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April 15 is the new annual deadline for U.S. taxpayers, (including resident aliens) to timely file reports of foreign financial accounts. However, in a decidedly taxpayer friendly move, the Treasury Department recently announced that automatic 6 month extensions will be granted to all filers. Taxpayers do not have to request the extensions. They are automatic. The due date was formerly June 30 and no extensions were permissible. The report form (TD 90-22.1) known as an FBAR is due if a U.S. taxpayer has direct or indirect control over offshore financial accounts (such as a bank / brokerage account or other investment, broadly defined) that had balances in aggregate of $10,000 or more at any time during the calendar year. The threshold limit is determined by the Treasury Department procedure requiring that the high account balance for the year, in local currency, be converted/translated into $U.S. at the published Treasury Department conversion rates at December 31 of that year.
Failure to timely file an FBAR may result in penalties which range from a warning letter (for reasonable cause) to $10,000 per year per account for "non-willful" violations (late but otherwise accurate filing not excused for reasonable cause), to the greater of $100,000 or 50% of the account balance per year per account for "willful" failure to file (knowing and intentional or willfully blind conduct) to criminal prosecution.
There is an increasing likelihood that the IRS will seek the "willful" civil penalties for taxpayers who have failed to file FBAR and who have failed to come forward and enter the Offshore Voluntary Disclosure Program. The reasons for this are as follows:
However, in the following situations it is overwhelmingly likely that you will caught – and as in most things of this nature, the consequences will largely be determined by who gets to whom first:
Example 2: Taxpayer has an offshore corporation which is used to provide inflated or false invoices so that the taxpayer can move money offshore and deduct the payment. The taxpayer owns the company directly or indirectly (such as through a trust or nominee) but has full control over the bank accounts. The taxpayer did not File FBAR's or attach a Controlled Foreign Corporation return (Form 5471) to his Form 1040. In this case the taxpayer faces potential criminal prosecution for both income tax evasion and willful failure to file FBAR's. The risk of prosecution and the penalties for tax evasion and FBAR willfulness penalties can be avoided if the taxpayer makes a timely offshore voluntary disclosure. The cost benefit surely tilts in favor of disclosure.
Example 3: Taxpayer is considering applying for an EB-5 Visa (investor Visa). Before entering the program, the taxpayer should obtain a legal opinion on how to properly comply with disclosure requirements for holdings in financial accounts and other interests. The failure to properly comply with FBAR and income tax reporting rules can be grounds for revocation of the visa. Once the EB-5 or any other visa that results in permanent resident status is issued, the FBAR and other compliance rules and penalties apply. FBAR’s must be received by the extended due date to be deemed timely filed. Unlike income tax rules, the mailing date is irrelevant.
THE BOTTOM LINE: Bank secrecy is over. The best advice we can give is for you to “come clean” ASAP. WE will be more than pleased to help you. Our fees are reasonable and we work with top tax lawyers to secure the best possible outcome for you.
“The days of bank secrecy are over. The computers are taking to each other and the banks are turning over information to the IRS. The sooner you take steps to resolve your situation, the better the outcome is likely to be.” ~ Selwyn Gerber CPA & Richard Weisinger CPA
NOTE: In addition to the FBAR, you should be careful to file forms 8938 and 3520 / 3520A as appropriate for foreign investments.
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