cross-posted from citizenshipsolutions.ca
by John Richardson
Introduction …
Most meetings with Mr. #FBAR take place in "The Twilight Zone" https://t.co/9UJw0GxGIf pic.twitter.com/uqjqYsKKtZ
— Citizenship Lawyer (@ExpatriationLaw) February 5, 2017
This post is one more of a collection of FBAR posts on this blog. The most recent FBAR posts are
here and here.
The “unfiled FBAR” continues to be a problem for certain Homeland Americans with “offshore accounts” and all Americans abroad, who continue to “commit personal finance abroad”.
Be careful what you "fix for"! What to do about the unfiled #FBAR https://t.co/sAh01HpWin via @ExpatriationLaw = "small steps = big results"
— Citizenship Lawyer (@ExpatriationLaw) February 5, 2017
The above tweet references a recent post which discussed how to “fix past compliance problems“. The introduction included:
This blog post will hopefully encourage those with U.S. tax issues to consider whether they can deal with minor/unintentional FBAR violations as a “stand alone single problem”. There may be no need to escalate and expand one single problem into a multi-dimensional full blown tax problem that may end up with unintended and unanticipated costly professional fees as well as undue time spent! Read on and learn why. Keeping a calm head is most important, even if it is most difficult
to do in the face of the scary situation of not being in compliance with the U.S. tax and regulatory regime.
Introducing Mr. and Mrs Kentara – When the innocent enter the “Twilight Zone” …
The facts (as reported by Virginia La Torre Jeker in her outstanding analysis) …
In Kentera v. United States, 2017 U.S. Dist. LEXIS 12450 (ED WI 2017), the US District Court dismissed a complaint filed by a husband and wife living in California. The Kentera’s were seeking review of FBAR nonwillful penalties asserted by the IRS. The nonwillful FBAR penalties were assessed pursuant to an audit after the couple withdrew from the IRS’ 2011 Offshore Voluntary Disclosure Initiative ( VDI).
The facts of the case are taken from the plaintiff’s complaint, which can be read here. In summary, they are as follows:
In 1984, after the death of his father, the plaintiff-husband, Milo Kentera, inherited a Swiss foreign bank account at Banque Cantonale de Geneve (Swiss Account). The account was automatically transferred to the plaintiff at the death of his father, so the plaintiff did not take any action in creating this account. Sometime soon afterwards, Milo added his wife’s name to the Swiss Account. The balance in the account was under USD10,000 through 2004 but increased somewhat in 2005-06 going over the USD10,000 FBAR filing threshold. The Swiss Account increased significantly in 2007 upon the sale of the plaintiff’s parents’ Montenegro real property. Some of the sales proceeds were distributed to plaintiff Milo and deposited in the Swiss Account, with the balance paid to Milo’s siblings.
Neither of the plaintiffs were well-versed in US tax matters. The husband was a pharmacist and his wife was a homemaker. Since 1984 when the account was inherited, the plaintiffs always disclosed the Swiss Account to their various accountants on tax organizers and always disclosed the account on their federal income tax returns (Schedule B). However, when the account first exceeded USD 10,000 in 2005, their first accountant failed to prepare or file an FBAR for the plaintiffs. Their second accountant continued this FBAR failure for a number of years despite the fact he clearly knew of the existence of the account from the prior tax returns given to him by the plaintiffs; he also failed to ask if any foreign interest was earned on the account, and consequently,interest income was omitted. In 2010, a third accountant acknowledged the existence of the Swiss Account on the plaintiffs’ return and included interest income from the Account, but she also failed to prepare or file an FBAR. Please note, certainly a tax professional should have been well aware of the FBAR filing rules by the time a 2010 FBAR should have been filed (i.e., June 30 2011). At this time the first IRS OVDI had been in full swing, having been initiated in 2009 and many professional and non-professional articles were written about the problems with FBAR.
Sometime in approximately September 2011, the plaintiffs entered the recently announced IRS 2011 OVDI program. They amended tax returns to include omitted interest income from the Swiss Account and filed completed FBARs for the 6 year period, 2005-2010. In August 2013, the IRS provided Plaintiffs with a Form 906, Closing Agreement assessing a miscellaneous penalty of $90,092. The complaint stated that plaintiffs “withdrew” from the OVDI program the following month. I believe the plaintiffs “opted out” of the program, but am not sure. They were soon the subject of examination by an IRS agent. The IRS agent recommended that plaintiffs be assessed non-willful FBAR penalties under the Bank Secrecy Act, and later proposed assessing the penalties as follows:
1) As to the husband, Milo Kentera: $500 for calendar year 2006; and
$10,000 per year for calendar years 2007, 2008, 2009, and 2010, for a
total penalty of $40,500.2) As to the wife, Lois Kentera: $500 for calendar year 2006; and $2,500
per year for calendar years 2007, 2008, 2009, and 2010, for a total
penalty of $10,500; andPlaintiffs protested the penalties at IRS conferences, but their protests fell on deaf ears and the IRS sent each of the plaintiffs a letter of an “appeals determination,” upholding the IRS’ proposed FBAR penalties against each of them. The plaintiffs then filed the complaint in District Court. In their complaint, plaintiffs asserted that the IRS incorrectly assessed the FBAR penalties. First, on grounds that the Bank Secrecy Act prohibits the imposition of an FBAR penalty if the violation was “due to reasonable cause.” 31 U.S.C. § 5321(a)(5)(B)(ii)(I). [I note here that the statute requires not only “reasonable cause” but also that “the amount of the transaction or the balance in the account at the time of the transaction was properly reported”.]
My initial thoughts …
The facts suggest that Mr. and Mrs. Kentera were people who believed in compliance with the law. The history of their tax filings suggests a conscious effort to comply with the applicable laws. They also (like everybody) were completely at the mercy of their tax advisers. The “offshore account” (which was not opened by them) was disclosed to their tax preparers. The tax preparers failed to advise Mr. and Mrs Kentera to file their FBAR (a requirement that few in 2011 knew about).
This series of events took place during the “2011 IRS Reign of FBAR Terror“. At this time many lawyers and accountants strongly recommended that people (1) correct their mistakes (the nonwillful ones that were the result of not knowing about Mr. FBAR) and (2) correct those mistakes by agreeing to the OVDP/OVDI penalty program (that is/was analagous to a form of “Civil Forfeiture“).
The evidence strongly suggests that Mr. and Mrs. Kentera were ordinary people, trying to do the “right thing”. They were victimized by advice to enter OVDI and then victimized by the IRS because they entered OVDI. (To get a sense of the context of how people were victimized by trying to do the “right thing”, read Phil Hodgen’s April 5, 2011 post here. There were many other posts written during this period. To see how Green Card holders were victimized by the OVDI program see here and here.)
How could the IRS possibly assess this kind of FBAR penalty?
All “armchair quarterbacks” must remember the context in which individual decisions were made. In 2011, there were NO streamlined compliance procedures. There were no delinquent FBAR submission procedures. There were no Delinquent Information Return Procedures.
That said, there was also NO requirement that people enter OVDI.
Tragically those who tried the hardest, and acted most quickly, to fix their non-compliance problems were the most harshly treated. (In fact, the history of the IRS assault on Americans abroad has shown that that those who did NOT rush to fix their problems fared much better. You may remember the “This is your last best chance to come into compliance” threats directed to those (including Americans abroad)with offshore non-U.S. bank accounts.)
To put it simply: The Kentera’s were victims of their desire to be in compliance with the law. It is regrettable that their law abiding sentiments coincided with the 2011 atmosphere of threats from the IRS and fear mongering from the compliance industry.
Why OVDP is extremely dangerous …
To enter OVDI or OVDP is to enter a program where you interact with the IRS outside the provisions of the Internal Revenue Code. You agree to interact with the IRS outside the framework of the existing laws. OVDP is appropriate for ONLY the very small group of people who may face serious penalties and (criminal) punishment.) OVDP is completely inappropriate for Americans abroad (where all of their assets are foreign and all assets are therefore subject to penalty assessment).
But, once you enter OVDP …
In my humble opinion, Mr. and Mrs. Kentera were subjected to this penalty because they entered OVDI. Because, they entered the program, there must have been a presumption that they somehow “deserved to be there”. As Virgina La Torre Jeker points out:
The point to be taken is the IRS’ apparent lack of sympathy with the taxpayers’ arguments concerning “reasonable cause”. It will be remembered that the IRS has discretion to assess FBAR penalties after taking into account all the facts and circumstances. See the IRS Manual regarding FBAR penalties here. Current IRS procedures state that an examiner may determine that the facts and circumstances of a particular case do not justify asserting a penalty and that instead an examiner should issue a warning letter. The IRS has established penalty mitigation guidelines, but examiners may determine that a penalty is not appropriate or that a lesser (or greater) penalty amount than the guidelines would otherwise provide is appropriate. Examiners are instructed to consider whether compliance objectives would be achievedby issuance of a warning letter; whether the person who committed the violation had been previously issued a warning letter or has been assessed the FBAR penalty; the nature of the violation and the amounts involved; and the cooperation of the taxpayer during the examination.
For more about FBAR penalties and the “FBAR Penalty Mitigation Guidelines”, see the discussion by Michael Deblis here.
What happened was that Mr. and Mrs. Kentera “signed up” to pay an FBAR penalty when there is a good chance that one would never have been imposed in the first place!
Incredible! What should/could have resulted in a “warning letter” resulted in a full blown FBAR penalty (plus the professional fees to attempt to reverse the penalties).
Why did people do it? Why did people enter OVDI in the first place?
The problem of people being “ushered into OVDI/OVDP” by their advisers has been the subject of much discussion. See the following discussion of Jack Townsend’s blog:
"Presumably, the couple entered OVDI on the advice of an attorney and, ultimately, were assessed…" — Stephen Kish https://t.co/XiPlOsz1GB
— Citizenship Lawyer (@ExpatriationLaw) February 4, 2017
"I'm a bit curious why there was omitted income, given that the account was (we are told…" — Michael J. Miller https://t.co/MEq0a4Wz9Y
— Citizenship Lawyer (@ExpatriationLaw) February 5, 2017
I’m a bit curious why there was omitted income, given that the account was (we are told) consistently disclosed on the taxpayers’ return, but mostly I’m curious why they were in OVDI in the first place.Presumably the taxpayers and their counsel could have predicted from the outset that they would need to opt out if they were unwilling to pay the 25% offshore penalty; and I generally see little merit in going into OVDP if you know (or should know) in advance that you’ll be opting out.
Obviously, the compete set of facts (most of which we don’t know) is critically important, so I’m certainly not purporting to reach any conclusions, but I think it’s fair to at least wonder if a non-program disclosure might have been more appropriate in this instance. I do vividly recall that some practitioners were vehemently opposed to the whole notion of a “quiet disclosure,” although I do not recall any coherent reason ever having been advanced for such opposition.
Conclusion: “Look Before You Leap …
To #OVDP or to NOT #OVDP – the greater the attempt to fix past compliance issues, the greater the punishment. https://t.co/HblKpihu0C
— Citizenship Lawyer (@ExpatriationLaw) February 5, 2017
I certainly agree with Virgina La Torre Jeker’s conclusion which states:
The IRS disposition of the case was disappointing, to say the least. One has to ask why, on these facts, the taxpayers joined OVDI in the first place? My guess is that the fear factor was ramped up significantly and they may not have been given full detailed advice by their tax advisor as to all of the possible options, risks with each one and so on. One must also remember that at the time the taxpayers joined OVDI, the Streamlined options did not exist. The case demonstrates that
one must be very careful in taking actions. Get a second or even third opinion.”
Yes, yes and yes!!
If you have FBAR problems …
Get a second or third opinion! Be careful what you fix for!
(For those who want further reading (including the details) see the following court documents:
United States Motion to Dismiss – here.
Memorandum in Support of United States Motion to Dismiss – here.
Mr. & Mrs. Kentera’s Brief in Opposition to United States Motion to Dismiss – here.
United States Reply to Mr. & Mrs. Kentera’s Opposition Brief – here)
John
Richardson
“I do not know I need to file fbar until I already left the US. If it is that easy to fix the issue just to amend the tax and file previous fbar I will have already done that.”
It’s very easy. You file the amended returns and pay the tax due; then backfile the FBARs. Then file for 2018. Should be very easy to find a tax accountant who can do that for you.
@Norman Diamond, I departed US early 2018, after that I did not come back and not plan to come back US. So my 2019 is my final return. Is there any option to tick as the final return on 1040NR? Can it be filed electronically or paper? I don’t want to put my NZ address there, my concern is they can locate me. Someone told me if irs found out something and checked you are outside USA, they will not sue you since it might be waste of money. Others said they might still audit you, sue you and sent you the court summon to your overseas address. I am not sure what the consequence is if I ignore it. You mentioned Mr. Topsnik, he lives in Germany, but he was US green card holder. He has way more money than us. I do not know how irs sue him if he lives in Germany and has German passport? thanks
“I don’t want to put my NZ address there, my concern is they can locate me. ”
Presumably the NZ tax agency has your address.
Three options:
a) File the amendments and pay the tax; backfile the FBARs. File for 2018, receive refund. Sleep the sleep of the just and the reimbursed.
b) File for 2018 only, without reporting the income from the foreign account. Receive refund. Wait to see if you get caught.
c) File nothing. Wait to see if you get caught.
“I departed US early 2018, after that I did not come back and not plan to come back US. So my 2019 is my final return. Is there any option to tick as the final return on 1040NR?”
Your 2018 return will be your final return, and the deadline is 2019-06-15 unless you submit Form 4868 for extension. At the top of your Form 1040NR you write “Dual Status Return.”
“Can it be filed electronically or paper?”
I don’t know. I submitted mine on paper.
“I don’t want to put my NZ address there, my concern is they can locate me.”
Whatever address you write, if the IRS sends a letter to that address, legally they’re sending it to your last known address and you’re responsible for it. If you want them to think you’re still in the US, you’re really asking for trouble.
“Someone told me if irs found out something and checked you are outside USA, they will not sue you since it might be waste of money.”
That seems to be the case, as far as we’ve been able to observe, if you were outside the US during the tax year involved and if you remain outside the US.
“Others said they might still audit you, sue you and sent you the court summon to your overseas address.”
That is true. What they can do and what we’ve observed them do are two completely different things.
Meanwhile, it’s somewhat rarer for the IRS to sue a person. More commonly, the IRS sends a Notice of Deficiency to your last known address, and if you don’t quickly sue in US Tax Court then the IRS assesses you and you can’t dispute the asserted deficiency after that. Next the IRS files a Lien or Intent to Levy, and usually you don’t even receive that until after the deadline passes to sue about that in US Tax Court. After that they can just grab your assets, like they already could do illegally but now they can do it legally. Also if you have assets in a country where you don’t have citizenship, the US can ask that country to grab your assets for them.
“You mentioned Mr. Topsnik, he lives in Germany, but he was US green card holder. He has way more money than us. I do not know how irs sue him if he lives in Germany and has German passport?”
I don’t know if he had more money than us. I thought he was a student in the US, and he lost money on his investments, and he didn’t even have to file a US return because he was under the threshhold, but the IRS decided to tax the gross proceeds of sales of shares. I don’t think the IRS sued him but they used administrative procedures to force him to sue them.
@Norman Diamond, thank you very much.
1. I do not have asset in the US, I am a citizen of NZ, so irs can not get my money in NZ?
2. the way irs collect tax deficiency might not be the same as they collect fbar penalty. I checked online it says irs has to file a complaint to federal court and you will have to appear in that court. irs can not collect far penalty until the judge in the court decides how much you have to pay for fbar penalty. Is that right?
3. I did not get a sailing permit before I departed US, if I file dual return. will that raise flag from irs?
you mentioned “If you want them to think you’re still in the US, you’re really asking for trouble.” Even they think I am in the US, from next year onwards, I will have no US income to be reported by my employer to irs. Even I do not file return, I should be fine, right?
thanks
Norman Diamond:
“I thought [Topsnik] was a student in the US, and he lost money on his investments, and he didn’t even have to file a US return because he was under the threshhold, but the IRS decided to tax the gross proceeds of sales of shares.”
I don’t know if he was under the filing threshold. Apparently (https://www.google.co.uk/url?sa=i&source=web&cd=&ved=2ahUKEwiMnKXhx_HeAhUsgHMKHVKYCqUQzPwBegQIARAC&url=https%3A%2F%2Fwww.bna.com%2Ftopsnik-retroactive-expatriation-n57982068441%2F&psig=AOvVaw14C2ii175wqqVUyvF01FNG&ust=1543304592281796):
“I don’t think the IRS sued him but they used administrative procedures to force him to sue them.”
They treated him as US-resident until 2010 because he didn’t terminate his status as a resident alien; then after he eventually did terminate resident alien status, they treated him as a “covered expatriate” for not filing Form 8854 to certify five years’ compliance. (It’s not clear whether they would have bothered with the covered expatriate stuff if he hadn’t tried for a refund.)
In any case, it appears to me (non-lawyer) that the Topsnik case doesn’t really apply for eric, who doesn’t have a green card and therefore has no route for filing to terminate resident alien status.
The covered expatriate wouldn’t apply to
“I do not have asset in the US, I am a citizen of NZ, so irs can not get my money in NZ?”
You’ve committed perjury by signing the returns where you didn’t report and pay tax on the interest. Perjury is a felony – an extraditable offence, in mamy countries, though whether the US would actually apply for extradition would presumably depend on how much revenue they thought they might gain. Extradition is not cheap.
I was so scared when I got to know this fbar thing. during the past a few months, quite a few people told me extradition is very very unlikely, because it costs millions of dollars.
@plaxy if as you said, 9 out of 10 people who did not report fbar committed perjury, so most of them will go to jail.
“if as you said, 9 out of 10 people who did not report fbar committed perjury, so most of them will go to jail.”
It’s not reporting the income and them signing under penalty of perjury that they’ve reported their income, that constitutes perjury. Most US resident who didn’t know about FBAR likely had enough sense to do the backfiling as soon as they found out, rather than skipping the country and then posting the details on a public forum asking how to commit further perjury in order to wrongfully obtain a refund.
@plaxy, I do not understand why you talk like that, I am going back to my home country, not skipping country. I am asking for help here. Even I did not take your advice I do appreciate your input. Please do not make me feel worse.
@Nonymous or @Norman Diamond thank you very much. Do you guys have the answer for the below questions?s
1. I do not have asset in the US, I am a citizen of NZ, so irs can not get my money in NZ?
2. the way irs collect tax deficiency might not be the same as they collect fbar penalty. I checked online it says irs has to file a complaint to federal court and you will have to appear in that court. irs can not collect far penalty until the judge in the court decides how much you have to pay for fbar penalty. Is that right?
3. I did not get a sailing permit before I departed US, if I file dual return. will that raise flag from irs?
you mentioned “If you want them to think you’re still in the US, you’re really asking for trouble.” Even they think I am in the US, from next year onwards, I will have no US income to be reported by my employer to irs. Even I do not file return, I should be fine, right?
@eric
As I understand it, plaxy’s point is simply that you when you filed US tax returns during the time you lived there, you did not declare or pay tax on the interest income earned on your NZ account, as you should have done. That, technically, is tax evasion – one might even call it cheating. It doesn’t offend me, personally, but it might offend others. Your options at this point are to either clean things up retroactively, or ignore it and hope that no trouble results.
Other questions:
1. The IRS cannot touch your money in NZ. Period.
2. The US cannot collect FBAR fines in NZ. (It’s actually impossible to collect FBAR fines anywhere outside the US, because those few countries with collection-assistance agreements in their tax treaties don’t recognized FBAR fines as being part of taxes.)
3. Hardly anyone has heard of the “sailing permit” so I expect that most people who leave do not file them. I won’t comment on the dual-status return or the wisdom of pretending to still be in the US or not giving a NZ address, because I don’t know what to advise. If you are trying to decide whether to file at all, are you expecting a refund, or would you owe money?
You ask: “Even I do not file return, I should be fine, right?”
How do you define “fine”? As we’ve said before, more than once, the IRS cannot touch your money in NZ. You could send a letter to the IRS saying “I cheated and lied and here’s where I live now” and there’s not much they could do about it – you’d still be “fine” in that your money would be safe.
final return will be some refund, sure I do not care that refund, Just want to have a safe exit.
As for the interest in my NZ bank, there is no interest in the first 5 years. I was planning to go back my home country, so transferred the money back, so recently I have interest in the account. My situation is so different from people reside in US and hide money overseas. My money earned in US will be transferred overseas eventually. I was on a temp work visa
Nononymous:
“You could send a letter to the IRS saying “I cheated and lied and here’s where I live now” and there’s not much they could do about it – you’d still be “fine” in that your money would be safe.”
Speaking generally, without reference to any specific case, I’m not sure that’s the case.
No country has a treaty with a mutual collection provision for citizens, but a treaty mutual collection provision is merely about collecting assessed tax liabilities, not about proving tax crime.
For expats, IRS troubles or worries are often, perhaps usually, about income the US doesn’t even have taxing rights for, received by an individual living in the country that does have the taxing rights. That’s the main reason (IMO) that the IRS doesn’t waste time trying to enforce CBT: no local law has been broken by not reporting income to the IRS.
US tax treaties generally have a mutual assistance article covering exchange of information – automatic fishing expeditions like FATCA, or specific information on a named individual. Which might be sufficient to build a case worth issuing a subpoena for, if it’s about genuinely US-taxable income and tax crime is suspected. A subpoena is harder to ignore than a Notice of Deficiency, I suspect, but I may be wrong.
I’m merely speculating, of course. The interesting aspect, IMO, is the apparent inability of the US to enforce CBT, as long as expat USCs don’t file.
You have already made a safe exit. You and your money are outside the US. What you do next probably doesn’t matter that much. What could happen to you? Nothing.
Whatever your intentions, you had an interest-earning account outside the US that you did not report while you were a resident of the US. Legally you are no different than “people [who] reside in US and hide money overseas” even if it’s only for a few years and the amounts were relatively small. You can either fix it or not, as you see fit.
“ I was planning to go back my home country, so transferred the money back,”
“My situation is so different from people reside in US and hide money overseas.”
Different how?
@plaxy
It was a glib example, and not a good one. Sending the IRS a letter telling them you committed a crime while living in the US is not smart.
Nononymous:
“It was a glib example, and not a good one. Sending the IRS a letter telling them you committed a crime while living in the US is not smart.”
Probably not, but the distinction I was drawing is that while an expat seems to be fairly invulnerable where CBT is concerned, a resident alien who leaves the US might not be invulnerable, where failure to report and pay tax on US-taxable income is concerned. I’m only speculating though.
@plaxy
I too am only speculating (also, IANAL). I speculate that if whatever a person did in the US is deemed “criminal” and there’s enough ROI for the IRS to bring charges and pursue it, then presumably extradition and other high-priced legal instruments are equally available against US-only citizens, dual citizens or non-citizens outside the US.
Otherwise if it’s not a criminal matter, merely collection of taxes owed or penalties, I don’t see how a non-citizen with no US assets (a.k.a. a former resident alien who moved their money) is any more vulnerable than a non-resident US expat or dual citizen. The only means of enforcement in these cases is the collection-assistance agreement, in five countries only, which specifically excludes home-country citizens. I assume that would also apply to a former resident alien if the IRS deemed them to be a US person somehow, for filing incomplete returns or having fled without proper paperwork or something. But here I am really speculating.
Edit: change “in the US” to “in the US or with US-source income” I suppose.
Nononymous:
“I speculate that if whatever a person did in the US is deemed “criminal” and there’s enough ROI for the IRS to bring charges and pursue it, then presumably extradition and other high-priced legal instruments are equally available against US-only citizens, dual citizens or non-citizens outside the US.”
1. An expat USC who doesn’t file FBARs and doesn’t report and pay tax on their non-US-source income, is not breaking the law of the land.
2. A US resident who doesn’t file FBARs and doesn’t report and pay tax on their non-US-source income, is breaking the law of the land. So the legal situation is different. (The IRS may or may not want to or be able to take action.)
It’s number 1 that I find interesting, naturally. But it’s all merely speculation.
It’s the invulnerability
The IRS was able to assess a tax liability against Topsnik by filing substitute returns, because that was about US-source income he received while still deemed US-tax-resident.
They wouldn’t be able to assess a tax liability against a non-filing expat by filing substitute returns, if the expat had no US-source income.
No assessment, no debt.
I think we’re at minor cross-purposes here, since I was only speculating about something that could happen to a former US resident or non-resident with US-source income. I agree, non-resident US expats who don’t file and have no US income sources are currently safe from harm, though there are certainly folks on this board who believe that their doom is imminent.
But we are straying away from Eric. Sounds as though he “hid” (i.e. failed to report) $400k in foreign accounts and income for two years before leaving the US. He has the same decision as before: clean it up retroactively, or ignore. Bit hard to assess the risks, particularly as he doesn’t know whether he was even subject to FATCA reporting.
Nononymous:
“But we are straying away from Eric. ”
Yes, I was trying to yank the thread back on-topic.
Old thread. I assumed Eric was the topic now.