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US taxpayers such as a Taiwanese who has a green card or US citizenship or as a foreign resident who has been on weighted average for 183 days in the past three consecutive years staying in the US, what should they do if they do not file for the form of the Report of Foreign Bank and Financial Accounts (FBAR)?

Our professional accountants have been receiving a lot of related telephone calls. Taxpayers should decide how to respond as soon as possible. We do not deny that some cases of taxpayers should not be taken lightly.

A person holding a green card or US citizenship, as long as each year his or her bank account balance in the financial institutions outside the US, including insurance policy, stock mutual funds, cash, etc., has ever had more than USD10,000, according to the regulations of the US, he or she must file for the Report of Foreign Bank and Financial Accounts (FBAR). Otherwise, if the US Internal Revenue Service (IRS) has found him or her to have intentionally concealed the assets, he or she may incur a huge fine or even a prison disaster upon him- or herself.

The US government has become more active in monitoring overseas accounts. US taxpayers such as Taiwanese who have green cards, US citizenship, or foreign residents who have been on weighted average for 183 days in the past three consecutive years staying in the US, must honestly declare US offshore financial assets. If intentionally concealing the assets, the maximum penalty will be the equivalent of 50% of the value of the undeclared financial accounts or a civil liability as high as USD100,000. If it is overdue without declaration, there will also be penalty, punishable up to USD500,000 and up to ten years in prison.

US citizens, US green-card holders, or those who meet the criteria of US taxpayers, as long as they own or may dispose of foreign financial accounts at any point of the year, which total more than USD10,000, before June 30 each year, they all must file the FBAR form to the US Treasury Department.

For the filing of the FBAR form, except some exceptions, the offshore financial accounts of companies or legal persons which have been authorized to be signed and used by the filing individuals, the offshore financial assets of which must also be declared.

I. Who is required to disclose the specific financial assets of foreign bank accounts?

  • If the United States person has a financial interest in any foreign financial account or has the right to sign, and the total value of the account has ever exceeded USD10,000 at any time within a year, the account must file for the FBAR.

II. The definition of the United States person.

  • The United States person refers to a US citizen or resident; various organizations established in the US or in accordance with the US laws and regulations, including but not limited to corporations, partnerships, limited liability companies, as well as trusts and estates set up in accordance with the US laws and regulations.

III. I have been legally reporting all taxable incomes and paid taxes on a regular basis, but I have recently heard that I have to declare my FBAR report for the past few years for my overseas private bank account or declare for the bank account of a non-US employer for which I have the right to sign. Can I come forward to make up for the negligence in accordance with the Offshore Voluntary Disclosure Program?

  • The purpose of the Offshore Voluntary Disclosure Program is to provide a way for taxpayers who have previously used overseas financial accounts and offshore companies to evade taxes to allow them to voluntarily come forward to solve the tax problem. Therefore, if all taxable incomes are factually declared and paid, but only FBAR has not be declared, do not use the Offshore Voluntary Disclosure Program.

    The instructions should be followed that if before the taxpayer is being spot checked, the Delinquent FBAR is submitted with explanation on why such a report is submitted late to the US Department of Treasury (Department of Treasury, Post Office Box 32621, MI 48232-0621), while there is no short filing of tax, IRS will not make a penalty.

    Because tax law violators are numerous, for different situations, the choices IRS provides taxpayers are based on whether there is timely declaration, whether tax is paid on a regular basis, whether there has been tax evasion, whether there is disclosure of dishonest matters, whether the unpaid tax is small or no tax, etc. IRS makes a choice according to the severity of the scenario. So, there are other options besides the Offshore Voluntary Disclosure Program.

IV. What kind of exchange rate should be used when deciding the maximum annual value of each undeclared foreign account or the maximum annual asset value of an undeclared foreign entity?

  • The foreign currency is mainly calculated according to the yearend exchange rate of the chosen year at www.fiscal.treasury.gov . If the country in which the account is used adopts multiple exchange rates, use the yearend exchange rate of the chosen year at which the currency in the account is converted into the US dollar. The value of each account must be separately calculated

V. For example: I moved to the US in 2007 and am now a permanent resident taxpayer of the US. One year I must declare FBAR, but did not do so. Will this taxpayer be fined 27.5% of the total value of the account?

  • Generally speaking, in the Offshore Voluntary Disclosure Program, according to the severity of the scenarios and different objective conditions, for taxpayers who do not declare for the overseas financial accounts, a fine of 27.5%, 12.5% or 5% of the total value of the account may be imposed respectively, which is decided by the IRS.

    A taxpayer, if violating the relevant provisions of the tax laws, but the relevant facts are only that one year of FBAR was not declared, but usually taxes are filed according to rules, and there is no intention to evade taxes, upon the assistance of professionals' analysis, may neither need to nor be qualified to participate in the Offshore Voluntary Disclosure Program. In general, taxpayers must apply to IRS first. Only after IRS has approved the application that they can apply for the Offshore Voluntary Disclosure Program.

VI. Is giving up the green card or US citizenship feasible?

  • The new tax law of "expatriation tax" passed on June 16, 2008, specifies that taxpayers on the day before the expatriation, if meeting the specific requirements, must liquidate the global total assets. Just by giving up the green card or US citizenship is not enough to close the matter.

    Before the new law came into effect, voluntary green-card or US citizenship expatriates, within ten years after the expatriation, if staying in the US equal or exceeding the number of days specified and meeting the specific requirements, they are still required to declare income tax. Although the new tax law abolishes this requirement, it requires that those who expatriated after June 16, 2008, complying with the specific regulations, in the case of being covered expatriates, to register and list the market value of the global assets in Form 8854. Most categories of the assets, assuming that they are all sold at the market price the day before the expatriation, taking into consideration the relevant exemptions as the basis for filing tax, the tax calculated from this specification is the so-called expatriation tax.

    During the expatriation, if the taxpayer's net assets are over USD2 million, or the tax payable over the past five years on average is more than USD157,000 (the 2014 threshold; adjustable as appropriate), or the tax liability and obligations have not been fulfilled over the past five years, unless specified in other exceptional exclusion clauses, the taxpayer is the covered expatriate. We recommend US citizens and holders of green card, before the expatriation, to consult with professionals as early as possible, in order to effectively reduce the impact to successfully complete the expatriation.

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