The author is a very good lawyer. See his bio here. He is well respected in the tax community and I, sometimes a member of the sames community, respect him.
Still, I think an article of this nature must be taken with a grain of salt. Opting out is a larger issue than, I think, can be presented in a article, certainly a short article, outside the context of specific facts (that comment should make readers wary of my own blogs). That's basically it.
But I will point out one mistake he makes in the article, He says:
Even criminal prosecution is conceivable after opting out, although that has evidently not happened to anyone.That is not true, as presented. Opting out of an otherwise good OVDI/P presentation and thereafter cooperating in the opt out audit achieves the same "amnesty" from criminal prosecution as if the taxpayer had not opted out. Let me state that strongly: Assuming an otherwise good submission of documents and full cooperation, a taxpayer does not increase his or her risk of prosecution by opting out. I disagree with putting unnecessary fear into this equation.
The author is correct that "once outside the program, the IRS may assess the civil fraud penalty or information return penalties." And, the willful FBAR penalty can apply. And, as he later notes, civil fraud can open up an otherwise closed statute of limitation. Those considering opt out must take those factors into account.
But, I don't think and certainly have not experienced his comment that "Some say the IRS may apply rough justice by calculating FBAR penalties that approximate the 27.5% miscellaneous offshore penalty within the OVDP." He attributes that to some unnamed others and not to himself. I don't think the IRS is that petty. Certainly have not experienced it.
He is, of course, correct that "[t]he OVDP is predictable." I tell my clients that the only certainty in this offshore account universe is the OVDP penalty structure (including, under the current iteration, the 27 1/2 % penalty for noncompliant foreign assets). But, for experienced practitioners, there is less uncertainty in the opt out than might otherwise be perceived. Wise counsel is what is needed. It is not for the faint hearted or those with inexperienced counsel.