By Jonathan Stempel, Reuters.com (7/1/30)
A former UBS AG client in New Jersey who once played for the Soviet Union’s national soccer team pleaded guilty on Thursday to concealing $2.6 million he had held in an offshore account from the U.S. Internal Revenue Service.
Click link above for complete story.
On March 18, 2010, President Obama signed the Hiring Incentives to Restore Employment (“HIRE”) Act (P.L. 111-147) (The “Act”) which included the Foreign Account Tax Compliance Act containing new foreign account tax compliance rules.
Under the Act, new reporting and disclosure requirements for foreign assets will be phased in between 2010 – 2013:
1. Foreign Institutional Reporting: Foreign Institutions have new reporting and withholding obligations for accounts held by U.S. Persons (generally effective after 12/31/12, commencing 1/1/13).
2. Foreign Financial Assets ($50,000): Individuals with an interest in a “Foreign Financial Asset” have new disclosure requirements. If foreign financial assets are valued in excess of $50,000, the U.S.
Taxpayer must attach certain information to their income tax returns for tax years beginning after March 18, 2010. (U.S. Taxpayers are not required to disclose interests that are held in a custodial account with a U.S. financial institution).
The penalty is substantial ($10,000, plus additional amounts for continued failures, up to a maximum of $50,000 for each applicable tax period). The penalty may be waived if the individual can establish that the failure was due to reasonable cause and not willful neglect.
3. 40% Penalty: A 40% accuracy-related penalty is imposed for underpayment of tax that is attributable to an undisclosed foreign financial asset understatement. Applicable assets are those subject to mandatory information reporting when the disclosure requirements were not met. The penalties are effective for tax years beginning after March 18, 2010.
4. 6 Year Statute of Limitations: Statute of limitations re: omission of income in connection with foreign assets: The statute of limitations for assessments of tax is extended to six (6) years if there is an omission of gross income in excess of $5,000 attributable to the foreign financial asset. The six year statute of limitations is effective for tax returns filed after March 18, 2010, as well as for any other tax return for which the assessment period has not yet expired as of March 18, 2010.
5. Passive Foreign Investment Companies: The Act imposes an information disclosure requirement on U.S. Persons who are PFIC shareholders.
A PFIC is any foreign corporation if:
a. 75% or more of the gross income of the corporation for the taxable year is passive income; or
b. The average percentage of assets held by such corporation during a taxable year which produce passive income or which are held for the production of passive income are at least 50%.
6. Foreign Trusts with U.S. Beneficiaries: The Act clarifies if a foreign trust is treated as having a U.S. Beneficiary, an amount accumulated is treated as accumulated for the U.S. Person’s benefit even if that Person’s trust interest is contingent. The Act clarifies that the discretion to identify beneficiaries may cause the trust to be treated as having a U.S. Beneficiary. This provision is effective after March 18, 2010.
7. Rebuttable Presumption/Foreign Trust – U.S. Beneficiary: The Act creates a rebuttable presumption that a foreign trust has a U.S. Beneficiary if a U.S. Person directly or indirectly transfers property to a foreign trust (unless the transferor provides satisfactory information to the contrary to the IRS). This provision is effective for property transfers after March 18, 2010.
8. Uncompensated Use of the Foreign Trust Property: The Act provides that the uncompensated use of the foreign trust property by a U.S. Grantor, a U.S. Beneficiary (or a U.S. Person, related to either of them), is treated as a distribution by the trust.
The use of the trust property is treated as a distribution to the extent of the fair market value of the property’s use to the U.S. Grantor/U.S. Beneficiary, unless the fair market value of that use is paid to the trust.
The loan of cash or marketable securities by a foreign trust, or the use of any other property of the trust, to or by any U.S. Person is also treated as paid or accumulated for the benefit of the U.S. Person. This provision applies to loans made and uses of property after March 18, 2010.
9. Reporting Requirements, U.S. Owners of Foreign Trusts: This provision requires any U.S. Person treated as the owner of any portion of a foreign trust to submit IRS-required information and insure that the trust files a return on its activities and provides such information to its owners and distributees.
This new requirement imposed on U.S. Persons treated as owners is in addition to the current requirement that such U.S. Persons are responsible for insuring that the foreign trust complies with its own reporting obligations. This provision is effective for taxable years beginning after March 18, 2010.
10. Minimum Penalty re: Failure to Report Certain Foreign Trusts: This provision increases the minimum penalty for failure to provide timely and complete disclosure on foreign trusts to the greater of $10,000 or 35% of the amount that should have been reported.
In the case of failure to properly disclose by the U.S. Owner of a foreign trust of the year-end value, the minimum penalty would be the greater of $10,000 or 5% of the amount that should have been reported.
This provision is effective for notices and returns required to be filed after December 31, 2009.
The NYTimes.com is reporting that the IRS is extending its amnesty program to October 14, 2009.
…The so-called voluntary disclosure program, which began in March as a way of luring American clients of the Swiss bank UBS out of the woodwork, has attracted 3,000 taxpayers so far, compared with just 80 last year…
Click link above for complete article.
After the landmark agreement between the U.S. and Swiss government over secret (UBS) Swiss bank accounts, held by U.S. Citizens, the IRS is now focusing on hedge funds in the Cayman Islands. (Please see 8/24/09 Wall Street Journal article, IRS Could Target Off-Shore Hedge-Fund Investors Next.)
Recently, IRS officials advised that certain U.S. investors in off-shore hedge funds must file a FBAR.
On June 12, 2009, an IRS official stated that the term “financial interest” (which requires a FBAR filing) includes hedge funds that “function as mutual funds”.
It appears the IRS and Justice Department will identify U.S. Taxpayers who evade U.S. taxes, by investing with off-shore hedge funds. The IRS and Justice Department are pressing foreign financial institutions to provide them with information about Americans with “foreign, secret bank accounts”.
By WebCPA Staff, WebCPA.com
The Internal Revenue Service has increased its audit rates of the wealthiest individuals and corporations, according to testimony by IRS Commissioner Douglas Shulman.
Shulman told a hearing of the House Appropriations Committee’s Financial Services Subcommittee that, in fiscal year 2008, the IRS conducted nearly 1.4 million examinations of individual tax returns, an 8 percent increase over fiscal year 2006. The audit coverage rate also rose from 0.58 percent in fiscal year 2001 to 1.01 percent in fiscal year 2008.
“While the growth in examinations of individual returns is visible in all income categories, it is most apparent in examinations of individuals with incomes over $200,000,” said Shulman in his prepared testimony. “Audits of these individuals increased from 105,549 in FY 2007 to 130,751 during FY 2008, an increase of 24 percent. Their coverage rate has risen from 2.68 percent in FY 2007 to 2.94 percent in FY 2008.”
In the business arena, he added, audit coverage rates for small corporation returns (with assets under $10 million) increased slightly over fiscal year 2007 by 0.03 percent. However, coverage rates for three classes of large corporations with assets between $50 million and $250 million and higher all increased. Coverage rates for partnership returns stayed even as compared to fiscal 2007, while Subchapter S returns reflected a small 0.05 percent drop due largely to an increase in the number of S corporations. The coverage rate for tax-exempt organizations increased slightly.
Rep. Jose Serrano, D-N.Y., pointed out during the hearing that Shulman’s figures contradicted the findings of Syracuse University’s Transactional Records Access Clearinghouse, which showed that audit rates for wealthy individuals had declined steeply (see IRS Audit Rate for Millionaires Plummets). Shulman disputed those findings, saying, “We think some of it is wrong and some of it is looking at unfair comparisons,” according to Reuters. The IRS’s own Web site, however, shows that the agency audited about 5.6 percent of individuals making over $1 million in fiscal 2008, compared to 6.8 percent in 2007.
The IRS Criminal Investigation Division has also been vigorously attacking egregious tax avoidance, money laundering and other financial crimes, Shulman noted. The overall number of individuals charged in an information or indictment rose from 2,323 in fiscal 2007 to 2,547 in fiscal 2008. Over the same period of time, prosecution recommendations for employment tax evasion more than doubled. The incarceration rate in these investigations was 81 percent and the average sentence was 29 months.
In fiscal 2008, IRS-developed cases related to foreign and offshore issues also resulted in 61 criminal convictions, and the average term for those going to jail was 32 months. For the first four months of fiscal 2009, there were 20 convictions, and the average sentence was 84 months.