Taxpayers with foreign financial accounts or foreign financial
assets have filing responsibilities that should not be overlooked. There are two primary IRS international reporting forms required for
individuals to disclose their interests in foreign accounts or foreign assets:
1) Treasury Form TD F 90-22.1, Report of Foreign Bank
and Financial Accounts (“FBAR”) for foreign
accounts, and 2) Form 8938, Statement of Foreign
Financial Assets, for foreign
assets.
If you have a financial interest in a foreign bank or financial
account with a combined balance of more than $10,000 (at any time during the
year), or you have signature authority over such an account, you are required
to report the account annually to the Treasury Department by filing the FBAR.
This form is due on June 30th of each year. No
extensions are available and the form must be received by the due date, not just
mailed by the due date, to avoid the $10,000 late filing penalty. This penalty
can increase significantly if the failure to file or supply correct information
is willful.
Form 8938 is much the same an is used to report “specified
foreign financial assets” if the total value of all specified foreign financial
assets in which you have an interest is more than the reporting threshold
(which varies depending on your filing status and whether you live in the U.S.
or abroad). You are required to include a reportable asset even if you receive
no income or distributions with respect to that asset. Form 8938 must be
filed with your income tax return. The penalty for failure to file this form or
late filing is $10,000. If you receive a notice from the IRS for failure to
file this form and do not file it within 90 days of the IRS notice, additional
penalties may be imposed.
What are specified foreign financial assets?
Specified foreign financial assets include:
·
Savings, deposit,
checking and brokerage accounts held with a foreign financial institution;
·
Stock or securities
issued by a foreign corporation;
·
A note, bond or
debenture issued by a foreign person;
·
A swap or similar
agreement with a foreign counterparty;
·
An option or other
derivative instrument that is entered into with a foreign counterparty or
issuer;
·
A partnership interest
in a foreign partnership;
·
An interest in a
foreign retirement plan, pension, or deferred compensation plan;
·
An interest in a
foreign estate;
·
Any interest in a
foreign-issued insurance contract or annuity with a cash-surrender value;
·
Any financial account
maintained by a foreign financial institution;
·
Reportable assets held
by a disregarded entity.
The above list is not all inclusive. Other assets may also
be considered specified financial assets and must be reported.
What are NOT specified foreign financial assets?
The IRS has indicated that certain assets are not considered
specified foreign financial assets and therefore do not have to be reported.
These include:
·
Foreign real estate
(e.g., personal residence or rental property), unless the real estate is held
through a foreign entity, such as a corporation, partnership, trust or
estate. In such cases, the interest in the entity is reported on Form
8938;
·
Foreign currency;
·
Directly held shares
of a U.S. mutual fund that owns foreign stocks and securities;
·
Financial account
maintained by a U.S. financial institution that holds foreign stock and
securities (e.g., U.S. mutual fund accounts; IRAs (traditional or Roth); 401(k)
retirement plans; qualified U.S. retirement plans; and brokerage accounts
maintained by U.S. financial institutions. This is an exception to the
general rule that a financial account maintained by a foreign financial
institution is a specified foreign financial asset. A financial account
maintained by a U.S. branch or U.S. affiliate of a foreign financial
institution does not have to be reported on Form 8938;
·
Financial account,
such as a depository, custodial or retirement account, is held through a
foreign branch or foreign affiliate of a U.S.-based financial institution;
·
Safe deposit box;
·
Payments or the rights
to receive the foreign equivalent of Social Security; and
·
Directly held tangible
assets, such as art, antiques, jewelry, cars and other collectibles;
·
Directly held precious
metals, such as gold. Note, however, that gold certificates issued by a foreign
person may be reportable on Form 8938. Similarly, a contract with the
foreign person to sell assets held for investment is reportable on form 8938.
Again, this list is not all inclusive.
Valuation
Once it has been determined that an asset is required to be
reported, it is important that the correct amount be reported. The following
guidelines should be used in determining the amount of specified foreign
financial assets to report on Form 8938:
·
The value of your
interest in the foreign pension plan or deferred compensation plan is the fair
market value of your beneficial interest in the plan on the last day of the
year. If you do not know, or have reason to know, based on readily accessible
information the fair market value of your beneficial interest in the pension
plan or deferred compensation plan on the last day of the year and you did not
receive any distributions from the plan, the value of your interest in the plan
is zero;
·
Fair market value of a
foreign financial account is its maximum value based on periodic account
statements; and
·
For a specified
foreign financial asset not held in a financial account, you may determine the
fair market value of the asset based on information publicly available from
reliable financial information sources. Even if there is no information from a
reliable financial information source or other verifiable source, you do not
need to obtain an appraisal by a third party in order to reasonably estimate
the asset’s maximum value during the tax year.
FBAR & Form 8938
Filing Form 8938 does not relieve you of the separate
requirement to file the FBAR, if you are otherwise required to do so, and
vice-versa; however, if you are not required to file an income tax return, you
are not required to file Form 8938. If you omitted Form 8938 when you filed
your income tax return and you were required to file this form, you should file
Form 1040X, Amended U.S. Individual Income Tax Return, with Form 8938 attached,
as soon as possible.