Wednesday, June 25, 2014

Local law -- i.e., foreign law -- generally determines who is the beneficial owner of the account‏

Assuming that the assets were acquired with after tax funds or from funds that were not subject to U.S. taxation, if the assets have not yet produced any income, there has been no U.S. taxable event and no reporting obligation to disclose.
 life insurance with cash value :
Prior to 2011, the law was far from clear that foreign insurance policies were considered "financial accounts" subject to FBAR reporting. Moreover, income within an insurance policy is not taxable. Thus, I would approach the issue with the IRS by pointing out that if there was no clear FBAR requirement, then there is no clear failure to disclose the policy, plus there was no taxable income, and so the policy should not be included in the penalty. Until 2011, there was significant ambiguity as to whether or not an interest in a foreign insurance policy was even reportable on the FBAR form. That changed when the U.S. Treasury Department in 2011 issued revised regulations regarding the FBAR, and henceforth there was clarity that the FBAR applied to foreign life insurance policies that are owned by U.S. taxpayers.
Thus, there is a credible argument to be made that prior to 2011, a foreign insurance policy that was not reported via FBAR was not non-compliant. Taxpayers have been successful in making this argument within the OVDP to remove such a policy from the OVDP penalty.

However, another related issue is whether income within the foreign insurance policy is taxable. That issue is rather complex, and involves IRC 7702 compliance issues, and various test (e.g., the "cash value corridor test"). If income in the policy is taxable, and wasn't reported to the IRS, then the insurance policy is non-compliant.
Was the policy purchased with after-tax dollars ?
joint accounts :
 1. Beneficial ownership is the key to income tax consequences.
 2. Local law -- i.e., foreign law -- generally determines who is the beneficial owner of the account

The ultimate test is whose asset is it? That portion of the account as to which the title holder is not the beneficial owner and the beneficial owner is a U.S. person, the U.S. person has to report his or her portion on the FBAR.

Financial accounts for FBAR purposes do not include foreign pension accounts maintained by the employer .
Treaty qualified retirement plans will be excluded from the penalty base because there is no U.S. tax noncompliance.......if not does it resemble a real retirement plan (no withdrawals until retirement, etc.) Can you withdraw any of it before retirement? Who contributed to the plan -- employer or employee? If the employer, were you taxed on it in your country of citizenship contemporaneously with the employer's contribution? 

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