In order to use the Streamline Procedures (domestic and non-resident)
a U.S. taxpayer must certify that their failure to file a timely FBAR
was non-willful. The term non-willful is essentially a “clinical”
conclusion based upon the absence of evidence of intent to conceal
offshore financial accounts.
First, intent to conceal starts with analysis of the source of funds.
Were the funds in the account deposited from lawful sources income, or
gifts or inheritances or was the source of funds illegal source or the
product of an act(s) of tax fraud or evasion.
Second, upon satisfying the test for source of funds, the next test is what efforts were made at compliance.
1. Did the taxpayer have a “mail hold” instruction on the financial
account records? What do the notes of the bank officers include about
the taxpayer’s motives?
2. Did the taxpayer complete an “organizer” for their tax professional and state that they had offshore accounts?
3. Did the taxpayer report the income from the financial accounts on his/her Form 1040 and check the box Yes on Schedule B?
4. Did the taxpayer rely on the advice of a professional, skilled in
the area and fully advised about the facts? Did the taxpayer receive
that advice in writing?
5. Did the taxpayer properly report foreign gifts and inheritance(s) on
Form 3520, Report of Foreign Gift, Bequest or Inheritance…?
6. Did the taxpayer properly report foreign source business income on Form 5471, Controlled Foreign Corporation return.
7. Did the taxpayer use dual national status to open or maintain the account(s) under a foreign passport or other name?
8. Was the account opened by a parent for estate planning purposes
consistent with cultural norms? Did the taxpayer have control over the
funds?
These are just some of the questions that need to be answered before a
lawyer can make an informed recommendation to a client about whether to
use the Streamline Procedure or the regular Offshore Voluntary
Disclosure Program (OVDP 2014). The wrong choice can have meaningful
consequences. The Streamline Procedures do not bar criminal prosecution
if the Certification Committee rejects the taxpayer. Further, even if
the taxpayer is not charged, FBAR penalties of 50% per year per account
for up to 6 years can be assessed if the taxpayer is found to be
“willful”.
http://taxattorneycalifornia.net/streanline-procedure-what-does-non-willful-mean/
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