In order to force ‘Specified Persons‘ to report all of this; there’s a set of penalties. ‘Failure to File’: $10,000 per form. If the IRS sends out a notice and within 90 days the person still does not file the form the penalty accumulates at about $10,000 per month capped at $50,000.
Accuracy-related penalty: if underpayment of tax is related to a transaction involved any of these ‘Specified Foreign Financial Assets‘ the accuracy-related penalties go automatically to 40%.
The civil fraud penalty is actually similar to a regular civil fraud penalty, it’s 75%. Criminal Penalties are possible as well. Usually they’re combined with something – a very substantial income tax noncompliance. We have not really seen yet at least yet because remember this is a fairly new form; we have not really seen form 8938 criminal penalties being imposed. It’s probably coming down the road but not yet.
And then there are significant implications for the ‘Statute of Limitations’. With respect to the examinations, the Statute of Limitations basically the ability of the IRS to go back and open up a tax return until you file a form 8938, the Statute of Limitations never starts to run. Basically, the return is open forever. So the IRS can go back today and impose the penalties for the form 8938 that was not filed with the 2011 tax return.
And by opening up the tax return they can find other things and other penalties may accumulate; but there’s another aspect of it. The Statute of Limitations on the assessment of tax. So we are talking about this situation where it doesn’t matter; (and this is a trick for you) it doesn’t matter that the form 8938 was even required to be filed as long as the Specified Foreign Financial Assets are involved and the failure to report was of more than $5,000 of income from those Specified Foreign Financial Assets, the Statute of Limitations automatically goes up from 3 years to 6 years. Again, even if form 8938 filing threshold was not met.
These are very significant penalties. And now we can appreciate and understand then that when IRS adds a new category of filers to form 8938, this means a significant burden for those, to those filers and we can appreciate that we need to understand exactly who needs to file that form and when they need to file it and how this determination is being made.