Tuesday, November 11, 2014

A Look at the IRS Reorganization from the Inside: A Personal View of the old Sacramento District

My last blog of November 3rd generated some lively emails and comments on LinkedIn and it appears as though I hit a nerve. There are plenty of IRS veterans still in place as well as alumni

around who remember what the IRS field offices were like both before and after the 1998 Reorganization. A lot of them are stepping up and following Professor Frank Wolpe’s admonition in the subtitle of his White Paper [1], which says, “If you see something, say something; and make no mistake, restoring trust in the IRS is a national security need.”

It is almost fashionable today to jump on the IRS-bashing band wagon. For some members of Congress, IRS bashing is good sport because the message to the folks back home is their rep in Washington is standing up to the most obvious symbol of unthinking Big Government and the erosion of personal freedom. For some practitioners it is fair game because the IRS really cannot fight back. For one thing, it is not set up that way and for the people who work there, hyperbolic screeds, mouthing off, and the wrath of crack pot conspiracy theorists just comes with the territory. 

Of course this is not to say that an organization of 90,000 people doesn’t have some bad apples nor that the IRS sometimes has done, and probably always will do, some stupid things. Unfortunately, the very nature of big government today is such that it is seemingly incapable, just by its very nature, of protecting us from its tendency to do flop-headed things, notwithstanding the good will of the rank and file people who work there.

The challenge in this whole Reorganization discussion is trying to find out what has gone wrong with the IRS, and how to rearrange things so that future damage is kept to a minimum. The purpose behind the old structure (which dates back to the Truman Administration in 1952), before the Stove Top Stuffing Reorganization in 1998, was to organize the agency in a way which had responsible, visible, and accountable people in place at the local level who were empowered and smart enough to make it at least look like the government knew what it was doing. In today’s world it seems, sometimes the best we can expect from government is to just keep things from getting worse. But when it comes to collecting enough money to keep the lights on and protect our shores from lunatics who wish we were dead, we better get it right.

 Again, as Professor Wolpe reminds us, the old IRS alignment served as a “self-protective structure for early detection and correction” of potential problems.

My IRS experience permits me to state without qualification that the overwhelming majority of people who work for the IRS do so in good faith and sincerely believe they are performing a valid public service organized around rules which are fair, and make the government cut square corners with  the people whose lives they touch. The fact that I approach the IRS this way is a comfort to my clients. Approaching an IRS agent or attorney with the same respect and dignity as I would any other person in the private sector, usually makes things go a lot easier.

This is purely anecdotal but my guess is the folks who work for the IRS are over represented compared to the rest of the population when it comes to involvement in community service organizations, attending religious services, volunteering-type activities and all the other kinds of human conduct we like to think make up a well-informed,  and responsible citizenry. The people who work for the IRS are you and me, the same people you see in the Safeway and at your kids’ soccer games.

Making the IRS visible to the local community is one of the reasons we need to return  to the District Director Model:

Professor Wolpe’s White Paper spells out why having a visible local person, or District Director in charge of the IRS is so critical:

Education and outreach was part of the job so that it was expected that each DD would become a community leader, partnering with local chambers and other stakeholders, emphasizing community service and identifying with charitable activities. They earned their spurs by being respected in their posts of duty as fair-minded hands-on Service senior-executives.

 The short-lived Sacramento District:  After 15 years with the IRS in Washington, I had the privilege of opening up a new office for the Chief Counsel to accompany one of the three newly-formed districts in California in 1984. The newly-appointed Sacramento District Director, a very cool guy named Ray Spillman, was both a CPA and an attorney from Chicago who came up through the ranks as an outstanding revenue agent. The custom in the IRS is for the Counsel organization to mirror the “client organization” –the 85,000 people we served as “house counsel,” ergo the need for a new Counsel office.

Viewing  the Reorganization from the vantage point of the Counsel organization was a good perspective. My relationship with the District Director was somewhat akin to an attorney/client relationship in the private sector. Ray didn’t supervise me, meaning he had no “line authority” over me. His division chiefs had to laugh at his jokes at staff meetings but I could tell him if I didn’t like his tie. I would meet with him for 15 minutes before his weekly staff meetings and we would enter the staff meeting together through his private door. Ray sometimes delighted in calling me his “consigliore” and he would give me a heads up on issues he was about to discuss with the chiefs and their aides. If there was a topic on the table to which he had already given some thought, I made it my business to get up to speed to support him if need be.

Opening a new district office in California was fun because everyone was new to the job. There was a real feeling of comradery and pride in setting up a Central Valley district, separate and apart from the dominant San Francisco and Oakland posts of duty.

I never had a bad or unpleasant job with the Office of Chief Counsel in my 30 years with the IRS, but my new position as District Counsel was one of the best jobs anyone in the government could have. Opening up a new District in a beautiful part of the country with a new DD and a bright energetic staff was really exciting for a government lawyer in the middle of his career, especially a Jersey boy who grew up in an industrial town between the Garden State Parkway and the New Jersey Turnpike. The new District was made up of plenty of local Northern California IRS folks, National Office people who wanted to see how the “real world” worked, new hires, and people from all over the country who were willing to move to California and leave their hometowns to take part in a new venture.

“You want us to do what now?” I went from the innards of the National Office where orders and protocols were devised and issued, to a field office three thousand miles away where the actual work of the Internal Revenue Service was done: audits, collections, criminal investigations and Tax Court litigation. Sometimes the latest management directives from the National Office were viewed by the troops as just another “flavor of the month” order where the first reaction to what they were asking for was, “You want us to do what now?!” A good example was the so-called Quality Initiative we were forced to endure in the eighties and early nineties where even our leaders “in Region” could barely keep from bursting out in laughter when they tried at tremendous expense, to coax us into doing some of the silly things which were part of a program to sensitize us to the subtleties of the art of managing people. 

No turkeys on the roof!
It’s not part of the Internal Revenue Manual, but one of the unwritten rules on “how to be a good IRS District Director” is  “at all times, keep the turkeys off the roof.” A skillful DD knew how to respectfully serve up the National Office, worthless ground glass without letting them know that that was what they were asking for.

It’s an “East Coast/West Coast” thing, but Easterners who move to California or other parts of the West soon come to learn that “buttoned down” Washington will never get why  geography and life styles out here matter so much. The new Sacramento District was comprised of thirty one California counties, the entire northern third of the State, an area bigger than many entire states.  At the time, there were close to a dozen posts of duty throughout, including a one person post of duty in Yreka near the Oregon border. Some of the offices were staffed with five or less people but there were large ones too with hundreds of people in Walnut Creek and Sacramento. The Sacramento District was urban, suburban, vast expanses of farmland, nature preserves, rugged mountains and wilderness, and plain old empty space which probably will never fall victim to human excess in our lifetime simply because it is so  big.  

Mr. Spillman had people out there in the posts of duty who were the public face of the most feared and hated institution in the land. Coming up through the ranks, he knew how important it was to personally visit each post of duty at least every other year. Because he was friendly and truly enjoyed a good “meet and greet” he would kibbutz with the front liners and let them ask any question which popped into their heads. “Any word on the hiring freeze?” “Is there any plan at all, to get us some training on the new law?” “Will we ever be able to communicate with taxpayers by email?” “Doesn’t Congress realize that adequately funding the IRS allows us to do our jobs without one hand tied behind our backs? “Will there be any new jobs opening at Headquarters in Sacramento which could lead to a management position perhaps at another post of duty?”

The point is, the District was like a family and we looked out for each other and the DD embodied leadership. On site leadership. The DD staff meetings I referred to in my last blog were "good government" happening right in front of you. The areas of enforcement focus were generally set forth annually by the National Office in what was then known as a Program Letter for Exam, Collections and CID, but Ray Spillman was the quarterback, team captain and cheerleader all in one, and he saw his job as doing whatever he had to do so that his troops could do their jobs. This was often in spite of the sometimes distracting demands of the Region and the National Office.

Needless to say, when we all found out in Sacramento in 1998 that we had new bosses who weren’t even going to be working regularly on site, we were devastated. What’s more, our dear new Sacramento District which we painstakingly put together just fourteen years ago was to be abolished. We were truly heart broken. Never in a million years would we have ever thought that our Sacramento District 10th Anniversary commemorative t-shirts were soon to become a collector’s item. A District-wide contest to design a Sacramento District logo when we first opened for business produced a snazzy art work depicting 49ers panning for gold on the North Fork of the American River and a likeness of the State Capitol building [2].  

Today under “Stove Top,” there is not even a chain of command or any line authority for an upper-level manager to order a mid-level manager to visit a post of duty. They wouldn’t know whom to visit.  And assuming someone from the prestigious Large Business Division had time to pull himself away from Washington, to visit for example, the friendly little office in Eureka in the far northwestern corner of the State, do they just ignore the lowly revenue agents working there from the Mom and Pop/Homeless Taxpayers Division (Read: Small Business/Self-Employed Division) simply because they were part of another Division?

The District Director’s Job Was to Keep His Eye on the Ball.

Apart from fending off Region and the National Office, the key to being a good DD was to have in place a system of open communication and accountably where he or she knew what was going on and knew when, or if, it was time to get personally involved in a substantive issue or personnel matter. This was so, especially in matters which, if done clumsily, could embarrass the Service. Mr. Spillman knew that his mission was to keep the public's perception of the integrity of the organization in high esteem. (In fact its integrity remains at the highest levels ever, but perception is everything.)

After all, the American tax system was founded on the principle that in a truly enlightened democratic society, the people will voluntarily tell their government what was going on tax-wise during the previous year. What a downer for “voluntarily compliance” when the people think they can’t  trust the tax collector. What a shame on us as a people where tax administration is scorned as if it were being run like the rackets by Washington insiders and cliques.

The “Stove Top” Model Needs to be Revisited: As explained by Frank Wolpe in his White Paper, when applied to our district in Sacramento, under the “stove pipe” concoction, the old chain of command was cut off two levels below the chiefs who were firmly under the “line management” of the District Director. Under Stove Top, the division chiefs and branch managers were no longer even there!

The Taxation Section of the American Bar Association is saying, “Pay attention to this!”

The digital age has given us more information than we can even absorb, especially from people who insist on telling us what they really think of the IRS. That said, as an attorney and professional in the field of taxation, I try to pay attention to things the ABA says. Mr. Wolpe’s White Paper should change the whole debate about the IRS.  What he and the ABA are telling us is, “The Emperor seriously has no clothes.” The fact that the vaunted Tax Section of the ABA has offered up Mr. Wolpe’s paper for our consideration should make this issue a game changer for the “let’s-go-kick-around-the IRS” crowd. Unfortunately, the smart money is not on action very soon. And remember it took four years for this huge tanker to change course and sadly, it almost had to come to a full stop before it did so.

Finally, no one of good will takes any comfort in the fact that some people who work for the IRS are not feeling that great about their jobs. Good morale amongst the troops is as vital to effective tax administration as is having the right systems in place to get the job done.

[1] Professor Wolpe's paper can be read here.
[2] For those who have never seen the California Capitol building, it is easy to see why so many people think it is architecturally and aesthetically more beautiful than the Capitol in Washington.

Monday, November 3, 2014


One of the best pieces of writing recently about  the IRS’s continued downward slide, is Professor Emeritus Frank Wolpe’s white paper[1], which was  published by the Taxation Section of the  American Bar Association in its NewsQuarterly, 2014 Winter Issue, as its cover story.[2]

Briefly, Professor Wolpe says the huge 1998 IRS Reorganization was wrong-headed because it scrapped a perfectly good organizational structure which included locally accountable districts and district directors for a “stove pipe” structure which put in place a “too top-heavy and hierarchical structure.” The result was to centralize power in Washington making tax administration a “remotely managed” governmental function with no senior-executive on site oversight.

I was a field office manager in the Office of Chief Counsel when the 1998 reorganization was put in place. It took the IRS four years to make all the changes. During that time, field office enforced collections almost came to a complete halt nation-wide and audit activity drastically declined. Once the new organization charts were drawn and everyone figured out to whom they were supposed to report, the basic jobs stayed the same but the chain of command was drastically different.

The management gurus in Washington were so smugly secure in the wisdom of their new-found stove pipe dogma, it was decided that it wasn’t even necessary for the Commissioner himself to know anything at all about taxes. As Professor Wolpe implies, the new conventional wisdom held that knowledge of Information Technology was all that was needed and the newly-appointed Commissioner was the first Commissioner ever to have neither a law nor an accounting degree.[3]  

 In spite of the new formation concocted by Washington, the good people of the IRS on the front lines eventually got back to work and the IRS enforcement numbers gradually got back up to more effective levels. Morale amongst the 90,000 IRS employees worldwide plummeted, except for those who actually got promotions, but the changes were cynically seen by the rank and file as essentially different labels on empty bottles.

The new structure was so tight it became much harder for front liners to move up the career ladder. Those who got stuck in the new Small Business/Self-Employed Division became jealous of those who were assigned to the sexier specialties in Large Business and International. It became almost impossible to move from the former to the latter. Transfers and promotions from within the IRS became a whole new ball game.  Managers started to play games with staffing models which favored the prestigious Large Business folks. Managers in the Small Business division became embittered like Minor Leaguers who got what was left over after the Large Business big boys picked over their top draft choices.

Career insiders  still working for the Service say morale has never recovered since the 1998 convoluted scheme was put in place, but the front line troops at the IRS have somehow managed to do their jobs in spite of the mess caused by Washington.

Professor Wolpe’s wakeup call comes sixteen years after the big changes but most of us working at the Service on the front lines knew right away what outsiders are only realizing now. It made no sense whatsoever to have people working in California report to a manager who was somewhere in another state or at worst, back in slow-moving Washington.

In the old days of the district director, the IRS field organization was structured around an agent, revenue officer, or special agent who reported to a group manager. The group managers in turn reported to a division chief. The chiefs of collection, examination and criminal investigations in turn reported to an on-site district director who was usually a career-type person with a strong substantive background in either “exam” or collections. He or she would meet regularly with their division chiefs in staff meetings.

The staff meetings with the district director were sometimes fun. As the DD’s “consigliore” (i.e.,, District Counsel) I got to sit in. The DD’s staff meetings promoted comradery and were often rather mirthful. It was a chance for the chiefs to hear what was going on in their counterparts’ areas of specialization. The DD would go around the table and have each division chief report on hot current topics and cases in their inventories. It was not uncommon for the DD to ask his examination chief, “Your revenue agent is taking WHAT(!?) position in this group of cases? You need to set up a meeting with me and your agent so that I can find out what this is all about! It might also be a good idea to have Counsel present.”

The districts reported to regional offices which, as Professor Wolpe says, were sometimes staffed with deadwood, but the main point is there was someone in almost every big city or at least in the state who had an eye on the big picture. This served as a “self-protective structure for early detection and correction” of potential problems.

It’s hard to say if the Tea Pot Scandal in Cincinnati could have been avoided had the old structure been in place since the exempt organization field structure has been closely coordinated with the National Office for many years. That said, so far, it seems that Lois Lerner’s worst mistake in the whole affair was not paying enough attention to her “aging reports” assuming her immediate staff was providing them to her on a regular basis. “Early detection” of the fact that local field people were not getting the guidance they needed in trying to figure out exactly what a section 501(c)(4) organization really was in the first place, could have avoided a made-to-order fall guy for the many IRS detractors in Congress.

One of the most frustrating aspects of the post- 1998 IRS Reorganization for practitioners is the apparent lack of accountability on the part of lower and mid-level managers. Agents still report to group managers but group managers now report to area directors who may be stationed at posts of duty almost anywhere. They in turn report directly to the titanic, muscle-bound National Office which is so big and redundant it has only two speeds, slow and slower. As Professor Wolpe points out, under the stove pipe current structure, the flow of information is restricted “like heat within a plumber’s pipe, to up-down movement through its long narrow shell, which inhibits or prevents cross-organizational communication.” The danger of the stove pipe model, as we see from the IRS today, is that it “tolerates top-to-bottom remote distances between management and staff” and promotes “isolation from other branches of the organization.”

The IRS has never been generous about giving out phone numbers of its people in Washington but for the practitioner who sometimes needs to “elevate” an issue to a higher level manager, there is often really no one to talk to. Some front line workers make it obvious they are merely mouthing messages from someone from afar but nevertheless insist that everything go through them with no direct communication with the real deciders.  

Even when an agent is willing to admit that some puppeteer is really calling the shots, their “industry specialist” is usually in some other time zone and is hard to get ahold of, while the manager is three hundred miles away in the other direction.  It is not uncommon to require an agent or even an appeals officer to have their work on a single case approved by two or more managers in different locations when there are multiple issues in a case. 

This is not to say that the IRS isn’t in woeful need of specialization. One of the reasons the tax shelter era lasted so long prompting the enactment of the TEFRA partnership audit procedures is because it took the IRS so long to figure out what the super high-priced lawyers and big-eight promoters were fabricating[4] before the epidemic spread so fast and so far.

Another example is how offshore tax evasion was allowed to fester for decades. The IRS is only now in the 21st Century, figuring out that this should have been one of their main areas of focus for years, because of the lack of training in the international arena.

Professor Wolpe has laid down a gauntlet for IRS reform and it remains to be seen whether Washington has the guts to take it on.

It is every American’s birthright to be skeptical of the tax man, but the lack of respect for the IRS presently is not a situation which should be tolerated much longer.     


[1] A White Paper on Executive Action to Restore Trust in the Internal Revenue Service by Rebuilding Field Operations
[2] You can read a copy of Professor Wolpe’s paper here.
[3] While the IRS pays lip service to its dedication to improve IT, how ironic that at the same time, revenue agents, revenue officers, appeals officers and IRS Counsel are not allowed to communicate with the public via email. Also, despite the great push for e-filing, the audit cycle from Exam to Appeals to Counsel and the Tax Court is still held hostage by the reliance on a paper file.
[4] Blogger and leading practitioner Jack Townsend smartly refers to them as “bull shit tax shelters.”

Friday, October 31, 2014

Republication of Moodys Gartner Tax Law's Blog "Updated IRS Streamlined Filing Program: Snowbirds Beware"

We are pleased to republish with permission from Roy Berg, on behalf of Moodys Gartner Tax Law, an excellent blog, which pertains particularly to “Canadian snowbirds.”  As the article points out, the new Streamlined Procedures present an anomaly for “snowbirds” under the residency rules in that taxpayers with a green card are U.S. residents under the general rules of the code, but are non-residents under the Streamlined Procedures.  In effect, “the IRS has two different non-residency requirements: one for U.S. citizens or green card holders, and the other for non-U.S. citizens, non- green card holders.  We asked for permission to republish this in an effort to keep this issue alive and hopefully result in a clarification from the IRS National Office.

Please find the republished blog below or you can find the original blog here.

 "Updated IRS streamlined filing program: snowbirds beware"

On October 8, 2014, the IRS issued FAQs clarifying its amnesty programs for non-compliant taxpayers who want to catch-up on their U.S. tax filing obligations.1 These FAQs address the recently amended streamlined filing compliance procedures, offshore voluntary disclosure program (OVDP), and delinquent information return and FBAR submission procedures.2 The FAQs are not relatively enlightening, except for the FAQ on the nonresident streamlined procedures (dubbed the “Streamlined Foreign Offshore Procedures” by the IRS). After briefly summarizing some relevant general rules regarding streamlined, this blog will address the consequences of that FAQ for snowbirds who are US citizens or green card holders and have not filed during the three-year period for which tax returns must be submitted under streamlined and, according to the IRS, spend too much time in the United States. Ultimately, these snowbirds are ineligible for streamlined and must find an alternative way to catch-up with their U.S. tax filing obligations.

I. Summary of the streamlined program

Effective July 1, 2014, there are two versions of the streamlined filing program: one for non-U.S. residents, the other for U.S. residents. Which version applies depends on the taxpayer’s residency under the peculiar rules in the streamlined procedures. Residency is defined in the negative in the eligibility requirements of the nonresident streamlined procedures (the IRS coined it the “non-residency requirement”). Notably, residency under the streamlined program is independent of the general residency rules in the Internal Revenue Code.

Consequently, although taxpayers with a green card are U.S. residents under the general rules of the Code,3 they may be nonresidents under streamlined. Adding insult to injury, the IRS has two different non-residency requirements: one for U.S. citizens or green card holders, and the other for non-U.S. citizens, non-green card holders. The non-residency requirement applicable to U.S. citizens or green card holders is relevant to the streamlined procedures for snowbirds, while the non-residency requirement for non-U.S. citizens, non-green card holders is much more humane and does not exacerbate the dilemma created by the other version of the non-residency requirement.4

Under the general streamlined procedures, taxpayers must submit all required tax returns for each of the most recent three years for which the U.S. tax return due date (including extensions) has passed and six years of late FBARs. There is no criminal penalty protection under streamlined, while civil penalty protection is available unless (1) the original tax noncompliance (for nonresidents) or return (for residents) was fraudulent or (2) the FBAR violation (if applicable) was willful.5 A summary of the specific streamlined procedures is below.

1. Non-resident streamlined (or “Streamlined Foreign Offshore Procedures”).

To qualify for nonresident streamlined, taxpayers must:

1.1. meet the applicable non-residency requirement (if married taxpayers want to file joint tax returns, both spouses must meet the applicable non-residency requirement);

1.2. have failed to report income from a foreign financial asset and pay U.S. tax, and may have failed to file an FBAR or international information return regarding the foreign financial asset; and

1.3. the failure to file resulted from non-willful conduct.6

U.S. citizens and green card holders meet the non-residency requirement if—in at least one year during the three-year period that tax returns must be submitted under streamlined—they both (A) had a non-U.S. “abode” and (B) were physically outside the United States for at least 330 full days.7 The 330-day prong means that taxpayers can spend up to 35 days (36 days in a leap year!) in the United States and still qualify for nonresident streamlined.

The non-residency requirement explicitly originates from the rules in § 911, commonly known as the “foreign earned income exclusion,” and, accordingly, raises the question whether the 35-day rule can be supplemented by the disjunctive clause in § 911(d)(1)(A) for “bona fide” foreign (i.e., non-U.S.) residents who are U.S. citizens or are otherwise residents of certain countries with U.S. income tax treaties.8 That is, one requirement for the foreign earned income exclusion in § 911 is that taxpayers must either be (A) bona fide foreign residents for at least one entire taxable year or (B) meet the 35-day rule (the latter is essentially a safe harbor).9

Before the new IRS FAQ, the streamlined procedures did not explicitly discuss the applicability of the bona fide foreign residence test, but deferred to (and continues to defer to) the rules in § 911 “for purposes of these procedures.”10 For example, “abode” has the same meaning for streamlined’s non-residency requirement as it does in § 911(d)(3), where an abode is generally a dwelling.11 The new FAQ, however, clarifies that § 911 only applies for purposes of determining a taxpayer’s abode—and that the 35-day rule cannot be supplemented by the bona-fide foreign residence test.

Apparently, § 911 does not really apply “for purposes of these procedures,” as the streamlined rules state.12 The purpose for the IRS’s hard stance in the non-residency requirement is (presumably) that individuals who spend more than 35 days in the United States for the three-year period under streamlined should know their U.S. tax obligations better.13

2. Resident streamlined (or “Streamlined Domestic Offshore Procedures”).

To qualify for resident streamlined, taxpayers must:

2.1. fail to meet the non-residency requirement (at least one spouse must fail the non-residency requirement for joint filers);

2.2. have previously filed a U.S. tax return (if required) for each year during the three-year period that tax returns must be submitted under streamlined;

2.3. have failed to report income from a foreign financial asset and pay U.S. tax, and may have failed to file an FBAR or international information return regarding the foreign financial asset; and
2.4. the failure to file resulted from non-willful conduct.14

The third requirement is particularly noteworthy for snowbirds who have not filed a U.S. tax return for the three-year period under streamlined, because it essentially disqualifies them from resident streamlined. The resident streamlined procedures are abundantly clear on this: taxpayers “may not file delinquent income tax returns (including Form 1040, U.S. Individual Income Tax Return)” under resident streamlined.15

II. No streamlined for snowbirds who need to file late forms 1040

The IRS’s new FAQs clarify that snowbirds who do not meet the 35-day rule and need to file late Forms 1040 do not qualify for streamlined (under both the resident and non-resident versions of the program). The IRS FAQ on nonresident streamlined provides that non-residency under the nonresident streamlined procedures is defined in the procedures, not in § 911 and its regulations, except for purposes of determining a taxpayer’s abode.16 These snowbirds must explore the new 2014 OVDP or alternative (and less-certain) means of becoming compliant with their U.S. tax filing obligations.

To qualify for nonresident streamlined, noncompliant taxpayers must meet the non-residency requirement; that is, they must have spent 35 days at most in the United States for at least one tax year during the relevant three-year streamlined period and meet the non-U.S. abode requirement to qualify for the amnesty program. To make matters worse, noncompliant taxpayers who do not meet the non-residency requirement cannot file late income tax returns (e.g., Form 1040) under resident streamlined. Consequently, many non-filer snowbirds who migrate to the United States for what most would consider an insignificant amount of time—e.g., 36 days every year—will not qualify for streamlined.

II.1. Example: Mr. Snowbird’s yearly migrations to the United States

For example, take the typical Canadian snowbird, Mr. Snowbird, who is physically present in Canada for 10 months and in the United States for 2 months at his vacation home every year during the relevant three-year streamlined period. Mr. Snowbird is a dual citizen of Canada and the United States, conducts all of his business in Canada, has no significant U.S. investments other than the vacation home, and has never filed U.S. tax returns (although he was required to do so).

Unfortunately, Mr. Snowbird does not qualify for nonresident streamlined because he spent over 35 days every year during the relevant three-year streamlined period and therefore, fails the non-residency requirement. Mr. Snowbird also does not qualify for resident streamlined because he has never filed a U.S. tax return. Notably, under the old streamlined rules, it was generally understood that a taxpayer like Mr. Snowbird would be permitted to submit returns under streamlined since he did not meet the substantial presence test and would qualify as a Canadian resident under the U.S.-Canada tax treaty.17 According to the IRS, Mr. Snowbird’s only recourse for voluntary disclosure, and the applicable amnesty that accompanies it, is under the new 2014 OVDP, where he must pay at least a 27.5% penalty on his foreign assets.

Alternatively, Mr. Snowbird could file his late U.S. tax returns and attach reasonable cause arguments as appropriate; however, it is unclear how far back in time he must go when filing his late U.S. tax returns. Under streamlined and OVDP, Mr. Snowbird generally must file for three years and eight years, respectively. If he does not use one of these amnesty programs, there is no guidance limiting his filings to a specified number of years. Let us assume that Mr. Snowbird was born in Canada and obtained his U.S. citizenship derivatively through a U.S.-citizen parent, and did not know he was a citizen until 2014.18 He has never had a U.S. passport and does not have a U.S. Consular Report of Birth Abroad.

Thus, if Mr. Snowbird does not use OVDP, there is no telling how far back he must file late U.S. tax returns to become compliant with his filing obligations. If only nonresident streamlined’s non-residency requirement or resident streamlined’s U.S. tax return requirement were more accommodating to snowbirds like him.

Also note that nonresident taxpayers must certify under penalties of perjury that they meet the eligibility requirements for nonresident streamlined—which include the non-residency requirement—on their streamlined certification form. Consequently, Mr. Snowbird would be ill-advised if he chooses to misrepresent his residency on his certification form because he could face criminal prosecution for doing so.19

III. Conclusion

As the example above illustrates, the IRS’s position on a snowbird’s eligibility for streamlined is rather ominous. Does physical presence exceeding 35 days every year justify the disqualification of noncompliant taxpayers who have spent relatively small amounts of time in the United States every year from streamlined—both the resident and nonresident flavors of the program—and the imposition of a 27.5% (or 50%) penalty under OVDP? That seems to be a draconian result, especially for taxpayers who spend two months or less in the United States every year.

This result certainly will not encourage compliance and is inconsistent with IRS Commissioner Koskinen’s rationale for expanding the streamlined program and the significant tightening of OVDP.20 Hopefully, the IRS will reexamine its streamlined requirements to explicitly qualify noncompliant, non-filer taxpayers like Mr. Snowbird for streamlined. If the IRS truly wants to encourage voluntary disclosure, it could (at the least) allow taxpayers to file late income tax returns under its resident streamlined program. A 5% penalty under resident streamlined is certainly more palatable than a 27.5% (or 50%) penalty under OVDP, and is a fairer result for taxpayers who spend relatively trifling amounts of time in the United States every year.

1 These FAQs can be accessed by navigating the links on this page: http://www.irs.gov/Individuals/International-Taxpayers/Options-Available-For-U-S–Taxpayers-with-Undisclosed-Foreign-Financial-Assets.
2 For previous analysis, refer to Paul Barba, Amended IRS Disclosure Programs Expand Eligible Taxpayers But Create the Canadian Snowbird Dilemma: Part 1 (July 7, 2014) available athttp://www.moodysgartner.com/amended-irs-voluntary-disclosure-programs-expand-eligible-taxpayers-but-create-the-canadian-snowbird-dilemma-part-1/.
3 I.R.C. § 7701(b)(1); Treas. Reg. § 301.7701(b)-1. But see Treas. Reg. § 301.7701(b)-7(a)(3).
4 Accordingly, the rules applicable to non-U.S. citizen, non-green card holders will not be discussed here. For more, refer to Paul Barba, supra note 2.
5,6,7 IRS, Streamlined Filing Compliance Procedures (Oct. 9, 2014), available athttp://www.irs.gov/Individuals/International-Taxpayers/Streamlined-Filing-Compliance-Procedures [hereinafter General Streamlined]; IRS, U.S. Taxpayers Residing Outside the United States (Oct. 9, 2014), available athttp://www.irs.gov/Individuals/International-Taxpayers/U-S-Taxpayers-Residing-Outside-the-United-States [hereinafter Nonresident Streamlined]; IRS, U.S. Taxpayers Residing in the United States (Oct. 9, 2014), available athttp://www.irs.gov/Individuals/International-Taxpayers/U-S-Taxpayers-Residing-in-the-United-States [hereinafter Resident Streamlined].
8 Nonresident Streamlined, supra note 5.
7 Nonresident Streamlined, supra note 5; § 911(d)(3) (last sentence); Treas. Reg. § 1.911-2(b); IRS Publication 54 (Dec. 3, 2013), chapter 4, available athttp://www.irs.gov/pub/irs-pdf/p54.pdf. See also § 911(d)(1).
8 Rev. Rul. 91-58, 1991-2 C.B. 340 (the IRS ruled that U.S. residents are allowed to use the bona fide foreign residence test for purposes of § 911 under the nondiscrimination articles of certain U.S. income tax treaties, including the U.S.-Canada treaty).
9 § 911(a), (d)(1).
10 Nonresident Streamlined, supra note 5.
11Treas. Reg. § 1.911-2(b).
12 Resident Streamlined, supra note 5.
13 See Amy S. Elliott, IRS Answers Questions on Updated OVDP and Streamlined Filing, 2014 Tax Analysts W.T.D. 120-3 (June 23, 2014) (statement by Jennifer Best, senior advisor, IRS Large Business and International Division, that “if you’re spending a substantial amount of time in the United States . . . you need to be responsible with respect to your tax obligations.” ).
14 Resident Streamlined, supra note 5.
15 Resident Streamlined, supra note 5.
16 IRS, Streamlined Filing Compliance Procedures for U.S. Taxpayers Residing Outside the United States Frequently Asked Questions and Answers (Oct. 8, 2014) available at http://www.irs.gov/Individuals/International-Taxpayers/Streamlined-Filing-Compliance-Procedures-for-U-S–Taxpayers-Residing-Outside-the-United-States-Frequently-Asked-Questions-and-Answers.
17 § 7701(b)(3); Convention Between the United States of America and Canada with Respect to Taxes on Income and on Capital, U.S.-Can., Article IV(2), Sept. 26, 1980, T.I.A.S. 11087.
18 8 U.S.C. § 1401(g).
19 E.g., § 7206(1); 18 U.S.C. § 1001.