Yes. In May, the IRS published taxpayer-friendly internal guidance for use in cases dealing with FBAR penalties. Amongst other items, the guidance provides that, in most cases, the maximum willful FBAR penalty asserted for all years under examination is limited to 50 percent of the highest aggregate balance in foreign financial accounts. For non-willful FBAR violations, in most cases, the highest proposed penalty is limited to $10,000 per year.
If you are involved in the OVDP, this guidance will greatly increase the viability of a potential opt out and could result in substantially reduced FBAR penalties. An opt out allows a taxpayer to avoid the rigid OVDP penalty, but also requires a civil tax examination. While not guaranteed, as a result of this guidance, you can be more certain that opting out will not result in imposition of substantially higher penalties and could actually result in significantly reduced penalties. Further, in an opt out, you can still take advantage of the criminal protections offered by the OVDP. Even if you are not eligible for the OVDP or it is not the preferred option to address compliance, you and your advisor should be aware of this framework when addressing FBAR non-compliance through civil examination or other compliance procedures.
(This was originally published in the Baltimore Business Journal on June 5, 2015.)