Media and Blog Articles Open for Comments – Part 3 of 11 (Year 2016)

2,818 thoughts on “Media and Blog Articles Open for Comments – Part 3 of 11 (Year 2016)”

1. Failing to mention his Swiss accounts is one thing – failing to report the income generated from those accounts is another.

2. The standard of evidence required to prove non-wilfulness is a point of considerable significance to some, though, because anyone who goes through Streamlined or QD in the course of renouncing, could in theory get hit with a penalty if “non-wilful” is disallowed.

   Regardless of any other aspects of this particular case, and regardless of what Gubser did or not do, or tried/hoped to do — if the case has the effect of clarifying the seemingly arbitrary, damned-if-you-do-damned-if-you-don’t wilful-non-wilful dilemma – that could have a bearing for many people trying to decide whether to go through one of the so-called “amnesty” programmes.

3. @iota

   It would seem to me as an average Joanna that in the absence of evidence, the default position SHOULD be non-willfulness. Unfortunately the IRS seems to take the position that an “absence of evidence is not evidence of absence” in terms of willfulness.

4. @Bubblebustin

   He is a swiss national who naturalized….there are many others who have a GC or naturalized who didn’t think the money in their *home* country is foreign…. He tried to correct the mistake… why is it ok for them to take a huge chunk of it. How much *income* do u think these accounts make? He could have a second life in his home country… house & etc which requires u to have a bank account… I know I never kept up on all these tax rules… Elders in my family have the mind set… not a dime of it was made in the US… why is it their business… right or wrong… when people see milions… they all assume the same thing… each person has a different story so we shouldn’t assume they are guilty of being *tax evaders*

5. @USFP

   I am of the same opinion that that the IRS shouldn’t be entitled to money earned prior to someone becoming a US taxpayer, however the Courthouse News article states (at least from what I can ascertain) that he open the Swiss account after he started working in the US:

   “Gudser says his work often took him back to Switzerland, so he opened a bank account there to cover his living expenses.”

6. @Bubblebustin – I’m sort of hoping, from reading the runes, that the IRS is increasingly feeling less confident about its “keep’em guessing” “we can do whatever we please” attitude, at least with regard to extraterritorial demands.

   The Streamlined “mea culpa” form (on which people are supposed to grovel at length on the naughty step telling the IRS all about what bad boys/girls they have been) has been redesigned to require even more detail. I’m guessing, rightly or wrongly, that this may be because the legal advisors keep telling them they can’t prove wilfulness.

   Though goodness knows, the non wilful penalties would be enough to wipe out a lot of people including me. Can’t figure out what sin they think they’re punishing when they charge people $10,000 for not deliberately committing a crime.

7. @iota,

   For me and my wife we had such a large number of accounts (most tax compliant) that the non-willful penalties they could apply to use would exceed the OVDP 27.5% penalty. This is if they charged us $10k / account / year. Of course they say they don’t do that in the IRM that is not binding on them. Even $10 / account was a pretty steep sum.

8. Unfortunately, Gubser’s move in 2008 out of UBS to Julius Baer is going to make his case difficult. Maybe Julius Baer actually was offering something better, but leaving UBS right when the U.S. was about to sweep in would raise suspicions that he was aware of what he was doing. I really hope he declared the income off that account.

9. @iota

   In the brains of the IRS, their inability to prove wilfulness naturally results in the taxpayer having to work harder to prove non-willfulness. Jeesh…

10. @Neill – it’s totally absurd, is it not? And all too likely to be applied inconsistently, without any transparent explanation, which makes it impossible to know what’s best to do.

    @Publius – Gubser is not on trial here. He’s seeking “a declaratory judgment” – he is the plaintiff. http://federaltaxcrimes.blogspot.co.uk/2015/12/us-taxpayer-seeks-declaratory-judgment.html

    So the outcome of this particular case does not depend on what he has done – it’s just about what standard of evidence the IRS has to meet.

11. Key business tax issues executives needs to be watching in 2016

    http://www.startribune.com/key-business-tax-issues-executives-needs-to-be-watching-in-2016/372620641/

    Think creatively about taxes’ growing technology needs. Companies are increasingly recognizing that mining data and insight from their tax functions can provide value beyond a traditional focus on compliance.

12. @iota,
    I like the way you put that about the fine for NON-wilfulness, i.e. “Can’t figure out what sin they think they’re punishing when they charge people $10,000 for not deliberately committing a crime.”

    I read about the IRS asking for and getting ability to levy a NON-wilfulness penalty which they asked for in 2003 (and in force in 2004?) to impose even on those NOT deliberately committing a crime, after Treasury gave them the task of enforcement of the FBAR – the nonwillfulness penalty didn’t exist before, only a willful penalty, but IRS argued they needed it. Of course, when they were given the power to levy that new nonwilful penalty by Congress, the IRS was also supposed to educate those potentially affected by the FBAR as to their obligations – which they didn’t do.
    http://www.hbtlj.org/v07p1/v07p1_sheppard.pdf
    2006 HOUSTON BUSINESS AND TAX JOURNAL
    EVOLUTION OF THE FBAR: WHERE WE
    WERE, WHERE WE ARE, AND WHY IT
    MATTERS
    By Hale E. Sheppard

    Here is reference to the duty to “enhance outreach and education”, which we know from the Taxpayer Advocate that neither the IRS not Treasury bothered to do:

    ‘One-Size-Fits-Small: A Look at the History of
    the FBAR Requirement, the Offshore
    Voluntary Disclosure Programs, and
    Suggestions for Increased Participation and
    Future Compliance’ by Stephan Michael Brown
    https://www.chapman.edu/law/_files/publications/CLR-18-stephan-brown.pdf
    “……..The report gave recommendations for improving compliance
    with FBAR reporting requirements, and provided the IRS and
    the Financial Crimes Enforcement Network (hereinafter
    “FinCEN”)33 with five objectives for the following year: update
    and improve the FBAR form and instructions, review filing and
    processing procedures, enhance outreach and education to tax
    practitioners, establish a joint task force on prosecutions and
    enforcement, and consider delegating penalty authority from
    FinCEN to the IRS.34”

13. @iota
    Point taken.
    @badger
    The problem of individuals being punished harshly for not following an extensive body of complex laws that are far beyond common knowledge goes well beyond citizens abroad. I have seen a number of newspaper articles along this theme:
    http://www.timesunion.com/tuplus-opinion/article/Justice-reform-will-help-protect-liberty-of-all-6891640.php

14. @badger – yes, that Shephard article is very interesting, I was reading it just yesterday.

    In summary, the Jobs Act makes three principal changes. First, it adds a new penalty for cases involving non-willful violations.(109) Second, it essentially changes the burden of proof in certain situations. Under the old law, all penalties required the IRS to demonstrate willfulness; that is, the IRS had to show by clear and convincing evidence that the taxpayer knew about the FBAR filing requirement, yet intentionally failed to comply.(110) By contrast, the new law allows the IRS to assert the penalty any time an FBAR is not properly filed or the records are not properly maintained.(111) This shifts the burden to the taxpayer to meet the “reasonable cause” exception.(112)

    If I understand correctly, and taking into account Jack Townsend’s blog piece about this issue (“clear and convincing” standard vs “preponderance of evidence” standard), this seems to be why the IRS “needed” the power to inflict a $10,000 on people who had done nothing wrong: simply because without it the FBAR requirement would be virtually unenforceable. The huge majority of FBAR filers are indeed “non-wilful”, or, as we say in the rest of the world, “innocent”, and the US absolutely has no right to force them to report themselves to the “Financial Crimes” unit annually as if they (we) were on lifelong probation. FINCEN couldn’t enforce it, so they “delegated” enforcement to the IRS – everybody’s favourite bullies. But it’s falling apart in the bullies’ hands (I hope) because not only are they afraid to risk applying the “non wilful” $10000 taser outside the US, but they are in even more trouble with the “wilful” penalties in their own dear usually-reliable US Courts, where the legals seem to feel that, given that this is not about collecting unpaid taxes, the usual “IRS-is-always-right” presumption does not apply, and instead, ideally, the IRS ought to be able to present clear and convincing evidence of wrongdoing before being allowed to pocket a citizen’s life savings.

    The FBAR and its indefensible penalties could turn out to be a self-inflicted unworkable disaster for the IRS. I hope.

15. @iota, early on in this blog’s history, I found and posted lots of evidence from US tax and accounting and US tax law professional bodies attesting that substantial numbers of US preparers, accountants and other ‘professionals’ , as well as those deemed US taxpayers inside and outside the US, did not sufficiently understand or know of the FBAR requirement (and Schedule B tick box) and the IRS has done nothing to make compliance easier in terms of the FBAR. And as the penalty revenue generating machine of the IRS ramped up after 2004 with their shiny new NON-willful penalty weapon, even those coming to know about the existence of the FBAR were still filled with uncertainty and confusion. Professional bodies and sources submitted comments to the IRS on numerous occasions, which of course it has ignored.

    The NON-willful penalty is too convenient for the IRS, and even when it doesn’t levy it, it uses it as a weapon to instill fear. All stick, no carrot. And they have a serious inherent conflict of interest. The FBAR is a useful weapon, and generates potential penalty revenue EVEN when NO US tax is owed or could even be assessed. So they see no reason whatsoever to make compliance any easier or better known. They benefit directly from even inadvertant ‘footfaults’. Except that if they wanted more people to come forward and be ‘compliant’ from ‘abroad’, they obviously have actually scared even more people into staying noncompliant because of the FBAR fear factor; confiscatory penalty regime, complexity and inherent uncertainty.

16. @nobledreamer16 Wishing u a bright Spring Birthday Tricia. Today is also @twitter's 10th birthday!
    
    pic.twitter.com/aEaeaqqHY4— Lynne Swanson (@LynneBlaze) March 21, 2016

17. Unbelievable. Not content with getting screwed by the democrats they want to elect somebody who will be ten times worse:

    http://thehill.com/blogs/ballot-box/dem-primaries/273748-sanders-beats-clinton-in-democrats-abroad-primary-by-2-to-1

18. Happy birthday, Tricia! Hope you’re taking some time off to celebrate and enjoy. Thanks so much for ALL you do!

19. Bernie did say he supported RBT and Hillary’s attitude was essentially “forget you”, to the point of not even attending the big Democrats Abroad event.

20. @Publius,

    Do you think Bernie is going to allow rich Americans to just leave the country and live there for a year to avoid the crazy taxation he wants to impose? No chance. What he proposes only works with the current exit tax barriers. They would have RBT with an exit tax at a minimum.

21. @Badger
    Re: FBAR threats “all stick no carrot.” Exactly! The Yanks have scared people to the point that they know they’re damned if they comply and damned if they don’t, so they don’t. Its like a paralysis isn’t it? And the insidious aspect of it all is that the threats are about the failure to fill out paperwork. You naughty people who neglect your paperwork! We will take your nest egg away.
    You want to visit your relatives in the U.S.? You won’t be able to afford dinner at Swiss Chalet when we’re through with you. You say your elders served in the American military? How nice, now come clean or you will be in big
    trouble…hell, you’re already in big trouble!

22. @Publius
    It may not have been Gubser’s decision to move out of UBS. UBS began throwing American tainted people out around that time, especially those with an American address.

23. Brison, Garneau endorse deal to share Canadian banking records with IRS
    Elizabeth Thompson March 22, 2016
    http://ipolitics.ca/2016/03/22/brison-garneau-endorse-deal-to-share-canadian-banking-records-with-irs/

24. Comments open on Truthdig:
    http://www.truthdig.com/report/item/bernie_sanders_takes_landslide_victory_in_ex-pat_primary_20160322

25. We need more headlines like this:

    http://www.taxabletalk.com/2016/03/22/a-bad-day-for-the-irs-in-court/

Comments are closed.