigation is also ineligible to use the streamlined procedures.
- Unfiled return. Taxpayer has not previously filed their U.S. tax returns. Only amended returns, and not original returns, may be submitted under the streamlined domestic offshore procedures. Note that it is not an option to file delinquent returns and then immediately after amend them for purposes of qualifying for the streamlined procedures. You will then have knowingly filed false income tax returns.
Title 26 miscellaneous offshore penalty
In consideration of the IRS’ agreement not to assert other penalties with respect to a failure to report foreign financial assets or the failure to report income from foreign financial assets, the taxpayer is assessed a Title 26 miscellaneous offshore penalty.
The Title 26 miscellaneous offshore penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period.
The highest aggregate balance/value is determined by aggregating the year-end account balances and year-end asset values of all the foreign financial assets subject to the miscellaneous offshore penalty for each of the years in the covered tax return period and the covered FBAR period and selecting the highest aggregate balance/value from among those years.
Determine the penalty base
First it must be determined which assets are to be included in the penalty base. A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty if:
- In a given year in the covered FBAR period if the asset should have been, but was not, reported on an FBAR (FinCEN Form 114) for that year.
- In a given year in the covered tax return period if the asset should have been, but was not, reported on a Form 8938 for that year.
- In a given year in the covered tax return period if the asset was properly reported for that year, but gross income in respect of the asset was not reported in that year.
For example, foreign financial assets may include:
- financial accounts held at foreign financial institutions;
- financial accounts held at a foreign branch of a U.S. financial institution;
- foreign stock or securities not held in a financial account;
- foreign mutual funds; and
- foreign hedge funds and foreign private equity funds.
Exception for Canadian registered registered retirement savings plan (RRSPs)
For those with RRSPs, their Canadian retirement plan will not be included in the 5-percent penalty base. Eligible individuals under under § 4.02 of Rev. Proc. 2014-55, are treated as having made the election under Article XVIII(7) of the U.S.–Canada income tax treaty to defer U.S. income tax on undistributed income earned by a Canadian retirement plan.
Financial interest: beneficial interest and legal interest
The FBAR requires the reporting of all foreign financial accounts that a taxpayer has financial interest in or signature authority over. Financial interest includes both beneficial and legal interest.
Form 8938 requires the reporting of an account in which the taxpayer has beneficial interest.
The Title 26 misc. offshore penalty applies to all reportable but unreported foreign financial assets. The penalty is not intended to reach assets in which the taxpayer had no financial interest, such as an employer’s account over which the taxpayer had only signature authority, or portions of assets in which the taxpayer had no personal financial interest.
We often come across clients who have foreign financial accounts in which they have legal ownership but no beneficial interest. In many countries, it is common practice for elderly parents to include their adult children as joint legal owners on their financial accounts. This ensures that their estate seamlessly passes to their children. If the source of the funds is their parents’, and the children do not deposit or withdraw funds into the account, directly or indirectly, it can be argued that there is no beneficial interest in the account. Such accounts must be included on the FBAR. However, an account in which the taxpayer has no beneficial interest would not need to be reported on Form 8938; and any interest or other income from that account would not be reported on the taxpayer’s tax return.
Signature authority accounts are excluded from the penalty base because they are unrelated to tax noncompliance.
Co-owners are liable for the penalty only on their individual percentage of the highest aggregate balance in the account. However, the burden is on the taxpayer to establish less than 100% ownership.
Children who have joint accounts with their parents, but are merely signatories, can file delinquent FBARs with an explanatory statement. The beneficial owner will pay the relevant penalty.
Are previously reported accounts included in the penalty base?
Covered 3 year tax return period: If the financial asset was reported on both the FBAR and Form 8938, and the income was included on the tax return, it would not be included in the penalty base. Amount entered on the 14654 would be zero.
Covered 6 year FBAR period: For the 3 FBAR periods that don’t overlap with the covered 3 year tax return periods, if the asset was reported on the FBAR, it would not be included in the penalty base. Amount entered on the 14654 would be zero.
Streamlined domestic offshore procedures — penalty calculation
Once the assets in the penalty base have been identified for each year, enter the value of the financial interest in each asset as of December 31 of the applicable year. Once the asset values have been entered on the form, add up the totals for each year and select the highest aggregate amount as the base for the 5-percent penalty.
General treatment under the streamlined procedures
Tax returns submitted under either the Streamlined Foreign Offshore Procedures or the Streamlined Domestic Offshore Procedures will be processed like any other return submitted to the IRS. Consequently, receipt of the returns will not be acknowledged by the IRS and the streamlined filing process will not culminate in the signing of a closing agreement with the IRS.
Returns submitted under the Streamlined Domestic Offshore Procedures will not be subject to IRS audit automatically, but they may be selected for audit under the existing audit selection processes applicable to any U. S. tax return and may also be subject to verification procedures in that the accuracy and completeness of submissions may be checked against information received from banks, financial advisors, and other sources.
Thus, returns submitted under the streamlined procedures may be subject to IRS examination, additional civil penalties, and even criminal liability, if appropriate. Taxpayers who are concerned that their failure to report income, pay tax, and submit required information returns was due to willful conduct and who therefore seek assurances that they will not be subject to criminal liability and/or substantial monetary penalties should consider participating in the Traditional Voluntary Disclosure Program.
After a taxpayer has completed the streamlined filing compliance procedures, he or she will be expected to comply with U.S. law for all future years and file returns according to regular filing procedures.
What if I cannot get all my documents from overseas?
One of the biggest hurdles that clients face is obtaining documents from their financial institutions. In our experience, after a diligent effort, all clients have been able to obtain their records. Or in extenuating circumstances, clients have been able to reconstruct their records using available information.
This is what the IRS requires if you are unable to get documents:
What should I do if I am having difficulty obtaining my records from overseas?
If you are having difficulty obtaining records, carefully document your attempts. For phone conversations, note the date, time, and duration of the call; note the complete name of the employee of the foreign financial institution with whom you speak. For correspondence, make a photocopy of all correspondence to and from the foreign financial institution. We recommend using a delivery or postal service that provides delivery confirmation or a return receipt for all correspondence sent to foreign financial institutions. Our experience with offshore cases in recent years has shown that taxpayers are ultimately successful in retrieving copies of statements and other records from foreign financial institutions.
Reasonable estimates are acceptable on the FBAR. However, precise end of year balances are necessary for calculating the 5% misc. offshore penalty.
What happens if the IRS rejects your streamlined domestic offshore filing?
The streamlined procedures are not really a program, in that it doesn’t result in an acceptance or a rejection. A taxpayer is presumed to be non-willful when they submit amended tax returns under the streamlined procedures. Non-willfulness, however, can be later called into question in a subsequent audit. Therefore the risk is not of rejection, but rather of a willful client applying under the streamlined procedures and later being audited.
Thus far, we have not had any audits of our streamlined filings.
What if I just don’t do anything?
Unless you’re ready to face a potential audit from hell and substantial civil penalties, you should disclose now.
I’ve closed my foreign accounts. Do I still need to report?
Going forward you may not have any foreign reporting requirements. However, your prior returns and un-filed FBARs will remain open for examination. Just how long depends:
- In general, a tax return can be audited for up to 3 years after filing, and the IRS can assess penalties for FBAR non-compliance for up to 6 years from the date due.
- If you failed to include income attributable to foreign financial assets in excess of $5,000, the IRS can audit your return for up to 6 years.
- If you under-report your gross income by more than 25%, the IRS can audit the return for up to 6 years.
- If you were required to file an international information return, such as a Form 8938 or Form 5471, and did not file it, the IRS can audit your return at any time (i.e., the statute of limitations doesn’t begin to run).
Clients might have several years or even a decade or more of non-compliance.
When are the streamlined domestic offshore procedures ending?
Prognosticators have been foretelling the end of the streamlined procedures for years, but so far it has not come true. They will end at some point, but no one knows when that will actually happen.
It is likely that the IRS will announce far in advance that the procedures are ending, such as was the case when OVDP ended (the IRS announced in March 2018 that they would close the program in September 2018).
The perils of DIYing and inexperienced counsel
The certification of non-willfulness is important. The biggest hazard with the streamlined procedures is that of a willful client making a false submission to the IRS. Or very possibly, it could turn a situation that would’ve been non-willful into a willful one. When a false statement is made, the client can be charged with filing a false document.
Almost equally bad are verbose statements that carelessly include more information than they need to, sometimes discussing unrelated matters or information that is far beyond the statute of limitations. This leaves more areas for the IRS to probe into.
We assist taxpayers who have undisclosed foreign financial assets.
Schedule an appointment to see how we can help.