Former DOJ Tax Division AAG Kathy Keneally warned on June 24, 2014, that taxpayers should think carefully before signing a certification of non-willfulness and entering the IRS’s new Streamlined Filing Compliance Procedures. The certification is under penalties of perjury. Importantly, the streamlined procedures provide no protection from criminal prosecution if the IRS decides that a taxpayer willfully failed to disclose a foreign account. Such a prosecution could be for submitting a false sworn statement of non-willfulness or for the underlying failure to disclose a foreign account. Former AAG Keneally said that signing the certification without thoroughly analyzing one’s willfulness was “a very dangerous approach.” A senior IRS official added that the IRS’s review of the certifications will include a cross-check of data that it receives from taxpayers who are in the OVDP, whistle-blowers, cooperating banks, and other sources.

Recent cases in federal courts around the country show that the government is taking an aggressive view of the legal definition of willfulness. Anyone considering the streamlined procedures should consult an attorney who can thoroughly analyze his or her facts and circumstances in light of recent court precedent.