Form 8938 instructions: The Form 8938 instructions are complex. The IRS requires U.S. Taxpayers to report specified foreign financial assets each year on a Form 8938. In recent years, the IRS has increased offshore enforcement of foreign accounts compliance, including assets. There are many components to accurately reporting foreign assets. When a U.S. person has offshore assets, accounts, investments and income, they may have various reporting requirements. There are several international information reporting forms, and the 8938 form is one of the most common. When a person has not timely reported their foreign assets, the IRS may impose Form 8938 penalties. To avoid penalties, the IRS offers various voluntary disclosure (tax amnesty) programs.
Form 8938 Instructions
We summarize the Form 8938 instructions for you. The goal of this summary is to provide some information, help, and hopefully some clarity about Form 8938 (aka FATCA, the Foreign Account Tax Compliance Act). The IRS publishes its own set of instructions (which are revised and updated each year), but oftentimes clients tell us they are very hard follow. This is because the IRS has to jam so much information into instructions — including information which is not applicable to most filers.
Common Form 8938 questions, include:
What is a Specified Foreign Financial Asset?
Specified Foreign Financial Assets, include assets located outside of the U.S. Some common examples, include:
- Life Insurance
- Partnerships and Corporations
Who is a Specified Individual?
As defined by the IRS:
– A U.S. citizen.
– A resident alien of the United States for any part of the tax year (but see Reporting Period, later).
– A nonresident alien who makes an election to be treated as a resident alien for purposes of filing a joint income tax return.
– A nonresident alien who is a bona fide resident of American Samoa or Puerto Rico. See Pub. 570, Tax Guide for Individuals With Income From U.S. Possessions, for a definition of bona fide resident.
What Assets belong on Form 8938?
Nearly all foreign assets, excluding individually owned real estate, is fair game for the Form 8938. For example, the gold you keep under your bed may not be reportable, but gold in a safety deposit box might be. Likewise, Cryptocurrency in a private wallet may not be reportable, but cryptocurrency in a foreign account might be.
Do I Report FMV (Fair Market Value)?
Generally, yes, you use the Fair Market value?
Have all Foreign Countries Signed a FATCA Agreement?
No, not all foreign countries have signed a FATCA Agreement. Currently more than 110 countries have signed, and more than 300,000 Foreign Financial Institutions are reporting U.S. Account Holders.
Does it Include all Foreign Financial Accounts?
While it may not include all foreign financial accounts (some very limited exceptions, exclusions and limitations apply) it pretty much includes nearly foreign accounts.
Does FATCA apply to Legal Resident Aliens?
Yes. Unless, an exception, exclusion, or limitation applies, FATCA does apply.
What is Required to be Reported?
Generally, the type of information, includes:
- Foreign Institution Name
- Foreign Institution Address
- Account Number
- Income Generated
- Owned with a Spouse or not
- Acquired or sold in the current year
- Income generated
- Maximum value.
How many Foreign Financial Institutions report to the IRS?
Currently, more than 300,000 Foreign Financial Institutions report to the U.S. Government.
8-Step Instructions Guide
Even though the form may seem very intense, the reality is that it is not that bad…depending on the facts and circumstances of your situation. For example, if you only have one unreported account and you decided to go on this trek alone, it shouldn’t be that bad (of course, unless the IRS contacts you later). Alternatively, if you have 27 assets in seven different countries generating all different types of passive income, the form is going to be much more time intensive and laborious.
We prepared a basic 8-step process to prepare the form. This is by no means a comprehensive summary, and is not intended as a guide for you or other tax professionals to complete the form.
Determine if You Have to File
Not everybody with specified foreign financial assets will have to file the form. There are four different threshold requirements:
– Single or married filing separately in the United States: Aggregate total of all specified foreign assets of $50,000 on the last day of the year. Or, if you have less than $50,000 on the last day of the year but more than $75,000 on any other day of the year, you still have to file.
– Single or married filing separately Foreign Resident: Aggregate total of all specified foreign assets of $200,000 on the last day of the year. Or, if you have less than $200,000 on the last day of the year but more than $300,000 on any other day of the year, you still have to file.
– Married filing jointly in the United States: Aggregate total of all specified foreign assets of $100,000 on the last day of the year. Or, if you have less than $100,000 on the last day of the year but more than $150,000 on any other day of the year, you still have to file.
– Married filing jointly Foreign Resident: Aggregate total of all specified foreign assets of $400,000 on the last day of the year. Or, if you have less than $100,000 on the last day of the year but more than $600,000 on any other day of the year, you still have to file.
Make a List of your Foreign Assets
We recommend going through your foreign assets for the year and determine which assets you owned during the year. Assets are a very broad category, and may include the following:
- Foreign Accounts
- Foreign Investments
- Foreign Entity Ownership
- Foreign Pension
- Foreign Life Insurance
That is not a comprehensive list, but just a list of the five most common types of assets.
Determine the Value of the Foreign Assets
In order to determine whether you even have to file the form, you will need to determine the value of the assets. Therefore, it is important to use the current year exchange rate and then calculate the value of each asset.
A few key tips:
- While there is no specific exchange rate you have to use, it has to be reasonable.
- Both the IRS and Department of Treasury publish their own individual rates; you should keep it consistent for each asset.
Exclude Assets That Are Not Included in the Analysis
Not all assets are subject to reporting. This is a very complex area that goes beyond this introduction, but two important exclusions are the following:
– Foreign Real Estate: it only needs to be included if it is part of assets owned by a foreign entity. For example, if you own real estate that you rent, that is not included, but if you own 10% of a foreign entity that owns real estate, the proportionate value of the entity assigned to you would include the value of that real estate.
– Financial Account Held at a Foreign Branch of a U.S. Financial Institution: This is a bit tricky. If the foreign institution is considered a wholly-owned subsidiary and not a branch, you may find yourself in some trouble – it is typically better to just report in this type of situation, but you should speak with an experienced offshore disclosure lawyer first.
Determine the Income Generated from the Assets
Unlike the FBAR in which a person only has to report the value of their accounts, the form 8938 is different. Not only is it filed directly with your tax return, but you have to identify “a summary of tax items attributable to specified foreign financial assets.”
In other words, the IRS wants to know the type of income and the source that generated the income. Therefore, it is important to determine the total amount of income generated from the foreign assets. We recommend creating different columns or categories such as interest, dividends, royalties, and gains, and then determining how much was earned under each category of income.
Determine Whether your Assets are Deposit or Custodial
This is nowhere near as easy as it should be. The IRS does not make it very clear, especially for individuals who do not have a background in tax. With that said, typically an account is going to be a deposit account unless it is being held for the benefit of another person. Depending on your specific scenario, sometimes foreign life insurance policies and retirement/pension funds may be considered custodial.
This should not be a sticking point. The idea is that the IRS wants you to disclose and they want to know the different types of assets that you have. Just because you mis-categorized an asset due to the ambiguous instructions provided by the IRS would not lead you to a penalty situation. Just give it your best shot.
Be Sure to Identify Question 3 of Part 5
This is where individuals may get into trouble. Question three of part five requests specific information regarding the account. Namely, whether the account was opened or closed this year, whether the account was jointly owned, and whether any tax items were reported from the asset. This is important information that the IRS wants from you. It is so the IRS can determine how much income you are generating from the different accounts and whether it is an income-generating account or not.
Some returns may be rejected if this portion is not completed (but not always). The last thing you want is for the form to be rejected, because then you are asking the IRS to essentially take a second look at your specified foreign financial assets. Understanding, that for many individuals the risk of audit is relatively low and therefore, even a few mistakes should not be a big deal.
Late Filing 8938 is a Different Story
If you have not filed a form 8938 in prior years, but you had specified foreign financial assets that should have been reported, you should be careful to just start reporting. As you can see from question three part five, the IRS will know whether the account was opened in the current year or not, and whether there are tax items that should have been reported or not.
If you file the 8938 in the current year for the first time but had a reporting requirement in prior years in which your assets are generating income, it may beg the question as to why it was not reported previously.
Avoid FATCA Form 8938 Quiet Disclosure
A Quiet Disclosure is when you report the prior year offshore assets without following the proper means. Yes, some individuals will make it through no problem, but other individuals will be audited and if the IRS finds the person committed a quiet disclosure, they could be in some serious trouble.
It may amount to tax fraud and the IRS may pursue the criminal investigation. Again, realize that risk of audit is usually low and most people are not audited based on these foreign issues. With that said, there are some people who are in a higher tax bracket and owns businesses/itemizes deductions and the IRS tends to audit people for these various business deductions, charitable contributions, etc. The audit then expands and the auditor starts asking questions about these foreign accounts if they are filed improperly.
Are you out of 8938 Compliance?
If you are already out of compliance for not properly reporting or paying tax involving your cryptocurrency, you may consider getting into compliance before it is too late.
Golding & Golding: About Our International Tax Law Firm
Golding & Golding specializes exclusively in international tax, and specifically IRS offshore disclosure.
We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe. Our attorneys have worked with thousands of clients on offshore disclosure matters, including FATCA & FBAR.
Each case is led by a Board-Certified Tax Law Specialist with 20 years of experience, and the entire matter (tax and legal) is handled by our team, in-house.
*Please beware of copycat tax and law firms misleading the public about their credentials and experience.
Less than 1% of Tax Attorneys Nationwide Are Certified Specialists
Sean M. Golding is one of less than 350 Attorneys (out of more than 200,000 practicing California Attorneys) to earn the Certified Tax Law Specialist credential. The credential is awarded to less than 1% of Attorneys.
Recent Golding & Golding Case Highlights
- We represented a client in an 8-figure disclosure that spanned 7 countries.
- We represented a high-net-worth client to facilitate a complex expatriation with offshore disclosure.
- We represented an overseas family with bringing multiple businesses & personal investments into U.S. tax and offshore compliance.
- We took over a case from a small firm that unsuccessfully submitted multiple clients to IRS Offshore Disclosure.
- We successfully completed several recent disclosures for clients with assets ranging from $50,000 – $7,000,000+.
How to Hire Experienced Offshore Counsel?
Generally, experienced attorneys in this field will have the following credentials/experience:
- Board Certified Tax Law Specialist credential
- Master’s of Tax Law (LL.M.)
- Dually Licensed as an EA (Enrolled Agent) or CPA
- 20-years experience as a practicing attorney
- Extensive litigation, high-stakes audit and trial experience
Interested in Learning More about Golding & Golding?
No matter where in the world you reside, our international tax team can get you IRS offshore compliant.
Golding & Golding specializes in FBAR and FATCA. Contact our firm today for assistance with getting compliant.