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July 26, 2012

FBAR (TDF 90-22.1) - When is there willful failure to file which leads to highest penalties?

The  4th District Federal Court has just held that there is willful failure to file an FBAR (TDF 90-22.1) form when you check the box "NO" on schedule B with reference to foreign bank and finanical accounts when you know you have combined highest balances in foreign accounts of $10,000 or more during the year. They stated this is sufficient showing of willfulness whether or not you know the FBAR (TDF 90-22.1) existed or was required to be filed.

If you willfully fail to file an FBAR form the penalties can be the greater of $100,000 or 50% of the highest balance in your accounts for each year. There are also criminal penalties  for willful failure to file of up to five years in Jail and a $250,000 fine.

The penalties for non-willful failure to file the Form can be $10,000 or less.

July 8, 2012

Passive Foreign Investment Companies -Form 8621

One of the most overlooked forms for US expatriates making investments abroad, or any US taxpayer living in the US that invests in foreign mutual funds is Form 8621.  If you do not file this form and make certain elections allowed by that form (SEE INSTRUCTIONS TO FORM HERE) you may incur extremely adverse US tax consequences  when you finally sell your foreign investment.  This form is complex and often difficult to complete due to the elections you must make and the information which must be included in the form.  Most taxpayers overlook this form and its important elections because they assume a foreign mutual fund will  be treated the same as a US mutual fund.  It is not!

WHEN MUST THIS FORM BE FILED?  It should be filed when you own a foreign mutual fund (not sold in the US securities market) or you own a foreign corporation that as a major portion of its activities invests in foreign equities, foreign mutual funds and other foreign investments.  This form does not need to be filed is you merely own actual foreign stock certificates, or shares in a foreign corporation that does not produce passive investment income.

Form 8621 is filed annually with your personal tax return. A separate Form must be filed for each separate foreign mutual that you own.  If the foreign mutual fund is held in your US  stock brokerage account, you do not need to file this form.  See The Form 8621 here.  Though it appears simple, this form is difficult to complete correctly. Let us know if you need help.

US Taxpayers Must Report Foreign Gifts Received

If you receive over $100,000 a year in foreign gifts (given to you from an individual abroad who is not a US Citizen) or over $14,375 per year in gifts from foreign corporations, partnerships, etc. you must file Form 3520 in order to avoid a possible 25% penalty being imposed by the IRS.  If you fail to file this form when receiving such gifts you also risk the IRS later claiming the gift was taxable income and attempting to collect income taxes, penalties and interest for failing to report it on your US tax return.

This form is informational and does not cause you to pay any tax on the foreign gift.  You just list certain information about the gift and file.  Many fail to file this form thinking it will cause them problems, but the problem will only arise when you fail to file it. The 3520 is filed separately from your tax return but is due on the due date of your 1040. If you can show reasonable cause the penalty for not timely filing this return may be waived by the IRS.