Mixed Messages – U.S. Ambassador to Canada vs. IRS Commissioner

Posted on March 16, 2014 Updated on March 19, 2014

The apparent renewed focus of the government on U.S. citizens and LPRs residing overseas is worth considering in the current environment.

I wrote an article that was published back in Jan-Feb 2012 in the International Tax Journal titled Unsettled Future for U.S. Taxpayers Residing Overseas: Mixed Messages from IRS Commissioner vs. Ambassador—Part I

The article explains the contradictory statements of  David Jacobson, then U.S. Ambassador to Canada and then IRS Commissioner Shulman.  See page 33 of the article, which provides as follows:

More troubling and problematic is the mixed
message sent to U.S. citizens residing overseas,
including by David Jacobson, the U.S. Ambassador
to Canada who stated in a recent interview:
“What the IRS is saying here is that if … you don’t
owe taxes to the U.S., and you file your return and
they show you don’t owe taxes, there aren’t going
to be any penalties for having filed late.” Is that
what the IRS is really saying? The short answer is
a resounding “NO”! The IRS spoke a few days
after the Ambassador’s comments when it issued a
statement entitled, Information for U.S. Citizens or
Dual Citizens Residing Outside the U.S. In the IRS
statement, they indicate that taxpayers who do not
owe any U.S. taxes “ … due to the application of
the foreign earned income exclusion or foreign tax
credits) will owe no failure to file or failure to pay
penalties. In addition, no FBAR penalty applies in
the case of a violation that the IRS determines was
due to reasonable cause.” [Emphasis added.]

There are a number of problems USCs and LPRs living overseas face regarding the application of U.S. law and whether they have filed U.S. income tax returns, FBARs or information returns, such as IRS Form 5471, 3520, 8858, etc.  These problems include:

1.  The IRS makes the determination of whether there is “reasonable cause” when no FBARs were previously filed.  The IRS has not attempted to articulate in any real detail, what they view as “reasonable cause.”  This is not a determination by the taxpayer.  Will one know it when they see it?

2.  USCs and LPRs living outside the U.S. can be subject to the FBAR penalties even if no U.S. income tax is owing (e.g., due to the foreign earned income exclusion and/or foreign tax credits).  Each of these individuals have to track the exchange rate applicable in their home country of residence to know if and when the U.S. dollar thresholds in the U.S. law are met.

3. The FAQs 17 and 18 provide solace to USCs and LPRs residing outside the U.S. only if they ” . . . reported, and paid tax on, all their taxable income for the prior years but did not file FBARS . . . ”  Of course, the school teacher in the IRS’s own example in IRS Example 1 and 2  did not have an account that ever reached the equivalent of US$10,000.  If the school teacher in the IRS example did have such an account, even for a day, she would not fall within the “free on base” rule that the IRS will not assess an FBAR penalty.  That “free on base rule” is only applicable when ” . . . The IRS will not impose a penalty for the failure to file the delinquent FBARs if there are no underreported tax liabilities and you have not previously been contacted regarding an income tax examination or a request for delinquent returns. . . ”  In example 2, there is an unreported tax liability of $2,100.  Hence, according to the IRS analysis the school teacher can be subject to a $10,000 FBAR failure to file penalty, even if the income tax is paid of $2,100, if the IRS determines the late FBAR filing was not due to “reasonable cause.”

4.  A published 2012 District Court opinion, McBride, held the taxpayer was liable for FBAR penalties even if the taxpayer had no actual knowledge.  The facts of that taxpayer were very bad in the case of McBride, yet the conclusions of the Court and statements below, give little comfort to USCs and LPRs residing overseas who have not filed FBARs, that the government might assess large FBAR penalties (the 50% willfulness penalty of the highest account balance in the case of McBride):

. . .  The government does not dispute that McBride’s failure to comply with FBAR was the result of his belief that he did not have a reportable financial interest in the foreign accounts. However, because it is irrelevant that McBride “may have believed he was legally justified in withholding such information[,] [t]he only question that remains is whether the law required its disclosure.” Lefcourt, 125 F.3d at 83. Here, the FBAR requirements did require that McBride disclose his interests in the foreign accounts during both the 2000 and the 2001 tax years. As a result, McBride’s failure to do so was willful. . .

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A. Constructive Knowledge of the Reporting Requirement Is Imputed to Taxpayers Who Sign Their Federal Tax Returns.

All persons in the United States are charged with knowledge of the Statutes-at-Large. Jones v. United States, 121 F.3d 1327 (9th Cir. 1997) (citing Bollow v. Federal Reserve Bank, 650 F.2d 1093, 1100 (9th Cir.1981)). It is well established that taxpayers are charged with the knowledge, awareness, and responsibility for their tax returns, signed under penalties of perjury, and submitted to the IRS. Magill v. Comm’r, 70 T.C. 465, 479-80 (1978), aff’d, 651 F.2d 1233 (6th Cir. 1981); Teschner v. Comm’r, T.C. Memo. 1997-498, *17 (1997); accord United States v. Overholt, 307 F.3d 1231, 1245-46 (10th Cir. 2002) (observing that in Bryan v. United States, 524 U.S. 184, 194-95 (1998), the Supreme Court distinguished cases like Cheek v. United States, 498 U.S. 192 (1991) and Ratzlaf v. United States, 510 U.S. 135 (1994) from another context of willfulness on the grounds that the “highly technical statutes” involved in criminal tax prosecutions “carve out an exception to the traditional rule that ignorance of the law is no excuse and require that the defendant have knowledge of the law.”) (internal quotation marks and citations omitted); see also Am. Vending Group, Inc. v. United States, 102 A.F.T.R.2d 6305, *6 (D. Md. 2008) (“Failing to read does not absolve a filer of his or his corporation’s legal obligations. Of course if one does not read the instructions, one does not know of the obligation to file the informational returns.”). . .

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