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I’m Contemplating Opting Out of the Offshore Disclosure Program. What Must I Consider?

March 30, 2020
  1. Your Circumstances May Improve. The Taxpayer Advocate recently reported that since September 29, 2012 the average FBAR (Foreign Bank Account Report) fine levied in 2009 Offshore Voluntary Disclosure Program (OVDP) opt-out cases is $15,737. Note that some 2009 opt-out cases remain open, so that  number may not be completely accurate. It appears that the ones that have not been closed yet include larger, more complex cases. As these cases are closed, the average may notch upward. Nonetheless, the Taxpayer Advocate also reported that there haven’t been any criminal tax prosecutions among those taxpayers who chose to opt out.


  1. Your Circumstances May Worsen. In the same report, the Taxpayer Advocate noted that a few of those opt-out cases accounted for the lion’s share of the FBAR penalties imposed. Indeed, the IRS warns in its FAQs that opting-out could cause a “full scope “tax audit of your tax returns. Also, they warn taxpayers that any issues that are found which were not properly disclosed or reported, they may be probed by Criminal Investigation.


  1. Entitlement to Appeal. The  right to appeal does not exist in the OVDP. On the contrary, favorable decisions of revenue agents, and their managers are routinely reversed by so-called technical advisors. The technical advisors are insulated from negotiating with taxpayers or their attorneys. That said, once a person finalizes their opt-out decision, they  have the opportunity to appeal a decision to impose FBAR penalties to the IRS appeals Division. The IRS Appeals Division is a semi-independent section of the IRS whose stated mission is to “resolve tax controversies on a basis which is fair and impartial to the IRS and the taxpayer”. One benefit of the IRS appeals Division is that the Appeals Officers are authorized to settle a case based on the “hazards of litigation.” This gives an Appeals Officers the flexibility to consider all of the facts and circumstances to settle an FBAR case. They can also take into consideration a percentage of the amount of the potential FBAR penalty.


  1. A Federal District Court Judge Must Approve an FBAR Penalty Before The IRS Can Collect. The IRS can to impose an FBAR penalty outside of judicial review, but unlike with a tax deficiency, the IRS is not allowed to use its administrative powers to file tax liens, or tax levies. The must follow procedure and file a suit in a federal district court to win a judgment. In the district court the burden of proof is on the IRS to demonstrate that the taxpayer willfully, (intentionally) failed to file their FBAR. To date, the IRS has filed only a small number of these kinds of lawsuits. Generally, the suits they have filed involved rather egregious infractions so it no shock that the IRS won them. Whether or not the IRS will bring lawsuits against taxpayers where things are not so clear cut, we are not sure. The IRS is largely averse to losing cases for fear of setting a bad precedent; so much time will likely pass before the IRS would consider bringing any apart from the most significant cases.


  1. Your Situation is Unique. The IRS itself says in FAQ 51 that there are those taxpayers for whom opting out is the “preferred approach.” Only upon a thorough review of all of the facts by a qualified tax litigator should a decision be made if an opt-out is the right approach for you.



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