Foreign Accounts Tax Attorney: FATCA – Nowhere to Hide

As a foreign accounts tax attorney, I get a lot of questions from US taxpayers with undisclosed offshore accounts with respect to what FATCA means for the purposes of global transparency. As any foreign accounts tax attorney would tell you, FATCA will and already does make a huge dent in U.S. tax non-compliance. The purpose of this article is to explain why that is the case from a perspective of a foreign accounts tax attorney.

FATCA Background

The Foreign Accounts Tax Compliance Act (FATCA) was enacted as part of the Hiring Incentives to Restore Employment Act of 2010 (“HIRE Act” or “Act”). From the perspective of a foreign accounts tax attorney, there are two major parts of FATCA that make this law so unique.

First, FATCA imposed a new set of foreign asset disclosure requirements on U.S. persons which has to be filed with a U.S. tax return: Form 8938. Second, FATCA imposes an international reporting regime of offshore accounts owned by U.S. persons. This regime is enforced through a network of FATCA implementation treaties which are negotiated between the IRS and governments of foreign jurisdictions.

Form 8938 Reporting Requirement

Form 8938 compliance is one of the most immediate concerns for a foreign accounts tax attorney. In a previous article, I detailed Form 8938 reporting requirements. For the purposes of this article, I will briefly summarize these requirements here. In general, under IRC section 6038D, disclosure is required if the aggregate value of all “specified foreign financial assets” as defined in the statute, exceeds $50,000 (compare this threshold to the FBAR requirement of $10,000). This information must be attached to the current year tax returns. This provision of FATCA is effective as of tax year 2011. Covered individuals or entities must disclose the maximum value of the asset(s) during the year, as well as other pertinent information regarding the account, stock, financial instrument, contract, interest, or related items.

Worldwide Foreign Accounts Reporting

In addition to targeting U.S. taxpayers directly with Form 8938, FATCA also establishes the framework for the worldwide reporting of US-owned foreign accounts by foreign financial institutions (the “FFI”). Through a network of FATCA-implementation treaties with other foreign governments, the FFIs will be (and, in some countries, already are) required to report foreign financial accounts owed by U.S. persons and impose a withholding tax on the earnings of these accounts.

In essence, as a Foreign Accounts Tax Attorney would assert, FATCA turns the FFIs into the IRS withholding and reporting agents on an unprecedented, systematic scale of the entire globe (or, at least, the participating countries which are likely to include some of the largest world economies, particularly European countries and Japan).

Cumulative Impact of FATCA Provisions on the Non-Compliant US Taxpayers

In the long term, as a Foreign Accounts Tax Attorney, I believe that FATCA has the ability to create the environment of global tax compliance with respect to undisclosed foreign accounts – probably, not 100%, but close. Of course, a lot will depend on the ability of the US government to promote FATCA implementation treaties around the globe. As a Foreign Accounts Tax Attorney, I anticipate great unwillingness of countries like China and Russia to fully participate in the Program. Nevertheless, at this point, it appears that Western Europe, Canada, Australia and Japan are likely join the global web of FATCA enforcement. I predict that special pressure may be applied to certain Central American countries, Singapore and the Caribbean countries to enroll them into FATCA compliance as soon as possible.

For non-compliant US taxpayers, this means that it is time to consider the impact of global FATCA enforcement as well as learn from the lessons of the Program for Swiss Banks. This means that the voluntary disclosure options should be considered as soon as possible to avoid dire consequences later. This type of analysis should be undertaken by an experienced Foreign Accounts Tax Attorney.

Contact Sherayzen Law Office for Help with the Voluntary Disclosure of the Offshore Accounts

If you have undisclosed offshore accounts, contact Sherayzen Law Office for help with your voluntary disclosure as soon as possible. Our experienced Foreign Accounts Tax law firm will thoroughly analyze your case, identify your voluntary disclosure options, prepare all of the necessary legal documents and tax forms, file your voluntary disclosure package and rigorously defend your case during the IRS negotiations.