It’s All in the Cards

BY ORLANDO GOTAY

Earthquakes can be catastrophic events due to massive forces and unpredictability. Science always looks for clues to figure out when the next “big one” will arrive.  In the tax arena, I can’t predict, but there’s an earthquake looming– aimed at persons who own, trade or use virtual currencies (“crypto”).

The IRS responds slowly to technology. Early 2014 guidance simply said crypto was “property” and that crypto income or gain just had to be reported like any other property.

In November 2016, the IRS went after Coinbase, a large San Francisco based crypto exchange, seeking trader information. In 2017 the IRS won– a list of persons with at least one transaction of $20,000 or more between 2013 and 2015.

In June 2019, the IRS sent letters to 10,000 persons urging “review” of tax reporting on account of crypto transactions. Two additional versions of the letter exist, in which the IRS states “potential misreporting” of transactions, or even requesting specific taxpayer responses.

This month, H.M. Revenue and Customs (the British IRS) requested user names and transaction data from UK-based exchanges. The tectonic plates are beginning to shift all over. Tax administrators have seen not just massive money floating around, but unreported and untaxed money.

From IRS court filings: “There has been an explosion of billions of dollars of wealth in just a few years from bitcoin, a significant amount of which has no doubt accrued to United States taxpayers, with virtually no third-party reporting to the IRS of that increase in income.”

And that takes me to the next point, the likely earthquake.

So far, “foreign” crypto is not reportable under Foreign Bank Account Report (FBAR) or Form 8938, Report of Specified Foreign Financial Assets. But all those IRS letters can’t be seen in isolation; they must be part of a broader effort. That could be updated guidance, including new reporting requirements for “foreign” crypto.  And if this concerns you, you should follow this closely.

If “foreign” crypto holdings are reportable, I would expect some type of shoehorning into existing FBAR/8938 reporting schemes…akin to a square peg in a round hole. This would likely require potentially massive information gathering from its owners, just to be able to comply. I would urge crypto holders to look immediately at their holdings, and to begin getting a grasp of the magnitude of data that could be needed: exchanges, transactions, digital wallets, valuation of e-coin, and more.  Forewarned is forearmed!

 

Orlando Gotay is a California licensed tax attorney (with a Master of Laws in Taxation) admitted to practice before the IRS, the U.S. Tax Court and other taxing agencies.  His love of things Mexican has led him to devote part of his practice to federal and state tax matters of U.S. expats in Mexico.  He can be reached at tax@orlandogotay.com or Facebook: GotayTaxLawyer.  This is just a most general outline. It is informational only and not meant as legal advice.

U.S. Tax Clock Stops While In Mexico

The IRS is going through tough times. In recent years, Congress “punished” the agency by providing it a super lean budget. The shutdown also left it with millions of unopened letters and mail. The IRS Ombudsman estimates it will take a year to get back to normal.

One of the things Congress did to the IRS was to require that inactive collection accounts be turned over to Private Collection Agencies. Those were old accounts the IRS felt had little collection potential. Off to work PCAs went, and we have some results. They are not very good at collecting. And when they were able to reach the taxpayer and the taxpayer wanted to set up a payment plan, somehow it fell through. I’ll add that it was tried before, and this time around it seems like yet another fiasco.

Why, you would say, do I take time to write about this? Well, for any of my readers that may have outstanding IRS debt, it is always important to know a few things. Generally, once the tax liability is assessed (imagine the entry in the government’s ledger “Joe owes us X dollars”), the government has ten years from that date to collect. So, it’s easy to say, “Why can’t I just wait this out if the debt is old?”

You should know the 10-year collections clock comes with that “exceptions apply” language we often see in ads. One you should know about: If a taxpayer is outside the U.S., the collection clock stops until the taxpayer returns to the U.S., then it restarts six months thereafter. Otherwise, it stops forever.  If, in the course of your conversation with one of these folks, they learn that you like real margaritas and tacos, instead of their north-of-the-border facsimiles, your collection file will be coded such that the debt will not expire.

The other consequence is that those debts continue accumulating penalties and interest. It’s not difficult to see how old tax debt can balloon up to the magic debt level that would make you eligible for passport non-renewal or cancellation.  You see, they have all kinds of persuasive methods.

Another way in which this can be addressed is through a payment plan that takes into account your living expenses versus your income, or through an offer in compromise where a sum is offered in exchange for release of all liabilities. Whether one or the other is convenient depends on one’s individual circumstances.

Orlando Gotay is a California licensed tax attorney (with a Master of Laws in Taxation) admitted to practice before the IRS, the U.S. Tax Court and other taxing agencies.  His love of things Mexican has led him to devote part of his practice to federal and state tax matters of U.S. expats in Mexico.  He can be reached at tax@orlandogotay.com or Facebook: GotayTaxLawyer.  This is just a most general outline. It is informational only and not meant as legal advice.

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