Friday, July 30, 2021

DOJ Recommends Treasury Hand Over Trump's Tax Returns To The House Panel

According to Law360The U.S. Department of Justice recommended the Treasury Department disclose former President Donald Trump's personal tax returns, along with those for eight of his businesses, to the House Ways and Means Committee, according to a slip opinion published Friday.

Treasury should honor a revised request made in June for Trump's tax information between 2015 and 2020, the DOJ said in the opinion from its Office Of Legal Counsel. The request, by House Ways and Means Chair Richard Neal, D-Mass., should be deemed valid under Internal Revenue Code Section 6103(f)(1), the DOJ said.



When considering whether to honor lawmaker requests for sensitive tax information, the executive branch should assume that those legislators have acted in good faith in furtherance of legitimate legislative goals, and the appearance of political motivation should rarely lead to the denial of those requests, according to the opinion.


"The Chairman of the House Ways and Means Committee has invoked sufficient reasons for requesting the former President's tax information," said the opinion, written by Acting Assistant Attorney General Dawn Johnsen. "Under section 6103(f)(1), Treasury must furnish the information to the Committee."

Neal made a request in April 2019 for Trump's tax information, which the government rebuffed. The request, under Section 6103, was made to allow the committee to effectively review the Internal Revenue Service's internal processes for auditing the president's tax returns, Neal said. After the administration likewise flouted a later subpoena, Neal sued to enforce it.

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US Says That Woman Owes $330K For FBAR Violations


According to Law360A New York woman is liable for $333,000 in penalties and interest for failing to report bank accounts she controlled in Switzerland and Hong Kong, U.S. attorneys in New York said in a complaint filed in 
 U.S. v. Bouskila, case number 1:21-cv-4243, in the United States District Court for the Eastern District of New York.

Cecile Bouskila owes penalties and interest because she did not file Report of Foreign Bank and Financial Accounts forms from 2004 through 2011 for several accounts she controlled, the government told the U.S. District Court for the Eastern District of New York.

From 2013 to 2018, Bouskila signed numerous consents to extend the statute of limitations for assessing the FBAR penalty for that period, according to the government. In 2019, the IRS assessed her a penalty for nonwillful failure to file FBARs, equal to $10,000 for each account in each year of the assessment.

In March, Bouskila settled with the Internal Revenue Service for an undisclosed amount in a separate case concerning the agency's seizure of $1.7 million from her offshore accounts, which the government said was intended to recoup tax liabilities she inherited from her late husband's financial interests.


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Court Orders Fedex, CitiBank & Others to Give the IRS Panama Offshore Account Info!

According to Law360, in the case of In the Matter of Tax Liabilities of John Does, case number 1:21-mc-00424-GHW, a federal judge said that he will allow the IRS to obtain from couriers and financial institutions, including FedEx and Bank of America, records of individuals who may have used Panamanian offshore service providers to hide assets, the U.S. Justice Department said on July 29, 2021.

U.S. District Judge Gregory H. Wood, of the Southern District of New York, approved Internal Revenue Service summonses Wednesday to seek the information from financial institutions including CitibankWells Fargo Bank and couriers including FedEx Corp. and UPS Inc. 

The Summonses Request Information on Deliveries and Electronic Fund Transfers Between 

Panama Offshore Legal Services and Clients Who 
May 
Have Used Its Services To Create or Control
Foreign Assets To Avoid Tax Obligations, The DOJ Said.

"The Department of Justice, working alongside the IRS, is dedicated to unearthing the use of foreign bank accounts to evade U.S. taxes," acting assistant Attorney General David A. Hubbert said in a statement. "We will use the many tools available to us, including John Doe summonses like the ones authorized today, to ensure that taxpayers are fully meeting their responsibilities."


The IRS is investigating taxpayers who may have used Panama Offshore Legal Services, which is part of a collective of related entities known as the POLS Group, to facilitate concealing income and assets from U.S. tax authorities between 2013 and 2020. The government has been seeking information from other entities, including MoneyGram Payment Systems, through a separate summonses request in Minnesota to investigate those who may have violated U.S. laws by hiding taxable income and assets.

POLS is a Panamanian law firm that advertises services including the creation of foundations and corporations as well as offshore financial accounts while promising clients "100% anonymity, privacy and confidentiality," according to the DOJ.


Through the IRS' offshore voluntary disclosure program, which allows for voluntary disclosure in exchange for fixed penalties, the government has learned of at least one U.S. person who used POLS' services to create an unreported offshore account and entity in Panama, the DOJ said.

Currently, there are no allegations against the couriers or financial institutions that they have engaged in any wrongdoing, the government said. Instead, the IRS uses the John Doe summonses to get relevant information when there may be possible violations of tax laws and the violators are unknown, the DOJ said.

According to a May declaration by IRS revenue agent Katy Fuentes, POLS also accepts payment for its services by wire transfer, and the IRS is aware of at least four U.S. banks, HSBC Bank, Bank of America, Wells Fargo and Citibank, that maintain accounts with banks in Panama known to be used by the POLS Group, according to the filing.

In his order approving the summonses request, Judge Wood said there was a reasonable basis to believe that certain people may have failed to comply with tax laws and the information sought by the government is not readily available from other sources.

The summonses will direct 10 companies to produce records that will help the government identify U.S. individuals who may have used POLS Group's services, the DOJ said Thursday.

"These court-ordered summonses should put on notice every individual and business seeking to avoid paying their fair share of taxes by hiding assets in offshore accounts and companies," IRS Commissioner Chuck Rettig said in a statement. "These records will empower the IRS and the Department of Justice to find those attempting to skirt their tax obligations and ensure their compliance with the U.S. tax laws."


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Gov't Sues To Collect Willful FBAR Penalties From Floridian

A Florida resident should have known about the requirement to report his offshore bank accounts to the Internal Revenue Service, U.S. government attorneys told a Miami federal court, contending he should hand over unpaid penalties for late filings. (U.S. v. Slochowski, case number 1:21-cv-22596, in the U.S. District Court for the Southern District of Florida).

Avishai Slochowski either knew or should have known about his obligation to file a foreign bank and financial account form, or FBAR, for Swiss and Peruvian accounts he held from 2005 through 2012, the government told the court in a complaint Wednesday. Government attorneys asked the judge to order Slochowski to pay slightly more than $888,000 in civil penalties for willfully failing to timely file FBARs, including interest and late payment penalties.

Slochowski applied in 2014 for the IRS' Offshore Voluntary Disclosure Program, designed for willful nonfilers to come forward in exchange for protection from potential criminal liability and terms for resolving civil tax and penalty obligations, according to the government. As part of the program, Slochowski filed untimely FBARs and was later removed from the OVDP due to his failure to provide truthful answers regarding his dual U.S.-Peru citizenship, among other matters, the government said.


Do You Have Undeclared Offshore Income?

 
Want to Know Which
Voluntary Disclosure Program
is Right for You?
 

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Tuesday, July 27, 2021

U.S. Government Argued Repatriation Tax Is Constitutional!

The U.S. government urged the Ninth Circuit to not revive a couple's challenge against the 2017 federal tax overhaul's repatriation provision, arguing the pair has mischaracterized the levy on foreign income as an unconstitutional direct tax on property. (Charles G. Moore et al. v. U.S., case number 20-36122, in the U.S. Court of Appeals for the Ninth Circuit).

Government attorneys asked the appellate court to uphold a Washington federal judge's November order that dismissed a tax refund suit brought by Charles and Kathleen Moore, who had contended that the Tax Cuts and Jobs Act 's repatriation provision violated the U.S. Constitution. The Moores argued that the measure was a direct tax on personal property, specifically, their shares in a foreign corporation,  that violated the U.S. Constitution's Sixteenth Amendment, which requires direct taxes to be apportioned based on state population.

In asking the Ninth Circuit to uphold the Washington court's order, the government said the measure is not a tax on property but a tax on U.S. shareholders' income from their controlled foreign corporations, or CFCs. The apportionment requirement under the 16th Amendment does not apply to income taxes, the government said.

"A Tax On A Deemed Repatriation of CFC Income To U.S. Shareholders Is A Tax on Income From Property That Is, Because of The Sixteenth Amendment, Not Subject To The Apportionment Requirement," The Government Said.

As part of the TCJA's shift to a quasi-territorial system, which exempts some worldwide profits of U.S. corporations, Congress enacted a repatriation provision under Internal Revenue Code Section 965. Under this measure, companies would pay a one-time mandatory transition tax on deferred earnings held abroad.

According to the Moores' complaint, filed in September 2019, the Seattle-area couple paid about $15,000 in taxes under Section 965 based on their small stake in a CFC, KisanKraft Ltd., that provides affordable equipment to India's small-scale farmers. In seeking a refund, the Moores said the tax bill was based on earnings retained and invested by KisanKraft, earnings they never received.

The couple cited a U.S. Supreme Court case from 1920 called Eisner v. Macomber, that said a stock dividend was not taxable income because it didn't involve an actual gain realized by the shareholder. According to the Moores, the repatriation tax is "no different from an unapportioned tax on capital itself and equally beyond Congress' power to enact."

In dismissing the couple's case, U.S. District Judge John Coughenour in November found that "subsequent decisions dealing with foreign income have routinely departed from Macomber's realization standard."

The government told the Ninth Circuit the notion that the Constitution requires income to be "clearly realized" before it can be taxed conflicts with court decisions upholding related measures "against similar constitutional attack."

The government added, "the Constitution does not bar Congress from attributing U.S. taxpayers' foreign corporate earnings to them and taxing them on those earnings."  

The government also asked the Ninth Circuit to not revive the Moores' claim that the repatriation provision was the retroactive application of a new tax in violation of the due process clause in the Constitution's Fifth Amendment.

It was reasonable for Congress to apply Section 965 to offshore profits that accumulated after 1986, according to the government's attorneys. They noted that Judge Coughenour also found it was reasonable due to "the shift in international tax law and of the result, which would occur without a transition tax, of allowing previously undistributed CFC earnings to 'escape the imposition of U.S. taxation.'"


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or 
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Thursday, July 22, 2021

TAS Report to Congress That IRS Faces 35 Million Unprocessed Tax Returns As Backlog Swells


The Internal Revenue Service closed the most recent filing season with more than 35 million in unprocessed tax returns, as the agency’s backlog grew markedly amid a 
crush of challenges related to the pandemic and economic relief efforts, a government watchdog said Wednesday.

 

Erin Collins, the National Taxpayer Advocate, said in her report that about 17 million paper tax returns are still waiting to be processed and approximately 16 million additional returns have been placed on hold because they require further review manually. Another 2.7 million amended tax returns have not been processed.

This backlog represents a fourfold increase from 2019, the most recent year before the coronavirus pandemic, when the IRS closed its filing season with 7.4 million unprocessed returns, according to the report. These numbers reflect the IRS backlog as of May, and the agency may have made progress reducing it since then. The IRS backlog amounted to 11 million at the end of the 2020 filing season, fewer than a third of the current number of unprocessed returns.

As a result of the backlog, millions of taxpayers have to wait much longer for their tax refunds. In the current filing season, 70 percent of individual income tax returns included refunds, with the average refund amounting to about $2,800. Refunds are also important for delivering tax credits to low-income Americans, while some other taxpayers need their returns to be processed to proceed with things such as mortgage applications.

 

The agency’s struggles come as President Biden and Democrats in Congress prepare to give the IRS even more major responsibilities, including implementing a new paid family leave benefit, a clean-energy tax credit program and new child-care subsidies.


“Processing delays matter greatly because most taxpayers overpay their tax during the year via wage withholding or quarterly payments and are entitled to receive refunds,” Collins, the taxpayer advocate, said in her report.


An IRS statement released late Wednesday disputed the taxpayer advocate’s methodology, arguing it does “not reflect the current situation at the IRS.” The statement said many of the returns will require further correction, but are on track to be sent. The statement also said some of the returns counted by the advocate “does not necessarily reflect unprocessed tax returns,” citing as many as 2.1 million individual and business tax returns are related to identity theft cases. Those “may or may not be legitimate tax returns,” the statement said.


IRS Commissioner Charles P. Rettig also told the Senate Finance Committee earlier this month that the agency had processed more than 137 million individual income returns and sent refunds totaling more than $281 billion.


The Overwhelming Majority of the 35 Million Unprocessed Returns are for the 2020 Filing Season That Were Filed in 2021.


The taxpayer advocate chronicled a “perfect storm” of challenges facing the IRS as it struggles to recover from the pandemic and implement a wide array of changes related to President Biden’s economic relief efforts.


Despite severe cuts over the last decade, the IRS was tasked with sending a third round of economic relief payments, changing rules around unemployment benefits, and new guidelines for eligibility around other tax credits. Many of these changes were ordered in the middle of the filing season, compounding the challenge. 


Republicans led the cuts to the IRS budget, but Biden has pushed to increase the agency’s funding by as much as $80 billion to crack down on tax cheats. A bipartisan infrastructure deal reached with the White House earlier this month includes as much as $40 billion in additional funding for the agency, although it is unclear when that may pass.


Calling for quick change, the taxpayer advocate report also stresses that the IRS took unusually long to process Americans’ 2019 income tax returns.


“We can understand and articulate the challenges the IRS faced over the past year, but for individuals and businesses that waited nine months, 12 months, or longer to receive their refunds, the reality of the long delays was incomprehensible and in many cases, financially distressing,” 


Collins writes in the report. “Taxpayers cannot experience similar challenges in future filing seasons. We cannot allow the agency to face the staffing and technology limitations it has experienced this past year.”

 Have IRS Tax Problems?


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Source:

The Washing Post

Increased Willful FBAR Statutory Penalty Overrides Prior Regulations Maximum $100,000 Per Account Penalty


On August 12, 2019 we posted DC Magistrate Ruled That Willful FBAR Regulations are Invalid, where we discussed that on
 July 31, 2018 in Norman v. United States, Ct. Fed. Cl. Dkt 15-872, the Court held that the taxpayer Norman was liable for the FBAR willful penalty and this Court rejected the Colliot holding that the FBAR willful penalty was limited to a maximum of $100,000, because the regulations had not been changed to reflect the statutory amendment increasing the maximum FBAR willful penalty and that another DC court has also rejected Colliot & Wadhan and concluded that the Willful FBAR Penalty Not Limited to $100,000 in Rum, (DC FL 8/2/2019) 124 AFTR 2d ¶2019-5113

Here again the Second Circuit in Kahn, (CA 2 7/13/2021) 128 AFTR 2d ¶2021-5043, affirmed a district court decision and has held that statutory changes that increased the penalty for willful failure to file an FBAR applied, and prior regs which are still codified in the Code of Federal Regulations, imposing a smaller penalty did not.

In general, a U.S. person that has a financial interest in or signature authority over foreign financial accounts must file a FinCEN Form 114 - Report of Foreign Bank and Financial Accounts, commonly referred to as an FBAR, if the aggregate value of the foreign financial accounts exceeds $10,000 at any time during the calendar year. 

Under 31 USC § 5321(a)(5)(C), as amended in 2004, the maximum penalty for the willful failure to failure to file an FBAR is the greater of $100,000 (adjusted for inflation) or 50% of the aggregate balance in the accounts that should have been reported in the FBAR at the time of that failure.

But a final reg, reflecting the statutory penalty amount in effect prior to the 2004 amendment, issued by the Treasury in 1987, says that the maximum penalty was merely $100,000 per account. (31 CFR §1010.820(g)(2)) This reg is still codified in the Code of Federal Regulations.

District courts in Texas and Colorado have held that, in view of the Treasury's failure to update the regs, penalties couldn't be imposed in excess of the amounts provided for in regs issued before the 2004 law change authorizing higher penalties. (U.S. v. Colliot, (DC TX 2018) 121 AFTR 2d 2018-1834; U.S. v. Wadhan, (DC CO 2018) 122 AFTR 2d 2018-5208)

The Court of Appeals for the Federal Circuit has disagreed and held that the amendment to the statute superseded the regs which were thus no longer valid. (Norman, (CA Fed Cir 2019) 124 AFTR 2d 2019-6595) Connecticut and Pennsylvania district courts have also held that the penalty cap in the 2004 amended statute is the correct limitation. (U.S. v. Garrity, (DC CT 2019) 123 AFTR 2d 2019-941; U.S. v. Collins, (DC PA 2021) 127 AFTR 2d 2021-854)

A district court ruled that the penalty limitation provided in the 1987 reg was superseded by the 2004 statutory amendment increasing the penalty maximum.

The Court of Appeals for the Second Circuit affirmed the district court's decision. The Circuit Court said that the language of the 2004 amended statute was clear and thus the 1987 reg was not in harmony with the statute. Thus the reg does not apply any more. It cited Iglesias, (CA 2 1988) 61 AFTR 2d 88-1264 ("[a] regulation which does not" implement "the will of Congress as expressed by the statute" and instead "operates to create a rule out of harmony with the statute, is a mere nullity.").

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