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IRS Letter 3708: IRS Demand to Pay FBAR Penalty

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After the IRS imposes an FBAR penalty on the taxpayer, the IRS will send the taxpayer IRS Letter 3708 to demand the payment of the part of the FBAR Penalty that remains unpaid. In this article, I would like to discuss IRS Letter 3708 in more detail, particularly focusing on the various FBAR Penalty Collection options that the letter lists.

First Part of IRS Letter 3708: Explanation of FBAR Penalty Imposed and Balance Unpaid

IRS Letter 3708 begins with the statement that this letter is a demand for the payment of the FBAR (Report of Foreign Bank and Financial Accounts) penalty that was assessed to the taxpayer under relevant IRC sections (such as §5321(a)(5) and §5321(a)(6)). Then, the IRS Letter 3708 mentions that the taxpayer should have previously received IRS Letter 3709 with the explanation of penalty imposed based on the facts of the taxpayer’s case.

Second Part of IRS Letter 3708: Account Summary and Payment Instructions

The next part of IRS Letter 3708 is devoted to the summary of the taxpayer’s account – i.e. the amounts owed per each relevant year. At total amount due is provided at the end.

The letter continues with the explanation of the precise payment instructions, including what information needs to be written on the check (in order for the payment to be applied correctly). Also, an option for an installment agreement is mentioned if the payment in full is not possible. However, even in the case of an installment agreement, the interest of at least 1% will be charged (interest rates may change); additional debt servicing fee of about 18% of the penalty amount may also be charged.

Third Part of IRS Letter 3708: Interest and Penalties

Failure to pay the amount due within 30 days may lead to the imposition of interest and penalties. The interest is imposed under IRC Section 3717(a)-(d); the current rate is 1% per year, but it may be raised in the near future.

The late payment penalty is imposed under IRC Section 3717(e)(2); currently, the rate if 6% per year. This penalty is imposed on portion of the FBAR penalty that remains unpaid 90 days from the date listed on IRS Letter 3708.

IRS Letter 3708 also mentions that both, interest and penalties, may be abated under 31 C.F.R. 5.5(b).

Fourth Part of IRS Letter 3708: Collection Enforcement and Costs

The fourth part of the IRS Letter 3708 is very important, because it is devoted entirely to how the IRS can collect the amount due. The letter lists seven different collection enforcement mechanisms that are available to the IRS if the debt not paid within 30 days:

• Referral to the Department of Justice to initiate litigation against the taxpayer.
• Referral to the Department of the Treasury’s Financial Management Service. (This referral involves an additional debt-servicing fee that is approximately 18% of the balance due.)
• Referral to private collection agencies. (Referral to a private collection agency increases the additional debt-servicing fee from approximately 18% to 28% of the balance due.)
• Offset of federal payments such as income tax refunds and certain benefit payments such as social security.
• Administrative wage garnishment.
• Revocation or suspension of federal licenses, permits or privileges.
• Ineligibility for federal loans, loan insurance or guarantees

These additional costs may be imposed on noncomplying taxpayer based on 31 U.S.C. §3717(e)(1).

Final Part of IRS Letter 3708: Contesting Penalty Assessment

At the end, IRS Letter 3708 advises the taxpayers of two main options for contesting the penalty assessment. First, the taxpayers can file an administrative appeal with the Appeals Office in Detroit. This option is available if an administrative appeal was not requested based on Letter 3709 or if new situations have occurred since the last administrative review. The appeal must be requested in writing within 30 days from the date listed on IRS Letter 3708.

The second option is to file a refund suit in the United States District Court or the United States Court of Federal Claims. IRS Letter 3708 does not state whether such a suit would be subject to the full-payment rule (such as one that applied in income tax matters).

Contact Sherayzen Law Office if Your Received IRS Letter 3708 or IRS Letter 3709

If you received IRS Letter 3708 or IRS Letter 3709, contact Sherayzen Law Office for legal help as soon as possible. We have helped taxpayers around the world to reduce their FBAR penalties and we can help you!

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IRS Increases Interest Rates for the Second Quarter of 2016

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On March 16, 2016, the Internal Revenue Service announced that interest rates have increased for the second quarter of 2016, which began on April 1, 2016 and ends on June 30, 2016. The second quarter of 2016 IRS interest rates will be:

four (4) percent for overpayments [three (3) percent in the case of a corporation];
one and one-half (1.5) percent for the portion of a corporate overpayment exceeding $10,000;
four (4) percent for underpayments; and
six (6) percent for large corporate underpayments.

The increase in the IRS interest rates for the second quarter of 2016 is the first such increase since the fourth calendar quarter of 2010. The second quarter of 2016 interest rates are computed from the federal short-term rate determined during January 2016 and went into effect Feb. 1, 2016, based on daily compounding. The federal short-term rate has increased from 0% to 1%. This is the first change to the interest rates since the fourth calendar quarter of 2010 when the federal short-term rate decreased from 1% to 0%.

Under the Internal Revenue Code, the rate of interest for the second quarter of 2016 is determined on a quarterly basis. For taxpayers other than corporations, the overpayment and underpayment rate is the federal short-term rate plus 3 percentage points.

Generally, in the case of a corporation, the underpayment rate is the federal short-term rate plus 3 percentage points and the overpayment rate is the federal short-term rate plus 2 percentage points. The rate for large corporate underpayments is the federal short-term rate plus 5 percentage points. The rate on the portion of a corporate overpayment of tax exceeding $10,000 for a taxable period is the federal short-term rate plus one-half (0.5) of a percentage point.

It is important to note that the increase in the interest rates for the second quarter of 2016 directly affects the calculation of PFIC interest.

IRS Announces Retirement Plan Contribution Limits for 2015

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On October 23, 2014, the Internal Revenue Service (IRS) announced the tax-year 2015 cost of living adjustments (COLAs) affecting the dollar limitations for pension plan contributions and plan contributions for other retirement-related plans. While many pension plan limitations will change for 2015 because the COLAs met the statutory thresholds triggering their adjustment, not all limitations met the necessary threshold, and will thus remain unchanged.

This article will briefly explain some of the notable items that are changed and unchanged for tax year 2015; the article is not intended to convey tax or legal advice.

401(k), 403(b), 403(b), Most 457 Plans, and the Federal Government’s Thrift Savings Plan

The annual elective plan contribution limit for employees who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan will increased from $17,500 in 2014 to $18,000 in 2015.

The 401(k) Catch-Up Plan Contribution Limit

For employees aged 50 and over who participate in 401(k), 403(b), most 457 plans, and the federal government’s Thrift Savings Plan, the catch-up contribution limit will increase to $6,000 in 2015, up from $5,500 in 2014.

Contribution Limitations to an Individual Retirement Arrangement

The annual contribution limitation to an Individual Retirement Arrangement (IRA) will remain unchanged at $5,500. Furthermore, the additional catch-up contribution limit for those individuals aged 50 and over is not subject to annual COLAs, and will also remain unchanged, at $1,000.

Roth IRA Phase-Outs

For taxpayers making contributions to Roth IRA’s, the AGI phase-out range will increase to $183,000 to $193,000 for married couples filing jointly, up from $181,000 to $191,000 in 2014. For single individuals and heads of household, the income phase-out range will be $116,000 to $131,000 in 2015, up from $114,000 to $129,000. For a married individual filing a separate return, the phase-out range is not subject to annual COLAs, and the range will remain from $0 to $10,000.

Deductible IRA Phase-Outs

For taxpayers making contributions to a traditional IRA, the 2015 deduction phases out for singles and heads of household who are covered by a workplace retirement plan and have modified AGI between $61,000 and $71,000, up from $60,000 and $70,000 in 2014. For married couples filing jointly, in which the spouse who makes the IRA contribution is covered by a workplace retirement plan, the income phase-out range will increase to $98,000 to $118,000 for 2015, up from $96,000 to $116,000.

For IRA contributors not covered by workplace retirement plans, and who are married to someone who is covered, the deduction will phase out between $183,000 and $193,000 (for the couple’s income), up from $181,000 and $191,000 in 2014. For a married individual filing a separate return who is covered by a workplace retirement plan, the phase-out range is not subject to annual COLAs; this range will remain changed at $0 to $10,000.

The Saver’s Credit

The Adjusted Gross Income (AGI) limit for the saver’s credit (also known as the retirement savings contribution credit) for low- and moderate-income workers will be $61,000 for married couples filing jointly for 2015, up from $60,000 in 2014; $45,750 for heads of household, up from $45,000; and $30,500 for married individuals filing separately and for single individuals, up from $30,000.

Defined Benefit and Defined Contribution Plans

The contribution limit for defined benefit plans (under Internal Revenue Code Section 415(b)(1)(A)) will remain unchanged at $210,000 for 2015. The annual limitation for defined contribution plans (under IRC Section 415(c)(1)(A)) will increase to $53,000 in 2015, up from $52,000 in 2014.

Student Loan Interest Deduction and 2014 Phase-outs

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With the costs of higher education increasing each year, the deductibility of interest paid on student loans is an important tax topic for many younger individuals. However, taxpayers are sometimes surprised to learn that there is a phase-out for various applicable income levels for this deduction, and above certain income levels, the deduction is completely eliminated.

This article will briefly explain the basics of the deduction for interest paid on student loans, as well as the deduction phase-outs. This explanation is not intended to convey tax or legal advice.

Student Loan Interest

Under IRS tax rules, interest paid for personal loans is typically not deductible for taxpayers; however, there is an exception to this general rule for interest paid on higher-education student loans (also referred to as education loans). Because this deduction is taken as an adjustment to income, qualifying taxpayers may claim this deduction even though that may not itemize their deductions on Form 1040 Schedule A.

In order to qualify, a student loan is required to have been taken out solely to pay qualified education expenses, and the loan must not be from a related person or made under a qualified employer plan. Also, students claiming the deduction must either be the taxpayers themselves, their spouses, or their dependents, and students must be enrolled at least half-time in a degree program (see applicable IRS publications for more specific definitions).

For 2013, qualifying taxpayers may reduce the amount of their income subject to taxation by the lesser of $2,500 or the amount of interest actually paid with this deduction. Taxpayers may claim the deduction if all of the following requirements are met: (1) they file under any status except married filing separately, (2) the exemption for the taxpayer is not being claimed by somebody else, (3) the taxpayer is under a legal obligation to pay interest on a qualified student loan, and (4) interest was actually paid on a qualifying student loan.

Student Loan Interest Deduction Phase-outs

The amount that a taxpayer may deduct for student loan interest paid is subject to phase-outs based upon their filing status and their Modified adjusted gross income (MAGI). For most taxpayers, MAGI will be their adjusted gross income (AGI) as determined on Form 1040 before the deduction for student loan interest is subtracted.

For taxpayers filing as single, head of household, or qualifying widow(er), and making not more than $60,000 MAGI, there is no reduction of the deduction. For taxpayers in those categories making more than $60,000 MAGI but less than $75,000, the phase-out will apply, and for taxpayers making more than $75,000 MAGI, the deduction will be completely eliminated.

For taxpayers filing as married filing jointly, and making not more than $125,000 MAGI, there is no reduction of the deduction. For taxpayers in those categories making more than $125,000 MAGI but less than $155,000, the phase-out will apply, and for taxpayers making more than $155,000 MAGI, the deduction will be completely eliminated.

The phase-out itself is usually determined by the following calculation: a taxpayer’s interest deduction (before the phase-out) is multiplied by a fraction. The numerator is the taxpayer’s MAGI minus $60,000 (or $125,000 for married filing jointly), and the denominator is $15,000 ($30,000 for married filing jointly). The result is then subtracted from the original interest deduction (before the phase-out), and this amount is what the taxpayer may actually deduct.

Swiss Accounts IRS Tax Lawyer News: US v. Victor Lipukhin

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On March 20, 2014, the politics and FBAR criminal enforcement met again in a new case, U.S. v. Victor Lipukhin – a case of continuous interest for a Swiss Accounts IRS Tax Lawyer. While the timing is most likely driven by politics, this case also resulted from the fallout of the UBS 2009 settlement; under the settlement, the UBS paid a fine and disclosed a large number of the secret Swiss bank accounts held by U.S. persons.

In U.S. v. Victor Lipukhin, Mr. Lipukhin was charged with an attempt to interfere with the administration of the internal revenue laws and filing false tax returns. Specifically, obstruction charges under IRC Section 7212(a) and filing of false tax returns charges under Section 7206(1) were mentioned. According to the U.S. Department of Justice (DOJ) and the IRS, the “charges relate to Lipukhin hiding millions of dollars in several Swiss bank accounts held at UBS AG.” While it is not expressly spelled-out by the DOJ, it appears that there are multiple counts of violations under both IRC sections.

Swiss Accounts IRS Tax Lawyer News: Facts of the Case

According to the indictment, Mr. Lipukhin kept between $4,000,000 and $7,500,000 in assets in two bank accounts with UBS in Switzerland from at least 2002 through 2007. The first account was opened in 2002 under the name of a Bahamian entity, “Old Orchard”. The account was initially funded with over $47,000,000 transferred into the account from a previously maintained UBS account in the Bahamas. The second account was maintained at UBS in Switzerland in the name of another Bahamian entity, “Lone Star”.

DOJ alleges that Mr. Lipukhin directed virtually all transactions in the accounts, typically through a Bahamian national who served as the nominee director of the Old Orchard and Lone Star entities. The DOJ also alleges that, “in order to further conceal his ownership of the undisclosed UBS accounts, Lipukhin utilized fictitious mortgages through an entity called Dapaul Management, controlled by a Canadian attorney, to conceal his purchase of real estate in the United States with funds from the UBS accounts.” The assets include a purchase of a historic building for $900,000 in the name of Charlestal LLC, a domestic entity controlled by Lipukhin. He also transferred funds from his UBS accounts to the Canadian attorney for the ultimate transfer to a domestic Charlestal bank account in order to conceal the source of the funds. Mr. Lipukhin then used the funds in the Charlestal account to pay for various personal expenses and to withdraw cash for personal use.

The final charge in the indictment is a curious one: “Lipukhin impeded the administration of Internal Revenue laws by attempting to prevent an automobile dealer from filing a Form 8300 – which is required for certain cash transactions over $10,000 – with the IRS in order to report Lipukhin’s cash payment to purchase an automobile.”

According to DOJ, Mr. Lipukhin failed to report his ownership of these accounts (on Schedule B and the FBARs) and failed to report any income earned in these accounts on his tax returns.

Swiss Accounts IRS Tax Lawyer News: Potential Penalties

According to the indictment, Mr. Lipukhin is charged with committing a crime. He faces a potential maximum sentence of three years of imprisonment on each count.

Swiss Accounts IRS Tax Lawyer News: Peculiar Facts

Some of the facts of the case here are of a very high interest to a Swiss Accounts IRS Tax Lawyer and U.S. taxpayers with undisclosed Swiss accounts.

The first important feature of the case is the fact that Mr. Lipukhin was never a U.S. citizen. He is a citizen of the Russian Federation and a former lawful permanent U.S. resident. While it may be true that the current political context had a lot to do with the timing of the charges being filed by the DOJ, this is another example that negates the false myth that is being propagated by some tax preparers (especially in the ethnic communities – particularly Indian and Chinese) that IRS would not criminally charge a non-citizen permanent resident. Nothing in my practice suggests that the citizenship of a U.S. taxpayer has any serious impact on the IRS enforcement of FBAR criminal penalties.

The second important feature to notice are the years involved in the indictment: 2002 through 2007. This case is bound to have an interesting development with respect to the Statute of Limitations (although, it will be difficult to get around IRC Section 6501(c) except by negating the charge of the “false tax return”) and it partially explains why there were no FBAR charges filed against Mr. Lipukhin (see below).

Third, notice the use of third parties and the various offshore entities to conceal the ownership of UBS Swiss accounts. As any experienced Swiss Accounts IRS Tax Lawyer would confirm, this is a highly negative set of facts and has tremendously contributed to the filing of criminal charges against Mr. Lipukhin. U.S. taxpayers with undisclosed Swiss accounts owned by sham offshore entities should be aware of the criminal implications of such an action. On the other hand, if they were advised incorrectly to do so for purely asset protection purposes, this fact should be analyzed by their Swiss Accounts IRS Tax Lawyer.

Fourth, it is important to consider the circle of transactions that led the money back to the United States with the purchase of U.S. real estate. There are very important implications of these moves in the voluntary disclosure context, but, here, I just want to mention that this case is another example of the falsehood of another myth – that, as long as the money is back in the United States, the IRS will not conduct a criminal investigation of the formerly non-compliant U.S. taxpayers. I am not sure where this myth originated, but I have seen some foreign-born U.S. taxpayers being trapped in this misconception.

Finally, the last charge of impeding the filing of Form 8300 for cash purchase of a car is highly unusual for a Swiss Accounts IRS Tax Lawyer to see in this context. It also appears that Mr. Lipukhin’s attempt to prevent the filing of Form 8300 was not successful and Form 8300 was actually filed. If this is the case, it seems that this charge is probably more politically motivated; though, it could have been used to buttress the case for criminal non-compliance further. Nevertheless, it is important to remember that an interference with a third-party tax compliance is a federal crime and may be prosecuted by the DOJ.

Swiss Accounts IRS Tax Lawyer News: Why FBAR Charges Were Not Included

For a Swiss Accounts IRS Tax Lawyer, U.S. v. Lipukhin is also an interesting case from another perspective – the statute of limitations with respect to filing an FBAR. The statute of limitations can be found in IRC 5321(b)(1). Generally, it is six years from the date of transaction (i.e. the IRS has six years from the date of transaction to assess FBAR penalties). For the purposes of the FBAR filing violations, the date of the transaction is the due date for filing the FBAR (i.e. formerly June 30 of the calendar year following the year to be reported).

This explains why the FBAR charges were not filed by the IRS for the years 2002-2006; the assessment period has expired for these years. However, it should be noted that 2007 statute of limitations is still open until June 30, 2014; it is unclear why the IRS chose not to pursue the FBAR criminal penalties with respect to 2007 (perhaps, the accounts were already closed or had an insignificant balance by that time).

Contact Sherayzen Law Office for Help With Respect to Foreign Bank and Financial Accounts

If you have undisclosed Swiss bank accounts; if you are facing civil FBAR penalties; or if you are facing other IRS penalties; contact Sherayzen Law Office experienced international tax law firm for professional help.