New Reporting Requirement for Individuals with Foreign Financial Assets

 

New for 2011 is a requirement for any individual who, during the tax year, holds any interest in a “specified foreign financial asset” to complete and attach Form 8938 to his or her income tax return if a reporting threshold is met. The reporting threshold varies depending on whether the individual lives in the U.S. and files a joint return with his or her spouse. For example, someone who is not married and doesn’t live abroad will need to file Form 8938 for 2011 if the total value of his or her specified foreign financial assets was more than $50,000 as of December 31, 2011, or more than $75,000 at any time during 2011. For married taxpayers filing a joint return and living in the U.S., the threshold amounts are doubled. The thresholds also are higher for taxpayers residing abroad.

Specified foreign financial assets include financial accounts maintained by foreign financial institutions and other investment assets not held in accounts maintained by financial institutions, such as stock or securities issued by non-U.S. persons, financial instruments or contracts with issuers or counterparties that are non-U.S. persons, and interests in certain foreign entities. However, no disclosure is required for interests that are held in a custodial account with a U.S. financial institution.

The penalty for failing to report specified foreign financial assets for a tax year is $10,000. However, if this failure continues for more than 90 days after the day on which the IRS mails notice of the failure to the individual, additional penalties of $10,000 for each 30-day period (or fraction of the 30-day period) during which the failure continues after the expiration of the 90-day period, with a maximum penalty of $50,000.

To the extent the IRS determines that the individual has an interest in one or more foreign financial assets but he or she doesn’t provide enough information to enable the IRS to determine the aggregate value of those assets, the aggregate value of those assets will be presumed to have exceeded $50,000 (or other applicable reporting threshold amount) for purposes of assessing the penalty.

No penalty will be imposed if the failure to file the 8938 is due to reasonable cause and not due to willful neglect. The fact that a foreign jurisdiction would impose a civil or criminal penalty on the taxpayer (or any other person) for disclosing the required information isn’t reasonable cause.

In addition, if it is shown that the individual failed to report the income from the foreign financial account on his or her income tax return, a 40% accuracy-related penalty is imposed for underpayment of tax that is attributable to an undisclosed foreign financial asset.

If you have questions related to this issue or are uncertain if you are required to file Form 8938, please give this office a call to discuss your particular situation.

 

For Form 8938 and instructions from Stuart Rohatiner, CPA, JD click here

Need additional information about this article? Please contact my office at 305-868-3600 ext 3105

US, Swiss keep deal on secret accounts under wraps

By JESSICA GRESKO (AP) – 1 hour ago

MIAMI — The Swiss and U.S. governments announced a deal Wednesday to settle American demands for the identities of suspected tax dodgers, despite Switzerland’s vaunted bank secrecy. But they kept all details under wraps, including how many of the 52,000 names sought by the IRS from banking giant UBS AG will be revealed.

Depending on the scale of the deal, it could be a new blow to Switzerland’s reputation as a safe place to hide assets from the tax man back home.

Switzerland has long been under pressure from European neighbors and the U.S. to open its bank records for foreign tax authorities. The IRS case against UBS has been partly credited with pushing the Swiss government to agree in March to comply with tax investigation rules from the 30-nation Organization for Economic Cooperation and Development. UBS earlier this year named about 300 American clients in a separate case.

William Sharp, a Florida tax lawyer who represents American UBS clients, said he expects the agreement to allow Swiss authorities to interpret bank secrecy laws more broadly and allow a “substantial handover” of names.

“I would guess that the U.S. would not enter into this agreement in the absence of a major fine and penalty without having at least several hundred if not thousands of names turned over,” Sharp said.

The IRS in February asked U.S. District Judge Alan S. Gold in Miami to force Zurich-based UBS to turn over names of some 52,000 American clients believed to be hiding nearly $15 billion in assets in secret accounts. UBS and the Swiss government had resisted, arguing that to do so would violate Swiss banking confidentiality laws that date back centuries.

The Swiss and U.S. governments announced in late July they had agreed in principle on major issues but released no details. They had hoped to present a final deal at a hearing Aug. 7, but resolving the differences took longer.

On Wednesday, lawyers for the U.S. and UBS told the judge in a brief conference call they had sealed the deal.

“The parties have initialed agreements. It will take a little time for the agreements to be signed in final form,” Justice Department lawyer Stuart Gibson told the judge.

IRS Commissioner Doug Shulman said the deal “protects the United States government’s interests.” Shulman’s two-sentence statement added only that more details will be released when the Swiss government signs the agreement as early as next week.

UBS and the Swiss government also welcomed the news and said no terms would be disclosed until it is signed. Swiss Justice Minister Eveline Widmer-Schlumpf said the agreement “is in the interests of both states.”

The Swiss government got involved in the negotiations because the case goes to the heart of the country’s legally enshrined banking secrecy.

Swiss banks hold an estimated $2 trillion of foreign money, and financial services add about 12 percent of GDP to the national economy. According to the Boston Consulting Group, those holdings amount to one-fourth of the world’s foreign-owned assets.

Raymond Baker, director of Global Financial Integrity, an organization that works to end illegal international money transfers and improve transparency, has been following the case closely. He said the deal may waive bank secrecy for some but not all clients and that it is too soon to guess how many names might be revealed.

“It will be curious to see whether in the UBS settlement there were other negotiations that might have effects on other banks,” Baker said, saying it was possible other Swiss banks might be required to disclose more information.

The U.S. and Switzerland in January agreed to increase the amount of tax information they share to help crack down on tax evasion. The details of that agreement, which have also not been revealed, could have an effect on what banks have to disclose.

UBS paid a $780 million penalty earlier this year and turned over names of about 300 American clients in a deferred prosecution agreement with the Justice Department. In that case, UBS admitted helping U.S. citizens evade taxes, which experts say is not a violation of Swiss bank secrecy laws.

So far, three UBS customers whose names were divulged under the prior agreement have pleaded guilty to tax charges in federal court. Hundreds of others holders of secret accounts at UBS and other Swiss banks have voluntarily come forward to the IRS under an amnesty program that requires payment of taxes and penalties but generally does not include the threat of prison.

That amnesty program ends Sept. 23.

News of the agreement has had an immediate effect at tax lawyer Sharp’s office: “Our phone has been ringing off the hook since this morning. Clients recognize that voluntary disclosure is the only way to avoid the risk of being turned over,” he said.

New York-listed shares in UBS were trading nearly 4 percent higher at $15.25.

Associated Press Writer Frank Jordans in Geneva contributed to this story.