Caution to U.S. Citizens and U.S./Canada dual citizens who are residents of Canada about the IRS announcement (IR-2012-5) January 9, 2012, regarding Offshore Voluntary Disclosure

On January 9, 2012, the IRS announced a renewed Offshore Voluntary Disclosure program.  This is an IRS program designed to bring tax cheats into compliance.  During the last two disclosure programs in 2009 and 2011, a significant number of unsuspecting Canadian residents entered these programs to “make it right” with IRS.  We strongly warn law-abiding Canadian residents of the dangers of entering this program which is intended to attract tax cheats who live in the United States but have undisclosed offshore accounts.

The United States has dusted off a long neglected, possibly unconstitutional law which requires all United States persons to file a yearly disclosure of foreign financial accounts (FBAR).  There is widespread ignorance of FBAR, and up until recently, very limited compliance.  A significant number of Canadians learned about the 2011 Offshore Voluntary Disclosure program from the Canadian media and entered it in fear, not realizing that the IRS had every intention of levying fines of 25% of their net worth (or in some cases 5%  for those who were unaware that they were United States citizens), even though in most cases they owed no taxes to the United States, had no knowledge of  the FBAR reporting requirement, and had innocent and necessary bank accounts in accordance with the laws of Canada.  As a result of this crackdown by the IRS, Finance Minister Jim Flaherty went to bat for Canadian residents, insisting that the IRS get off the backs of hard working Canadian residents who had done no wrong and who were abiding by the tax and banking laws of Canada.  “Canada is not a tax haven”, he insisted.  As a result of Flaherty’s efforts, United States Ambassador to Canada, David Jacobson tried to assure Canadians that the IRS was not out to get grandma’s bank accounts.  He said, “My message on this is to sit tight.  We are not unreasonable. We are not unsympathetic. We are not irresponsible.”  Law abiding residents of Canada, please do “sit tight”.  Do not enter this program out of fear, and do not allow a lawyer to enter you into this program without clearly explaining why you should. If you enter the program, the IRS will surely fine you up to 27.5% of all of your monetary and non-monetary financial assets.

All residents of Canada, who may be affected by the extra-territorial reporting requirements of the United States, should also know the following points:

(1) The Canadian government has said it will not enforce the collection of FBAR fines.  Thus the IRS has no means to collect fines from any accounts in Canada.

(2) The Canadian government has said it will not collect taxes for the IRS from Canadian citizens, provided that the person incurred the tax liability while a Canadian citizen.

(3) The IRS cannot be trusted.  The Tax Advocate Service, the ombudsman service within the IRS, issued a rare Tax Advocate Directive rebuking the IRS and ordering them to respect the terms of the program and be more lenient, returning to the policy of the FAQ 35 which said that those who enter the program would not be fined more than they would have under existing statutes.  To date the IRS has ignored the Taxpayer Advocate Directive. This suggests that the IRS has decided that Offshore Voluntary Disclosure should be a revenue generating instrument and apply the fines of 20% and 25% without regard to the innocence of the people that entered into the program.  The IRS presumes that everyone who enters these programs is a tax cheat.

(4) We must stress that the Offshore Voluntary Disclosure program, which the IRS has announced, is not a mandatory law but a voluntary program.  Therefore, enter it only if you wish to relinquish voluntarily 27.5% of your hard earned savings and other assets to the IRS.

(5) If you are a United States citizen or Green Card holder and are or were unaware of your filing requirements, we urge you to get sound information regarding your rights and responsibilities from reliable sources.  If you are living in Canada and abiding by Canadian tax laws, you are not a criminal nor should you permit the government in Washington D. C. to treat you as one.  Know also that “cross border” accountants and lawyers do not have equal standards of competency or morality.  Buyer beware!

Peter W. Dunn has written this press release on behalf of the Isaac Brock Society, which is an informal group of individuals who are concerned about the treatment by the United States government of US persons who live in Canada and abroad.  We have come together to fight the overreach of the IRS and to provide one another with accurate information, peer-to-peer advice and comfort.  Our website is http://isaacbrocksociety.com.