Sam Brotman August 25, 2014 4 min read

Opting Out of the Offshore Voluntary Disclosure Program (ODVP) - Part Two

Here are the steps that IRS examiners take before a taxpayer makes the irrevocable decision to opt out:

1. Send Status Letter to the taxpayer setting forth the status of the voluntary disclosure certification, documents required to finalize the certification, and, if known, the tax, interest, and penalties likely to be due under the terms the OVDP.

2. If the taxpayer does not provide the documents or make arrangements to provide the documents within 30 days of the status letter, the examiner will issue a second letter explaining that the decision to opt out is irrevocable and must be made in writing. The letter reminds the taxpayer of the continuing responsibility to cooperate with the Service under Criminal 'Investigation's Voluntary Disclosure Practice and instructs the taxpayer to provide a written statement setting forth the facts of the case and a recommendation of the penalties that should apply and the rationale for the penalty recommendations within 20 days of receiving the letter from the IRS.

3. Once the taxpayer has provided the written intention to opt out of the ODVP, the examiner will prepare a summary of the case. The summary will document whether the examiner agrees with the taxpayer's statement of facts and recommendation of the penalties that should apply. The examiner's summary will include a recommendation regarding the scope of the examination.

4. After the examiner has provided the summary, the examiner will forward the taxpayer's statement of facts, penalty recommendation, and rationale along with the examiner's summary of the case, and the examiner's case history notes to the centralized review committee.

5. The centralized review committee will review the taxpayer's statement of facts and recommendation of the penalties that should apply and the rationale for the penalty recommendations along with the examiner's statement and case history notes in order to determine how the examination will proceed. The committee will decide on the appropriate level of examination, keeping in mind that the taxpayer is not to be punished (or rewarded) for opting out. The committee will determine whether to reassign the case for a normal examination along with a determination of the likely scope of such examination, to reassign the case to a Special Enforcement Program agent, or to assign the case for other treatment. In making this determination, the committee will consider whether the results under the applicable voluntary disclosure program appear too severe given the facts of the case. The committee will also consider the cooperation of the taxpayer and the representative during the certification process, including whether removal was under consideration at the time of opt out. The decision of the committee is final.

6. If the case is assigned for a full-scope examination, the examiner ordinarily will interview the taxpayer to finalize the scope of the exam. Unless otherwise instructed by the centralized review committee, the examiner in ODVP must open all years included in the taxpayer's voluntary disclosure.

Examiners are advised that taxpayers should not be treated in a negative fashion merely because they choose to opt out of ODVP; however, keep in mind you have already handed them all of the details of your accounts and actions. If you opt out, an audit is unavoidable. [1]


[1] See IRS memorandum, “Guidance for Opt Out and Removal of Taxpayers from the Civil Settlement Structure of the 2009 Offshore Voluntary Disclosure Program (2009 OVDP) and the 2011 Offshore Voluntary Disclosure Initiative (2011 OVDI)” (June 1, 2011).