The Shape of Tax to Come

A Tax & Estate Planning blog for 21st-century Texans

IRS offers new procedure for US expats to correct their failures to file

In I.R.S. News Release 2012-65, the IRS announced a new procedure for US taxpayers living outside of the USA to correct existing failures to file tax returns, information returns, and FBARs. You’ll need to pay your back taxes and interest. The details are not yet finalized, and the procedure will not start until September 1 4, 2012.   The intensity of the review will depend on the compliance risk posed by each taxpayer’s situation (i.e., more attention will be paid to “whales” than will be paid to “minnows”). Participating in this new procedure will not necessarily prevent criminal prosecution by the IRS or DOJ.


  • The IRS finally gets around to recognizing that citizenship-based taxation (which also covers non-citizen green-card holders) creates a problem for people who have left. As long as U.S. taxpayers are required to file full tax returns, plus extra information returns to report their foreign accounts, the IRS should expect to have non-compliance problems.
  • If an expat has stayed out of the IRS’s way this long and has no plans of coming back to the U.S.A., why would he or she announce a problem to the IRS?
  • The goal should be recognizing that once these people leave, we are better of letting them go instead of trying to squeeze them for revenue. But that would just might make sense. . .

The Gory Details (Abridged)

Perhaps as a result of someone telling them to be nice, the IRS today announced a new procedure for obvious tax cheats U.S. taxpayers living abroad who haven’t filed all of their returns. If you’re a US taxpayer living outside of the USA, then this procedure will allow you to file past-due federal tax returns and Reports of Foreign Bank and Financial Accounts (FBARs), pay your taxes, and get on with your life (maybe).

The new procedure won’t start until September 1, 2012, and the details haven’t been finalized. (Given that September 1 is the Saturday before Labor Day,  I guess they mean September 4.) As part of the new procedure, you’ll need to file past-due tax and information returns (if any) for 2009, 2010, and 2011, and file delinquent FBARs going back to 2006. You’ll also need to pay any tax and interest that are due.

The IRS has not yet decided if you need to tell them why you were such a misguided fool as to think you could escape them.  But if you are going to make a reasonable-cause argument for your failures to file, you will need need to submit statements detailing why you have reasonable cause. If you have a Canadian RRSP, then you’ll have some special requirements, too.

The intensity of the IRS’s review of your situation will be determined by the level of “compliance risk” you pose. Basically, the IRS will quickly review and process “low compliance risk” taxpayers (i.e., “minnows” owing less than $1,000 in taxes per tax year, according to the release). Once processed, the low-compliance-risk taxpayers will be allowed to go on with their lives without additional penalties.  But “higher compliance risk” taxpayers (e.g., “whales” or “traitors”) will almost certainly be guaranteed to have their back molars inspected by the IRS, including a review of more than three years of returns (but probably not more than six).

Participating in this procedure will not necessarily stop the IRS or DOJ from bringing a criminal prosecution if they determine that your “particular circumstances warrant such prosecution.” So, this procedure may not be the best option if you (and your advisers) think you may be facing criminal charges.

Read more here and here

June 26, 2012 Posted by | Uncategorized | , , , | Leave a comment

Private Foundations

Even in this down economy, many people want to give back to their communities. While giving to an established charity is the easiest course, some people want to be more involved in operations. As a result, they will establish their own private foundation so that they can direct the charitable operations. In this post, I’ll briefly discuss some of the benefits and burdens of private foundations.

Benefits of a Private Foundation

The biggest benefit of setting up a private foundation is that donors have more, if not complete, control of the charitable purpose if they remain involved in the foundation. If a donor wanted to give scholarships to children from a certain area and wanted to meet each applicant, it is possible to set up a private foundation to do that. Or, if the donor wanted to donate money, then hire someone else to ensure that the right people benefit, that can also be done.

A second benefit is that it allows donors to determine their level of recognition for their efforts. For example, if a donor named David Adams wanted to name his private foundation “The David Adams Children’s Education Foundation” to ensure that he received credit for his charitable efforts, then Mr. Adams could do that. Or, if he was not interested in the recognition, Mr. Adams could name his foundation “The Nueces County Educational Foundation.” In either case, Mr. Adams has the freedom to choose.

A third benefit of private foundations is that they provide a formal structure to administer a donor’s charitable giving. In effect, the foundation provides a strategic buffer between an affluent family and the many charities who seek contributions. This allows the family to direct all charitable requests to a single entity instead of dealing with each request as it comes in. If the family has a lot of requests, the time saved by establishing the private foundation may justify the expense.

While these are not all of the reasons, they encompass the big reason to set up a private foundation: greater control over the funds.

Burdens of a Private Foundation

While there are significant benefits to creating a private foundation, there are a lot of burdens that go along with it.

First, donations to a charitable foundation only qualify for the 30% charitable deduction instead of the 50% charitable deduction. This means that if a donor made a gift to a public charity, he would receive a greater charitable deduction on his taxes than he would if he made the same gift to a private foundation. So, if the charitable donation is part of the goal, a private foundation may not be the best answer.

Second, private foundations are subject to much tougher restrictions and penalties. Because Congress thinks that private foundations are more likely to abuse their tax-favored status, private foundations must comply with rules regarding self-dealing, excessive ownership of business interests, investments, income distribution requirements, and lobbying. This list is not exhaustive, but it gives you an idea of what to keep in mind when considering a private foundation.

Third, as implied above, a private foundation is neither a low-cost nor an easy option. Because of the costs involved in establishing and maintaining the tax-exempt status of a private foundation through various detailed tax filings, it may not be worth the cost in time and money for a donor.


Private foundations provide a lot of good in this country, and despite the burdens, many donors consider a foundation the best option for their charitable purposes. But before settling on a private foundation, a donor should consider whether the burdens will outweigh the benefits.

November 27, 2011 Posted by | Uncategorized | , | Leave a comment

How Long Should You Keep Records?

I was part of a recent twitter discussion about how long people should retain records. While most of the responses were three years, I thought that seven years was a better answer and that ecopies should be retained in any case.

Based on my experience as a tax attorney, I have dealt with this issue before, and explaining my reasons in 140 characters was not going work well. I understand why people will say three years, but I don’t agree, and I want spend a little digital ink to explain my answer.  I’ll finish with a recommendation on how you can avoid drowning in your paperwork.

Why Three Years Isn’t Wrong

Three years is not a wrong answer, but it isn’t the best answer. Three years comes up because the statute of limitations on reviewing a tax return is three years. This means that after you have filed your return, the IRS has three years to review your return and let you know if they have a problem. After the three years are up, the IRS can no longer review your return, even if your return has mistakes in your favor. This limit fosters administrative efficiency by keeping the IRS from getting bogged down in reviewing every return.

This time that the IRS has to review your return, known as the “limitations period,” will start running on the later of the date that you file your return, or the date that your return is due. So, if you file your 2011 tax return on January 1, 2012, and the return is due on April 15, 2012, the limitations period will expire on April 15, 2015. But if you file your 2011 return on June 30, 2012, the limitations period will not expire until June 30, 2015.

So, saying that three years is the answer is based on the basic limitations period. But the problem with this answer is that it does not take into account the IRS’s ability to extend the limitations period in some situations. Essentially, you’re betting that the IRS will not have, or will not look for, a reason to extend the limitations period. Granted, this does not affect most people, but it may affect you, in which case you will be glad that you still have your records. Well, how long can the IRS extend it?

Why Six Years Is a Better Answer

While three years is not wrong, it’s better to hold on to your records for at least six years. Even though the basic limitations period is three years, the IRS can extend it to six years if there is a 25%  deficiency between the amount that should be reported on the return and the amount that actually reported on the return. The IRS can extend the limitations period because the IRS has a harder time detecting these problems, and so they should have more time to investigate them.

As an example, if a taxpayer reported his gross income as $85,000, when he should have reported $160,000, this would be a deficiency of $75,000. As a result, the deficiency is 88% ($75,000/$85,000), and the IRS could extend the statute of limitations. However, if the taxpayer had reported his gross income as $85,000, but it should have been $89,000, there would be a deficiency of $4,000. Because this is a 4% deficiency ($4,000/$85,000), the IRS could not extend the limitations period.

I’m a bigger fan of six years over three years for two reasons. First, the IRS has been litigating cases recently to extend the limitations period to six years. Just knowing that they are fighting for this means that it is a possibility that they could make the same claim against you.

Second, my practice includes foreign tax compliance work, and we have used the six-year limitations period as a guide for how far back we should file amended returns. Because most Americans, and many accountants and tax attorneys, are unaware of the full range of required filings, it is not uncommon for people to find that they have filed incomplete returns for a particular year. So, as part of filing completed returns, we will file amended returns for six years to cover the six-year limitations period. We want to be upfront about the full situation when we file the returns, instead of possibly looking like we have something to hide.

Why I Said Seven Years

Before answering, I took a look at what the IRS has to say on the matter. On their website, the IRS recommends retaining records for seven years if you have claimed for a loss from worthless securities or bad debt deduction. While I don’t have direct experience with this particular limitations period, it may apply to some people. Due to the limitations of 140 characters, I didn’t point exactly to this reason, but there you are.

And Why You Should Really Keep Your Records Indefinitely

As you can see on the linked page, there are two situations in which the IRS recommends that you retain records indefinitely: if you don’t file a return or if you file a fraudulent return. These reasons should not cause concern for the vast majority of taxpayers, and they’re not the reasons I think that holding on to records indefinitely is the best answer. Instead, I think you need to hold on to records indefinitely because you just don’t know when you’ll need them.

Tax returns are a great source of information about what you were doing and what was happening in your life. Earlier this month, I reviewed four estate tax returns, totaling more than 1,000 printed pages, for a family to sort out which family members owned a particular piece property. Two of those estate tax returns were filed in 1992. If we didn’t have those records on hand, I simply could not have figured out who owned the property. So, by keeping those records around, I able to solve our clients’ problem.

Managing Your Records

Right now, you’re thinking that you don’t have space for all of your records. That would be true if you had to keep physical copies of everything. But that is no longer the case.

Computers can easily store vast amounts of information. With a scanner, you can import and save your documents. If you don’t want to hold on to the documents any longer, you have a scanned copy to rely on, and you can dispose of the original. If you are going this route, I’d suggest having an online backup of the document just in case. Personally, I use Evernote to store my documents. Another alternative is to email your documents to a dedicated gmail account.

November 27, 2011 Posted by | Uncategorized | , , | Leave a comment

Forbes: Goodbye GRATs?

As detailed in a Forbes article, President Obama would like to reign in the use of Grantor Retained Annuity Trusts (GRATs) as a vehicle to pass wealth in estate planning as part of the 2011 budget process. It certainly does not hurt that the Joint Committee on Taxation thinks that these changes will bring approximately $4.45 billion into the treasury over the next 10 years.

Properly utilized, GRATs allow grantors to pass large sums to future generations without the imposition of either the gift tax or the estate tax. While GRATs provide an income stream for the grantor as well as a freezing the value of the assets that are contributed, they require that the grantor have a plan for other income after the term has run on the GRAT.

GRATs reduce the value of the gifted property because the grantor retains an income interest in the trust in the form of an annuity payment, while the remaindermen receive a future interest in the property. As the remaindermen are receiving a future interest in the property, the transaction is not subject to the gift tax.

As part of H.R. 4849, section 2702 of the Code would be amended to include the following:

(2) ADDITIONAL REQUIREMENTS WITH RESPECT TO GRANTOR RETAINED ANNUITITES – For purposes of subsection (a), in the case of an interest described in paragraph (1)(A) (determined without regard to this paragraph) which is retained by the transferor, such interest shall be treated as described in this paragraph only if –

(A) the right to receive the fixed amounts referred to in such paragraph is for a term not less than 10 years,

(B) such fixed amounts, when determined on an annual basis, do not decrease relative to any prior year during the first 10 years of the term referred to in subparagraph (A), and

(C) the remainder interest has a value greater than zero determined at the time of the transfer.

If signed into law, this language would require that GRATs have a 10-year minimum length before qualifying for the valuation treatment under section 2702. Under current law, there is no minimum length for the term of a GRAT.

Typically, GRATs are set up for terms shorter than ten years, ranging from two to five years. Planners will use longer terms to achieve better tax treatment, though there is always the risk that the grantor will not live long enough to see the end of that term.

An additional result of the legislation is that “zeroed-out” GRATs will not longer be available as a planning technique. The GRAT will have to leave some amount as a gift to the beneficiaries, which will require the grantor to use up some portion of the $1 million lifetime gift tax exemption with the residual gift. Congress has sidestepped making this decision, and will grant Treasury the ability to write legislative regulations to cover the required minimum amounts.

The take-away lesson here is that if you are thinking about setting up GRATs as part of your estate plan, now is the time to get them in place. The current Congress is in the mood to increase taxes, and there is no way of knowing when these changes will be implemented. Even if the law is passed this year, it may well be years before we have regulations indicating what a minimum gift amount might be.

There is an open question remains as to the treatment of the GRAT if the grantor dies during the term. Should the entire trust corpus be included in the gross estate because it was the grantor’s property; should the full amount be excluded from the gross estate because the grantors interest was solely in the annuity, an interest that is now worth zero; or should only a portion be included in the gross estate to reflect that the grantor had less than a complete interest in the trust corpus? There is support for all three positions, though nobody has been willing to take such a case to court yet.

Read the full article here.

March 30, 2010 Posted by | Uncategorized | , , | Leave a comment

Texas, We have $114M That Belongs to You. Regards, IRS

The IRS is reporting that there is $114M waiting for Texans that have not filed their 2006 tax returns yet. If those 2006 returns are not filed by April 15, 2010, then taxpayers will not be able to claim the refunds and the money will revert to the government.

The Code has limitation periods to promote efficiency. After three years, the records are closed. This promotes efficiency for both the taxpayer and the IRS, as neither will be expected to deal with an tax year long after it has closed. It also has some harsh effects, as will be seen in twenty days.

Many people fail to file for various reasons. The $114M that the IRS is currently holding is likely in large part from automatic withholding from paychecks. If those people had more than was necessary withheld, that money is rightfully theirs. However, if they do not claim it within the three-year period, they will lose the right to claim the refund. It is a harsh rule, but easily avoidable.

Read the whole article here.

March 26, 2010 Posted by | Uncategorized | , , | Leave a comment

33 States Have Raised Taxes

The Center of Budget and Policy Priorities has released a new study titled “State Tax Changes in Response to the Recession.” As a result of the recession, state tax revenues have dropped $87 billion, or 11% overall. In an effort to recoup these losses, states have been raising taxes.

To recoup lost revenue, states have taken such actions as eliminating tax exemptions, broadening tax bases, and in some cases increasing rates as well as raising a number of fees. Doing so is part of an established pattern; states historically have turned to revenue increases as part of the response to recessions. They have found that raising new revenue provides more short-term economic benefit than relying only on spending cuts and does not have an adverse impact on longer-term economic performance.

The result of these tax increases has not been to offset all of the losses, but only to make up a fraction of the lost tax revenue.

In 33 states, tax changes are increasing annual revenues, relative to what the state otherwise would have collected, by $31.7 billion. Even after accounting for a few states that lowered taxes, net tax changes for 2008-2009 total $29.7 billion in expected revenues, or 3.8 percent of total state revenues. The difference between the fall-off in revenues and the limited impact of the tax actions enacted is shown in Figure 1.

Figure 1

Map of State Tax Increases

Read the full story, which includes a breakdown of the different types of taxes raised, here.

March 9, 2010 Posted by | Uncategorized | | Leave a comment

Drop in Estate Planning Indicates Wrong Planning Focus

In a startling display of lack of foresight on the part of the American public, a recent survey from shows that only 51% of the public has estate planning documents. Part of the reason cited for the drop is that the economic downturn has made planning more difficult. While the economic downturn is a reason, this is not a satisfactory one.

True, not knowing what the value of your assets will be over the course of the coming years will make planning more difficult. However, financial management of assets such as this is not the only reason to plan your estate. In many cases, the financial aspects of the estate plan are not the primary reason for planning. Taking care of your loved ones and ensuring that you don’t leave a legacy of conflict will be much more important than any pecuniary amount left behind.

By taking the time to carefully plan out your estate, you will have a plan in place when something happens to you. Many of the choices made will not be impacted by the financial markets. If you are incapacitated, there is no direct answer to the question “who is in charge here?” By taking the time to determine who your guardians are, you can save your family the time and expense, both monetary and emotional, of arguing over control of you. Having the living will or advance directive in place will ease tensions regarding medical treatment. And both you and your family will be able to rest easy knowing that the decisions made were made in line with your wishes.

And what estate plan would be complete without providing for the care and upbringing of your children? Knowing the persons to whom you want to entrust the care of your children in the case of your death is possibly one of the most important decisions that parents can make in planning for their estate. It is certainly the decision that takes up most parents’ time. Would you rather your family spend time in court arguing over custody of the children? Is no plan really the best plan?

The bottom line is that planning your estate has more to do with items that are unrelated to the state of the markets. It is far better to have a plan that takes care of the things that truly matter, you and your family, than the items that are affected by market shifts.

Decline in Estate Planning

Read the full article here.

March 2, 2010 Posted by | Uncategorized | , , | Leave a comment

Steven Colbert on the Estate Tax Repeal

Colbert, in his own fashion, gets to one of the main issues with the current estate tax. 
Is it better to have somebody die now and avoid paying the estate tax?  Based on what happened during the Clinton administration, it is not a far cry to expect that any change in the law will be made retroactive to January 1, 2010.

January 26, 2010 Posted by | Uncategorized | , , | Leave a comment

New York Times: Why Can’t the IRS Help Fill in the Blanks?:

For many taxpayers, filing out simple returns is still a major chore.  There has been a growing movement to have the IRS provide taxpayers with pre-filled returns to take much of the headache out of the return process.

Requiring taxpayers to file returns without being told what the government already knows makes as much sense “as if Visa sent customers a blank piece of paper, requiring that they assemble their receipts, list their purchases — and pay a fine if they forget one,” said Joseph Bankman, a professor at the Stanford Law School.

Many developed countries now offer taxpayers a return containing all information collected by the taxing authority — to “get the ball rolling by telling you what it knows,” Mr. Bankman says.

It’s a stunningly reasonable idea. When you prepare your return, why can’t you first download whatever data the Internal Revenue Service has received about you and, if your return is simple, learn what the I.R.S.’s calculation of your taxes would be? You’d have the chance to check whether the information was accurate, correct it as needed and add any pertinent details — that you’re newly married, for example, or have a new child — before sending it. Far better to discover problems early with the I.R.S., whose say matters more than third-party software’s best guess.

The I.R.S., however, isn’t rushing to offer returns that are already filled in. In the 2009 report to Congress of its Taxpayer Advocate Service, it noted that during the 2008 presidential campaign, Barack Obama proposed giving taxpayers “the option of pre-filled tax forms to verify, sign and return.” The report said “it is not feasible at this time” because the agency receives W-2 data from the Social Security Administration and 1099 data from financial institutions too late in the filing season, “much later than most eligible taxpayers would be willing to wait.”

January 24, 2010 Posted by | Uncategorized | , | Leave a comment


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