Thursday, June 19, 2014

The Credit Suisse / DOJ Negotiations (6/19/14)

Lynnley Browning has a great article on the intrigues in the Credit Suisse / DOJ negotiations.  How Credit Suisse Got Off Easy (Newsweek 6/18/14), here.  Ms. Browning focuses on the intrigue of the Swiss blocking of Credit Suisse' ability to disclose the names of the U.S. depositors.  The $2.6 billion dollar cost was substantial but not that material to Credit Suisse.  And, in terms of its business operations, Credit Suisse did not miss a beat.  But, as she presents the story, it was all about the names and the Swiss authority threatened prosecution of the bank's officers if names were turned over.  One of the great quotes regarding this back and for is that the "the Justice Department 'did not trust' the Swiss."  That strikes me as a reasonable assessment.

41 comments:

  1. GlobalCapitalismJune 20, 2014 at 3:44 AM

    Jack I got another reasonable assessment for you : today the whole world is not trusting the US in general anymore or the DOJ and IRS in particular. What the "BUNDESRAT" and FINMA did was protecting SWISS LAW and they prevailed and the US had to respect that. The US always places its own laws above the laws of other nations . From Jack Townsend and other Homelanders perspective, sometimes they forget that other nations are sovereign nations as well. Lawyers sometimes get so caught up in their own national legal outlook, that they fail to realize that other nations even have different laws than the ones they are familiar with. And when they do notice the difference, they tend to think that the laws they know are the only ones that are "right".
    Credit Suisse gave the Justice Department only some 238 names, and even
    those weren’t particularly valuable - most of the
    clients they outed were dead. Instead, the world’s 28th largest bank wrote a check and hardly missed a
    step. The CEO Mr.Dougan even told investors that the $2.6 billion fine would have
    no material impact on the bank....will be forgotten in 1 year !

    ReplyDelete
  2. It seems like many cases in which the accounts/funds were inherited should qualify under the streamlined procedure. I would want an attorney to approve my honest explanation, even though I feel it meets the stated criteria of "negligence, inadvertence, or mistake or conduct that is the result of a
    good faith misunderstanding of the requirements of the law".

    In my case, the maximum value of my assets ($200K) was in the 2007-2010 timeframe due to 50% stronger currency and a 100% higher price for a stock which was the major holding in the stock portfolio. This modest portfolio represents my parents' lifetime savings, and it's a travesty of justice that the 5% penalty is applicable to the $200K, even though the portfolio value today is about $75K (due to currency and stock price depreciation, as mentioned above).

    ReplyDelete
  3. I do think the criminal protections apply. The taxpayer has outed himself and is then subject only to civil monetary penalties.

    Jack Townsend

    ReplyDelete
  4. From what I can tell, the so-called "transition" between OVDP and Streamlined is more of a substitution of the no-penalty benefit of the streamlined for the 27.5% penalty under OVDP. I.e., if you are currently in OVDP (defined as having sent yourt FAQ 24 Letter plus attachments, irrespective of whether you have been accepted, submitted accompanying documents or been assigned an agent), then you have to complete the OVDP process (8 years of revised returns, taxes plus return-related penalties such as failure to file and 8 years of FBARs). However, instead of sending in a penalty computation, you send in the streamlined certification and explanation. If that is accepted, then you get a 906 closing letter that says no penalties. If that is correct, it would seem the "transition" is still within the OVDP and the criminal protection still applies. Thoughts?

    ReplyDelete
  5. I understand that different countries have different views. However, the objective fact is the Swiss banks, including CS, for years have done a massive and intentional raid on the U.S. treasury and on other countries' treasuries as well. (This is not to mention their money laundering activities.) That activity and the sheer scale of that activity has now been outed. And, the Swiss Government certainly knew that was going on, all the while creating the superficial appearance that it was an honest player in the community of nations. All of that was to serve the Swiss' perception of their parochial (aka monetary) interests. And even when it was outed, the Swiss government has delayed at every turn. Why would DOJ have any reason to trust the Swiss?


    If the Swiss would pass a law saying that the banks were directed to turn over to all governments with an interest (including the U.S. and other governments) past information and documents, for example, for 8 years, then that would go a long way toward establishing some credibility showing that the Swiss understand the gravity of its misbehavior and are correcting their ways and making amends.


    And, any belief that such action would violate the Swiss' contract with their depositors is nonsense. The banks and the depositors were in a criminal conspiracy. I doubt that any law -- certainly not U.S. law -- would find anything binding in such a contract incident to criminal conspiracy to keep information from the victims of the conspiracy. Indeed, in U.S. law, such a contract in a criminal conspiracy would itself be illegal, nonenforceable and nonbinding.


    So, the Swiss known to not be credible actors should do something to establish their credibility. DOJ which is in a better position to judge their credibility than I am does not believe that the Swiss have established their credibility.


    Jack Townsend

    ReplyDelete
  6. Given that the new streamlined procedure is pretty much amendments + certification + 5% penalty, when this package is submitted, is it even reviewed and would they send some kind of a closure letter? I didn't recall reading that?


    Also given all these recent changes, should a resident minnow still go ahead & still file 2013 fbar (for the first time) the right way. And then take some time to figure out this new procedure to fix the missed past (interest income & fbars). If one is audited in the mean time because they tried to do the right thing for yr2013, is the streamlined option still on the table? Thx

    ReplyDelete
  7. My concern is whether a person who has sent in the FAQ 24 letter but who has not yet received a preliminary acceptance should await that acceptance before transitioning.

    ReplyDelete
  8. GlobalCapitalismJune 20, 2014 at 9:42 AM

    Part III - In philosophical, theological, or moral discussions, corruption is a spiritual or moral impurity or deviation from an ideal. Corruption may include many activities including bribery and embezzlement...........
    Jack Townsend, the problem I have discussing with you "deviation from an ideal" with regards to the swiss banks and bankers is that you are a representative of a professional guild - TAXLAWYER that imo. should win since 2009 - 5 consecutive Oscars for "corrupt" behaviour .
    It rubs me and many other expats the wrong way when you and some of your colleagues here on the blog have spoken openly about "liberal billing practices".
    With regards to OVDI/P representation your guild/professional organization is guilty , in many, many cases of dishonest questionable practices, morally depraved, lacking integrity, debased in character , acting on mercenary financial motives without regard to honor,right or justice. Since 2009 your profession in the US had a windfall profit/jackpot of > $500mio. Amongst others - putting grandmothers on the government’s conveyor belt to oblivion.
    Jack please next time you look in the mirror remember :
    Power tends to corrupt, and absolute power corrupts absolutely.

    ReplyDelete
  9. GlobalCapitalismJune 20, 2014 at 9:47 AM

    Part IV - The american ignorance and prejudice :
    Jack Townsend, I am not surprised at all about how you present your arguments here and maybe I should quickly explain why - it may sound simplistic and patronizing.
    Americans are not international travelers. American passports in circulation are < 36% - if you take away trips to Mexico or Canada that didn`t require a passport until 2007 this number would drop < 20%. Approx. 65% of USPs have never been abroad (and > 15% have even never left the state they were born in) , again if you take away Mexico and Canada this number rises to > 80% . Mark Twain once said that, “Travel is fatal to prejudice, bigotry, and
    narrow-mindedness.” The planet has never been more interconnected and it
    scares me a little that 65% or 80% if you exclude Mexico or Canada of the citizens of the world’s most influential country have never seen any other part of the world.
    Jack Townsend .... "Wikipedia" and foreign links cannot match real life experience - there are huge cultural differences between the US and Switzerland which do explain many traits and behaviors. Obviously to discuss CH, it requires a thorough study of its history to understand how things have evolved .
    Swiss personality traits are “persisting” characteristics that are consistently demonstrated in spite of changing circumstances or environment. Because they define habitual patterns of behavior, thought and emotion, they provide a foundation for predicting behavior.
    Behaviors, on the other hand, are about the way the swiss conduct themselves –
    what they say and do, and how they say and do it. Personality traits don’t change over time but one can alter behavior traits to a degree.

    ReplyDelete
  10. GlobalCapitalismJune 20, 2014 at 9:51 AM

    Part V - In CH the "system" works : healthcare, pension, education, safety, standard of living, minimum wage etc. Jack Townsend to correct you with regards to motivation , Switzerland is not only the banks and the banks are not only Switzerland. To understand where this is coming from and to realize it has nothing to do with "systemic skullduggery" one needs again to take a detailed look at CH historical political and military neutrality and the specifics of their banking secrecy laws. US law is not CH law.
    The swiss are very pragmatic thinkers and number crunchers, their financial institutions do not want to miss out on future profits arising out of business with the US; and they certainly do not want to screw up their ability to make transfers from and between other foreign financial institutions. The serious and very real privacy issues notwithstanding, the profit motive, is what is at work here plain and simple.

    ReplyDelete
  11. GlobalCapitalismJune 20, 2014 at 9:54 AM

    Part VI - I think it is important to put things into perspective with regards to your current "swiss bashing" that is taking place here and reveals nothing of substance.
    The US facilitates tax havens and US tax avoidance via Puerto Rico and American Virgin Islands:
    http://truth-out.org/news/item...
    The US says “tax havens are okay with the IRS and Treasury as long as they are OUR US tax havens. Like Delaware, the home state of Vice President Joe Biden – http://www.dw.de/nevada-ups-th... or Florida where “…Miami is a massive offshore banking centre, offering depositors from emerging markets the sort of protection from prying eyes that their home countries can no longer get away with…” http://www.economist.com/news/... http://www.publicintegrity.org... http://www.gmlaw.com/florida-t... http://www.lectlaw.com/filesh/...
    There is also Nevada http://www.dw.de/nevada-ups-th... Texas http://www.taxanalysts.com/www... and others http://sbcmag.info/news/2012/m... . US banks facilitating money laundering and profiting from deposits from the proceeds of crime like those from the drug trade are considered ‘too big to prosecute’ http://blogs.wsj.com/washwire/... http://www.bloomberg.com/news/... http://www.theguardian.com/wor...

    Until the US , DOJ and you Jack Townsend apply the same rules to your own "systemic skullduggery" in your backyard I think it is not hard to understand why the US is just looked upon as the big bully who is broke.

    ReplyDelete
  12. I am not familiar with the details but I know that new immigrants to Israel are not taxed on their foreign bank accounts for a number of years following immigration. Thus it is likely that a considerable portion of such foreign accounts are not taxable by Israel and not in violation of Israeli law.

    ReplyDelete
  13. Assuming you are determined to be eligible for strealined, yes.


    If not eligible, have you committed a new crime with your statement that you are non willful ? One would have to be stupid to do that, but people do stupid things ..

    ReplyDelete
  14. Jack curious i am in Pre Clearence (CI part 1) still not cleared yet. Can i transition to Streamline and if so do i inform IRS or is it automatic?
    Thanks

    ReplyDelete
  15. Interesting so if one hasn't filled out Faq 24 but pre Clearence just the letter with one's name social, can he/she move to Domestic streamline process? If so how would one do that?
    Thanks

    ReplyDelete
  16. Under FAQ 7 of the transition rules it seems that if the agent, manager, and/or review committee do not approve the taxpayer's transition into the streamlined program, the person is still in OVDI and still has the choice to either pay 27.5% or opt out.

    Also, according to FAQ 5 of the transition rules, it looks like if the transition is approved the taxpayer is subject to the new in-lieu penalty of 5% of high balance instead of the OVDI regime's penalty of (20% of unpaid taxes, with interest thereon) plus (27.5% of high balance) ... if I am reading this correctly.

    ReplyDelete
  17. Like others, am trying to get a sense of how this plays out but from my reading of the transition rules, once that letter plus attachments goes in, your are technically "in" the OVDP and therefore, have to finish the process. One would think, if the IRS doesn't provide the acceptance, you wouldn't be eligible for streamlined either. Presumably, the best time to submit the certification would be with the returns and payment of taxes. Jack, any other professionals, thoughts on this?

    ReplyDelete
  18. You bring up a lot of good points in Part II. It seems logical to me that if certain Swiss banks sent bankers to the US they also sent them to Brazil, Mexico, Russia, etc. And it would also seem logical that there may have been (and still would be) US bankers traveling to Brazil, Mexico, Russia, etc. In any case, the IRS itself created form W-8 (form and instructions available on the irs.gov) which clearly exempts nonresident foreigners from withholding and reporting to the IRS.
    And I agree with you about the injustice of the one size fits all approach both as to banks and bank customers.

    ReplyDelete
  19. You're probably correct about many lawyers using OVDI for their own self-interest. But to be fair, Jack has been one of the earliest and most vociferous in stating that OVDI is not for everyone and that QD and GF can be viable alternatives in the appropriate circumstances (I hope I am paraphrasing Jack correctly.)

    ReplyDelete
  20. Credit Suisse's CEO Brady Dougan is an American.

    ReplyDelete
  21. Jack, a couple of questions:
    - what criteria do you think the IRS will use to judge wilfulness and non-wilfulness? Will it different from what a court or the DOJ might use, especially in the case of mass enforcement? For example, the IRS FAQs imply that enforcement of the FBAR rules is less of an issue if the taxpayer reported and paid all income a foreign account.
    - do you think the taxpayer interviews will play a part for the determination. They don't seem to be mentioned here but were (as I understand) a part of all opt-out procedures.
    - in terms of committing a crime with respect to declaring yourself non-wilful. What is the intent standard for the certification itself? Given the complexity of the distinction, it would seem difficult to prove someone was intentionally lying? What if they had a genuine belief they were non-wilful? Would they be expected to also know that they weren't wilfully blind either?
    - Finally, do you think the inclusion of "negligence" changes things?

    ReplyDelete
  22. It is never simple with these guys is it? They just can't help themselves. They get trapped in their own tax code regulation complexity and the taxpayer trying to become compliant pays the price!

    Your key line, is "the IRS has essentially substituted a process of uncertainty for the process of uncertainty!"



    Indeed.


    The more you have time to think about what this program might mean, the more you need to THINK about it!


    There is always a trap, a catch 22 somewhere, and compliance is never simple, as these guys love to collect penalties when they can. It constitutes 66% of what they have collected already, and they want more. Sorry to be cynical. I really don't want to be, but as they say, be very very careful when invited into the parlor by the spider.

    ReplyDelete
  23. Indeed. Some Americans are so heavily racist against the Swiss that they don't realize that the actual target of their hatred is an American! These individuals are blinded by their own bigotry.

    ReplyDelete
  24. Isn't there an easier way to differentiate between minnows and whales ? if the tax liability for past 8 years is less than a certain threshold amount.. why not treat them different?

    A person earning less than 100K anually doing a straight bank to bank transfer to support his extended family abroad without realizing the nightmare he's putting himself and his family into..

    Shouldn't punishment fit the crime?

    ReplyDelete
  25. Yes, if Jack dropped the racist Swiss-bashing and switched instead to domg something logical like condemning discrimination caused by FATCA, a US federal tax crime, then he'd be more on track with criticism of OVDI.

    ReplyDelete
  26. Swiss banks? The problem is not the target of your bigotry. Rather, the problem is your bigotry. You must write "some banks" if you wish to become less racist than a Nazi. It is some who do wrong, not all, regardless of how greatly you may wish to hate the Jews, the blacks or any other group.


    In my view, your racism is the core of most evil in the world. You don't believe in fighting against federal crimes. Rather, your mission is to promote discrimination and other crimes caused by generalizations.

    ReplyDelete
  27. Swiss Techie,

    As usual, you overstate whatever case you have to state, so that any thing that is meritorious in your thoughts gets lost. That is why most regular readers don't read your comments. Nor would I, except that I do moderate comments.

    It is sad that you don't have a broader view of reality and history than is reflected in your statement that "your racism [JAT's racism] is the core of most evil in the world."

    Really? I did not know I had that much influence. But then, you do overstate.

    Jack Townsend

    ReplyDelete
  28. To your first question. Don't know...


    To your second question about filing FBAR...


    At the point you have awareness of the problem, then it seems to me you have to file correctly going forward even if you haven't decided quite yet how to solve your past failures. Long ago, (2009) I recognized that moment as an inflection point, where to go past it without compliance moved me from non willful squarely into the willful category, and I did NOT want to cross that line. I filed and amended and then entered the OVDP which may or may not have been the right decision. It certainly cost me, and I am sure there is a drone launched somewhere in my name that my penalties helped pay for.


    Others might see it different, and as Jack as so well pointed out, we have moved from a process of uncertainty to another process of uncertainty. However, I would error on the side of compliance now, and clean up later when you have had a bit longer to consider your options. If you have already filed your taxes for 2013 and don't have an extension until 2014, I would amend right now to reflect your new knowledge. If later you decide to go the New Improved Streamline route, you already have one of the filings done!


    I am sure there is an able attorney round here who probably has a different opinion. But you have 10 days to get the first E-FBAR in, and if I were you, I would do it.


    BTW, be sure you have the latest version of Adobe Reader Version 11, or you will get frustrated when it doesn't work as you think it should.


    Good luck.

    ReplyDelete
  29. The transition rule does not apply to me i think .I have just send fax to pre clearance i haven't send any intake letter or attachment. I think faq 3 might apply to me.
    I think i can just go forward and file under DOmestic streamline i just need some confirmation if its true.

    ReplyDelete
  30. If you do not file for 2013 you have committed a civil and criminal FBAR violation.


    As to whether the package is reviewed, I am sure it is reviewed (that's why they ask for it to be marked separately). How thoroughly reviewed is another matter. I surmise that it might depend on how many applications they get per category. I also surmise that non residents might get off with a lighter review than residents since there is no monetary penalty.

    ReplyDelete
  31. As long as the United States continues its immoral and indefensible practice of citizenship-based taxation then there will NEVER be a safe harbour for long-term expats or accidental Americans. They neither want nor need to become "compliant" - all they want and need is for the United States government to leave them the hell alone. Staying underground therefore remains their only rational choice, unless and until America dismantles its own repugnant Apartheid system and finally subscribes to the worldwide standard of residency-based taxation. Until then, there is nothing the IRS can say or do that will be of any practical benefit or interest to the vast majority of America's diaspora - notwithstanding the agency's now complete lack of trustworthiness and credibility.

    The scourge of CBT represents the last anachronistic vestiges of slavery and the Civil War - time for it to be eradicated once and for all. Here's the pertinent question: is there enough of America left to even care, let alone rise to the challenge?

    ReplyDelete
  32. GlobalCapitalismJune 20, 2014 at 4:56 PM

    JAT’s post points in the direction that most practitioners will recommend, i.e, pay them for advice. For US residents, it might make more sense to do so, but for Americans abroad, it is not always necessary. Pointing out substantial similarity to one of the examples in FS-2011-13, the first Streamlined Program, will likely suffice as a certifiable non-willful reason.
    The IRS has made a big improvement in how non-compliant Americans abroad CAN be handled.

    The benefit of this new program should not be for tax lawyers. It should be an easy and inexpensive way for Americans abroad who want to come into compliance to do so. I think the IRS realizes how much time and money they wasted on minnow cases so far.
    While it is good to be cautious, don’t forget that stressing the complexities of these programs by tax professionals creates fear and brings clients to them and remember, everything the IRS does is designed by lawyers for lawyers and by its nature assures that the advantage goes to the designer.

    ReplyDelete
  33. Michael J. MillerJune 20, 2014 at 5:12 PM

    Jack,


    I applaud your reluctance to place limits on what folks can say, but I think you should strongly consider "censoring" posts that include long, off-topic rants. You've got a great blog here, and I suspect many may be unwilling to wade through the chaff to get to the wheat.


    Feel free to delete this post (or just this sentence) with my blessing if you think that would be best.

    ReplyDelete
  34. Yes, designed by lawyers for lawyers, just like all Federal Statutes. I don't look at Jack's pointing out the pitfalls as trolling for clients. I think it is to educate the motivated self help minnow, so that they are aware of traps they might not have considered.

    I see that Steven Mopsick has also pointed out what the unwary American Abroad should considered. It would be prudent for anyone thinking they want to avail themselves of this NEW "improved" invitation to compliance to read this information. Frankly, if you are dealing with the IRS, even if you don't pay for legal advice and guidance, you HAVE TO learn to think like a lawyer, as they are the ones that design the complex guidelines and FAQs.

    http://mopsicktaxlaw.blogspot.co.nz/2014/06/the-new-streamlined-foreign-offshore.html

    After all these years observing how the IRS operates up close and personal, I still wonder what it is about our culture that insists on making things overly complex and punitive and then calling them "simplified".

    I see the Canadian voluntary program is still available after all these years of IRS offshore jihad, and it is much more simply stated without endless FAQs and overly complex guidelines.

    Could the IRS learn anything from that? No, surely not. I am sure they would hubristically want to teach the CRA how to do it. They are the "International" Revenue Service, after all.

    http://www.cra-arc.gc.ca/gncy/nvstgtns/vdp-eng.html

    Notice the different language used even in the title...

    "Make things right by reporting your past tax mistakes"

    Not "Come Clean for your past tax evasion".

    No calling you a "tax cheat", or blasting you for NOT paying your "Fair Share"

    No threats about criminal action, or putting you in jail.

    Much more civilized feeling to it, isnt there? A softer touch.

    Just make things right for your past mistakes.. (No long discussion about willful or non willful or willful blindness.)

    No threats of taking 50% of your assets for willfully failing to file a 1970's form.

    No threats of $10K penalties per account per year for non willful failures.

    No worst case scenarios of penalty application to scare the bejesus out of you.

    Just "Make things right by reporting your past tax mistakes"

    Compare that tone to the IRS program, and tell me, truthfully, which Tax Bureaucracy would you rather administer your Voluntary Disclosure. :)

    ReplyDelete
  35. I am not a lawyer, but my reading is that someone going from OVDP to Streamlined (foreign resident) still has to pay the accuracy penalty, whereas someone going straight into Streamlined does not pay accuracy penalty.

    However, I have another bigger related concern: Someone in OVDP transitioning to Streamlined seems to have OVDP as a backup if your transition to Streamlined is NOT approved (transition FAQ#8), BUT you still have to sign the certification of non-willfullness for transition into the Streamlined process which seems to contradict the fact that if you are not approved, your case would still governed by OVDP (Transition FAQ#8) which would protect you if your case was deemed willful.

    ReplyDelete
  36. GlobalCapitalismJune 21, 2014 at 3:39 AM

    “Be careful what you wish for . . . “, so goes the saying Part II - In a note of wishful thinking, the FAQs optimistically state, “It is intended that Criminal Investigation will complete its work [on pre-clearance] within 45 days of receipt of a complete Offshore Voluntary Disclosure letter. (see new FAQ 24).
    Please keep in mind the new program requires payment of the whole FBAR penalty with the submission of the amended returns. This is instead of paying at the conclusion of the disclosure when a Closing Agreement is signed with the IRS which can be as long as 2 years !! from the time a pre-clearance request is initiated.
    In addition the quoted language contains a good definition of non-wilful conduct but not willful conduct, perhaps because the IRS assumes we all know what willful conduct is. It means you failed to file on purpose knowing full-well that you were supposed to, or engaged in willful blindness by intentionally failing to inquire and learn of the filing obligations of Americans abroad. The law books and blogs are filled with great definitions of “willful”, most of which focus on a voluntary and purposeful violation of a known legal duty.

    ReplyDelete
  37. GlobalCapitalismJune 21, 2014 at 4:02 AM

    “Be careful what you wish for . . . “, so goes the saying Part III - Consequences of failing to come up with a sufficient excuse. The quoted language contains a good definition of non-wilful conduct but not willful conduct,
    perhaps because the IRS assumes we all know what willful conduct is. It
    means you failed to file on purpose knowing full-well that you were
    supposed to, or engaged in willful blindness by intentionally failing to
    inquire and learn of the filing obligations of Americans abroad. The
    law books and blogs are filled with great definitions of “willful”, most
    of which focus on a voluntary and purposeful violation of a known legal
    duty.

    ReplyDelete
  38. GlobalCapitalismJune 21, 2014 at 4:05 AM

    “Be careful what you wish for . . . “, so goes the saying Part IV - At first glance, it looks as though the IRS should get an “A” for effort with the new Streamlined Disclosure Procedure, but overseas Americans need to be very careful about what they write on the Streamlined forms
    if they have no reasonable basis to blame their return preparers for not knowing what an FBAR was. To “just put something down” and hope it flies with the low level clerks at the IRS who will be reviewing these papers will be most likely a naive and dangerous strategy. As we get farther and farther away from 2009 when the first OVDP was announced, it is going to be harder and harder to convince the government that a presumably knowledgeable and enlightened American
    citizen abroad “just found out” about CBT and the requirement on the books since the 1970s.

    The "SERVICE" is going to get an overwhelming number of applications under the new Offshore Streamlined Procedure and they do not have the people power to question everyone who looks suspicious or lacking in credibility.

    ReplyDelete
  39. Anon7,

    You raise a good question. I presume that, if the IRS thinks the taxpayer is wllful based on the information it has when acting on the request to transition from OVDP to Streamlined, it will not approve leaving OVDP. That will then put the taxpayer to the choice of opting out of OVDP if he thinks hecan get a better result on audit. But the IRS's determination to not let the taxpayer go to Streamline should be a tip off that the result may not be better on opt out.

    Assuming the IRS has made the call on willfulness correctly when declining the request to move to Streamlined, the taxpayer is better off just to stay in OVDP and not opt out unless he is pretty sure he can dodge the willfulness bullet on opting out.

    So, this process of denying the move from OVDP to Streamlined may function as an act of grace for taxpayers who are seeking the Streamlined result improvidently.

    Jack Townsend

    ReplyDelete
  40. Michael J. MillerJune 21, 2014 at 8:09 AM

    As I read the transition relief, the benefit of being already in OVDP and seeking to transition into the streamlined is that the attempt appears to be risk-free. If the IRS disapproves the attempt, you're still in OVDP. This seems like a HUGE benefit compared to opting out, since an opt out puts you outside of OVDP and thus at risk of greater civil penalties.

    ReplyDelete
  41. Michael,

    When I first read the new procedures, I guess I assumed that the IRS would deny the transition to Streamlined if the IRS thought the taxpayer was willful, which would leave the taxpayer in OVDP to get the benefit of the 27 1/2% offshore penalty. If the IRS uses its approval predicate in that way, then that is good.

    However, there is an analogous approval required for the OVDP opt out. My experience is that that approval may be given even if the IRS already has information that will lead the IRS to assert the willful penalty on opt out.

    In other words, the IRS's approval of the move from OVDP to Streamline would not be necessarily a signal that the IRS will not find willfulness, in which case the taxpayer has just jumped into a lot of stinky stuff.

    Jack Townsend

    ReplyDelete

Please make sure that your comment is relevant to the blog entry. For those regular commenters on the blog who otherwise do not want to identify by name, readers would find it helpful if you would choose a unique anonymous indentifier other than just Anonymous. This will help readers identify other comments from a trusted source, so to speak.