New IRS Voluntary Disclosure Program & OVDP Updated
The Internal Revenue Service’s Voluntary Disclosure Practice (VDP) has been a continuing practice of the IRS Criminal Investigation (CI) unit for many years. The goal of the Voluntary Disclosure Progam is to facilitate Offshore and Domestic Tax compliance for Taxpayers who do not qualify as non-willful. By making a timely and complete submission to the (New) Voluntary Disclosure Program, the IRS will evaluate the Taxpayer’s facts and circumstances, determine which penalties should apply and complete the process with a closing letter (Form 906). In exchange, the US Government will usually refrain from pursuing criminal prosecution and special agent investigations against the Taxpayer(s) — and while it does not guarantee “immunity,” Taxpayers often avoid any criminal prosecution for prior year noncompliance. While the OVDP program (offshore) was discontinued in 2018, the IRS Voluntary Disclosure Program (VDP) was updated in 2019 and continues to evolve to include offshore disclosures.
We will summarize the New IRS Voluntary Disclosure Program Procedure Update:
2020 IRS Voluntary Disclosure Program
Voluntary Disclosure is an IRS program that pre-dates the streamlined procedures. VDP is designed for taxpayers as an alternative to the streamlined program. With the Internal Revenue Service making foreign accounts compliance a key enforcement priority, IRS voluntary disclosure may be the best option for certain taxpayers, especially those unable to certify non-willfulness under penalty of perjury. Alternatively, if the taxpayer in non-willful, they may qualify for more “generous” programs such as Streamlined Procedures or Reasonable Cause.
In 2019, IRS Voluntary Disclosure Program was updated and OVDP was ended. Since then, the submission process has changed significantly — especially for offshore related issues. In the prior year version of the offshore program, the taxpayer was not required to submit a preclearance letter – it was optional. In addition, the preclearance was not a pre-printed form. Our tax and legal team have successfully handled thousands of offshore disclosure matters for clients located all over the world.
Eligibility for the New IRS Voluntary Disclosure Program
Eligibility for IRS Voluntary Disclosure Program is different than the streamlined program. Unlike the streamlined program, there is no non-willfulness element.
Three (3) important aspects of making a submission, are:
Legally sourced funds
No Placeholder submission
Legally Sourced Funds
Essentially, a person must have legally earned the money that was not previously disclosed. This is to avoid the taxpayer from using IRS voluntary disclosure to launder money.
For example: let’s say Peter sold illegal drugs in Peru and left the money in a Peruvian bank account that was never reported. Peter cannot use the IRS Voluntary Disclosure Program to report the money. Why? Because once the money is reported, then it would have been “cleaned” through the disclosure process.
No IRS Voluntary Disclosure Program Placeholders
A placeholder is used to hold a spot open for the taxpayer. The IRS does not allow that for IRS Voluntary Disclosure. In other words, a person must make a full submission during the process.
When it comes time to submit to IRS voluntary disclosure, the person must make a full submission. In other words, all unreported foreign accounts, assets, investments and income must be reported. This is true, even if the chance of the IRS finding a particular offshore account or income stream is slim, and/or the account was dormant or sleeping.
Tax Treatment under IRS Voluntary Disclosure
The tax treatment under IRS voluntary disclosure is essentially the same as it would be if a tax return was filed timely (with penalties and interest tacked on). For example, if a type of income is categorized as employment income if the income had been reported timely, it would be categorized as employment income when it is finally reported. The same with interest income, dividend and capital gain. Moreover, if a person has unreported PFIC income, they may lose the opportunity to make a QEF or MTM election (Under prior OVDP, the taxpayer could use the MTM instead of sec 1291 excess distribution calculation).
IRS Voluntary Disclosure Program Offshore Penalties
Unlike OVDP, the penalties under the new updated IRS Voluntary Disclosure are different, and less firm. Some of the penalties, include:
Under the prior OVDP, the taxpayer paid a 20% penalty on the outstanding taxes due for each year of the compliance period. Under the updated procedures, the IRS voluntary disclosure compliance period was reduced from 8-years to 6-years. And, instead of an annual 20% penalty, the taxpayer pays a single 75% on the highest year’s amount of tax liability. Under the revised procedures, the taxpayer can try to negotiate that penalty to a lesser penalty.
With OVDP, the taxpayer paid a 27.5% or 50% penalty on the highest year’s unreported balance of accounts and assets for the compliance period. Under the updated IRS Voluntary Disclosure procedures the taxpayer does not have a set penalty. Rather, the IRS agent will follow the rules of the IRM (Internal Revenue Manual).
Under the IRM, a person is (generally) subject to a 50% penalty on the highest year’s unreported balance. Under the revised procedures, the taxpayer can also try to negotiate the FBAR (offshore account) penalty to a lesser penalty.
International Information Returns
Under the revised procedures, a taxpayer may be able to avoid all fines and penalties for international information returns. In other words, there is no set penalty for unfiled information returns
Streamlined or Voluntary Disclosure
When it comes time to decide whether to apply to the Streamlined program or IRS Voluntary Disclosure, the taxpayer should be careful to evaluate all options. There are many issues to consider, but the main issue is always non-willful vs. willful. Complicating the analysis further, is the fact that willfulness does not always require knowledge (willful blindness) or intent (reckless disregard).
We recommend you speak with an experienced offshore disclosure specialist attorney before making an affirmative representation or communications to the IRS.
What are the Fees for Hiring an Offshore Disclosure Attorney?
Learn why experienced Streamlined Offshore Disclosure Lawyers always charge flat-fee for tax and legal representation — and avoid using Kovel Letters.
We Specialize in Streamlined & Offshore Voluntary Disclosure
Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure, Voluntary Disclosure, and New OVDP.
Contact our firm today for assistance with getting compliant.