Generally, any U.S. citizen, resident, or person doing business in
the United States who has an ownership interest in, or signatory
authority or other authority over, a financial account (or several
accounts) in a foreign country with an aggregate value in excess of
$10,000 at any time during the calendar year must file a Form FinCEN
Report 114, “Report of Foreign
Bank and Financial Accounts” (commonly referred to as an FBAR),
reporting certain information with respect to that account by April 15
of the subsequent year or the extension due date of October 15. Failure
to file an FBAR is subject to both civil and criminal penalties.
In addition to the FBAR individuals must use Form 8938 to report
specified foreign financial assets with an aggregate value greater than
$50,000 at the last day of the year or more than $75,000 at any time
during the tax year (this threshold doubles for married individuals
filing jointly). The Form 8938 is required to be filed with an
individual’s annual income tax return. Individuals not required to file
an annual income tax return are not required to file the Form 8938.
While the purposes of the Form 8938 and FBAR are similar, and there is
significant overlap. Yet filing the Form 8938 does not relieve an
individual of the requirement to file the FBAR. Many individuals will be
required to file both the Form 8938 and the FBAR to report
substantially the same information. Oddly the reports go to different
parts of the government. The FBAR is filed with FINCEN.GOV while the
8938 is filed with the IRS. Despite the similarities, there are some
differences between the FBAR and the Form 8938. The FBAR is not filed
with an individual’s federal income tax return and must be filed with
the Treasury by April 15 each year. In addition, the filing thresholds
for the Form 8938 and the FBAR are different, and the foreign financial
assets that must be reported on the Form 8938 are not limited to bank and financial accounts.
Thomas M. Carden E.A. JSM
