Golding & Golding - U.S. and International Tax Lawyers

Golding & Golding – U.S. and International Tax Lawyers

This is a question we receive daily. With the increasing enforcement of the Offshore Reporting, FBAR (Report of Foreign Bank and Financial Account) Filing has become a priority for the U.S. Government.

Golding & Golding has represented numerous clients (Individuals, Businesses, Trusts, Expats) with FBAR reporting and we have put together a comprehensive FAQ/Summary for you to get a better understanding of the basics of FBAR filings.

Please see below:

                   

FBAR Summary and FAQs

We are providing you with a Free Summary of the common Frequently Asked Questions regarding questions we have received over the years. While the form itself has a set of instructions and frequently asked questions section, our Frequently Asked Question list is more of “FAQs from the trenches,” in which we will answer questions which are not really provided for by the government.

What is an FBAR Statement?

An FBAR statement is a Report of Foreign Bank and Financial Accounts form. It is electronically filed annually with the Department of the Treasury online. Before this year (2016) the form had to be filed no later than June 30th of the current tax year in order to report the accounts for the prior tax year (File in 2015 to report the 2014 Maximum Account Balances). The law is changing in 2016 which will either be applicable in 2016 or 2017, and will have a April 15, 2015 due date.

Is it more than $10,000 per account, or in Total?

An FBAR is required to be filed when a person or business (explained below) has an annual aggregate total of foreign accounts that exceeds $10,000. It does not matter if all that money is in one account or if a person had 11 accounts with $1000.00 in each account (you get the picture, right?). Once your overseas foreign accounts exceed $10,000, it is now time to report all of the foreign accounts.

Who or What is a U.S. Taxpayer?

This question can get more and more complex depending on who you speak to and what the context of the question is. To that end, if you are either a US citizen, Legal Permanent Resident, or Foreign National Subject to US tax such as a visa holder (if you meet the Substantial Presence Test), then you should most likely file the annual FBAR form.

*If you are unsure whether you should file the form or not, you should speak with an experienced by lawyer to evaluate your particular situation.

I did Not have to File a Tax Return?

This can also get confusing, but it is important to remember that the FBAR is not filed with your tax return. Rather, while your tax return is filed directly with the Internal Revenue Service (by mail or online), your FBAR is filed online electronically directly with the Department of Treasury. Even if you do not meet the threshold requirements for filing a tax return, it does not mean you do not have to file an FBAR. If your annual foreign account balances exceed $10,000, you should file the FBAR.

The Money in the Foreign Accounts is not Mine?

This is not unusual. It is very common in foreign countries to have children or other individuals with a Power of Attorney over another person’s account – even when the money does not belong to the POA holder. To that end, if a person’s name is on the account then they should still file an FBAR statement. There is a section of the FBAR reserved for individuals who have signatory authority or other type of authority on the account, but the money is not theirs.

I do not want to Report my Foreign Parents’ Name on the FBAR

We understand the importance of privacy. Generally, there are ways around reporting the information the FBAR where you disclose certain information but not all the requested information (while still being FBAR compliant). 

The Money is from an Inheritance

It is important to remember that the FBAR is a reporting form. In other words, the Department of Treasury wants to know whether you have the money overseas in case there is no other way for the DOT to track it. In addition, under FATCA, many countries and foreign financial institutions have agreed to report accounts to the U.S.

Thus, even if the money was inherited, you are required to report the account information on the FBAR. If you fail to do so and get stuck in the IRS/DOT crosshairs as a result of the foreign financial institution reporting the account in accordance with FATCA, it will be much harder to explain the situation at that time versus simply filing the FBAR timely or entering into OVDP or the Streamlined Program.

**That does not mean you should file a late FBAR (please see below)

My Accounts are in the name of a Foreign Corporation 

This is where the FBAR starts to get more complicated. The most important thing to remember is the concept of the FBAR is to promote financial transparency. Therefore, if no matter how you structure the business in the end the money is yours, then you should file the FBAR.

This can be distinguished from a company in which you are merely an employee and have signatory authority, which would require a comprehensive analysis of the business and your rights to the business and money before determining whether you should file.

My Accounts are in the name of a Foreign Holding Corporation

It does not matter that the accounts are in a Foreign Holding Corporation – this is not sufficient to avoid filing the FBAR statement. Otherwise, a US taxpayer could simply open a BVI Holding Corp and put the holding Corp. as the owner of the account and thus not to have the file the FBAR – even though all of the account money belongs to the US taxpayer – which is directly contradictory to the purpose of the FBAR.

If you are the “true owner” of the money, then filing the FBAR is required.

My Accounts are in the name of a Foreign PFIC Corporation

The same thing goes for a Passive Foreign Investment Company. Depending on which country you are in and how the country titles the foreign company, these companies come in all shapes and sizes. Back in the 80s, they were used primarily to avoid detection by the United States government of foreign account and asset information. There is no exception to filing an FBAR simply because you transferred your money into the PFIC. 

My Accounts are in the name of a Foreign Trust

As you can imagine, foreign trusts are not immune from having to file an FBAR statement either – in addition to possibly a 3520 and 3520A. Whether the purpose of the foreign trust was “harmless,” and/or you thought you could avoid US detection or possibly to form the foreign credit shelter trust or foreign asset protection, a foreign trust does will not negate your requirement to file an FBAR; if the accounts are in a foreign trust, in which you are the owner of the foreign trust then you have to report the account on the FBAR.

What Types of Accounts must be Reported on an FBAR?

Essentially, any account that is maintained at a foreign financial institution must be reported on the FBAR – but this does not mean every income generating asset has to be included. Here’s an example: if you have a Foreign Bank Account at a Foreign Financial Institution it has to be reported on the FBAR. Conversely, if you have a foreign rental property that is earning foreign rental income, while the foreign rental income must be reported on your tax return, the value of the home need not be reported on the FBAR.

Do I have to report my Life Insurance Policy?

This is another complex area of the FBAR. Essentially, if the life insurance policy (or life assurance policy as it is called in many countries) has a surrender value for sale value insofar as you could sell the policy on the open market – it should most likely be reported on the FBAR.

In situations like this where there is a reporting requirement, it is better to err on the side of caution.

Reporting on the FBAR vs. Paying Tax on the Money

This is a question we receive often and so we distinction must be made. Just because you are reporting a foreign account on an FBAR does not mean there is a taxable event taking place. For example, the money may have been inherited, received as a gift and/or earned with income tax already having been paid on the earnings.

Thus, the key issue to remember with an FBAR is that the FBAR is a reporting requirement for you to update the Department of Treasury with your foreign accounts that you maintain overseas; it has nothing to do with whether there is a taxable event taking place.

I do not know my Maximum Account Value?

When you are reporting on the FBAR, you are supposed to provide the maximum value of the account balance for the year. Depending on which country you are in, and whether the account provides you statements (or if it is a passbook account) that information may not be available. When that information is not available you may either click the box that reads maximum account balance unknown or you may also consider using the balance that you have available, and explaining why you cannot obtain the maximum value in the box provided on the first page of the FBAR.

Can If I file a Late FBAR Statement?

This is a very complex issue. Technically, you are not allowed to file a late FBAR statement. Some people have done so in accordance with submitting a Quiet Disclosure, which can result in extremely high fines and penalties.

The Internal Revenue Service a Department of treasury are taking foreign account compliance very seriously and it is a major priority for the IRS. If you have not filed your FBAR statements, you have three main alternatives: Reasonable Cause Statement, Streamlined Disclosure, or OVDP (these are briefly discussed below)

Late FBAR Filings and a Reasonable Cause Statement

If you have not filed your FBAR timely, the first option is to submit the FBAR late accompanied by a Reasonable Cause Statement. The failure to file an FBAR can have extremely high penalties. Therefore, if you opt for the reasonable cause statement as opposed to one of the approved programs discussed below, then you are essentially submitting the account information and asking for forgiveness from the IRS for any penalty.

Two things to keep in mind his first, the IRS is not very sympathetic, and second, if the IRS disagrees with your reasoning you have now disclosed all of your account information to the IRS with no protection from penalties or criminal investigation.

Late FBAR Filings and the Streamlined Program

Under the streamlined program, a person will amend their tax returns for three years as well as file six years of unreported past FBAR statements (assuming that they are a US taxpayer for six years; if they have only been a US taxpayer for four years they would only file four years of past FBAR statement). This program is reserved for taxpayers who were non-willful (in other words, they were unaware of the requirement to file FBAR and report their foreign income).

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.

We are the “go-to” firm for other Attorneys, CPAs, Enrolled Agents, Accountants, and Financial Professionals across the globe.