Saturday, July 20, 2019

Expiring ITINs? Here Is What You Should Know!

Metheora, Greece (Image via Pixabay)

Hope summer is going well for you in the Northern Hemisphere. Out here in the United States Mid-West region, we are experiencing a heat-wave this week and have been asked to take proper precautions and stay indoors. Perfect time to work on a blog-post I think, would you agree? 

Many come to the United States on various work Visas and eventually bring their spouse and children to join them. Now these family members may not qualify for Social Security Numbers {SSN} and they have to apply for an Individual Taxpayer Identification Number {ITIN} so the member of the family here on the work visa and consequentially an SSN can claim dependency credits and also be able to file jointly on their U.S. tax return with their spouse if conditions have been met and they qualify.

The 2017 Tax Cuts and Jobs Act now requires all applicants for Employer Identification Numbers to have either a Social Security Number or an ITIN. Non-resident individuals doing business in the US as a partner in a US partnership also require an ITIN to file their US tax returns and to be able to claim back taxes paid on their behalf by the US partnership.

An ITIN is a very important nine-digit number starting with a 9, therefore an individual who has an ITIN needs to be aware of the rules and regulations governing it. The last big change that was made to the ITIN Rules was back in August of 2016 with the PATH Act. The PATH Act ITIN provisions were detailed in Notice 2016-48 here

So what's new on the ITIN front for 2019? 

All ITIN's not used on a federal income tax return at least once for tax years 2016, 2017 or 2018, will expire on December 2019. Additionally, all ITIN's with middle digits 83, 84, 85, 86 or 87 will expire at the end of 2019. 

The Internal Revenue Service will send out a CP48 notice that you need to renew your ITIN if you have previously filed a tax return with an ITIN with the above middle digits but not renewed it. 

What to do if you or a family member has an ITIN with middle digits 83, 84, 85, 86 or 87? You can immediately take action to renew your ITIN if you or your family member has to file a tax return for 2019 in 2020. You do not have to wait to receive the CP48 from the IRS. If you happen to receive the notice after you have initiated the renewal, the IRS asks that you ignore the notice. 

Currently Expired ITINs: 

                     Tax Year                                                           Middle Digits

                     2016                                                                  78 and 79
                     2017                                                               70, 71, 72 and 80
                     2018                                                          73, 74, 75, 76, 77, 81 and 82

If you have an ITIN with the above middle digits, and expect to have a filing requirement in 2020, you can renew your ITIN at anytime. 

ITIN used only for informational purposes: ITINs used by third-parties to report information to the IRS but which are not used to file a tax return need not be renewed. But if the person with this ITIN needs to file a tax return, the ITIN needs to be renewed.  

Spouses and Dependents With Expired ITINs: Spouses or dependents who reside outside the US must renew their ITIN only when filing an individual tax return or when they are claimed on someone else's tax return as an allowable tax-benefit. Hence, the Form W-7 will have to be attached to the federal tax return at the time of filing.

Process To Renew ITIN: Use one of the following methods.

  • Mail Form W-7 long with original identification documents or copies certified by the agency issuing them to the IRS address in the form instructions. The IRS will review and send all identification documents within 60 days. OR
  • Use one of the many Certified Acceptance Agents (CAAs) who are authorized by the IRS to apply for an ITIN. CAAs can certify original documents including birth certificates for primary taxpayers, secondary taxpayers and dependents. This can save the applicant from the rather risky need to send original documents to the IRS. There are many CAAs located around the world. Information can be found on the IRS' website. OR
  •  Call and make an appointment at a designated IRS Taxpayer Assistance Center located nearest you.
Note: The IRS will not accept passports without a date of entry into the US as a stand-alone identification document for a dependent from a country other than Canada or Mexico or dependents of military members overseas. Additional documents can be provided along with the passport to prove US residency such as US medical records or US school records. 

If you have more questions regarding applying for or renewing your ITIN, please contact our office. We do not recommend doing this on your own without a tax professioal's guidance. 

 Do not forget to read my disclaimer here. Please consult an Enrolled Agent for your unique tax needs. More of my contact information is on my website,



Thursday, May 30, 2019

A Death Knell On the Offshore Voluntary Disclosure Program: Part II

Image by Paulina White at
Twenty nineteen in the Nadig household was to be the year of the great expedition to Machu Pichu. Our plans had to be shelved unfortunately. Who knew coordinating schedules for two kids in college would be more complicated than lugging diaper bags and strollers around airports! So here we are, enjoying a quieter than expected spring with some mental calisthenics thrown in figuring out the new OVDP rules to keep myself busy!  

It has been exactly a year to the day Part I of this post went up. The Internal Revenue Service decided to put an end to the Offshore Voluntary Disclosure Program {aka OVDP} on September 28th, 2018. That was just a precursor of the tumultuous changes to come at the Internal Revenue Service. 

In November of 2018, the IRS released a Memorandum with updated procedures regarding voluntary disclosure both domestic and foreign submitted to them after September 28th, 2019. Notwithstanding the closure date, the IRS has the discretion to apply the new procedures to domestic voluntary disclosures received on or before September 28th, 2018. 

Procedures Under the New OVDP: 

1.   All taxpayers, whether offshore or domestic need to submit a preclearance request on Form 14457 for screening to Criminal Investigation {CI} to determine eligibility. This can be requested via Fax or Mail to the IRS Criminal Investigation unit in Philadelphia. 

2. As soon as the CI grants preclearance, the taxpayer must promptly submit all non-disclosed information for voluntary disclosure to CI along with a narrative regarding facts and circumstances for past non-compliance on Form 14457. Once CI has accepted a preliminary preclearance, the taxpayer will be notified via a letter and the CI will then forward the information to LB&I Austin. CI will not process tax returns or payments.  

3. LB&I Austin will establish the most recent tax year covered by the voluntary disclosure and route the case to the appropriate Business Division and Exam function for civil examination. The taxpayer can remit payment to the LB&I before the case is assigned. The IRS will not require taxpayers to provide additional documents to LB&I Austin. 

4. Examiners at this stage will determine proper tax liabilities and applicable penalties. Taxpayers are expected to be prompt and cooperative. The IRS expects that all taxes, interest and penalties will be paid by the taxpayer for the disclosure period. Examiners may request CI to revoke preclearance for non-cooperation. 

5. The Disclosure Period is now six years. The examiners has the discretion to expand the period to include all non-compliant years. 

6.  Penalty for underpayment of tax is now 75 percent (75%). This civil penalty for fraud under §'s 6663 and 6651(f) will be assessed to the tax year in the disclosure period with the highest tax liability. The Memorandum states "limited circumstances" under which these penalties can be expanded to other years in the disclosure period. 

7. There will be willful FBAR penalties imposed on taxpayers. This penalty in most cases will be 50 percent (50%) of the highest aggregate balance of all unreported balances during the disclosure period. This penalty is discretionary and an examiner may recommend a higher or lower penalty not exceeding 100 percent (100%) of the highest aggregate balance. The taxpayer may request that non-willful penalties be imposed if they can provide convincing evidence. We do not know at this time what the success rate has been on taxpayers' requests for non-willful penalties. 

8. Penalties to file other information returns will not be imposed automatically. This may be resolved by agreement with the taxpayer. The examiners have the discretion to impose these penalties if they deem necessary. 

9. The taxpayer has the right to go to Appeals if they are unable to reach an agreement with the IRS. At this time there is no guidance what the taxpayer's recourse is if they are unable to reach an agreement with the examiner. Experts weighing in on this expect that the taxpayers will retain protection from criminal liability as under the old OVDP. 

10. Once an examination is concluded, we assume there will be a closing agreement via a Form 906, and there is finality for the disclosing taxpayer on future prosecution on this income. 

When the old OVDP was terminated, many tax professionals such as myself were wondering what the new rules would entail. These procedures have somewhat eased my fears. Taxpayers who do not fit into the requirements for Streamlined Filing Compliance Procedures or Delinquent FBAR Submission Procedures or Delinquent International Information Returns still have another option to bring their undisclosed foreign bank balances and income into US Tax Compliance. 

My biggest concern with the new procedures is that unlike under the old OVDP, we have no way of predicting what the final cost of voluntarily disclosing non-compliant accounts. Under the old OVDP, the size and number of penalties were known. This helped the taxpayer to set aside the cost of going into the program. Under the new procedures, the IRS has large discretionary powers for assessing penalties. 

As always I advise you to consult experienced Tax professionals to calculate their exposure and determine if this is a viable or appropriate option for you. Although more onerous than the previous one, the new OVDP is still the best option for you to minimize criminal exposure.   

Bibliography: Memorandum  LB&I-09-1118-014; LB&I AUSTIN stands for Large Business & International Unit in Austin; IRM; IRS FAQ's On Closing 2014 OVDP 

Thursday, April 25, 2019

Plans To Retire Abroad? Here's What You Need To Know!

Picture Courtesy: Bilbao, Spain Train Station
Twenty Eighteen was a tumultuous year my friends and unfortunately my blog posting went on hiatus. I have a perfectly good excuse I must say, it was my big FIVE-OH birthday last year!! Yes, yes, I did hit that number in spite of my various attempts to stop Father Time! Besides starting a copious collection of AARP invitations promising me travel bags and blue-tooth speakers if I joined their ranks, I traveled a lot in 2018. One trip over early Fall was to Bilbao, Spain. We took the train from Madrid to Bilbao, the first thing to greet us at the Train Station was the stained glass facade (in the picture above), I was in Basque heaven after that, I was loathe to leave but work beckoned back home after a lovely week of the famous Bilbao hospitality. That got me wonderful it would be to retire abroad! Wouldn't it? 

We have pre- and post-immigration planning services available for clients planning to move for work or retire outside the United States. Many move because they believe their retirement dollars stretch further, some move for the warmer climates and many move back to their birth countries to be closer to family. Immigration planning helps the taxpayer understand the tax implications of moving abroad and planning for it. 

1. Continue Filing Taxes in the US: First thing to remember about retiring overseas that the United States has a Citizenship-Based-Taxation regime or CBT, so your US tax filing obligations do not stop just because you moved abroad. The income to be declared on your US tax return should include your world-wide income. Your filing deadline maybe June 15th or April 15th depending on the category on income you have. All foreign bank accounts with highest balances over $10,000 should also be declared via Form 114. More about that in my blog post here

2. Retirement Income From the U.S: You might have various sources of income from the United States including but not restricted to Rental Income, Interest, Dividends, Pensions, IRA Distributions etc. You will have to make arrangements so you will have access to your income even though you are not a resident of the United States. These funds will have to be repatriated to your country of residence. If you have reached qualifying age, you can also apply for and receive Social Security Benefits. More information about receiving Social Security benefits while living abroad is on the SSA website, it is a tool that helps you figure out what your eligibility is. 

3. Getting Back To Work While Abroad: Let's say you are one of those lucky people who gets a second shot at working after you move abroad, and you are paid a salary. You may be eligible for the Foreign Earned Income Exclusion {FEIE}. There is a primer on this topic here on my blog. You may be able to exclude some or all of your foreign earned income from being taxed by the U.S. The 2019 FEIE amount is $105,900 which means you will be able to exclude the first $105,900 from being taxed in the U.S. 

4. Tax Treaty Provisions Or Double Tax Avoidance Agreements: The United States has entered into Tax Treaties with many countries around the world. This means that if you live in a country which has a tax treaty with the U.S. you may be able to take advantage of it's provisions and avoid double taxation by both countries on the same income. Under these treaty provisions, you may be able to take credit for taxes paid in either country. Some countries have Totalization Agreements with the United States and that helps you to also avoid taxation of your Social Security benefits earned in either country. 

5. Filing State Taxes: Sometimes, the U.S. State where you had residence before you moved abroad may still require you to file tax returns. This is especially true if you have rental properties in certain states in the U.S. Many U.S. states do not recognize Tax Treaties or offer foreign tax credit. You may have to establish residence in a non-taxing U.S. state tax before moving abroad. 

6. Some Challenges Moving Abroad: From the many, many online forums for Expat Americans and many expat clients, we have learnt that the Foreign Accounts Tax Compliance Act {FATCA, more in my blog post here} has caused them a lot of headaches in conducting their business with financial institutions in their countries of residence. Many financial institutions, brokerage firms, and retirement fund administrators in the United States do not allow online access from outside the country. This double whammy for a lot of people who move abroad is definitely a huge challenge. Navigating these hurdles requires knowledgeable support in the United States while you live abroad.  

7. Relinquishing Your U.S. Citizenship or Surrendering Your Green Card: The challenges in dealing with one's financial life in 2 countries causes many expats to take drastic steps to relinquish their citizenship or surrender their Green Cards. More details in my blog post here. This is indeed a huge step and one must not to try to do this on their own. 

Moving abroad is a huge endeavor and one must make sure they have worked out a plan with their tax adviser before they undertake this. Till then happy travelling folks, may you satisfy your wanderlust and find a dream retirement home if you are looking!  

Consult with a Circular 230 Tax Professional for your unique tax needs. Please read my disclaimer here. If you have any questions regarding this issue or other tax matters, all of my contact information is on my website,

Thursday, February 28, 2019

Interesting Court Cases: When Your Friend Tells You Not To File an FBAR!

Picture Courtesy:

Clients tell me many times about how they heard about disclosing their foreign bank accounts because their friends were doing it. It is funny when I am asked why should they disclose their foreign bank accounts when their friends are not doing that. I am reminded of those times when as kids we would ask our parents for permission to something mundane, and be subjected to an inquisition! The fun is because I get to say something most Indian kids grow up listening to their mom say it many times when , "Would you go jump in a well if your friend did it?" The angst is lost in translation but you get me, don't you? 

Something along similar lines must have happened with the Horowitzes. Peter and Susan Horowitz were US Citizens living in Saudi Arabia between years 1984 to 2001 and they opened a bank account in Switzerland with UBS. The Horowitz's never closed the account on their return to the US. By 2008, the account had grown to $2 million. Towards the end of 2008, Peter closed the account and tried to open a joint account with his wife at a bank named Finter. But the bank did not add her on because she was not present, hence the account remained in Peter's name only till 2009 when Susan traveled to Switzerland and her name was added to it. 

The Horowitzes' tax returns were filed using tax summaries sent to their US tax preparers. Peter never asked his tax preparers if he needed to disclose this bank account. Their tax returns were filed every year with the questions on Schedule B asking if they have foreign bank accounts being answered with a "No".

A long story short, the IRS held that willfulness penalty applied with respect to both taxpayers for 2007 and with respect to Peter for 2008. 

The Horowitzes testified that they had conversations with other expatriates living in the United States and they believed that income earned in Saudi Arabia was only subject to taxes in Saudi Arabia. Peter said he did not believe he had FBAR filing requirements for 2007 and 2008, Susan said she did not know what an FBAR was. The tax accountants never asked them if they had accounts overseas nor did they explain the Schedule B questions regarding the foreign account questions. The Horowitzes argued that their friends told them they did not need to pay taxes on interest in their foreign accounts. 

The Court argued that it did not have any information from which the court could assess whether it was reasonable for them to accept what their friends said as legally correct. Their friends' views did not override the clear instructions on Schedule B. It was also deemed that the very fact that the Horowitzes were having conversations with their friends about the taxability of interest on their foreign accounts meant that they were aware about their compliance needs. They should have had the same conversation with their accountants!  The Court inferred based on these facts willful blindness could be inferred. 

Moral of the story: If you have foreign bank accounts, please have conversations with your tax professionals on HOW TO disclose the accounts not conversations with your friends on HOW NOT TO. If your tax professionals are not aware of your compliance needs, find an Enrolled Agent on the NAEA Find a Tax Expert Directory who is an expert at expatriate taxation. And definitely do not try to do this yourself. 

Bibliography: Horowitz, (DC MD 1/18/2019) 123 AFTR 2d ¶2019-362

Consult with a Circular 230 Tax Professional for your unique tax needs. Please read my disclaimer here. If you have any questions regarding this issue or other tax matters, all of my contact information is on my website,


Tuesday, January 22, 2019

What's New on the 2018 Form 1040NR: Small Changes, Big Impact!

Picture Courtesy:
Do train stations make you wistful? My husband and I lived on the East Coast when we first moved to the US and sometimes took the train from Baltimore to DC. Passing the town of Riverdale, MD got us all excited because like every other Indian teenager of our generation, we had grown up on a rather unhealthy dose of Archie comics! 

Well, it was around this time that I discovered Tax Law and found it quite fascinating. I started to prepare our own taxes which involved Form 1040NR's, India-US Treaty knowledge and the rest is rather choppy history which is reserved for another post because today we need to talk to about this 2018 Form 1040NR. 

For the longest time ever this foreign cousin of the good ol' Form 1040 had a rather mundane existence, nothing usually changed on it. Tax geeks got all excited when the Form 1040NR finally entered the digital age in 2017, we had hardly settled down from that when the BIG 2017 Tax Reform happened and everything pretty much is different now. 

Just so we are clear, the Form itself has not changed much but if you have to file the NR, your bottom-line will change due to the following: 

1. No Personal Exemption: First off, the personal exemption has been removed, so that nice $4,050 that reduced your taxable income? Not available to you anymore.If you file a Form 1040NR, your taxable income will be higher. 

2. Standard Deduction is Higher: Now this is the twist in the Treaty tale I was talking about earlier, the higher standard deduction will only help students and researchers from India. Why? Because they are the only non-resident aliens who are allowed to claim the standard deduction on their Form 1040NR per the India-US Tax Treaty. Students/ student-trainees/ researchers from India on an F1/ J1 visa will be able to lower their taxable income. All others see #3. 

3. Itemized Deductions Have Changed: The great Mahatma Gandhi marched to protest the Salt Tax imposed by the British Empire, this was a turning point in the Indian struggle for independence from the British. There was no such momentum with the SALT cap protest by the people in the US and many states. SALT here my dear readers stands for "State And Local Taxes". Those non-resident aliens who cannot take the standard deduction ( See #2), had the opportunity to write off state and local taxes they paid as part of the Itemized Deductions on Schedule A, that is now capped at $10,000. 

I have not seen many foreign students or researchers earn a lot of money (been there, done that), so the above may be non-consequential to most. However, adding salt to injury (too much?), Miscellaneous Deductions have been removed from Schedule A as well.  

Any personal casualty loss or loss from theft is also no longer allowed unless they occurred in federally declared disaster areas. 

Some solace: These disallowances are temporary through 2025. 

4. Moving Expense Cannot Be Deducted Any Longer: So you are a non-resident alien who moved to the United States in connection with your employment or are self-employed? You can no longer deduct your moving expenses to the US. You can now deduct your moving expenses only if you are a member of the Armed Forces. 

The 2017 Tax Reform has many changes and many forms and instructions are still work-in-progress. The Instructions to the 2018 Form 1040NR at the time of posting still has a draft watermark. Do not attempt to do this by yourself, hire a tax professional to help you navigate the Law. 

Consult with a Circular 230 Tax Professional for your unique needs and make sure your questions are answered. Please read my disclaimer here. If you have any questions regarding this issue or other tax matters, all of my contact information is on my website,


Friday, August 17, 2018

Why Is Everyone Talking About the 20% Qualified Business Income Deduction?

Streets of Barcelona, Spain PC:
2018 has been all about Tax Reform, you would probably have to be living in a cave in the United States if you did not hear about this. Or you could be this guy "who knew too little". A lot has already been said about the reform, today we focus on the brand new section that came out it.  

We really need to talk about the biggest change that came out with the Tax Cuts and Jobs Act of 2017: Section 199A. This section allows owners of flow through entities such as Sole Proprietorships,S Corporations  or Partnerships a deduction of 20% of the income earned by the flow-through. Ever since December 2017, the entire tax community has been abuzz with this new section and has been eagerly awaiting the Internal Revenue Service's guidelines on interpretation. 

The Internal Revenue Service dropped the proposed regs on Section 199A on August 8th, 2018, all of its 184 pages can be accessed here. Since December, a lot of different interpretations were being tossed around, everyone was hoping that the guidance would clear up the ambiguity. There is a lot still that needs to be addressed but unlike the story of the four blind men and the elephant, a solid shape is emerging out of the mist! 

Caveat: Today's post is a small introduction to this new section. There is a LOT more information to be culled from the 184 pages, my dear readers. I am hoping that you will take today's post to glean some knowledge about the new section and will talk to experts about the mechanics of qualifying for the deduction. 

Let us get some basics out of the way first: 

I. What is a pass through business?: A pass through is a business where taxes are not levied at the entity level but rather at the owner level where the income and expenses have been passed through. The owners' tax rates apply to this pass through income. Pass through entities are typically sole proprietorships, partnerships, LLC's, trusts and S corporations. Only pass through entities are eligible for the Section 199A deduction. 

II. Do all pass-through businesses qualify for the deduction?: YES any trade or business qualifies UNLESS 

One: The pass-through is a "Specified service trade or business" or SSTB. 

An SSTB is one that involves performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, investing and investment management, trading and dealing in certain assets or any trade or business where the principal asset is the reputation or skill of one or more of its employees. In short, if the business would not run if it were not for your skill or expertise, the business is an SSTB. 

Two: The proposed regulations that came out on August 8th, 2018 made it clear that an employee or an employee who organized herself/ himself as a pass-through to be an independent contractor and did essentially the same work as before to take advantage of Section 199A would NOT qualify for the deduction. 


1. A pass-through that provides engineering or architecture services is not an SSTB. 

2. If the taxpayer's taxable income DOES NOT exceed $315,000 if married filing jointly or $157,500 for everyone else, the SSTB exception DOES NOT apply and one can claim the 20% deduction. 

III. What is qualified business income or QBI?: QBI is the "net income of qualified items of income, gain, deduction and loss from any qualified trade or business". 

1. Only items included in taxable income are counted. 

2. Items must be effectively connected with U.S. trade or business. 

3. Items such as capital gains and losses, dividends, interest income are excluded. 

Note #1: For the sake of simplicity, we are not going to tackle the income and deduction items in this blog. And oh boy does that get even more complicated? Fun, fun! 

IV. How do S Corps/ Partnerships handle the deduction? OR What if I have an S Corp or a partnership that is a share-holder or partner in another pass-through entity?: Well, if you are organized in such a manner, you know the entities themselves do not report income/ losses hence cannot take the deduction. The S Corporation/ Partnerships then report the shareholder's/ partner's share of QBI, W-2 wages, UBIA of qualified property among other items on the shareholders'/partners' Schedule K-1. The shareholders/ partners then take the 20% deduction on their personal returns. 

V. What Is Section 199A Deduction?: 

A. If the taxpayer's taxable income is below $315,000 for married filing jointly or $157,500 for all others, we do not worry if the trade or business is an SSTB and the deduction is the LESSOR of: 

  •       20% of the taxpayer's QBI PLUS 20% of the his/ her's qualified real estate investment trust and qualified publicly traded partnership income

  •     20% of the taxpayer's income MINUS net capital gains
B. If the taxpayer's taxable income is between $315,000 and $415,000 for married filing jointly or between $157,500 and $207,500 for all others, the deduction is LIMITED based on: 

  • Whether the business is an SSTB
  • Whether W-2 wages are paid by the business
  • Unadjusted Basis immediately after acquisition (UBIA) of certain property used by the business
C. If the taxpayer's taxable income is above $415,000 for married filing jointly or above $207,500 for all others, the deduction is NOT AVAILABLE if the trade or business is an SSTB. 

D. If the taxpayer's taxable income is above $415,000 for married filing jointly or above $207,500 for all others, and if the trade or business IS NOT an SSTB, the deduction is limited by:

  • The amount of W-2 wages paid by the trade or business
  • Unadjusted Basis immediately after acquisition (UBIA) of certain property used by the business
Note #2: The numbers $157,500, $315,000, $207,500 and $415,000 are for 2018 alone. The subsequent years' numbers will be adjusted for inflation. 

VI. What if taxpayer owns multiple pass-through entities?: 

  • The QBI is calculated on each pass-through entity.  
  • The taxpayer's taxable income is calculated.  
  • Non-SSTB QBI can still be deducted as per above explanation in Question #V, Part D without regard to taxpayer's income. 
  • Experts seem to interpret this as all non-SSTB QBI can be aggregated. 
  • I am not sure if taxpayer's income is below the limits, can SSTB QBI be aggregated as well. 
Well, if your eyes have not glazed over yet- you are either a hard working tax geek like me or really interested to know if you can bag a 20% deduction on your pass-through income. This journey definitely is not for the faint-hearted! There are many, many planning opportunities that you, my dear reader may be eligible for. Grab that phone and call your favorite tax professional to get more information. 

Glossary: SSTB-Specified Service Trade or Business; QBI- Qualified Business Income; UBIA-Unadjusted Basis Immediately After Acquisition; REIT-Real Estate Investment Trust; PTP-Publicly Traded Partnership

    Consult with a Circular 230 tax professional for your unique needs and make sure your questions are answered. Please read my disclaimer here. If you have any questions regarding this issue or other tax matters, all of my contact information is on my website  

    Tuesday, July 31, 2018

    Interesting Cases: Courts Hold FBAR Penalties Cannot Exceed Reg Cap

    Mars, the Red Planet. Pic Courtesy;

    I believe the planet Mars is at its closest to us since 2003, it will not be not be this close to us again until 2035. I have been trying to locate Mars every night this past weekend but the skies have been cloudy unfortunately. This event is called "opposition" when the Sun and Mars are on either side of our planet Earth. 

    Most US citizens with foreign bank accounts and the US government are in similar opposition (cheesy analogy, I know) most of the time. Maintaining and reporting of these accounts are time consuming and arduous. If you are regular readers of my blog, you know the requirements to file and declare your foreign bank accounts. If you need a brief refresher, please read this post

    The penalties for non-disclosure of your foreign bank accounts are significant. Civil penalties for non-willful violation are up to $10,000 per violation and willful violation can range up to greater of $100,000 or 50% of the account balance at the time of violation. 

    These penalties are after a law change that happened in 2004 which increased the maximum penalties for willful failures. Before the law change, the maximum penalty that could be assessed was $100,000. These regs have now been renumbered and amended to index for inflation. (31 C.F.R 1010.820(g))

    There were 2 Court cases, one in May 2018 {U.S. v. Colliot, (DC TX 05/16/2018) 121 AFTR 2d 2018-775} and another recently in July 2018 {Waldhan, (DC CO 07/18/2018) 122 AFTR 2d 2018-5060} where the Court held that the INternal Revenue Service lacks the authority to impose a penalty in excess of $100,000 as prescribed by 31 C.F.R. 1010.820. 

    In each of the cases, the taxpayers had failed to file or filed inaccurate FBARs for tax years before 2010. The IRS had imposed total penalties in excess of $100,000 in each case. 

    The taxpayers argued that the assessments were improper because the IRS' authority was limited by 31 C.F.R. 1010.820(g). 

    The Courts after delving on the differences in the penalty caps in the statute and the regs, said that the Secretary limited the penalties that the IRS could impose to $100,000 in exercise of statutory discretion. They said that it cannot be assumed that the Secretary could have simply overlooked these differences (between the statute and the regs) for 14 years. Therefore the Secretary elected to continue to limit IRS' authority to impose penalties to $100,000 as specified in 31 C.F.R. 1010.820 even though penalties are avialable under 31 U.S.C. 5321(a)(5)(C)

    The Court concluded that "although IRS believes that it is empowered by 31 U.S.C. 5321 to act, it is not. It is empowered by the Secretary who has discretion to determine what penalties are imposed. 1010.820 remains in effect until amended or repealed."

    Note: The Supreme Court, on the other hand, has recently declined to hear a Ninth Circuit decision upholding a more than $1 million FBAR penalty based on a $2.4 million unreported account.

    Consult with a tax professional for your unique needs and make sure your questions are answered. Please read my disclaimer here. If you have any more questions regarding this or other tax matters, all of my contact information is on my website,