Friday, March 27, 2009

IRS Offshore Bank Account Initiative -- Key Points (3/27/09)

The key points of the IRS initiative are:

1. Taxpayer must file amended income tax returns or, if no original income tax returns were filed, delinquent income tax returns for 6 years and pay tax, interest, and a 20% accuracy related penalty or 25% delinquency penalty, as appropriate. The carrot here is that the IRS will not assert the fraud penalty which is 75% as to fraudulent returns or fraudulent failure to file.

2. Taxpayer must file amended or delinquent FBARs (the information return for foreign bank accounts) and pay 20% penalty on the amount in the foreign bank account in the year with the highest aggregate account or asset value in lieu of all other applicable penalties. The carrot here is that the IRS will not assert the maximum penalty ($100,000 or 50% of the amount in the account) for each year. The 20% penalty imposed pursuant to the program may be reduced to 5% if the taxpayer didn't open the account, there was no account activity while the taxpayer controlled the account, and all taxes have been paid on the account.

3. The taxpayer must file the various other forms that may be required but will not assert the penalties that might apply to them. The carrot here is that the IRS will not assert the otherwise substantial penalties for those delinquencies.

4. The program is available only to those who meet the voluntary disclosure policy in IRM Although, in other contexts, practitioners pursue voluntary disclosures through disclosures by simply filing with the service center and through noisy disclosures (meetings with IRS CI), the program appears to contemplate only noisy disclosures (e.g., initial screening at CI is required and a closing agreement is required). This means more work for lawyers because most clients should be guided through the process that may have major downsides for the unwary. See here for a discussion of the distinction between silent and noisy disclosures.

5. The taxpayer otherwise fully cooperates.

6. If the foregoing conditions are met and agreed upon, the IRS will not pursue criminal prosecution.

ADDITION AS OF MAY 2009: IRS documents related to the initiative, including a key Frequently Asked Questions providing many details may be accessed here.

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