For tax years beginning after March 18, 2010, certain individuals must file new Form 8938 to report the ownership of specified foreign financial assets if the total value of those assets exceeds the reporting threshold amount.

Who Must File: Unless an exception applies, you must file Form 8938 if you are a specified person that has an interest in specified foreign financial assets and the value of those assets is more than the applicable reporting threshold.

Exception: If you do not have to file an income tax return for the tax year, you do not have to file Form 8938, even if the value of your specified foreign financial assets is more than the appropriate reporting threshold.

Specified individual: You are a specified individual if you are one of the following:

1. A U.S. citizen

2. A resident alien of the United States for any part of the tax year

3. A nonresident alien who makes an election to be treated as a resident alien for purposes of filing a joint income tax return

Specified foreign financial assets: Generally include the following assets:

1. Any financial account maintained by a foreign financial institution.

2. To the extent held for investment and not held in a financial account, any stock or securities issued by someone that is not a U.S. person, any interest in a foreign entity, and any financial instrument or contract with an issuer or counterparty that is not a U.S. person.

Reporting threshold: If the total value of your specified financial assets is more than the following:

Form 8938 does not relieve you of the requirement to file FBAR form TD F 90-22.1

The Internal Revenue Service on January 9^th, 2012 reopened the offshore voluntary disclosure program to help people hiding offshore accounts get current with their taxes.

The IRS reopened the Offshore Voluntary Disclosure Program (OVDP) following continued strong interest from taxpayers and tax practitioners after the closure of the 2011 and 2009 programs. The third offshore program comes as the IRS continues working on a wide range of international tax issues and follows ongoing efforts with the Justice Department to pursue criminal prosecution of international tax evasion.  This program will be open for an indefinite period until otherwise announced.

The program is similar to the 2011 program in many ways, but with a few key differences. Unlike last year, there is no set deadline for people to apply.  However, the terms of the program could change at any time going forward.  For example, the IRS may increase penalties in the program for all or some taxpayers or defined classes of taxpayers – or decide to end the program entirely at any point.

Since the 2011 program closed last September, hundreds of taxpayers have come forward to make voluntary disclosures.  Those who have come in since the 2011 program closed last year will be able to be treated under the provisions of the new OVDP program.

The overall penalty structure for the new program is the same for 2011, except for taxpayers in the highest penalty category.

For the new program, the penalty framework requires individuals to pay a penalty of 27.5 percent of the highest aggregate balance in foreign bank accounts/entities or value of foreign assets during the eight full tax years prior to the disclosure. That is up from 25 percent in the 2011 program. Some taxpayers will be eligible for 5 or 12.5 percent penalties; these remain the same in the new program as in 2011.

Participants must file all original and amended tax returns and include payment for back-taxes and interest for up to eight years as well as paying accuracy-related and/or delinquency penalties.

Participants face a 27.5 percent penalty, but taxpayers in limited situations can qualify for a 5 percent penalty. Smaller offshore accounts will face a 12.5 percent penalty. People whose offshore accounts or assets did not surpass $75,000 in any calendar year covered by the new OVDP will qualify for this lower rate. As under the prior programs, taxpayers who feel that the penalty is disproportionate may opt instead to be examined.

The IRS is currently developing procedures by which dual citizens and others who may be delinquent in filing, but owe no U.S. tax may come into compliance with U.S. tax law. The IRS is also committed to educating all taxpayers so that they understand their U.S. tax responsibilities.

More details will be posted on our blog, as it becomes available.

Official announcement can be read here http://www.irs.gov/newsroom/article/0,,id=252162,00.html?portlet=108

Let me first give you all a brief background of tax system in both countries (i.e. India and USA).

In India, the income tax is levied on the income that is generated during a fiscal year which commences on 1^st April and ends on 31^st March of each year. The due date of filing the Individual tax return is 31^st July.

In USA, the income tax is levied on the income that is generated during a calendar year which commences on 1^st January and ends on 31^st December of each year. The due date of filing the Individual tax return is 15^th April.

Firstly, a taxpayer who pays or accrues a foreign income tax may not take the tax into account in calculating the foreign tax credit or deduction until the related income is taken into account for USA income tax purposes.

So let us assume that you have disclosed all your income generated in India in your USA Tax Return. This includes income that is tax free in India e.g. Dividend Income, PPF (Public Provident Fund) interest, Long Term Capital Gain (on listed Companies), etc.

Now the question, how can you claim the benefit of taxes paid in India on your USA Tax Return.

USA tax payer is allowed a credit or deduction against USA income liability for foreign taxes paid or accrued to a foreign country. Qualified foreign taxes do not include taxes that are refundable to you or used to provide a subsidy to you.

You can choose to take the amount of any qualified foreign income taxes paid or accrued during the year as a foreign tax credit or as a deduction.

To choose the deduction, you must itemize deductions on Form 1040, Schedule A.

To choose the foreign tax credit you generally must complete Form 1116 and attach it to your Form 1040.

If you use Form 1116 to figure the credit, your foreign tax credit will be the smaller of the amount of foreign tax paid or accrued, or the amount of United States tax attributable to your foreign source income. Penalties, interest, fines and similar obligations are not creditable foreign taxes.

Generally, it is more advantageous for a USA tax payer to claim the tax credit because it is taken against the tax payers USA liability on a dollar-for-dollar basis. In contrast, a deduction for foreign taxes merely reduces a taxpayers income subject to tax.

Credit or Deduction shall be taken as follows:

1. Interest Income: In India on the interest income the payer is required to deduct TDS (Tax deducted at source) and pay only the net amount to the payee. At the end of the year (i.e. 31^st March ) the payee receives a statement referred to as Annual TDS Certificate. This TDS Certificate shall reflect the amount of TDS deducted from payee on a quarterly basis. So, if a USA person has included the Income for the three quarters say April to December, then he should take TDS amount paid as foreign tax credit or deduction for only period April to December.
2. Capital Gains and Other Income: Take the income that is generated in your Calendar Year as Income and take TDS paid on that income as a credit or deduction.
3. Advance Tax: The Term Advance tax in India is similar to Estimate Tax in USA. Now here I have couple of examples for everyone:
   1. For income such as interest, let us assume that you have earned income of Indian Rupees (“INR”) 5,00,000 in a fiscal year and total tax you paid on your Indian income is INR 25,000. Average rate of tax thus comes to 5%. If in the calendar year, you have earned income of INR 3,50,000 then you need to show this income in your US tax return and claim foreign tax credit of Rs. 17,500.
   2. Let us take another scenario, say you sold a property on 15^th October 2011 and tax liability on the sale of the property came to INR 100,000. In India, you would pay Advance Tax on 15^th December of INR 60,000 and on 15^th March of INR 40,000. Now for USA point of view, as you would have disclosed the entire income of Capital Gain in calendar year 2011. You would able to take the entire tax paid or accrued as credit or deduction. In this case the INR 60,000 would be regarded as Paid and INR 40,000 would be regarded as Accrued.
4. Self Assessment Tax: The Term Self Assessment tax in India is similar to Amount you Owe on your line 76 of Form 1040 in USA. You can take proportionate credit of the taxes paid, for the income that you have disclosed in your USA tax return.

Now someone may ask after reading 1 to 4 above, what if I had a refund in the foreign country. Well then you need to find out what is your Average Rate of Tax and take credit only to that extent.

So what is Average Rate of Tax:

Let us take an example: You have following Income:

Interest INR 300,000

Other Income INR 200,000

Short Term Capital Gain INR 500,000

Total Income INR 1,000,000

Tax on the Above Income INR 150,000

Less: TDS on Interest INR 60,000

Less: TDS on Other Income INR 40,000

Less: Advance Tax paid INR 200,000

Refund Due INR 50,000

Now you cannot claim the entire TDS and Advance Paid as your credit as you got a refund of INR 50,000. Your Average Rate of Tax would be 15% and not 20%. You can claim credit to the extent of 15%.

The bottom line is that you can take credit or deduction of taxes paid in the foreign country towards the foreign income disclosed in your USA tax return. The credit or deduction should not be more that the Average Rate of Tax that you paid in the foreign county.

As you would only come to know about your Average Rate when you file the return in the foreign country (in India by July 31^st ), you have two alternatives: Either file for an automatic extension of six months in USA or estimate what your Average Rate of Tax is going to be in the foreign county (if it turns out that your estimate was incorrect then the final arrived percentage, then you will have to revise your return).

Foreign Tax Credit involves complex analysis of each transaction. There are special rules for allow credit only of fulfillment of certain criteria’s. Please consult knowledgeable USA – India Tax advisor for proper tax disclosure and maximum tax benefits. 

We are often asked as to who must file an Individual Tax Return in US.

Generally, all US Citizens and resident aliens (refer to our blog in October 2011 as to who is regarded as resident alien) are liable for federal income tax on their world wide income, without regard to whether the income arose from sources within or outside of United States. For each tax year, a return must be filed by them who has at least a specified minimum amount of gross income.

The filing threshold for most individuals is the sum of the applicable exemption amount plus the applicable standard deduction amount for the tax year.

Generally, the gross income levels at which individuals must file income tax returns for 2011 are:

If the applicable gross income test is met, then a return must be filed even though the individuals exemptions and deductions are such that no tax is due.

If the applicable gross income test is not met, then a return is required to filed whenever a refund of tax or refundable credit such as earned income credit is available.

A return is also required to be filed if:

1. Net earnings from self-employment are at least $400.
2. Liability for Alternative Minimum tax is incurred, etc.
3. You received advance earned income credit payments from your employer. These payments are shown in Form W-2, box 9
4. Recapture of first time home buyers tax credit.
5. Social security and Medicare tax on tips you did not report to your employer or on wages you received from an employer who did not withhold these taxes. etc.

Very often we are asked, why a person who is residing in U.S and is on an H1 or L1 visa, required to disclose his world wide income in his U.S Tax return.

Our first suggestion, please do not confuse your Immigration status with your Tax status. They are two independent bodies and have different set of rules. Having said that, let us brief you the U.S Tax requirement.

A resident alien’s income is generally subject to tax in the same manner as a U.S citizen. If you are a resident alien, you must report all interest, dividends, wages or other compensation for services, income from rental property or royalties and other types of income on your U.S tax return. You must report these amounts whether from sources within or outside  the United States.

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