Foreign Account Tax Compliance Act

Specified Foreign Financial Assets | Form 8938 International Tax Lawyers

Specified Foreign Financial Assets is one of the most important terms in contemporary US international tax law. In this article, I will explore what these Specified Foreign Financial Assets are and why they play such an important role in modern US international tax compliance.

Specified Foreign Financial Assets and FATCA

In order to understand the significance of the Specified Foreign Financial Assets, we must turn to one of the most important US tax laws called Foreign Account Tax Compliance Act or FATCA.

FATCA was signed into law in 2010 and it immediately became the most important development in international taxation since at least 1970s, if not all the way to the end of the Second World War. There are three parts of FATCA that made it such a revolutionary development in international tax law. The first part of FATCA requires all foreign financial institutions (FFIs) to report to the IRS, directly or indirectly, Specified Foreign Financial Assets (be careful, this concept can be modified by a FATCA implementation treaty to include and exclude various foreign assets) owned by US persons. In essence, it meant that the world financial community would now serve as an IRS informer, providing the third-party reporting of financial assets owned by US persons.

In order to enforce this “obligation”, the second part of FATCA imposed a 30% penalty on the gross amount of a transaction whenever the transaction is related to an institution that is not compliant with FATCA. Such a huge penalty was meant to force all FFIs to become FATCA-compliant and, to a large extent, this goal has been attained.

With the third-party reporting secured by the first two parts of FATCA, the third part of FATCA imposed a new reporting requirement, Form 8938, on certain categories of US taxpayers who would fall within the categories of Specified Individuals and (starting 2016) Specified Domestic Entities. FATCA Form 8938 forced these Specified Persons to directly report their Specified Foreign Financial Assets with their US tax returns.

Specified Foreign Financial Assets: General Definition

In general, Specified Foreign Financial Assets include: foreign financial accounts and assets that are held for investment and not held in an account maintained by a financial institution. The concept of “assets held for investment and not held in an account” covers stocks or securities issued by anyone who is not a US person, any interest in a foreign entity, any financial instrument or contract that has an issuer or counterparty that is other than a US person, stock issued by a foreign corporation, an interest in a foreign trust or foreign estate and a capital or profits interest in a foreign partnership.

In other words, definition of the Specified Foreign Financial Assets is so broad that it applies to virtually any financial instrument or security one can imagine as long as one of the counterparties and/or issuers is a foreign person. It also includes pretty much any ownership interest in a foreign business entity as well as a beneficiary interest in a foreign trust. Therefore, it is always prudent to contact an international tax attorney to confirm whether your particular investment is covered by the definition of the Specified Foreign Financial Assets.

Specified Foreign Financial Assets: Additional Non-Exclusive Lists of Assets

Additionally, the instructions to Form 8938 specifically state that Specified Foreign Financial Assets encompass an interest rate swap, currency swap, basis swap, interest rate cap, interest rate floor, commodity swap, equity swap, equity index swap, credit default swap, or similar agreement with a foreign counterparty. Specified Foreign Financial Assets also include a note, bond, debenture, or other form of indebtedness issued by a foreign person. Finally, options and other derivative instructions with a foreign counterparty or issuer are also included in the definition of Specified Foreign Financial Assets.

Specified Foreign Financial Assets: Influence of FATCA Implementation Treaties

Despite the broad general definition of Specified Foreign Financial Assets and despite the “laundry” list of assets specifically identified above, one should always look at a specific FATCA implementation treaty in order to verify whether an asset is considered to fall within the definition of Specified Foreign Financial Assets. In particular, one must have extra care with foreign retirement accounts. During the negotiation of FATCA Implementation Treaties, countries often insisted that particular types of retirement accounts should be excluded from FATCA reporting (the United Kingdom was particularly successful in this respect).

A word of caution: even if an asset is excluded from FATCA reporting, it does not automatically mean that it would also be excluded from FBAR reporting. It is possible to have a financial asset reportable exclusively on FBAR, but not Form 8938.

Contact Sherayzen Law Office for Professional Help with Reporting of Specified Foreign Financial Assets on Form 8938

If you have any of the Specified Foreign Financial Assets listed above, contact Sherayzen Law Office for professional help. In addition to annual tax compliance, our firm can help you with the offshore voluntary disclosure with respect to any delinquent Forms 8938 which you have not timely filed in any of the prior years.

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Specified Domestic Entity Definition | FATCA Form 8938 Tax Lawyers Update

The recent introduction of the new concept of Specified Domestic Entity by the IRS represents a major expansion of the application of FATCA to US businesses and US trusts. For tax years beginning after December 31, 2015, a domestic corporation, partnership or trust classified as a Specified Domestic Entity must file FATCA Form 8938 with respect to its Specified Foreign Financial Assets (SFFA) as long as the total value of those assets meets the filing threshold. With this article, I begin a series of articles with respect to the definition of the Specified Domestic Entity and the affect of this new FATCA concept on US businesses and trusts. Today, I will introduce the general definition of a Specified Domestic Entity.

Specified Domestic Entity Definition: FATCA Background

Before we approach the Specified Domestic Entity Definition, we first need to make sure that we understand what FATCA is. The Foreign Account Tax Compliance Act or FATCA was signed into law in 2010 and codified in Sections 1471 through 1474 of the Internal Revenue Code. The law was enacted in order to reduce offshore tax evasion by US persons with undisclosed foreign accounts.

There are three main parts of FATCA (one can identify even more, but this type of analysis is most useful for the purposes of introducing the Specified Domestic Entity Definition). The first part is the obligation of foreign financial institutions (FFIs) to report to the IRS all foreign financial accounts held, directly or indirectly, by US persons. The second part of FATCA is a 30% withholding tax imposed on the gross amount of each transaction if the transaction involves a non-compliant FFI (these are the “teeth” of FATCA that force FFIs around the world to accept the first part of FATCA).

Finally, the third part of FATCA is the part most relevant to the Specified Domestic Entity Definition – the imposition of a new reporting requirement on US taxpayers with respect to Specified Foreign Financial Assets. This new requirement is called Form 8938.

Specified Domestic Entity Definition: Form 8938 Applied to Specified Individuals Only Prior to 2016

Prior to January 1, 2016, only certain categories of individuals were required to file Form 8938. These individuals were grouped under the term of a “specified individual”. In general, the term “specified individual” included US citizens, all resident aliens and certain categories of nonresident aliens. No business entities or trusts were required to file Form 8938 prior to 2016.

Specified Domestic Entity Definition: New Filing Category Starting 2016

This situation changed dramatically on January 1, 2016 with the introduction of a new category of Form 8938 filers. Starting tax years that began after December 31, 2015, business entities and trusts that are classified as Specified Domestic Entities must file Form 8938 as long as they meet the Form 8938 filing threshold.

Specified Domestic Entity Definition: General Definition

Now that we understand the context in which the Specified Domestic Entity Definition appeared, let’s state this definition.

Treas. Reg. §1.6038D-6(a) defines a Specified Domestic Entity as “a domestic corporation, a domestic partnership, or a trust described in 26 U.S.C. §7701(a)(30)(E), if such corporation, partnership, or trust is formed or availed of for purposes of holding, directly or indirectly, specified foreign financial assets.” As it is often the case with US international tax law, this general definition is pregnant with terms of art that require specific understanding and further analysis. In particular, we will need to explore the terms “domestic”, “formed or availed of for purposes of holding”, “holding directly or indirectly”, and “specified foreign financial assets.”

In the future articles concerning the analysis of the Specified Domestic Entity Definition, I will explore all of these terms. Without a doubt, the focus of our analysis will be on “formed or availed of for purposes of holding” clause, because this is the heart of the Specified Domestic Entity Definition.

Contact Sherayzen Law Office for Professional Help With the Specified Domestic Entity Definition, FATCA Form 8938 Filing and Other International Tax Compliance Issues

If you need to determine whether your business entity or your trust falls under the definition of a Specified Domestic Entity, contact Sherayzen Law Office for help. Our professional team, headed by international tax attorney Eugene Sherayzen, Esq., will thoroughly analyze your case, determine whether you need to file Form 8938 and/or any other US international information returns, and prepare these forms for you. We can also help you with the voluntary disclosure of any of your offshore assets if you did not timely comply with your US tax obligation with respect to these assets.

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Former Credit Suisse Banker Pleads Guilty | FATCA Lawyer Duluth

On July 19, 2017, Ms. Susanne D. Rüegg Meier, a citizen of Switzerland, pleaded guilty to conspiring to defraud the United States in connection with her work as the head of a team of bankers for Credit Suisse AG. The announcement of this plea by a former Credit Suisse Banker came from the U.S. Department of Justice’s Tax Division.

Facts that Led to Guilty Plea by the Former Credit Suisse Banker

According to the statement of facts and the plea agreement, Ms. Rüegg Meier admitted that, between 2002 and 2011, she worked as the team head of the Zurich Team of Credit Suisse’s North American desk in Switzerland. Ms. Rüegg Meier was responsible for supervising the servicing of accounts involving over 1,000 to 1,500 client relationships, out of which she personally handled about 140 to 150 clients (the great majority of these clients were U.S. persons). These “personally handled” clients had assets of about $400 million.

Ms. Rüegg Meier assisted many U.S. clients in utilizing their Credit Suisse accounts to evade their U.S. income taxes and to facilitate concealment of their undeclared financial accounts from the U.S. Department of the Treasury and the IRS. In particular, she engaged in the following activities to help her clients conceal their accounts: retaining in Switzerland all mail related to the account; structuring withdrawals in the forms of multiple checks each payable in amounts less than $10,000 that were sent by courier to clients in the United States and arranging for U.S. customers to withdraw cash from their Credit Suisse accounts at Credit Suisse locations outside Switzerland, such as the Bahamas. Moreover, Ms. Rüegg Meier admitted that approximately 20 to 30 of her U.S. clients concealed their ownership and control of foreign financial accounts by holding those accounts in the names of nominee tax haven entities or other structures that were frequently created in the form of foreign partnerships, trusts, corporations or foundations.

Additionally, between 2002 and 2008, the former Credit Suisse banker traveled approximately twice per year to the United States to meet with her clients. Among other places, Ms. Rüegg Meier met clients in the Credit Suisse New York representative office. To prepare for the trips, the former Credit Suisse banker would obtain “travel” account statements that contained no Credit Suisse logos or customer information, as well as business cards that bore no Credit Suisse logos and had an alternative street address for her office, in order to assist her in concealing the nature and purpose of her business.

After the UBS case, Credit Suisse began closing U.S. customers’ accounts in 2008. During that time, Ms. Rüegg Meier assisted the clients in keeping their assets concealed. In one instance, when one U.S. customer was informed that the bank planned to close his account, the former Credit Suisse banker assisted the customer in closing the account by withdrawing approximately $1 million in cash. Furthermore, she advised the client to find another bank simply by walking along the street in Zurich and locating a bank that would be willing to open an account for the client. The customer placed the cash into a paper bag and exited the bank.

Admitted Tax Loss from the Activities of the Former Credit Suisse Banker and Potential Sentence

The former Credit Suisse Banker admitted that the tax loss associated with her criminal conduct was between $3.5 and $9.5 million. The sentencing of Ms. Rüegg Meier is scheduled for September 8, 2017. She faces a statutory maximum sentence of five years in prison, a period of supervised release, restitution and monetary penalties.

IRS Wins Another Case Against Secret Belize Bank Accounts | FATCA Lawyers

On March 23, 2017, the IRS scored another major victory against using Belize bank accounts to hide income. On that day, Mr. Casey Padula pleaded guilty to conspiracy to commit tax and bank fraud, including using Belize bank accounts to conceal almost $2.5 million.

Facts Concerning Using Belize Bank Accounts to Commit Tax Fraud

According to documents filed with the court, Mr. Padula was the sole shareholder of Demandblox Inc. (Demandblox), a marketing and information technology business. Mr. Padula conspired with others to move funds from Demandblox to his Belize bank accounts, disguising the transfer of funds as business expenses in Demandblox’s corporate records. At the same time, Mr. Padula created two offshore companies in Belize: Intellectual Property Partners Inc. (IPPI) and Latin American Labor Outsourcing Inc. (LALO). He opened and controlled bank accounts in the names of these entities at Heritage International Bank & Trust Limited (Heritage Bank), a financial institution located in Belize.

From 2012 through 2013, Demandblox “paid” to the bank accounts at Heritage Bank approximately $2,490,688. The transfers were recorded as intellectual property rights or royalty fees on Demandblox’s corporate books and deducted as business expenses on the company’s 2012 and 2013 corporate tax returns, causing a tax loss of more than $728,000. In reality, Mr. Padula used the funds to pay for personal expenses and purchase significant personal assets.

Furthermore, Mr. Padula also conspired with investment advisors Mr. Joshua VanDyk and Mr. Eric St-Cyr at Clover Asset Management (CAM), a Cayman Islands investment firm, to open and fund an investment account that he would control, but that would not be in his name. Heritage Bank had an account at CAM in its name and its clients could get a subaccount through Heritage Bank at CAM, which would not be in the client’s name but rather would be a numbered account. Mr. Padula transferred $1,000,080 from the IPPI bank account at Heritage Bank in Belize to CAM to fund his numbered account.

Facts Concerning Bank Fraud

In addition to committing tax fraud, Mr. Padula also conspired with others to commit bank fraud.

Mr. Padula had a mortgage on his Port Charlotte, Florida home of approximately $1.5 million with Bank of America (BoA). In 2012, he sent a letter to the bank stating that he could no longer repay his loan. At the same time, Mr. Padula provided Mr. Robert Robinson, III, who acted as a nominee buyer, with more than $625,000 from his IPPI bank account in Belize to fund a short sale of Mr. Padula’s home. Mr. Padula and Mr. Robinson signed a contract, which falsely represented that the property was sold through an “arms-length transaction,” and agreed that Padula would not be permitted to remain in the property after the sale.

In fact, Mr. Padula never moved from his home. Moreover, less than two months after the closing, Mr. Robinson conveyed it back to Mr. Padula by transferring ownership to one of Mr. Padula’s Belizean entities for $1. Mr. Robinson also pleaded guilty on March 23, 2017, to signing a false Form HUD-1 in connection with his role in the scheme.

Potential Penalties Concerning Using Belize Bank Accounts to Commit Tax Fraud

Mr. Padula faces a statutory maximum sentence of five years in prison, a term of supervised release and monetary penalties. As part of his plea agreement, Mr. Padula agreed to pay restitution to the IRS and to BoA in the amount of $728,609. Mr. Robinson faces a statutory maximum sentence of one year in prison, a term of supervised release, restitution and monetary penalties.

Lessons of the Padula Case

The Padula Case is a classic illustration of facts that often lead to a criminal prosecution by the IRS. First, he was shifting US-source income to Belize bank accounts by creating an artificial loss between the entities that he controlled.

Second, Mr. Padula employed a sophisticated offshore corporate structure to actively attempt to conceal his ownership of his Belize bank accounts. While the guilty plea does not specifically state how the IRS first found out about Mr. Padula’s structure, it appears to me that it occurred in connection with the IRS criminal cases against Mr. VanDyk and Mr. St-Cyr.

Finally, Mr. Padula utilized Belize, a tax haven, to commit tax fraud. This is always a factor for the IRS with respect to deciding whether to commence a criminal investigation.

Additionally, the Padula Case is another confirmation there are no safe havens anymore. Especially since the implementation of FATCA, the IRS has now the capacity to trace the transfer of funds, identify the tax violations and present sufficient evidence to prosecute a criminal case.

Contact Sherayzen Law Office for Professional Help With the Voluntary Disclosure of Your Belize Bank Accounts

If you have undisclosed Belize bank accounts or undisclosed offshore assets in any other foreign country, you should contact Sherayzen Law Office to explore your voluntary disclosure options as soon as possible. If the IRS commences an investigation against you, this very fact may result in the closure of all voluntary disclosure paths currently available to you.

Sherayzen Law Office has accumulated tremendous experience in helping its clients with their Offshore Voluntary Disclosures, including Streamlined Domestic Offshore Procedures, Streamlined Foreign Offshore Procedures and Offshore Voluntary Disclosure Program (OVDP). We can help you!

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