Will the United States Enact a Federal Law on Privacy?

By Alex Rainville

With corporate giants like Amazon, IBM, Citigroup, and 48 others pushing for federal legislation on privacy, will the United States Congress act? In a letter to Congress, dated September 10, 2019, these corporate giants are pushing for a “comprehensive consumer data privacy law” that will stabilize the myriad of state rules.

In the absence of federal legislation, individual states have taken the responsibility for legislating consumer privacy and data security standards. In fact, Alabama was the last to enact such a law, and that law has been in effect since June 1, 2018. However, most individuals are unaware of their rights and, importantly, most businesses are unsure of how, or are simply unable, to comply with many of the state laws. Even the much-publicized California Consumer Privacy Act (“CCPA”) remains a challenge for businesses to comply with, and many businesses remain unaware that they are subject to this rules even though they reside outside of California.

This push for federal privacy legislation comes on the heels of the European Union enacting and implementing the General Data Protection Regulation, which ushered in an unprecedented level of privacy measures for European Union Data Subjects and regulatory burdens for data controllers and processors. Will the US Congress follow suit and implement a federal data privacy law? Only time will tell, but businesses should be prepared to comply with each state rule, as enforcement and fines for failure to comply have started to hit US companies of all size.

© 2019 Vandeanck Weaver LLC
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IRS Issues Final Regulations for Foreign Owned Single Member LLCs

The Internal Revenue Service (“IRS”) issued final regulations that will increase reporting requirements for certain foreign owned single member limited liability companies (“LLC”). When a single member LLC is formed, for federal tax purposes, it is a disregarded entity by default. This means that income, loss, and subsequent tax obligations will pass through the entity to the owner. The final regulations change the default rule when a LLC is wholly owned by a foreign person, requiring the LLC to be treated as a domestic corporation separate from its owner.

By having these LLCs treated as a domestic corporation, separate from its owner, the LLC must obtain an Employer Identification Number (EIN) and annually file an information return, Form 5472. The LLC must also maintain records of reportable transactions with the foreign owner or foreign related parties. Ultimately, the IRS believes that this will ensure that disregarded LLCs aren’t used by foreign owners to shield assets from the IRS.

Although this change is designed to prevent abusive practices, this has a practical impact for foreign owners of a domestic LLC, ultimately increasing administrative requirements. For further information, the IRS regulation can be found at the following address: https://www.irs.gov/irb/2016-21_IRB/ar19.html

© 2017 Vandenack Weaver LLC
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FBAR Deadline Moved to April 15 for 2017 Filings

The Reports of Financial Bank and Financial Accounts (FBAR) will be due April 15, starting for returns due in 2017, for taxable year 2016. The new due date is more than two months earlier than the previous June 30th due date, but will align with the due date for individual income tax returns. The new law, however, allows certain taxpayers the potential for an extension to the filing deadline, up to October 15. Under the previous rule, all FBARs were due on June 30th, without the possibility of extension. Americans living abroad receive the same automatic extension as received for income tax returns to June 15 for filing the FBAR.

Annual FBAR filings are required of an American taxpayers that own or have signature authority over foreign financial accounts, if the aggregate amount of all foreign accounts is greater than $10,000. Penalties for willful or fraudulent violations of this law can come as a substantial fine or even up to five years of prison time. Although these provisions, enforced by the Financial Crimes Enforcement Network (FinCEN), generally have not changed, one new addition has been added. Specifically, the Secretary now has the power to waive the penalty for failure to file or request an extensions for first time offenders.

The FBAR changes are a result of a small provision within the highway appropriations bill, the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015, signed into law on July 31, 2015.

© 2015 Houghton Vandenack Williams
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Required Reporting of Offshore Assets

US individual and business taxpayers with interests in certain foreign or offshore financial assets or accounts are required to disclose those assets on their federal income tax returns or file additional forms. A failure to file the necessary forms or a failure to disclose reportable assets can lead to both criminal and substantial monetary penalties.

The IRS has established various programs for remedying certain non-compliance issues and limiting liability for taxpayers that either fail to file or make proper disclosure. The programs typically involve voluntary disclosure of the reportable assets or the filing of amended returns. These voluntary programs must normally be undertaken prior to any IRS investigation of the matter. The correct remedy and actual eligibility for the various programs depends on the circumstances surrounding the failure to disclose the reportable assets or the failure to file the necessary forms.

In 2014, the IRS announced modifications of certain programs, but expanded others to accommodate additional taxpayers. For more information, see http://www.irs.gov/uac/Newsroom/IRS-Makes-Changes-to-Offshore-Programs;-Revisions-Ease-Burden-and-Help-More-Taxpayers-Come-into-Compliance. IRS, IRS Makes Changes to Offshore Programs; Revisions Ease Burden and Help More Taxpayers Come into Compliance; IR-2014-73, June 18, 2014.

If you have foreign or offshore assets, it is best to contact an attorney to determine whether those assets are reportable, and if you have failed to report those assets, it is important to determine what steps should be taken to limit the risks associated with the previous failure to report foreign or offshore assets.

© 2015 Houghton Vandenack Williams

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FATCA Requirements for Individuals

The IRS recently released guidance regarding new reporting requirements under the Foreign Account Tax Compliance Act (FATCA).  Under FATCA, the IRS requires that certain U.S. taxpayers with “specified foreign financial assets” exceeding certain thresholds report those assets to the IRS by attaching form 8938 to their income tax return this year. Generally, taxpayers living in the U.S. and holding foreign financial assets must file form 8938 if:

1. the aggregate value of their foreign holdings exceeds $50,000 ($100,000 for joint returns) on the last day of the taxable year (increasing to $200,000/$400,000 for taxpayers living abroad); or
2. the aggregate value exceeded $75,000 ($150,000 for joint returns) at any point during the taxable year (increasing to $300,000/$600,000 for taxpayers living abroad).

Taxpayers may be subject to a penalty of $10,000 for a failure to file form 8938 when required, increasing to $50,000 for a continued failure after IRS notification.  Additionally, underpayments of tax resulting from undisclosed foreign financial assets are subject to an understatement penalty of 40 percent.  The IRS hopes that such penalties, coupled with reporting requirements for foreign financial institutions regarding their U.S. accountholders, will result in increased tax compliance and reduced tax evasion (see http://www.irs.gov/pub/irs-pdf/i8938.pdf for further information).

© 2012 Parsonage Vandenack Williams LLC

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