Who is Required to File IRS Form 1041

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IRS Form 1041 (“U.S. Income Tax Return for Estates and Trusts”) is used by a fiduciary of a domestic decedent’s estate, trust, or bankruptcy estate for a number of important reporting reasons. It is utilized to report income, deductions, gains, losses, and related items of an estate or trust; income that is either accumulated or held for future distribution or distributed currently to its beneficiaries; any income tax liability of the estate or trust; and employment taxes on wages paid to household employees. (It is also used to report the Net Investment Income Tax from Form 8960, line 21, on the Tax Computation section under Schedule G).

This article will cover the basics of who is required to file IRS Form 1041 for decedent’s estates and trusts in general; it is not intended to convey tax or legal advice. If you have further questions regarding filing IRS Form 1041, please contact Sherayzen Law Office, Ltd.

Who Must File IRS Form 1041?

In general, the fiduciary (or one of the joint fiduciaries) for a decedent’s domestic estate must file IRS Form 1041 if the estate has gross income for the tax year of $600 or more, or if it has a beneficiary who is a nonresident alien.

An estate is considered to be a “domestic” estate if it is not a foreign estate; a foreign estate is one in which its income is from sources outside the United States that is not effectively connected with the conduct of a U.S. trade or business, and is not includible in gross income. Note that fiduciaries of foreign estates file Form 1040NR, U.S. Nonresident Alien Income Tax Return, rather than IRS Form 1041.

In addition, the fiduciary (or one of the joint fiduciaries) of domestic trusts that are taxable under Internal Revenue Code (“IRC”) Section 641 must file the form if the trust has any taxable income for the tax year, if it has gross income of $600 or more (regardless of whether it has taxable income), or if it has a beneficiary who is a nonresident alien.

A trust is considered to be “domestic” if a U.S. court is able to exercise primary supervision over the administration of the trust (the “court test”), and one or more U.S. persons have the authority to control all substantial decisions of the trust (the “control test”). Additionally, a trust may be treated as a domestic trust (other than a trust treated as wholly owned by the grantor) if it was in existence on August 20, 1996, was treated as a domestic trust on August 19, 1996, and elected to continue to be treated as a domestic trust.

Trusts that are not considered to be domestic trusts will be deemed foreign trusts, and the trustees for such trusts file Form 1040NR instead of IRS Form 1041, and a foreign trust with a U.S. owner may also be required to file Form 3520-A, (“Annual Information Return of Foreign Trust With a U.S. Owner”). Further, if a domestic trust becomes a foreign trust, it will be treated as having transferred all of its assets to a foreign trust, except to the extent that a grantor or another person is treated as being the owner of the trust when the trust becomes a foreign trust (See IRC Section 684 for more information).

Contact Sherayzen Law Office for Help With the IRS Form 1041, Estate and Trust Tax Compliance

Tax compliance for trusts and estates often involves many complex issues, and you are advised to seek the advice of a tax attorney. Eugene Sherayzen, an experienced international tax attorney of Sherayzen Law Office, Ltd. can assist you in all of your tax and legal needs.

2015 UBS Probe Poses Threat to US Owners of Undisclosed UBS Accounts

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This week, UBS Group AG confirmed that it was under a new investigation over whether the Switzerland bank sold unregistered securities to US taxpayers in violation of US law. This article will discuss the new UBS probe and the threat it poses to US owners of undisclosed UBS accounts who never went through an offshore voluntary disclosure. This article is not intended to convey tax or legal advice.

Prior Investigations and 2009 Deferred-Prosecution Agreement

The 2015 bearer bond investigation of UBS is the latest in the series of DOJ investigations of UBS. Previously, in 2009, as a result a landmark DOJ victory that started the today’s rout of bank secrecy laws throughout the world, UBS paid a $780 million dollar fine and disclosed 250 previously undisclosed UBS accounts of US taxpayers to the DOJ (some of the owners of these undisclosed UBS accounts were later criminally prosecuted by the IRS). The bank promised that it would be compliant with US law under its deferred-prosecution agreement with the DOJ. The agreement expired in October, 2010. This was a critical agreement for the US owners of undisclosed UBS accounts, and we will come back to this subject below.

In addition to the deferred-prosecution agreement in 2009, UBS also settled an antitrust case in 2011 concerning the municipal-bond investments market, and resolved a 2012 DOJ investigation involving alleged rigging of the London interbank offered rate (Libor). UBS was granted an agreement to extend the term of its non-prosecution deal in the latter investigation until later this year. Additionally, in a probe not involving the DOJ, UBS paid US, UK and Swiss authorities nearly $800 million in November to settle allegations that they did not have satisfactory controls to prevent traders from attempting to rig Forex dealing.

The DOJ also has reportedly also opened a new investigation concerning certain currency-linked structured products sold by UBS. International tax attorneys who worked with undisclosed UBS accounts for their US clients in the past know how common it was for UBS to sell these products to their US clients.

The 2015 UBS Investigation

As noted above, the new investigation is being conducted by the U.S. Attorney’s Office for the Eastern District of New York and from the U.S. Securities and Exchange Commission. UBS stated in its fourth-quarter report, “In January 2015, we received inquiries from the U.S. Attorney’s Office for the Eastern District of New York and from the U.S. Securities and Exchange Commission, which are investigating potential sales to U.S. persons of bearer bonds and other unregistered securities.” UBS added that it was cooperating with the authorities in the probes. According to various new sources, the bank is also being probed as to whether the alleged sales occurred while the bank was under DOJ supervision from its earlier 2009 tax evasion case.

Bearer bonds can be redeemed by anybody physically holding them. Because of the ease with which these instruments can be transferred, they are a potentially useful tool for enabling individuals to hide assets and evade taxes. While bearer bonds were not deposited on undisclosed UBS accounts, some US owners of undisclosed UBS accounts were owners of these unregulated instruments.

Undisclosed UBS Accounts and the 2015 UBS Investigation

According to various sources, if UBS is found to have breached the agreement by selling the unregistered bearer bonds to US persons in violation of US law during the time period in which the agreement was still in effect, it is possible that the DOJ will prosecute the bank under the original conspiracy charge, in addition to filing new charges and penalties.

The significance of this scenario lies in the fact that there may still be US taxpayers with undisclosed UBS accounts (whether owned directly, indirectly or constructively). Many of these taxpayers were trying to hide in the relative safety of the UBS 2009 Deferred-Prosecution Agreement, hoping that the worst was over for UBS.

Moreover, because UBS was classified as a Category 1 bank, it could not participate in the DOJ Program for Swiss Banks. This gave a wrong type of encouragement to some US owners of undisclosed UBS accounts not to come forward and go through a voluntary disclosure program.

In reality, however, due to the fact that UBS was the first bank that succumbed to the pressure from the US DOJ and disclosed previously undisclosed UBS accounts owned by US persons, the DOJ’s deal with UBS was relatively mild compared to the later penalties on other large Swiss Banks (such as Credit Suisse). Hence, there is a great incentive for the DOJ to re-open the investigation into UBS to force the bank to pay an amount equivalent to its other Swiss peers.

This means that, if the 2015 investigation is successful and the DOJ can get around the 2009 Deferred-Prosecution Agreement, the UBS may, in a new deal with DOJ, conduct a wholesale disclosure of the US owners of undisclosed UBS accounts – not only the current owners, but also the US owners who had undisclosed UBS accounts in the years 2008-2010.

What Should the US Owners of Undisclosed UBS Accounts Do?

Thus, the 2015 DOJ investigation of UBS could have disastrous consequences for US persons who owned undisclosed UBS accounts between the years 2008 and the present time. The premature disclosure of undisclosed UBS accounts may foreclose very important voluntary disclosure options for the US owners of these undisclosed UBS accounts. The subsequent investigations by the IRS may result in draconian civil penalties and even criminal prosecutions.

This is why US persons who owned undisclosed UBS accounts should contact an experienced international tax attorney to discuss their voluntary disclosure options as soon as possible.

Contact Sherayzen Law Office for Help with Your Undisclosed Foreign Accounts

If you are have not disclosed your foreign accounts (including undisclosed UBS accounts) to the IRS, you are advised to immediately contact the experienced international tax law firm of Sherayzen Law Office, Ltd. For many years now, we have been helping US taxpayers like you to bring their US tax affairs into full compliance, and we can help you.

Contact Us to Schedule Your Initial Consultation! Remember, contacting Sherayzen Law Office is Confidential!

IRS Form 14654 for Streamlined Domestic Offshore Procedures

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IRS Form 14654 is probably the most important part of the taxpayer’s voluntary disclosure under the Streamlined Domestic Offshore Procedures (“SDOP”). In this article, I would like to explore the various parts of IRS Form 14654 and explain why this form is so important.

Please, note that IRS Form 14654 was just revised in January of 2015. (Note: Latest update is September of 2017).

SDOP and IRS Form 14654

In June of 2014, the IRS announced the creation of a brand-new voluntary disclosure option for the taxpayers who reside in the United States – SDOP. As part of the disclosure package under SDOP, the IRS required U.S. taxpayers to submit a Certification of Non-Willfulness with respect to the taxpayers’ failure to timely disclose their foreign income and assets. At the end of August of 2014, this Certification became the new IRS Form 14654.

Purpose of IRS Form 14654

IRS Form 14654 constitutes an essential part of SDOP because this is the form used by the taxpayer to certify his non-willfulness with respect to his failure to timely and accurately report his foreign income and assets. Moreover, IRS Form 14654 also functions as a convenient summary of the calculation of the income tax liability as well as the SDOP Title 26 Miscellaneous Offshore Penalty (“Miscellaneous Offshore Penalty”). Finally, IRS Form 14654 allows the taxpayer to make a statement in support of his non-willfulness.

In order to accomplish these multiple tasks, IRS Form 14654 incorporates three different parts: income tax summary, Miscellaneous Offshore Penalty calculation, and the Certification with Explanation of Non-Willfulness.

Let’s take a closer look at each of these three parts of IRS Form 14654.

IRS Form 14654: Income Tax Summary

The very first part of the Certification is with respect to income tax liability. There is a pre-set language in IRS Form 14654 that requires the taxpayer to certify that: he is providing amended tax returns for each of the three most recent years, he filed the original tax returns previously, and he properly calculated his additional tax due with statutory interest on IRS Form 14654.

There is already a self-calculating table in the form that allows the taxpayer to quickly summarize his additional income tax liability with statutory interest per each covered year and the total amount due (which should be included on the checks written to the IRS).

IRS Form 14654: Miscellaneous Offshore Penalty Base

The second part of the certification is concerned with the taxpayer’s calculation of the Miscellaneous Offshore Penalty, or more precisely its penalty base. IRS Form 14654 provides a set of self-calculating tables to be completed by the taxpayer for all of the foreign accounts and other assets subject to the Miscellaneous Offshore Penalty. Each table requires the taxpayer to disclose the financial institution with address and description of the asset, the account number (where applicable), when the account was opened or asset acquired, and the end-of-year balance/asset value in U.S. dollars.

If additional space is needed, my experience has been that it would be best to attach to IRS Form 14654 a detailed statement disclosing all of this information. Note, the attachment should contain the taxpayer’s name, TIN and original signature.

In addition to the Miscellaneous Offshore Penalty’s penalty base calculation, IRS Form 14654 already contains the language which states that the taxpayer already filed his FBARs for the past six years and he met all of the eligibility requirements for SDOP.

IRS Form 14654: Calculation of Payments Due

The next part of the certification requires the taxpayer to summarize all of the payments due – the calculation of the Miscellaneous offshore Penalty, the total due and the total interest due. At the end of this section, the taxpayer should add all of these payments together to equal to the “Total Payment” due.

IRS Form 14654: “Comprehensive Certification” and Explanation of Non-Willfulness

Following the completion of the payment calculations section, IRS Form 14654 turns to the most important part of a SDOP case – the certification of non-willfulness with respect to income, tax payments and information returns.

The actual language for the certification of non-willfulness is already provided by the IRS on IRS Form 14654; this is a standard text that the taxpayer must agree to if he wishes to do a SDOP disclosure (i.e. this language cannot be modified). It is very important for international tax lawyers to discuss this language with their clients to make sure that they understand what they are agreeing to.

In addition to providing the standard certification text, IRS Form 14654 requires the taxpayer to provide a statement of facts and specific reasons for the original failure to report all income, pay all tax and submit all required information returns, including FBARs.

Please, note that the January of 2015 revision of IRS Form 14654 specifically allows the taxpayer to provide the explanation not only on the form itself, but also on a separate signed attachment (this clarified a previous confusion over the statement must be provided on the form only). Moreover, the new revision specifically states that the failure to provide a narrative statement of facts will result in the certification being deemed incomplete and the taxpayer will not qualify for the SDOP penalty relief.

The explanation of non-willfulness is undoubtedly the most important part of IRS Form 14654, because here the taxpayer has a unique opportunity to establish his legal case for non-willfulness. If this explanation is not deemed satisfactory to the IRS, the taxpayer may face willful FBAR penalties, civil fraud penalties and potentially even criminal penalties (see note below on the certification under the penalty of perjury).

In fact, the explanation of non-willfulness is so crucial to the taxpayer’s SDOP case, that I strongly recommend that the taxpayer refrains from completing the Streamlined certification himself or letting his accountant to do it. This is the job only for the taxpayer’s international tax attorney.

IRS Form 14654: Signature under the Penalties of Perjury

The last part of certification requires the taxpayer to sign the Form under the penalties of perjury. By signing IRS Form 14654, the taxpayer is certifying (1) that he is eligible for the Streamlined Domestic Offshore Procedures; (2) that all required FBARs have now been filed; (3) that the failure to report all income, pay all tax, and submit all required information returns, including FBARs, resulted from non-willful conduct; and (4) that the miscellaneous offshore penalty amount is accurate.

Contact Sherayzen Law Office for Help with IRS Form 14654 and Your Voluntary Disclosure Under the Streamlined Domestic Offshore Procedures

If you wish to do the voluntary disclosure of your foreign accounts under the Streamlined Domestic Offshore Procedures, contact Sherayzen Law Office for professional help. Despite the fact that SDOP only appeared last June and IRS Form 14654 was created at the end of August of 2014, our international tax law firm has already completed SDOP disclosures for a number of our clients, and we can also help you.

Contact Us to Schedule Your Initial Consultation! Remember, contact Sherayzen Law Office is Confidential!

Treasury 2014 FBAR Currency Conversion Rates of December 31, 2014

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According to the June 2014 FBAR currency conversion rates instructions published by FinCEN, in order to determine the maximum value of a foreign bank account, the Treasury’s Financial Management Service (still called so even though Financial Management Service was consolidated into the Bureau of the Fiscal Service within the Treasury Department) rates must be used. In particular, the 2014 FBAR currency conversion rates instructions state:

In the case of non-United States currency, convert the maximum account value for each account into United States dollars. Convert foreign currency by using the Treasury’s Financial Management Service rate (this rate may be found at www.fms.treas.gov) from the last day of the calendar year. If no Treasury Financial Management Service rate is available, use another verifiable exchange rate and provide the source of that rate. In valuing currency of a country that uses multiple exchange rates, use the rate that would apply if the currency in the account were converted into United States dollars on the last day of the calendar year.

The 2014 FBAR Currency Conversion rates are highly important for any international tax attorney who deals with FBARs.  For your convenience, Sherayzen Law Office provides a table of the official Treasury FBAR currency conversion rates below (keep in mind, you still need to refer to the official website for any updates):

Country – Currency Foreign Currency to $1.00
AFGHANISTAN – AFGHANI 57.9000
ALBANIA – LEK 115.1000
ALGERIA – DINAR 87.8100
ANGOLA – KWANZA 104.0000
ANTIGUA – BARBUDA – E. CARIBBEAN DOLLAR 2.7000
ARGENTINA-PESO 8.3730
ARMENIA – DRAM 470.0000
AUSTRALIA – DOLLAR 1.2190
AUSTRIA – EURO 0.8220
AZERBAIJAN – NEW MANAT 0.8000
BAHAMAS – DOLLAR 1.0000
BAHRAIN – DINAR 0.3770
BANGLADESH – TAKA 79.0000
BARBADOS – DOLLAR 2.0200
BELARUS – RUBLE 13779.0000
BELGIUM-EURO 0.8220
BELIZE – DOLLAR 2.0000
BENIN – CFA FRANC 538.7000
BERMUDA – DOLLAR 1.0000
BOLIVIA – BOLIVIANO 6.8600
BOSNIA-HERCEGOVINA MARKA 1.6080
BOTSWANA – PULA 9.4970
BRAZIL – REAL 2.6570
BRUNEI – DOLLAR 1.2540
BULGARIA – LEV 1.6090
BURKINA FASO – CFA FRANC 538.7000
BURMA – KYAT 1028.0000
BURUNDI – FRANC 1550.0000
CAMBODIA (KHMER) – RIEL 4103.0000
CAMEROON – CFA FRANC 538.8200
CANADA – DOLLAR 1.1580
CAPE VERDE – ESCUDO 87.8710
CAYMAN ISLANDS – DOLLAR 0.8200
CENTRAL AFRICAN REPUBLIC – CFA FRANC 538.8200
CHAD – CFA FRANC 538.8200
CHILE – PESO 607.1600
CHINA – RENMINBI 6.2050
COLOMBIA – PESO 2372.6000
COMOROS – FRANC 361.3500
CONGO – CFA FRANC 538.8200
CONGO, DEM. REP – CONGOLESE FRANC 920.0000
COSTA RICA – COLON 533.2500
COTE D’IVOIRE – CFA FRANC 538.7000
CROATIA – KUNA 6.1500
CUBA-PESO 1.0000
CYPRUS-EURO 0.8220
CZECH – KORUNA 22.3260
DENMARK – KRONE 6.1240
DJIBOUTI – FRANC 177.0000
DOMINICAN REPUBLIC – PESO 44.1300
ECAUDOR-DOLARES 1.0000
EGYPT – POUND 7.1500
EL SALVADOR-DOLARES 1.0000
EQUATORIAL GUINEA – CFA FRANC 538.8200
ERITREA – NAKFA 15.0000
ESTONIA-EURO 0.8220
ETHIOPIA – BIRR 20.0900
EURO ZONE – EURO 0.82200
FIJI – DOLLAR 1.9580
FINLAND-EURO 0.8220
FRANCE-EURO 0.8220
GABON – CFA FRANC 538.8200
GAMBIA – DALASI 45.0000
GEORGIA-LARI 1.8700
GERMANY FRG-EURO 0.8220
GHANA – CEDI 3.2100
GREECE-EURO 0.8220
GRENADA – EAST CARIBBEAN DOLLAR 2.7000
GUATEMALA – QUENTZAL 7.5970
GUINEA – FRANC 7136.0000
GUINEA BISSAU – CFA FRANC 538.7000
GUYANA – DOLLAR 202.0000
HAITI – GOURDE 46.7500
HONDURAS – LEMPIRA 21.2700
HONG KONG – DOLLAR 7.7560
HUNGARY – FORINT 259.4400
ICELAND – KRONA 126.7500
INDIA – RUPEE 63.2000
INDONESIA – RUPIAH 12350.0000
IRAN – RIAL 8229.0000
IRAQ – DINAR 1166.0000
IRELAND-EURO 0.8220
ISRAEL-SHEKEL 3.8810
ITALY-EURO 0.8220
JAMAICA – DOLLAR 113.9000
JAPAN – YEN 119.4500
JERUSALEM-SHEKEL 3.8810
JORDAN – DINAR 0.7080
KAZAKHSTAN – TENGE 182.4000
KENYA – SHILLING 90.6500
KOREA – WON 1086.8700
KUWAIT – DINAR 0.2930
KYRGYZSTAN – SOM 58.7000
LAOS – KIP 8078.0000
LATVIA – LATS 0.8220
LEBANON – POUND 1500.0000
LESOTHO – SOUTH AFRICAN RAND 11.5660
LIBERIA – U.S. DOLLAR 82.0000
LIBYA-DINAR 1.1950
LITHUANIA – LITAS 2.8390
LUXEMBOURG-EURO 0.8220
MACAO – MOP 8.0000
MACEDONIA FYROM – DENAR 49.2000
MADAGASCAR-ARIA 2596.7300
MALAWI – KWACHA 505.0000
MALAYSIA – RINGGIT 3.4950
MALI – CFA FRANC 538.7000
MALTA-EURO 0.8220
MARSHALLS ISLANDS – DOLLAR 1.0000
MARTINIQUE-EURO 0.82200
MAURITANIA – OUGUIYA 305.0000
MAURITIUS – RUPEE 31.7000
MEXICO – NEW PESO 14.7020
MICRONESIA – DOLLAR 1.0000
MOLDOVA – LEU 15.5520
MONGOLIA – TUGRIK 1885.6000
MONTENEGRO-EURO 0.8220
MOROCCO – DIRHAM 9.0240
MOZAMBIQUE – METICAL 33.0500
NAMIBIA-DOLLAR 11.5660
NEPAL – RUPEE 101.4000
NETHERLANDS-EURO 0.8220
NETHERLANDS ANTILLES – GUILDER 1.7800
NEW ZEALAND – DOLLAR 1.2750
NICARAGUA – CORDOBA 26.6000
NIGER – CFA FRANC 538.7000
NIGERIA – NAIRA 182.9000
NORWAY – KRONE 7.3900
OMAN – RIAL 0.3850
PAKISTAN – RUPEE 100.9000
PALAU-DOLLAR 1.0000
PANAMA – BALBOA 1.0000
PAPUA NEW GUINEA – KINA 2.5440
PARAGUAY – GUARANI 4629.3000
PERU – NUEVO SOL 2.9000
PHILIPPINES – PESO 44.77500
POLAND – ZLOTY 3.5130
PORTUGAL-EURO 0.8220
QATAR – RIYAL 3.6420
ROMANIA – LEU 3.6850
RUSSIA – RUBLE 58.6760
RWANDA – FRANC 689.1900
SAO TOME & PRINCIPE – DOBRAS 20087.7110
SAUDI ARABIA – RIYAL 3.7500
SENEGAL – CFA FRANC 538.7000
SERBIA-DINAR 99.4600
SEYCHELLES – RUPEE 12.9800
SIERRA LEONE – LEONE 4990.0000
SINGAPORE – DOLLAR 1.3210
SLOVAK REPUBLIC – EURO 0.8220
SLOVENIA – EURO 0.8220
SOLOMON ISLANDS – DOLLAR 7.3100
SOUTH AFRICA – RAND 11.5660
SOUTH SUDANESE – POUND 3.0000
SPAIN – EURO 0.8220
SRI LANKA – RUPEE 131.1500
ST LUCIA – EC DOLLAR 2.7000
SUDAN – SUDANESE POUND 6.4000
SURINAME – GUILDER 3.3500
SWAZILAND – LILANGENI 11.5660
SWEDEN – KRONA 7.7130
SWITZERLAND – FRANC 0.9890
SYRIA – POUND 179.2000
TAIWAN – DOLLAR 31.6400
TAJIKISTAN – SOMONI 5.3000
TANZANIA – SHILLING 1730.0000
THAILAND – BAHT 32.9200
TIMOR – LESTE DILI 1.0000
TOGO – CFA FRANC 538.7000
TONGA – PA’ANGA 1.8700
TRINIDAD & TOBAGO – DOLLAR 6.3560
TUNISIA – DINAR 1.8590
TURKEY – LIRA 2.3270
TURKMENISTAN – MANAT 2.8400
UGANDA – SHILLING 2770.0000
UKRAINE – HRYVNIA 15.7680
UNITED ARAB EMIRATES – DIRHAM 3.6700
UNITED KINGDOM – POUND STERLING 0.6420
URUGUAY – PESO 23.9600
UZBEKISTAN – SOM 2461.0000
VANUATU – VATU 99.9300
VENEZUELA – BOLIVAR 6.3000
VIETNAM – DONG 21400.0000
WESTERN SAMOA – TALA 2.3530
YEMEN – RIAL 214.5000
ZAMBIA – KWACHA (NEW) 6.3750
ZAMBIA – KWACHA (OLD) 5455.0000
ZIMBABWE – DOLLAR 1.0000

1. Lesotho’s loti is pegged to South African Rand 1:1 basis
2. Macao is also spelled Macau: currency is Macanese pataka
3. Macedonia: due to the conflict over name with Greece, the official name if FYROM – former Yugoslav Republic of Macedonia.
4. Latvia’s Lats converted to the Euro on January 1, 2014. This means that the Euro 2014 FBAR Currency Conversion rate may also need to used for the determination of the highest balance of accounts in Latvia. Contact Sherayzen Law Office for more details.

Abusive Tax Shelters on the IRS “Dirty Dozen” List of 2015

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On February 3, 2015, the IRS said using abusive tax shelters and structures to avoid paying taxes continues to be a problem and remains on its annual list of tax scams known as the “Dirty Dozen” for the 2015 filing season.

“The IRS is committed to stopping complex tax avoidance schemes and the people who create and sell them,” said IRS Commissioner John Koskinen. “The vast majority of taxpayers pay their fair share, and we are warning everyone to watch out for people peddling tax shelters that sound too good to be true.”

Compiled annually, the “Dirty Dozen” lists a variety of common scams that taxpayers may encounter anytime but many of these schemes peak during filing season as people prepare their returns or hire people to help with their taxes.

Abusive tax shelters are classified as illegal scams and can lead to significant penalties and interest and possible criminal prosecution. IRS Criminal Investigation works closely with the Department of Justice (DOJ) to shutdown scams and prosecute the criminals behind them.

Abusive Tax Shelters

Abusive tax shelters have evolved from simple structuring of abusive domestic and foreign trust arrangements into sophisticated strategies that take advantage of the financial secrecy laws of some foreign jurisdictions and the availability of credit/debit cards issued from offshore financial institutions.

IRS Criminal Investigation (CI) has developed a nationally coordinated program to combat these abusive tax shelters. CI’s primary focus is on the identification and investigation of the promoters of the abusive tax shelters as well as those who play a substantial or integral role in facilitating, aiding, assisting, or furthering the abusive tax shelters, such as accountants or lawyers. Just as important is the investigation of investors who knowingly participate in abusive tax shelters.

What are these abusive tax shelters? The Abusive Tax Schemes program encompasses violations of the Internal Revenue Code (IRC) and related statutes where multiple flow-through entities are used as an integral part of the taxpayer’s scheme to evade taxes. These abusive tax shelters are characterized by the use of Limited Liability Companies (LLCs), Limited Liability Partnerships (LLPs), International Business Companies (IBCs), foreign financial accounts, offshore credit/debit cards and other similar instruments. The abusive tax shelters are usually complex involving multi-layer transactions for the purpose of concealing the true nature and ownership of the taxable income and/or assets.

Whether something is “too good to be true” is important to consider before buying into any arrangements that promise to “eliminate” or “substantially reduce” your tax liability. If an arrangement uses unnecessary steps or a form that does not match its substance, then that arrangement may be classified as abusive tax shelter. Another thing to remember is that the promoters of abusive tax shelters often employ financial instruments in their schemes; however, the instruments are used for improper purposes including the facilitation of tax evasion.

Abusive Tax Shelters: Misuse of Trusts

Trusts also commonly show up in abusive tax shelters. They are highlighted here because unscrupulous promoters continue to urge taxpayers to transfer large amounts of assets into trusts. These assets include not only cash and investments, but also successful on-going businesses. There are legitimate uses of trusts in tax and estate planning, but the IRS commonly sees highly questionable transactions. These transactions promise reduced taxable income, inflated deductions for personal expenses, reduced (even to zero) self-employment taxes, and reduced estate or gift transfer taxes.

These transactions commonly arise when taxpayers are transferring wealth from one generation to another. Questionable trusts rarely deliver the tax benefits promised and are used primarily as a means of avoiding income tax liability and hiding assets from creditors, including the IRS.

IRS personnel continue to see an increase in the improper use of private annuity trusts and foreign trusts to shift income and deduct personal expenses, as well as to avoid estate transfer taxes. As with other arrangements, taxpayers should seek the advice of a trusted professional before entering a trust arrangement.

Abusive Tax Shelters: Captive Insurance

Another abuse involving a legitimate tax structure involves certain small or “micro” captive insurance companies. Tax law allows businesses to create “captive” insurance companies to enable those businesses to protect against certain risks. The insured claims deductions under the tax code for premiums paid for the insurance policies while the premiums end up with the captive insurance company owned by same owners of the insured or family members.

The captive insurance company, in turn, can elect under a separate section of the tax code to be taxed only on the investment income from the pool of premiums, excluding taxable income of up to $1.2 million per year in net written premiums.

In the abusive tax shelters, unscrupulous promoters persuade closely held entities to participate in this scheme by assisting entities to create captive insurance companies onshore or offshore, drafting organizational documents and preparing initial filings to state insurance authorities and the IRS. The promoters assist with creating and “selling” to the entities oftentimes poorly drafted “insurance” binders and policies to cover ordinary business risks or esoteric, implausible risks for exorbitant “premiums,” while maintaining their economical commercial coverage with traditional insurers.

Total amounts of annual premiums often equal the amount of deductions business entities need to reduce income for the year; or, for a wealthy entity, total premiums amount to $1.2 million annually to take full advantage of the Code provision. Underwriting and actuarial substantiation for the insurance premiums paid are either missing or insufficient. The promoters manage the entities’ captive insurance companies year after year for hefty fees, assisting taxpayers unsophisticated in insurance to continue the charade.