Avoid IRS penalties by meeting new foreign account holder tax filing requirements

Dr. Gary McBride, Professor of Accounting and Finance, California State University, East Bay

Bolstered by new legislation that will provide it with valuable information about foreign asset ownership, the IRS has launched a crackdown on international tax evasion that will impact most U.S. taxpayers with foreign financial assets. U.S. tax evaders hiding foreign assets have a much greater risk of detection, but the draconian penalites can also be imposed upon law-abiding U.S. individuals and business that have reported all of their income to the IRS, but failed to file one of the reports disclosing ownership of foreign assets.

“The back tax and interest on unreported income from offshore accounts is often small potatoes compared to the penalties for failing to disclose the foreign account to the government,” says Dr. Gary McBride, professor of Accounting and Finance at California State University, East Bay. “Businesses and individuals can be fined up to $100,000 for willfully failing to meet the filing requirements, if the value of foreign financial accounts exceed $10,000 at any time during the year.”

Smart Business spoke with McBride about the IRS crackdown on offshore tax evasion.

How will the legislation impact U.S. taxpayers?

The foreign asset reporting requirements impact every law-abiding business — partnerships, corporations and individuals — with an overseas bank, securities or other financial account, as well as those with substantial ownership interest in a foreign entity. The crackdown was buoyed by new legislation in 2010 called the Foreign Accounts Tax Compliance Act (FATCA), which forces foreign financial institutions to disclose the names of U.S. account holders to the IRS beginning Jan. 1, 2014. If a foreign bank doesn’t comply, then corporations and other U.S. payors that make payments such as dividends, interest, rents or royalties to a foreign financial institution are required to withhold a 30 percent tax. If the tax is not withheld, the IRS will pursue the U.S. payor for the deficiency. The legislation also represents a unique exercise of extra-territorial jurisdiction by the U.S. government.

What are the most notable changes to the tax forms and filing requirements?

U.S. Corporations, partnerships, individuals, estates and trusts must file a Foreign Bank and Financial Accounts Form (FBAR) if they have a financial interest or even signature authority over accounts totaling over $10,000 in a foreign country. That requirement has been in the law for decades, but compliance and IRS enforcement have been lax until recently. Taxpayers must be far more attentive to the question on the income tax return about foreign financial accounts over $10,000. Beginning in 2011, U.S. individuals must also attach to their Form 1040 individual income tax return new IRS Form 8938, if they have foreign financial assets that exceed a specific threshold. The threshold varies depending upon filing status, but the IRS has the authority to set the threshold as low as $50,000. For a U.S. individual who is required, but fails, to file both an FBAR and a new Form 8938, the harsh penalties can be imposed for both omissions, and that is in addition to the income tax and penalties on any unreported income generated by the foreign financial asset.

Why is the risk of getting caught much higher?

The clear IRS commitment to enforce the foreign assets reporting laws and impose the penalties for noncompliance causes the greatest risk. Not all foreign financial institutions will cooperate with the upcoming requirement to disclose the names of U.S. account holders. In many instances, disclosure by a foreign financial institution may be prohibited by the domestic privacy laws. Regardless, the IRS Commissioner made the following statement in testimony before the U.S. Senate Appropriations Committee: ‘We are well on our way to deterring the next generation of taxpayers from using hidden bank accounts to avoid paying taxes.’

The IRS will eventually be able to cross-reference disclosed foreign accounts held by U.S. account holders against the database of returns to identify taxpayers who haven’t filed the proper forms or paid the requisite taxes.

What are the penalties for failing to comply?

Business entities (and even trusts and estates) face a penalty of the greater of 50 percent of the value of the foreign account or $100,000 for willfully failing to file an FBAR. Do the math: willful failure to file an FBAR for an $11,000 account is $100,000. If the account balance were $1 million the penalty would be $500,000, and, if the FBAR is not filed for three years, the penalty is $1.5 million. The nonwillful penalty for failure to file an FBAR is $10,000. For the new Form 8938, the minimum failure to file penalty is $10,000 plus a penalty of up to $50,000 for continued failures after IRS notification. Furthermore, underpayments of income tax attributable to non-disclosed foreign financial assets will be subject to an additional accuracy–related income tax penalty of 40 percent (up from 20 percent for most understatements).

How can taxpayers prepare and take steps to avoid hefty penalties?

First, make sure that all foreign financial accounts are reported on the FBAR as well as the new Form 8938 for individuals. Then, make the proper disclosure on the income tax return acknowledging the existence of any and all foreign financial accounts over $10,000. U.S. taxpayers may be required to report foreign trusts on Forms 3520 and 3520-A, foreign corporations on Form 5471, foreign partnerships on form 8865 and foreign disregarded entities on Form 8858. Failure to file any of these forms results in a $10,000 penalty.

If you don’t have substantial foreign holdings, consider moving them to a domestic bank or a U.S. bank that has a branch in that foreign country, but, even if you choose the second option, you’ll still have to file an FBAR. Remember, the U.S. Treasury has promised proposed regulations on FATCA by the end of December and final regulations by the summer of 2012, so keep your eyes and ears open, because the revisions may usher in new requirements for U.S. taxpayers.

Dr. Gary McBride is a professor of Accounting and Finance at California State University, East Bay. Reach him at (510) 885-2922  or [email protected]