1 Hot IRS Topics -- How to Deal with Increased IRS Audits and Compliance Issues in Israel March 27, 2011Tax SeminarJerusalem Ramada HotelStuart M. Schabes, EsquireOber, Kaler, Grimes & Shriver
2 OVERVIEWSignificant increase in IRS audits, tax liens and related procedural issuesIncreased focus on Israeli based taxpayers and preparersVoluntary Disclosure – 2011 initiativeConvincing the IRS to exercise discretion – do what is right – one size fits all approach vs. case by case analysisTax lien releases vs. withdrawals – a positive developmentIncreased IRS Service Center audits/ correspondence and appropriate responses
3 OVERVIEWOffice of Professional Responsibility – new return preparer requirementsPreserving taxpayer rights to appealsCase management related mattersDoes the Taxpayer Advocate office provide assistance – if so, how?Questions/Answers
4 A Checklist of U. S. Tax Forms You May Need to File for a U. S A Checklist of U.S. Tax Forms You May Need to File for a U.S. Citizen Living OverseasForm TD F – Report of Foreign Bank and Financial Accounts (FBAR)Form 926 – Return of a U.S. Transferor of Property to a Foreign CorporationForm 1116 – Foreign Tax CreditForm 2555 – Foreign Earned IncomeForm 3520A – Information Return of Foreign Trust with a U.S. OwnerForm 3520 – Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts
5 A Checklist of U. S. Tax Forms You May Need to File for a U. S A Checklist of U.S. Tax Forms You May Need to File for a U.S. Citizen Living OverseasForm 5471 – Information Return of U.S. Person with Respect to Certain Foreign CorporationsForm 8621 – Information Return for Passive Foreign InvestmentForm 8865 – Information Return of U.S. Persons with Respect to Certain Foreign PartnershipsForm 8938 – Statement of Foreign Financial Assets* Additional forms may be needed depending on the taxpayer’s particular situation
6 Form TD F 90-22.1 – Report of Foreign Bank and Financial Accounts (FBAR) FBAR is not a new… it has been a filing requirement since 1972.The reporting requirements are not part of the Tax Code… it is part of the Bank Secrecy Act.The FBAR is not filed with the tax return nor due when the tax return is due… it is due June 30 (NO extensions) and filed with the Detroit Service Center.
7 Form TD F 90-22.1 – Report of Foreign Bank and Financial Accounts (FBAR) The IRS’ general 3 year assessment statute does not apply…but rather there is a 6-year statute of limitations for assessing civil penalties for an FBAR violation.Authority originates in Title 31 of the U.S. Code, not Title 26… so it is not appealable to the U.S. Tax Court.
8 FBAR: Filing Requirements Any United States personwho has a financial interest inor signature authority or other authority over any financial account in a foreign country, if the aggregate value of these accounts exceeds $10,000 at any time during the calendar year.
9 FBAR: “United States Person” a citizen or resident of the United Statesa resident aliena domestic partnershipa domestic corporationa domestic estate or trusta single-member LLC (although it is considered a disregarded entity for tax purposes)
10 FBAR: “Financial Interest” Includes an account where the owner of record or holder of legal title is:A partnership in which the U.S. person owns an interest in more than 50% of the profits; orA trust in which the U.S. person either has a present beneficial interest in more than 50% of the assets or receives more than 50% of the current income.
11 FBAR: “Financial Interest” Includes accounts for which the U.S. person is the owner of record or has legal title, whether the account is maintained on his or her own benefit or for the benefit of others including non-United States persons.Includes accounts where the owner of record or holder of legal title is a person acting as an agent, nominee, or in some other capacity on behalf of a U.S. person.Includes a corporation in which a U.S. person directly or indirectly owns more than 50% of the total value of the shares of stock.
12 FBAR: “Signature or Other Authority” Definition of Signature AuthorityA U.S. person has account signature authority if that person can control the disposition of money or other property in the account by delivery of a document containing his signature to the bank or other person with whom the account is maintained.Definition of Other Account AuthorityA person with other authority over an account is one who can exercise power that is comparable to signature authority over an account by direct communication, either orally or by some other means to the bank or other person with whom the account is maintained.
13 FBAR: “Financial Account” Includes any bank, securities, securities derivatives or other financial instruments accountsIncludes any savings, demand, checking, deposit or any other account maintained with a financial institution or other person engaged in the business of a financial institutionIncludes any accounts in which the assets are held in a commingled fund, and the account owner holds an equity interest in the fund (including mutual funds)
14 FBAR: Aggregate Value… Exceeds $10,000… at any time of the yearaggregate value of all foreign accountsin excess of $10,000regardless of whether accounts generated income or dividendsconvert foreign currency by using the official exchange rate at 12/31
15 2011 Offshore Voluntary Disclosure Initiative The IRS’s prior Offshore Voluntary Disclosure Program ended on October 15, 2009.The prior program was very successful and offered consistency and predictability to taxpayers in determining the amount of tax and penalties they faced by coming forward voluntarily.This new initiative, the 2011 Offshore Voluntary Disclosure Initiative (2011 OVDI) will be available to taxpayers who come forward and complete all requirements on or before August 31, 2011.
16 Why should I make a voluntary disclosure? Taxpayers with undisclosed foreign accounts or entities should make a voluntary disclosure because it enables them to:become compliantavoid substantial civil penalties, andgenerally eliminate the risk of criminal prosecution.Taxpayers who do not submit a voluntary disclosure run the risk of detection by the IRS and the imposition of substantial penalties, including the fraud penalty and foreign information return penalties, and an increased risk of criminal prosecution.
17 Why should I make a voluntary disclosure? The IRS remains actively engaged in ferreting out the identities of those with undisclosed foreign accounts. This information is becoming increasingly more available to the IRS under tax treaties, through submissions by whistleblowers, and will become more available as the Foreign Account Tax Compliance Act (FATCA) and Foreign Financial Asset Reporting become effective.
18 Terms of the 2011 OVDIProvide copies of previously filed original (and, if applicable, previously filed amended) federal income tax returns for tax years covered by the voluntary disclosure;Provide amended federal income tax returns for all tax years covered by the voluntary disclosure, with applicable schedules detailing the amount and type of previously unreported income from the account or entity;File original or amended Form TD F (FBAR) for calendar years 2003 through 2010;Cooperate in the voluntary disclosure process, including providing information on offshore financial accounts, institutions and facilitators, and signing agreements to extend the period of time for assessing tax and penalties;
19 Terms of the 2011 OVDIProvide a Foreign Account or Asset Statement for each previously undisclosed foreign account or asset during the voluntary disclosure period;For those applicants disclosing offshore financial accounts with an aggregate highest account balance in any year of $1 million or more, a completed Foreign Financial Institution Statement for each foreign financial institution with which the taxpayer had undisclosed accounts or transactions during the voluntary disclosure period;Provide a completed and signed Taxpayer Account Summary with Penalty Calculation;
20 Terms of the 2011 OVDIFor those applicants disclosing offshore financial accounts with an aggregate highest account balance in any year of $500,000 or more, copies of offshore financial account statements reflecting all account activity for each of the tax years covered by your voluntary disclosure;For those applicants disclosing offshore financial accounts with an aggregate highest account balance of less than $500,000, copies of offshore financial account statements reflecting all account activity for each of the tax years covered by your voluntary disclosure must be readily available upon request;Pay 20% accuracy-related penalties under IRC § 6662(a) on the full amount of your underpayments of tax for all years;
21 Terms of the 2011 OVDIPay failure to file penalties under IRC § 6651(a)(1)/(2), if applicable;Pay, in lieu of all other penalties that may apply, a miscellaneous civil penalty, equal to 25% (or in limited cases 12.5% or 5%) of the highest aggregate balance in foreign bank accounts/entities or value of foreign assets during the period covered by the voluntary disclosure;Submit full payment or make good faith arrangements with the IRS to pay in full all of tax, interest, and penalties;Properly completed and signed agreements to extend the period of time to assess tax (including tax penalties) and to assess FBAR penalties; andExecute a Closing Agreement on Final Determination Covering Specific Matters
22 Reduced 12.5% Offshore Penalty Applies only to taxpayers whose highest aggregate account balance in each of the years covered by the 2011 OVDI is less than $75,000.As in other cases, examiners have no authority to negotiate a different offshore penalty percentage.
23 Reduced 5% Offshore Penalty Taxpayers making voluntary disclosures who fall into 1 of the 2 categories described below will qualify for a 5% offshore penalty:Taxpayers who meet all 4 of the following conditions:did not open or cause the account to be opened;have exercised minimal, infrequent contact with the account, (for example, to request the account balance, or update accountholder information such as a change in address, contact person, or address);have, except for a withdrawal closing the account and transferring the funds to an account in the United States not withdrawn more than $1,000 from the account in any year covered by the voluntary disclosure; andcan establish that all applicable U.S. taxes have been paid on funds deposited to the account (only account earnings have escaped U.S. taxation).Taxpayers who are foreign residents and who were unaware they were U.S. citizens.
24 Circular 230 IssuesThe 2011 Voluntary Disclosure Initiative makes it clear that a practitioner who represents a noncompliant taxpayer is in violation of Circular 230.FAQ # 47 of the Initiative’s Frequently Asked Questions states that if a taxpayer decides not to make the voluntary disclosure despite the taxpayer’s noncompliance with U.S. tax laws, the practitioner must explain the consequences of the noncompliance to the client.Moreover, a practitioner whose client declines to make full disclosure of the existence of, or any taxable income from, a foreign financial account during a taxable year, may not prepare the client’s income tax return for that year without being in violation of Circular 230.
25 Foreign Account Tax Compliance Act The Foreign Account Tax Compliance Act (FATCA) was enacted in 2010.This was another important development in U.S. efforts to combat tax evasion by U.S. persons holding investments in offshore accounts.FATCA requires any U.S. person holding foreign financial assets with an aggregate value exceeding $50,000 to report certain information about those assets on Form 8938.The Form 8938 must be attached to the taxpayer’s annual tax return.
26 Foreign Account Tax Compliance Act Reporting applies for assets held in taxable years beginning on or after January 1, 2011. Failure to report foreign financial assets on Form 8938 will result in a penalty of $10,000 (and a penalty up to $50,000 for continued failure after IRS notification). Further, underpayments of tax attributable to non-disclosed foreign financial assets will be subject to an additional substantial understatement penalty of 40%.
27 DRAFT Form 8938 Statement of Foreign Financial Assets
28 What if I don’t report… How will the IRS ever find out? Beginning in 2013, FATCA will require foreign financial institutions (“FFIs”) to report directly to the IRS certain information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. To properly comply with these new reporting requirements, an FFI will have to enter into a special agreement with the IRS during 2012.
29 What if I don’t report… How will the IRS ever find out? Under this agreement a “participating” FFI will be obligated to:undertake certain identification and due diligence procedures with respect to its accountholders;report annually to the IRS on its accountholders who are U.S. persons or foreign entities with substantial U.S. ownership; andwithhold and pay over to the IRS 30% of any payments of U.S. source income, as well as gross proceeds from the sale of securities that generate U.S. source income, made to:(a) non-participating FFIs,(b) individual accountholders failing to provide sufficient information to determine whether or not they are a U.S. person, or(c) foreign entity accountholders failing to provide sufficient information about the identity of its substantial U.S. owners.Because the new requirements will go into effect in 2013, the exact details of the new reporting and withholding requirements have yet to be determined.
30 MARCH 14, 2011Taxpayer was sentenced before U.S. District Judge to 3 years probation for hiding assets in secret offshore UBS bank accounts.Taxpayer was ordered to pay approximately $100,000 for failing to file the FBAR.According to court documents the taxpayer filed false tax returns for 2000 through 2008 in which he failed to report that he had an interest in or a signature authority over foreign financial accounts at UBS and Credit Suisse; he also failed to report income earned on these foreign bank accounts and never filed any FBARs disclosing his interest in any offshore financial accounts.In February 2009, UBS entered into a deferred prosecution agreement under which the bank admitted to helping U.S. taxpayers hide accounts from the IRS. As part of their agreement, UBS provided the United States government with the identities of, and account information for, certain U.S. customers of UBS’s cross-border business.
31 Passive Foreign Investment Company (“PFIC”) A foreign corporation is a PFIC if it meets either the income or asset(s) test:Income Test – 75% or more of the corporation’s gross income is passive for the taxable year orAsset Test – at least 50% of the average percentage of assets held by the foreign corporation during the taxable year are assets that produce passive income or that are held for the production of passive incomeUnder the asset test you can use the adjusted basis for analysis if company is not publicly traded and the corporation is a CFC or makes an election to use the adjusted basis
32 Passive Foreign Investment Company (“PFIC”) Look through rules – applies when foreign corporation owns at least 25% of another corporation, if it holds a proportionate share of the assets and received directly its proportionate share of the income of the 25% or more owned corporationCFC overlap rule – a 10% U.S. shareholder that includes income is provided a share of Subpart F income for stock of a CFC that is also a PFIC will not be subject to the PFIC provisions for the same stockQualified Electing Fund (“QEF”) - A PFIC is a QEF if the U.S. person who is a direct or indirect shareholder of the PFIC makes the electionShareholder must annually include in gross income as ordinary income, its pro rata share of the ordinary earnings and as long term capital gain the net capital gain of the QEF
33 Passive Foreign Investment Company (“PFIC”) Shareholder may elect to extend the time for payment of tax on its share of undistributed earnings of the QEF until the QEF election is terminatedShareholder may make a deemed sale election or a deemed dividend election to remove the Section 1291 Fund years from its holding period
34 OVDI – Passive Foreign Income Company Investment Computations Significant number of cases involve PFIC investmentsLack of historical information on cost basis and holding period makes it difficult for taxpayers to prepare information and for IRS to verify themTo address “unduly delay” taxpayers have an alternative to the standard PFIC computation by using a methodology consistent with the mark-to-market – Code Section 1296 and not require complete reconstruction of historical data
35 OVDI – Passive Foreign Income Company Investment Computations Alternative resolutions consist of the following:20% tax rate to MTM gains from all PFIC dispositions during the VDP period; and7% tax for the first year of the VDP applicationMTM losses are “limited to unreversed inclusions” – multiply MTM loss by 20% and apply the result as a credit against the tax liability for the yearAMT and regular taxes are computed without the PFIC dispositions or MTM gains and/or lossesAny PFIC investment beyond December 31, 2008, the taxpayer must continue using the MTM method and the regular rules under Code Section 1296 et al.
36 FBAR: Increased Disclosure – More is Better Items unique to IsraelKeren HishtalmutPensionsBecause of FATCA, there is increased dialogue between banks doing business in the U.S. and the Treasury DepartmentBank LeumiBank MizrahiBank HapoalimThe U.S. - Israel Tax Treaty has not been modified since 1995.Increased scrutiny by the Office of Professional Responsibility (OPR).Ensure that all CPE qualifications have been met and maintained.
37 Domestic Trusts Owned by Foreigners Splits legal / beneficial ownership from tax ownershipTransfers the assets out of the estate tax realmProvides creditor protectionMust be reported to the U.S. since there is a beneficial ownership
38 Major Changes Made to Lien Process In its latest effort to help struggling taxpayers, the Internal Revenue Service announced a series of new steps to help people get a fresh start with their tax liabilities.Specifically, the IRS is instituting new policies and programs to help taxpayers pay back taxes and avoid tax liens.
39 Major Changes Made to Lien Process The changes include:Significantly increasing the dollar threshold when liens are generally issued, resulting in fewer tax liens.Making it easier for taxpayers to obtain lien withdrawals after paying a tax bill.Withdrawing liens in most cases where a taxpayer enters into a Direct Debit Installment Agreement.Creating easier access to Installment Agreements.Expanding a streamlined Offer in Compromise program to cover more taxpayers.IRS Commissioner Doug Shulman said “These steps are in the best interest of both taxpayers and the tax system. People will have a better chance to stay current on their taxes and keep their financial house in order. We all benefit if that happens.”
40 Major Changes - Tax Lien Thresholds Currently, liens are automatically filed at certain dollar levels for people with past-due balances.The IRS will significantly increase the dollar thresholds when liens are generally filed.A lien can affect a taxpayer's credit rating, so it is critical to arrange the payment of taxes as quickly as possible.These changes mean tens of thousands of people won’t be burdened by liens, and this step will take place without significantly increasing the financial risk to the government.
41 Major Changes - Tax Lien Withdrawals The IRS will also modify procedures that will make it easier for taxpayers to obtain lien withdrawals.Liens will now be withdrawn once full payment of taxes is made if the taxpayer requests it.In order to speed the withdrawal process, the IRS will also streamline its internal procedures to allow collection personnel to withdraw the liens.
42 Direct Debit Installment Agreements and Liens For taxpayers with unpaid assessments of $25,000 or less, the IRS will now allow lien withdrawals under several scenarios:Lien withdrawals for taxpayers entering into a Direct Debit Installment Agreement.The IRS will withdraw a lien if a taxpayer on a regular Installment Agreement converts to a Direct Debit Installment Agreement.The IRS will also withdraw liens on existing Direct Debit Installment Agreements upon taxpayer request.
43 Direct Debit Installment Agreements and Liens Liens will be withdrawn after a probationary period demonstrating that direct debit payments will be honored.Taxpayers can use the Online Payment Agreement application on IRS.gov to set-up with Direct Debit Installment Agreements.
44 Installment Agreements and Small Businesses The IRS will make streamlined Installment Agreements available to more small businesses by raising the dollar limit to allow additional small businesses to participate.Small businesses with $25,000 or less in unpaid tax can participate. (Currently, only small businesses with under $10,000 in liabilities can participate.)Small businesses will have 24 months to pay.Small businesses with an unpaid assessment balance greater than $25,000 would qualify for the streamlined Installment Agreement if they pay down the balance to $25,000 or less.Small businesses will need to enroll in a Direct Debit Installment Agreement to participate.
45 Offers in CompromiseThe IRS is expanding a new streamlined Offer in Compromise (OIC) program to cover a larger group of struggling taxpayers.This streamlined OIC is being expanded to allow taxpayers with annual incomes up to $100,000 to participate.In addition, participants must have tax liability of less than $50,000, doubling the current limit of $25,000 or less.
46 Chances of Being Audited In 2010, 1,581,394 individual income tax returns were audited out of the 142,823,105 that were filed – roughly 1.1%Of the total number of individual income tax returns audited in FY 2010, 273,999 (30%) were for returns claiming the Earned Income Tax Credit (“EITC”)Only 21.7% of the individual income tax audits were conducted by revenue agents, tax compliance officers, tax examiners and revenue office examinersThe majority of the audits (approximately 78.3%) were correspondence audits
47 PenaltiesIRS assessed 27.1 million civil penalties against individual taxpayers, up from million assessed in the previous yearTop three penalties were failure to pay – 57.3%, under payment of estimated tax – 27.3% and delinquent fee – 13%For businesses, a total of 1,145,931 civil penalty assessments, up from 970,098 for the year before42.1% of these assessments was either failure to pay or underpayment of estimated tax
48 Offers in CompromiseIn FY 2010, 57,000 Offers-in-Compromise were received by the IRS vs. 52,000 received in FY 200914,000 were accepted
49 Criminal Cases IRS initiated 4,706 criminal investigations in FY 2010 3,034 referrals for prosecution and 2,184 convictions, of those sentenced, 81.5 % received jail time which is a significant increase over FY 2009 where 4,121 criminal investigations and 2,570 were referred for prosecution, similar incarceration rate
50 Large & Mid-Size Business (LMSB) Large Business & International Division (LB&I) As part of a continuing effort to improve global tax administration efforts, the IRS is realigning the Large and Mid-Size Business (LMSB) division to create a more centralized organization dedicated to improving international tax compliance.Effective October 1, 2010, LMSB changed to the Large Business and International division (LB&I).The new LB&I organization will enhance the current International program, adding about 875 employees (additional examiners, economists and technical staff) to the existing staff of nearly 600.
51 Large & Mid-Size Business (LMSB) Large Business & International Division (LB&I) The realignment will strengthen international tax compliance in several ways, including:Identifying emerging international compliance issues more quickly,Removing geographic barriers, allowing for the dedication of IRS experts to the most pressing international issues,Increasing international specialization among IRS staff,Ensuring the right compliance resources are allocated to the right cases,Consolidating oversight of international information reporting and implementing new programs, such as the Foreign Account Tax Compliance Act (FATCA),Coordinating the Competent Authority more closely with field staff that originates cases, especially those dealing with transfer pricing, andOtherwise centralizing and enhancing the IRS's focus on transfer pricing.
52 Large & Mid-Size Business (LMSB) Large Business & International Division (LB&I) LB&I will continue to serve the same population of taxpayers – corporations, subchapter S corporations and partnerships with assets greater than $10 million as well as certain high wealth individuals.The announcement marks the latest in a number of efforts the IRS has made to increase international tax compliance. The IRS has taken major steps to address offshore tax evasion, including the investigation of the misuse of undisclosed offshore accounts by U.S. taxpayers. The IRS has also recently created a Global High Wealth Industry to better monitor tax compliance by high income individuals and their related enterprises.The IRS and the Department of Treasury have also worked to revise tax treaties and tax information exchange agreements to increase transparency and to make it more difficult for taxpayers to evade taxes just by crossing international borders.
53 New Return Preparer Requirements The IRS has proposed to require all individuals who receive compensation for preparing all or substantially all of a federal tax return or claim for refund after Dec. 31, 2010, to have a Preparer Tax Identification Number (PTIN).This is part of a series of steps planned to increase oversight of federal tax return preparation.There is a new online application registration system at IRS.gov.You will need to obtain or reapply for a PTIN (regardless of whether you currently possess a PTIN) and pay a user fee.
54 New Return Preparer Requirements Compensated tax return preparers would pay a $64.25 user fee the first year for a PTIN based on two underlying costs.Under these rules, compensated tax return preparers will be required to renew their PTINs annually and pay the associated user fee.The amount of the fee may change in future years.Tax return preparers who already have a PTIN generally will be reassigned the same number.
55 New Return Preparer Requirements Applicants will be asked if they have met their own tax-filing requirements, if they owe any money to the IRS, and whether they have ever been convicted of any felony. There is also a proposed testing requirement being discussed.The tests will include the 1040, the Schedule C-EZ, and perhaps a small business return.Attorneys, certified public accountants, and enrolled agents who are active and in good standing with their respective licensing agencies are exempt from competency testing.
56 Taxpayer Advocate Service…Slowdown “The Taxpayer Advocate Service plays an important role in tax administration by helping taxpayers who have tried, unsuccessfully, to resolve their tax problems using normal IRS channels.” - J. Russell George, the Treasury Inspector General for Tax AdministrationThe Taxpayer Advocate Service (TAS) is taking longer to process cases, due to factors that include an increased Internal Revenue Service focus on enforcement.
57 Taxpayer Advocate Service… Slowdown An increased number of taxpayers have asked for TAS's assistance, in part because of the economy, the IRS's increased emphasis on enforcement actions, and legislative changes.An uptick in caseloads for employees and a 38% increase in cases received by the TAS since fiscal year 2005 have affected its ability to timely assist taxpayers.In fiscal year 2009, cases were open an average of 80 calendar days, which is an increase of 14 calendar days, or 22%, since fiscal year 2005.
58 Recent Survey Finds Companies Lack Policies, Procedures to Handle IRS Audits KPMG LLP survey finds that many senior financial executives and tax directors said that they lacked formal policies and procedures to manage the Internal Revenue Service audit process, despite saying their companies are involved in more audit activity than they were two years ago.Survey shows that 40% of the 270 corporate officials it surveyed said their companies did not have such policies or procedures to manage the audit process even though audit activity has increased.
59 Recent Survey Finds Companies Lack Policies, Procedures to Handle IRS Audits As jurisdictions face budget deficits and seek new sources of revenue, “companies will find that being unprepared can make the audit process extremely time-consuming and strain resources,” said KPMG principal.It is also important that companies identify the documents, time, people, and resources that might be needed to handle a potential tax audit.68% of respondents also said they designate a single point of contact to interact directly with IRS on audit issues.Finally, your clients should be aware of options to resolve their cases at higher levels of review, such as appeals, mediation, and early referral.