It's like a game of hide and seek for wealthy Americans. In 2001, the Internal Revenue Service estimated that Americans owed $345 billion more in tax than they paid, or about 14% of federal revenues from fiscal year 2001. Where were these tax dollars hiding? The U.S. government is betting a good portion is hiding in the Swiss Alps.
In an unprecedented move, the Swiss Justice Department agreed to disclose the names of 4,450 UBS account-holders from 2001 to 2008 that contained more than $1 million Swiss francs, where there was reasonable suspicion of tax fraud. Suspicious activity that could be interpreted as tax fraud included the use of debit cards, cell phones, or wire transfers to hide accounts.
The legal jockeying began in June of 2008 when the Justice Department filed court papers in Miami, Florida to allow the IRS to get information from UBS. In essence, the investigators requested to serve "John Doe" summonses to obtain information about possible tax fraud against taxpayers whose identities are not known. A former UBS banker started the ball rolling when he suggested there could be as much as $20 billion in undeclared funds sitting in Swiss accounts. Tax laws require that taxpayers who have financial interest in or other authority over any foreign financial accounts with an aggregate value of $10,000, at any point in the tax year, to file Form TDF 90-22.1, to declare their overseas funds. This allows the IRS to ensure the interest generated from these assets is being taxed in the United States. Form TD F 90-22.1, a Report of Foreign Bank and Financial Account (FBAR), is due before June 30 of the succeeding year, with no allowed extensions. Penalties for not filing the TD F 90-22.1 are up to 50% of the highest annual balance of each account for each of the last 3 years. The 50% penalty is imposed annually and therefore can wipe out the account entirely, with the taxpayer still owing taxes and interest.
To allow taxpayers to come out of hiding on their own free will, the IRS enacted an amnesty program beginning April 2, 2009 – October 2, 2009, extended to October 31, 2009. Under this program, the IRS will reduce the penalty to 5-20%, depending on whether the wealth was inherited and the IRS will levy the penalty just once, on the highest balance in the accounts over the last 6 years. Although the amnesty program is cumbersome and requires filing additional forms and amending tax returns to pay the tax on interest earned in these foreign accounts (as well as interest and late filing penalties on the tax), the number of participants has been overwhelming.
Let’s look at an example of a taxpayer who’s in the 35% tax bracket and has had a foreign financial account for six years and the highest balance over those six years was $1.3 million. If this taxpayer came forward, they would pay $386,000 plus interest which includes tax of $105,000 – ($50,000 in interest income * .35) * 6), an accuracy-related penalty of $21,000 — $105,000 * .2) and an additional penalty, in lieu of the FBAR and other penalties that may apply of $260,000 — $1,300,000 * 20%. While that seems like a lot, this same taxpayer could owe up to $4,481,000 if they did not come forward — $2,306,000 in tax, accuracy-related and FBAR penalties and up to $2,175,000 in FBAR penalties for willful failure to file complete and correct FBARs.
Realizing this, a staggering 14,700 Americans, with assets hidden in more the 70 countries made a run for home base with their hands in the air. (A normal year averages fewer than 100 taxpayers.) And although this outpouring does not relieve UBS of handing over the names of the American account-holders, the number of Americans playing the game has become quite apparent. This isn't the first time the IRS has offered amnesty programs to lure those out of hiding, but this is the first time the Justice Department and the US Government used its bullying on the playground to force UBS to hand over the names of those playing. Is this just the start of more to come?
Internal Revenue Service Commissioner Douglas Shulman was quoted as saying, "The whole game around bank secrecy, around offshore (tax) evasion is changing." Tag…you're it.
Looking for tax planning assistance in Cleveland or Akron? Contact Skoda Minotti at 440-449-6800 or visit our web site.