Prose by Tax Pros

The tax press has focused recently on captive insurance, conservation easements, Employee Retention Credits, and other “hot” topics. However, international tax enforcement in general, and big penalties for unfiled FBARs in particular, are still key issues. Several cases, largely unnoticed, have held that the IRS can extend the period for assessing FBAR penalties, even though the initial deadline expired. Another case ruled that FBAR penalties are “fines” for constitutional purposes, such that courts can reduce them if they are “excessive.” This article examines disparate rules about extensions of assessment-periods, relevant IRS guidance, and new cases centered on these critical topics. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.)  is a partner in the Tax Controversy Section of Chamberlain Hrdlicka.  He defends clients in tax audits, tax appeals, and Tax Court litigation, covering both domestic and international ...

Complying with international information-reporting duties is difficult; the rules are complex, dense, and obscure. Things get even more complicated when it comes to people who are residents, for tax purposes, of both the United States and another country. These so-called “dual residents” have special disclosure rules, the violation of which can trigger taxes, penalties, extended assessment periods, and more. This article explores information-reporting obligations, traditional IRS enforcement actions, and recent cases and IRS guidance featuring contradictory rulings involving dual residents. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.)  is a partner in the Tax Controversy Section of Chamberlain Hrdlicka.  He defends clients in tax audits, tax appeals, and Tax Court litigation, covering both domestic and international issues.

Things constantly evolve when it comes to U.S. tax and information-reporting duties for foreign trusts. A major challenge for taxpayers is keeping up with all the changes because they derive from different sources, in different contexts, at different times. In an effort to clarify and update matters, this article offers a summary of foreign trust rules, followed by a chronological review of the latest enforcement actions, relief measures, cases, regulations, and more. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.)  is a partner in the Tax Controversy Section of Chamberlain Hrdlicka.  He defends clients in tax audits, tax appeals, and Tax Court litigation, covering both domestic and international issues.

  Many taxpayers parting ways with the United States must file Form 8854 (Initial and Annual Expatriation Statement). Failure to do so is problematic because it can expose taxpayers to the notorious “exit tax.” Few people have seemed to notice, but significant changes might be on the way. This article analyzes worldwide obligations of U.S. individual taxpayers, exit taxes, foundations for Form 8854 filing duties, legislative proposals for increased enforcement, a recent case invalidating the IRS document that introduced Form 8854, and IRS actions in other contexts where the courts have shot down administrative guidance. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.)  is a partner in the Tax Controversy Section of Chamberlain Hrdlicka.  He defends clients in tax audits, tax appeals, and Tax Court litigation, covering both domestic and international issues.

For lovers of tax controversy, disputes between taxpayers and the IRS over Malta pension plans should be legendary. In short, taxpayers followed the letter of the law ( i.e. , the specific terms of the US-Malta treaty), the IRS detested the result, and now the IRS is implementing aggressive measures, including some that supposedly have retroactive effect. This article explores general U.S. tax treatment of foreign retirement plans, key concepts of the treaty, positions claimed by U.S. taxpayers, initial enforcement actions by the IRS, significance of the Competent Authority Arrangement, effect of the Proposed Regulations on various persons, and potential paths for taxpayers at this juncture. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.)  is a partner in the Tax Controversy Section of Chamberlain Hrdlicka.  He defends clients in tax audits, tax appeals, and Tax Court litigation, covering both domestic and ...

  Taxpayers with Canadian retirement plans have long faced tricky issues when it comes to U.S. income taxes and information-reporting duties. As the situation evolved over time, the IRS issued several pieces of guidance that facilitated tax-deferral and decreased disclosure obligations. The IRS ultimately announced that it would grant automatic, retroactive and prospective, tax-deferral elections. Nonetheless, the IRS continues to challenge taxpayers who fall into non-compliance. This article explains the normal tax and reporting requirements for taxpayers with worldwide reach, special rules applicable to Canadian retirement plans, evolution of solutions offered by the IRS, and a recent Tax Court case highlighting all the key issues. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

  Certain U.S. individuals who cease their relationship with the United States must pay an “exit tax.” One major problem is that some taxpayers intentionally fail to file Form 8854 (Initial and Annual Expatriation Statement) to notify the IRS of their departure, keep a low profile for a few years, and thus dodge the exit tax. Other taxpayers, particularly so-called accidental Americans, do not maintain U.S. tax compliance or properly expatriate for less nefarious reasons. The current Presidential Administration has suggested changes for both categories of taxpayers. This article analyzes the exit tax, an IRS relief program for individuals who incorrectly expatriated in the past, and pending proposals. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

Imagine a world where you could create a retirement plan in a foreign country with which you have no affiliation, contribute appreciated property to such plan without triggering immediate taxation, face no limitations on the contributions you can make, defer taxes on the accretion inside the plan, start taking distributions as early as age 50, and avoid tax on the majority of the distributions from the plan. Many U.S. taxpayers, relying on flexible interpretations of the bilateral treaty between Malta and the United States, took these positions for several years. The IRS put its proverbial foot down in late 2021, announcing that taxpayers were misconstruing the treaty, and that the IRS was committed to pursuing those who participated in or promoted such abuses. This article explains general U.S. tax treatment of foreign pensions, key aspects of the treaty, examples of taxpayers claiming auspicious results, terms of the recent Competent Authority Arrangement designed to halt future act...

Voluntary compliance is a hallmark of the U.S. tax system; taxpayers are expected to proactively file all returns with the IRS and pay all amounts due. Many taxpayers fail to meet that commitment, of course. This is where whistleblowers come into play. If they can provide data to the IRS that leads to the collection of taxes, penalties, and interest from non-compliant taxpayers, they stand to receive a percentage of the take. This financial reality has incentivized whistleblowers to bring to the IRS’s attention taxpayers falling into various categories, including “accidental Americans.” This article explains obligations of U.S. persons with foreign activities, describes the exit tax, identifies a special relief program for former U.S. citizens, summarizes the whistleblower process, and examines a recent Tax Court case that brings these concepts together. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the...

Creating foreign entities to safeguard assets is not necessarily problematic for U.S. taxpayers, but failing to characterize them appropriately sure is. Taxpayers have utilized foreign vehicles called “stiftungs” for decades. Various court decisions and administrative rulings over the years have concluded that certain stiftungs should be treated as trusts. This triggers the duty for taxpayers to file several information returns with the IRS, the most critical of which are Forms 3520 and Forms 3520-A. Violations lead to large penalties, endless assessment periods, and other things taxpayers want to avoid. This article defines the concept of foreign trusts, chronicles the major cases and IRS rulings from 1955 to the present, explains the IRS’s foreign trust compliance campaign, and explores potential relief for taxpayers thanks to a recent Revenue Procedure. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in t...

  The IRS normally must identify non-compliance within a short period, which can be tricky if the relevant matters occurred abroad. Taxpayers who have failed to report worldwide income and assets, either accidentally or on purpose, hope that the proverbial clock runs out before the IRS takes action. This sometimes happens in domestic cases, but much less often in the international context. This article, using several recent Tax Court cases as a springboard, examines three tools at the IRS’s disposal for expanding assessment-periods against taxpayers with international violations. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

  Kicking people when they are down is one thing, but doing it repeatedly is another. Several recent cases demonstrate that the IRS is doing exactly that. This process, often referred to as “stacking” penalties, means imposing multiple sanctions against the same taxpayer, for the same year, in connection with the same problem. The article explains common U.S. international tax duties, the current “compliance campaign” focused on foreign trusts, and two recent cases showing how the IRS uses penalty stacking as a serious enforcement tool. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

  Panicked people do not think clearly, and this applies to taxpayers facing large IRS liabilities. Some assume that they can escape unharmed if they can just keep the IRS at bay until they die or if they simply move their assets abroad. These theories sound good, but they are wrong because the IRS and courts have many tools for pursuing tax debts from parties related to deceased taxpayers and from those who make a run for it. This article explains international obligations that trigger liabilities, recent cases where the IRS pursued surviving spouses, executors, trustees, and fiduciaries, and the use of Repatriation Orders over time. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

Globalization is triggering more tax disputes with the IRS, and winning such clashes requires knowledge of both substantive international tax law and complicated procedures. A good example is Mattson v. United States. That case involves U.S. citizens working overseas, claims for special tax benefits for expatriates, the effect of Closing Agreements, novel interpretations of treaties, refund actions and procedural twists. Using Mattson as a starting point, this article shows how international tax and tax procedure often converge in modern battles with the IRS. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

Substance is important, but procedure is often king when it comes to disputes with the IRS. This is what taxpayers facing large penalties for not reporting foreign accounts have discovered. FBAR duties are not contained in the tax code, yet the quintessential tax agency, the IRS, audits potential violations and asserts penalties. Such disconnect has sparked a number of questions, most of which center on whether FBAR penalties can be treated as a “tax” for certain purposes. This article examines origins of the FBAR, delegations of power, key tax provisions, and four noteworthy cases providing guidance on how, when, and where to fight FBAR penalties. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

Failure by foreign corporations to file Forms 1120-F (U.S. Income Tax Return of a Foreign Corporation) triggers extreme problems. Specifically, in addition to asserting normal penalties for late filing, late payment, and late information returns, the IRS disallows business-related deductions and credits that corporations normally could claim. Thus, the IRS imposes taxes on gross income, instead of net income. This outcome is particularly harsh when one considers that many fledgling businesses operate a net loss for several years. This article explains U.S. filing duties of foreign corporations, the result in a recent Tax Court case, Adams Challenge v. Commissioner , and solutions still available to non-compliant foreign corporations. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.

  Litigation over unreported foreign account is unpredictable. Many rejoiced in 2017 when a District Court determined in Bedrosian v. United States that the taxpayer was not “willful” in failing to declare a large Swiss account. They were down, though, when the same District Court, on remand, reluctantly held that the taxpayer acted “recklessly,” which sufficed. Less than one month later, the government agreed to settle willful FBAR penalty case at the last minute in Jones v. United States. Details of the settlement are confidential, but logic dictates that the government, after a string of FBAR victories and a win in Bedrosian, would not concede anything, unless it had real concerns about losing and setting precedent favorable to taxpayers. The enclosed article describes the applicable law, the two notable FBAR decisions, and where things stand with respect to willfulness. Read the full article here.   About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., L...

  In fighting the battle against offshore tax avoidance, the U.S. government has raised some creative arguments to establish that a taxpayer “willfully” failed to disclose foreign accounts by filing FinCEN Forms 114 (“FBARs”). These include the concept of “constructive knowledge,” whereby the U.S. government contends that, because Schedule B (Interest and Ordinary Dividends) of Form 1040 (U.S. Individual Income Tax Return) specifically asks about foreign accounts, because Schedule B directs taxpayers to additional sources of information about foreign account duties, and because taxpayers must sign their Forms 1040 declaring that they have reviewed the entire Form 1040, including all Schedules and Statements attached, any FBAR violation must be “willful” and thus subject to the highest possible penalty. This notion sounded absurd to many in the tax community at the outset, but it has been embraced by several courts. Not all courts have accepted the position, though, giving hope to ...

A long list of cases over the past decade have centered on the proper definition of “willfulness” in the context of penalties for an unfiled, incomplete, or inaccurate FinCEN Form 114 (Report of Foreign Bank and Financial Accounts) (“FBAR”). However, those cases did not address some key issues, including (i) whether the Internal Revenue Service, with help from the Department of Justice (“DOJ”),can assess and/or collect penalties after the taxpayer who committed the FBAR violation dies, and (ii) if so, against whom can the IRS and DOJ take action, the deceased individual, a surviving spouse, the executor of the estate, beneficiaries of the estate, transferees, others? This article analyzes a series of recent cases centered on post-death actions by the IRS and DOJ, giving special attention to the question of the survivability of FBAR penalties. Click here to read the full article. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the T...

  Attention has been focused recently on conservation easement donations, micro-captive insurance, virtual currency, and other “hot” topics. Although not dominating the news cycle any longer, plenty of taxpayers continue hiding foreign assets, and the Internal Revenue Service (“IRS”), with help from the Department of Justice (“DOJ”), still aggressively pursues them. What is remarkable about these international actions is that they sometimes trigger three interrelated disputes, occurring in three different venues, and generating three potentially large liabilities. Read the full article here. About Hale E. Sheppard HALE E. SHEPPARD, Esq. (B.S., M.A., J.D., LL.M., LL.M.T.) is a Shareholder in the Tax Controversy Section of Chamberlain Hrdlicka and Chair of the International Tax Group.