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April 7, 2011

Foreign Financial Transactions (FBAR Reporting)

Persons connected with the transportation into or out of the U.S. of monetary instruments exceeding a specified dollar amount on any one occasion must report the transaction, subject to a number of exceptions. 

Except as provided below, each United States person (as defined below) who has a financial interest in or signature or other authority over bank accounts, securities accounts, or other financial accounts in foreign countries, must make a report of those relationships for each calendar year during any part of which the aggregate value of the accounts exceeded $10,000. The report is made on Form TD F 90-22.1 (Report of Foreign Bank and Financial Accounts or FBAR. 

A United States person means:
... a U.S. citizen,
... a individual who is a resident alien under Code Sec. 7701(b) of the U.S., the District of Columbia, the Indian lands (as that term is defined in the Indian Gaming Regulatory Act), and the Territories and Insular Possessions of the U.S.,
... an entity, including a corporation, partnership, trust or limited liability company organized or formed under U.S. laws or the law of any State, the District of Columbia, the U.S. Territories and Insular Possessions or Indian Tribes. 

Signature or other authority means the authority of an individual (alone or in conjunction with another) to control the disposition of money, funds or other assets held in a financial account by direct communication (whether in writing or otherwise) to the person with whom the financial account is maintained. 

For this purpose, a reportable account includes:
... bank account , e.g., a savings deposit, demand deposit, checking, or any other account maintained with a person engaged in the business of banking,
... a securities account (an account with a person engaged in the business of buying, selling, holding or trading stock or other securities),
... an account with a person in the business of accepting deposits as a financial agency,
... an insurance or annuity policy with a cash value,
... an account with a broker or dealer for futures or options transactions in any commodity on, or subject to rules of, a commodity exchange or association, or
... a mutual fund or similar pooled fund which issues shares available to the general public that have a regular net asset value determination and regular redemptions. 28

In addition, a debit card account is a financial account, and a credit card account may be treated as a financial account under certain circumstances. 29

Accounts that are not subject to the FBAR reporting requirement include:
... an account of a department or agency of the U.S., a State or subdivision or Indian Tribe.
... an account of an international financial institution of which the U.S. is a member.
... an account in a U.S. military banking facility or a U.S. military finance facility operated by a U.S. institution designated by the U.S. government to serve U.S. government installations abroad.
... correspondent or nostro accounts that are maintained by banks and used solely for bank to bank settlements

A U.S. person with a financial interest in 25 or more foreign financial accounts need only provide the number of financial accounts and certain other basic information on the report. The person will be required to provide detailed information when requested. 

Participants and beneficiaries in retirement plans under Code Sec. 401(a) Code Sec. 403(a) Code Sec. 403(b) as well as owners and beneficiaries of individual retirement accounts under Code Sec. 408 or Roth IRAs under Code Sec. 408A are not required to file an FBAR with respect to a foreign financial account held by or on behalf of the retirement plan or IRA. 

The FBAR is due to be received by the IRS by June 30 following the year for which it applies. That due date cannot be extended for any reason.  It is filed separately from your personal tax return.

Persons with signature authority over, but no financial interest in, a foreign financial account must file FBARs for the 2008, 2009, 2010 and earlier calendar years by June 30, 2011. 

Corporations, partnerships, trusts, and LLCs  must all file Form TD F 90-22.1 on their foreign financial accounts.

The Supreme Court has upheld the constitutionality of the foreign financial transaction reporting requirements. Extreme civil monetary penalties and criminal prosecution can result from failure to file these forms.

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