Delinquent on Foreign Bank Account Reporting? Time to Get Caught Up!

If you fallen behind with your foreign bank account reporting, the IRS has opened a second amnesty period for 2011 in which you can report these accounts, pay a fine and avoid criminal prosecution.

Over the last several years, the IRS has been getting more and more aggressive in its efforts to ensure Americans living abroad are compliant. There has been no doubt about how seriously the US government takes this mission.  Since the end of the 2009 amnesty program,  the IRS has been a bit unclear as to the implications and penalties for failing to come forward.

On Feb 8th, 2011, the IRS announced an initiative that will be welcomed by many Americans living abroad who have failed to file taxes or file the FBAR. This initiative will give those who are out of compliance an opportunity to voluntarily disclose their foreign bank accounts, pay the penalty upfront and avoid criminal prosecution.

The IRS also launched a new Offshore Voluntary Disclosure Program in 2012, which does not have a closing date. Remember that OVDP is primarily for those who purposely hid money in offshore accounts in order to avoid paying US taxes. There is also an option to use the Streamlined Procedures, which allow taxpayers with non-willful delinquencies the opportunity to get caught up without penalty.

FBAR? What is that?

Essentially, if you have more than $10,000 or the foreign equivalent in overseas bank accounts, you must file the FBAR with the Treasury by June 30th each and every year. This is total across all of your foreign accounts for personal or business purposes. For example, if you have $2,000 in five accounts, they must all be reported. You need to report these bank accounts if you held $10,000 for the whole year or just one day.

The FBAR is in addition to your requirement to file a US income tax return. All US citizens and Green Card-holders are required to file a US Federal Income Tax return each year if their incomes are over the minimum threshold. It doesn’t matter where you earn your income or whether you have filed in your country of residence.  All US persons are required to file in the US if their incomes are above the thresholds. The thresholds are currently:

  • Single with income over $9,350
  • Married filing jointly with income over $18,700
  • Married filing separately with income over $3,650

What is the 2011 Offshore Voluntary Disclosure Initiative (OVDI)?

The 2011 Voluntary Disclosure Program gives Americans with unreported foreign bank accounts an opportunity to come clean.  They will be able to pay a reduced penalty and avoid criminal prosecution. This offers a significant incentive for those who live and work abroad to come forward and declare any bank accounts they have not reported to the Treasury Department. It is also a great opportunity to get caught up on US tax returns.

Under the 2011 Offshore Voluntary Disclosure Initiative (OVDI), the penalty framework for individuals is as follows:

  • 27.5% penalty on the amount in the foreign accounts.
  • The penalty is based on the highest total account balance between 2003– 2010.
  • You must file back tax returns or amendments and pay back taxes and interest for up to eight years as well as any penalties that may be due.
  • Everything (i.e. all original and amended tax returns) is due by August 31st, 2011. All penalties and taxes due must be paid as well as any interest and accrued penalties.

If you are living abroad and the total of your accounts did not exceed $75,000 during this time period, then you may qualify for a lower penalty threshold of 12.5%.

You may also qualify for a reduced penalty of 5% if you meet all of the following:

  • If you did not open or cause the account to be opened
  • Have exercised minimal, infrequent contact with the account
  • Have not withdrawn more than $1,000 from the account in any year between 2003-2010 (unless to close the account)
  • Can show that all US taxes have been paid on the funds deposited into the account

OR

  • If you are a foreign resident and were unaware you were a US citizen.

How does this differ from the 2009 Special Voluntary Disclosure Program?

The 2009 Special Voluntary Disclosure Program, which ended October 15th, 2009, had a lower penalty rate. In the 2009 program, taxpayers faced up to a 20% penalty over a six-year period. Roughly 15,000 taxpayers with bank accounts in more than 60 countries came forward as a result of the 2009 program. One thing is clear: the IRS is not going to reward people for waiting, so it is likely that the penalties will only get more severe over time for non-compliance.

What about for those people who came forward between the closing date of the 2009 program and now?

Since the 2009 Special Voluntary Disclosure program ended, an additional 3,000 individuals have come forward, but many of these people have been in a state of limbo as the IRS had not clearly defined what penalties those individuals may face. These individuals will be eligible for the terms of the 2011 program.

What if I have been fully compliant with all my US expat tax returns but not the FBAR?

If you have been filing your US tax returns, but have not filed the FBAR, then you may not need to worry about the OVDI. The purpose of the program is to provide a way for individuals who have not been reporting their taxable income to disclose this income and avoid criminal prosecution. If you have not been reporting your foreign bank accounts via the FBAR form, but have paid tax on any income from these accounts, then you should file the delinquent FBAR forms.  When you file your delinquent forms, include a statement saying why the reports are late.  In all likelihood, you do not need to partake in the Voluntary Disclosure Program.

The IRS has said it will not impose penalties for failure to file the FBAR form if there is no tax liability and you catch up with the forms by August 31st. Please note your 2010 FBAR form is due on June 30th, 2011,  not August 31st.

In summary, it looks as if the implications of failing to file taxes or report foreign bank accounts will only become more harsh. According to IRS Commissioner Doug Shulman:

“As we continue to amass more information and pursue more people internationally, the risk to individuals hiding assets offshore is increasing. This new effort gives those hiding money in foreign accounts a tough, fair way to resolve their tax problems once and for all. And it gives people a chance to come in before we find them.”

Need to know more about the foreign bank account reporting?

Have a look at our post on FBAR filing reminders and updates. If you have further questions about the FBAR or would like to learn more about our expat tax services, please contact us.

 

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