Ocultar dinero o activos en cuentas extranjeras no declaradas es un delito segun el Servicio de Impuestos Internos (“IRS”). De hecho, el IRS incluye cuentas extranjeras no declaradas en la lista de estafas tributarias “Docena sucia” del año 2019. Recopilada anualmente, la “Docena sucia” enumera una variedad de estafas comunes que los contribuyentes pueden encontrar en cualquier momento, incluido los esquemas extranjeros.
Esquemas Para Ocultar Dinero en Cuentas Extranjeras No Declaradas
Ocultar dinero en cuentas extranjeras no declaradas es un esquema promocionado en el Internet por muchas companias. Algunas de ellas proponen de ocultar los ingresos en bancos, cuentas de corretaje o entidades nominales extranjeras. Esas personas dicen a los contribuyentes que ellos luego pueden acceder a los fondos mediante tarjetas de débito, tarjetas de crédito o transferencias bancarias. Otros esquemas son aun mas creativos – usan fideicomisos, planes de arrendamiento de empleados, anualidades privadas o planes de seguro extranjeros para el mismo propósito.
Se Puede Tener Cuentas Extranjeras Declaradas
Es importante de ratificar que tener una cuenta bancaria en el extranjero no es un delito; solamente ocultar dinero en una cuenta extranjera no declarada es ilegal. Existen muchas razones legítimas para mantener cuentas financieras fuera de los Estados Unidos.
Sin embargo, los contribuyentes con cuentas extranjeras deben cumplir con los requisitos de presentación de informes. Los informes mas importantes son el Formulario 8938, Declaración de Activos Financieros Extranjeros Especificados, y Formulario 114, el Informe de Cuentas Bancarias y Financieras Extrajeras. Formulario 114 proviene de la Ley de Secreto Bancario (“BSA”) y es mas conocido como FBAR. Formulario 8938 proviene de FATCA.
Ocultar Dinero en Cuentas Extranjeras No Es Un Esquema Seguro
Ocultar dinero en cuentas extranjeras parece ser seguro, pero no lo es. Hay muchas maneras para el IRS de descubrir las cuentas extranjeras no declaradas: seguir las transactions, informes de terceros, información obtenida durante auditorías y, últimamente, los bancos.
A causa de la Ley de Cumplimiento Tributario de Cuentas en el Extranjero (“FATCA”), su banco extranjero tiene la obligación de declarar sus cuentas bancarias al IRS si el banco descubra que usted es un residente tributario de los Estados Unidos. Además, el IRS recibe más información sobre posibles incumplimientos a través de la red de acuerdos intergubernamentales entre las jurisdicciones de los EE. UU. y los socios.
Ocultar Dinero en Cuentas Extranjeras Puede Terminar en Multas Graves y Cargos Penales
“La evasión en el extranjero sigue siendo un punto focal de los esfuerzos de cumplimiento del IRS,” dijo Chuck Rettig, Comisionado del IRS. “Nuestros equipos de Investigación Criminal y de cumplimiento civil trabajan en estrecha colaboración con el Departamento de Justicia en el ámbito internacional para garantizar que se cumplan las leyes tributarias de nuestra nación. Los contribuyentes que consideran esconder fondos en el exterior deben pensarlo dos veces; las multas pueden ser severas.”
Si usted utiliza esos esquemas para ocultar dinero o activos, eso puede exponerlo a usted a varias multas importantes y aun posibles procesos penales. El IRS realizó miles de auditorías civiles relacionadas con el extranjero que resultaron en el pago de decenas de millones de dólares en impuestos. El IRS también ha presentado cargos penales que llevan a miles de millones de dólares en multas penales y restitución.
Llame Sherayzen Law Office Para Ayuda Professional Con Cuentas Extranjeras No Declaradas
Si usted tiene cuentas extranjeras no declaradas, usted debe communicarse con Sherayzen Law Office lo mas pronto posible. Hay posibilidades de bajar y aun evitar multas de FBAR and FATCA, pero es necesario actuar lo mas pronto posible y antes de que el IRS descrubre su incumplimiento con la ley tributaria de los Estados Unidos.
Llamenos or mandenos un mensaje por el correo electronico hoy para programar una cita confidencial con el abogado Eugene Sherayzen!
While there are a number of articles in professional publications and attorneys’ blogs covering the civil penalties associated with a failure to comply with the Foreign Account Tax Compliance Act (“FATCA”), there is almost a complete silence with respect to FATCA criminal penalties. This essay intends to fill this gap by introducing its readers to potential FATCA criminal penalties that the IRS may pursue in case of FATCA noncompliance.
FATCA Criminal Penalties: FATCA Background and FFI Reporting Requirements
Congress enacted the Foreign Account Tax Compliance Act (“FATCA”) as part of the Hiring Incentives to Restore Employment (“HIRE”) Act of 2010. The law revolutionized international tax compliance, because, for the very first time, it forced all foreign financial institutions (“FFIs”) to report their US account holders to the IRS, including their names, account numbers and highest values of these accounts.
In other words, FATCA has turned all compliant FFIs into IRS agents. FFIs now carry the entire burden of automatically (and, it is important to emphasize the word “automatically”) disclosing all of the FATCA-required information directly to the IRS. The IRS now only needs to properly process and analyze the data in order to identify noncompliant taxpayers and investigate them.
How did the Congress achieve this goal? It imposed a very harsh penalty on FATCA-noncompliant FFIs without paying much attention to the potential legal and political implications such an over-reaching law has for the sovereignty of other nations. FATCA created a new tax withholding regime under which every noncompliant FFI faces a 30% withholding with respect to any incoming transaction. The penalty is imposed on the gross amount of a transaction, which means that using a noncompliant FFI may result in a net loss for the parties engaged in the transaction.
The net impact of the FATCA FFI penalty is that no bank or person would wish to utilize a noncompliant FFI, effectively cutting off the latter from the any USD-nominated transactions and the world markets.
FATCA Criminal Penalties: FATCA Requirements Imposed on US Taxpayers
FATCA created a new tax reporting obligation specifically for US taxpayers called Form 8938. I have discussed Form 8938 in detail elsewhere on my website and here I will provide just a very simplified description of this requirement. A Specified Person (who can be an individual or an entity) must file Form 8938 if the value of his Specified Foreign Financial Assets (SFFAs) exceeds a certain filing threshold which is determined by the tax return filing status of the Specified Person.
SFFAs are defined very broadly to include pretty much any type of a financial asset, an ownership interest in a foreign business, ownership of a beneficiary interest in a foreign trust, ownership interest in a foreign trust under the IRC Sections 671 through 679, et cetera. Additionally, Form 8938 requires the Specified Person to report foreign income attributable to holding or disposing of SFFAs.
Failure to file Form 8938 may lead to an imposition of a $10,000 civil penalty, subject to reasonable cause exception. An additional $10,000 penalty applies if the taxpayer fails to file Form 8938 within 90 days after the IRS mails notice of the failure to file the form. If the taxpayer persists in his failure to file the form, the IRS will impose additional $10,000 for each thirty-day periods the failure continues up to the maximum of $50,000. It is important to note that the statute of limitations does not start to run if Form 8938 has not been filed.
FATCA Criminal Penalties in General
Interestingly, the US Congress did not create any separate FATCA criminal penalties. The IRS and the US Department of Justice (“DOJ”), however, have not had any problems in engaging into criminal prosecutions of FATCA violations.
There are three major provisions that the IRS and the DOJ can rely upon in their criminal prosecution of FATCA violations. First, 18 U.S.C. section 371 (see below for more details). Second, 26 U.S.C. 7201 – a felony charge for intentional filing of a false Form 8938. Finally, 26 U.S.C. 7203 – a misdemeanor charge for a willful failure to file Form 8938.
Since Section 371 criminal charges are the most common at this point, let’s explore this type of a criminal prosecution charge in more detail.
FATCA Criminal Penalties: 18 U.S.C. Section 371
As long as there is enough evidence, the IRS and the DOJ can use 18 U.S.C. section 371 to prosecute US taxpayers based on a charge of engaging in a FATCA-related conspiracy. This is likely to become the most favorite tool to prosecute persons for aiding US clients to circumvent FATCA requirements, including tax withholding provisions.
The DOJ already used this tool as early as within two months after FATCA tax withholding obligations became effective in July of 2014. On September 9, 2014, Mr. Robert Bandfield, five other individuals and six corporations were charged under 18 U.S.C. section 371 for a conspiracy to aid US clients with evasion of FATCA reporting requirements.
It is important to point out that criminal charges under 18 U.S.C. section 371 are especially dangerous for foreigners who help US taxpayers with tax evasion.
Contact Sherayzen Law Office for Professional Help With a Willful Failure to File Forms 8938
For persons who willfully failed to file their Forms 8938, the best strategy to avoid a criminal prosecution is to engage in a voluntary disclosure of their undisclosed foreign assets before the IRS finds out about your willful FATCA violations. Sherayzen Law Office can help you!
While the IRS flagship Offshore Voluntary Disclosure Program (“OVDP”) was closed on September 28, 2019, the IRS updated its traditional voluntary disclosure program in November of 2018 to help willful taxpayers voluntarily disclose their prior tax noncompliance. I will refer to this option as Modified Traditional Voluntary Disclosure (“MTVD”).
Sherayzen Law Office can help you with MTVD and any other type of a voluntary disclosure. Our highly-experienced team of tax professionals has helped hundreds of US taxpayers to successfully conduct an offshore voluntary disclosure of their undisclosed foreign assets and foreign income. We have prevented the initiation of numerous criminal prosecutions and saved tens of millions of dollars in penalties for our clients. We Can Help You!
On August 28, 2019, Mr. Eugene Sherayzen, the owner and founder of Sherayzen Law Office, Ltd, gave a seminar at Minsk City Bar Association (“MCBA”) in Minsk, Belarus. The focus of the seminar was on the 2017 Tax Cuts and Jobs Act (“2017 TCJA” or “2017 tax reform”) changes in the US international corporate tax law. Let’s discuss this 2019 Minsk seminar in more detail.
2019 Minsk Seminar: Organizational Aspects
The 2019 Minsk seminar was held at a location owned by MCBA in Minsk, Belarus. The seminar was well-attended by Minsk lawyers of various specializations, not just tax attorneys. Mr. Sherayzen conducted the seminar in the Russian language.
2019 Minsk Seminar: Structure of the Seminar
The seminar consisted of four parts: introduction to Sherayzen Law Office’s international tax practice, discussion of five important concepts of US international tax law, explanation of certain aspects of US international business tax law prior to the 2017 tax reform and the 2017 TCJA changes to US international corporate tax law. Throughout the seminar, Mr. Sherayzen made certain digressions into individual international tax law as well as general business tax law in order to better explain certain aspects of the 2017 tax reform to the audience.
2019 Minsk Seminar: Sherayzen Law Office International Tax Practice
During the seminar, Mr. Sherayzen introduced his law firm, Sherayzen Law Office, Ltd., to the audience. He explained that the focus of his practice is on US international tax law. After explaining what “US international tax law” meant, the attorney described the four main sub-areas of his practice: offshore voluntary disclosures, IRS international tax audits, annual compliance and international tax planning.
2019 Minsk Seminar: Five Concepts
After describing his practice, Mr. Sherayzen discussed in detail five relevant concepts of US international tax law. He first introduced the concept of “US tax residency” and generally described the categories of US tax residents. In response to a question from an attendee, the attorney distinguished US tax residency from immigration residency.
Then, Mr. Sherayzen discussed the principle of worldwide income taxation of US tax residents. The fact that US tax residents must report their worldwide income even if they reside overseas caused consternation among some attendees.
The discussion of the concept of income recognition resulted in a lively exchange between the speaker and the audience. At that point, Mr. Sherayzen alluded that this topic would be relevant to the his explanation of the anti-deferral regimes during the second part of his lecture.
The rest of this part of the seminar focused on the taxation powers of the US congress and the source of income rules. The attorney introduced certain general source-of-income rules, but warned about the enormous amount of exceptions in this area of law.
2019 Minsk Seminar: Pre-Tax Reform US International Corporate Tax Law
Mr. Sherayzen adopted a general historical approach to the explanation of US international corporate tax law prior to the 2017 TCJA. He commenced with a description of the progression of law since the 1920s, explaining the incentives that existed for the accumulation of cash overseas. Then, the attorney discussed the modifications to the law enacted by Congress throughout the years in order to combat tax avoidance by US corporations.
At that point, Mr. Sherayzen introduced the two main anti-deferral regimes: Subpart F rules and PFIC rules. He explained these regimes in a general manner, warning the audience that there were many specific rules and exceptions to these general rules. The attorney also discussed why these two anti-deferral regimes failed to stop tax avoidance and the continued accumulation of corporate cash in foreign subsidiaries.
2019 Minsk Seminar: 2017 Tax Reform
The discussion of the 2017 TCJA consisted of three parts: (1) reasons for the reform; (2) new rules to combat tax avoidance; and (3) tax incentives with respect to returning production to the United States and exporting from the United States.
After introducing the audience to the historical and political context in which 2017 TCJA was enacted, Mr. Sherayzen discussed the new tax avoidance prevention rules, focusing on the Section 965 tax and Global Intangible Low-Taxed Income (“GILTI”) tax. Then, the attorney explained the new tax incentives introduced by the 2017 tax reform, including lower corporate tax rates, full participation exemption and Foreign-Derived Intangible Income (“FDII”).
2019 Minsk Seminar: Conclusion
At the end of the seminar, there was an extensive Q&A session. Questions ranged from re-classification of shareholder loans during an offshore voluntary disclosure to certain aspect of the 2017 tax reform and its impact on corporate restructuring.
This article introduces readers to potential US international tax issues that a business entity may face when it elects to operate as a partnership for US tax purposes (all together “partnership international tax issues”). The focus of this article is on partnership international tax issues, particularly where US partnerships have a foreign partner and foreign partnerships have a US partner. The purpose of this article is to just identify the strategic groups of partnership international tax issues; future articles will analyze these issues in more depth.
Partnership International Tax Issues: Two Main Fact Patterns
As stated above, the partnership international tax issues outlined below concern primarily one of the following situations. First, a partnership is a US partnership and a foreign person invests in this partnership. Second, a partnership is a foreign partnership and a US person invests in this partnership.
The Internal Revenue Code (“IRC”) deals with both situations in a different manner. They are taxed differently, and a partnership and/or its partner may have to file different information returns.
Partnership International Tax Issues: Classification Issues
Three important US international tax issues exist with respect to classification of partnerships. First, classification of an entity or arrangement as a partnership. The tax classification of a partnership that is officially formed by filing appropriate organizational documents with the proper government entity is usually fairly clear. This is not the case, however, with respect to a situation where parties enter into a contractual arrangement which exhibit features similar to a partnership. In these situations the IRS may determine such a contractual arrangement to be a partnership for US tax purposes; these are so-called “contractual partnerships”.
Second, classification of a partnership as “domestic” or “foreign”. Again, the easiest cases are those that involve a formally-organized partnership, but contractual partnerships raise a lot of difficult issues.
Third, classification of a partnership as either “resident” or “non-resident”.
Partnership International Tax Issues: Issues Concerning Inbound Investments
An important set of US international tax issues arises when a foreign person invests in a US partnership. Most of these issues would arise in situations where the partnership trades or otherwise does business in the United States. The most salient issues concern: partnership formation, taxation of partnership operations, taxation of partnership distributions and sale of a partnership interest by a foreign partner. We will discuss these issues in more detail in the future.
Partnership International Tax Issues: Issues Concerning Taxation of Outbound Investments
Another highly important set of issues arises when a US person does business through a foreign partnership. The most important of these issues concern: acquisition of an interest in a foreign partnership, taxation of foreign partnership income allocated to US partners and disposition of an ownership interest in a foreign partnership.
These issues interconnect in an interesting and very complex way with such issues as income source rules, foreign tax credit, Subpart F rules and so on. The interaction of these issues may directly affect taxation of foreign income of a US partner. In future articles, we will cover this very diverse set of partnership international tax issues concerning taxation of outbound investments.
Partnership International Tax Issues: Tax Withholding Issues
US international tax law subjects domestic partnerships to a great variety of tax withholding rules whenever they have foreign partners with effectively connected income. Most common of these rules are the ones that concern partnership distributions to a foreign partner. Another very common example is Foreign Investment in Real Property Tax Act of 1980, commonly known as “FIRPTA”, tax withholding requirements. Again, we will cover these tax withholding issues as well as the problem of “effectively connected income” in future articles.
Partnership International Tax Issues: Tax Treaties
Bilateral tax treaties form an important part of US international tax law concerning taxation of partnerships. Partnership taxation is affected by a host of tax treaty issues. For example, the treatment of “hybrid” and “reverse hybrid” entities, tax treaty benefits and the issue of “imputed” permanent establishment are all highly important tax treaty issues that directly affect partnership taxation under US tax law. In future article, we will discuss selected tax treaties as well as certain features common to most US tax treaties.
Partnership International Tax Issues: Information Returns and Income Tax Returns
Numerous tax filing requirements are imposed on partnerships, especially US partners of foreign partnerships. The most salient information returns are those required by the Internal Revenue Code (“IRC”) Sections 6031, 6038 and 6046A. There is also an important interaction of these sections with information returns under the IRC Sections 6038A and 6038C. We will cover the partnership information and income tax returns in future articles.
Contact Sherayzen Law Office for Professional Help Concerning Partnership International Tax Issues
If you are a US person who owns an interest in a foreign partnership or a foreign person who owns an interest in a US partnership, contact Sherayzen Law Office for professional help. Our highly-experienced international tax team, headed by attorney Eugene Sherayzen, will help you identify your US international tax compliance issues and help you resolve them.
If you are facing an IRS audit concerning partnership international tax issues, you should call us as soon as possible to obtain the maximum benefit from our advice.