tag:blogger.com,1999:blog-1519969502186924526.post8477012883782579795..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: Report on Webinar on Opting Out and Litigating FBAR Penalties (1/17/13; with Caveat Update on 2/1/13)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger17125tag:blogger.com,1999:blog-1519969502186924526.post-18001662653248625822013-02-24T15:50:15.061-06:002013-02-24T15:50:15.061-06:00That is the same thing I have found to. I could g...That is the same thing I have found to. I could get to the Moskowitz site, but the download would not start...I have tried several options. The one that finally got it for me, was right clicking, and then choosing the option "save link as..." That got it to download.Just_Me_Alsonoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-49817241777883833772013-02-21T15:04:01.033-06:002013-02-21T15:04:01.033-06:00The document can also be accessed through this lin...The document can also be accessed through this link:<br /><br />http://taxattorneynews.moskowitzllp.com/post/2013/02/20/A-Closer-Look-at-the-Non-Willful-FBAR-Penalty.aspx<br /><br />Hope it works this time.<br />Best regardsAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-58313858980955977982013-02-21T14:38:55.740-06:002013-02-21T14:38:55.740-06:00Different Anonymous here. I just tried the link a...Different Anonymous here. I just tried the link and it works fine. I use Mozilla Firefox browser, don't know if that makes a difference.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-29352345492602849802013-02-14T00:03:34.132-06:002013-02-14T00:03:34.132-06:00I thought over time, enlightenment might come, but...I thought over time, enlightenment might come, but I guess not! It is hopeless with these guys, it seems.Just_Me_Alsonoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-45389961852953012182013-02-13T14:14:59.673-06:002013-02-13T14:14:59.673-06:00Would you mind commenting on the FBAR mitigation g...Would you mind commenting on the FBAR mitigation guidelines that are listed in the IRM?<br /><br />What don't anyone mention them?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-65575638030438337832013-02-13T12:49:00.936-06:002013-02-13T12:49:00.936-06:00So, you thought that all McDougal was saying was t...So, you thought that all McDougal was saying was that the agent would simply spew back the willful 50% numbers for all years? He could have said that, if that is what he wanted to say. And he should have said that rather than what he is quoted (and as I remember) as having said.<br /><br />Thanks, as always, for your thoughts.<br /><br />Jack TownsendJack Townsendhttp://www.tjtaxlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-88386740951504813612013-02-13T11:05:57.623-06:002013-02-13T11:05:57.623-06:00I initially had difficulty seeing why Jack was so ...I initially had difficulty seeing why Jack was so stunned by Mr. McDougal's follow-up comments. My thought was that Mr. McDougal didn't really offer anything substantial during the Webinar beyond, hey, ask the agent what he thinks might happen in an opt out (my paraphrase). Any answer by the agent would not be a commitment, and would be subject to modification by the agent's manager, technical advisor, IRS counsel, etc. Thus, what Jack termed to be Mr. McDougal's "startling disavowal" didn't appear as such to me because I didn't get the impression that Mr. McDougal offered much initially.<br /><br />As it turns out from opt-outs that I am handling, and this has also been corroborated by other attorneys who handle opt-outs, the agents are being very reticent about what might happen in an opt-out. The agents will agree to a call about opt-out, usually with an IRS manager present on the call, but they will offer little apart from informing us that (a) the taxpayer will be subject to a full examination (not merely a certification as to accuracy), (b) the agent will examine issues like intent, what the taxpayer knew or should have known, educational background, etc. (such issues not being relevant in the certification), and (c) the maximum penalties may apply. As Jack wrote, practitioners know all of this already. The agents are offering little information about the big questions, which are: (1) Does the agent think that willful penalties might apply, or only non-willful?, and (2) If non-willful, then would the penalties be per year, or per account per year?<br /><br />The taxpayer thus is required to make an irrevocable decision to opt out, without knowing what penalties he faces in an opt out.<br /><br />And thus, while in principal Mr. McDougal's recommendation of having a "heart-to-heart" with the agent might be a good idea to get a feel for how the opt out might progress, in practice, the discussions are far from a "heart-to-heart" and have not proven to be helpful. The reticence of the agents and their citations to the maximum possible penalties do not really help taxpayers in their decisions of whether to opt out.Asher Rubinsteinnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-12056720375934205542013-02-08T14:50:06.684-06:002013-02-08T14:50:06.684-06:00As Nina Olson said in her report, by answering wit...As Nina Olson said in her report, by answering with the maximum penalty, the IRS is actually pressuring the taxpayer into paying the OVDI in lieu of penalty. This IS coertion - not just infringement of taxpayers right as she mentioned in her report. They're playing a dangerous game of poker.<br />Why don't they at least mention the FBAR mitigation penalty guildelines based on the amount of the accounts that is listed in the IRM?<br /><br />This is depressing. They don't listen to the tax payer advocate, and do exactly the opposite of what she suggests in her report, erroding more and more taxpayers confidence in the system.<br />They might as well discontinue the program and let the willful people directly deal with the CIs in a traditional VD program. I am totally disgusted in how the system works. This is a shame. This should not happen in the US. There is no justice anymore.<br />Is there anything tax lawyers associations can do to make the IRS see that what they're doing is wrong.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-27712994572979020612013-02-07T12:15:33.532-06:002013-02-07T12:15:33.532-06:00Hi Jack
Regarding your 2/1/2013 update to #6 abo...Hi Jack <br /><br />Regarding your 2/1/2013 update to #6 above, I had an even stronger exchange recently with an agent. the agent I am working with told me that their administrative guidelines preclude discussion of opt-out consequences and whether the taxpayer would qualify for the Streamlined procedure UNTIL the taxpayer has actually opted out. This is directly contrary to Mr. McDougal's comments.Roy A. Berghttp://www.moodystax.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-12777318042997051392013-01-23T07:56:28.977-06:002013-01-23T07:56:28.977-06:00Section 7609(e)(2) that "if the IRS and the s...Section 7609(e)(2) that "if the IRS and the summonsed party do not resolve compliance with the summons, the civil and criminal statute of limitations for the taxpayer with respect to whom the summons was issued is suspended from a date six months after the summons was issued until compliance is finally resolved." Section 7609(i)(4) requires the John Doe summonsee is required to notify the ultimate taxpayer(s) – the “John Doe(s)” – of the statute suspension, but the statute is still extended whether or not the John Doe summonsee gives that notice. So, if the system is working correctly, the ultimate taxpayer(s) will know of the statute extension potential. There is no way of being certain, however, about what constitutes compliance so as to lift the suspension period.<br /><br />You might review these provisions here: here: http://www.law.cornell.edu/uscode/text/26/7609Jack Townsendhttp://www.tjtaxlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-41628363042997863642013-01-22T21:02:09.661-06:002013-01-22T21:02:09.661-06:00Hi Jack, With regards to point #8, does this mean ...Hi Jack, With regards to point #8, does this mean that if past non compliance was with any bank which got the john Doe summons, then the statute for FBAR (6 years) will never expire?Anonymous123noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-90493789074893973932013-01-17T21:03:11.701-06:002013-01-17T21:03:11.701-06:00Thank you for the follow up. I really appreciate i...Thank you for the follow up. I really appreciate it.Elienoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-80742739793016906352013-01-17T20:42:07.263-06:002013-01-17T20:42:07.263-06:00Elie, a reader explained to me by email that the 1...Elie, a reader explained to me by email that the 1997 date is as follows:<br /><br />David Breen referred to the 1997 date in connection with how far the IRS can look back for nonfiling of Forms 5471, 3520, etc… The SOL provision allowing for the statute to remain open in case were such forms are not filed is contained in section 6501(c)(8), which was amended in 1997.Jack Townsendhttp://www.tjtaxlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-23291550732738805412013-01-17T17:49:09.956-06:002013-01-17T17:49:09.956-06:00Thank you very much. I really appreciate it.Thank you very much. I really appreciate it.Elienoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-39941085275658666812013-01-17T17:40:37.167-06:002013-01-17T17:40:37.167-06:00The IRS cannot legally assess an income tax after ...The IRS cannot legally assess an income tax after the statute has expired. The taxpayer cannot waive an expired statute of limitations for income tax. These rules are based on the wording of the statute.<br /><br />But, for the FBAR penalty, there is no similar textual requirement as to waiver at all. There is simply a statute of limitations. The IRS takes the position that, like other statutes of limitation (other than the income tax), statutes of limitations is an affirmative defense that can be waived. So, when the participants in OVDI signed the FBAR consent form, they waived those statutes of limitations.<br /><br />I don't know what the 1997 date means, other than, as I recall, someone may have used the date as an example of the IRS being able to go back to pre-2003 years if the taxpayer opts out and fraud is involved for an earlier year (such as 1997).<br /><br />Jack TownsendJack Townsendhttp://www.tjtaxlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-15126881448590444742013-01-17T14:31:12.171-06:002013-01-17T14:31:12.171-06:00Jack - all these topics have been discussed in det...Jack - all these topics have been discussed in detail on your blog. If anyone has any question about any of the above topics they can search through your blog and find a wealth of information on them.anon5percentnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-2910297065075872772013-01-17T14:26:54.960-06:002013-01-17T14:26:54.960-06:00Jack-
There was an interesting discussion regardin...Jack-<br />There was an interesting discussion regarding the IRS's position to assess the FBAR penalty per account instead of per FBAR, I don't recall which of the Government lawyers it was, but one of them mentioned that the basis for the government's position is that the statute mentions "account" in the singular. This was countered by Ms. Ciraolo that the singular use of "account" is only in willful penalties but not in non-willful penalties. Additionally, she argued that the "stacking" of penalties runs contra to the policy of limiting the penalties as evidenced by capping the penalty at $10,000 per year. These points were not addressed by the Government. <br /><br /><br />There were three different dates mentioned in the context of the statute of limitations for FBAR penalties. The first was the 6 year Statute. The next was the 8 years that the service requires the taxpayer to waive the right to the affirmative defense. The third date mentioned was "1997". I am not clear how this date comes into play at all and I was left waiting on the phone to ask for clarification when the program ended. Any clarification on how FBAR penalties can be assessed as far back as 1997 would be greatly appreciated. <br /><br /><br />Lastly, can you clarify how the government can assess a penalty past the statute of limitations? What basis does the government have in making the assessment pass the statute expiration? Even if I waive my right to raise the Statute as a defense, hasn't the "grant" to the government to assess these penalties expired?Elienoreply@blogger.com