Offshore Tax Evasion: IRS Has Collected Billions of Dollars, but May be Missing Continued Evasion
Released: 2013-04-26T00:00:00

Letter

Background

Reporting Requirements for Offshore Accounts

U.S. taxpayers can hold offshore accounts for a number of non-tax reasons, including access to funds while living or working overseas, asset protection, investment portfolio diversification, enhanced investment opportunities, and to facilitate international business transactions. U.S. taxpayers must report whether they have offshore accounts on Schedule B of IRS Form 1040 and pay taxes on income from the offshore accounts at their individual tax rates. Some taxpayers with large offshore account balances are also required to report additional account information, such as the name and location of their bank, by filing a form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR). Failure to report the existence of offshore accounts or pay taxes on these accounts can lead to civil and criminal penalties.

U.S. financial institutions are required to submit to IRS information returns that report income earned by account holders. IRS uses the information to check whether taxpayers are reporting investment earnings and other income correctly. Unlike the reporting requirements for U.S. financial institutions, there has been no reporting regime for foreign financial institutions, and this lack of information has limited IRS’s ability to ensure taxpayers were reporting offshore income accurately (see fig. 1). IRS has begun implementing provisions of the Foreign Account Tax Compliance Act (FATCA), which requires, beginning in 2015, U.S. financial institutions to withhold a portion of certain payments made to foreign financial institutions that have not entered into a specific agreement with IRS to report information on their U.S. clients. It is expected that IRS will use this information to identify noncompliant taxpayers. While IRS officials do not anticipate that FATCA will replace the offshore programs, they do believe that future programs may shift in focus to identifying promoters of offshore tax schemes that are not associated with the financial institutions that will be subject to FATCA reporting requirements.

IRS’s offshore programs were designed to encourage taxpayers with undisclosed income from offshore accounts to become current with their tax liabilities. Although the offshore programs differed in details, all four followed a cycle similar to the one illustrated in figure 2. The offshore programs fit into IRS’s larger compliance efforts, which are intended to both detect noncompliance and to encourage voluntary compliance, in part by minimizing the burden for taxpayers to understand their tax obligations and file tax returns every year.

While open and intended to attract all noncompliant taxpayers with offshore accounts, the four offshore programs to date all started with IRS identifying a particular group of taxpayers suspected of having unreported offshore accounts. The group might be account holders at a particular bank or in a particular country. Sometimes IRS obtains such information from whistleblowers. In 2007, a whistleblower provided details to the U.S. government about how his employer, Swiss bank UBS, was actively assisting and facilitating U.S. taxpayers’ concealment of taxable income.(See app. II for more information on the UBS whistleblower.) IRS may also use information gathered through prior offshore programs to identify other banks or countries where U.S. taxpayers may be hiding offshore income.

The next step is to learn the identities of some of the taxpayers suspected of noncompliance. One technique is to use John Doe summonses. In 2008, prior to the announcement of the 2009 OVDP, a federal court granted IRS permission to serve a John Doe summons to UBS for information on its U.S. customers. As a result of the summons, and subsequent government negotiation and agreement, UBS turned over information on approximately 4,450 accounts held in Switzerland by U.S. persons. This was a partial list of all U.S. UBS account holders with accounts in Switzerland. In other cases, IRS has been able to get client lists from promoters of offshore tax evasion schemes.

In order to encourage program participation, IRS publicizes the fact that it knows, or soon will know, the names of some offshore account holders. IRS also publicizes the terms of its offshore programs, which offer incentives to taxpayers who voluntarily disclose their accounts before IRS learns about them. As described later, the offshore programs offer a reduced risk of criminal prosecution, and lower penalties than taxpayers could receive if unreported offshore accounts were discovered in an audit. In this report we refer to the reduced penalty offered as part of an offshore program as the “offshore penalty.” In the 2009 OVDP the offshore penalty was typically 20 percent of the highest aggregate value of the unreported offshore accounts between 2003 and 2008.

Provided that they meet certain criteria, taxpayers are accepted into one of IRS’s offshore programs by responding to IRS questions about the nature of their offshore noncompliance in an application letter and filing amended or late tax returns and FBARs. (See app. III for sample application letters.) Investigators from IRS’s Criminal Investigation division generally review applications to verify that taxpayers are not already under investigation, that the offshore income was from legal sources, and that the taxpayer has made a complete and truthful disclosure. Taxpayers’ amended or late returns that are submitted as part of an offshore program are reviewed and certified by IRS examiners who calculate the delinquent taxes, interest, and penalties, and who may request additional documents and information from taxpayers.

Taxpayers who did not participate in an offshore program but are known to IRS (perhaps because they were on the list of names IRS identified in Step 2) run the risk of being audited outside of an offshore program. These taxpayers could be subject to substantially greater penalties and increased risk of criminal prosecution. Since 2009, IRS and the Department of Justice (DOJ) have publicized more than 40 prosecutions of UBS clients and UBS bankers.

Through data mining, or analyzing, information from offshore program application letters, and reviewing the case files of program participants and auditing nonparticipants, IRS is able to identify new groups of taxpayers suspected of hiding income offshore. IRS can then choose to continue offering offshore programs and encourage these newly identified groups of taxpayers, as well as all taxpayers with unreported offshore accounts, to disclose their accounts voluntarily, repeating the cycle illustrated in figure 2. For example, taxpayers that participated in the 2009 OVDP named other Swiss banks and financial advisors who had assisted them with hiding offshore income. As a result, IRS and DOJ took actions to compel other Swiss banks to name their U.S. customers. To date, some Swiss banks have announced that they are cooperating with U.S. government investigations. One Swiss bank ceased operating after it pleaded guilty to helping U.S. taxpayers hide income offshore and agreed to pay approximately $74 million in fines, restitution, and civil forfeiture. IRS and DOJ are also pursuing other banks in Liechtenstein, Israel, and India, which had been named by 2009 OVDP participants.

Terms of IRS’s Offshore Programs

Each of IRS’s four offshore programs had a slightly different structure, including a higher standard offshore penalty rate for each subsequent program, as shown in table 1. In the 2009 OVDP, the standard offshore penalty was 20 percent. The offshore programs offer participating taxpayers a lower penalty than they could have been subject to if IRS had discovered their offshore account outside of the program. According to IRS, the offshore penalty is in lieu of all other liabilities for tax, interest, and penalties that IRS would not pursue. Taxpayers that do not participate in an offshore program could potentially face penalties that total more than 100 percent of the value of their unreported offshore accounts. These penalties could include FBAR, accuracy-related and/or delinquency, fraud, and foreign information return penalties.

Most of the offshore programs also offered taxpayers mitigated penalties at lower rates, generally for taxpayers with small accounts or accounts that were not accessed, also shown in table 1.

Many offshore accounts were presumably open for decades, something that we confirmed in our review of 2009 OVDP cases, but practical reasons prevented IRS from auditing and collecting unpaid taxes from all of those years. The standard 2009 OVDP 20 percent offshore penalty was calculated based not on additional taxes assessed, but on the highest aggregate value of the offshore accounts. As a result, the penalty has been described by tax practitioners as “rough justice,” in part because the amount in an account might include decades of tax-free buildup. (See app. IV for hypothetical examples illustrating tax-free build up and penalties for accounts of different ages.)

Under the 2003, 2009, and 2011 programs, taxpayers had a specified period of time to join a program. The 2012 program is, at present, open ended. In each program, delinquent taxes and interest were assessed and collected for a limited number of prior years, which varied from four to eight tax years. Taxpayers were typically assessed accuracy-related and/or delinquency penalties for the delinquent taxes assessed in an offshore program, in addition to the offshore penalty described earlier.

Despite the significant risks of not coming forward through one of IRS’s offshore programs, some taxpayers decide to do nothing and remain noncompliant. Other taxpayers have attempted to disclose their offshore accounts without paying all the delinquent taxes, interest, and penalties required by the programs. In a quiet disclosure, taxpayers file amended tax returns for all or some of the tax years covered by an offshore program, and report the income from the previously unreported accounts. The taxpayers would generally pay interest and either accuracy-related or delinquency penalties on the newly reported income, but would avoid the higher offshore penalty. At the same time, taxpayers attempting quiet disclosures would file late FBARs, if they had not previously filed FBARs, or amended FBARs, if they had, to disclose the offshore accounts that they had not previously reported. Taxpayers might also try to circumvent some of the taxes, interest, and penalties that would otherwise be owed in offshore programs by reporting the existence of any offshore accounts and any income from the accounts on their current year’s tax return, without amending prior years’ returns. These taxpayers would also likely disclose the existence of the accounts by filing FBARs for the current calendar year. This filing would appear similar to the opening of a new account. Such a taxpayer would avoid paying any delinquent taxes, interest, or penalties, unless audited. As described earlier, taxpayers who are caught disclosing offshore accounts outside of one of IRS’s offshore programs risk steeper penalties and criminal prosecution, based on the facts and circumstances of their cases.

Almost All 2009 OVDP Participants Received the Maximum Offshore Penalty, Almost Half Had Accounts in Switzerland, and About Half of the Revenue Collected Came from a Small Percentage of High Penalty Cases

Summary of All 2009 OVDP Closed Cases

Participants in IRS’s 2009 OVDP had offshore accounts that varied considerably in size. Of the 10,439 closed 2009 OVDP cases, we estimate based on penalty data that the bottom 10 percent of the participants had account balances of less than $79,000 and the top 10 percent had balances over $4 million, as shown in table 2. The amount of offshore penalties also varied widely, which reflected the range of account balances. Some taxpayers were assessed an offshore penalty of a few thousand dollars while others were assessed several million dollars. The average offshore penalty assessed was about $376,000 while the median was approximately $108,000.

Of the 10,439 closed cases, most were assessed offshore penalties and 96 percent of those assessed penalties received the standard offshore penalty—20 percent of the highest aggregate value of the offshore accounts, which was also the maximum offshore penalty rate in the 2009 OVDP. The 20 percent penalty was generally levied when the total account value was greater than $75,000 and when taxpayers used the accounts (e.g., made deposits or withdrawals) during the period under review (2003 to 2008). See table 3.

Fewer than 5 percent of 2009 OVDP participants received one of the mitigated offshore penalties, 12.5 percent or 5 percent, also shown in table 3. (See sidebars for representative examples of mitigated penalty cases.)

Consistent with IRS’s enforcements efforts and the design of the 2009 OVDP, we found that the population of participants was more likely to report offshore accounts in Switzerland than the average foreign account holder who filed an FBAR (see fig. 3). Taxpayers with closed cases also had higher incomes than the average taxpayer, were older, and were more likely to use the married filing jointly status. (See app. VI.)

About half of the revenues collected through the 2009 OVDP, as of March 30, 2012, came from 378 cases where taxpayers received offshore penalties of $1 million or greater, meaning they had account balances of $5 million or greater. This group, which we refer to as “large penalty cases”, accounted for about 6 percent of the closed 2009 OVDP cases, but the penalties they received amounted to 49 percent of the total $1.9 billion in offshore penalties that had been assessed by IRS at that time. Given this group’s high share of penalties assessed, we selected a random sample of 30 of them for further examination and to obtain a better understanding taxpayers’ noncompliance.

For large penalty cases, we estimate that more than 50 percent of taxpayers had one or more bank accounts with Swiss bank UBS. app. VII for detailed information on the location of these taxpayer’s offshore accounts, including country and bank names.) Some of these taxpayers with UBS accounts transferred funds from Swiss bank UBS in 2008—the time when the U.S. government was actively trying to compel UBS to name its U.S. account holders. The funds were often transferred to other, smaller Swiss banks that generally did not operate in the United States. A few taxpayers claimed that they transferred funds at the recommendation of their UBS financial advisors. Taxpayers transferring funds to other banks may have been attempting to keep their offshore accounts hidden before deciding to participate in the 2009 OVDP.

The 95 percent confidence interval for the estimated 70 percent of taxpayers receiving large penalties with accounts at Swiss bank UBS is 51 percent to 85 percent. See appendix I for more information on our scope and methodology and appendix VII for more counts by case file.

Taxpayers Receiving Large Penalties Disclosed a Variety of Reasons for Having Offshore Accounts

Many taxpayers in the 30 large penalty cases that we reviewed had resided outside the United States for extended periods of time—either as U.S. citizens or prior to obtaining U.S. citizenship. Many taxpayers who disclosed extended periods of non-U.S. residency reported that they had opened their offshore accounts with income earned outside of the United States. A few of these taxpayers had been living and working overseas as U.S. citizens for decades. Others within this group opened accounts before immigrating to the United States. Although some taxpayers in these cases became U.S. residents decades ago, they maintained their offshore accounts and did not disclose them on tax returns or FBARs. Some taxpayers reported opening bank accounts in Switzerland as a means of protecting family assets during periods of war or instability in their native country. Further, a few taxpayers who immigrated to the United States reported that they had been unaware of their FBAR reporting requirements, that they had to state that they had foreign accounts on the Form 1040, Schedule B, or that the United States taxes the worldwide income of its residents, including overseas investment income. (See sidebars for representative examples from our case file reviews.)

Taxpayers in some of the cases that we reviewed disclosed that the original source of funds for their offshore accounts came from post-tax U.S. source income. A few of these taxpayers cited family histories or personal fears about the safety of U.S. banks as their reasons for moving savings offshore. Others reasons cited included the need to protect or shelter assets from possible U.S. lawsuits.

We estimate that 47 percent of taxpayers receiving large penalties inherited offshore accounts from a parent, spouse, or other relative— some of whom were not U.S. citizens or residents.taxpayers reported inherited accounts that were jointly owned or managed by extended family members, such as siblings and cousins, who also applied to the 2009 OVDP and sometimes split the penalties. Regardless of how taxpayers in the large penalty cases came to own offshore accounts, many maintained but did not disclose offshore account In many instances, balances of several million dollars for many years. Some of these taxpayers did not pay U.S. taxes on income earned from these accounts for decades.

We estimate that 40 percent of 2009 OVDP participants receiving large penalties used complex arrangements to indirectly own or manage their offshore accounts. These arrangements involved the use of foreign corporations, foundations, trusts, and other entities in jurisdictions that have been designated as offshore tax havens and financial privacy jurisdictions, some of which were recommended by the taxpayers’ foreign financial advisors. In some cases, the entities were “sham” entities—i.e., entities created to conceal ownership from U.S. tax authorities—which participants in some case files that we reviewed used to conceal the ownership of accounts or disguise the repatriation of offshore funds back to the United States. Another complex arrangement present in several large penalty cases was passive foreign investment companies (PFIC). A PFIC is a type of mutual fund or investment company held outside of the United States. Some foreign bank accounts disclosed through OVDP were in the form of simple interest bearing accounts, but others were foreign mutual funds that would be treated as PFICs under the Internal Revenue Code. PFICs may, in some cases, receive less favorable tax treatment than U.S. entities holding similar assets or earning similar income. Taxpayers who did not disclose PFICs may not have paid the additional taxes on such investments. In many cases, a number of previously unreported investment entities were disclosed through the 2009 OVDP, and IRS decided to accept an alternative tax on all their associated PFIC gains—20 percent of the gain—potentially a much lower tax rate than would otherwise have been available to those taxpayers.

IRS Generally Has Used 2009 OVDP Data Strategically, But Has Not Used the Data to Identify Additional Opportunities to Educate Taxpayers on Offshore Filing Requirements

IRS Used 2009 OVDP Data to Identify Noncompliance Involving Additional Banks and Countries and to Improve Subsequent Offshore Voluntary Disclosure Programs

As previously discussed, one of the intended purposes of the 2009 OVDP was mining, or analyzing, data collected from OVDP applications and audits of participants and nonparticipants to identify entities and individuals who promoted or otherwise helped U.S. citizens hide assets and income offshore. We found that IRS collected the names of offshore financial institutions, financial advisors, bankers, attorneys, and other promoters from the 2009 OVDP that were involved in hiding U.S. taxpayers’ offshore income, and used the names to (1) identify patterns of noncompliance, (2) encourage banks and other promoters to cooperate with IRS and provide the names of U.S. taxpayers hiding income overseas, and (3) build cases for John Doe summonses.

IRS officials from the Offshore Compliance Initiative office told us that publicity from the John Doe summonses has been the most effective tool to increase participation in its offshore programs. They based their conclusion on the correlation between country specific or bank specific John Doe summonses and the locations of 2009 OVDP participants’ accounts. Our case file analysis discussed previously in this report supports IRS’s conclusion.

However, IRS officials also determined that data mining the 2009 OVDP applications would not provide IRS with all of the useful information it could get from participants. For taxpayers accepted into the program, responses on the 2009 OVDP applications varied widely in degree of detail, which we confirmed in our case file review. For example, some application letters included very detailed account information, such as the original source of funds, bank name, banker name, and country name, while other case files we reviewed did not contain any optional letter like the one suggested by IRS in its 2009 OVDP Questions & Answers. As a consequence, IRS sent surveys to 2009 OVDP participants to obtain more details about the offshore accounts. The survey included detailed questions about the taxpayer’s financial institutions, bankers, advisors, attorneys, or other promoters’ involvement in hiding offshore income. IRS program officials stated that the additional information they received from the surveys was useful and that they were using it, along with various analyses of voluntary disclosures, to identify particular banks, promoters, professionals, and others who promote, facilitate, or enable U.S. taxpayers in avoiding or evading payment of required U.S. taxes through the use of offshore accounts. According to IRS, these analyses have also been used to identify the foreign countries where the offshore accounts were maintained as well as the schemes being used and offshore structures.

Based on data that IRS collected from mining the 2009 OVDP case files and the survey, IRS obtained information on offshore accounts held by U.S. taxpayers at HSBC (India); continued investigations of additional foreign financial institutions in Switzerland, Asia, and the Caribbean; built cases for additional John Doe summonses, should they become expanded its investigations of non-bank entities, such as merchant accounts, which are a type of bank account that allows a business to accept payments by payment cards, such as credit or debit cards;and improved subsequent offshore programs.

One lesson that IRS learned from the 2009 OVDP was that the applications sometimes did not contain enough information to allow IRS to understand the nature of the noncompliance. To obtain better information going forward, and as a condition of being accepted into the 2011 and 2012 programs, IRS required applicants to submit additional documents related to their offshore accounts.account information about the original source of funds. In addition, applicants to the 2011 and 2012 programs that had offshore accounts with an aggregate balance of $1 million or more were required to submit a separate statement for each foreign financial institution. These applicants were also required to submit a separate statement for each foreign account or asset listed in their voluntary disclosure. (See app. III for sample 2009 and 2012 application letters and, the new required attachment to the 2012 application letter.) IRS officials from the Offshore Compliance Initiative office told us that they have begun to use data from these additional submissions to improve offshore compliance.

Based in part on its experience with the 2009 OVDP, IRS introduced streamlined offshore program filing procedures. These were, in part, intended to provide a less burdensome process for taxpayers with unreported offshore accounts that were small. As shown earlier in table 2, for the 10,439 2009 OVDP cases that we had data for, the account value for the 10th percentile was about $78,000. According to IRS, some of these taxpayers with smaller accounts, and thus relatively low unpaid-tax obligations, were U.S. residents residing overseas, including dual citizens, who most likely did not owe substantial amounts of unpaid taxes, and who indicated to IRS that they did not understand their filing requirements. The standard offshore penalty for such taxpayers would likely be disproportionately high. The streamlined filing procedures that began in September 2012 allow taxpayers with “low compliance risk” to become current with their offshore tax obligations without facing offshore penalties or additional enforcement action. IRS defined “low compliance risk” as taxpayers with simple tax returns, owing less than $1,500 in taxes for each of the years covered by the streamlined procedures.

Despite the Successes of IRS’s Overall Strategy, IRS Might Benefit from Additional Information to Better Target Outreach and Education

IRS efforts to publicize the 2009 OVDP included notices published in seven languages and outreach to professional tax practitioners. IRS officials from the Offshore Compliance Initiative office told us that they had not formally evaluated the success of these outreach efforts. We recently reported concerns about the complexity of foreign account reporting requirements, and that tax practitioners and taxpayers are confused about what foreign account information should be reported and how.

The offshore programs are part of IRS’s larger compliance efforts, which are intended to both detect noncompliance and to encourage voluntary compliance, in part by minimizing the burden for taxpayers to understand their tax obligations and file tax returns every year. Obtaining information on how taxpayers found out about IRS’s offshore voluntary disclosure programs could help IRS better identify populations that could benefit from additional taxpayer education and outreach and potentially improve voluntary compliance by taxpayers with new offshore accounts. Such information could also help IRS evaluate the success of its current outreach efforts. IRS’s 2009 OVDP application, however, did not contain a question on how the taxpayer became aware of the program. IRS made changes to the applications for subsequent programs, as described earlier, but did not consider adding questions on how participants became aware of the program. IRS officials from the Offshore Compliance Initiative office told us that this information would be useful in terms of allocating future resources, and that they would be open to considering a question on how taxpayers found out about the offshore programs. Presently, IRS has not decided to include this question in the 2012 program application.

In our case file review, we found examples of immigrants who stated in their 2009 OVDP applications that they were unaware of their FBAR filing requirements. We found they had often opened banks accounts in their home country prior to immigrating to the United States. IRS officials from the Offshore Compliance Initiative office stated that although there are several FBAR education programs, none are specifically targeted at new immigrants. Furthermore, these IRS officials were unaware of any IRS work with other federal agencies such as the State Department or the Department of Homeland Security to educate recent immigrants about their foreign account filing requirements. These officials stated that one of the challenges that they face in their office, which is part of IRS’s Large Business and International Division, is that taxpayer education and outreach is the responsibility of IRS’s Wage and Investment Division and that issues concerning FBARs fall under IRS’s Small Business/Self- Employed Division.

IRS officials from the Offshore Compliance Initiative office agree that more could be done to improve taxpayer education and outreach about offshore reporting requirements. They, like us, recognize that multiple outreach efforts could help to draw additional taxpayers into the offshore programs, and that data mining information from the program applications can help identify these groups.

IRS May Not Be Identifying a Large Number of Quiet Disclosures or Other Attempts to Circumvent Some of the Taxes, Interest, and Penalties that would be Otherwise Owed by Not Participating in an Offshore Program

Taxpayer Use of Quiet Disclosures to Avoid Offshore Penalties Involves Significant Risk

Quiet disclosures matter because if IRS does not identify them, it undermines the incentive to participate in the offshore programs. IRS’s offshore compliance enforcement efforts, including the offshore programs, deter taxpayers with noncompliance related to current offshore accounts, or offshore accounts that might be opened in the future. If taxpayers are able to quietly disclose and pay fewer penalties than they would have in an offshore program, the incentive for other noncompliant taxpayers to participate in a program is reduced. When quiet disclosures remain undetected, they also result in lost revenue for the government. Further, if quiet disclosures remain undetected, then IRS will not have information on the characteristics of these taxpayers and their accounts— characteristics such as bank names, country names, and promoter names—used to build cases against others.

IRS May Not Be Detecting Some Quiet Disclosures

We identified 10,595 potential quiet disclosures, a number much higher than the potential quiet disclosures identified by IRS. In a series of Questions & Answers that IRS first released on February 8, 2011 to announce the 2011 offshore program, IRS reported that it had identified, and will continue to identify, taxpayers attempting quiet disclosures. In the Questions & Answers, IRS stated that it would be closely reviewing amended tax returns to determine whether enforcement action is appropriate. (See sidebar for one example of a quiet disclosure being detected.)

IRS officials told us that the Offshore Compliance Initiative office tested several different methodologies to identify quiet disclosures. First, IRS looked at amended returns during tax year 2003 to tax year 2008, the period covered by the 2009 OVDP, and removed any non-offshore related adjustments, such as filings status changes and additional exemptions. IRS also looked at amended returns with increased tax assessments over an established threshold during tax year 2003 to tax year 2010.

The effectiveness of a third effort was questioned by IRS. In this effort IRS compared taxpayers with a history of filing FBARs in non-secrecy jurisdictions between tax year 2003 and tax year 2008 who filed delinquent FBARs processed in 2009 involving a secrecy jurisdiction along with an amended return.

In 2012, a fourth effort, which was not designed to detect quiet disclosures, but to reroute misaddressed amended returns sent in by participants in the 2011 offshore program, was the most successful effort to find them.

Together, these four efforts led to the review of several thousand tax returns. Of those, several hundred returns were identified as quiet disclosures. An IRS official told us that the tax returns that were identified as part of a quiet disclosure will be examined and that cases already examined had penalties assessed. Because they were quiet disclosures, the official said the taxpayers did not receive the reduced offshore penalty.

Given the importance of IRS’s ability to detect quiet disclosures and evidence that they exist, we tested a different methodology to identify potential quiet disclosures, and found many more than IRS detected. Unlike IRS, we looked at all taxpayers who, for the tax years covered by the 2009 OVDP filed amended or late returns, and filed amended or late FBARs.

We then excluded 2009 OVDP participants from this population. While only an IRS examination can determine whether a potential quiet disclosure is an actual quiet disclosure, the 10,595 taxpayers that we identified have an unlikely combination of characteristics that could indicate that taxpayers are quietly disclosing. IRS agreed with our methodology as reasonable and appropriate. (See app. I for additional details about our methodology and app. VIII for a full breakout of our results.)

Although any of the 10,595 potential quiet disclosures could be actual quiet disclosures, certain subpopulations raised more questions. First, we found 3,386 taxpayers that filed amended or late returns, and filed amended or late FBARs for multiple years. Second, we found that 94 of these taxpayers met the same criteria for all six tax years covered by the 2009 OVDP.

IRS officials from the Offshore Compliance Initiative office told us that they had no additional work planned to identify potential quiet disclosures and had not yet decided to broaden the methodologies that they had tested, but they expressed strong interest in researching our methodology to identify taxpayers attempting quiet disclosures. We recognize that there are additional costs to using a methodology such as the one we used, but IRS has already committed resources to identifying quiet disclosures. Moreover, without rigorously and systematically searching for potential quiet disclosures, IRS does not have reasonable assurance that it is controlling such disclosures and collecting the delinquent taxes, interest, and penalties due. Exploring different methodologies that include a systematic evaluation of amended returns or late filed returns, along with amended or late filed FBARs, without too narrowly restricting either the amended return or the FBAR populations, and implementing the best option could provide this assurance.

Increases in Taxpayers Reporting Offshore Accounts May Also Indicate Attempts to Circumvent Some Taxes, Interest, and Penalties that Would Otherwise be Owed

Data from IRS’s SOI division and from FinCEN show that the number of taxpayers reporting offshore accounts on Form 1040, Schedule B and the number of taxpayers filing FBARs has increased significantly in recent years. From tax year 2007 to tax year 2010 (the most recent data available), IRS estimated that the number of taxpayers reporting offshore accounts on Form 1040, Schedule B nearly doubled to 516,000, as shown in figure 4. From tax year 2003 through tax year 2007, only about 1 percent of all taxpayers filing Form 1040, Schedule B checked a “yes” box in response to the question asking if they owned or controlled a foreign financial account, but that share increased to more than 2.5 percent by tax year 2010. Furthermore, FinCEN has reported that the number of FBARs filed more than doubled, as shown in figure 4. Both the increase in the number of foreign accounts reported on Form 1040, Schedule B and the increase in FBAR filings are significantly larger than the approximately 39,000 taxpayers that came forward in one of IRS’s offshore programs.

There could be legitimate reasons for these trends. For example, taxpayers could be reporting new offshore accounts or taxpayers who had always reported income from offshore accounts on their tax returns could be filing FBARs and reporting the accounts on Form 1040, Schedule B for the first time. This could be an indication of more taxpayers coming into compliance as a result of IRS’s efforts to combat offshore tax evasion.

However, such a sharp increase in foreign account reporting amidst the global economic recession and the publicity surrounding IRS’s offshore programs raises the question whether some of these taxpayers may have attempted to circumvent some of the taxes, interest, and penalties that would otherwise be owed in the offshore programs. Unlike taxpayers attempting a quiet disclosure, who would still pay taxes plus interest on previously unreported income covered by the programs, and possibly an accuracy-related or delinquency penalty, these taxpayers would only be paying taxes on the offshore income earned for the year reported.

An IRS official from the Offshore Compliance Initiative office told us that although the office has coordinated with IRS’s Planning, Analysis, Inventory, and Research (PAIR) office, they had not discussed Form 1040, Schedule B or FBAR filing trends, and that he was not aware of the sharp increase. As of January 2013, no projects were planned to research Form 1040, Schedule B filing trends. However, the Offshore Compliance Initiative office has asked PAIR to determine whether taxpayers who reported their offshore income properly, but had not filed FBARs, recently started filing delinquent FBARs, as directed by the 2009 OVDP instructions. who are reporting existing offshore accounts as new.

This effort may not capture first time FBAR filers Because the increase in recent years in Form 1040, Schedule B and FBAR reporting of foreign accounts is measured in the hundreds of thousands, we recognize that it may be too costly for IRS to audit all of those filings. A less costly approach could involve, for example, IRS drawing a random sample of those cases and auditing them to understand whether taxpayers are trying to circumvent some of the taxes, interest, and penalties that would otherwise be owed in the offshore programs. One of the things that IRS could look for in such an audit is the date that the offshore account was opened. Such a sample could provide an estimate of the magnitude of any problem. As was the case with quiet disclosures, without such information, it will be difficult for IRS to provide reasonable assurance that taxpayers are not reporting, for the first time, offshore accounts that had been open for years to avoid paying delinquent taxes, interest, and penalties.

Conclusions

See Internal Revenue Service, “Voluntary Disclosure: Questions and Answers,” accessed February 8, 2013, http://www.irs.gov/uac/Voluntary-Disclosure:-Questions-and- Answers, Q9. unreported offshore income. Through these programs, IRS has collected more than $5.5 billion to date, brought tens of thousands of taxpayers into compliance, and gained increased information on offshore noncompliance. It is unclear how many additional U.S. taxpayers have undeclared foreign accounts and how much unreported income is associated with those accounts. However, the number of quiet disclosures IRS was able to find (some by accident), the number of potential quiet disclosures we identified, and the sharp upswing in Form 1040, Schedule B and FBAR filings all suggest that the amount of revenue to be collected from previously undisclosed offshore accounts could be significant.

We found two key issues that, if addressed, could make IRS’s offshore programs even more successful.

IRS has not used program information to identify populations of taxpayers that would benefit from education and outreach regarding their offshore tax reporting obligations. Such information could promote voluntary compliance and reduce the need for enforcement actions. Additionally, IRS does not obtain information on how taxpayers learned about offshore programs. Without this information, IRS cannot fully evaluate its efforts to promote taxpayer participation in offshore programs. IRS may have missed taxpayers attempting to circumvent some of the taxes, interest, and penalties that would otherwise be owed in its offshore programs. Our methodology to identify potential quiet disclosures found many more potential disclosures than IRS detected. IRS may also have missed other attempts at circumvention by not researching the upward trends of taxpayers reporting offshore accounts for the first time. While there would be costs to such efforts, the amount already collected by the offshore programs suggests that considerable additional revenue gains might be possible. By identifying taxpayers attempting to circumvent some of the taxes, interest, and penalties that would otherwise be owed in its offshore programs, and taking appropriate action, IRS could potentially increase revenues, bolster the overall fairness of the program, and have a more informed basis for improving voluntary compliance.

Recommendations for Executive Action

We recommend that the Acting Commissioner of Internal Revenue take the following four actions:

Use data gained from offshore programs to identify and educate populations of taxpayers that might not be aware of their tax obligations related to offshore income and FBAR filing requirements.

Obtain information that can help IRS test offshore program promotion strategies and identify new ones by adding a question to current and future programs to determine how participants found out about the program.

Explore options for employing a methodology for identifying and pursuing potential quiet disclosures to provide more assurance that actual quiet disclosures are not being missed and then implement the best option.

Conduct an analysis designed to measure the extent that taxpayers are reporting existing foreign accounts on the Form 1040, Schedule B or on FBARs for the first time and circumventing some of the taxes, interest, and penalties that would otherwise be owed, and take appropriate action based on the analysis.

Agency Comments and Our Evaluation

We provided a draft of this report to the Acting Commissioner of Internal Revenue for comment. In written comments, reproduced in appendix IX, IRS agreed with our four recommendations. IRS noted that it was pleased that we recognized the overall success of its offshore strategy and provided steps that they are taking to implement our recommendations and address any identified noncompliance, as warranted. IRS also provided technical comments on our draft report, which we incorporated, as appropriate.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to report to the Chairmen and Ranking Members of other Senate and House committees and subcommittees that have appropriation, authorization, and oversight responsibilities for IRS. We are also sending copies to the Acting Commissioner of Internal Revenue, the Secretary of the Treasury, the Chairman of the IRS Oversight Board, and the Deputy Director for Management of the Office of Management and Budget. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov.

If you or your staffs have any questions about this report, please contact me at (202) 512-9110 or whitej@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix X.

Appendix I: Objectives, Scope and Methodology

The objectives of this report were to (1) describe the nature of the noncompliance of taxpayers participating in the 2009 Offshore Voluntary Disclosure Program (OVDP), (2) determine the extent to which Internal Revenue Service (IRS) used data from the 2009 OVDP in order to better prevent and detect future noncompliance, and (3) assess IRS’s efforts to identify taxpayers who may have attempted quiet disclosures or other ways of circumventing some of the taxes, interest, and penalties that would otherwise be owed in its offshore programs.

To describe the characteristics of taxpayers participating in the 2009 OVDP, we relied on data for tax years 2003 through 2008 from four sources: (1) the Criminal Investigation Management Information System (CIMIS) managed by IRS’s Criminal Investigation (CI) division; (2) the Currency and Banking Retrieval System managed by the Treasury Department’s Financial Crimes Enforcement Network (FinCEN); (3) IRS’s Individual Master File and Business Master File; and (4) IRS’s Compliance Data Warehouse (CDW). We used data from four databases in CDW: Enforcement Revenue Information System, Individual Returns Transaction File, Audit Information Management System, Individual, and Business Returns Transaction File. To determine the reliability of IRS’s taxpayer data, we reviewed relevant documentation, conducted interviews with IRS officials knowledgeable of the data, and conducted electronic testing of the data to identify obvious errors or outliers. We determined that these data were sufficiently reliable for our purposes.

This population includes 200 participants with an Employer Identification Number (EIN), which IRS uses to identify businesses, instead of an Individual Tax Identification Number or Social Security Number. Since these business entities represented less than 1 percent of the total OVDP participants identified, our use of the term “OVDP participants” in this report generally refers to individual taxpayers participating in the program. one) in situations where only one spouse applied to the 2009 OVDP through CI, but both were liable for the delinquent taxes, interest, and penalties because of their married filing jointly filing status. From the 19,337 participants, we identified 10,439 closed examination cases as of November 29, 2012, which we use in this report for our analysis of penalties.

To obtain a better understanding of taxpayer noncompliance, we selected a random sample of 30 2009 OVDP case files for cases that were closed as of March 30, 2012, and that received a 2009 OVDP penalty of $1 million or greater. As part of the 2009 OVDP application, taxpayers were asked to explain their reasons for establishing offshore accounts, the source of funds, the ownership structure, and the history of accounts. Many taxpayers in our sample submitted an IRS optional letter containing this information with their application (referred to in this report as the “application letter.” See appendix III for sample application letters). Some taxpayers were interviewed by IRS investigators, and some responded to IRS follow-up requests for additional information. Additionally, other case file documents that provided key information were: (1) IRS Form 906, Closing Agreement On Final Determination Covering Specific Matters; (2) IRS Form 4549-A, Income Tax Discrepancy Adjustments; (3) OVDP Penalty Computation Workpaper; and (4) form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR).

We used a standard data collection instrument to review each case file to ensure we consistently captured information about the 2009 OVDP participants, their offshore accounts, and their penalties, interest, and additional taxes owed. To ensure reliability, two analysts separately conducted this analysis, and a third analyst compared and reconciled any inconsistencies regarding the categorizations of 2009 OVDP cases. The analysts then tallied the number of observations for each topic or category and all information was traced and verified. We then analyzed the results of this data collection effort to identify main themes and develop summary findings. We determined that these data were sufficiently reliable for our purposes. (See app. VII for a summary of our data collection instrument results.)

To determine the extent to which IRS used data from the 2009 OVDP in order to better prevent and detect future noncompliance, we also interviewed IRS officials from the office of the Offshore Compliance Initiative to determine what data they collected from the 2009 OVDP effort and how, if at all, IRS used that data to create taxpayer profile data to identify additional offshore noncompliance and inform future offshore programs. In addition, we reviewed changes that IRS made to the 2011 and 2012 offshore programs.

To assess IRS’s efforts to identify taxpayers who may have attempted quiet disclosures, we used the same datasets that we used to identify the 2009 OVDP population, as described above, plus FBAR data from FinCEN. To determine the reliability of FinCEN’s FBAR data, we reviewed relevant documentation, conducted interviews with FinCEN officials knowledgeable of the data, and conducted electronic testing of the data to identify errors or outliers. We determined that these data were sufficiently reliable for our purposes. To identify potential quiet disclosures we conducted a three-step analysis. First, we used IRS tax return data to identify taxpayers who filed late or amended returns for the applicable 2009 OVDP period. We then used FBAR data to identify taxpayers who filed late or amended FBARs during the same time period to create a combined list of taxpayers. Finally, we removed from this combined list any taxpayers that we had previously identified as 2009 OVDP participants. The remaining taxpayers constitute our population of taxpayers who potentially “quietly disclosed” offshore accounts. From this population, we used data from amended tax returns to identify whether the amended returns had positive adjustments to income, and whether taxpayers filed amended returns for multiple years. We confirmed this methodology with IRS officials. The results of our analyses are shown in appendix VIII. To assess other ways taxpayers might be circumventing some of the taxes, interest, and penalties that would be otherwise owed, we analyzed filing trends in FBAR data from FinCEN and in Schedule B, Interest and Ordinary Dividends, of IRS Form 1040, U.S. Individual Income Tax Return, from IRS’s Statistics of Income Division (SOI). To assess the reliability of the SOI data that we analyzed, we reviewed agency documentation and interviewed officials familiar with the data. We determined that these data were sufficiently reliable for our purposes.

Appendix II: Events that Influenced Participation in IRS’s Offshore Programs

IRS’s first offshore program started in 2003 as part of an ongoing, multipronged effort to counter offshore tax evasion. Related to the 2003 program was the Offshore Credit Card Program, which stemmed from a series of John Doe summonses issued to a variety of financial and commercial businesses to obtain information on U.S. persons who held credit, debit, or other payment cards issued by offshore banks. IRS used records from the summonses to trace the identities of taxpayers whose use of these payment cards may have been related to hiding taxable income; this drew many other taxpayers to the offshore program.figure 5 for a timeline of key events.)

The Internal Revenue Code provides whistleblowers with a significant financial incentive to report noncompliance. It provides for awards up to 30 percent of the collected proceeds that arise from the whistleblower’s information. 26 U.S.C. § 7623. A whistleblower is someone who reports information on potential tax problems, such as fraud, to the IRS. Although not publicly confirmed by IRS, attorneys for the UBS whistleblower reported that he was awarded $104 million. For additional information on tax whistleblowers, see GAO, Tax Whistleblowers: Incomplete Data Hinders IRS’s Ability to Manage Claim Processing Time and Enhance External Communication, GAO-11-683 (Washington, D.C.: Aug. 10, 2011). specific criteria by which the 4,450 accounts would be selected until after the 2009 OVDP deadline passed. This created uncertainty among UBS account holders as to whether their names were on the list to be disclosed. IRS gave taxpayers until October 15, 2009, to enter the program. IRS publicity about the program, and correspondence sent by UBS to all U.S. account holders, emphasized the several criminal and civil penalties applicable to taxpayers who did not make voluntary disclosures before Switzerland turned over the account data.

The 2011 and 2012 programs had a similar draw for taxpayers. During the 2011 program, IRS and DOJ were building cases against tax evasion involving foreign banks in several countries, including Switzerland, Liechtenstein, Israel, and India. Many 2011 program participants came forward as a result of criminal enforcement activity and a John Doe summons issued to HSBC, a global banking and financial services firm headquartered in the United Kingdom, with significant business operations in Hong Kong and Asia. The 2012 program, which is still open and as of March 2013 does not have an end date, is expected to draw participants based on further criminal enforcement activity against foreign banks and opportunities for additional John Doe summonses that are being built by IRS and DOJ with information from past offshore programs. Also during this time, as the Foreign Account Tax Compliance Act (FATCA) becomes fully implemented, IRS expects to have increased information reporting from certain taxpayers and from foreign financial institutions on offshore accounts.

Appendix III: Sample 2009 and 2012 Offshore Program Application Letters

Appendix IV: Hypothetical Examples Comparing Account Balances, Length of Account Ownership, and Penalties

The 2009 Offshore Voluntary Disclosure Program (OVDP) penalties follow what some tax practitioners have called “rough justice” because of the relationship between the offshore penalties and the original taxes evaded. Figure 6 illustrates how two hypothetical offshore accounts bearing 5 percent interest might grow over time. One account is owned by a compliant taxpayer who reports the interest income and pays U.S. taxes at a 35 percent rate with earnings from the account. The other account is owned by a noncompliant taxpayer who does not report the interest income. Assuming both taxpayers deposited $1 million in 1986, the compliant taxpayer would accumulate a balance of approximately $2.1 million by 2009 and the noncompliant taxpayer would accumulate $3.1 million. The compliant taxpayer would have paid tax in each year the account was open, totaling about $585,000 in cumulative taxes on the reported account’s interest over 23 years. A noncompliant taxpayer who participated in the 2009 OVDP would, after disclosing the account, make a one-time payment in 2009 of about $993,000 in taxes, interest, and penalties. Although the 2009 OVDP participant would pay more in total taxes and penalties, the final account balances for both taxpayers would be roughly the same.

Using the same hypothetical model from figure 6 can help illustrate how taxpayers with newer offshore accounts that have not accumulated decades of untaxed interest income are treated. Assuming the hypothetical accounts in figure 6 were opened in 2004 (instead of 1986), the compliant taxpayer would have paid about $93,000 in taxes on the interest income and accumulated a balance of about $1.2 million by 2009, and the noncompliant taxpayer paying no taxes would have accumulated about $1.3 million. If the noncompliant taxpayer came forward through the 2009 OVDP, the penalties, interest, and delinquent taxes would have totaled about $387,000. The 2009 OVDP participant’s ending account balance would be about $890,000, which is less than the original opening deposit amount.

Appendix V: 2009 Offshore Voluntary Disclosure Program Participants with Employer Identification Numbers

We identified 200 2009 OVDP participants with an Employer Identification Number (EIN), which is used by IRS to identify a business entity. We did not have complete information on all of the businesses in our sample. In addition, not all of the businesses had filing requirements in every year covered by the 2009 OVDP. Table 4 shows the tax forms filed by some of the businesses in tax year 2008, and table 5 shows the self-reported North American Industry Classification System (NAICS) code.

Appendix VI: Additional 2009 Offshore Voluntary Disclosure Program Participant Characteristics

Taxpayers participating in the 2009 OVDP most often used the married filing jointly filing status, were most often age 55 and over, and had an average adjusted gross income of about $528,000, as show in table 6.

Appendix VII: Data Collected from a Sample of 30 2009 Offshore Voluntary Disclosure Program Case Files with Large Penalties

As noted in appendix I, we used a standard data collection instrument to capture information from a sample of 30 2009 OVDP cases in which taxpayers received offshore penalties of $1 million or greater. We then analyzed the results to identify main themes, and develop the summary findings presented in this report. The information in this appendix contains information from our case file reviews.

Account Balances and Total Penalties, Taxes, and Interest

We calculated offshore account balances based on penalty information. For our sample of 30 cases, the average account balance was almost $15 million, as shown in table 7 with other key information.

Most of the 30 cases we reviewed contained some information about the bank names and country locations of the offshore accounts. In some cases, 2009 OVDP participants disclosed dozens of offshore accounts with multiple banks and in multiple countries; in other cases, participants reported only one account. Only those offshore accounts that were open in tax year 2003 through tax year 2008 were included in the calculation of the 20 percent 2009 OVDP penalty. In compiling our profile, we only included information on accounts that were open during the 2009 OVDP applicable period and included in the penalty calculation. (Some participants disclosed additional offshore accounts that were closed prior to 2003 and not part of the 2009 OVDP penalty calculation.) Figure 7 illustrates the most commonly disclosed country locations. A total of 17 different locations were noted in the 28 cases that disclosed locations, with Switzerland being the most commonly reported location.

Figure 8 illustrates the most commonly disclosed bank names. A total of 42 different banks were reported in the 29 cases that contained bank name information, with UBS by far the most commonly disclosed bank name, followed by Swiss banks Julius Baer, and Credit Suisse.

Twenty-two of the case files we reviewed contained information about the history of the accounts and the nature of the taxpayer’s noncompliance. Many of the accounts had been opened decades ago. The median period of time that participants had owned but not reported income from these accounts, was 18 years, and the average period was 25 years. In four cases, the participants had owned offshore accounts for 50 years or longer.

Summary of Data Collection Instrument Results

Table 8 summarizes key information from the data collection instrument we used to collect information on the 30 offshore case files we reviewed.

Appendix VIII: Quiet Disclosure Analysis Results

Appendix IX: Comments from the Internal Revenue Service

Appendix X: GAO Contact and Staff Acknowledgments

GAO Contact

James R. White, (202) 512-9110 or whitej@gao.gov.

Staff Acknowledgments

In addition to the contact named above, Mark Abraham, Tara Carter (Analyst-In-Charge), Andrew Ching, Leon Green, Mark Kehoe, and Libby Mixon (Assistant Director) made contributions to the report. Jeff Arkin, Chuck Fox, Robert Gebhart, George Guttman, Brian James, Sarah McGrath, Donna Miller, John Mingus, Ed Nannenhorn, Karen O’Conor, Robert Robinson, Cynthia Saunders, Andrew Stephens, Wayne Turowski, Jim Ungvarsky, and John Zombro provide key assistance.