WHAT SHOULD YOU DO? YOU FAILED TO FILE AN FBAR BUT REPORTED ALL INCOME FROM AN OFFSHORE ACCOUNT

This predicament is not an uncommon occurrence.  Many taxpayers may have had a foreign bank or brokerage account and reported the income in their tax returns or earned no income but did not know they had to file an FBAR.  They are often panic-stricken over what they have heard are horrific consequences.  But, there is now light at the end of the tunnel thanks to a new IRS procedure aimed at these taxpayers.

Should these taxpayers with delinquent FBARS enter the OVDP?

Absolutely not.  The Offshore Voluntary Disclosure Program or OVDP is for tax criminals or those who fear imposition of a draconian civil FBAR penalty.  The OVDP is not for those who’ve reported all income from an offshore account but failed to file an FBAR or other foreign information return.

Should they elect the new Streamlined Compliance Procedures?

No, they should not.  The Streamlined Procedures (which are really two processes one for expats and one for U.S. residents) is for those taxpayers who have unreported income and / or unfiled or FBARS, where the non-reporting or failure to file was not willful but due to, “negligence, inadvertence or mistake, or conduct that is the result of a good faith misunderstanding of the requirements of the law.” (Language from Streamlined Process Certification). The Streamlined Process is not for those who’ve reported all income or had no income to report on the account but simply neglected to file an FBAR.

How could the taxpayers have no income on an account?

  • Two examples:
    • A non-interest bearing account such as a checking account maintained for the convenience of paying expenses when visiting the foreign country on as a tourist or on business.
    • A trading account that earns no income or incurs a loss during the year.

Then, what should the taxpayer do?

These taxpayers should follow the Delinquent FBAR Submission Procedures published by IRS on June 18, 2014.

Who may use the Delinquent FBAR Submission Procedures?

A taxpayer who:

  • Did not file an FBAR, when required.
  • Is not currently being civilly examined by IRS and is not currently the target of an IRS criminal investigation.
  • Has not been contacted by IRS about the delinquent FBARS.
  • Does not need to file delinquent or amended tax returns to report and pay additional tax.

How do you file delinquent FBARS under the Delinquent FBAR Submission Procedures?

  • E-file the delinquent FBARS as provided in the FBAR filing instructions using the BSA E-Filing System. You generally cannot paper file the FinCEN Form 114 which replaced the TD 90-22.1 form which had been filed with the Department of the Treasury in Detroit.
  • On the first page of the E-filing input screens there is a drop down menu where the filer must indicate the reason for filing late.  The most common reason for those who have reported all income will be, “Did not know I had to file,” but there are other selections including “Other,” for which an explanation must be provided in limited space.
  • If for some reason you are unable to file electronically, you may contact FinCEN’s Regulatory Helpline at 1-800-949-2732 or 1-703-905-3975.

Will I be penalized for filing late?

No. The IRS in its announcement of the Delinquent FBAR Submission Procedures states:

“The IRS will not impose a penalty for failure to file delinquent FBARS if you properly reported on your U.S. tax return, and paid all tax on, the income from foreign financial accounts reported on the delinquent FBARS and you have not been previously contacted regarding an income tax examination or a request for delinquent returns for the years for which the delinquent FBARS are submitted?”

Will my income tax returns or FBARS be audited?

The IRS announcement regarding Delinquent FBAR Submission Procedures states:

“FBARs will not be automatically subject to audit but may be selected for audit through the existing audit selection processes that are in place for any tax or information returns.”

While the announcement does not mention income tax returns, presumable the same no-automatic-audit rule will apply.  If an audit later reveals that income was not reported on the account, the taxpayer will face potentially severe FBAR and income tax civil and criminal sanctions.

How many years of delinquent FBARS must I file?

File delinquent FBARS for the years open under the Statute of Limitations for assessing FBAR civil penalties.  Normally that will be six years because the Statute of Limitations is six years from the due of the delinquent FBAR, (June 30).  Unlike the Statute of Limitations on income tax assessments, the FBAR Statute begins to run even if no FBAR was filed.  Thus, a 2007 FBAR, due June 30, 2008 would not be required to be filed now because the Statute of Limitations expired on June 30, 2014.  Assuming the 2013 FBAR was timely filed, one would file for the years 2008 through 2012.

Can my CPA prepare and e-file the FBAR for me?

In most cases yes, if it is clear that all income earned on the account was reported. Caveat: There is no di minimis rule; even nominal unreported income will disqualify a taxpayer from using the Delinquent FBAR Submission Procedures and relegate him to employing the OVDP or Streamlined Offshore Compliance Procedures.

Unless it is clear that no income went unreported, taxpayers should probably first consult with an experienced OVDP tax attorney about how to proceed. A CPA has no communications privilege as does an attorney and may be told incriminating admissions about which he can for compelled to testify.

 

© 2014 by Robert S. Steinberg, Esquire – CPA All rights reserved. www.steinbergtaxlaw.com

 

This entry was posted in 214 OVDP, FBARS, NEW OVDP, OFFSHORE BANK ACCOUNTS, STATUTE OF LIMITATIONS, TAX and tagged , , , , , , . Bookmark the permalink.

40 Responses to WHAT SHOULD YOU DO? YOU FAILED TO FILE AN FBAR BUT REPORTED ALL INCOME FROM AN OFFSHORE ACCOUNT

  1. Reblogged this on U.S. Persons Abroad – Members of a Unique Tax, Form and Penalty Club and commented:
    This is a very common situation. I have never heard of someone who didn’t about the FBAR to have filed the FBAR. (Unless it was some kind of accidental form filing).

  2. FBARhelp says:

    2013 was the first year I filed jointly with my resident alien spouse, using TurboTax. He came over in 2012 but did not get a job until mid 2013; thus, did not have a reason to file taxes that year without income. I just recently read about FBARs and realized he should have filed for 2012 and 2013. No unreported income for 2012, but I did not report the interest income in 2013, due to ignorance. Interest was $500-$600; our taxes due are less than $100. I checked “yes” to foreign accounts question but “no” to over $10,000 question, not realizing it was worth so much (about $15,000-$18000, depending on cost of dollar.) I would like to just amend the return, pay the taxes and interest, and file the two FBARs. What is the risk of getting assessed huge FBAR penalties if going this route?

    • Based on the limited information provided, your exposure to huge FBAR penalties is nil. But, understand that I cannot provide you legal advice on this blog as we are not in an attorney-client relationship. Thus, my answer is generic and with more knowledge about your situation I might provide a different answer specifically applicable to you. That being understood, generally, on facts similar to those you state, IRS should not asset a willful FBAR penalty.

  3. wilto says:

    A family member deposited $94,000.00 (62500 GBP Sterling)into my British account in December 2013 (it was a temporary loan as i was planning to move back to the uk with my spouse and this was the magic number to get her int he country) the move fell through and the money was returned to family member in question in July 2014.

    I have filed FBAR for 2014 disclosing the value of my account – it was non-interest bearing so there was no income involved.

    I did not file the FBAR for 2013 tax year and did not report this on my tax return as there was no income. I believe filing a delinquent FBAR for 2013 is best course of action and as there is no interest/income involved my chance of penalty would be nil. Given the limited knowledge, am I on the right track?

  4. Ed says:

    Thanks for the post… Something that I didn’t manage to find anywhere… How about in an account in 2009 you had unreported income in one account, but in 2010 (and later) you had reported and paid all income in all the accounts (different than the 2009). Would you still be exempt of penalty for those compliant years? I believe that should be the case but probably no one knows with certainty? 🙂

    Thanks again!

    • Ed,
      The penalty base for the OVDP, which I presume is what you are talking about, includes only assets that are related to non-compliance. So, you would not include assets the income from which was reported. The same is true for the 5% penalty applicable to U.S. residents filing under the Streamlined Filing Compliance Procedures.
      RSS

  5. Anna says:

    Hello, my question is similar to one above but I’m a Canadian citizen who has moved back home after her divorce from an American citizen. I returned to Toronto late last year and plan to surrender my green card as soon as I’ve filed my 2014 taxes (yes, I’m very late). While in the US I filed jointly with my husband. I was unemployed but I had a savings account in Canada from which I withdrew most of the funds in 2011–my first year as US person– to put a downpayment on our house. His bookkeeper prepared and filed our tax papers and never asked me if I had foreign income. He asked if I had foreign investments–and I said no, as I thought that referred to RRSPs and stocks, not realizing I should have disclosed my savings account. So, I have two problems: I need to file FBARs–something I had never heard of before last month–for the years I was a US person AND I need to amend my earlier income tax statements since the IRS will note the omission. We’re talking about several hundred dollars or less of interest income for 2011, 2012 and 2013 for a savings account that fluctuated between 8000 and 15000 in 2012 and 2013 but that was nearly 80K in 2011 before I withdrew this amount the same year for our downpayment. Should I ask the accountant to quietly amend the joint tax statements and then file my FBARs? Or should I hire an expensive cross-border tax specialist as I could be in a lot of trouble? I’m so scared of being penalized for not reporting my savings account. My marriage financially devasted me and I’m living from paycheque to paycheque.

    • First, you understand that I cannot give specific legal advice but only can make general statements. You cannot amend your returns without your husband joining in the amendment. Joint returns can only be amended by filing a joint amended return. You also have an issue to address with surrendering your green card. The act is easy to accomplish at a U.S. Embassy but you must also notify IRS and must have been tax compliant for 5 years before the expatriation to avoid complications. You might just file the FBARS online and use the explanation from the drop-down menu, “I did not know I had to file.” Save the above explanation in your files in case anyone should ever ask. To be reasonably sure of no penalty, you’d have to qualify for and submit a Streamlined filing. But, that can be expensive. I doubt you’d face a serious penalty if you file the FBARs and your ex won’t agree to amend, however.

  6. Anna says:

    Hi, thank you for your response. Will my ex get into trouble with the IRS for not agreeing to amend? I have a restraining order against him due to domestic abuse so I haven’t seen or spoken to him in a year. If the returns aren’t amended for 2011-2013, won’t filing FBARs tip off the IRS about the missing interest income? I’ve also been told that surrendering my green card is easy–just bring the completed 1-407 forms to the border (I live in a border town), and they’ll stamp it. Will the border agent deny my surrendering when I tell him I still have to file my 2014 tax return? I was planning to drive down to the border next week, see a bookkeeper, file my 2014 tax return and surrender the green card all in one day. Sorry for all the questions.

  7. Helpneeded says:

    Hi, I moved from Mexico to the States last April 2015. I have an L1 visa and have payed my taxes since then. I totally forgot to file the FBAR form even though my tax advisor mentioned this to me. Since I was under a lot of stress because of my job I totally forgot. I know it’s not a valid excuse but I’m very afraid of being penalized for not submitting this form on time. Please advice! Thank you.

  8. Hank Master says:

    Hi, I reside in Canada and am a US citizen. I found out about the FinCen change when I filed my 2013 return including form 8938 (late) with no tax due, and also filed the 2013 FBAR with FinCen but had no idea of what the penalties might be, I have just filed my 2014 1040 including form 8938 (late again) again with no tax due (in fact there was a refund for overpayment when no tax was due) and now wish to file my 2014 FBAR. I presume that I should choose “other” for my excuse for not filing before rather than “I did not know I had to file” since I filed the FBAR for 2013. Will the excuse as follows be valid: “I filed late but had no idea that if no taxes were due and there was no intent to evade taxes as the form 8938 was filed with the 1040, that there was any problem or penalties for filing late as with the 1040 itself.”

    • Hank, I’m afraid that not knowing you could be penalized is not an acceptable excuse for late filing. If you knew the due date, you need to show that something beyond your control prevented your filing on time.

  9. Stephan says:

    Dear Robert Steinberg,
    I filed 2014 FBAR well before the deadline last year. The report contained 4 accounts (1 checking, 3 CDs). I had information about the CDs, so was able to accurately report them on the FBAR. However, with the checking account, I did not have access to complete info. The bank website would not allow me to view details for the first 9 months of the year. Furthermore, the periodic statements sent to me via email omitted that period. I complained to the branch many times, but was told that it was a computer glitch or a problem that will be fixed soon. I asked them to send a paper copy of the missing activity but was told that what I see online is what they see, and could not help me further. With respect to interest and taxes on that checking account, the correct amounts were reported on my tax return since I did receive an End-Of-Year statement. My concern, however, was my inability to determine maximum value of that account not knowing activity information for the first 3/4 of the year. I knew funds for the CDs had spent a day or two in checking account before becoming CDs, but I didn’t want to guess. I also didn’t want to enter “maximum value unknown” because I had information for the last 3 months of the year. So based on the information I had, I entered the maximum value during the last quarter of the year, and filed the FBAR in April 2015. Now in 2016, about 10 months later, the missing information is available to view online, and I now know when and what the maximum value of the checking account was in 2014. My understanding is that I can amend the FBAR by checking the “Amend” box and typing in the BSA identifier. But there is no place to explain this ordeal I experienced. There is a box for explaining late filing, but I am not sure if that applies as this was timely filed. There are no previous FBAR filings as I had no foreign accounts before 2014, so this being my very first one, I want to make sure I do it right. Can you tell me the steps to take from here? How do I explain the problems I faced, or is that even required? Finally, will the IRS penalize me for any of this? And if so, why? Thanks for your thoughts.
    Stephan

    • Stephan,
      There is no place on the FBAR for an amended return explanation. What you should do? File your amended FBAR. If the new high balances are not hugely different from those as originally filed, you are unlikely to have a problem from FinCEN or IRS. Just in case, however, save the above explanation with your 2014 tax information.
      Robert

  10. Luis says:

    Dear Robert Steinberg,
    I have dual citizenship and have had 2 offshore trading accounts (FOREX) using my foreign citizenship since december 2012 and all of these years the accounts have only produced losses. But in 2014 and 2015 the aggregate balances on the accounts exceeded 10k. I didn’t know about FBAR, nor did I report these accounts on my U.S tax returns., I know you can’t give me legal advice but as a general statement. would it be best for me to just backfile the FBAR for 2014 without ammending any returns since I’ve only had losses year after year. Or should I still ammend my returns and check the box on schedule B where it says offshore accounts?
    Thank you in advance for your reply.
    Oh, by the way, I funded these trading accounts using my U.S checking account.

  11. Winnie says:

    My husband and I lived in the UK for 14 months (2014-2015). He was working and received income in sterling. We had two joint Isle of Man bank accounts: one sterling (his paycheck was deposited to this account) and one US currency. The only money that went into the US currency account was money that we transferred from the sterling account. We received NO interest on either account. (I personally did not work or receive any income).

    Once every few months we would transfer money from the sterling account to the US currency account, then wire it to our Wells Fargo account in the US. All of his foreign income was reported as wages on our 2014 & 2015 1040s.

    I filed the FBAR for 2014 and 2015 for my husband only, for the sterling account only. I didn’t fill out a 114a for 2014, as I wasn’t aware of it at the time. I filled one out for 2015.

    Should I have filed an FBAR for myself for the sterling account for either year? Should I have filed an FBAR for the US Currency account for each of us for either year? What course of action would you recommend?

    • Winnie,
      Since all income was reported in timely filed returns, follow the IRS Delinquent FBAR Submission Procedures (Google to locate) and e-file for 2014 if you either were a joint account holder or held signature authority over any of the accounts. Report in the FBAR the accounts you jointly owned or over which you held signature authority.
      Robert Steinberg

  12. Kiran says:

    I moved to USA in Jul-2013, and since then I am not earning any income in India. My Wife and myself have bank Accounts in India, we have been sending money to India since then for the expenses of our parents and buying house in India. We also took loan in india to buy house. The loan amount and the amount that we sent over these years shows up in these accounts. I filed my US taxes on time with the Income generated in US. Each year I had over 10000 dollars in Indian accounts, but all that money was sent from the salary I earn in USA. Do I still need to file FBAR? I got to know about FBAR while filing returns for 2015, so Do I go ahead and File Delinquent FBAR for 2013 and 2014?

    • Kiran,
      ]If you had no unreported offshore income of any kind, file the delinquent FBARs under the IRS Delinquent FBAR procedures. However, if you rented out the house in India, you must amend your returns.
      Robert S. Steinberg

  13. Sonja van der Merwe says:

    We had to follow the streamlined program and had to pay a penalty amounting to more than $6,000. We have received a notice CP15 from the Department of Treasury which reflects our Prior Balance as a credit (the check amount we had to send with our streamlined application), the Penalty Assessment debited as the same amount, no Interest amount and no Bad check penalty with the balance or “Overpayment” as stated on the form as $0.00.

    Does this mean we do not owe the IRS any money towards the streamlined program? We are trying to settle a claim but the tax preparer wants us to sign a waiver regarding the years she was responsible for, and we will only be prepared to do this if this CP15 with zero balance actually means the IRS cannot come back to us regarding the streamlined program. Your thoughts will be greatly appreciated.

    • Sonja:
      The CP-15 Notice only means that the penalty was assessed and your payment applied. So, at the moment you owe nothing else regarding the penalty.
      The notice is not an indication that IRS has accepted your Streamlined Filing. IRS may still select your return for audit and determine that your conduct was willful and not non-willful. In that case, it could assess a higher FBAR penalty, additional income tax, and income tax-related penalties.
      Your result will be final only when the statutes of limitation have run on the IRS ability to assess additional tax and penalties. I have a blog post dealing with Statutes of Limitations and Streamlined Filings you might want to read.
      RSS

  14. Hello,
    My family consists of dual citizens (US/Canada), living in Canada since 1980. I learned about our requirement to file US taxes in 2012 and filed 6 yrs of past returns and FBARs for my family members. I then let it lapse, and am now filing 2012-2015 returns and FBARs. I’m planning on doing the Streamlined approach, but I really have no excuse on why we didn’t file. Do you have any suggestions on how to avoid penalties? There’s likely no tax owing to the US.

    • Well, your prior filing shows you know about the filing obligation. So, question becomes was the failure to file intentional? Intent is not some evil motive but merely voluntary action or inaction. Perhaps you can develop facts of family, job, marital, child distractions in your life serious enough to have prevented you from attending to the filing. If you intended to file but serious other events prevented you from attending to the matter, perhaps inadvertence or negligence can be shown. But, you must prepare a truthful, complete and transparent (the good and bad) factual presentation. Determining non-willfulness is lawyer work, not do-it-yourself work. The returns should be prepared by a CPA familiar with Canadian expat returns. I can refer CPAs to you, if you like.
      RSS
      RSS

  15. Mahipal says:

    Hi steinbergtaxlaw,
    Can you kindly answer my following questions.
    My Wife and I moved to USA in 2013 from India, filed USA tax returns but this year only I got to know that we need to file FBAR, average of all foreign financial accounts was more than $10000 in previous years also.

    Question:
    1. Can I file delinquent FBAR for previous years ?
    2. There are Provident Fund(PF) and Public Provident Fund(PPF) in India, there is an interest every year into those accounts but money from those accounts are not available for us to use, was I supposed to report the interest income in PF and PPF accounts in USA tax returns though the amount is not really more tan just $1000 ? If so shall I amend the previous year returns ?
    3. If I need to amend previous year returns, I think I cannot file delinquent FBAR, how do I come out of this deadlock situation ?
    4. There are life insurance policies which we pay premium for those, I did not know that I have to pay 1% tax in usa for the premium paid for foreign insurance policies, where and how do I pay % to USA govt?
    5. Do I need to show the maximum account value of the insurance policies during the year in FBAR also ? Current value of the policy is not provided by insurance company, what maximum value can I show ?Life Insurance policies do provide assured money at the end of the policy period, they are not the like Term Insurance policies as cash value for term insurace policies is zero.

    • 1. Yes.
      2. Yes but seek professional help regarding how to go about amending, i.e., Streamlined filing, quiet disclosure or OVDP.
      3. Yes
      4. IRS Form 720.
      5. Best information available.

      I strongly suggest you seek professional guidance on amending your returns. Trying to come into compliance on your own may get you into trouble.
      Robert S. Steinberg

      • Mahipal says:

        thank you

      • Mahipal says:

        Hi Robert,

        I have another question, can you please answer, even if the money in unreported financial accounts was actually transferred from my USA earned and taxed income, does IRS still charge penalty if it is not reported ?

  16. Mahipal: That the funds transferred abroad were tax-paid dollars is but one fact among all facts and circumstances in analyzing whether non-compliant conduct was criminal or willful. You cannot rely on one isolated fact to draw conclusions.

  17. Mahipal says:

    Thanks Robert, What would be the probable attorney charges in your experience having around 20 financial accounts to go with streamlined processing, I contacted few attorneys, they are charging around $10k which I feel is just way more.

  18. Mahipal: Send me an email to rss@steinbergtaxlaw.com and I will respond.

  19. Doug says:

    Robert,
    Thank you for your excellent blog.

    I am a dual citizen with unreported foreign property income. The property has made a loss each year after interest, fees and depreciation. Also a first time FBAR filer.

    Can I file delinquent FBAR and amend previous returns, or would I have to do streamlined?

    Regards
    Doug

    • Doug,
      Thanks for the kind comment on the blog. The safest path for coming into compliance is through the Streamlined procedures. Filing returns outside of the formal amnesty programs that IRS has established requires proving a lower level of culpability. You must establish reasonable cause for the non-compliance which basically means, you must show the absence of negligence. Streamlined filings require only that your conduct was not willful. Thus, Streamlined filers can have been negligent, careless, ignorant of the rules or even grossly negligent and still qualify for penalty relief. Email me at rss@steinbergtaxlaw.com if you’d like assistance with coming into compliance.
      Robert Steinberg

  20. kathy says:

    I filed FBAR for 2015 and 2016, plan to file delinquent FBAR for prior 4 years. Do I need to file 2009 and years before still?

    • Kathy,
      The Statute of Limitations (SOL) prescribes the time within which IRS can assess and FBAR penalty. The SOL for FBAR penalties runs six years from the due date for filing an FBAR – Now April 15 (except for 2016 FBARs due Oct. 16, 2017) and prior to 2016, June. Unlike the income tax SOL, the FBAR SOL is not tolled for the time during which no return has been filed. Thus, you do not have to file back FBARS more than six years unless you have signed a consent to waive the SOL such as would normally be signed by those entering the Offshore Voluntary Disclosure Program.
      RSS

  21. Ram says:

    Robert, This is the most helpful delinquent FBAR related blog that I found. Thank you.

    My spouse and I have been living in the US for over 16 years. We never had more than $10K in our foreign bank accounts prior to 2013. In 2013, we opened a bank account in India and transferred money from the US that went over $10K. So for the years 2013-2016 the account had over $10K. We did not know of FBAR requirement until early 2016. The money in the foreign bank led to some interest income that was not reported in the US tax returns. The income received in the foreign account is minimal compared to the income in the US and also some foreign taxes were deducted by the bank on that income. Hence unfortunately we have not given it much thought until recently. Outside of this issue, our US tax returns are completely clean and are not under any investigation. We reported 2016 foreign interest income and FBAR on time. I am looking to be compliant for 2013-2015 as well. As I did the math, for 2013, 2014 we will get a very small refund if I amend my returns with foreign income and for 2015, we owe $800 between Federal and State taxes together. How risky is it if I go ahead and send in my amendments to IRS and then file my delinquent FBARs indicating that I have paid all the associated taxes at this point? In this scenario, do I need to wait till IRS processes my amendments before I file delinquent FBARs? If it is risky to take this approach, what type of problems may arise? What is the worst case scenario that may come up?

    • Ram,
      The most likely severe penalty you risk by filing amended returns outside of the Streamlined Filing Compliance Procedures is the non-willful FBAR penalty which can be as much as $10,000 per year. The worst case scenario is the willful FBAR penalty which generally can be as much as 50% of the foreign financial account balance or $100K if greater for each year of noncompliance. Willful versus non-willful is a legal determination that you are not trained to make. While the facts you present sound benign you may have overlooked other facts that a trained offshore tax attorney would ferret out. Filing your own returns and being your own tax advisor brought you to this trouble. You should seek professional help to extricate yourself.
      RSS

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