The following streamlined procedures are referred to as the Streamlined Foreign Offshore
Procedures.
Eligibility for the Streamlined Foreign Offshore Procedures
In addition to having to meet the general eligibility criteria, individual U.S. taxpayers, or
estates of individual U.S. taxpayers, seeking to use the Streamlined Foreign Offshore
Procedures described in this section must:
(1) meet the applicable non-residency requirement described below (for joint return filers, both spouses must meet the applicable non-residency requirement described below) and
(2) have failed to report the 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) with respect to
a foreign financial account, and 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 114, which may be found at FinCEN and the instructions for Form 8938, which may be found at Instructions for Form 8938. Non-residency requirement applicable to individuals who are U.S. citizens or lawful
permanent residents (i.e., “green card holders”): Individual U.S. citizens or lawful permanent residents, or estates of U.S. citizens or lawful permanent residents, meet the applicable non-residency requirement if, in any one or more of the most recent three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the individual did not have a U.S. abode and the individual was physically outside the United States for at least 330 full days. Under IRC section 911 and its regulations, which apply for purposes of these procedures, neither temporary presence of the individual in the United States nor maintenance of a dwelling in the United States by an individual necessarily mean that the individual’s abode is in the United States. For more information on the meaning of “abode,” see IRS Publication 54, which may be found at Publication 54.
Example 1:
Mr. W was born in the United States but moved to Germany with his parents when he was five years old, lived there ever since, and does not have a U.S. abode. Mr. W meets the non-residency requirement applicable to individuals who are U.S. citizens or lawful permanent residents.
Example 2:
Assume the same facts as Example 1, except that Mr. W moved to the United States and acquired a U.S. abode in 2012. The most recent 3 years for which Mr. W’s U.S. tax return due date (or properly applied for extended due date) has passed are 2013, 2012, and 2011. Mr. W meets the non-residency requirement applicable to individuals who are U.S. citizens or lawful permanent residents. Non- residency requirement applicable to individuals who are not U.S. citizens or lawful permanent residents:
Individuals who are not U.S. citizens or lawful permanent residents, or estates of individuals who were not U.S. citizens or lawful permanent residents, meet the applicable non-residency requirement if, in any one or more of the last three years for which the U.S. tax return due date (or properly applied for extended due date) has passed, the individual did not meet the substantial presence test of IRC section 7701(b)
(3). For more information on the substantial presence test, see IRS Publication 519, which may be found at IRS Publication 519.
Example 3:
Ms. X is not a U.S. citizen or lawful permanent resident, was born in France, and resided in France until May 1, 2012, when her employer transferred her to the United States. Ms. X was physically present in the U.S. for more than 183 days in both 2012 and 2013. The most recent 3 years for which Ms. X’s U.S. tax return due date (or properly applied for extended due date) has passed are 2013, 2012, and 2011.
While Ms. X met the substantial presence test for 2012 and 2013, she did not meet the substantial presence test for 2011. Ms. X meets the non-residency requirement applicable to individuals who are not U.S. citizens or lawful permanent residents. 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 Foreign 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, file delinquent or amended tax
returns, together with all required information returns (e.g., Forms 3520, 5471, and 8938) and
(2) for each of the most recent 6 years for which the FBAR due date has passed, file any
delinquent FBARs (FinCEN Form 114, previously Form TD F 90-22.1). The full amount of the
tax and interest due in connection with these filings must be remitted with the delinquent or
amended returns. A taxpayer who is eligible to use these Streamlined Foreign Offshore Procedures and who complies with all of the instructions outlined below will not be subject to failure-to-file and failure-to-pay penalties, 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 failure-to-file and failure-to-pay penalties or 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 tax noncompliance 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 to make such elections. Transition rules for taxpayers who made submissions under the 2012 Streamlined Filing Compliance Procedures for Non-Resident, Non-Filer U.S. Taxpayers: The risk assessment
process associated with the 2012 Streamlined Filing Compliance Procedures for Non-Resident, Non-Filer U.S. Taxpayers has been eliminated for all streamlined filers. A taxpayer who has initiated participation in the 2012 Streamlined Filing Compliance Procedures prior to July 1, 2014, and has not already been notified of a high or low risk determination will not receive correspondence related to their risk determination and the returns will be processed without regard to that risk assessment. Specific Instructions for the Streamlined Foreign 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:
– If a U.S. tax return has not been filed previously, submit a complete and accurate delinquent tax return using Form 1040, U.S. Individual Income Tax Return, together with the required information returns (e.g., Forms 3520, 5471, and 8938) even if these information returns would normally be filed separately from the Form 1040 had the taxpayer filed on time, or
– if a U.S. tax return has been filed previously, submit a complete and accurate amended tax return using Form 1040X, Amended U.S. Individual Income Tax Return, together with the required information returns (e.g., Forms 3520, 5471, and 8938) even if these information returns would normally be filed separately from the Form 1040 had the taxpayer filed a complete and accurate original return.
Note: The Streamline Filing Compliance Procedures are now requiring that previously non-reported income related to Specified Foreign Corporations also address section 965 of the Internal Revenue Code (the “transition tax”), if applicable. Refer to Streamlined Filing Compliance Procedures and Section 965 for more information.
2. Include at the top of the first page of each delinquent or amended tax return and at
the top of each information return “Streamlined Foreign 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 Outside of the U.S.(Form14653) PDF certifying (1) that you are eligible for the Streamlined Foreign
Offshore Procedures; (2) that all required FBARs have now been filed (see instruction 8
below); and (3) that the failure to file tax returns, report all income, pay all tax, and submit all required information returns, including FBARs, resulted from non-willful conduct. You must submit the original signed statement and you must 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 tax payer identification number must be included on your check. You may receive a balance due notice or a refund if the tax or interest is not calculated correctly.
5. If you are not eligible to have a Social Security number and do not already have an ITIN, submit an application for an ITIN along with the required tax returns, information returns, and other documents filed under these streamlined procedures. See the ITIN page for more information.
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, see SFO FAQ 2 for current information (Form 8891 is no longer required).
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 35
Stop 6063 AUSC
Attn:Streamlined Foreign 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 make an inquiry using the various options provided at FinCEN contacts to determine possible alternatives to electronic filing.
