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FBAR Filing: FinCEN’s Third Extension for Certain Signatory Authority Filers

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In FinCEN Notice 2012-2, the Financial Crimes Enforcement Network (FinCEN) announced a third extension of time for certain Report of Foreign Bank and Financial Accounts (FBAR) filings in light of ongoing consideration of questions regarding the filing requirement and its application to individuals with signature authority over but no financial interest in certain types of accounts. The new extended deadline is set for June 30, 2014.

This extended filing deadline applies only to the following classes of individuals:

1). An employee or officer of a covered entity (see 31 C.F.R. § 1010.350(f)(2)(i)-(v)) who has signature or other authority over and no financial interest in a foreign financial account of another entity more than 50 percent owned, directly or indirectly, by the entity (a “controlled person”). For this purpose, a “controlled person” is a U.S. or foreign entity that is more than 50% owned (directly or indirectly) by an excepted entity.
2). An employee or officer of a controlled person of a covered entity (see 31 C.F.R. § 1010.350(f)(2)(i)-(v)) who has signature or other authority over and no financial interest in a foreign financial account of the entity or another controlled person of the entity.
3). An employee or officer of an investment advisor registered with the Securities and Exchange Commission who has signature or other authority over and no financial interest in a foreign financial account of persons that are not investment companies registered under the Investment Company Act of 1940.

Notice that categories 1 and 2 do not apply to companies that are not publicly traded or not SEC-registrants.

This extension comes after a series of earlier extensions by FinCEN. On February 14, 2012, FinCEN issued Notice 2012-1 to extend the filing date for FinCEN Form 114 Formerly TD F 90-22.1, FBAR, for certain individuals with signature authority over but no financial interest in one or more foreign financial accounts to June 30, 2013. This Notice was preceded by two earlier extensions: on May 31, 2011, FinCEN issued Notice 2011-1 (revised on June 2, 2011) to extend to June 30, 2012, the due date for filing the FBAR for certain individuals with signature authority over but no financial interest in one or more foreign financial accounts, specifically individuals whose FBAR filing requirements may be affected by the signature authority filing exceptions in 31 CFR § 1010.350(f)(2)(i)-(v). On June 17, 2011, FinCEN issued Notice 2011-2 similarly extending the FBAR filing due date to June 30, 2012, for certain employees or officers of investment advisers registered with the Securities and Exchange Commission who have signature authority over but no financial interest in certain foreign financial accounts.

The extension contained in FinCEN Notice 2012-2 is the third filing extension for individuals with signature authority over but no financial interest in certain types of accounts. It covers not only the reporting of signature authority held by such persons for 2012, but also for all other years for which filing was previously extended to June 30, 2012, under FinCEN Notices 2011-1 and 2011-2.

It is important to note, however, that all other taxpayers who are required to file an FBAR must still do so by June 30, 2013.

Voluntary Disclosure Program: Possible Renewal With Modifications

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On December 9, 2010, in his prepared remarks before the “23rd Annual Institute on Current Issues in International Taxation IRS” (in Washington, D.C.), Commissioner Doug Shulman hinted that the IRS is considering whether to renew the Voluntary Disclosure Program. The new Voluntary Disclosure Program would have tougher penalties that the original Program that ended in October of 2009, but it would still offer a way for U.S. taxpayers to comply with the U.S. tax laws while avoiding the worst consequences of tax noncompliance.

Here is a relevant excerpt from Commissioner Shuman’s speech:

“Given its success, we are seriously considering another special offshore Voluntary Disclosure program. However, there will be some fundamental differences. Taxpayers will not get the same deal as those who came in under the original program. To be fair to those who came in before the deadline, the penalty – and thus the financial cost to participate – will increase. Let me say too that we expect to make the terms of any new program available to those who have already come in after October 2009 when that program expired. Stay tuned for more details as they become available.”

Voluntary disclosure is usually the best way to bring your tax affair in full compliance with the U.S. tax laws. Moreover, voluntary disclosure process often reveals nonconformity with other U.S. tax compliance requirements, such as FBARs, Form 5471, Form 8865, Canadian RRSP disclosure, et cetera.

Sherayzen Law Office has helped the taxpayers throughout the United States to voluntarily disclose their income and assets, negotiate their tax obligations, and bring their tax affairs in full compliance with U.S. tax laws. At the same time, we have helped our clients to resolve such issues as delinquent FBARs, Form 5471/8865 filings, foreign trust income disclosure, Canadian RRSP reporting, and other relevant tax compliance issues. We will guide you every step of the way, draft the necessary documents and negotiate with the IRS.

Call NOW (952) 500-8159 to discuss your tax issues with an experienced tax attorney! Remember, your consultation is confidential and protected by the attorney-client privilege.