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Offshore Tax Compliance Prosecutions by the IRS

Offshore Tax Compliance Update fbar penalties for tax evasion can include imprisionment if the IRS seeks to criminally prosecute you

Offshore Tax Compliance Update – Recent IRS Tax Prosecutions

The following convictions represent recent successful prosecutions by the Department of Justice, Tax Division and reinforce the Government’s commitment to ferret out tax cheats, wherever they may be located.

Case 1

On October 7, 2016 a Michigan business man and owner of several mining related businesses, pleaded guilty to concealing $2.6 million held in a Swiss bank account.

According to the facts set forth in the plea agreement, the defendant transferred $2.6 million from his parents trust account to a bank account at Credit Suisse. In order to conceal the account from IRS detection, the defendant set up Hong Kong Company and had the Credit Suisse account held in the company name. The Hong Kong Company’s only business purpose was to act as the named account holder. The defendant falsely states on his 2008-2012 federal income tax returns that he had no interest in a foreign financial account and also failed to report the income from the Credit Suisse account. To exacerbate matters, in 2010 the defendant filed an amended tax return for the tax year 2008. Once again, the defendant failed to report the income generated in 2008 from the Credit Suisse account.https://www.justice.gov/opa/pr/michigan-business-owner-pleads-guilty-concealing-swiss-bank-account

Case 2

On September 28, 2016, a New York City resident pleaded guilty to using a sham foreign entity and numbered accounts in Switzerland and Israel in order to evade taxes.

From 1987 to 2008 the defendant maintained a number of undeclared foreign financial accounts and accounts at UBS held in the name of Contactus Partnership Associated, SA (Contactus) a sham entity organized in the British Virgin Islands.In 2008 the defendant closed the UBS accounts and transferred the assets to a newly opened account at Clariden Leu. The newly opened account was held in the name Contactus.

Shortly thereafter the defendant closed the account at Clariden Leu and transferred the assets to a newly opened Swiss bank account in the name of the same sham entity. The defendant was successful in getting the Swiss Bank to falsely record the defendant’s Belgian cousin as the owner of the assets in the Contactus account. Six months later the defendant closed the Contactus account at the Swiss Bank and transferred the assets to a newly opened bank account in Israel held in the name of a different cousin.From 2005-2011 the defendant also maintained an undeclared account at Bank Leumi in Israel   under the name of a non-resident alien, residing outside of the United States.

In 2010 the defendant was able to obtain an Israeli Identity Card. The defendant then opened an account in his own name at Bank Leumi, claiming that the defendant resided in the United Kingdom. He also signed a document under penalty of perjury affirming that he was not a U.S. Citizen.

Subsequently, the defendant repatriated the funds from his undeclared accounts to the United States.  In order to carry out the scheme, the defendant had his attorney draw up a sham loan agreement between the defendant and Contactus and then caused the funds to be transferred to his attorney escrow account.

The defendant filed fraudulent federal and New York State tax returns by deliberately omitting the income from the foreign financial accounts and by failing to pay income taxes on the omitted income. As a result, the defendant was able to evade paying $653,580 in federal income tax for the tax years 2002-2005 and 2007-2010.

The defendant also failed to report his ownership and control of his foreign financial accounts on FinCen Form 114 despite being advised by an accounting firm that he had an obligation to file FinCen Form 114 and that failure to do so could result in civil and criminal penalties being imposed. https://www.justice.gov/opa/pr/new-york-city-resident-pleads-guilty-using-sham-foreign-entity-and-secret-foreign-accounts

Case 3

On September 21, 2016 a Weston Connecticut man pleaded guilty to concealing over 1.5 million in income from an undeclared foreign financial account.

According to the DOJ press release, the defendant conspired with another individual in the United States and others to conceal his assets and income. The scheme was designed to evade paying income tax derived from the sale of duty free alcohol and tobacco products. The defendant used a sham entity, Centennial Group, a registered Panamanian corporation to buy and sell duty free products. In order to carry out the scheme, the defendant arranged to have alcohol shipped through a custom bonded warehouse in the Foreign Trade zone in Southern Florida. The tobacco products passed through a customs bonded warehouse in North Bergen, New Jersey. In total, the defendant was able to transfer $1,627,832 to his undeclared bank account in Panama. The defendant repatriated some of the proceeds from his Panamanian account for the purchase of a Mercedes and to pay $19,000 in interior design goods. The defendant failed to report the income earned on his Panamanian account and also failed to file an FBAR for the relevant tax years. https://www.justice.gov/opa/pr/connecticut-man-pleads-guilty-concealing-income-undeclared-panamanian-bank-account

Deputy Assistant Attorney General Ciraolo reaffirmed that “the Department of the Treasury will: “continue to vigorously pursue and prosecuted those who conceal their assets and income in offshore accounts in an effort to evade paying their fair share of taxes.”

The above prosecutions have common some common elements including:

  • The establishment of a Foreign Financial Account.
  • The creation of a sham entity for purposes of becoming the named account holder of the Foreign Financial Account.
  • Actions taken by the true account holder to conceal the existence of the Foreign Financial Account as well as the income generated from the account.

©2016 Anthony N. Verni, Attorney at Law, Certified Public Accountant

11/11/2016

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Michigan Man Pleads Guilty To Tax Obstruction

“ANOTHER KNUCKLEHEAD BITES THE DUST”

fbar penalties for tax evasion can include imprisionment if the IRS seeks to criminally prosecute youThe definition of a Knucklehead is“someone considered to be of questionable intelligence.”

On October 7, 2016 a Michigan business man plead guilty to tax obstruction for filing a false amended tax return for the tax year 2008. The guilty plea echoes the sentiments of Chief Richard Weber of the Internal Revenue Service, Criminal Investigation that: “There are no safe havens for hiding money in secret bank accounts around the globe.” The case also makes clear that substance will always prevail over form for purposes of determining the true beneficial owner of a foreign financial account or asset and whether the income from any such account or asset is subject to U.S. tax. The following case is just one of many examples of the pervasive use by U.S. Taxpayers of abusive offshore tax avoidance schemes and the consequences of getting caught.

On or about November of 2004,  Robert Rumbold (“Rumbold” or the “Defendant”), a manager of a trust account owned by his parents, transferred $2.6m from his parents’ account into Credit Suisse Bank AG in Switzerland. In order to evade income tax and to conceal the identity of the beneficial owner, the Defendant arranged for the account to be held in the name of Wisdom City Limited, a Hong Kong company. Although Wisdom City Limited was set up to be the named the account holder, the Defendant effectively controlled and was the beneficial owner of the account until December 2008, when Rumbold transferred control to a relative.

Rumbold failed to report any interest, dividends or capital gains received from the Wisdom City Limited Credit Suisse account on the Defendant’s personal tax returns for the tax years 2006-2008. The Defendant also falsely stated on each of his three tax returns that he did not have an interest in any foreign financial account.  In 2010 the Defendant amended his 2008 income tax return, where he once again failed to report the income generated from the foreign financial account and failed to make any disclosure concerning his interest in the Wisdom City Limited Credit Suisse account.

The takeaways from this case are the following:

  1. A U.S. Taxpayer’s worldwide income is subject to federal income tax;
  2. Depending upon the circumstances, a U.S. Taxpayer may have to comply with certain financial reporting requirements under the Bank Secrecy Act and FATCA and may be required to make other financial disclosures;
  3. Irrespective of the form, abusive offshore tax avoidance schemes (“tax schemes”) are devised for the purpose of carrying out two objectives: First, to conceal the true identity of the owner of any foreign financial account or other foreign financial asset; and Second, to conceal income derived from those foreign assets that is subject to tax by the United States;
  4. These tax schemes may include, but are not limited to, the use of foreign trusts, foreign corporations, offshore partnerships, limited liability companies, and international business companies. The tax schemes can also include using anon-resident alien or maintaining funds in a foreign attorney’s trust fund account in order to carry out a taxpayer’s nefarious plan;
  5. The element of intent in a criminal tax prosecution more often than not is proven by circumstantial rather than direct evidence. Therefore, it logically follows that the more elaborate the tax scheme is, the easier it will be to establish intent. . Remember! “If it walks like a duck and talks like a duck, it’s probably a duck;” and
  6. Taxpayers, attempting to game the system, by creating and/or participating in these knucklehead schemes will eventually find themselves in deep trouble due to recent global tax enforcement initiatives and the financial reporting requirements established under the Bank Secrecy Act, FATCA, the Common Reporting Standards and other protocols.

If you are the architect, principal or a participant in such a tax scheme, you are either aware or should be aware that what you are doing is illegal. If you do not think what you are doing is illegal, you are probably in a state of denial. You only need ask yourself: “Does it pass the smell test?”

Any path to redemption with the IRS involves taking personal responsibility, making a conscious decision to right the ship and thereafter taking remedial action.  Remember, you can generally recover from a financial setback. In contrast, imprisonment and the financial and emotional toll to you and your family may be insurmountable.

The immediate action should start with your speaking with a tax attorney to discuss your particular situation and evaluating whether making an offshore voluntary disclosure is a viable option for you.

© Anthony N. Verni, Attorney at Law, Certified Public Accountant   10/13/2016

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FATCA, Transparency Efforts Curb Offshore Tax Evasion

Everyone’s Getting FATCA Compliant

FATCA NewsThe worldwide landscape of transparency is changing as the United States works with other nations to increase information sharing around the world. Work to implement Foreign Account Tax Compliance Act (FATCA) is headlining these efforts to fight tax evasion.

Enacted in 2010, FATCA requires foreign financial institutions to tell the Internal Revenue Service about their U.S.-owned accounts or face, in some cases, a 30 percent withholding tax on certain U.S.-source payments that are made to them.

The Treasury Department is engaged in negotiating dozens of pacts, known as intergovernmental agreements (IGAs), that would allow financial institutions to report the information to their own governments, which then would share the information with the United States.

So far, FATCA has proved successful.

“Countries worldwide have demonstrated a strong interest in becoming transparent on that level,” Robert B. Stack, Treasury Deputy Assistant Secretary for International Tax Affairs, told Bloomberg BNA. “This interest shows how seriously countries around the world are taking this. FATCA has pushed that effort further and is rapidly becoming the global standard for exchange of information.”

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Global Tax Transparency Rises as FATCA, OECD Initiatives Gain Momentum

As the growth of global tax transparency rises, individual taxpayers and financial institutions must exercise new levels of caution.

tax fraud and tax evasion from foreign offshore accounts

With more than 100 intergovernmental agreements (IGA) under the Foreign Account Tax Compliance Act (FATCA) and many countries participating in the Organization for Economic Cooperation and Development’s (OECD), a new level of transparency is emerging.

“I think the world’s changing,” said Alan Granwell, of counsel with Sharp Partners PA. “The significant issue is global transparency. Look at where we were a few years ago. We were nowhere. I think the difference is really incredible.”

Many practitioners have noted that banks and financial institutions have made a concerted effort to prepare for the next stage of reporting expected in 2015.

“I think many institutions are in pretty good shape,” said Jonathan Jacket, a partner at Burt, Staples, & Maner. “They had a plan and they worked through their plan. Many are on schedule and they’ve done what they need to do.” The question remains, however, “Is it the best version? Is it as good as it could be?” he told Bloomberg BNA. “We won’t find that out for sure until we’ve gone through a few cycles of reporting.”

March 15 kicked off the staggered implementation of several new phases of reporting, a major point in global tax transparency. “It’s the real start,” said Susan Grbic, a tax partner at WeiserMazars LLP. “It’s exciting that it’s happening. This is the beginning of real FATCA, of fully implementing and working out wrinkles and discrepancies between the different types of reporting that will be required.”

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IRS Clarifies Rules on FATCA Announcement

irs headquarters sign in washington d.c.In a Dec. 1 2014 update, the Internal Revenue Service (“IRS”) stated that jurisdictions can continue to be treated as though they have an intergovernmental agreement (“IGA”) after Dec. 31, 2014, as long as the Treasury Department determines they are making efforts to finalize the agreement as soon as possible.

In a Dec. 22 update, the IRS clarified that foreign financial institutions still must have a certificate identifying them as being compliant with the international tax law to avoid certain withholdings. Those in jurisdictions that are treated as having IGAs must obtain a Global Intermediary Identification Number.

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IRS modifications to OVDP and streamlined procedures a Relief to offshore bank account holders

IRS modifications to OVDP and streamlined procedures

The Offshore Voluntary Compliance Program

Internal Revenue Service’s major revisions in its Offshore Voluntary Compliance Program may just be the light at the end of the tunnel for tax payers with offshore bank accounts. The revisions provide a new path for tax payers with offshore bank accounts to come into compliance with their tax obligations. The modifications of the OVDP 2012 and the expansion of streamlined procedures (IR-2014-73) are just a relief. They are more inclusive for both U.S tax payers residing abroad and in the U.S.

IRS launched the Offshore Voluntary Compliance program in 2012 following the success of its prior voluntary programs offered in 2009 and 2011. The 2012 OVDP was launched to help people with undisclosed income from offshore accounts get current with their tax returns.  It encourages taxpayers to disclose foreign accounts now rather than risk detection by the IRS and possible criminal prosecution. All the three voluntary programs have resulted in more than 45,000 voluntary disclosures from individuals who have paid about $6.5 billion in back taxes, interest and penalties.

fatca foreign account tax compliance act. tax law attorneyThese current modifications in the OVDP 2012 have been fueled by the implementation of the Foreign Account Tax Compliance Act (FATCA) and Department of Justice determination to deal with tax evasion. FATCA will soon go into effect, as a matter of fact, from July 1st 2014. With FATCA in place, foreign financial institutions will start reporting to the IRS foreign accounts held by U.S persons. The IRS enforcement efforts and implementation of FATCA, have made taxpayers are more aware of their obligations. This means that it’s going to be so hard for U.S. citizens in the U.S or overseas to conceal foreign bank accounts and assets.. That is why the IRS has come up with the modifications in the 2012 OVDP to help U.S Citizens who have undisclosed foreign bank accounts or assets to come to compliance, including those who are not willfully hiding assets. The IRS is providing the tax payers this golden chance through these modifications to help them avoid prosecution and limit their exposure to civil penalties.

Streamlined Procedures and OVDP 2012 changes

OVDP’s 2012 changes just expand the Streamlined Procedures put in place in Sept 2012. The streamlined filing compliance procedures were put in place to help U.S. taxpayers living abroad comply with their tax obligations. The IRS recognized that some of the U.S taxpayers residing abroad may not have been aware of their filing obligation. They failed to timely file U.S. federal income tax returns or report Foreign Bank and Financial Accounts (FBARs) not because they wanted but because they were unaware. This program is available to non-resident U.S. taxpayers who have resided outside of the U.S. since January 1, 2009, and who have not filed U.S. tax returns during the same period. These taxpayers must also present a low level of compliance risk.

The changes to the Offshore Voluntary Compliance Program (OVDP 2012) will expand on streamlined procedures to help accommodate a wider group of U.S. taxpayers who have unreported foreign financial accounts. The original streamlined procedures announced in 2012 were available only to non-resident, non-filers. The expanded streamlined procedures are available to a wider population of U.S. taxpayers living outside the country and, for the first time, to certain U.S. taxpayers residing in the United States.

Changes to streamlined procedure include:

The changes to streamlined procedures will help cover a much broader group of U.S. taxpayers who have failed to disclose their foreign accounts but who aren’t willfully evading their tax obligations. To encourage these taxpayers to come forward, IRS is expanding the eligibility criteria.  These changes include:

  • Eliminating a cap on the amount of tax owed to qualify for the program (requirement that the taxpayer have $1,500 or less of unpaid tax per year).
  • Doing away with the risk questionnaire that applicants were required to complete.
  • Requiring the taxpayer to certify that previous failures to comply were due to non-willful conduct.
  • For eligible U.S. taxpayers residing outside the United States, all penalties will be waived. For eligible U.S. taxpayers residing in the United States, the only penalty will be a miscellaneous offshore penalty equal to 5 percent of the foreign financial assets that gave rise to the tax compliance issue.

These modifications provide an ease avenue for taxpayers who have been looking for a better easy way to comply with their tax obligations. Taxpayers with offshore accounts should take advantage of these changes in the OVDP while it lasts.  This grace period is something that U.S. taxpayers should not overlook.

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Tax Evasion Causes Cash Abroad to Rise

Tax Evasion and Profits

Folder tabs with focus on offshore account tab. Business concept image for illustration of tax evasion.US-based companies added $206 billion to their offshore profits last year, shielding earnings in low-tax countries.

Bloomberg News reports that multinational companies have accumulated $1.95 trillion outside the US, up 11.8 percent from last year. Three companies—Microsoft Corp., Apple Inc., and International Business Machines Corp.—account for 18.2 percent of the total increase.

Tax Loopholes

“The loopholes in our tax code right now give such a big reward to companies that use gimmicks to make it look like they earn their profits offshore,” said Dan Smith, a tax and budget advocate at the U.S. Public Interest Research Group, which seeks to counteract corporate influence.

Many of these companies are moving patents and other intellectual property to low-tax locales. US multinational companies reported earning 43 percent of their overseas profits in Bermuda, Ireland, Luxembourg, the Netherlands, and Switzerland.

“If you can choose between San Antonio and Shanghai, and you pay no taxes one place and 25 to 35 percent at home, you’re encouraged to move jobs overseas,” said Paul Jacobs, CEO of Qualcomm Inc., in his Mar. 4 farewell address. For US corporations, these overseas profits are building up and they are choosing to not bring the cash home and face the tax consequences. Because of this, CEOs like Jacobs are urging Congress to pass legislation that allows American companies to be able to bring money back to the United States without tax penalty. Doing so, they argue, would decrease tax evasion and increase domestic investment.

22 Companies

The majority of the offshore profits are held by a small number of companies. The top 22 corporations in Bloomberg’s analysis have more accumulated earnings outside the US than the other 285 combined. Under U.S. accounting rules, companies don’t have to assume they will pay federal taxes on profits they have deemed indefinitely reinvested outside the U.S.

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OECD Releases First Pillar of Model Framework

The Organization for Economic Cooperation and Development (“OECD”)

The Organization for Economic Cooperation and Development (“OECD”)

The Organization for Economic Cooperation and Development (“OECD”)

The Organization for Economic Cooperation and Development (“OECD”) has released the first pillar of its model framework for automatic exchange of tax information.

Standardized Form and Automatic Exchange

The “Standard for Automatic Exchange of Financial Account Information: Common Reporting Standard” establishes a standardized form that banks and other financial institutions would be required to use to gather a range of client account and transaction data to submit yearly to their domestic tax authorities. The different tax authorities would then exchange this information automatically, either bilaterally or multilaterally, depending on the specific agreement.

As summarized by the OECD: “The standard . . .  calls on jurisdictions to obtain information from their financial institutions and automatically exchange that information with other jurisdictions on an annual basis. It sets out the financial account information to be exchanged, the financial institutions that need to report, the different types of accounts and taxpayers covered, as well as common due diligence procedures to be followed by financial institutions.”

Swiss Banking Skepticism
The Swiss Bankers Association (“SBA”) noted that the recommendations from the OECD “are in general a step in the right direction,” yet continued to have problems with the overall framework:

“Firstly, the basis to be used for client identification are domestic money laundering regulations,” the SBA said. “There are still different standards in this area.” Secondly, “it is becoming apparent that the U.S. will not be prepared to offer full reciprocity,” the SBA said.

Finally, the Swiss Bankers Association noted the high costs that are likely to result with implementation of the new OECD standard. The new standard, claims the SBA, will be significantly higher than the costs of implementing FATCA.