9 Top Questions to Ask an FBAR Lawyer Before Hiring Them

6 Top Questions to Ask an FBAR Lawyer Before Hiring Them

9 Top Questions to Ask an FBAR Lawyer

The FBAR refers to Foreign Bank and Financial Account Reporting (aka FinCEN Form 114). Taxpayers who properly file their FBAR each year do not require the services of a tax lawyer for annual FBAR submission. However, taxpayers who are out of compliance for filing the FBAR in prior years may consider submitting to one of the FBAR amnesty programs to get into compliance and reduce, minimize, or even eliminate foreign account reporting penalties. Unfortunately, these days tax attorneys falsely market their services online and claim to be Board-Certified Tax Law Specialists, when they are not Board-Certified Tax Law Specialists. Some tax firms go as far as falsely claiming to have board-certified tax law specialist attorneys on staff, even if they do not have any attorneys who are State Bar certified.  

When a Taxpayer is out of compliance for prior year filing and wants to get into compliance, they will want to speak with experienced tax attorneys before making any proactive representation to the IRS.

While there are many hurdles and hiring the right offshore tax lawyer, let’s look at nine common questions you should ask any FBAR lawyer.

First, Is the Attorney Board-Certified in Tax Law?

For any tax attorney or law firm that claims that they have a Board-Certified Tax Law Specialist on staff, you should ask them the name of the attorney who is the Board-Certified Tax Law Specialist — and which state they are certified in (even when a Lawyer practices exclusively in Federal Law, they will be Board-Certified in at least one state by the State Bar for Lawyers).

This will help protect you from being in a situation where you pay significant attorney fees to a law firm (because you wanted to hire a Board-Certified Tax Attorney) only to learn later that they do not have any Board-Certified Tax Attorneys on staff.

This resource may help taxpayers seeking to hire offshore tax counsel: How to Hire an Offshore Disclosure Lawyer.

Is the CPA ‘Board’ the Same as a Board-Certified Tax Law Specialist?

The answer is, No — being licensed by the CPA Board does not make an attorney a ‘Board-Certified Tax Law Specialist.’

While both CPAs and attorneys may handle tax matters, a Certified Public Accountant (CPA) or Enrolled Agent (EA) is not the same as a tax attorney. The roles of non-legal tax professionals (CPA and EA) are different than the role of an Attorney. Beyond these designations, some tax lawyers are also licensed as Board-Certified Tax Law Specialists, which means they are licensed by at least one State Bar’s Board of Legal Specialization.

Recently, we have had taxpayers let us know that they had engaged in an initial consultation with a law firm that claims to have Board-Certified Tax Lawyer Specialists on staff — only to learn that there are no attorneys at the firm who are licensed as a Board-Certified Tax Attorney Specialist by any State Bar in the United States. 

The firms claim they are “Board-Certified Tax Law Specialists” because they may have a CPA on staff. Preposterous. The only way to become a “Board-Certified Tax Law Specialist” is for an attorney to complete additional years of specialized tax education, pass a rigorous examination, and officially receive the designation from the State Bar. Many CPAs have no background at all in tax and just because a lawyer obtains a CPA designation does not mean they can call themselves “Board-Certified.”

*Beware of law firms falsely claiming to have Board-Certified tax law attorney specialists on staff.

Is the Free Consultation with a Licensed Offshore Tax Specialist?

Most firms that offer a free consultation do not offer a substantive consultation with an experienced Board-Certified Tax Law Specialist who specializes in offshore tax matters. Instead, it is with a ‘salesperson’ who’s only job it is to scare you into signing with the firm.

What Areas of Tax Law Does the Firm Practice?

FBAR and FATCA are very specialized areas of tax law.

Law firms who practice in these areas will typically practice exclusively in international tax and compliance matters. Therefore, you should be sure to review the attorney’s website to see whether they are just trying to pretend that they specialize in a specific area of talks when a further review of their website shows that they handle 10 or 20 different areas of tax law.

How Many Offshore Cases Does the Attorney Handle a Year?

To gain experience in FBAR cases, the law firm has to handle many different types of foreign account reporting cases. You should confirm with the law firm an estimate of how many cases they take on each year specifically in the realm of offshore disclosure.

How Many Streamlined FBAR Cases Does Your Firm Handle?

If the law firm claims to be an expert or specialized in streamlined filing compliance procedure matters, you should confirm with them how many cases they have handled. Oftentimes, firms will claim they specialize in this area of tax, but take on much more complicated cases than they can handle. This leads to their associates reaching out to our firm (and other firms) asking for help with even the most basic questions. There is nothing wrong with asking for help, but if the firm is charging the client a significant amount of attorney fees because the client believes they hired a board-certified specialist, it unfairly puts the client in a bad position for their submission.

Who Handles the FBAR Cases in the Law Firm?

The taxpayer should confirm the name of the attorney that they will be working with and if they are paying fees to have a partner handle the submission, then they should be sure that it is the partner that is handling this submission and not one of the associates.

How Long Has the Attorney Been in Practice?

Generally, it takes at least 15 to 20 years to become specialized in this area of tax law, so taxpayers should confirm with the law firm not only who will be handling the matter but how long they have been in practice.

Are there Any Additional Fees?

Some firms that offer ‘flat-fees’ try to charge hidden fees for other services. Be sure to confirm with the lawyer (before hiring the firm) that there are no additional fees.

Current Year vs Prior Year Non-Compliance

Getting into compliance requires the coordination of several moving parts working simultaneously. Once a taxpayer missed the tax and reporting (such as FBAR and FATCA) requirements for prior years, they will want to be careful before submitting their information to the IRS in the current year. That is because they may risk making a quiet disclosure if they just begin filing forward in the current year and/or mass filing previous year forms without doing so under one of the approved IRS offshore submission procedures. Before filing prior untimely foreign reporting forms, taxpayers should consider speaking with a Board-Certified Tax Law Specialist who specializes exclusively in these types of offshore disclosure matters.

Avoid False Offshore Disclosure Submissions (Willful vs Non-Willful)

In recent years, the IRS has increased the level of scrutiny for certain streamlined procedure submissions. When a person is non-willful, they have an excellent chance of making a successful submission to Streamlined Procedures. If they are willful, they would submit to the IRS Voluntary Disclosure Program instead. But, if a willful Taxpayer submits an intentionally false narrative under the Streamlined Procedures (and gets caught), they may become subject to significant fines and penalties. 

Need Help Finding an Experienced Offshore Tax Attorney?

When it comes to hiring an experienced international tax attorney to represent you for unreported foreign and offshore account reporting, it can become overwhelming for taxpayers trying to trek through all the false information and nonsense they will find in their online research. There are only a handful of attorneys worldwide who are Board-Certified Tax Specialists and who specialize exclusively in offshore disclosure and international tax amnesty reporting. 

Golding & Golding: About Our International Tax Law Firm

Golding & Golding specializes exclusively in international tax, specifically IRS offshore disclosure. 

Contact our firm today for assistance.