Under Treasury Department Circular #230 (Rev. 8/11), Title 31 Code of Federal Regulations, Subject A, Part 10 (published June 3, 2011), Section 1021 requires a tax practitioner who knows that the client has not complied with U.S. revenue laws, or made an error or omission in a tax return, to promptly advise the client of the fact of such non-compliance, error or omission and the consequences under the Internal Revenue Code and Treasury Regulations.
Under Circular #230, Section 1022, a practitioner must exercise due diligence in preparing and filing tax returns.
For U.S. taxpayer offshore accounts, in order to ensure U.D. taxpayer IRS compliance, the tax practitioner should confirm the following, prior to filing a client’s tax returns:
Offshore Accounts: Tax Compliance Issues
1. Original source of proceeds?
2. How was the money earned?
3. Were the proceeds reported for tax purposes? If so, what tax year?
4. Was the fund transfer of the original proceeds from the U.S. sent directly to the offshore account?
5. Were there any intermediary transfers to third party banks or accounts? (If so, dates, accounts).
6. Total amount in each account (highest balance/each tax year).
7. Regarding the offshore account, did you file FBARs?
a. Every year?
b. accounts over $10,000?
c.Did you own the account?
d. What was the name on the account?
e. Did you have signatory authority over the account?
8. Regarding offshore accounts, did you disclose the account on Form 1040/Schedule B, Part III, No. 7?
9. For foreign financial assets over $50,000, did you file Form 8938 for each tax year?
10. For financial assets over $50,000, did you purchase these assets with funds from the offshore account? If not, what was the source of funds for these purchases?
IRS Offshore Accounts – (Civil Penalty Issues)
1. Civil Tax Fraud (75% of tax due) (no statute of limitations).
2. Underpayment of Tax (25% of tax due).
3. For voluntary disclosures, under the IRS Offshore Voluntary Disclosure Program (2012), the values of foreign accounts and other foreign assets are aggregated for each year and the penalty is calculated during the period covered by the voluntary disclosure. Under the 2012/IRS Voluntary Disclosure, total penalties of up to 90% of unpaid tax, and 27.5% of highest balance total foreign bank accounts/foreign assets as follows:
a. Failure to File a Tax Return (IRC Sec. 6651(a)(1), up to 25% tax due.
b. Failure to Pay Tax (IRC Sec. 6651(a)(2), up to 25% tax due.
c. Accuracy Related Penalty (IRC Sec. 6662), a 40% penalty for tax underpayment attributable to undisclosed foreign financial asset understatement.
d. Title 26 Penalty – 27.5% highest aggregate balance of foreign bank accounts, entities and assets.
Offshore Accounts – IRS/Criminal Penalty Issues
U.S. taxpayers with undisclosed offshore bank accounts and unreported income face criminal charges for:
1. Tax Evasion (IRC 7201), five years in jail, $25,000 fine;
2. Filing False Tax Return (IRC Sec. 7206(1)), three years in jail, $250,000 fine;
3. Failure to File Tax Return (IRC Sec. 7203), one year in jail, $100,000 fine;
4. Willful failure to file FBAR or Filing False FBAR (31 USC Sec. 5322), ten years in jail, fines up to $500,000 with related civil penalty the greater of $100,000 or 50% of the total balance of the foreign account per violation (IRC Sec. 5321(a)(5).