Friday, November 29, 2013

Cayman Islands & Costa Rica Signed FATCA Agreements!

We originally posted Cayman Banks to Disclose US Taxpayer's Information to the IRS! on September 18, 2013,where we discussed that the Cayman Islands, known as a haven for wealthy Americans seeking to stash cash overseas without scrutiny from the U.S. government, is about to become less secret.  The FATCA agreement with the Cayman Islands was initially agreed to in August and it was signed

The U.S. Department of the Treasury announced that the United States has signed intergovernmental agreements (IGAs) with the Cayman Islands and Costa Rica during the week of November 25, 2013 to implement the Foreign Account Tax Compliance Act (FATCA).  FATCA is rapidly becoming the global model for combating offshore tax evasion and promoting transparency. 

"Today's announcement marks a milestone in the effort to promote global tax transparency," said Deputy Assistant Secretary for International Tax Affairs Robert B. Stack.  "These agreements underscore growing international cooperation in the effort to end tax evasion everywhere."

Cayman Islands
This agreement with the Cayman's is significant since the island nation of 53,000 people has no income tax and is one of the world's most popular destinations for investment funds to organize for tax purposes.

Signed November 29, 2013, the Cayman Islands IGA is a Model 1B agreement, meaning that FFIs in the Cayman Islands will be required to report tax information about U.S. account holders directly to the Cayman Islands Tax Information Authority, which is the sole channel in the Cayman Islands for the provision of tax-related information to other governments. The Cayman Islands Tax Information Authority will in turn relay that information to the IRS. 

The agreement follows a similar pact signed by the Cayman Islands and the United Kingdom earlier in November, 2013.

Additionally, the United States and the Cayman Islands also signed a new Tax Information Exchange Agreement (TIEA), to take the place of the original TIEA signed in 2001.  

Costa Rica

Costa Rica was one of three Central America countries the Organization for Economic Development and Co-operation (OECD) has tagged as a tax haven. Panama and Belize were the other two. 

The Costa Rica IGA was signed on Tuesday, November 26, and is a Model 1A agreement, meaning that the United States will also provide tax information to the Costa Rican government regarding Costa Rican individuals with accounts in the United States. 

"Today's signing marks a significant step forward in our efforts to work collaboratively to combat offshore tax evasion – an objective that mutually benefits both our countries," said Gonzalo R. Gallegos, ChargĂ© d'Affaires of the U.S. Embassy in Costa Rica, who signed on behalf of the United States.

In addition to the 12 FATCA IGAs that have been signed to date, Treasury has also reached 
16 agreements in substance and is engaged in related conversations with many more jurisdictions.

The United States and Panama are in talks on a tax evasion agreement. The United States does not have a full tax treaty with Panama, which has been listed in recent years by global authorities as a tax haven. But the United States and Panama did sign a tax-information exchange agreement in 2010.

The United States is Panama's largest trading partner. The Panamanian government said on Sept 18, 2013, on its website that it is working on a draft proposal for a FATCA deal, which it hopes to finish as soon as possible.

325% Penalty Where the IRS Discovers Your Offshore Account! 

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Revised IRS FBAR Penalty Appeals Procedures.

On October 28, 2013 the IRS revised the Internal Revenue Manual (IRM) providing guidance and clarification regarding the administrative review of FBAR penalties by the IRS Office of Appeals. See
The IRM is essentially the operational manual providing guidance and procedures for the various functions carried out by the IRS. 
With respect to FBAR penalties being considered for resolution by IRS Appeals, the revised IRM 8.11.6 provisions reference 10 key points:
  1. IRS FBAR Administrative File.
  2. Limited Jurisdiction for Post-Assessed FBAR Penalties.
  3. Limited Availability of Alternative Dispute Resolution Rights.
  4. Mitigation Threshold Conditions Survive.
  5. Joint and Several FBAR Penalty Liability.
  6. Interest Does Not Accrue Until the FBAR Penalty is Assessed.
  7. Expedited Closings of Unagreed FBAR Penalty Cases.
  8. No Chapter 11 Relief.
  9. FBAR Penalties are an Appeals Coordinated Issue.
  10. Litigation Forum.
Significantly, the revised IRM added that IRS Counsel memo is needed for willful penalties over $10,000.

The involvement of IRS Counsel in determining appropriate elements of willfulness could be significant. A non-willful civil penalty not to exceed $10,000, may be imposed on any person who violates or causes any violation of the FBAR filing and recordkeeping requirements of 31 U.S.C. § § 5314 and 5321(a)(5)(A). A civil penalty equivalent to the greater of $100,000 or 50% of the balance in the account at the time of the violation may be imposed on any person who “willfully” violates or causes any violation of any provision of 31 U.S.C. § § 5314 and 5321(a)(5)(A).

The  involvement of IRS Counsel in determining appropriate elements of willfulness with the associated IRS counsel memorandum  being added to your taxpayers file , is actually nothing new as that is currently  what is happening  with taxpayers who come into the OVDP and then subsequently decide to roll out.   We were advised by Senior Counsel in the SBSE Division of IRS Office of Chief Counsel and Senior Technical Adviser, LB&I Division’s Offshore Compliance Initiative Program; that taxpayers who elect to rollout of the OVDP  may or may not  obtain a better result  from the subsequent audit and the subsequent appeal, since  the IRS required an IRS Counsel memo supporting willfulness, for every taxpayer  who rolled out of the program.
Our opinion is that the IRS Counsel memo  being added to the taxpayers file prior  to having that file sent to Appeals; weighs heavily in favor of the IRS when the taxpayers case is considered  by the "Independent Appeals Officer."  What is really left for the appeals officer to do,  in considering the hazards the litigation, when they have an IRS Counsel memo  in the taxpayer's file  providing  both the legal and factual support for the conclusion that the taxpayer was willful in not filing their FBAR  returns and they can prove it in litigation?

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From a Foreign Bank Account?

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Wednesday, November 27, 2013

Bahamas Agrees to Enter into FATCA Agreement With the US!

In his contribution to the House of Assembly, on August 12, 2013, Minister of Financial Services Ryan Pinder said that the Bahamas Government has agreed that the country will achieve compliance under the United States Foreign Accounts Tax Compliance Act (FATCA) by negotiating and entering into a Model 1 Intergovernmental Agreement (IGA) with the United States Department of the Treasury.

Minister Pinder said: “The Government of The Bahamas has also agreed to the establishment of an inter-Ministerial committee on FATCA under the leadership of the Ministry of Financial Services be established with the following mandate: to prepare an implementation strategy for FATCA, inclusive of the draft FATCA Agreement; to prepare and issue a Request for Proposals (RFP) for the development and implementation of a FATCA reporting system; to oversee all aspects of the implementation of The Bahamas’ FATCA compliance and to oversee the necessary legislative reforms.”  

“Financial institutions that do not comply with the FATCA requirements face a 30 per cent withholding tax on all of their US payments and will be deemed a “non-Participating Foreign Financial Institution,” he said.  

“FATCA has far-reaching implications on financial institutions throughout the world and will require significant expense and training for financial institutions throughout the world,” Minister Pinder added.  

The Ministry of Financial Services, he said, initiated its education and private sector consultation work programme on FATCA in September 2012. In January 2013, the Ministry launched its FATCA strategy document that provided a road map to achieving FATCA compliance.

Minister Pinder pointed out that on March 1, 2013, he led a delegation to Washington, D.C., to meet with US Treasury Department and Internal Revenue Service (IRS) officials to commence discussions on FATCA.  

“I provided the US officials with a brief overview of the positive 10-year experience between the two countries with respect to the TIEA process,” he said. “It was noted that The Bahamas was committed to honouring its treaty obligations.”  

“The meeting attracted over 300 professionals including government and private sector officials from at least 10 Caribbean countries,” he added. “In addition to the open sessions of the meeting, the Ministry had arranged for a closed door session with regional government officials and private bilateral consultations with 10 Caribbean governments.”  

Minister Pinder stated that on April 9, 2013, the US Treasury updated its FATCA exemption Annexes (Annex II) of both Model IGA agreements to include an exemption for “trustee sponsored trusts” such that a trust with a professional trustee, would be exempt from the registration and FFI agreement requirements, where the due diligence and reporting (where there are US interests) are carried out by the professional trustee which is an FFI under FATCA.  

“The significance of this amendment for The Bahamas trust industry cannot be overstated,” Minister Pinder noted.  

Minister Pinder added that, while Model 1 requires that a reporting infrastructure be developed within the Competent Authority, such an infrastructure might be necessary in the long run given international developments in tax cooperation.  

These agreements pierce the veil of confidentiality with the aim of facilitating tax compliance with a foreign tax authority, he pointed out.  

“However, Model 1 provides the greatest control for The Bahamas Government and its financial institutions over interactions between the IRS and Bahamian financial institutions,” Minister Pinder said. “Model 1 further ensures that the directives for FATCA compliance is based on Bahamian implementing law.”

Do You Have Unreported Bahamian Bank Income?

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Bahama Island Info

DOJ Keeping Quiet On New Lists of US Depositors from Foreign Banks

U.S. taxpayers with unreported foreign bank accounts may not get warning that DOJ has knowledge of their account!

The Justice Department's Tax Division has a lot of information that is not public regarding foreign bank accounts and is communicating with banks in countries that don't have a treaty relationships with the U.S., according to Assistant Attorney General Kathryn Keneally, who on November 6, 2013 spoke at the American Institute of CPAs Fall Tax Division Meeting.

The DOJ has been aggressively cracking down on U.S. individuals holding money in secret offshore bank accounts (See our post "UBS Criminal Casualties, so Far and More Guilty Pleas Over Offshore Accounts in the Works! ") and has had some success in getting assistance from banks operating in tax haven countries.

There has been a big improvement in the ability of the U.S. to find secret accounts, according to Kenneally. 

For example the Swiss government's announcement on August 29, 2013 that it has made a deal with the DOJ to get Swiss banks to turn over detailed information on their U.S. account holders in return for agreements that the banks won't be criminally prosecuted by U.S. tax authorities (See our post "Swiss Banks Agree to Plan to End Past US Tax Evasion Issues!")

Are You One of the > 7 MM Americans
with Unreported Foreign Bank Income?

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Tuesday, November 26, 2013

When is the Best Time to call IRS Practitioner Priority Service?

Beyond415 posts that they have been calling the IRS Practitioner Priority Service (PPS) individual and business lines to measure and record wait times so we can let you know the best time to call. Here are some conclusions from our analysis of call wait times:
Individual taxpayer PPS line
  • (866) 860-4259, option 3
  • PPS operating hours: 7 a.m. to 7 p.m. (your local time), Monday through Friday
Regardless of day, the best time to call for your individual taxpayer clients is first thing in the morning, between 7 a.m. (ET) and 8:15 a.m. (ET). Even when we called at 9:30 a.m. – the next best option – the average hold time increased by five times.

Business taxpayer PPS line
  • (866) 860-4259, option 4
  • PPS operating hours: 7 a.m. to 7 p.m. (your local time), Monday through Friday
For the business PPS line, the biggest determining factor for hold time is day of the week. The best day to call is Monday. We found no discernible difference in hold times between morning and afternoon. Can’t call Monday? Early morning (7 a.m. sharp) is your best bet on other days.

Calling the IRS isn’t always predictable – sometimes you just get lucky. There’s always an exception to the rule. However, we found that the worst time to call is 11 a.m. or later on Friday. We made 32 calls in that timeframe, and only twice were we on hold for less than 15 minutes.
Trouble Getting Through to the IRS?
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Singapore Close To Reaching FATCA Deal With the US.

We previously posted "FATCA: Updates for Hong Kong, Philippines, New Zealand and Singapore"
where we discussed FATCA Updates for Asia and Singapore's media release last May 14th, where it indicated its intent to enter into an intergovernmental agreement (IGA) with the U.S.

 The US is coming close to sealing a Foreign Account Tax Compliance Act (FATCA) deal with Singapore following a meeting with the country's Deputy Prime Minister Tharman Shanmugaratnam. The bilateral discussions for the inter-governmental agreement are reported to be moving forward smoothly.

The deal would help to clamp down on US citizens avoiding tax through keeping finances in Singapore.    



Channel NewsAsia

Wednesday, November 20, 2013

IRS Advisory Council Releases 2013 Annual Report

 The Internal Revenue Service Advisory Council (IRSAC)
today released its annual report featuring recommendations on a wide range of tax administration matters.

IRSAC is an advisory group to the entire agency. IRSAC’s primary purpose is to provide an organized public forum for senior IRS executives and representatives of the public to discuss relevant tax issues. The advisory group held a public meeting in Washington, D.C., today.

Based on its findings and discussions, IRSAC made several recommendations on a broad array of issues and concerns including:

  • The IRS needs sufficient funding to operate efficiently, provide timely and useful guidance to taxpayers and enforce current Law, so that respect for our voluntary tax system is maintained
  • The IRS should continue to expand voluntary correction programs to facilitate taxpayers self-reporting prior year non-compliance
  • Reducing Processing time for Form 2848, Power of Attorney and Declaration of Representative
  • Review the Transcript Request Policy for the Practitioner Priority Service (PPS) Toll-Free Line
  • Risk Assessing Large Taxpayers
  • Schedule M-3, Net Operating (Loss) Reconciliation for Corporations with Total assets with $10 million or more
  • Strategies to Increase use of On-line Payment Agreements
  • Modifications to Notice CP2030
  • Guidance to Practitioners regarding Professional Obligations
  • Treasury Circular 230 Enrollment of Former Internal Revenue Service Employees
The 2013 report can be found on

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Tuesday, November 19, 2013

Green Card Holders Can Be Deported For Not Filing FBAR & OVDP May Not Be The Cure?

On Tuesday, February 21, 2012, we posted Filing False Returns is a Deportable Felony - Supreme Court, where we discussed that the U.S. Supreme Court Feb. 21, 2012 decided that lawful permanent residents who have pled guilty to charges related to the filing of false tax returns that resulted in a loss to the government of more than $10,000 have committed aggravated felonies involving fraud or deceit and are subject to deportation (Kawashima v. Holder, U.S., No. 10-577, 2/21/12).

Petitioners Akio and Fusako Kawashima (“the Kawashimas”) are Japanese natives and citizens, but have been lawful permanent residents of the United States since 1984. The Kawashimas established a successful restaurant in California, owned by Nihon Seibutsu Kagaku Center, Inc., a corporation in which Mr. Akio Kawashima owns shares. In 1992, Mr. Kawashima signed the 1991 corporate tax return for Nihon Seibutsu Kagaku Center, Inc. In 1997, because of that signature, Mr. Kawashima pled guilty to “subscribing to a false statement on a tax return,” a violation of IRC §7206(1), and stipulated that the total actual tax loss was $245,126. At the same time, Mrs. Fusako Kawashima pled guilty to “aiding and assisting in the preparation of a false tax return,” a violation of IRC §7206(2).
He made his deal with the IRS and paid substantial penalties for his transgressions.

Then four years later, the Immigration and Naturalization Service (“INS”) informed the Kawashimas that their convictions constituted aggravated felonies under 8 U.S.C. § 1101(a)(43)(M)(i). Pursuant to this determination, the couple could be subject to deportation as a crime that is considered aggravated felonies. Subsection (M)(i) of this statutory definition of aggravated felony does not list specific crimes, but rather encompasses any crime involving fraud or deceit where the victim’s loss is greater than $10,000. See 8 U.S.C. § 1101(a)(43)(M)(i).  Subsection (M)(ii), however, specifies that tax evasion (26 U.S.C. § 7201) is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(M)(ii).

Are You a Green Card Holder?

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Foreign Bank Accounts?
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Baucus International Tax Overhaul Draft Released

Senate Finance Committee chairman Max Baucus, D-Mont., has released the first in a series of discussion drafts for overhauling the Tax Code, with the first set of proposals focusing on international tax reform.

The proposal details ideas on how to reform international tax rules to spark economic growth, create jobs and make U.S. businesses more competitive.
Additional tax reform discussion drafts will be released later this week.
Baucus and his counterpart in the House, Rep. Dave Camp, R-Mich., chairman of the tax-writing House Ways and Means Committee, have committed to drafting comprehensive tax reform legislation this year after making joint appearances around the country this year to listen to taxpayer concerns.

Summary of the Staff Discussion Draft

Tax All Foreign Income of U.S. Companies Immediately or Not at All. The staff discussion draft ends the lock-out effect and replaces the deferral system with a new, more competitive system under which all income of foreign subsidiaries of U.S. companies is taxed immediately when earned or is exempt from U.S. tax, after which no additional U.S. tax is due.

  • Passive and highly-mobile income is taxed annually at full U.S. rates
  • Income from selling products and providing services to U.S. customers is taxed annually at full U.S. rates with limited exceptions 
  • The staff discussion draft includes two options for taxing income from products and services sold into foreign markets: 
    • A minimum tax that immediately taxes all such income at [80%] of the U.S. corporate tax rate with full foreign tax credits, coupled with a full exemption for foreign earnings upon repatriation 
    • A minimum tax that immediately taxes all such income at [60%] of the U.S. corporate rate if derived from active business operations but at the full U.S. rate if not, coupled with a full exemption for foreign earnings upon repatriation
  • Earnings of foreign subsidiaries from periods before the effective date of the proposal that have not been subject to U.S. tax are subject to a one-time tax at a reduced rate of, for example, 20%, payable over eight years 
  • Unless otherwise noted, credits are allowed for taxes paid to foreign jurisdictions to the extent the associated income is subject to U.S. tax 
 Eliminate Opportunities to Avoid U.S. Tax on U.S. Income. The staff discussion draft:  
  • Limits interest deductions for domestic companies to the extent that the earnings of their foreign subsidiaries are exempt from U.S. tax and to the extent that the domestic companies are over-leveraged when compared to their foreign subsidiaries
  • Limits income shifting through intangible property transfers 
  • Denies deductions for related party payments arising in a base erosion arrangement 
  • Repeals the domestic international sales corporations rules 
  • Limits the extent to which foreign tax credits can eliminate U.S. tax on income from investments in foreign companies that are not controlled foreign corporations 
  • Restores withholding taxes on interest paid by domestic corporations to residents of countries not providing similar benefits for U.S. investors 
  • Prevents foreign investors from using partnerships to avoid U.S. taxation 
Modernize and Simplify Other International Tax Rules. The staff discussion draft:  
  • Eliminates parts of the "check-the-box" rule under which U.S. multinationals can disregard certain foreign subsidiaries for U.S. tax purposes, but does not change the domestic application of the "check-the-box" rules 
  • Simplifies the foreign tax credit rules 
  • Apportions interest expense on a worldwide basis for purposes of matching interest expense to income generated by borrowed funds 
  • Modernizes the rules applying to overseas banking and insurance businesses 
  • Simplifies the rules for taxing passive foreign investment companies 
  • Modernizes the rules addressing foreign investment in U.S. real estate 
However, the prospects for passing a tax reform package appear increasingly unlikely in the current atmosphere of partisan rancor and gridlock in Congress. But 2013 is seen as a better year to try to enact a tax overhaul than 2014, when lawmakers will be focused on the elections.

However, it is our opinion based upon past legislation, once something is in the form of the tax bill even where it doesn't pass in the year it's drafted it eventually will continue to make it to the floor until it does pass.

An example of this is the expatriation rules which first surfaced in 1997 and eventually  was passed as originally drafted in 2008!

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