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Yearly Archives: 2019

Comm'r Warns Taxpayers – Streamlined Offshore Procedures Won't Last Forever!

Last week I attended the ABA's 36th National Institute on Criminal Tax Fraud in Las Vegas, where IRS Commissioner Charles "Chuck" Rettig announced that for those taxpayers who still have income from unreported offshore accounts, they should take note that the Streamlined Offshore Procedures Won't Last Forever. 

Taxpayers should remember that the OVDP (f/k/a OVDI) started back in 2009 to give taxpayers with exposure to potential criminal liability or substantial civil penalties due to a willful failure to report foreign financial assets, a program with specified procedures for resolving criminal exposure and a specified penalties regime. Taxpayers could come forward, pay back taxes with interest and a penalty, and avoid criminal prosecution.

However, that arrangement changed on September 28, 2018, when the IRS ended the OVDP program, by giving 6 months advanced notice in Announcement IR 2018-52. Remaining Disclosure options for taxpayers with non-willful compliance issues included the Streamlined Foreign Offshore and Streamlined Domestic Offshore Procedures.

After September 28, 2018, CI's November 20,2018 memo describes the IRS current requirements for willful taxpayers to make a voluntary disclosure. The new practice has a defacto retroactive effect, since the Memorandum addresses a new process for all voluntary disclosures, both domestic and offshore, following the September28,2018 expiration of the 2014 Offshore Voluntary Disclosure Program. However, the penalty regime under the new framework is far less favorable than under prior programs.

While there is still a trickle of non-willful taxpayers cleaning up under the Streamlined Offshore Procedures, the IRS has made it clear that this the Streamlined Offshore Procedures won't last forever and this may be non-willful taxpayer's last chance to report previously undisclosed foreign accounts under this program.

These IRS ending the OVDP program and now the proposed ending of the Streamlined Offshore Procedures, reflect an ongoing efforts by the U.S. government to make
offshore tax compliance a priority.

The Foreign Account Tax and Compliance Act (FATCA), enacted in 2010, requires foreign financial institutions to report their U.S. taxpayer clients to the U.S. government. In addition, inter-governmental agreements (IGAs) with 113 countries mean that foreign governments are also sharing information with American authorities to combat offshore tax evasion. For more on this, please see our Blog posts:

This additional reporting may identify taxpayers who were able to hide their assets in the past and this may be non-willful Taxpayer's last chance to come clean under the Streamlined Foreign Offshore and Streamlined Domestic Offshore Procedures.

Have an Unreported Foreign Income?


Want To Know Which OVDP Program
Is Right For You?


 

Contact the Tax Lawyers at 
Marini & Associates, P.A.   
 
 
for a FREE Tax Consultation contact us at:
Toll Free at 888-8TaxAid (888) 882-9243

 

Read more at: Tax Times blog

Ten Facts About Tax Expatriation – Part III

As we previously discussed in Ten Facts About Tax Expatriation - Part I & Part II, whatever your motives, just because you leave the United States and renounce your citizenship, don't assume you can leave U.S. taxes (or U.S. tax forms and complexity) behind, particularly if you are financially well-off and there are 10 things you need to know about Expatriation:
 
  1. Uncle Sam taxes income worldwide.
  2. Expatriating means really leaving.
  3. The old 10-year window is closed.
  4. Big changes came in 1996.
  5. Tax avoidance is now irrelevant.
  6. There are special rules for long-term residents.
  7. There's an exit tax for expatriations on or after June 17, 2008.
 8. Some expatriates can escape the exit tax.

In general the exit tax is unforgiving and has broad application. Yet if you have less than $600,000 of income from the deemed sale of your assets on expatriation, you pay no tax. This exemption amount is adjusted for inflation and is $627,000 for 2010. If your gain exceeds this amount, you must allocate the gain pro rata among all appreciated property.

However, this exclusion amount must be allocated to each item of property with built-in gain on a proportional basis. This involves a complicated process of multiplying the exclusion amount by the ratio of the built-in gain for each gain asset over the total built-in gain of all gain assets. The exclusion amount allocated to each gain asset may not exceed the amount of that asset's built-in gain. Moreover, if the total allowable gain of all gain assets is less than the exclusion amount, the exclusion amount that can be allocated to the gain assets will be limited to that amount of gain. For example, in 2010, if the total allowable gain in an expatriate's assets was $500,000, then that $500,000 would be the limit instead of $627,000.

Fortunately not all expatriates face the exit tax; only "covered expatriates" do. Under prior law, you generally had to give notice you were expatriating to trigger the rules. Now if you relinquish your passport or green card, it's generally automatic. But some expatriates, even under the new law, can escape the exit tax. The financial thresholds (see point five above) can still exempt you. Some people born with dual citizenship who haven't had a substantial presence in the U.S. and certain minors who expatriated before the age of 18-and-a-half are also exempt. However, those people must still file an IRS Form 8854 Expatriation Information Statement.

9. You can elect to defer the exit tax.
If you do face the exit tax, you can make an irrevocable election (on a property-by-property basis) to defer it until you actually sell the property. This election allows people to leave the U.S. and expatriate without triggering immediate tax as long as the IRS is assured it will collect the tax in the future. To qualify, a covered expatriate must provide a bond or other adequate security for the tax liability. There are specific requirements for these security bonds. Plus, there is an updating and monitoring of the bond in case it becomes inadequate to cover the tax. The IRS scrutinizes these elections on a case-by-case basis, so hire an expert. There are detailed requirements for filing the deferral election, including documentation, and copies of various documents.

One of these requirements is appointing a U.S. agent for the limited purpose of accepting communications with the IRS. Plus, the taxpayer must waive any tax treaty benefits that might otherwise impact the IRS getting its money. It doesn't appear that many of these deferral elections have been made so far.

There's another reason, other than the bond, not to defer. When you do sell, you'll pay taxes at the rate then in effect, which will likely be higher. If the Obama Administration has its way, when the Bush tax cuts expire at the end of this year, the top rate on long-term capital gains will rise from 15% to 20%. Plus, the just-passed House reconciliation package to the Senate's health care bill (if also approved by the Senate) is supposed to impose an additional 3.8% tax on net investment income for taxpayers with threshold income amounts of $200,000 for individuals and $250,000 for joint filers. This could raise the top capital gains rate to 23.8% for those taxpayers.

10. You'll need professional help.
As you might expect, there are forms to file and procedures to follow if you expatriate. In fact, if you are wavering, the paperwork alone may keep you stateside! You must file IRS Form 8854 (in some cases for 10 years). Additional special forms (Form W-8CE if you have any deferred compensation items, a specified tax deferred account, certain non-grantor trusts, etc.) are also required. A good source is IRS Notice 2009-85.

Still, get some professional help. As this mere scratching of the surface suggests, the tax rules regarding expatriation for citizens and long-term residents are complex, even dizzying. Gone are the days when one could renounce U.S. citizenship and stand a good chance of avoiding U.S. tax. If you're facing these issues, or even if you are a beneficiary of someone else who is facing them, get some professional help. Bon voyage!

"Should I Stay or Should I Go?"

Need Advise on Expatriation? 
 

Contact the Tax Lawyers of
Marini & Associates, P.A. 

For a FREE Tax Consultation at:
Toll Free at 888-8TaxAid ( 888 882-9243)  

  


 

Read more at: Tax Times blog

Trends in IRS audits – Part III

As we discussed in Trends in IRS audits – Part I, the IRS’s auditing power has been greatly diminished in the past decade and according to accountinTODAY, while most taxpayers envision Internal Revenue Service audits as intrusive investigations resulting in criminal sentences. Today, nothing could be farther than the truth.

As we discussed in Trends in IRS audits Part I & Part II:
  1. Most audits are done by mail.
  2. The main issue in audits: The EITC. and
  3. An alarming amount of people do not respond to an audit 
  4. The most common IRS challenge to a return is not an audit.  
  5. The IRS knows who to audit 
  6. Field audits are rare, but expensive.
  7. Want your business to escape audit?  
 
8. Audits on the wealthy are still popular, but have dropped - In 2011, 1 out of every 8 taxpayers who earned more than $1 million in income were audited. In 2018, the number dropped to 1 in every 31 taxpayers. However, those who earn more than $1 million are still among the most popular audit profiles.

 
AT-112119-Buttonow- Audit rates for wealth taxpayers.png
9. Audits have dropped, but penalties are still prevalent - The total volume of individual audits and CP2000 notices has dropped from 4 million in 2005 to 3.9 million in 2018. However, in 2018, 606,121 individual taxpayers were assessed the accuracy penalty for making an error on a tax return (audit or CP2000 notice). In 2005, that number was only 58,366. The moral here: If the IRS has to audit or send a CP2000 notice, it will now look to penalize errors to deter future noncompliance. The number of individual taxpayers with an accuracy penalty from an audit/CP2000 notice has increased 10 times since 2005.
 
AT-112119-Buttonow IRS Accuracy Penalties

 

 
10. Tax evasion prosecutions are low - Finally, the “fear of an audit” myth buster. The IRS does not like to publish this statistic. In 2018, there were only 636 indictments of legal source tax crimes. IRS tax evasion criminal investigation cases have dropped by 58 percent since 2013. The main source of IRS legal source tax crime cases are IRS field auditors and criminal investigators, i.e. revenue agents and special agents. From 2013 to 2018, the numbers of revenue agents and special agents have decreased by 26 percent and 21 percent, respectively. As a result, the number of criminal investigations and indictments continue to decline.
 AT-112119-Buttonow - Tax crime investigations and indictments.png

Realities and the IRS ability to close the tax gap
Fear of an audit has always been a main driver for compliance for the IRS. The 2018 Comprehensive Taxpayer Attitude Survey continued to show that 63 percent of taxpayers cited fear of an audit as an influential behavioral factor for correctly filing and timely paying their taxes. The tax gap, as currently measured on 2011-2013 returns, shows that the Treasury loses $352 billion a year due to inaccurate tax returns. With the fear of an audit becoming a myth, how will the IRS close the tax gap?

As the fear of an audit motivator becomes less of a reality, the IRS must seek to simulate the audit by touching as many taxpayers as they can. For now, that looks like sending a lot of non-audit notices to taxpayers. Recently, the Treasury Inspector General for Tax Administration reported that the IRS sent over 219 million notices annually to taxpayers. In 2001, the number of notices sent was only 30 million. With the IRS’s current resources, the IRS notice may be the only means the IRS has to let taxpayers know that they are still there.

 

Have a IRS Audit Problem?

 

 

Contact the Tax Lawyers at
Marini & Associates, P.A. 
 
 for a FREE Tax Consultation Contact us at:
www.TaxAid.com or www.OVDPLaw.com
or Toll Free at 888-8TaxAid (888 882-9243). 
 
 
 

Read more at: Tax Times blog

EB-5 Investments Increased to $900,000 and $1.8 Million Starting November 21, 2019

On July 9, 2019 we posted EB-5 Investment - New Regulations Expected To Increase Minimum Investment of $500,000 To $1.35 Million where we discussed that on June 27, 2019 the Office of Management & Budget (OMB) reported on its website that it has finished its review of the Obama-era regulations that would significant changes to the minimum investment amount, as well as other consequential changes. The regulations have proposed increasing the minimum investment of $500,000 to $1.35 million, and the $1 million investment to $1.8 million. Upon the regulation’s publishing in the Federal Register, the final effective date may be between 30 to 60 days.

The Final Rule scheduled to be published on Wednesday, July 24, 2019, in the Federal Register is set to raise investment amounts for the EB-5 program. Other major program changes include the centralization of TEA's in the Department of Homeland Security (DHS) and a clarification of procedures for removing conditions on permanent residence. This is the first significant revision to the EB-5 program's regulations since 1993.

The New EB-5Program Changes Include:

  • Increased investment amounts: $500,000 to $900,000 for TEA investments and $1 million to $1.8 million for non-TEA investments.
  • TEA centralization to DHS for geographic area designation.
  • Investment amounts raised every five years.
  • Clarifying USCIS procedures for removal of conditions on permanent residence.
  • Allowing EB-5 petitioners to retain original priority dates.

Additionally, the new regulations outline what is required to qualify a project as a TEA and requires that the USCIS will make the determination, not the individual states. Prior to the new regulations, a regional center could simply request a TEA letter from the state, county or city government where the project was located (depending on the state). This will not be the process anymore, since the USCIS will adjudicate all TEA requests. This will improve integrity within the EB-5 program since the regional center operators will not be able to gerrymander their projects into qualifying as a TEA when they do not.
E-2 Investor Visa

Alternatively, potential investors seeking an EB-5 should also consider an E-2 investor visa. They are an appealing options for foreign business persons, investors, managers, and employees who wish to stay in the United States for extended periods of time to oversee:


  1. an enterprise that is engaged in trade between the United States and a foreign country; or 
  2. a major investment in the United States.

The E visa isn’t for just anyone who has a trade or investment. This visa class is exclusively for what the USCIS terms “treaty traders and investors”. This means that all applicants must be nationals of a country that holds a treaty of trade and commerce with the United States.

If you’re wondering if your country is a treaty country, you can look for it on the comprehensive list provided by the Department of State.

 
The regulations state that you must be a national of one of these countries, but you do not necessarily need to be currently living there. 
 

Treaty Investor (E-2) Visa

Treaty investor applicants must meet specific requirements to qualify for a treaty investor (E-2) visa under immigration law. The consular officer will determine whether a treaty investor applicant qualifies for a visa.

  • The investor, either a real or corporate person, must be a national of a treaty country.
  • The investment must be substantial. (Usually $100,000 in a corporate bank account) It must be sufficient to ensure the successful operation of the enterprise. The percentage of investment for a low-cost business enterprise must be higher than the percentage of investment in a high-cost enterprise.
  • The investment must be a real operating enterprise. Speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • The investment may not be marginal. It must generate significantly more income than just to provide a living to the investor and family, or it must have a significant economic impact in the U.S.
  • The investor must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • The investor must be coming to the U.S. to develop and direct the enterprise. If the applicant is not the principal investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity. Ordinary skilled and unskilled workers do not qualify. 
Coming to America?
 
 
Need Pre-Immigration Tax Advice?  

 
Contact the Tax Lawyers atMarini & Associates, P.A. 

 
 for a FREE Tax Consultation Contact US at
www.TaxAid.com or www.OVDPLaw.com
or Toll Free at 888-8TaxAid (888 882-9243). 

Read more at: Tax Times blog