How FBAR Non-Compliance Leads to IRS Foreign Account Audit

FBAR Audit

FBAR Audit Triggers

FBAR Audit: The FBAR refers to Foreign Bank and Financial Account Reporting (aka FinCEN Form 114). The FBAR is one of the more common international information reporting forms required by the IRS, since it has a very broad scope as to what is considered a reportable FBAR account — as opposed to other tax forms, such as Form 5471 which is used for a very specific offshore disclosure purpose (foreign corporations). When a U.S. person has foreign accounts, they may have to file an FBAR each year — the form is filed electronically and directly on the FinCEN website. The failure to file a timely or accurate FBAR may lead to IRS fines and penalties.  When it comes to filing an FBAR — or making the decision to intentionally not file it — there are several FBAR audit triggers to be aware of.  Some of the triggers are preventable, and other triggers are not.  But, by filing a timely and complete FBAR — a Taxpayer can significantly reduce the chances of an IRS examination. Ever since the Internal Revenue Service made foreign accounts compliance a key enforcement priority, they have significantly increased the number of audits for willful and non-willful FBAR violations. We have developed a case-study example to assist U.S. Persons to understand how an IRS foreign account examination occurs, and why FBAR filers should try to submit to FBAR Amnesty before penalties are assessed or an audit is commenced.

What Triggers an FBAR Audit Examination?

Michael is originally from India.

He first came to the United States in 2008 on an H-1B visa.

In early 2010, he was at a dinner party with friends from India and learned that U.S. individuals (even those still on visas and who meet the Substantial Presence Test) are required to file taxes just as any US person would.

Therefore, if Michael became aware that if he had any foreign accounts (which he did) he was required to report the information on an annual FBAR, as well as report the income.

FBAR Audit Myth 1: Offshore Reporting is A New Phenomenon

While FATCA may not have come into existence for individual filers until the 2011 tax return and introduction of Form 8938, FBAR reporting dates back to the 1970s.

Michael’s Tax Professional Knows Less Than Michael

When Michael went to see his new tax preparer for the first time, the preparer was relatively new.

When the tax preparer asked Michael about his income, he never made any reference to foreign accounts, and Michael never volunteered the information to him.

FBAR Audit Myth 2 – Only Your CPA is in IRS Trouble, Not You

In this particular situation, Michael was aware that he had a reporting requirement.

The mere fact that his tax preparer did not ask him about foreign accounts does not absolve Michael from liability.

In fact, it makes it worse because it clearly shows that Michael was willful, and knowingly did not disclose his foreign accounts or report the income.

Michael’s CPA Learns About Foreign Account Reporting

By 2017 and with the new forms required under FATCA, it would be nearly impossible for tax preparers to not have some knowledge (or at least be aware) of foreign account reporting.

When it’s time for next year’s tax returns, Michael’s CPA sends Michael an organizer asking him to complete all necessary portions. In addition, it asks Michael he had any foreign accounts. Michael does not complete the questionnaire, although he did confirm to the CPA that he received it.

Since Michael did not return the questionnaire (which is not uncommon for clients in general who have a pre-existing relationship with a CPA), the CPA presumed that nothing had changed, and continued reporting Michael’s US income based on the information Michael provided to him.

FBAR Audit Myth 3 – Michael did not Actually “Lie” to the CPA

This is not true.

Making an intentional omission is equivalent to making an intentional misrepresentation.

In other words, because Michael was aware that he had foreign accounts that he should have been reporting, but he never reported them – he is knowingly making an intentional misrepresentation to the tax preparer by proactively omitting the information.

As such, the tax preparer is under false pretenses that Michael does not have any foreign accounts or foreign income, which is why he did not report it on the return.

Michael is Audited/Under IRS Examination

Michael returns home from a long day only to find a certified letter from the IRS.  He opens it to learn that the Internal Revenue Service wants to Audit him. As of now, the Audit has nothing to do with foreign accounts. Rather, Michael (who is a software engineer) also started a side consulting business and tried to claim some unreimbursed expenses from his W-2 job through his consulting business.

This is a typical red flag, and something the IRS frowns upon.

By embellishing his expenses, Michael was hoping to take more deductions through his consulting business than would not otherwise be available as a W-2 employee, which has the net effect of reducing his tax liability.

Michael Receives an IDR (Information Document Request)

About a week prior to the start of the examination, Michael’s CPA (who agrees to represent him in the audit) receives an IDR – Information Document Request.  The request is about five pages and asks questions including (a now standard question) whether Michael has any foreign bank accounts or other foreign money or income that he did not report. When Michael’s CPA goes to confirm with Michael, Michael relents and explains to his CPA that he does have foreign accounts and income.  Michael’s CPA is understandably upset and refuses to represent Michael at the audit. Moreover, now that the CPA will not represent Michael, Michael has to find new representation as well as worry about whether the IRS will ask Michael CPA about Michael’s file.

Michael may become subject to willful FBAR penalty violations, and should seek out an experienced board-certified tax law specialist for counsel.

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure. 

Contact our firm today for assistance.