Expat Americans living and working abroad: You are on the IRS radar
By Asher Rubinstein, Esq. / Jul 10 • Categorized as Asset Protection •
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There are millions of United States citizens who live and work outside the US. These non-resident citizens are still subject to IRS reporting requirements, i.e., they must still file tax returns and the Report of Foreign Bank and Financial Accounts (the “FBAR”), and they are subject to payment of taxes on all income, including income earned abroad. The US, virtually alone among nations, imposes an extra-territorial tax regime, meaning that US citizens, even if they live and work overseas, must pay taxes on income earned offshore. The American expat may be entitled to credits for living abroad, and may be able to deduct taxes paid to a foreign government. Living and working abroad do not mitigate one’s US tax obligations.
An American expat might surmise that living abroad, he or she is far removed from the IRS. The expat may be tempted to hide foreign income, and not disclose an account in a foreign country, thinking that the the IRS would never learn about income in a foreign country, and a local account at a non-US bank. However, that would be a serious risk. How might the IRS learn about a foreign account, so far away and seemingly off the American radar?
First, via the Qualified Intermediary (QI) Program, in effect since 2001. Under the Qualified Intermediary Program, foreign banks are obligated to share information with the IRS. Moreover, under IRS Announcement 2008-98, the foreign banks must now actively investigate and report to the IRS whether US persons (or entities controlled by US persons) are the owners of the account. Many thousands of foreign banks are enrolled in the QI program. Not fulfilling their QI obligations would result in a lack of access to correspondent banks in the US, effectively severing such banks from international financial transactions. The IRS also routinely audits random foreign accounts at QI banks. And QI banks must also submit to external auditors, who might also discover and report non-compliant accounts.
Second, via “John Doe” summons issued by the US Department of Justice, approved by a US court and then served upon a foreign bank, requesting information about US account holders. In 2002, courts approved John Doe summonses issued against credit card service companies, and the IRS learned the identities of US persons accessing unreported foreign funds via credit and debit cards. In 2009, a federal court in Miami approved a John Doe summons against UBS, seeking account records of US persons with supposedly “secret” Swiss bank accounts. In settling the litigation that ensued, UBS agreed to turn over 10,000 names of Americans with accounts at UBS. Aside from the erosion of Swiss banking secrecy, which itself is a monumental development, equally significant is that John Doe summonses work, and will be used against other banks and financial service providers, in other foreign countries.
Third, via the “Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters”, pursuant to which a summons, inquiry, demand for information or documents, from the IRS to an American expat, can be delivered and served upon that expat in the country where he resides. It has recently been reported that the IRS has used the Hague Convention in issuing administrative subpoenas upon wealthy Americans in Britain and Switzerland.
Fourth, via Tax Information Exchange (TIE) Agreements, which obligate the foreign country to assist in both criminal and civil tax investigations. Most countries have already signed a TIE with the US, including tax havens such as Liechtenstein and Switzerland. Countries which have not yet signed a TIE are anticipating being asked by the US to sign one. Not signing one would, as noted above, ostracize the defiant country from the international banking system.
Fifth, via a Mutual Legal Assistance Treaty (MLAT), which requires each participating country to disclose information – including bank account data – to the U.S. government in connection with an investigation of a serious crime, including tax fraud. Treaty loopholes, such as what constitutes “tax fraud” under the laws of the foreign treaty country, have been effectively closed by the successful U.S. attack on UBS and Swiss banking secrecy. The MLATs specify that local secrecy laws may not form a basis for refusing to provide the requested information.
Sixth, if the account is at a bank within the European Union, or a bank outside the EU that routes via Europe, then the account might already be under the watch of the CIA pursuant to the “Brussels Agreement”, also known as the “Swift Agreement”. That agreement gives the CIA direct access, upon demand, to bank accounts held in the EU. While perhaps this sounds very “Big Brother” and akin to conspiracy theory, such monitoring does exist and was developed after the terrorist attacks on 9/11. The purpose of the Agreement is to investigate terrorism finance, yet there is no limitation to the extent of banking information to be shared, including with the IRS.
Finally, even assuming that none of the above are actual threats to a non-compliant expat account (an assumption that would indeed be a huge leap of faith), the account is vulnerable to discovery if the expat ever wishes to access or use the foreign funds in any way connected to the US. Should the expat wish to move back to the US, accessing the account would raise red flags. If the expat wishes to buy real property in the US, or even invest in US securities, the source of funds would be revealed. A wire transfer from the foreign account to a US bank would likely trigger a Suspicious Activities Report (SAR) from the recipient bank to the IRS.
It should be pointed out that none of these threats to a foreign account is directed specifically against American expats living abroad. Indeed, the same threats apply to US residents with non-compliant foreign bank accounts. It’s not the location of the taxpayer which gives rise to the threat; it’s the foreign account itself. Thus, whether the account holder is an American living and working overseas, or an American living in the US with an account offshore, both persons should be concerned about the likelihood of the IRS discovering the account and prosecuting the account holder for not disclosing the account and paying taxes on foreign income.
Given these numerous threats to offshore account secrecy, what should the expat (or indeed, the US resident) do to remedy a non-compliant foreign account? First, the account holder should bring the account into compliance. This includes the proper disclosure, i.e., “checking the box” as to ownership of a foreign account on IRS form 1040, Schedule B, as well as annual submission of the FBAR form mentioned above (Treasury Department Form TD F 90-22.1). It also means, of course, reporting and paying tax on all foreign income, including earnings, as well as interest and gains in or to the foreign account. However, it must be noted that simply, and suddenly, declaring a foreign account might give rise to the question of whether the account existed in prior years, in which case one would be alerting the IRS to past non-compliance. Thus, one must also address the question of whether or not to make a voluntary disclosure to the IRS. A voluntary disclosure would lead to paying past taxes, significant penalties and interest, but would likely avoid prosecution for criminal tax fraud, and would make amends for past non-compliance and allow for future compliance. The account holder might also consider a legal strategy involving transfer of the undeclared account in return for a foreign annuity and establishment of an offshore trust, which would accomplish asset protection, tax benefits and future tax compliance, but would not rectify past non-compliance and thus the voluntary disclosure option should again be considered.
Foreign banking tax compliance is crucial irrespective of where one lives, within the US or overseas. Non-compliant foreign bank accounts should be brought into compliance. The possibilities of discovery of the account, as seen above, are many. Expat Americans living and working abroad are as much on the radar as Americans living and working and banking at home.
you work with them,that filthy zionist entity called the US of nothing.Is that not why name “required?”I would like to see the IRS come and take my home in Germany.I left there 10 years ago,I have a good life here(that ugly society called america never gave me anything)I will not pay one cent to their zionist war machine,you can put that in the bank.Myself and all my expariate american friends who live in europe will never submit to tyranny,like the likes of the zionist run IRS
It’s funny that an illegal can come the states to work for many years and collect welfare, have there health care and pregnancies paid for, free breakfast and lunches while going to school, but never have to pay taxes and with the new “obamacare” bill never will have to pay taxes, but an American citizen moves away from the states and earns a living not asking for anything from the states still has to have this burden on there backs.
Who in the hell came up with this atrocity?. So, if an American leaves the states and does not want to ever go back can that person ever rid themselves of the U.S. government?. What if a person leaves solely because of there hatred of the government and how they have transformed a once great nation into a cesspool and does not want to be an American anymore,can they denounce there citizenship? I’m having a hard time believing that a person is branded for life by being born in the U.S., but theres lots of things these days I can’t believe are happening.
You can renounce your citizenship to the US.
You will be under IRS rules another 7 years and any holdings you take out of the states after your renunciation will be subject to the standard capital gains tax on full value of the asset.
Then you are not a citizen of the US and not subject to their jurisdiction.
I read on the internet that even if an American renounces his citizenship, the US government can still expect them to pay pay pay for the next ten years.
Today I received a letter from the IRS stating that I owe $10,170 for last year’s taxes. I am supposedly under a tax exempt clause for the first two years of working here. So, now I have to fight the IRS from foreign soil.
Question: if they want to put me into debtor’s prison in the “land of the free” for not paying taxes while I do not live in that country, how much will it cost them to try me, convict me, and imprison me? How many crooked politicians will give themselves a raise in the meantime? How many illegals will have reaped the benefits that I, a born and raised citizen/veteran of that country will never be qualified for?
Any good answers would be appreciated.
To be fair and set high emotions aside, although i agree with the principle that a government shouldn’t harass or tax a citizen living and working outside its country, the tax code specifically in the US gives many many exceptions and deductions to such a tax. Such as it doesn’t begin until after the first 80,000usd or equivalent is made. Even still there is so many additional tax exemptions that the 80,000 can easily be extended to 150,000usd per year. Now unless you are a super rich and making more than that you have nothing to worry about. But i do whole hardily agree that any government does not have the right to claim taxes on ANY income from someone living and working over seas just based on the fact of citizenship. I think that is bullshit and i see that law being challenged in the near future. Not to mention the waste of time of filing!
good job. I have had far too many inquiries from US citizens living overseas who think they only have to include US source income on their tax returns. They go to local advisors who are only familiar with the source income concept, whereas the US taxes citizens and residents on their worldwide income. When I tell them they should file amended US returns, I never hear from them again, they’re choosing to bury their heads in the sand. What they are doing is sitting on a ticking time bomb.
Written by a true zionist pig. Of course he fails to mention that all this information is required only from banks
with US business/branches. Any bank with no US connection will tell the IRS to piss off like it should.
The taxation of full-time non-residents is simply a joke. Freedom? I call it freedom to opt out of the system if one desires – no income earned in the US equals zero tax liability. Just like EVERY OTHER respectful country in the world. IRS claws in the pockets of citizens who are abroad full-time is a disgrace. These individuals should only be held responsible to the country where they live and work – period.