By now you should be aware of your U.S. income tax filing requirement. Every U.S. citizen who meets the filing threshold must file a U.S. tax return regardless of the current resident country. Basically, you must continue to file U.S. tax returns even for the income you generate in your foreign residence. In addition to reporting the income, foreign financial accounts also need to disclosed when the accounts hold a certain aggregate amount of money- this is known as Report of Foreign Bank and Financial Accounts (FBAR). The FBAR filing deadline approaches, and it is indeed a good time to start preparing.
These Need to be Reported
The majority of the FBAR reporting will be done for the foreign bank account balances, but here are other accounts that will require your attention.
- Brokerage account
- Foreign mutual funds
- Foreign stock/ securities held in a foreign financial institution’s account
- Financial account held at a foreign branch of a US bank
- Foreign-issued life insurance or annuity contact with a cash value
Threshold that you wish you wouldn’t exceed
$10,000 is the dollar amount threshold that determines whether or not you file an FBAR each year. At any point during a calendar year, if your foreign bank accounts exceed the aggregate value of $10,000 (for example, this can be achieved either through $10,000 in one account or $2,500 in four accounts), you are required to file. Joint accounts exceeding $10,000 or separate accounts by a married couple exceeding $10,000 are no exception. U.S. companies are to comply with the reporting duty as well.
Know the Deadline and File Timely
What would consider to be unwise is filing an FBAR late after carefully putting together difficult forms. The deadline for 2015 FBAR filing is June 30, 2016. No extensions are allowed this year. For the coming years, the FBAR reporting deadline is on the same day as the tax filing day- April 15th.
By the way, FBAR reporting is done through the U.S. Department of Treasury, not the IRS, so submit the forms to the relevant authority.
Unless you want to deal with these penalties…
The penalty for failing to file a complete and correct FBAR is substantial. For non-willful violations, the civil penalty of maximum $10,000 per violation is given. It is unclear if a “violation” can be applied to individual accounts, meaning if you fail to disclose five of your foreign accounts this year, it is unclear whether the fine would amount to be $50,000 just for one year of non-filing. For willful violations, you will be fined either $100,000 or 50% of the entire balance of the account at the time of willful violation- whichever is greater. The fines can add up very quickly, and the amount isn’t something you could simply overlook.
Feeling a little uneasy? There are solutions
Fortunately, a number of amnesty programs may be able to save you from a financial blow. Here are your options-
Streamlined Filing Compliance Procedures
If a taxpayer non-willfully does not report foreign assets, he or she can submit six years of FBAR and three years of tax return under the streamlined procedure. Depending on the status, there are two streamlined procedures; one called “the streamlined procedures residing in the United States” and the other called “the streamlined procedures residing outside the United States.” For eligible U.S. taxpayers residing outside the United States, all penalties will be waived under the streamlined procedures
Non-resident taxpayers might be better positioned than resident taxpayers to achieve their goal of a non-willful, no penalty resolution under the Streamlined Procedures. Taxpayers likely consider a Streamlined submission if they are comfortable and have sufficient factual basis to certify their “non-willful” status. If there are any uncertainties or potentially difficult factual scenarios involved, consult with experienced counsel. The purpose of seeking experienced counsel is to discover the seriousness of the situation and to be guided into the best resolution at the least overall cost.
The Offshore Voluntary Disclosure Program
The Offshore Voluntary Disclosure Program (OVDP) is a voluntary disclosure program specifically designed for taxpayers with exposure to potential criminal liability and/or substantial civil penalties due to a willful failure to report foreign financial assets and pay all tax due in respect of those assets. The OVDP is designed to provide to taxpayers with such exposure (1) protection from criminal liability and (2) terms for resolving their civil tax and penalty obligations.
The IRS is aware that some taxpayers have made “quiet disclosures” by filing amended returns, by filing delinquent FBARs, and paying any related tax and interest for previously unreported income from the OVDP assets without otherwise notifying the IRS. Taxpayers who have already made “quiet disclosures” are encouraged to participate in the OVDP by submitting an application, along with copies of their previously filed returns (original and amended), and all other required documents and information to the IRS’s Voluntary Disclosure Coordinator. Taxpayers are encouraged to avail themselves of the protection from criminal prosecution and the favorable penalty structure offered under the OVDP. Unlike a voluntary disclosure through the OVDP, quiet disclosures provide no protection from criminal prosecution and may lead to civil examination and the imposition of all applicable penalties.
The best approach is to work with a CPA who works in close communication with a tax attorney. In some cases, the lawyer’s input can benefit immensely when the situation involves a possible settlement process or criminal procedure. Locus has both CPAs and international tax attorneys on staff to provide the most effective tax services to delinquent expat taxpayers.