Doeren Mayhew: IRS launches second offshore voluntary disclosure initiative

In exchange for voluntary disclosure of unreported foreign assets, the IRS is offering taxpayers a second opportunity for reduced penalties. A special offshore voluntary disclosure initiative was announced on February 8, 2011. The initiative is temporary and runs through August 31, 2011.

Offshore accounts

The IRS knows that Americans have undisclosed assets in foreign financial institutions. In some cases, taxpayers may not be aware that federal law requires disclosure of offshore accounts above a certain monetary threshold. In other cases, taxpayers know they must report their offshore assets but choose not to make disclosures.

The U.S. and the IRS are working on several fronts to discover unreported offshore assets. The U.S. is negotiating with so-called tax haven jurisdictions for more transparency in their banking and tax laws. These are countries that traditionally have had tough bank secrecy laws. The U.S. has had some success in this area, most notably in getting one of Switzerland's largest banks to agree to share account information with the IRS. Many experts predict that the U.S. will persuade banks in other countries to share account information with the IRS.

In 2010, Congress passed the Hiring Incentives to Restore Employment (HIRE) Act. The new law requires taxpayers with foreign assets exceeding an aggregate value of $50,000 to report them on information returns. This requirement is in addition to the current filing requirement for Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR), which applies when the aggregate value of foreign accounts exceeds $10,000. The IRS is expected to release guidance on the HIRE Act's foreign account reporting rules in 2011.

The IRS has also used a carrot and stick approach to encourage taxpayers to come forward. In 2009, the IRS launched an offshore voluntary disclosure program. According to the IRS more than 15,000 taxpayers participated in the 2009 program. The IRS reported that the 2009 program uncovered undisclosed accounts in more than 60 countries.

2011 initiative

The 2011 voluntary disclosure initiative, like the 2009 program, offers a reduced penalty framework in exchange for voluntary disclosure. In the 2009 program, taxpayers faced up to a 20 percent penalty covering up to a six-year period. The penalty framework for 2011 is higher (at 25 percent for most taxpayers), meaning that taxpayers who did not participate in the 2009 voluntary disclosure program will not be rewarded for waiting.

For the 2011 initiative, the penalty framework requires taxpayers to pay a penalty of 25 percent of the amount in the foreign bank accounts in the year with the highest aggregate account balance covering the 2003 to 2010 time period. Participants also must pay back-taxes and interest for up to eight years as well as pay accuracy-related and/or delinquency penalties. Taxpayers participating in the initiative must file all the necessary paperwork and make all required payments with the IRS before August 31, 2011.

Reduced penalties

Some taxpayers may be eligible for a 12.5 or 5 percent penalty under the 2011 initiative. The 12.5 percent penalty applies to taxpayers whose offshore accounts or assets did not surpass $75,000 in any calendar year covered by the 2011 initiative. The five percent penalty generally applies to taxpayers who did not open the foreign account and who met other very specific criteria covered by the 2011 initiative. Individuals who are foreign residents and who were unaware they were U.S. citizens may also qualify for the five percent penalty.

How to participate

The first step is to talk to a tax professional. The program is not just for individuals. Entities such as partnerships and trusts can also request to participate. However, certain taxpayers are ineligible. They include taxpayers under examination (whether or not the examination relates to undisclosed foreign assets) and taxpayers under criminal investigation.

The IRS encourages taxpayers to file a pre-clearance request. The IRS will then notify the taxpayer if the taxpayer has been cleared to make a voluntary disclosure. Pre-clearance, however, does not guarantee acceptance into the program, the IRS cautioned. After pre-clearance, taxpayers submit a voluntary disclosure letter. The IRS will review the letter and notify the taxpayer if the taxpayer has been accepted into the initiative. If accepted, the IRS requires the taxpayer to submit an extensive voluntary disclosure package.

If you have any questions about the IRS voluntary offshore disclosure program, please contact our office.

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