IRS Serves Summons on FirstCaribbean International Bank’s US Wells Fargo Account

The Department of Justice issued a release on April 30, 2013 that a federal court in San Francisco has entered an order authorizing the Internal Revenue Service (IRS) to serve a “John Doe” summons seeking information about U.S. taxpayers who may hold offshore accounts at Canadian Imperial Bank of Commerce FirstCaribbean International Bank (FCIB) through their correspondent account at Wells Fargo N.A. A John Doe summons enables the IRS to obtain information about possible violations of US tax laws by U.S. taxpayers whose identities are unknown. This specific summons directs Wells Fargo to produce records identifying U.S. taxpayers who have accounts at FCIB and other banks that used FCIB’s correspondent account.

The order was signed by Senior District Judge Thelton E. Henderson, and allows the IRS to identify U.S. taxpayers who hold or held interests in financial accounts at FCIB and other financial institutions that used the Wells Fargo correspondent account.

This article will briefly explain the IRS John Doe summons. It is not intended to constitute tax or legal advice

Correspondent Accounts

According to the DOJ, “A correspondent account is a bank deposit account maintained by one bank for another bank. Financial transactions involving U.S. dollars flow through U.S. banks. Therefore, foreign banks that do business in U.S. dollars, but have no office in the U.S., obtain a correspondent account at a U.S. bank in order to engage in such transactions. These transactions leave a trail in the U.S. that the IRS can access through the records of the correspondent bank accounts. These correspondent bank accounts have records of money deposited, money paid out through checks and money moved through the correspondent account by wire transfers.” The IRS can obtain all of this desired information through a John Doe summons issued to the U.S. bank holding the correspondent account.

Canadian Imperial Bank of Commerce’s FirstCaribbean International Bank

FCIB is based in Barbados and has branches in 18 Caribbean countries, according to the declaration of IRS Revenue Agent Cheryl R. Kiger, filed in support of the court petition. These countries include the British Virgin Islands, Dominica, Cayman Islands, Bahamas, and Barbados, among others. FCIB does not have any U.S. branches; however, it does maintain a U.S. correspondent account at Wells Fargo Bank N.A. Wells Fargo, headquartered in San Francisco, CA is the fourth largest bank in the U.S. by assets, and the largest bank when ranked by market capitalization, according to Wikipedia.

Per Agent Kiger’s declaration, the IRS discovered that U.S. taxpayers were using FCIB to help them escape detection of their offshore accounts by the IRS and to not pay U.S. federal income tax on money held in such offshore accounts. According to the DOJ release, after reviewing information submitted by more than 120 FCIB customers who enrolled in the IRS’s Offshore Voluntary Disclosure Program, the IRS determined that many FCIB customers in the John Doe summons class, “[M]ay have been under-reporting income, evading income taxes, or otherwise violating the internal revenue laws of the United States.”

Latest Example of How Offshore Voluntary Disclosure Programs Help IRS Identify Other Non-Compliant US Taxpayers

Since 2009, Sherayzen Law Office has predicted that the IRS Offshore Voluntary Disclosure Programs (now closed) will produce a wealth of information that the IRS will use to identify other targets for investigation and prosecution. We further predicted the more widespread use of John Doe summons. Finally, since the Wegelin bank case began, we have repeatedly advised our clients that the IRS is likely to use the correspondent accounts opened with U.S. banks to identify non-compliant taxpayers with undisclosed foreign accounts.

Over the past four years, we have seen all of our predictions come true, and the latest move by the IRS against the FirstCaribbean International Bank is just the latest example of it.

According to Kathryn Keneally, Assistant Attorney General for the Justice Department’s Tax Division, “The Department of Justice and the IRS are committed to global enforcement to stop the use of foreign bank accounts to evade U.S. taxes. This John Doe summons is a visible indication of how we are using the many tools available to us to pursue this activity wherever it is occurring. Those who are still hiding should get right with their country and their fellow taxpayers before it is too late.” Acting IRS Commissioner Steven T. Miller added, “This summons marks another milestone in international tax enforcement. Our work here shows our resolve to pursue these cases in all parts of the world, regardless of whether the person hiding money overseas chooses a bank with no offices on U.S. soil.”

Contact Sherayzen Law Office for Help With the Voluntary Disclosure of Your Foreign Bank Accounts

If you are a US taxpayer who is using foreign bank accounts to attempt to under-report US income or evade US tax laws, this summons should serve as a warning to you. The IRS will likely increase their use of enforcement mechanisms such as the John Doe summons in the near future, so you are highly advised to seek an experienced attorney in these matters.

For the U.S. taxpayers with have undisclosed financial accounts in FirstCaribbean International Bank, the time to act is now – before the IRS finds them.

This is why it’s a good idea to contact Sherayzen Law Office an experienced law firm in Offshore Voluntary Disclosures. Our international tax team can assist you in all of your tax and legal needs concerning undisclosed foreign accounts and income and help you avoid making costly mistakes.

Offshore Voluntary Disclosure Program: Advantages and Disadvantages

2012 Offshore Voluntary Disclosure Program (2012 OVDP) now closed may offer tremendous benefits to certain types of taxpayers, but it may not be as beneficial in other circumstances. Whether to enter the 2012 OVDP is a decision that should be made by the taxpayer only after he had an opportunity to discuss this matter in depth with an experienced attorney who specializes in offshore voluntary disclosures. In this article, however, I wish to outline some of the broader considerations with respect to entering into the 2012 OVDP in order to provide some background information to the readers so that they can understand better their attorney’s advice.

Background Information

2012 OVDP was announced by the IRS barely four months after the end of the wildly-successful 2011 OVDI (Offshore Voluntary Disclosure Initiative). However, the actual terms of the program were not announced until much later, June 26, 2012.

2012 OVDP brought in tougher terms than 2011 OVDI (for example, the highest penalty category is 27.5% instead of 25% as it was under 2011 OVDI rules), closed some 2011 OVDI loopholes and created a more complex and detailed set of rules. 2012 rules also clarified many heretofore obscure procedures and contained new features that may benefit certain classes of taxpayers, especially those who owned Canadian retirement accounts.

The basic structure of 2012 OVDP, however, remains largely similar to 2011 OVDI. It still has three penalty levels (27.5%, 12.5% and 5%), highly demanding information disclosure requirements and general rigidness with respect to its terms.

General Cost-Benefit Considerations

There are actually three general analytical steps with respect to benefits and drawbacks of entering into the 2012 OVDP. First, the extent of current liability exposure of the taxpayer outside of the 2012 OVDP. Second, the estimate of the OVDP liability of the taxpayer and comparison of OVDP versus non-OVDP exposure (here, an attorney would also explore the non-tax aspects of the OVDP disclosure such as the comfort level of the taxpayer with the invasive nature of the OVDP requirements). Finally, whether 2012 OVDP is the best route to proceed vis-a-vis alternative voluntary disclosure options.

Since the first and the third steps are outside of the scope of this article, I will concentrate on the calculation of advantages and disadvantages of entering of the 2012 OVDP versus non-OVDP exposure. It should be remembered, however, that this calculation will depend heavily on the individual circumstances of each case.

Primary Advantages of the 2012 OVDP

2012 OVDP enjoys five primary advantages over non-OVDP options. First, it is an official IRS program with a virtual certainty (though, according to the IRS, not a 100% guarantee) of elimination of criminal prosecution.

Second, 2012 OVDP provides a taxpayer with an opportunity to calculate, with a reasonable degree of certainty, the total cost of resolving all offshore tax issues at the same time. This is the case because OVDP rules assess one single Offshore Penalty with respect to all information returns – Forms 5471, 8865, 926, 3520, FBARs, et cetera. This can highly advantageous for the taxpayer, because, outside of the OVDP, he will have to deal with the penalties associated with each form.

Moreover, paying one single penalty may represent huge savings over paying penalties outside of the OVDP. The IRS provides a hypothetical example where a taxpayer would pay, outside of the 2012 OVDP, $4,543,000 (plus interest) in tax, accuracy-related penalty, and FBAR penalty on a single $1,000,000 account with the undisclosed income of $50,000 per year. This is not even counting the additional penalties and jail time in case the IRS decides to initial a criminal prosecution. On the other hand, in the same example, a taxpayer would pay only $518,000 plus interest under the 2012 OVDP rules (assuming 27.5% offshore penalty category).

Third, 2012 OVDP rules provide for a certain flexibility where the taxpayer’s attorney can look for strategies to lower the Offshore Penalty further if the circumstances of the case allow for such possibility. Therefore, despite its overall rigidness, the OVDP does take some individual circumstances into the account. However, it is important to point out that much of this flexibility is likely to be achieved only securing the agreement of the IRS agent in charge of your case, his manager and the technical analyst – this is a very hard achievement even for an experienced attorney (though, unfortunately, there are a number of cases where the taxpayers’ representatives failed to even try to achieve this goal) and it puts very strict limits on the OVDP flexibility.

Fourth, 2012 OVDP limits the taxpayer’s liability to eight years and the IRS will not look further absent extraordinary circumstances. Outside of the OVDP, the IRS does have an argument that failure to file certain information returns may keep the statute of limitations open to IRS examination with respect to affected tax returns.

Finally, 2012 OVDP provides a definite closure to the case. At the end of the OVDP process, Form 906 (the Closing Agreement) is signed by the taxpayer and the IRS by which both sides agree to the terms of the Agreement and the case is over (absent extraordinary circumstances, such as fraudulent claims by the taxpayer during the voluntary disclosure process).

Primary Disadvantages of the 2012 OVDP

2012 OVDP also has numerous disadvantages. First, this is a very rigid program with numerous requirements. The side-effect is that the OVDP process can be an expensive one for the taxpayer when it comes to legal and accounting fees.

Second, despite having some flexibility with respect to the calculation of penalties, OVDP rules are not likely to be sensitive to major circumstances of a taxpayer’s case, such as non-willfulness of his conduct. While it is never officially stated, the OVDP unofficially incorporate the assumption that the OVDP applicants acted willfully in its Offshore Penalty structure and there is no reasonable cause that can explain their failure to comply with U.S. tax laws. This often leads to a result where innocent taxpayers with smaller cases or taxpayers who live overseas (and for one reason or another do not satisfy the requirements of the 5% penalty category) can be highly penalized under the OVDP structure.

Third, related to the preceding paragraph, the OVDP penalty structure may actually impose a higher penalty on a taxpayer where IRS is not able to establish the willfulness of the taxpayer’s conduct. This is a highly complex calculation that should be made by an attorney, but, generally, the higher the chances of the taxpayer to establish non-willfulness, the less appealing the OVDP penalty structure is likely to be. This is especially true where OVDP Offshore Penalty includes the assets that would not otherwise either be subject to penalty outside of the OVDP or be subject to a much lower penalty.

Fourth, 2012 OVDP has no real appeal structure in place – in most cases, the IRS agent’s decision is final. If you do not like it, the only real recourse is to opt-out with its murky consequences (it may still be an option depending on the individual circumstances of the case, especially when the taxpayer should not have been in the OVDP program in the first place). The only exception is having a full examination of the tax return and an appeal maybe filed with respect to any tax and penalties imposed by the IRS on examination, but the IRS decisions on the terms of the OVDP closing agreement is almost never subject to an appeal. Such dependance on the good will of an IRS agent in charge of the case naturally produces certain anxiety among the OVDP applicants and constitutes a major drawback of entering into the program.

Finally, 2012 OVDP may take a fairly long time to complete (there are still some 2009 OVDP cases open in 2013). The IRS does try to process the cases as soon as possible, but it has few resources and its agents are overwhelmed with the number of cases pending on their desks. On the average, a taxpayer should expect about a fifteen to eighteen-month process between the acceptance into the OVDP and the final resolution of the case.

Contact Sherayzen Law Office for Help with Your Offshore Voluntary Disclosure

This article merely outlines some of the main consideration with respect to the 2012 OVDP. The actual cost-benefit calculation is much more complex and will vary wildly depending on the individual circumstances of each case.

This calculations and the probabilities with respect to each disclosure option should be done by an international tax attorney experienced in the offshore voluntary disclosures.

This is why you should contact Sherayzen Law Office for help with your voluntary disclosure. Our international tax firm is highly experienced in the voluntary disclosure process. We will thoroughly examine the circumstances of your case, assess your penalties under the various disclosure scenarios, prepare all of the required legal documents and tax forms, and rigorously represent your interests during negotiations with the IRS.