Tax Law Center Blog

By Parag P. Patel, Esq. | Updated August 17, 2021

The IRS has announced a Streamlined Domestic Offshore Procedures (SDOP), which will significantly alter all future voluntary disclosures. The SDOP is a game changer for residents and non-resident (who would use the Streamlined Foreign Offshore Procedures (SFOP)) taxpayers alike.

The SDOP liberalizes the old rules and rewards non-willful taxpayers to disclose offshore assets with minimal tax and a lower penalty. The SDOP requires filing only three years of amended income tax returns and assesses a 5% penalty of the highest account balance. In comparison, the current OVDP program requires eight years of returns and a 27.5% penalty.

The SDOP mimics, but significantly and radically expands, the old Streamlined Program for Non US-residents, which was narrowly only for non-filers with less than $1500 of unreported income.  Once a taxpayer elects the SDOP (and consequently claims his violations were non-willful), he is no longer eligible for the OVDP.  Therefore, very careful analysis of a taxpayer’s eligibility for SDOP is very important. Risk factors including possible evidence of willfulness, such as knowledge and intent of laws and violations thereof, need to be carefully analyzed.  While taxpayers in the SDOP are not automatically audited, an SDOP filing is subject the possibility of normal audit selection. Under such audit, the taxpayer should be prepared to defend the SDOP filing and demonstrate non-willfulness and absence of fraud.

An SDOP submission must include the following:

–          Three years of most recent amended tax returns with “Streamlined Domestic Offshore” written in red to indicate that the returns are being submitted under these procedures.

–          A fully executed Certification by U.S. Person Residing in the United States  for Streamlined Domestic Offshore Procedures.  Since the IRS asks for the specific reasons for the failure to report all income, pay all tax, and submit all required information returns, including FBARs, qualified experienced legal counsel should carefully draft this document based on your situation.

–          All tax and interest payments.

–          The 5% miscellaneous offshore penalty.

–          If applicable, a statement regarding relief for failure to timely elect deferral of income from certain retirement plans where deferral is permitted by an applicable treaty (this generally applies to Canadian retirement accounts, i.e., RRSPs).

–          A statement that FBARs are being filed online via the FinCen web portal.

In summary, taxpayers with undisclosed offshore accounts (including current OVDI/OVDP participants and silent disclosers) should fully explore the SDOP and consider filing a carefully drafted SDOP submission.

The IRS detailed announcement of the SDOP follows below:

Eligibility for the Streamlined Domestic Offshore Procedures

In addition to having to meet the general eligibility criteria described above, individual U.S. taxpayers, or estates of individual U.S. taxpayers, seeking to use the Streamlined Domestic Offshore Procedures described in this section must:  (1) fail to meet the applicable non-residency requirement described in section 2.A. above (for joint return filers, one or both of the spouses must fail to meet the applicable non-residency requirement described in 2.A. above); (2) have previously filed a U.S. tax return (if required) for each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed; (3) have failed to report gross income from a foreign financial asset and pay tax as required by U.S. law, and may have failed to file an FBAR (FinCEN Form 114, previously Form TD F 90-22.1) and/or one or more international information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621) with respect to the foreign financial asset, and (4) such failures resulted from non-willful conduct.  Non-willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law.

For information on the meaning of foreign financial asset, see the instructions for FinCEN Form 114and the instructions for Form 8938.

Description of Scope and Effect of Procedures

U.S. taxpayers (U.S. citizens, lawful permanent residents, and those meeting the substantial presence test of IRC section 7701(b)(3)) eligible to use the Streamlined Domestic Offshore Procedures must (1) for each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed (the “covered tax return period”), file amended tax returns, together with all required information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621), (2) for each of the most recent 6 years for which the FBAR due date has passed (the “covered FBAR period”), file any delinquent FBARs (FinCEN Form 114, previously Form TD F 90-22.1), and (3) pay a Title 26 miscellaneous offshore penalty. The full amount of the tax, interest, and miscellaneous offshore penalty due in connection with these filings should be remitted with the amended tax returns.

The Title 26 miscellaneous offshore penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period. For this purpose, the highest aggregate balance/value is determined by aggregating the year-end account balances and year-end asset values of all the foreign financial assets subject to the miscellaneous offshore penalty for each of the years in the covered tax return period and the covered FBAR period and selecting the highest aggregate balance/value from among those years.

A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty in a given year in the covered FBAR period if the asset should have been, but was not, reported on an FBAR (FinCEN Form 114) for that year. A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty in a given year in the covered tax return period if the asset should have been, but was not, reported on a Form 8938 for that year. A foreign financial asset is also subject to the 5-percent miscellaneous offshore penalty in a given year in the covered tax return period if the asset was properly reported for that year, but gross income in respect of the asset was not reported in that year.

For information on the meaning of foreign financial asset, see the instructions for FinCEN Form 114and the instructions for Form 8938. For example, foreign financial assets may include:

1. Financial accounts held at foreign financial institutions;
2. Financial accounts held at a foreign branch of a U.S. financial institution;
3. Foreign stock or securities not held in a financial account;
4. Foreign mutual funds; and
5. Foreign hedge funds and foreign private equity funds.

A taxpayer who is eligible to use these Streamlined Domestic Offshore Procedures and who complies with all of the instructions below will be subject only to the Title 26 miscellaneous offshore penalty and will not be subject to accuracy-related penalties, information return penalties, or FBAR penalties.  Even if returns properly filed under these procedures are subsequently selected for audit under existing audit selection processes, the taxpayer will not be subject to accuracy-related penalties with respect to amounts reported on those returns, or to information return penalties or FBAR penalties, unless the examination results in a determination that the original return was fraudulent and/or that the FBAR violation was willful.  Any previously assessed penalties with respect to those years, however, will not be abated.  Further, as with any U.S. tax return filed in the normal course, if the IRS determines an additional tax deficiency for a return submitted under these procedures, the IRS may assert applicable additions to tax and penalties relating to that additional deficiency.

For returns filed under these procedures, retroactive relief will be provided for failure to timely elect income deferral on certain retirement and savings plans where deferral is permitted by the applicable treaty. The proper deferral elections with respect to such plans must be made with the submission.  See the instructions below for the information required to be submitted with such requests.

Specific Instructions for the Streamlined Domestic Offshore Procedures

Failure to follow these instructions or to submit the items described below will result in returns being processed in the normal course without the benefit of the favorable terms of these procedures.

1. For each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed, submit a complete and accurate amended tax return using Form 1040X, Amended U.S. Individual Income Tax Return, together with any required information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621) even if these information returns would normally not be submitted with the Form 1040 had the taxpayer filed a complete and accurate original return.  You may not file delinquent income tax returns (including Form 1040, U.S. Individual Income Tax Return) using these procedures.
2. Include at the top of the first page of each amended tax return “Streamlined Domestic Offshore” written in red to indicate that the returns are being submitted under these procedures. This is critical to ensure that your returns are processed through these special procedures.
3. Complete and sign a statement on the Certification by U.S. Person Residing in the U.S.certifying:  (1) that you are eligible for the Streamlined Domestic Offshore Procedures; (2) that all required FBARs have now been filed (see instruction 9 below); (3) that the failure to report all income, pay all tax, and submit all required information returns, including FBARs, resulted from non-willful conduct; and (4) that the miscellaneous offshore penalty amount is accurate (see instruction 5 below).  You must maintain your foreign financial asset information supporting the self-certified miscellaneous offshore penalty computation and be prepared to provide it upon request.  You must submit an original signed statement and attach copies of the statement to each tax return and information return being submitted through these procedures.  You should not attach copies of the statement to FBARs.  Failure to submit this statement, or submission of an incomplete or otherwise deficient statement, will result in returns being processed in the normal course without the benefit of the favorable terms of these procedures.
4. Submit payment of all tax due as reflected on the tax returns and all applicable statutory interest with respect to each of the late payment amounts.  Your taxpayer identification number must be included on your check.  Click here to get help with the interest calculation.  You may receive a balance due notice or a refund if the tax or interest is not calculated correctly.
5. Submit payment of the Title 26 miscellaneous offshore penalty as defined above.
6. If you seek relief for failure to timely elect deferral of income from certain retirement or savings plans where deferral is permitted by an applicable treaty, submit:

• a statement requesting an extension of time to make an election to defer income tax and identifying the applicable treaty provision;
• a dated statement signed by you under penalties of perjury describing:
• the events that led to the failure to make the election,
• the events that led to the discovery of the failure, and
• if you relied on a professional advisor, the nature of the advisor’s engagement and responsibilities; and
• for relevant Canadian plans, a Form 8891 for each tax year and each plan and a description of the type of plan covered by the submission.

7. The documents listed above, together with the payments described above, must be sent in paper form (electronic submissions will not be accepted) to:Internal Revenue Service
   3651 South I-H 35Stop 6063 AUSC
   Attn:  Streamlined Domestic Offshore
   Austin, TX 78741

   This address may only be used for returns filed under these procedures.  For all future filings, you must file according to regular filing procedures.  

8. For each of the most recent 6 years for which the FBAR due date has passed, file delinquent FBARs according to the FBAR instructions and include a statement explaining that the FBARs are being filed as part of the Streamlined Filing Compliance Procedures.  You are required to file these delinquent FBARs electronically at FinCen.  On the cover page of the electronic form, select “Other” as the reason for filing late.  An explanation box will appear.  In the explanation box, enter “Streamlined Filing Compliance Procedures.”  If you are unable to file electronically, you may contact FinCEN’s Regulatory Helpline at 1-800-949-2732 or 1-703-905-3975 (if calling from outside the United States) to determine possible alternatives to electronic filing.

Our firm presented an informational webinar on the Streamlined Filing Compliance Procedures. Materials from the webinar can be downloaded here: Game Changer Streamline.

About the Author

Parag P. Patel, Esq. brings over three decades of experience to individuals and businesses facing complex tax problems. Holding advanced degrees from Georgetown University Law Center (J.D.) and New York University School of Law (LL.M. in Tax Law), the nation’s top tax programs, Mr. Patel delivers sophisticated and creative strategies in complicated federal and state audits, penalty abatements, and foreign asset/income reporting. His practice emphasizes international tax matters, specifically foreign financial account reporting (FBAR), voluntary disclosures, and penalty defense.

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