Green Card Holder Eligibility & Streamlined Disclosure
Is a Green Card Holder Eligibility for Streamlined Disclosure? We summarize Green Card Eligibility & Risk for IRS Tax Amnesty. A common concern amongst legal permanent residents who are considering the streamlined procedures, is whether submitting to the IRS streamlined procedures may put their green card at risk. From our experience, the answer is — absolutely not. In fact, the opposite is true, since being in compliance with the U,S, government provides a safeguard against potential immigration issues. The stand-alone streamlined procedures were developed by the IRS back in 2014. The program is to assist U. S. persons who are out of IRS compliance for unreported offshore accounts, assets, investments and income.
Permanent Residents & Voluntary Disclosure
In recent years, Green Card Eligibility & Risk for IRS Tax Amnesty has changed. The IRS has made offshore accounts compliance a key enforcement priority. The failure to be in compliance may results in any number of different offshore fines and penalties – with the worst being the infamous FBAR Penalty.
To assist taxpayers, the IRS has expanded the offshore disclosure initiative. It allows green card holders to submit to various amnesty programs, such as the Streamlined Filing Compliance Procedures (SFCP). The streamlined procedures can be broken down further into the Streamlined Domestic Offshore Procedures, and Streamlined Foreign Offshore Procedures.
Which Offshore Program Do I Qualify For?
The status of the legal permanent resident will impact which program they may qualify for:
Legal-permanent residents are considered U.S. persons. As a U.S. person, they are treated just as a U.S. citizen would be treated. Therefore, the baseline position would be the Streamlined Domestic Offshore Procedures and the 5% miscellaneous offshore penalty.
But, if the legal-permanent resident can show that she he or she was out of the country for at least 330-days in any one of the last 3-tax years, they may qualify for the Streamlined Foreign Offshore Procedures — and a penalty waiver.
Former Legal-Permanent Residents
If a person is a former legal-permanent resident (and presuming they voluntarily abandoned their status and have no expatriation issues), they would presumably qualify for the Streamlined Foreign Offshore Procedures, as long as they can show they did not meet the substantial presence test in any one of the last 3-years. If they are no-longer legal-permanent residents BUT qualify as U.S. persons because they met the substantial presence test for all 3-years, they may have to submit under the Streamlined Domestic Offshore Procedures.
Is My Green Card at Risk?
Generally, the answer is – no. The submission to the streamlined program is not a crime, and literally has no criminal element to it, at all (Be careful of online fear-mongering).
Here is a simple analysis to explain why for most applicant, their legal permanent residence or green card status is not at issue.
Streamlined is not a Criminal Submission
There is no criminal aspect to the streamlined submission. Typically, when a green card holder’s status is at issue, it is because they committed a crime. A non-willful submission is equivalent to resolving a mistake in your taxes.
Streamlined is for Non-Willfulness
When a person submits to the streamlined program, they are certifying under penalty of perjury that their non-compliance was non-willful. Non-willfulness is equivalent to negligence, and negligence lacks any intent. Therefore, if there was no intent to avoid reporting, there is no crime, and hence the green card status is not at issue.
*The lower thresholds of civil willfulness is not the same as criminal willfulness.
The IRS and USCIS are not the same
The IRS handles taxes and USCIS (formerly INS) handles immigration. The IRS does not generally communicate with the USCIS when processing streamlined cases. In other words, unless there are other, more complex facts at issue, the mere submission of a streamlined case would not serve as a catalyst for a USCIS Investigation – when no crime has been committed.
International Tax Law Firm Specialist Team
Our firm specializes exclusively in international tax, and specifically IRS offshore disclosure.
Contact our firm today for assistance with getting compliant.