Legal Question of the Day: FBAR Penalties for USCs and LPRs Residing Outside the U.S. Is the IRS Website correct as a matter of law?
The IRS website has a specific statement on their website titled Delinquent FBAR Submission Procedures
Importantly, the website provides the following comforting statement:
The IRS will not impose a penalty for the failure to file the delinquent FBARs if you properly reported on your U.S. tax returns, and paid all tax on, the income from the foreign financial accounts reported on the delinquent FBARs, and you have not previously been contacted regarding an income tax examination or a request for delinquent returns for the years for which the delinquent FBARs are submitted.
The question is the following:
Is the IRS bound by their own statement on their website as a matter of law?
In other words, can they go ahead and assess FBAR penalties notwithstanding the statement set forth above on their website?
USCs are necessarily subject to U.S. taxation on their worldwide income because they are defined as “United States persons” under title 26, Section 7701(a)(30)(A). See, The U.S. Civil War is the Origin of U.S. Citizenship Based Taxation on Worldwide Income for Persons Living Outside the U.S. ***Does it still make sense?
Lawful permanent residents (“LPRs”) may, but are not necessarily defined as “United States persons” under title 26, Section 7701(a)(30)(A) by application of an applicable tax treaty and the flush language of Section 7701(b)(6). See, Timing Issues for Lawful Permanent Residents (“LPR”) Who Never “Formally Abandoned” Their Green Card and see the IRS practice unit discussion, Determining Tax Residency Status of Lawful Permanent … – IRS.gov
Now, this is all relevant to know and understand, in order to determine who exactly has a filing obligation under Title 31: regarding FBARs. See, Why Most U.S. Citizens Residing Overseas Haven’t a Clue about the Labyrinth of U.S. Taxation and Bank and Financial Reporting of Worldwide Income and Assets
Assuming you do have an FBAR filing requirement, e.g., residing in your country of residence with financial accounts in your own country or in other financial institutions outside the U.S.; can the IRS assess a penalty against you for a delinquently filed FBAR? What if you have properly reported on your U.S. tax returns, and paid all tax on, the income from the foreign financial accounts reported on the delinquent FBARs?
The answer may surprise you. It will be addressed in a subsequent post.
Incidentally, to date, there have been more than 200 FBAR civil penalty cases filed in U.S. federal courts. The Federal District Courts have seen approximately 200+ civil penalty cases and the Court of Federal Claims, much less popular venue, has seen 5 cases thus far.