When Must a US taxpayer or Expatriate File Forms 114 and 8938?

When is a US Taxpayer required to disclose offshore accounts on an FBAR and IRS Form 8938? While many US taxpayers and expatriates have come to understand the requirements of the FinCEN Form 114 or FBAR, a surprising number still need to understand the risk they are taking when they fail to disclose offshore financial accounts, assets, and income.

Read More in the article from JD Supra

We are attorney/CPAs experts on US International Taxation.  Visit our website at www.taxmeless.com or email ustax@hotmail.com.   Our whatsapp us number is 818-519-9219. Kauffman Nelson LLP.

G TO IRS (THIS INCLUDES FOREIGN PENSIONS, STOCK ACCOUNTS, ETC.) ON FORM 114 FBAR

Many United States taxpayers have foreign bank and financial accounts that they are obligated to report. However, many of these foreign account owners fail to report it, which is why the FBAR, also known as FinCEN Form 114, was created. 

The FBAR assists the U.S in identifying undeclared income and overseas accounts. “Every U.S citizen has an obligation towards the state. Failure to meet with those requirements can result in sever penalties.

The FBAR objective is to notify the Internal Revenue Service (IRS) of any accounts or other assets that taxpayers have outside of the United States. The IRS here assists in enforcing FBAR compliance and assessing and enforcing foreign account penalties against taxpayers who fail to comply with any FBAR rules.

Essential Facts About FBAR filing For 2022

While completing United States tax returns is a well-known need for Americans living overseas, many overlook the Foreign Bank Account Report (FBAR). Failure to file the FBAR can attract the IRS investigation and severe penalties. Here are vital points to note about FBAR filing to ensure you stay compliant and off the IRS hit list:

#1. Deadline For FBAR Filing

The annual filing deadline for the FBAR is April 15. If unable to file the form by the FBAR filing date, an automatic FBAR extension until October 15 will be granted. If you need to file the form after October 15, you must meet particular requirements to extend the deadline.

#2. Which Accounts Must Be On The FBAR?

Bank accounts and financial accounts such as securities accounts (brokerage accounts and securities derivatives), foreign pensions/retirement accounts, and investment accounts must all be on the FBAR. Furthermore, cash-value insurance policies (including whole life insurance), mutual funds or similar pooled assets, and any other accounts held by a foreign financial institution must also be on the FBAR.

Certain accounts, however, are not required to file an FBAR. Accounts managed by the United States Military financial institution, owned by an international financial institution or a government body, and held in an individual retirement account on your behalf are exempted. Also exempt are Correspondent or Nostro accounts, accounts held in a retirement plan on your behalf, as well as accounts held in a trust for which you are a beneficiary.

#3. Who Is Required To File An FBAR?

It is important to note who must file an FBAR. People who are required to file an FBAR include the following:

• An individual from the United States: According to the FBAR rules, any individual or company that fulfills the definition of a United States person is under obligation to file an FBAR. Citizens, residents, corporations, partnerships, limited liability companies, trusts, and estates are all considered United States persons for FBAR reporting purposes. Furthermore, if a non-U.S. citizen passes either the green card or significant presence tests (two criteria used to assess a taxpayer residency status), they are considered a resident. 

As a result, if you have a financial interest in or any authority signature over one or more financial accounts situated outside of the United States, you are obligated to file an FBAR. Even if the account generates no taxable income during the year, it must be in the report.

Another requirement for completing an FBAR is that the total value of all of your overseas financial accounts exceeds $10,000 at any point during the calendar year. The total value refers to the overall worth of all accounts. In other words, even if no single account in the year reaches $10,000 in value and the overall amount of all your accounts is more than $10,000 at any time, you must still file this form.

• If you have signature authority over an account: the FBAR form is not just for account holders who control the account. It also applies to filers with signing authority, which means that the taxpayer does not have to own the funds in the overseas accounts to be required to file the FBAR form. Even if their designation is a signee on the overseas account, the taxpayer must file the FBAR.
• Minors are Also Allowed to File: minors are not exempt from filling out the FBAR form. As a result, if your young child has enough foreign account balances to reach the FBAR filing threshold, they must still submit the FBAR.

#4. What Happens If You Miss the FBAR Deadline?

The repercussions of missing the FBAR deadlines are severe. Failure to file the FBAR can result in hefty penalties and fines that can be expensive.

Even if the failure was due to an honest misunderstanding of the laws, civil fines for non-willful FBAR infractions could be as high as $13,481 per violation. The penalty for intentional violations of the FBAR can be up to $134,806 or 50% of the account total per violation. Along with civil penalties, criminal punishments can include fines of up to $500,000 and imprisonment for close to ten years.

How To File The FBAR

Unlike your federal tax return, FBAR filings are submitted to the United States Department of Treasury, specifically FinCen, rather than the Internal Revenue Service. The FBAR is not sent via mail. Instead, it is done electronically through the BSA E-Filing System of the Financial Crimes Enforcement Network.

It is possible to have someone else file the FBAR on your behalf. You must, however, file FinCEN Report 114a, Record of Authorization to File FBARs Electronically. This form is not part of your FBAR submission. Instead, make a copy of it and retain it to give to the IRS if necessary.

How to Meet Up With FBAR Compliance

While many taxpayers comply with their obligations voluntarily, some do not. There is a wide range of civil and criminal sanctions on non-compliant taxpayers; failure to cooperate voluntarily may result in incarceration, fines, and other penalties.

If you have willfully failed to comply with tax or tax-related duties, making a voluntary disclosure could be a way to remedy your non-compliance and avoid criminal prosecution. Voluntary disclosure is not the only option for taxpayers who are yet to file their FBARs on time. Streamlined Filing Procedures, DIIRSP, DFSP, and other IRS programs are also available.

If you are out of compliance, you must talk with an experienced attorney before making any affirmative declarations to the IRS.

Final Thought

It is your responsibility as a United States citizen to file the FBAR. The only safe approach to avoid IRS penalties and fines is to ensure compliance with the FBAR standards. It does not cuase you to pay taxes. It is legal to have accounts in any foreign country so long as you comply with the reporting rules   EMAIL US FOR HELP

FBAR $10,000 NONWILLFUL FAILURE TO FILE PENALTY IS HELD TO BE $10,000 PER ACCOUNT AND NOT PER FORM

District Court holds (1) FBAR Penalty Statute of Limitations is Waivable and (2) FBAR Nonwillful Penalty is Per Account (11/8/21) In United States v. Solomon, No. 20-82236-CIV-CAN, 2021 U.S. Dist. LEXIS 210602 (S.D. Fla. Oct. 27, 2021), CL here, in a nonwillful FBAR collection suit, the Court held: 1. The FBAR assessment statute of limitations is an affirmative defense that may be waived by the person assessed the penalty (no distinction here between willful and nonwillful).  The FBAR assessment statute of limitations has no provision such as § 6501(c)(4) that requires that extensions by agreement must be made while the otherwise applicable period of limitations for tax assessments is still open; perhaps the implication is that, except for that explicit limitation on waivers by agreement, a taxpayer could waive with an untimely agreement. (In this regard, the Solomon court does conclude that the FBAR statute of limitations is not jurisdictional and thus can be waived.)  Accordingly, the execution of the agreement to extend for the FBAR penalties was a waiver of the statute of limitations that had already expired.  (On the jurisdictional issue, see Keith Fogg, IRS Succeeds in Jurisdictional Argument – With a Twist (Procedurally Taxing Blog 11/4/21), here.) 2.  The nonwillful penalty is per account rather than per form, adopting the Government’s position on this issue.  As the court notes in the following footnote (Slip Op. 10 n. 4): n4 Of the courts that have addressed this issue to date, all but one have rejected the government's view, ruling or otherwise suggesting that a non-willful “violation” of the reporting requirement in 31 U.S.C. § 5314 is the failure to file an annual FBAR report — not the failure to “report” the citizen's interest in each foreign financial account. See United States v. Boyd, 991 F.3d 1077 (9th Cir. 2021) (rejecting government's view); United States v. Bittner, 469 F. Supp. 3d 709 (E.D. Tex. 2020) appeal docketed, No. 20-40612 (5th Cir. Sept. 18, 2020) (same); United States v. Kaufman, 3:18-CV-00787 (KAD), 2021 WL 83478, **8–11 (D. Conn. Jan. 11, 2021) (same); United States v. Giraldi, CV202830SDWLDW, 2021 WL 1016215, *5 n.8 (D.N.J. Mar. 16, 2021) (same). But see United States v. Stromme, No. 20-24800-CIV (S.D. Fla. Jan. 25, 2021) (ECF No. 18 p. 3) (granting judgment in favor of United States for the full amount of penalties sought, agreeing that “each unreported relationship with a foreign financial agency constitutes an FBAR violation”).  If you need help, email us at ddnelson@gmail.com. All consultations are absolutely protected under attorney client privilege.

FBAR Form 114 Filing Deadline has not been extended - but there is an automatic Extension

With the extension of the individual filing deadline to May 17, 2021, practitioners have been asking if the FBAR filing deadline was also extended. The assumption for many was that, because the FBAR filing deadline has been adjusted to match the individual filing deadline, the FBAR deadline would be extended too. Today the IRS has stated that the extension of the federal income tax filing due date and other tax deadlines for individuals to May 17, 2021, does not affect the FBAR requirement. (IR-2021-83) However, keep in mind that taxpayers are allowed an automatic extension to October 15 if they fail to meet the FBAR annual due date of April 15. You don’t need to request an extension to file the FBAR.

IF you need help with your FBAR or catching up with past unfiled FBAR forms, contact us. There are procedures to avoid the $10,000 late filing penalty if you file the form properly. Remember if your combined highest balances in foreign bank accounts  (or other financial accounts in your congtrol) ever exceed $10,000 (even if just for a day) you must file the form. The form must be filed in your sign on someone elses account or corporate accounts also.  Email us at
taxmeless.  Skype: dondnelson

For 2019 You Will Not Have to report Vitural Currency held in an Offshore Account on Form 114 - This Rule May Change in the Future

For this year the FinCEN has stated: “Currently the FBAR (Form 114) regulations do not define virtual currency held in an offshore account as a type of reportable account. For this reason, at this time, virtual currency held in an offshore account is not reportable on the FBAR.” 

However for the future you need to follow this issue since the FINCEN position on virtual currency accounts is very likely to change at some point.

You can find FinCEN’s letter of January 22, 2020 in Appendix III of the Government Accountability Office report Virtual Currencies: Additional Information Reporting and Clarified Guidance Could Improve Tax Compliance .

We can help you with your Form 114 fiing, questions and other international and expat tax questions.  Email us at ddnelson@gmail.com and go to our website at www.taxmeless.com 

Your Heirs Will be Liable to FBAR Penalties if You Do Not Resolve filing FBARS and the penalties While you Are Alive

If you do not file your Form 114 (FBAR) reporting your foreign bank and financial accounts, you can be penalized severely and so can your heirs after your death.

Read case law below about the penalty for failure to file FBARS passing on to the taxpayer heirs:

In United States v. Schoenfeld (M.D. Fla. 3:16-cv-1248-J-34PDB), by order dated 9/25/18, here, the Court held (p. 37) that the "the Court finds that the Government's claim did not abate upon Steven Schoenfeld's death."  The reasoning for the holding is found at pp. 24-36.  The first 24 pages include a short one-page introduction and then 23 pages disposing of procedural issues arising from the death of the person putatively liable that the Government sued after he had died but without knowledge of his death.  

In this case the Court holds that  that the FBAR civil willful penalty survives death.  The Court does a good job of developing and resolving the issue. 

There are procedures available that may let you file Form 114 (FBAR form) while you are still alive and avoid or reduce penalties.  Don't leave this burden to your heirs. Email us for help at ddnelson@gmail.com  and read more on our website at www.taxmeless.com.  We are an expert on this issue.

Are Virtual Currencies such as Bitcoin reportable on FBAR forms (form 114)? - the answer is sometimes yes.

The IRS does not consider virtual currencies such as BItcoin to be the same as cash or money. They consider it to be an asset to be treated for tax purposes much like stock, when purchased, sold or held as an investment.

There are certain situations however when virtual currency is reportable the same as a foreign bank account on the FBAR form 114 which is used to report foreign bank and financial accounts.  Failure to file this form each year can result in penalties of $10,000 or more. There are many reported court cases where the penalties for failing to file this form have resulted in penalties to one taxpayer of many hundreds of dollars or more.

Read more about the rules for reporting your virtual currency  - when to do it and when not -to the IRS HERE.

If you have not been filing this form and think you may be required to do so, and want to avoid the high penalties, need assistance or have questions CONTACT US.  We are CPAs and attorneys that have combined experience of over 60 years with US International Taxation.

Guilty Plea of Taxpayer Who Failed to Report Million Dollars deposit in Israeli Bank.

DOJ Tax announced here that Ben Zion Birman of Los Angeles pled guilty to willfully failing to file a Report of Foreign Bank and Financial Accounts (FBAR).  Here are the relevant excerpts:

According to court documents, Ben Zion Birman, of Los Angeles, California held offshore accounts in Israel at Bank Leumi Le-Israel B.M. from 2006 to 2011. Birman willfully failed to file with the Department of Treasury an FBAR for calendar year 2010, despite having over $1 million in Bank Leumi accounts.  In an effort to further hide his money, Birman instructed Bank Leumi to hold bank mail from delivery to the United States, and obtained access to his offshore funds through the use of “back-to-back” loans, which were designed to enable borrowers to tap their concealed accounts.  These lending arrangements permitted Birman to have funds issued by Leumi’s U.S. branch that were secretly secured by funds in his undeclared accounts in Israel. 

In December 2014, Bank Leumi entered into a deferred prosecution agreementafter the bank admitted to conspiring from at least 2000 until early 2011 to aid and assist U.S. taxpayers to prepare and present false tax returns by hiding income and assets in offshore bank accounts in Israel and other locations around the world.  Under the terms of the deferred prosecution agreement, Bank Leumi paid the United States a total of $270 million and continues to cooperate with respect to civil and criminal tax investigations.

* * * * 

Birman faces a maximum sentence of five years in prison, as well as a period of supervised release, restitution and monetary penalties. Birman's sentencing is scheduled for December 10, 2018.  

Time is running out to catch up on FBAR filings before the IRS catches you.  If you come forward first you can save yourself substantial penalties and criminal prosecution. Email us at ddnelson@gmail.com if you wish help 

WHEN TO REPORT DIGITAL CURRENCY ON YOUR FBAR form 114

The IRS says it is not bound by oral advice.  Ignoring that rule,  we did received the statement below from an IRS agent by email.

Digital currency like Bitcoin would only be reportable if it is held in account with a financial institution or someone acting as a financial institution.   It is digital currency held in a digital wallet, not in a financial institution. The digital wallet is not a foreign financial account.  In that form. it is not reportable on FBAR.

Need FBAR help, email an experienced tax attorney with your questions at ddnelson@gmail.com 

All Expat Taxpayers Can Learn from Manaforts Indictment

The criminal charges filed against former Trump campaign manager Paul Manafort and Richard Gates are serious. They are only accusations at this point. All criminal defendants are presumed innocent until they are proven otherwise in a court of law. Still, the 12-count 31-page indictment here is a daunting list of accusations. Manafort and Gates stand accused of conspiracy against the United States, conspiracy to launder money, failing to report foreign bank and financial accounts, acting as an unregistered foreign agent, and making false statements. It’s tough to unpack most of those charges. Even so, there’s a lot in it from which regular taxpayers can learn about how to handle their own taxes and the IRS.

READ MORE HERE IN FORBES ARTICLE

Want to discuss your situation under the absolute privacy and legal confidentiality of attorney client privilege?  Email Don at ddnelson@gmail.com 

Manaforts Failure to Report Foreign Finanical Accounts (Form 114 - FBAR) could result in 70 year Jail Term

Forbes magazine article states this is the same way they got Al Capone....tax evasion. Make certain you report all foreign financial accounts that you own or sign on to the IRS to avoid Manafortś problem. READ MORE IN THE FORBES ARTICLE

FBAR FORM 114 DEADLINE FOR FILING IS JUNE 30TH

The deadline for filing  the 2015 form 114 to report your foreign bank and other financial accounts is coming up on June 30th.  The form must be filed on line and cannot be extended for any reason. Read more details in this article from Forbes Magazine.

If your foreign asset values exceed a certain amount you may also have to file form 8938 with your tax return. The penalty for failing to file that form is $10,000.  That form (if required) must be filed even though you also reported on Form 114.

If you have questions on these forms or on other foreign asset reporting IRS rules, you can request a mini consultation by emailing us ddnelson@gmail.com.

Dept of Justice to Go After Fbar Criminals

There will be no letup in the federal government's ongoing campaign targeting U.S. taxpayers who hide foreign accounts and attempt to evade U.S. tax obligations, a key Justice Department (DOJ) official said on Jan. 29. In 2016, tax professionals will see "additional civil enforcement actions and ongoing and new criminal investigations and prosecutions," Caroline Ciraolo, acting assistant attorney general for DOJ's Tax Division, told participants at the American Bar Association's Tax Section midyear meeting. According to Ciraolo, taxpayers who have participated in IRS voluntary disclosure programs may be contacted and interviewed by the agency and DOJ as part of their ongoing cooperation. "Taxpayers who filed returns and FBARs [Report of Foreign Bank and Financial Accounts] pursuant to the streamlined filing procedures or the Delinquent International Information Return or FBAR submission procedures should be very concerned if they falsely claimed to have engaged in non-willful conduct or acted with reasonable cause," Ciraolo said. In addition, "financial institutions and individuals who have facilitated the concealment of offshore accounts and the evasion of U.S. tax obligations would be well advised to anticipate an investigation and consider voluntarily disclosing any criminal activity to the department before they become the subject of an investigation," she said. Ciraolo noted that over the past year, her division has bolstered its staffing with the addition of 80 attorneys who are receiving the appropriate training. Ciraolo's complete prepared remarks can be viewed atjustice.gov/opa/speech/acting-assistant-attorney-general-caroline-d-ciraolo-delivers-remarks-american-bar

List of Foreign Banks Filing Reports with US Treasury of Foreign Bank Accounts (FATCA Bank)

Wonder if your bank will be reporting your foreign account to the US Treasury.   The link below will allow you to check up to see if they are participating. New banks are joining up daily so the fact it is not there now may not mean if will not be there tomorrow.

If the IRS discovers you have foreign accounts and are not filing form 114 (FBAR) form by June 30 following the end of each fiscal year they can assess civil penalties of $10,000 US or more for each year you failed to file that form.  There is still time to file this form late but avoid penalties under certain circumstances. Contact us if you wish to know more or want help filing your forms late.

You must go back six years due to the statute of limitations governing that form.  If you did not file a correct one in past years, best to amend also to avoid potential problems.  Write us at ddnelson@gmail.com or visit our website at www.taxmeless.com 

LINK TO CHECK OUT IF YOUR  FOREIGN BANK  OR FINANCIAL INSTITUTION IS REPORTING TO IRS FATCA Foreign Financial Institution (FFI) List Search and Download Tool