So many citizens got caught off guard with the recent attention the Internal Revenue Service is giving holders of offshore bank accounts. So what to do? The last offshore voluntary disclosure initiative (OVDI) ended on August 31, 2020. These are the four options still available.
The first option available is to roll the dice and pray for a miracle. The advantage is that it costs nothing to do, and there is certainly a likelihood of greater than zero, no matter how small, that the taxpayer can get away with the crime. The disadvantages are that if caught, the penalties are severe. In both monetary cost and in emotional drain of being charged with a federal crime. Even if found not guilty, a criminal trial is still incredibly costly.
This is an important caveat. The chances are that the Internal Revenue Service does not discover hidden accounts gets smaller and smaller. Why? Because in order to compete for American customer and capital, foreign banks are coerced into complying with the irs. That's right --- foreign banks take their marking orders from the irs as well. So if the Internal Revenue Service wants information on American holders of foreign accounts, the irs will get that information. The IRS will also run names of other individuals it suspects of being American citizens but who opened their accounts with foreign passports. The IRS has incredible investigative powers --- powers it never had before.
Option 2: Renounce citizenship; Leave the country. Do you want to say goodbye to the Internal Revenue Service? There is only one way to do it. That is, to renounce one's citizenship and no longer be a American citizen. The process is not as easy as you may think. Also, a requirement of proper expatriation is that you have to be in compliance with all tax laws and pay an expatriation tax in order to make it official. If you fail to expatriate properly, you would still be subject to the jurisdiction of the American, meaning nothing was accomplished and you are still subject to all the requirements of the tax code. Expatriation may make sense to avoid future tax liabilities , but you have to disclose the existence of unreported financial accounts first.
This third way is to simply file amended returns and not mention to the Internal Revenue Service that you are seeking to come clean. This is known as a "quiet" or "soft" disclosure. The advantage is that there is little upfront cost to this. But the disadvantages are that you may give the IRS a very handy clue to charge you criminally, and if you are caught, you are experience a pain of high penalties and a nasty and real possibility of criminal charges.
There may be serious problems with this alternative. One major drawback is that the Department of Justice states that it has begun criminal proceeding against people who attempted to utilize the "soft" disclosure process.
The "soft" disclosure option is incredibly risky for several reasons. One reason is that a soft disclosure does not remedy the problem of the taxpayer's failure to report the bank account on the FBAR; as a willful failure to file an FBAR is a criminal charge. As a result filing a quiet disclosure 't go far enough to eradicate any likelihood of criminal investigations. In fact, the amended return might --- well here's the massive problem with this option --- it does nothing about the failure to FBAR forms. There are still criminal and civil investigations that may be pending for failing to file an FBAR, but simply give the IRS a very handy to find you.
The forth option is a pre-emptive disclosure and subsequent negotiation of the penalties. This is the best option. Even though the time to file under the 2020 OVDI has expired, there is time to act. The only deal that expired on August 31, 2020 was the particular standards terms of the 2020 disclosure. The 2020 OVDI was simply a pre-agreed upon penalty arrangement. The Internal revenue service always welcomes voluntary disclosures.
There are only two requirements. Initially, the taxpayer can not be under audit. Also, the source of the funds in the foreign bank accounts can not be from an illegal source. Like drug trafficking or money laundering.
If someone is still questioning what the suitable course of action is, it is imperative that they only speak to a qualified offshore tax law firm. The attorney-client privilege only applies when speaking to an attorney. The Internal Revenue Service can subpoena a CPA or nearly anyone else to testify against a taxpayer. Kenneth Gruchot