Archive for the ‘International’ Category

Bozo Tax Tip #1a: They Shoot Jaywalkers, Don’t They? (Or Ignoring the FBAR!)

Friday, April 15th, 2016

I have, unfortunately, become quite competent in the Report of Foreign Bank and Financial Accounts. That form is better known as the FBAR. It used to have the form number TD F 90-22.1 (yes, it really did) but now goes by Form 114. The form must be filed online through the bsaefiling center of FINCEN, the Financial Crimes Enforcement Network.

You must file an FBAR if you have $10,000 aggregate at any time during the year. The report for 2015 is due June 30, 2016; there are no extensions.

The form is fairly simple and straightforward: Note every foreign financial account you have with name, address, account number, and maximum balance at any time during the past year. Let’s say you have one foreign account, a bank account at the Royal Bank of Canada. You would take your maximum balance and convert it to US dollars from Canadian dollars (you should use the year-end Treasury Department conversion rates no matter when the high balance was). The form must be electronically filed and is filed separately from your tax return.

The penalties for not filing it are quite high. Willful non-filing has a minimum penalty of $100,000 or half the balance in the account–and that’s per account! There’s also possible jail time.

So what must be reported:
– Foreign Bank accounts;
– Bank accounts outside the US of a US financial institution;
– Foreign financial accounts where all you have is signature authority;
– Foreign securities accounts;
– Foreign mutual funds;
– Foreign life insurance with a cash or annuity value; and
– Online gambling accounts if outside the US.

There are probably others, too.

The IRS does have a chart that lists most things that need reporting on the FBAR and Form 8938. Form 8938 is the “cousin” of the FBAR; this form needs to be filed if you have larger balances in foreign accounts.

Millions of FBARs are filed each year. When I started in tax, filing an FBAR was a huge audit red flag; that’s no longer the case. There are just too many FBARs filed. Do note that if you have an FBAR filing requirement you must note that in question 7 at the bottom of Schedule B.

To end this with some humor, one of my pet peeves in dealing with taxes is that there are three different sets of abbreviations for foreign counties used in tax. The FBAR has one set; question 7 at the bottom of Schedule B has another set, and Form 8938 has a third set. Some countries are noted identically while others are not. On one of of the abbreviations Curacao is “CU” while that means Cuba in another.

In any case, the FBAR is no laughing matter. The IRS’s mantra here is to shoot jaywalkers. Don’t become such a person: If you have an FBAR filing requirement, file it! Again, the FBAR is due June 30th this year and there are no extensions.


Now this is the real end of our Bozo Tax Tips for the 2016 Tax Season. I’ll be back no later than April 25th with new content.

Can a Resident of a Non-Tax Treaty Country (With Respect to Gambling) Get His Withheld Funds Back?

Tuesday, February 9th, 2016

Today, I received an inquiry from a citizen of New Zealand (he is not a US citizen or permanent resident). He had done well in a poker tournament here in the United States–well enough to have had 30% of his net winnings withheld. Non-US citizens who are not from a country with a Tax Treaty with the US where gambling income is exempted are subject to 30% withholding on gambling winnings. The gentleman had gambling losses in the US that exceeded his win. He wanted to know if I could file a Form 1040NR for him so he could get his withheld funds returned to him.

The problem is that except for Canadians and residents from tax treaty countries, there is no way to get that withholding back. Canadians are allowed to file a Form 1040NR and claim gambling losses up to the amount of wins, and get a refund. New Zealanders are not.

But he produced an email he had sent to another accounting firm along with their response. He asked the same question he asked me, with the same facts, and was told by that firm he could get a refund. He also referred me to an Internet article where someone said it was possible.

Well, the IRS was wrongly giving refunds a few years ago but they figured out there was a problem. The IRS redesigned Form 1040NR a couple of years ago; line 11 of Schedule NEC now states,

Gambling Winnings—Residents of countries other than Canada. Note: Losses not allowed.

I know the law in this area, and my correspondent is out of luck. He cannot legally get back his withheld funds. (If he is a professional gambler and has to pay tax to New Zealand on his winnings, he likely can get a tax credit on his New Zealand tax return to prevent double taxation.)

What bothers me isn’t the incorrect information on the Internet (I’ve come to expect that) but that my correspondent communicated with a supposedly respected accounting firm that should have known the right answer but either didn’t know or didn’t care to find out. I don’t know tax law well with respect to, say, the banking industry. Of course, if a bank were to approach me about doing their tax returns I’d decline the engagement and refer them to someone who does know that industry. My mother taught me that if you don’t know the answer to a question, saying “I don’t know but I’ll find out” is a great answer, and it’s one I use today. I hope that firm tries that answer out in the future. Their Errors & Omissions insurance carrier will appreciate it.

TIGTA: “IRS Can’t Track International Correspondence.” IRS: “So What.”

Wednesday, September 30th, 2015

The nature of my practice is such that I have a relatively large number of clients who live outside the United States. When one of my expatriate clients gets an IRS notice, I shudder. The IRS offices that handle international issues have issues with correspondence coming from the US. I’ve had to send the same item five times to the ITIN office…where it was lost five times. (At least they were consistent.) It turns out that the IRS doesn’t know what happens to much of the mail the agency sends overseas.

It was no surprise when I read a report issued by TIGTA (the Treasury Inspector General for Tax Administration) today titled, “Planned Improvements Have Not Been Made to Manage and Track Correspondence With International Taxpayers.” Here’s what TIGTA found:

Even though the IRS sent approximately 855,000 notices and letters to U.S. taxpayers living in other countries during Calendar Year 2014, it cannot determine taxpayer response rates. The lack of data on response rates for international taxpayers is problematic because this information is needed to determine the effectiveness of international correspondence on increasing taxpayer compliance and to make program improvements.

IRS data systems are not designed to accommodate the different styles of international addresses, which can cause notices to be undeliverable. Other factors complicate the delivery of international mail, making its delivery less certain than domestic correspondence.

In addition, the IRS generally does not know if international taxpayers receive the tax correspondence sent to them. Without specific controls to monitor and metrics to measure international tax correspondence, the IRS cannot determine the impact of its international tax correspondence on taxpayer compliance.

TIGTA made five recommendations; the IRS disagreed with all but one of them:

While the IRS generally agreed that TIGTA’s recommendations could provide additional insight into the factors contributing to undeliverable international mail, it does not believe this information would permit the IRS to overcome budgetary, statutory, and operational constraints as needed to achieve appreciable improvement in its current processes. TIGTA does not believe that the IRS’s response is adequate because current IRS processes for addressing international mail issues are ineffective or nonexistent.

So what should you do if you’re an international taxpayer? The easiest solution is to have someone in the US designated to receive a copy of your correspondence from the IRS. You can do this by completing Form 8821 and checking box 5a (“If you want copies of tax information, notices and other written communications sent to the appointee on an ongoing basis, check this box”). The instructions for Form 8821 are here.

By the way, I completely agree with what TIGTA wrote–that the IRS’s response is inadequate. But don’t worry, the IRS’s Annual Filing Season Program is continuing….

Neymar Tax Evasion Investigation Continues; Judge Freezes $48 Million of Assets

Sunday, September 27th, 2015

Neymar is one of the world’s best soccer players. Given an injury to fellow Barcelona player Lionel Messi, there’s pressure on Neymar and his teammates to step up. Earlier this year it was disclosed that Neymar was being investigated for tax evasion. That investigation has apparently continued; a judge froze 188.8 million Reals ($47.6 million) of Neymar’s assets.

According to the news report, the judge froze assets of Neymar and his parents. The judge froze three times the value of the alleged evasion ($18 million). His parents dispute the evasion.

Not Remitting Employment Taxes Doesn’t Work in Japan Either

Sunday, August 9th, 2015

In the United States, one of the quickest ways of getting in tax trouble is by withholding employment taxes and not remitting those taxes to the IRS. The rate of investigation is as close to 100% as you can get–and it’s normally a criminal investigation. It appears the same holds true in Japan. This story has a second component: There’s something about strip clubs–err, adult entertainment facilities, that make them hotbeds for tax evasion.

From Osaka, Japan comes the story of Naoko Hayashi. The 52-year-old former manager of the Jumeirah hostess club has been indicted and charged with not remitting 57.7 million yen ($464,000) out of 83.2 million yen ($669,000) withheld from pay of the hostesses working in the club. The article in the Tokyo Reporter notes that it costs a minimum of 50,000 yen ($402) to enter the club.

Among the problems with not remitting withholding tax is that it’s a crime that’s fairly trivial to prove. The payroll records will show the withholding, and the National Tax Agency and the Osaka Regional Taxation Bureau won’t show the withholding. It’s also a crime that is guaranteed to show up: When the hostesses file their tax returns and claim the withholding the tax agency won’t see it. But it appears the Bozo tax contingent is equally active in Japan as in the United States.

Deadline Changes for 2016 Tax Returns and 2016 FBAR

Sunday, August 2nd, 2015

Congress passed and President Obama signed the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 in late July. That law’s primary function has nothing to do with tax; however, it will have a major impact on entity tax returns for 2016 and for the 2016 FBARs:

  • Partnership tax returns will be due on March 15th, not April 15th (for calendar year partnerships);
  • C Corporation tax returns will be due on April 15th, not March 15th (for calendar year C Corporations);
  • S Corporation tax returns remain due on March 15th (unchanged); and
  • FBARs (FINCEN Form 114) will be due on April 15th, not June 30th.  An extension for six months will be available (until October 15th).

The most important change for my practice is the FBAR. Here’s the exact change in the law:

The due date of FinCEN Report 114 (relating to Report of Foreign Bank and Financial Accounts) shall be April 15 with a maximum extension for a 6-month period ending on October 15 and with provision for an extension under rules similar to the rules in Treas. Reg. section 1.6081–5. For any taxpayer required to file such Form for the first time, any penalty for failure to timely request for, or file, an extension, may be waived by the Secretary.

It is unclear whether a separate extension for the FBAR will need to be filed. The reference to Treasury Regulation 1.6081-5 is for the automatic two-month extension of time to file for those residing outside the United States, so it appears those who do so reside will have a June 15th deadline for filing the FBAR (with a four-month extension available until October 15th).

There are several other deadline changes in the law, but they all are for 2015 returns due in 2016 (not 2014 returns due in 2015). Also, because Friday, April 15, 2016 is Emancipation Day in the District of Columbia the deadline for tax returns will be extended to Monday, April 18, 2016. However, it is likely the deadline for FBARs will not be extended from April 15, 2016. The deadline for FBARs is a receipt deadline, not a postmark deadline, as is not extended if the deadline falls on a weekend or holiday. My strong suspicion is that this change in deadline could be a huge FUBAR given the three day extension for tax returns in 2016. We will have to see if common sense exists within FINCEN or if bureaucratic regulatory procedures take precedence (which is what I suspect will happen).

Does a Nonresident Alien Spouse that Has Elected to be Treated as a US Person Need to File an FBAR?

Monday, June 29th, 2015

With the FBAR deadline upon us, an interesting question arose: Does a spouse covered by the §1.6013-6 regulation allowing a nonresident alien individual to be treated as a resident need to file an FBAR? Logic says no; the FBAR comes out of the Bank Secrecy Act, not the Tax Code. And the IRS agrees with logic: “If the wife is non us person for FBAR therefore she does not have a filing requirement.” (That quote comes from a question I submitted to the FBAR group at the IRS.)

But beware, if the taxpayers have a Form 8938 filing requirement the wife’s accounts will need to be reported on that form. That’s a tax form, so the accounts would need to be included.

BEA-10 Due on June 30th

Wednesday, June 24th, 2015

Just a reminder this morning that the BEA-10 mandatory survey of foreign investment by Americans is due on June 30th. If you own 10% or more of a foreign entity, you will need to file this form. New filers must mail the forms in.

There are significant penalties if you don’t file this, so it’s definitely something to take care of (if it applies to you).

FBAR Due in One Week

Tuesday, June 23rd, 2015

The Report of Foreign Bank and Financial Accounts (Form 114, the FBAR) is due on June 30th. The form must be electronically filed with FINCEN. Your tax professional may be able to do it through his software (we can) or you can do it yourself using the BSA EFile system. There is now an online form you can use (besides Adobe reader) that may work better (it certainly can’t work worse).

Because of the Hom decision of last year, we now must again report foreign online gambling accounts. That’s basically all online gambling sites except the legal sites in Delaware, Nevada, and New Jersey. I maintain a list of online gambling sites and their mailing addresses here.

There are ridiculous penalties if you willfully fail to file an FBAR (half the balance in the account or $100,000 (per account), whichever is greater). Thus, as I said last year, just file the FBAR…timely.

A Ship Over Troubled Waters Sinks Leeds’ Cellino For Now

Monday, December 1st, 2014

From the Sport (not Sports) page of the Telegraph and the BBC we find that Leeds beat league-leading Derby two to nil in football (or soccer for us colonials). Derby manager Steve McClaren was quoted by the BBC: “It’s just one of them days, a bad day at the office. We were below our best and when you’re not at your best, you can be beaten.” However, the real news was what happened away from the pitch.

Massimo Cellino owns Leeds United. Unfortunately, he’s also been found guilty of evading import taxes on a boat in Italy. The Football League ordered Mr. Cellino to resign because he was convicted of “…an offence involving a ‘Dishonest Act’….” Mr. Cellino vows an appeal.

In any case, his ouster will likely be very short-term. He can resume his ownership on March 18th; at that point his conviction will be “deemed spent.”