FBAR Filing & FATCA Compliance for U.S. Expats Living Overseas
Just because a U.S. Taxpayer lives outside of the United States does not mean they can escape the long arm of the US government. Specifically, if a person is a US Citizen, Legal Permanent Resident, or Foreign National subject to US tax (Substantial Presence Test) – they still must meet the US Tax Return filing requirements.
How will the IRS Find Me?
In years past, it was much harder for the US to locate expats and enforce US tax reporting compliance requirements agains them. Unfortunately for many expats, under the new FATCA (Foreign Account Tax Compliance Act) laws for countries have entered into “Intergovernmental Agreements (IGAs) with United States in which the foreign country will comply with US tax law involving expats and other US tax payers living overseas.
FATCA – What does that Mean?
FATCA is designed to combat against international tax evasion and the offshore hiding of funds. In order to facilitate tax compliance of U.S. taxpayers living overseas, more than 100 foreign countries have entered into FATCA agreements (or agreements in substance).
By the terms of these agreements, the US requires the foreign country to provide tax reports for US taxpayers maintaining financial accounts and bank accounts in the foreign country. In exchange, the US provide the same information regarding foreigners who have accounts in the United States.
The Penalties are Very High
Since the United States has placed international tax compliance at the forefront of tax enforcement, it has also implemented very significant penalties and fines against US taxpayers who are out of compliance. In fact, even if you were non-willful (unintentional), the US can penalize you $10,000 per account, per year, for each year you are out of compliance.
In addition to penalties, US taxpayers can also be subject to additional taxes and interest due on the unreported foreign earnings.
Expat Tax FAQs
Golding & Golding has represented US expats and other foreigners subject to US tax in nearly 40 countries. We have used our experience to prepare the following Expat FAQs from the Trenches, which is available below for your review:
The complexities of United States tax code catches many people who never had any intent to subject themselves to US tax off-guard.
Conversely, it also snags individuals and businesses who operate wholly outside of the United States but due to the fact that they are technically a US citizen, Legal Permanent Resident, or Foreign National Subject to US tax through the Substantial Presence Test (SPT) are caught in the tidal-wave of US tax.
We have provided the following summary below of general ex-pat tax law questions from the many years of representation of you have provided to ex-pats around the world.
Do U.S. Expats Still Get Taxed by the U.S.?
Yes. Under US law, if a person is a US citizen, legal permanent resident, or for national subject to tax under the substantial presence test (SPT) the person must still file taxes and the U.S. taxes them on their worldwide income.
It does not matter if a person resides in the United States or overseas, and it does not matter where the source of income is. Still, even though a person must file a tax return. Even though a person must still file a U.S. Tax Return, there are various tax exclusions and tax credits that a person is entitled to, which ensures the Expat is not double taxed on the money.
Accidental Americans – Born in the United States and Live Overseas
Yes, if you were born in the United States then for the most part unless a specific exception applies you will be considered a US citizen. As such, you have a requirement to file an annual tax return (if you meet the threshold requirements) and report your worldwide Income – even if you have lived overseas your entire life.
Accidental Americans – Did Not Relinquish your Green Card
This is probably the most common scenario we deal with often: You received your green card and became a legal permanent resident in the United States. You love traveling around the world and it is just too much of an annoyance to relinquish the green card and re-apply for visas each time you travel (c’mon, you know who you are).
Therefore, you have kept your green card status even though you have no intent of remaining in the United States as required by US law. Thus, since you are receiving the benefits of having a green card it will be very difficult for you argue that you should not be subject to US tax just because you live overseas.
*Technically, if you live overseas then you should have had to relinquish the green card since presumably you have not met the annual residence requirements necessary to maintain the green card.
Accidental Americans – Substantial Presence Test
This specific “exception” really is unfair, but if you qualify as a US taxpayer under the Substantial Presence Test (SPT), then at least for the period of time that you qualified for the substantial presence status you must file US taxes with a 1040 and not a 1040NR – which means significantly more reporting and disclosure requirements.
For example, if you were in the United States on an H-1B, L, E, or other work visa and met the substantial presence test of being in the United States for 183 days during the current year or using a specific equation and looking back three years, then for the time-period you qualified under the SPT, you must pay tax on your worldwide income just as you were a US citizen or legal permanent resident.
What is the Substantial Presence Test (SPT)?
As a non-US citizen and non-US green card holder, you are generally only required to pay tax on your “US Effectively Connected Income” (money you earn while working in the United States). However, if you qualify for the Substantial Presence Test (SPT), then the IRS will tax you on your WORLDWIDE income.
IRS Substantial Presence Test generally means that you were present in the United States for at least 30 days in the current year and a minimum total of 183 days over 3 years, using the following equation:
- 1 day = 1 day in the current year
- 1 day = 1/3 day in the prior year
- 1 day = 1/6 day two years prior
Example A: If you were here 100 days in 2016, 30 days in 2015, and 120 days in 2014, the calculation is as follows:
- 2016 = 100 days
- 2015 = 30 days/3= 10 days
- 2014 = 120 days/6 = 20 days
- Total = 130 days, so you would not qualify under the substantial presence test and NOT be subject to U.S. Income tax on your worldwide income (and you will only pay tax on money earned while working in the US).
Example B: If you were here 180 days in 2016, 180 days in 2015, and 180 days in 2014, the calculation is as follows:
- 2016 = 180 days
- 2015 = 180 days/3= 60 days
- 2014 = 180 days/6 = 30 days
- Total = 270 days, so you would qualify under the substantial presence test and will be subject to U.S. Income tax on your worldwide income, unless another exception applies.
What is the Foreign Earned Income Inclusion?
The Foreign Earned Income Exclusion (FEIE) is when the US government permits a person subject to U.S. tax, who resides overseas and earns money overseas through employment or self-employment to exclude the income from their US tax return.
It does not mean a person is not required to include the income on their tax return, but rather they can file a form 2555 along with their tax return in order to eliminate upwards of $100,000 (with a COLA adjustment for inflation) of income from their tax return.
*There are two tests a person can use to qualify for (FEIE)
What is the Physical Presence Test for FEIE?
In order to qualify for FEIE a person has to meet either the Physical Presence Test (PPT) or the Bona Fide Resident Test (BFR). Under the Physical Presence Test (Easier Test), essentially a person must reside overseas outside of the country (it does not have to be in one country) for at least 330-days.
The 330-days does not need to be January through December. For example, if you lived outside of the country for 330-days from March through March, you can apply the PPT exclusion accordingly to the specific 330-day time period.
What is the Bona-Fide Resident Test for FEIE?
The Bona-Fide Resident Test is the second test and much more difficult to meet. That is because unlike physical presence test, which is essentially a “presence overseas” test with the bona fide residents test a person must show that they are actually a bona fide resident of a foreign country.
In order to meet BFR, a person the show that integrated themselves into the foreign country’s society (for example: obtain a local driver’s license, join the local chamber or other organizations, shop at local stores, etc.)
Is an Overseas Government Contractor a Bona-Fide Resident?
Generally, no. In fact, a decision was issued in which the IRS essentially said it is nearly impossible for a government contractor to ever meet the bona fide residence test.
Usually, because the government contractor is not only working for US company but is normally living housing provided by the company for US government and/or shopping at government-sponsored locations.
*The reason why government contractors normally apply for BFR is because they do not meet the 330-day test and not because they actually met the BFR classification.
If I work for the U.S. Government, do I Qualify for FEIE?
No, it is expressly written into the law that if a person is employed overseas by the US government, they do not qualify for the Foreign Earned Income Exclusion.
If I am Self-Employed, can I Qualify for FEIE?
Yes, the mere fact that somebody is self-employed does not automatically disqualify an individual from claiming the foreign earned income exclusion.
Do Foreign Housing payments Qualify for FEIE?
Yes, but the US government has decided to make it unnecessarily difficult to calculate. There is a certain equation that is used and to keep the numbers simple: the first $15,000 or so of foreign housing cannot be excluded, but then the next 15,000 or so afford housing can be excluded. Thereafter, the exclusion phases out
*In addition, depending on the type of area in person lives in and how expensive it is to live, there may be a higher exclusion about permitted such as those who work and live in expensive locations including London and Tokyo.
Do I just leave out the Income on my Tax Return?
No, the IRS is not in the business of making your life easy. Rather, in addition to filing a tax return you will have to file a rather complicated form called a Form 2555. It is not that the form is necessarily difficult, but rather it is important that you understand which test to qualify for (PPT or BFR) before attempting the form.
Foreign Tax Credit (FTC) – Individual or Business
The Foreign Tax Credit (FTC) is different than the Foreign Earned Income Exclusion. The FTC is used when a person or business has already paid foreign tax on earned income, passive income or corporate income. Essentially, it allows an individual or business to obtain a credit against taxes they paid in a foreign country so they do not have to pay tax on the money again (double taxation).
Report of Foreign Bank and Financial Accounts (FBAR)
Reading about FBARs online is enough to make your head spin and eventually explode. Essentially, if you have more than $10,000 in overseas accounts, then you are required to file an annual FBAR statement with the Department of Treasury. It does not matter if you have one account with $15,000 in it, or 11 accounts with $1000 in each account. It does not matter if you inherited the money, or if you only have a signature authority on the account. Once your foreign “annual aggregate total” exceeds $10,000 you are required to file the form and include all the accounts.
*Golding & Golding has prepared a comprehensive FAQs devoted entirely to FBAR Statements, which can be found by clicking this link here.
Generally, What Types of Accounts are Included on the FBAR?
The following accounts are generally included on an FBAR: Foreign Bank Accounts; Foreign Savings Accounts; Foreign Securities Accounts; Foreign Mutual Funds; Foreign Trusts; Foreign Retirement Plans; Foreign Business and/or Corporate Accounts; Insurance Policies (including some Life Insurance); Foreign Accounts held in a CFC (Controlled Foreign Corporation); or Foreign Accounts held in a PFIC (Passive Foreign Investment Company)
What is the Foreign Account Tax Compliance Act FATCA?
FATCA is the Foreign Account Tax Compliance Act and it is a law designed to bring international tax evasion and foreign account reporting avoidance to ad end. FATCA is complex, but for individuals FATCA generally means a person is required to report their foreign account information as well as foreign earnings. It also facilitates foreign financial institutions to provide taxpayer information for those who have accounts at the foreign banks or foreign financial institutions.
What is a Statement of Specific Foreign Financial Assets (IRS Form 8938)?
This form is similar to an FBAR except while the FBAR is filed electronically online directly with the Department of the Treasury, the 8938 is filed along with a tax return. There are different threshold requirements for individuals who have to file these forms depending on whether they reside in the United States or overseas. Essentially, if you are an expat and reside overseas than you’re not required to file this form until you have at least $200,000 in specified foreign assets.
What is an Information Return by a Shareholder of a Passive Foreign. Investment Company or Qualified Electing Fund (8621)?
The 8621 Form is one of the more complicated forms that must be filed with the IRS when a person has a Passive Foreign Investment Company (PFIC). The reason why this form causes so much concern is twofold:
-Investing in a foreign mutual fund is almost always considered a PFIC; and
-If this form is not filed then the IRS can argue that unless you can show reasonable cause the entire tax return is subject to audit forever (in other words, the return is not considered properly filed since it was missing the 8621 and the Statute of Limitations has not commenced yet)
*There are certain exemptions regarding filing this form and if you have a foreign holding company or foreign mutual fund then you should consider speaking with an experienced international tax lawyer before filing your taxes or entering and offshore disclosure program.
**Even though there are no penalties directly associated would be 8621 form, if a person fails to file this form they can still be penalized under the language of the IRS Form 8938 penalties.
What is a Information Return of U.S. Persons With Respect to Certain Foreign Corporations (5471)?
A 5471 is a very complicated form required for individuals who had ownership of certain types of foreign corporations. There are certain requirements for individuals involving foreign corporations and not everyone is required to file the form. It should be noted that if you do not file this form, there are penalties that may apply.
What is an Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts (3520)?
The 3520 form must be filed by US taxpayers who receive certain gifts either from foreign individuals, foreign trusts, or foreign businesses during the tax year. For most individuals, this form is required when they receive a gift of more than $100,000 from a foreign person as either one gift or a series of transactions throughout the year. It should be noted that the threshold requirements for having to file this form reduced significantly for gifts from foreign businesses or foreign trust distributions.
What is an Annual Information Return of Foreign Trust With a U.S. Owner (3520-A)
The 3520-A form is a complicated form that must be filed when a US person has ownership or interest in a foreign trust. If the trustee filed the form already, then the form does not have to be filed again but a copy of the filed form should be included with the taxpayer’s 3520.
**It should be noted that the 3520 generally is filed at the same time as the tax return but even if a person does not have a tax return filing requirement, and the generally still must file the 3520 if they otherwise qualify for having to file a 3520
IRS – Streamlined Program (Foreign Disclosure)
If your actions were non-willful and taxes are a mess, or you never filed them but you have resided overseas for at least 330 days in the tax year then you may qualify for the IRS Streamline Foreign Offshore Disclosure Program. If you qualify for this program, then all you have to do to get into tax compliance is file original or properly amended tax returns for the last three years, FBAR statements for the last six years and complete an application. What makes this program so great, is that you do not have to pay the 5% penalty that you would have to pay if you do not meet the 330 day test.
*There is talk about the IRS eliminating this program so if you are interested in the program speak with an experienced international tax lawyer.
OVDP – Offshore Voluntary Disclosure Program
If your actions were willful The Offshore Voluntary Disclosure Program is open to any US taxpayer who has offshore and foreign accounts and has not reported the financial information to the Internal Revenue Service (restrictions apply). There are some basic program requirements, with the main one being that the person/business who is applying under this amnesty program is not currently under IRS examination.
The reason is simple: OVDP is a voluntary program and if you are only entering because you are already under IRS examination, then technically, you are not voluntarily entering the program – rather, you are doing so under duress.
Treaty Benefits – Tax Reduction and Elimination Strategies
The United States has entered into tax treaties with nearly 60 countries and estate tax treaties with around 16 different countries. Under these tax treaties, there are reductions in taxes, benefits and exclusions depending on the classification of income and other factors as well.
Thus, it is important that you understand the specific tax treaty in the country in which you are now an expat to determine whether you have certain benefits afforded to you and your tax situation
IRS Audit and Levies – But I Live Overseas?
The IRS could not care less, in fact statistics seem to show that you have a higher chance of being audited if you live overseas. In other words, if the IRS knows you reside overseas that they also know there’s a lesser chance that you’re going to want to fight the audit. Moreover, is more difficult for you to compile paperwork and protect your US assets.
The IRS can definitely levy your US accounts in place liens on your property in the United States, but under new FATCA laws and other regulations, the IRS may also be able to lien or levy your foreign accounts (especially if they’re being held by foreign branch of a US bank)
Golding & Golding sincerely hopes this summary has been helpful to you. If you have specific questions about other areas of related law, please click on one of our other FAQs for more assistance:
- OVDP FAQs
- Streamlined Program FAQs
- FBAR FAQs
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, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)