IRS Offshore Voluntary Disclosure Program: Opt-Outs, a Revised FBAR and Rescissions of Pre-Clearance Letters by Criminal Investigations

Abstract

For years, the IRS has been pursuing — with mixed success — the disclosure of information regarding undeclared interests of U.S. taxpayers (or those who ought to be U.S. taxpayers) in foreign financial accounts. For more than a year, numerous taxpayers with previously undisclosed interests in foreign financial accounts and assets have been seeking participation in the current IRS Offshore Voluntary Disclosure Program (the OVDP, which began in 2012), modeled after similar programs in 2009 and 2011. Taxpayers participating in the OVDP generally agree to file amended returns and file Forms 90-22.1, Report of Foreign Bank and Financial Accounts (FBARs), for eight tax years, pay the appropriate taxes and interest together with a 20 percent accuracy-related penalty and an “FBAR-related” penalty (in lieu of all other potentially applicable penalties associated with a foreign financial account or entity) of 27.5 percent of the highest account value that existed at any time during the prior eight tax years. The OVDP does not have a stated expiration date, but can be terminated by the IRS at any time as to specific classes of taxpayers or as to all taxpayers.

Keywords: IRS, OVDP, OVDI, BSA, Bank Secrecy Act, tax, IRS examination, FBAR, report of foreign bank account, penalty, IRS offshore penalty, IRS criminal investigation