Skip to content
Tax Law Center Blog

Tax Law Center Blog

  • Tax & Foreign Assets
    • Tax Law Services
    • Foreign Asset Planning
  • About
  • Contact Us
Close Button

“Willfulness” When Deciding Whether to Opt Out of 2011 OVDI

11 July, 2011

The IRS recently posted guidance in its OVDI FAQs (#51) whether taxpayers should opt out of the 2011 Voluntary Disclosure Initiative’s (the “OVDI”) civil penalty structure.  Taxpayers who participate in the OVDI, but feel that their failure to file the FBAR form on an annual basis was “non-will”, may considering opting out. Who makes the determination as to willfulness and how is the determination made?

IRS Makes the Initial Determination

If a taxpayer elects to opt out of the OVDI, the IRS agent reviewing the case will send a letter to the taxpayer instructing the taxpayer to provide a written statement setting forth the facts of the case and a recommendation of the penalties that should apply. The election to opt out of the OVDI is irrevocable, so it must be carefully and strategically considered and made.  Hence, our law firm’s representatives hope to be able to tentatively ascertain (at least verbally) how the agent feels about recommended opt out penalties before the irrevocable opt out election is made.

After the opt out election is made, the agent then prepares a summary of the case and makes a penalty recommendation to a group of managers, termed the centralized review committee.  The committee then makes a determination as to what penalties, if any, should apply.

If a taxpayer does not agree with the centralized review committee’s determination, then the taxpayer is entitled to file an appeal with the IRS’s Appeals Division. The appeals officer will give the taxpayer an opportunity to present his case, conduct an appeals conference, and issue a decision. As far at the IRS is concerned, the appeals decision is the end of matter. However, in order to collect FBAR penalties, the government must file suit. In response to the suit, the taxpayer can ask the court to determine whether the penalty should have been assessed. Thus, a taxpayer can possibly force the government to prove that the taxpayer willfully failed to file the FBAR form.

Patel Law Offices is a law firm dedicated to helping clients resolve  complicated tax, criminal tax, and international tax problems. Our firm assists (and defends) clients and their advisors to legally disclose (and legitimize) foreign accounts.

Related Posts

  • Reasons to Opt Out of the 2011 OVDI Program

    Top 4 Reasons to Opt Out of the 2011 OVDI Program 1. The IRS Taxpayer…

  • Top 10 factors to consider before deciding to opt out of OVDI or OVDP

    While opting out of the OVDI or OVDP amnesty programs may result in a reduction…

  • Reasons to Opt Out of the 2011 OVDI Program

    Top 4 Reasons to Opt Out of the 2011 OVDI Program 1. The IRS Taxpayer…

Tags: amnestyAsset Protection FBAR foreign account hsbc offshore opt out ovdi voluntary disclosure
Category: Planning for Tax Minimization

Post navigation

Previous: What HSBC India Accountholders Can Expect From the IRS
Next: In Addition to HSBC, Credit Suisse Also Being Investigated for Offshore Activities

Related Posts

IRS Announces New Clarifying FAQs for Streamlined Offshore Compliance Program

The IRS updated its streamlined offshore compliance program to provide…

Read More

Do Inherited Foreign Assets Receive a Step-up in Cost Basis for U.S. Tax Purposes?

A common question asked by clients when receiving an inheritance…

Read More

Watch Out: Malta Pension Plans Become Listed Transaction

Last week, in a government notice of proposed rulemaking (REG-106227-22),…

Read More

Recent Posts

  • Is Turbotax Reliance a Valid Defense Against IRS Penalties?January 28, 2026
  • New Proposed IRS Voluntary Disclosure Practice (VDP): FAQsJanuary 20, 2026
  • Second Circuit Affirms Recklessness Standard for Willful FBAR PenaltiesJanuary 16, 2026
  • Top Tax Strategies for the 2026 LandscapeJanuary 8, 2026
  • Navigating the High Penaties of Delinquent Form 3520 FilingsJanuary 3, 2026

Pages

  • About Patel Law Offices
  • Delinquent FinCen Form 114 (FBAR) Filings
  • Delinquent or unfiled IRS Form 5471
  • Request A Free Educational Consultation

Law Firm Attorney WordPress Theme By Themespride