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What is an FBAR attorney?

March 25, 2020

There are no specialist attorneys for the FBAR. FBAR stands for Foreign Bank Account Report that certain persons filw with the IRS using Form TDF 90-22.1. In light of recent publicity by the IRS regarding FBARs and the harsh civil and criminal penalties associated with failing to file one, people have resorted to searching for an FBAR attorney. There is no such thing. The best course of action to handle FBAR concerns is to get a tax attorney with tax litigation experience and criminal tax skills. This professional can assist you in determining the whether you should make a voluntary disclosure to the IRS. You will need a tax attorney who has, in addition to the aforementioned qualifications, first hand experience in FBAR cases so he or she can advise you about the practical aspects of filing a voluntary disclosure.

For example, if you make what is known as a “noisy voluntary disclosure”, this will virtually preclude any criminal tax fraud prosecution. This greatly lowers the  likelihood of the IRS is to prosecute you on the grounds of failure to file the FBAR. The other side of the token is that now the IRS will certainly review your case and make a determination as to your liability for penalties. In these cases, the most greatest concern is the possibility of jail time for failure to file. Opting the noisy voluntary disclosure is the best way to help alleviate that.

Other individuals believe that their chances of being criminally prosecuted for tax fraud, or for failing to file an FBAR are small, and they opt not to make a noisy voluntary disclosure.

They can, alternatively, file what is known as a “quiet voluntary disclosure”. This also reduces the chances of being prosecuted for tax fraud or non-filing of the FBAR, but the threat  is not eliminated. Indeed, the IRS threatens prosecution of people who file quiet voluntary disclosures, but many tax litigation attorneys think this is just an idle threat. Even if the IRS doesn’t bring a criminal prosecution it has stated it is looking for those individuals who have filed quiet voluntary disclosures. One can  safely assume that the IRS will likely treat persons who do not make noisy voluntary disclosures more harshly when they find them.

Still others think that they the best option is to simply file their FBAR for the current year, thereby neglecting old FBAR issues. That is a risky course of action. Neglecting to at least file a quiet voluntary disclosure leaves you open to possible criminal tax prosecution. Although it is well known that the IRS doesn’t have the resources to prosecute all those who violate the tax laws, that does not prevent them from allocating their resources to prosecuting you.

The risk-reward ratio works in these situations just as others in life. The riskiest option not file any type of disclosure. Your potential reward (if you evade detection) is no penalties, no extra taxes, and minimal legal fees. The risk, nonetheless, is getting audited and facing time in jail, getting deported (where applicable) and expensive FBAR penalties.

If you do have unreported offshore accounts, the best way to make a wise decision about reporting is to get a complete analysis of your options by a qualified tax litigation attorney with FBAR expertise.

The Foreign Bank Account Report (FBAR) is also known as the TD F90-22.1 Report of Foreign Bank and Financial Accounts. FBAR was renamed during 2013. Now it is FinCEN 114. So called “U.S. persons” are required to file this report if they have an interest in, or signatory authority over a foreign bank account, and the aggregate value of those accounts is over $10,000 at any time during the calendar year. The law that contains this report is Title 31 of the Bank Secrecy Act, (a separate law from the Internal Revenue Code). Persons were required to file an FBAR by June 30th for all years prior to 2015. Congress rescheduled that due date to April 15th in 2015 as a clause in the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, and for the first time they gave citizens the ability to request a six-month extension to October 15th.

The FBAR had to be RECEIVED by the IRS on or before the due date because it is not filed under the Internal Revenue Code. This required the person filing to mail it out BEFORE the date, allowing time for it to arrive. Even if it was postmarked ON the due date, it is considered a late filing. That said, all FBARs are now required to be filed electronically from July 1, 2013 for the FBAR reports for 2013 that were to be received by June 30, 2014. Late-filed FBARs for prior years must also be e-filed.

To our knowledge to date, requesting and receiving an extension on your tax return does not change the due date for your FBAR. We are not sure whether the IRS asseses a penalty for a late FBAR, but it’s better to be safe and get it in on time.

The definition of the term “U.S. person” is a U.S. citizen or permanent legal residents (green card holders), legal entities including partnerships, corporations, and LLCs formed under U.S. law, and also trusts or estates formed under U.S. law.

If you pass the “substantial presence” test of Internal Revenue Code Section 7701(b), you are also considered a U.S. person and is obligated to file an FBAR.
Here are the questions asked on the substantial presence test
Are you physically present in the United States on at least:

31 days during the current year, and

183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:

All the days you were present in the current year, and

1/3 of the days you were present in the first year before the current year, and

1/6 of the days you were present in the second year before the current year.

Exempted days are not counted, but the list of exemptions is too complex for this writing. Some persons may qualify to be exempted from the test rules. Some FBAR filing rules have changed since the Financial Crimes Enforcement Network (FinCEN) announced new regulations effective March 28, 2011.

You are advised to consult with a qualified tax attorney who has experience with FBARs to determine if you are obligated to file one. There is a lot to consider in determining this, but it is worth it to you if you think you might be required beacuse the penalties for not filing are very steep.



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