taxation law services

Streamlined Domestic Offshore Compliance Process

/0 Comments/in , /by

In a previous article, I discussed the eligibility requirement with respect to the Streamlined Domestic Offshore Procedures. In this article, I would like to explore the specific filing requirements under the Streamlined Domestic Offshore Procedures.

As a side note, it is important to emphasize that this is just an educational article on the general overview of technical filing requirements. However, this article does not constitute legal advice and omits some very important complexities that may arise in individual cases. This is why I strongly discourage pro se (i.e. self-representation) disclosures under the Streamlined Domestic Offshore Procedures. On the contrary, the decision to engage in the Streamlined Domestic Offshore option should only be handled by an experienced international tax lawyer.

The Streamlined Domestic offshore filings can be organized in the following seven parts. Note that not all of the discussed requirements may apply in some cases and additional documents may be required in other cases.

1. Streamlined Domestic Offshore Procedures: U.S. Tax Returns

Very precise instructions were issued by the IRS with respect to filing U.S. tax returns under the Streamlined Domestic Offshore procedures. For each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the taxpayer must submit Form 1040X together with any of the required information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621).

The taxpayer should include at the top of the first page of each delinquent or amended tax return and at the top of each information return “Streamlined Domestic Offshore” written in red to indicate that the returns are being submitted under these procedures. The IRS warns that this is critical to ensure that the taxpayer’s returns are processed through Streamlined Domestic Offshore Procedures. My practice is to apply the same stamp to each of the required information returns submitted under the Streamlined Domestic Offshore Procedures, even if these returns are attached to the amended tax returns.

Two important issues must be kept in mind when submitting tax returns under the Streamlined Domestic Offshore Procedures. First, the information returns mentioned above (e.g. Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621) should be submitted with the amended U.S. income tax returns even if these information returns would normally not be submitted with the Form 1040 had the taxpayer filed a complete and accurate original return.

Second, the taxpayer may not file delinquent income tax returns (including Form 1040, U.S. Individual Income Tax Return) using Streamlined Domestic Offshore Procedures. This is one of the most critical differences between the Streamlined Domestic Offshore Procedures and Streamlined Foreign Offshore Procedures.

2. Streamlined Domestic Offshore Procedures: Payment of Tax Due

Together with the U.S. tax returns, the taxpayer should submit the payment of all tax due as reflected on the tax returns and all applicable statutory interest with respect to each of the late payment amounts. The taxpayer’s taxpayer identification number must be included on each check. Under the Streamlined Domestic Offshore Procedures, the taxpayer is not required to pay any failure-to-pay penalties and accuracy-related penalties,

3. Streamlined Domestic Offshore Procedures: FBARs

The Streamlined Domestic Offshore Procedures follow the FBAR statute of limitations and require the taxpayer to file delinquent FBARs for each of the most recent 6 years for which the FBAR due date has passed. The FBARs should be filed according to the FBAR instructions and they should include a statement explaining that the FBARs are being filed as part of the Streamlined Filing Compliance Procedures.

All FBARs must be e-filed at FinCen. On the cover page of the electronic form, select “Other” as the reason for filing late. An explanation box will appear. In the explanation box, enter “Streamlined Filing Compliance Procedures.” While not required, it may be beneficial to include a more expanded statement to briefly state the circumstances – it is the job of an international tax attorney to critically look at his client’s case and see if this is the right strategy.

4. Streamlined Domestic Offshore Procedures: Payment of the Miscellaneous Offshore Penalty

In a stark contrast to Streamlined Foreign Offshore Procedures, the Streamlined Domestic Offshore Procedures option requires the participating taxpayers to pay the Title 26 Miscellaneous Offshore Penalty of 5%. The definition of the Title 26 Miscellaneous Offshore Penalty is beyond the scope of this article; however, you can read this article I posted earlier for a more elaborate discussion of this penalty and how it is calculated.

The check for the payment of the Miscellaneous Offshore penalty should be made payable to the “United States Treasury” and the taxpayer’s taxpayer identification number must be included on the check.

5. Streamlined Domestic Offshore Procedures: Certification of Non-Willfulness (IRS Form 14654)

This is the most critical part of the voluntary disclosure package under the Streamlined Domestic Offshore Procedures. The taxpayer must complete and sign Form 14654, “Certification by U.S. Person Residing in the United States for Streamlined Domestic Offshore Procedures”. The taxpayer must submit the original signed Form 14654 to the IRS. Furthermore, he must also attach copies of the statement to each tax return and information return being submitted through Streamlined Domestic Offshore Procedures.

The IRS warns that failure to submit this statement, or submission of an incomplete or otherwise deficient statement, will result in returns being processed in the normal course without the benefit of the favorable terms of the Streamlined Domestic Offshore Procedures.

At this point, the IRS does not currently require the attachment of copies of Form 14654 to FBARs, but this may change in the future.

6. Streamlined Domestic Offshore Procedures: Late Deferral Requests

The taxpayer may also use the Streamlined Domestic Offshore Procedures to make retroactive elections requests. If the taxpayer seeks relief for failure to timely elect deferral of income from certain retirement or savings plans where deferral is permitted by an applicable treaty, he should submit the following items as part of his disclosure package under the Streamlined Domestic Offshore Procedures:

a). A statement requesting an extension of time to make an election to defer income tax and identifying the applicable treaty provision;

b). A dated statement signed by you under penalties of perjury describing: (i) the events that led to the failure to make the election; (ii) the events that led to the discovery of the failure, and (iii) if the taxpayer relied on a professional advisor, the nature of the advisor’s engagement and responsibilities; and

c). For relevant Canadian plans, a Form 8891 for each tax year and each plan and a description of the type of plan covered by the submission.

7. Streamlined Domestic Offshore Procedures: Mailing Address as of January 29, 2015

Once the above-described documents are gathered into one package (together with the payments), this package should be sent in paper format to the following address:

Internal Revenue Service
3651 South I-H 35Stop 6063 AUSC
Attn: Streamlined Domestic Offshore
Austin, TX 78741

This address may only be used for returns filed under Streamlined Offshore Domestic Procedures and may change over time; so an international tax lawyer should verify any changes to the address prior to submission of any documents under the Streamlined Domestic Offshore Procedures.

Contact Sherayzen Law Office for Legal Help with Your Voluntary Disclosure Under Streamlined Domestic Offshore Procedures

If you have undisclosed foreign financial accounts and other assets, please contact Mr. Eugene Sherayzen an experienced tax attorney, owner of Sherayzen Law Office for legal and tax help. Our experienced international tax firm specializes in offshore voluntary disclosures and we can help you.

Contact Us to Schedule Your Confidential Consultation!

Title 26 Miscellaneous Offshore Penalty under SDOP

/0 Comments/in , /by

The Title 26 Miscellaneous Offshore Penalty (“Miscellaneous Offshore Penalty”) is one of the most critical aspects of the Streamlined Domestic Offshore Procedures (“SDOP”). In this article, I want to conduct a general overview of how the Miscellaneous Offshore Penalty is calculated.

As a side note, it is important to keep in mind that this is an educational article which aims to provide a general overview of the calculation of the Miscellaneous Offshore Penalty in common situations. In providing this general overview of the SDOP Miscellaneous Offshore Penalty, the article necessarily glosses over some complex issues that may change the determination of Miscellaneous Offshore Penalty in a particular case.  In order to calculate your Miscellaneous Offshore Penalty properly, the readers should contact an experienced international tax attorney for a legal advice based on their specific facts and circumstances.

What is Miscellaneous Offshore Penalty?

A taxpayer who enters SDOP is required to pay a 5% Miscellaneous Offshore Penalty as part of the SDOP requirements. The Miscellaneous Offshore Penalty is paid in lieu of the penalties associated with the delinquent filings of FBARs, Forms 8938 and other information returns.

The calculation of SDOP Miscellaneous Offshore Penalty is very different from 2014 OVDP calculation in terms of the relevant time period and the penalty base. (Note: OVDP is now closed). Let’s explore each of these factors.

Miscellaneous Offshore Penalty: Time Period

Miscellaneous Offshore Penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period. Generally, this means that the Miscellaneous Offshore Penalty is imposed on the past six years covered by the FBAR statute of limitations.

However, there is an exception where the three-year tax covered tax return period does not completely overlap with the six-year covered FBAR period. For example, the SDOP disclosure for tax returns covers years 2012 and 2014 because the due date for the 2014 tax return is passed, but the FBAR period is 2008-2013 because the due date for the 2014 FBAR has not passed. In such cases, the Miscellaneous Offshore Penalty is imposed on the highest aggregate value of the foreign financial assets for the past seven years.

In most cases, six years will be the standard time period for the calculation of the Miscellaneous Offshore Penalty, which is a lot better than the 2014 OVDP eight-year disclosure period.

Miscellaneous Offshore Penalty: Penalty Base

SDOP introduced a new way to calculate Miscellaneous Offshore Penalty which mixed the old FBAR-focused penalty orientation of the 2014 OVDP with the new FATCA-focused Form 8938.

In general, the Miscellaneous Offshore Penalty is imposed on any foreign financial asset in a given year within the covered SDOP time period if one of the following is true:

1. The asset should have been, but was not, reported on an FBAR (FinCEN Form 114) for that year;

2. The asset should have been, but was not, reported on a Form 8938 for that year; or

3. If the asset was properly reported for that year, but gross income in respect of the asset was not reported in that year.

Two important features of this calculation of the penalty base under SDOP must be emphasized. First, the Miscellaneous Offshore Penalty should be calculated not only on the foreign bank and financial accounts listed on the FBAR, but also on “other specified assets” required to be listed on Form 8938. This means that many more assets outside of a foreign financial account can now be subject to the Miscellaneous Offshore Penalty . Examples of such assets include but not limited to: foreign stocks not held in a financial account, a capital or profits interest in a foreign partnership, certain forms of indebtedness issued by a foreign person (such as a note, bond, debenture, an interest in a foreign trust, foreign swaps, foreign options, foreign derivatives and other assets. It should be remembered, though, that this is a generalization and, in certain circumstances, an international tax attorney may except certain such assets from Miscellaneous Offshore Penalty base.

The second critical difference between SDOP Miscellaneous Offshore Penalty and 2014 OVDP Offshore Penalty is the inclusion in the calculation of the penalty base the assets for which no additional income needs to be reported. There are a lot of nuances with respect to the exclusion and inclusion of assets under the 2014 OVDP which are beyond the scope of this article. For the purposes of the present discussion, I will ignore them and concentrate on the general rule only (again, this is an area that should be explored with an international tax attorney based on the specific facts of a client’s case) that if an asset should have been reported on Forms 8938 and FinCEN Form 114 and it was not, then, it should be included in the penalty base.

Miscellaneous Offshore Penalty: Calculation of Highest Aggregate Value of Assets

As it was mentioned above, the Miscellaneous Offshore Penalty is calculated based on the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period. The issue is how this “highest aggregate balance/value of assets” is calculated.

For the purposes of SDOP Miscellaneous Offshore Penalty, the highest aggregate balance/value is determined by a two-step process. First, you need to aggregate the year-end account balances and year-end asset values of all the foreign financial assets subject to the miscellaneous offshore penalty for each of the years in the covered tax return period and the covered FBAR period. Then, you select the highest aggregate balance/value from among those years and calculate the 5% value of this balance.

It is the first step that is radically different from the 2014 OVDP Offshore Penalty determination process, and it can produce very interesting results especially in the case of bank accounts. The most surprising result is that an account that was closed in one of the covered years is likely to produce a zero end-of-year balance irrespective of how much money was on it prior to December 31.

This factor can be a very important consideration when one decides to participate in SDOP. For this reason, I highly encourage the readers to consult an experienced international tax lawyer in these matters.

Contact Sherayzen Law Office for Professional Help with Your Undisclosed Foreign Assets

If you have undisclosed foreign accounts and any other assets, contact Sherayzen Law Office for professional legal and tax help. Our team of experienced tax professionals will thoroughly analyze your case, estimate your current penalty exposure, identify the offshore voluntary disclosure options available to you, prepare all legal documents and tax forms (including amended tax returns) needed in your case, rigorously defend your interests in front of the IRS, and guide you through the entire voluntary disclosure process.

Contact Us Today to Schedule Your Confidential Consultation!

Who Must File Form 1120-F ?

/0 Comments/in , /by

Form 1120-F (“U.S. Income Tax Return of a Foreign Corporation”) is used to report the income, gains, losses, deductions, credits, and to figure the U.S. income tax liability of a foreign corporation. The form is also used to claim any refund due, to transmit Form 8833 (“Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b)”), or to calculate and pay a foreign corporation’s branch profits tax liability and tax on excess interest, if any, under Internal Revenue Code Section 884.

In this article, we will explain who is required to file Form 1120-F. This article is not intended to convey tax or legal advice. Please contact Mr. Eugene Sherayzen, an experienced tax attorney at Sherayzen Law Office, Ltd. if you have further questions.

Who Must File Form 1120-F?

In general, unless an exception exists or a special return is required, a foreign corporation must file Form 1120-F if any of the following is true:

1. A foreign corporation engaged in a trade or business in the United States, whether or not it had U.S. source income from that trade or business, and whether or not income from such trade or business is exempt from U.S. tax under a tax treaty;

2. A foreign corporation had income, gains, or losses that were treated as if they were effectively connected with the conduct of a U.S. trade or business;

3. A foreign corporation was not engaged in a trade or business in the United States, but it had US-source income and its tax liability has not been fully satisfied by the withholding of tax at source (under chapter 3 of the Internal Revenue Code);

4. Special circumstances require the foreign corporation to file Form 1120-F in certain other instances. For example, if a foreign corporation is claiming the benefit of any deductions or credits, or is making a claim for the refund of an overpayment of tax for the tax year, Form 1120F should be filed (also see below for more detailed description of come of these circumstances when Form 1120-F must be filed); or

5. Certain specific types of entities or individuals may be required to file Form 1120-F. In particular, instructions to Form 5471 state that a Mexican or Canadian branch of a U.S. mutual life insurance company is required to file Form 1120-F if the U.S. company elects to exclude the branch’s income and expenses from its own gross income. Furthermore, a receiver, assignee, or trustee in dissolution or bankruptcy must file Form 1120-F, if that person has or holds title to virtually all of a foreign corporation’s property or business. Note that Form 1120-F is due whether or not the property or business is being operated. Finally, an agent of a foreign corporation in the United States should file Form 1120-F if the foreign corporation has no office or place of business in the United States when the return is due.

Form 1120-F Required for Claiming Treaty or Code Exemption

As mentioned above, even if a foreign corporation does not have any gross income for the tax year because it is claiming a treaty or IRC exemption, it still must demonstrate that the income was properly exempted by filing Form 1120-F to provide the IRS with the identifying information and attaching a statement to Form 1120-F noting the nature and amount of the exclusions claimed. If there was tax withholding at source in such a case, the foreign corporation must complete the Computation of Tax Due or Overpayment section of Form 1120-F in order to claim a refund on the amounts withheld.

Entities that Elect to be Taxed as Foreign Corporations

In general, Form 1120-F must be filed by a foreign eligible entity that elects to be classified as a corporation, and it must attach a copy of Form 8832 (“Entity Classification Election”) with Form 1120-F.

Exceptions to Filing Form 1120-F

Various exceptions may apply for foreign corporations that would otherwise be required to file the form. The most prominent examples of these exceptions to filing Form 1120-F are the following: (i) if the foreign corporation did not engage in a U.S. trade or business during the tax year and its full U.S. tax was withheld at source; (ii) if the foreign corporation’s only U.S. source income is exempt from U.S. taxation under Internal Revenue Code Section 881(c) or (d); or (iii) if the foreign corporation is a beneficiary of an estate or trust engaged in a U.S. trade or business, but it would itself otherwise not be required to file.

Contact Sherayzen Law Office for Help With U.S. Compliance For Foreign Corporations

U.S. tax compliance for foreign corporations can involve many complexities and it is easy to ran afoul of the numerous U.S. tax requirements. This is why, if you have a foreign corporation, you are well-advised to seek help from the experienced international tax professionals of Sherayzen Law Office. Contact Us to Schedule Your Confidential Consultation Now!

2015 Inflation Adjustments to Tax Benefits

/0 Comments/in , /by

The IRS recently announced annual inflation adjustments for more than 40 tax provisions, including the tax rate schedules, and other tax changes. Revenue Procedure 2014-61 provides details about these 2015 inflation adjustments. In this writing, I would like to highlight main 2015 inflation adjustments.

1. 2015 inflation adjustments for income tax brackets. The tax rate of 39.6 percent affects singles whose income exceeds $413,200 ($464,850 for married taxpayers filing a joint return), up from $406,750 and $457,600, respectively. The other marginal rates – 10, 15, 25, 28, 33 and 35 percent – and the related income tax thresholds are described in the revenue procedure.

2. 2015 inflation adjustments for Standard Deduction. The standard deduction rises to $6,300 for singles and married persons filing separate returns and $12,600 for married couples filing jointly, up from $6,200 and $12,400, respectively, for tax year 2014. The standard deduction for heads of household rises to $9,250, up from $9,100.

3. 2015 inflation adjustments for Itemized Deduction Limitation. The limitation for itemized deductions to be claimed on tax year 2015 returns of individuals begins with incomes of $258,250 or more ($309,900 for married couples filing jointly).

4. 2015 inflation adjustments for Personal Exemption Amounts. The personal exemption for tax year 2015 rises to $4,000, up from the 2014 exemption of $3,950. However, the exemption is subject to a phase-out that begins with adjusted gross incomes of $258,250 ($309,900 for married couples filing jointly). It phases out completely at $380,750 ($432,400 for married couples filing jointly.)

5. 2015 inflation adjustments for Alternative Minimum Tax (AMT): AMT exemption amount for tax year 2015 is $53,600 ($83,400, for married couples filing jointly). The 2014 exemption amount was $52,800 ($82,100 for married couples filing jointly).

6. 2015 inflation adjustments for Earned Income Credit (EIC) amount. The maximum EIC amount is $6,242 for taxpayers filing jointly who have 3 or more qualifying children, up from a total of $6,143 for tax year 2014. The revenue procedure has a table providing maximum credit amounts for other categories, income thresholds and phaseouts.

7. 2015 inflation adjustments for Estate Basic Exclusion Amounts. Estates of decedents who die during 2015 have a basic exclusion amount of $5,430,000, up from a total of $5,340,000 for estates of decedents who died in 2014.

8. 2015 inflation adjustments for Foreign Spouse Gifts. The exclusion from tax on a gift to a spouse who is not a U.S. citizen is $147,000, up from $145,000 for 2014.

9. 2015 inflation adjustments for Foreign Earned Income Exclusion (FEIE). The 2015 FEIE breaks the six-figure mark, rising to $100,800, up from $99,200 for 2014.

10. 2015 inflation adjustments for Annual Gift Exclusion Amount. The annual exclusion for gifts remains at $14,000 for 2015.

Who Must File IRS Form 1042

/0 Comments/in , /by

Form 1042 (“Annual Withholding Tax Return for U.S. Source Income of Foreign Persons”) serves a number of important reporting purposes. In general, it is used to report the tax withheld under chapter 3 of the Internal Revenue Code (“IRC”) on certain income of foreign persons (such as nonresident aliens, foreign partnerships, foreign corporations, foreign estates, and foreign trusts), as well as to report the tax withheld under chapter 4 of the IRC on payments subject to tax withholding. It also utilized to report tax withheld pursuant to IRC Section 5000C (“Imposition of tax on certain foreign procurement”), and reportable payments from Form 1042-S under chapters 3 or 4.

In this article, we will cover who is responsible for filing Form 1042. US individuals involved with cross-border businesses or living overseas should be aware of this form as they may be subject to the form’s filing requirements for a variety of common reasons, without even knowing it. For instance, US-source alimony paid to a nonresident alien former spouse may be reportable by a withholding agent on Form 1042 (in addition to 1042-S), even if the entire amount is exempt under a tax treaty.

This article provides general information and is not intended to convey tax or legal advice. Please contact Mr. Eugene Sherayzen, an experienced tax attorney at Sherayzen Law Office, Ltd. if you have any questions about filing this form, or any other US-international tax questions.

Who is Responsible for Filing Form 1042?

As noted by the IRS, unless an exception applies, “every withholding agent or intermediary who receives, controls, has custody of, disposes of, or pays a withholdable payment, including any fixed or determinable annual or periodical income, must file an annual return for the preceding calendar year” on Form 1042. The IRS defines “withholding agent” to mean any person who is required to withhold tax. This definition is expansive and can include, in general, any individual, trust, estate, partnership, corporation, nominee, government agency, association, or tax-exempt foundation (both domestic and foreign) that is required to withhold tax. Withholding agents are personally liable for any tax required to be withheld, as well as interest and applicable penalties.

An “intermediary” means, “a person who acts as a custodian, broker, nominee, or otherwise as an agent for another person, regardless of whether that other person is the beneficial owner of the amount paid, a flow-through entity, or another intermediary.”

When Must Form 1042 Be Filed?

Form 1042 must be filed in a number of different circumstances. As stated by the IRS, an individual or entity must file the form if, “you are required to file or otherwise file Form(s) 1042-S for purposes of either chapter 3 or 4 (whether or not any tax was withheld or was required to be withheld to the extent reporting is required)…; You file Form(s) 1042-S to report to a recipient tax withheld by your withholding agent; You pay gross investment income to foreign private foundations that are subject to tax under section 4948(a); You pay any foreign person specified federal procurement payments that are subject to withholding under section 5000C; You are a qualified intermediary (QI), withholding foreign partnership (WP), withholding foreign trust (WT), participating foreign financial institution (FFI), or reporting Model 1 FFI making a claim for a collective refund under your respective agreement with the IRS.” Note, that the FFI classification may also require other extensive reporting under FATCA.

2014 Form 1042: Due Date and Place of Filing

The 2014 Form 1042 must be filed by March 16, 2015, to the IRS’ Ogden (UT) Service Center, and an extension of time to file may be granted by submitting Form 7004, (“Application for Automatic Extension of Time To File Certain Business Income Tax, Information, and Other Returns”).

Contact Sherayzen Law Office for Help With International Tax Compliance

US-International tax reporting and planning can involve many complex areas, and you are advised to seek the advice of attorneys practicing in this area. If you have any questions, please contact Sherayzen Law Office, Ltd. for all of your tax and legal needs.