Options for Noncompliance with US Foreign Reporting Obligations

Updated: Jun 16

Noncompliance with foreign reporting obligations such as the FBAR and the Form 8938 ‘Statement of Foreign Financial Assets’ can result in fines, penalties, or even criminal prosecution. Understanding that noncompliance occurs with a wide variety of taxpayers for various reasons, the IRS has several options to correct noncompliance.


Streamlined Filing Compliance Procedures


The Streamlined Filing Compliance Procedures are available to taxpayers certifying that their failure to report foreign financial assets and pay all tax due in respect of those assets did not result from willful conduct on their part. These are the qualifications to use the procedures:

· Taxpayers must certify that the conduct was not willful.

· The IRS has not initiated an examination of the taxpayer’s returns for any year for any reason.

· Streamlined penalties will not be abated for previous ‘quiet disclosures’.

· A valid TIN is necessary.


There are two types of streamlined procedures which are based on residency.


Streamlined Domestic Offshore Procedures

In addition to the earlier qualifications for the procedures, to qualify for the Streamlined Domestic Offshore Procedures:

· Taxpayer fails to meet the non-residency requirements of the Streamlined Foreign Offshore Procedures.

· Are not delinquent on their most recent 3 years of their US income tax return.

· Have failed to report gross income from a foreign financial asset and pay tax as required by U.S. law.


Under the procedures. The taxpayer must:

· 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, file delinquent or amended tax returns, together with all required information returns and

· For each of the most recent 6 years for which the FBAR due date has passed, file any delinquent FBARs, and

· Pay a Title 26 miscellaneous offshore penalty which is equal to 5 percent of the highest aggregate balance 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.


Taxpayers who comply with all of the instructions will be subject only to the Title 26 miscellaneous offshore penalty and will not be subject to accuracy-related penalties, information return penalties, or FBAR penalties.


Streamlined Foreign Offshore Procedures

To qualify for the Streamlined Foreign Offshore Procedures, the taxpayer must have been a non-resident. A non-resident for US citizens or lawful permanent residents for these purposes is a taxpayer who in any one or more of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, did not have a U.S. abode and was physically outside the United States for at least 330 full days.

A non-resident for taxpayers who are not U.S. citizens or lawful permanent residents is a taxpayer who in any one or more of the last three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the individual did not meet the substantial presence test of IRC section 7701(b)(3).

Under the procedures, the taxpayer must:

· 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, file delinquent or amended tax returns, together with all required information returns and

· For each of the most recent 6 years for which the FBAR due date has passed, file any delinquent FBARs.

· Pay the full amount of the tax and interest due in connection with these filings with the delinquent or amended returns.


A taxpayer who is eligible to use these Streamlined Foreign Offshore Procedures will not be subject to failure-to-file and failure-to-pay penalties, accuracy-related penalties, information return penalties, or FBAR penalties.


IRS Criminal Investigation Voluntary Disclosure Practice


When certifying ‘non-willful’ is not an option, the Voluntary Disclosure Practice may avoid prosecution.

Per IRS.GOV,

· “Failure to voluntarily comply may result in imprisonment, fines, and penalties. If you have willfully failed to comply with tax or tax-related obligations, submitting a voluntary disclosure may be a means to resolve your non-compliance and limit exposure to criminal prosecution.”

· “A voluntary disclosure will not automatically guarantee immunity from prosecution; however, a voluntary disclosure may result in prosecution not being recommended.”


A disclosure must be “timely filed” which means that the IRS has not already:

· Commenced a civil examination or criminal investigation,

· Received information from a third party (e.g., informant, other governmental agency, John Doe summons, etc.) alerting us to the noncompliance, or

· Acquired information directly related to the specific noncompliance from a criminal enforcement action (e.g., search warrant, grand jury subpoena, etc.).


Delinquent FBAR Submission Procedures


These procedures are used by taxpayers who:

· Are not required to use the IRS Criminal Investigation Voluntary Disclosure Practice or the Streamlined Filing Compliance Procedures to file delinquent or amended tax returns to report and pay additional tax,

· Have not filed a required Report of Foreign Bank and Financial Accounts (FBAR) (FinCEN Form 114),

· Are not under a civil examination or a criminal investigation by the IRS, and

· Have not already been contacted by the IRS about the delinquent FBARs.


Under the procedures, the taxpayer must:

· File all FBARs electronically at FinCEN, ‘BSA-Filing System

· Include a statement explaining why the FBARs are being filed late


The IRS will not impose a penalty for the failure to file the delinquent FBARs if the income from the foreign financial accounts were properly reported on a U.S. tax returns and all tax was paid. Submitted FBARS will be subject to the existing audit selection process.


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