There is a vibrant community of New Zealanders in Wisconsin (though New Zealanders can be found in many other places in the United States). Many members of this community continue to maintain their pre-immigration New Zealand bank accounts. Some of these owners of New Zealand bank accounts are aware of at least some US tax requirements with respect to these accounts, others are confused and still others are completely unaware of the existence of any such requirements. In this article, I will explain the three most common US reporting requirements – worldwide income reporting, FBAR and Form 8938 – concerning New Zealand accounts as well as describe, in general, those required to comply with them.
Note that, in this article, I will concentrate solely on individuals, not businesses, trusts or estates.
New Zealand Bank Accounts: US Tax Residents, US Persons and Specified Persons
Let’s commence our discussion with the issue of who is required to comply with US reporting requirements concerning New Zealand bank accounts. The first issue to note here is that US tax reporting requirements do not always define the required filers in the same manner.
In fact, each of aforementioned three requirements has its own definition of required filers. The worldwide income reporting requirement will follow the general definition of US tax residents. On the other hand, “US Persons” are required to file FBAR and “Specified Persons” are required to file Form 8938.
Despite these differences, however, the definitions of US Persons and Specified Persons are very similar to the concept of US tax residency; there are some specific differences, but, overall, these two concepts follow the definition of US tax residents very closely.
Hence, we should do the same and concentrate on the definition of a “US tax resident”. This is a broad term which covers a variety of US taxpayers, including: US citizens, US permanent residents, persons who satisfy the Substantial Presence Test and individuals who declare themselves as US tax residents. This general definition of “US tax resident” is subject to a number of important exceptions, such as visa exemptions (for example, an F-1 visa five-year exemption for foreign students) from the Substantial Presence Test.
Both, US Persons and Specified Persons include the same categories of taxpayers, but differences arise with respect to the treatment of individuals who declare themselves as US tax residents. The most common differences arise with respect to the treaty “tie-breaker” provisions to escape US tax residency and persons who declare themselves tax residents of the United States.
I strongly recommend that you contact an international tax attorney in order to determine whether you fall within the definition of any one or all of these filers. An attempt to do it by a non-professional is fraught with legal dangers.
New Zealand Bank Accounts: Worldwide Income Reporting
All US tax residents must report their worldwide income on their US tax returns. In other words, US tax residents must disclose both US-source and foreign-source income to the IRS. In the context of New Zealand bank accounts, foreign-source income means all bank interest income, dividends, royalties, capital gains and any other income generated by these accounts.
New Zealand Bank Accounts: FBAR Reporting
The official name of the Report of Foreign Bank and Financial Accounts (“FBAR”) is FinCEN Form 114. FBAR requires all US Persons to disclose their ownership interest in or signatory authority or any other authority over New Zealand (and any other foreign country) bank and financial accounts if the aggregate highest balance of these accounts exceeds $10,000. I encourage you to search our website sherayzenlaw.com for article concerning the definition of a US Person.
There is one aspect of the FBAR legal test that I wish to discuss here with more specificity – the definition of an “account”. The FBAR definition of an account is substantially broader than what this word is generally means in our society. “Account” for FBAR purposes includes: checking accounts, savings accounts, fixed-deposit accounts, investments accounts, mutual funds, options/commodity futures accounts, life insurance policies with a cash surrender value, precious metals accounts, earth mineral accounts, et cetera. In fact, whenever there is a custodial relationship between a foreign financial institution and a US person’s foreign asset, there is a very high probability that the IRS will find that an account exists for FBAR purposes.
Finally, FBAR has a very complex and severe (to an astonishing degree) penalty system. The most feared penalties are criminal FBAR penalties with up to 10 years in jail (of course, these penalties come into effect only in the most egregious situations). On the civil side, the most dreaded penalties are FBAR willful civil penalties which can easily exceed a person’s net worth. Even FBAR non-willful penalties can wreak a havoc in a person’s financial life.
Civil FBAR penalties have their own complex web of penalty mitigation layers, which depend on the facts and circumstances of one’s case. One of the most important factors is the size of the New Zealand bank accounts subject to FBAR penalties. Additionally, since 2015, the IRS has added another layer of limitations on the FBAR penalty imposition. These self-imposed limitations of course help, but one must keep in mind that they are voluntary IRS actions and may be disregarded under certain circumstances (in fact, there are already a few instances where this has occurred).
New Zealand Bank Accounts: FATCA Form 8938
Since 2011, FATCA Form 8938 has been another higher important requirement of US international tax law. This form is filed with a federal tax return and considered to be an integral part of the return. This means that a failure to file Form 8938 may render the entire tax return incomplete and potentially subject to an IRS audit.
Form 8938 requires “Specified Persons” to disclose on their US tax returns all of their Specified Foreign Financial Assets (“SFFA”) as long as these Persons meet the applicable filing threshold. The filing threshold depends on a Specified Person’s tax return filing status and his physical residency. For example, if he is single and resides in the United States, he needs to file Form 8938 as long as the aggregate value of his SFFA is more than $50,000 at the end of the year or more than $75,000 at any point during the year.
The IRS defines SFFA very broadly to include an enormous variety of financial instruments, including foreign bank accounts, foreign business ownership, foreign trust beneficiary interests, bond certificates, various types of swaps, et cetera. In some ways, FBAR and Form 8938 require the reporting of the same assets, but these two forms are completely independent from each other. This means that a taxpayer may have to do duplicate reporting on FBAR and Form 8938.
Specified Persons consist of two categories of filers: Specified Individuals and Specified Domestic Entities. You can find a detailed explanation of both categories by searching our website sherayzenlaw.com.
Finally, Form 8938 has its own penalty system which has far-reaching consequences for income tax liability (including disallowance of foreign tax credit and imposition of higher accuracy-related income tax penalties). There is also a $10,000 failure-to-file penalty.
Contact Sherayzen Law Office for Professional Help With the US Tax Reporting of Your New Zealand Bank Accounts
If you have New Zealand bank accounts, you should contact Sherayzen Law Office for professional help with your US international tax compliance. We have helped hundreds of US taxpayers with their US international tax issues, and We can help You!