Do I File FBAR & 8938 if I Live Outside of the U.S.?
Yes, When a person is considered to be a U.S. person (such as a U.S. Citizen, Legal Permanent Resident/Green-Card Holder, or Foreign National who meets the Substantial Presence Test) they are required to file a U.S. tax return — no matter where they live (presuming they meet the threshold requirement).
And, since Form 8938 is part of the Tax Return (unlike the FBAR which is filed separately), the 8938 must also be filed — if the return is filed and the person meets the threshold filing requirements for doing so).
But I Live Outside the U.S.?
In and of itself, the mere fact that you live outside the U.S. does not negate the requirement to file a Form 8938.
In fact, the threshold requirements for filing an FBAR do not change whether or not you reside in the United States or outside the United States in a foreign country. The same cannot be said for FATCA Form 8938.
With Form 8938, the threshold requirements vary depending on whether you live in the United States or are considered a foreign resident.
If you qualify as a foreign resident, than the threshold requirement for having to report your specified foreign assets will vary. The threshold requirements are increased significantly (so that you need to have more “Specified Foreign Assets” abroad in order to qualify for having to file form 8938).
And, if you live outside of the United States and are Married Filing Jointly, the threshold requirements are even higher.
Didn’t File for Prior Years – Offshore Disclosure
If you have forms such as an FBAR, 8938, 3520, 3520-A, 5471, 5472, 8865, 8621, or other international tax forms that you did not file in prior years (which may subject you seriously high fines and penalties) you may consider entering offshore voluntary disclosure in order to get yourself into compliance before the IRS audits or examines you (and you lose the right to enter offshore disclosure).
Golding & Golding, A PLC
We have successfully represented clients in more than 1,000 streamlined and voluntary disclosure submissions nationwide and in over 70-different countries.
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Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver. He has also earned the prestigious IRS Enrolled Agent credential. Mr. Golding's articles have been referenced in such publications as the Washington Post, Forbes, Nolo, and various Law Journals nationwide.