Posts

FBAR Financial Accounts Definition | International Tax Lawyer & Attorney

/in , , /by

In the realm of US international tax compliance, few topics are as crucial as the reporting of foreign financial accounts, particularly The Foreign Bank and Financial Accounts Report (FBAR). This article focuses on one specific aspect of FBAR compliance: what accounts need to be disclosed on FBAR.  In particular, we will delve into the intricacies of the scope of the FBAR financial accounts definition.

Please, note that this article is an upgrade of an article that I published almost fifteen years ago.

FBAR Financial Accounts Definition: FBAR Background Information

FBAR is one of the most important US international tax compliance forms.  All US persons must file an FBAR if they have a financial interest in or signature authority over foreign financial accounts with an aggregate value exceeding $10,000 at any time during the calendar year (31 USC. § 5314; 31 C.F.R. § 1010.350).

FBAR filing is separate from income tax filing and has its own distinct requirements and deadlines. Also, a taxpayer must comply with his FBAR reporting obligations even if he already reported the same foreign financial accounts elsewhere (such as Form 8621 or Form 8938). US filers must file their FBARs (officially FinCEN Forms 114a) electronically through FinCEN’s BSA E-Filing System.

Additionally, FBAR has its own unique and very severe penalty system for noncompliance, including criminal penalties. This is why it is so important to understand what type of accounts should be disclosed on FBAR.

FBAR Financial Accounts Definition: Determining Reportable Accounts

When assessing whether an account qualifies as an FBAR foreign financial account, one should consider:

1. The account’s location. The account must be outside the United States – there is special definition for FBAR purposes for what this means.  I will not discuss the definition of “foreign accounts” in this article; instead I will only focus on what type of accounts need to be disclosed.

2. The account type. The main issue is whether this particular foreign asset falls within the definition of a “financial account” – this is the main topic of this article.

3. Your relationship to the account. In other words, do you have a financial interest in or signature authority over the foreign accounts in question.

4. The aggregate value of all foreign financial accounts. Generally, the accounts must exceed $10,000 in the aggregate at any point in the year. I will discuss in another article how this is calculated.

FBAR Financial Accounts Definition: Broad Scope

The definition of “financial account” for FBAR purposes is very broad. It is very important to understand that it is so broad that many taxpayers would not even normally consider certain arrangements as financial accounts.  

In general, if there is a value maintained as part of a fiduciary relationship with a financial institution, it is likely to be a reportable account on FBAR. See 75 Fed. Reg. at 8846. The IRS, however,has stated “an account is not established simply by conducting transactions such as wiring money or purchasing a money order where no relationship has otherwise been established.” Id.

FBAR Financial Accounts Definition: Bank, Securities and Investment Accounts

For the FBAR purposes, financial accounts include all checking, savings, brokerage and securities accounts. 75 Fed. Reg. 8846 defines “securities account” as “an account maintained with a person in the business of buying, selling, holding, or trading stock or other securities.” Id. Securities derivatives and other similar financial instruments held with a financial institution all fall within the definition of a reportable account. However, paper bonds, notes and stock certificates that are not held through a financial institutions are not considered as “financial accounts.”

The  FBAR financial accounts definition also applies to all demand, deposit and time deposit accounts (in other words, CD accounts and their equivalents).

FBAR Financial Accounts Definition: Debit Cards and Prepaid Credit Cards

31 C.F.R. § 1010.350(c) further expands the definition of “account” to foreign debit cards and prepaid credit cards. This definition of an account is an interesting one as even a slight overpayment of a credit card would make it a reportable account for FBAR purposes.

FBAR Financial Accounts Definition: Other Financial Accounts

31 C.F.R. § 1010.350(c)(3) introduces four additional categories of accounts that a filer must include on his FBARs:

  • Accounts with persons accepting deposits as a financial agency;
  • Insurance policies with cash value or annuity policies (for example, this definition includes Assurance Vie accounts in France, LIC policies in India and Prudential Life Insurance policies in Hong Kong);
  • Accounts with commodity futures or options brokers; and
  • Accounts with mutual funds or similar pooled investments (e.g. mutual funds owned through individual folios in India).

FBAR Financial Accounts Definition: Retirement Plans

Reporting retirement accounts on FBAR probably presents the biggest challenge to US taxpayers. Generally, all foreign retirement accounts would be need to be disclosed on FBAR unless they fall under an exception.

For example, certain US retirement plans (under IRC sections 401(a), 403(a), 403(b), 408, or 408A) are exempt from FBAR reporting. However, US filers need to disclose on their FBARs all of their Canadian RRSP accounts, Singaporean CPF accounts, Australian Superannuation accounts, Israeli retirement accounts and many other types of foreign retirement accounts that these filers may have.

As a separate note, the greatest difficulty concerning foreign retirement accounts is not even FBAR reporting, but potential other requirements as such Form 8938 and, most importantly, Form 3520 and even Form 3520-A.  The latter forms (Forms 3520 and 3520-A) are triggered if the foreign accounts are considered to be “foreign trusts”.  However, this decision to treat foreign accounts as trusts should be done with great care.

FBAR Financial Accounts Definition: Exceptions

Finally, certain categories of foreign financial accounts are exempt from FBAR reporting:

  1. Accounts in US military banking facilities serving US government installations abroad;
  2. Accounts over which most bank officers or employees have only signature authority (unless they have a personal financial interest); and
  3. Accounts over which officers or employees of publicly traded or large privately held US corporations have only signature authority, subject to specific conditions (31 C.F.R. § 1010.350(f)).

Contact Sherayzen Law Office for Professional FBAR Help

FBAR noncompliance is one of the most common and one of the most fearsome problems facing US individual taxpayers with respect to their US international tax compliance. Sherayzen Law Office can help you resolve past FBAR noncompliance and bring your US tax affairs into full compliance with US tax laws.

We are a leading US international tax compliance and FBAR compliance firm.  This is our core specialty in which we have profound knowledge and extensive experience.

Contact us today to discuss your specific FBAR and international tax compliance needs with an experienced tax attorney!

2024 FBAR Civil Penalties | FBAR International Tax Lawyer & Attorney

/in , /by

This article is an update of prior articles on the FBAR Civil Penalties. Since the US Congress mandated the IRS to adjust FBAR civil penalties for inflation on an annual basis, this article discusses the year 2024 FBAR Civil Penalties.

2024 FBAR Civil Penalties: Overview of the FBAR Penalty System

FinCEN Form 114, the Report of Foreign Bank and Financial Accounts (commonly known as “FBAR”), has always had a very complex, multi-layered system of penalties, which has grown even more complicated over the years. These penalties can be grouped into four categories: criminal, willful, non-willful and negligent.

Of course, the most dreaded penalties are FBAR criminal penalties. Not only is there a criminal fine of up to $500,000, but, in some cases, a person can be sentenced to 10 years in prison for FBAR violations (and these two criminal penalties can be imposed simultaneously). Since the focus of this article is on FBAR civil penalties.

The next category of penalties are FBAR civil penalties imposed for the willful failure to file an FBAR. These penalties are imposed per each violation – i.e. on each account per year, potentially going back six years (the FBAR statute of limitations is six years).

The third category of penalties are FBAR penalties imposed for a non-willful failure to file an FBAR or a filing of an incorrect FBAR. These penalties can be imposed on US persons who do not even know that FBAR exists.

Finally, with respect to business entities, a penalty can be imposed for a negligent failure to file an FBAR or a filing of an incorrect FBAR.

It is important to note that FBAR has its own reasonable cause exception that may be used to fight the assessment of any of the aforementioned civil penalties. Moreover, each of these penalty categories has numerous levels of penalty mitigation that a tax attorney may utilize to lower his client’s FBAR civil penalties.

2024 FBAR Civil Penalties: Penalties Prior to November 2 2015

Prior to November 2, 2015, FBAR penalties were not adjusted for inflation and stayed flat at the levels mandated by Congress. Let’s go over each category of penalties prior to inflation adjustment.

As of November 1, 2015, Willful FBAR penalties were up to $100,000 or 50% of the highest balance of an account, whichever is greater, per violation. Again, a violation meant a failure to correctly report an account in any year. Non-willful FBAR penalties were up to $10,000 per violation per year; per US Supreme Court’s decision last year, the penalty should have been imposed on a per form (not per account) basis. Finally, FBAR penalties for negligence were up to $500 per violation; if, however, there was a pattern of negligence, the negligence penalties could increase ten times up to $50,000 per violation.

2024 FBAR Civil Penalties: Inflation Adjustment

The situation changed dramatically in 2015. As a result of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (“2015 Inflation Adjustment Act”), Congress mandated federal agents to: (1) adjust the amounts of civil monetary penalties with an initial “catch-up” adjustment; and (2) make subsequent annual adjustments for inflation. The inflation adjustment applied only to civil penalties.

The “catch-up” adjustment meant a huge increase in penalties, because federal agencies were required to update all of these penalties from the time of their enactment (or the last year Congress adjusted the penalties) through November of 2015. This meant that, in 2015, the penalties jumped to account for all accumulated multi-year inflation. The catch-up adjustment was limited to two and a half times of the original penalty.

Fortunately, the Congress adjusted FBAR penalties in 2004 and the “catch-up” adjustment did not have to go back to the 1970s. It still meant a very large (about 25%) increase in FBAR civil penalties, but it was not as dramatic as some other federal penalties.

2024 FBAR Civil Penalties: Bifurcation of FBAR Penalty System

The biggest problem with the inflation adjustment, however, was the fact that it further complicated the already dense multi-layered FBAR system of civil penalties – FBAR penalties became dependent on the timing of a violation and IRS penalty assessment. In essence, the 2015 Inflation Adjustment Act split the FBAR penalty into two distinct parts.

The first part applies to FBAR violations that occurred on or before November 2, 2015. The old pre-2015 FBAR penalties described above applies to these violations irrespective of when the IRS actually assesses the penalties for these violations. The last FBAR violations definitely eligible for the old statutory penalties are those that were made concerning 2014 FBAR which was due on June 30, 2015. The statute of limitations for the 2014 FBAR ran out on June 30, 2021.

The second part applies to all FBAR violations that occurred after November 2, 2015. For all of these violations, the exact amount of penalties will depend on the timing of the IRS penalty assessment, not when the FBAR violation actually occurred. In other words, if an FBAR violation occurred on October 15, 2017 and the IRS assessed FBAR penalties June 17, 2021, the IRS would use the inflation-adjusted FBAR penalties as of the year 2021, not October 15, 2017.

2024 FBAR Civil Penalties: Penalties Assessed On or After January 25, 2024

Now that we understand the history of FBAR penalties, we can specifically discuss the 2024 FBAR Civil penalties. The first thing to understand is that we are talking about penalties assessed by the IRS on or after January 25, 2024; prior to that date, the 2023 FBAR civil penalties were still effective.

The 2024 Willful FBAR penalty imposed under 31 U.S.C. §5321(a)(5)(C)(i)(I) is $161,166 per violation. Per last year’s court decisions, the term “violation” in the context of willful FBAR penalties means on a “per account for each year” basis described above.

The 2024 Non-Willful FBAR penalty imposed under 31 U.S.C. §5321(a)(5)(B) is $16,117 per violation. The term “violation” in the context of non-willful FBAR penalties at this point has been settled to mean “per form” (rather than per-account) basis.

The 2024 Negligence FBAR penalty imposed under 31 U.S.C. §5321(a)(6)(A) is $1,394; if there is a pattern of negligence under 31 U.S.C. §5321(a)(6)(B), then the penalty goes up to $108,489.

Contact Sherayzen Law Office for Professional Help With Your Prior FBAR Noncompliance

Sherayzen Law Office is a leader in US international tax law and FBAR compliance. We have successfully helped hundreds of clients from over eighty countries resolve their prior FBAR noncompliance, including through various voluntary disclosure programs (such as Streamlined Domestic Offshore Procedures, Streamlined Foreign Offshore Procedures, Delinquent FBAR Submission Procedures, et cetera). We can help you!

Contact Us Today to Schedule Your Confidential Consultation!

2023 FBAR Conversion Rates | FBAR International Tax Lawyer

/in , /by

The 2023 FBAR conversion rates are very important for your US international tax compliance. The reason for their importance is their relation to FBAR (FinCEN Form 114) and the IRS Form 8938. The 2023 FBAR and 2023 Form 8938 instructions both require that 2023 FBAR conversion rates be used to report the required highest balances of foreign financial assets on these forms (in the case of Form 8938, the 2023 FBAR conversion rates is the default choice, not an exclusive one). In other words, the 2023 FBAR conversion rates are used to translate foreign-currency highest balances into US dollars for the purposes of FBAR and Form 8938 compliance.

The U.S. Department of Treasury  already published the 2023 FBAR conversion rates online (they are called “Treasury’s Financial Management Service rates” or the “FMS rates”).

Since the 2023 FBAR conversion rates are highly important to US taxpayers, international tax lawyers and international tax accountants, Sherayzen Law Office provides the table below listing the official 2023 FBAR conversion rates (note that the readers still need to refer to the official website for any updates).

Country – Currency Foreign Currency to $1.00
AFGHANISTAN – AFGHANI70.54
ALBANIA – LEK93.23
ALGERIA – DINAR134.051
ANGOLA – KWANZA842.5
ANTIGUA – BARBUDA – E. CARIBBEAN DOLLAR2.7000
ARGENTINA – PESO827.75
ARMENIA – DRAM400
AUSTRALIA – DOLLAR1.472
AUSTRIA – EURO0.905
AZERBAIJAN – NEW MANAT1.7
BAHAMAS – DOLLAR1.0000
BAHRAIN – DINAR0.3770
BANGLADESH – TAKA113
BARBADOS – DOLLAR2.02
BELARUS – NEW RUBLEUNAVAILABLE*
BELGIUM – EURO0.905
BELIZE – DOLLAR2
BENIN – CFA FRANC 589
BERMUDA – DOLLAR1
BOLIVIA – BOLIVIANO6.86
BOSNIA – MARKA1.769
BOTSWANA – PULA13.387
BRAZIL – REAL4.852
BRUNEI – DOLLAR1.32
BULGARIA – LEV New1.769
BURKINA FASO – CFA FRANC589
BURUNDI – FRANC2850
CAMBODIA – RIEL4051
CAMEROON – CFA FRANC593.41
CANADA – DOLLAR1.326
CAPE VERDE – ESCUDO99.75
CAYMAN ISLANDS – DOLLAR0.82
CENTRAL AFRICAN REPUBLIC – CFA FRANC593.41
CHAD – CFA FRANC593.41
CHILE – PESO880
CHINA – RENMINBI7.104
COLOMBIA – PESO3873
COMOROS – FRANC443.49
CONGO – CFA FRANC593.41
COSTA RICA – COLON519.22
COTE D’IVOIRE – CFA FRANC589
CROATIA – EURO0.905
CUBA – Chavito1
CUBA – PESO24
CYPRUS – EURO0.905
CZECH REPUBLIC – KORUNA21.731
DEM. REP. OF CONGO – FRANC2660
DENMARK – KRONE6.744
DJIBOUTI – FRANC177
DOMINICAN REPUBLIC – PESO57.9
ECUADOR – DOLARES1.0000
EGYPT – POUND30.9
EL SALVADOR – DOLARES1.0000
EQUATORIAL GUINEA – CFA FRANC593.41
ERITREA – NAKFA15
ESTONIA – EURO0.905
ESWATINI – LILANGENI18.427
ETHIOPIA – BIRR55.997
EURO ZONE – EURO0.905
FIJI – DOLLAR2.165
FINLAND – EURO0.905
FRANCE – EURO0.905
GABON – CFA FRANC593.41
GAMBIA – DALASI64
GEORGIA – LARI2.665
GERMANY – EURO0.905
GHANA – CEDI11.9
GREECE – EURO0.936
GRENADA – EAST CARIBBEAN DOLLAR2.7
GUATEMALA – QUETZAL7.815
GUINEA BISSAU – CFA FRANC589
GUINEA – FRANC8511
GUYANA – DOLLAR215
HAITI – GOURDE131.23
HONDURAS – LEMPIRA24.624
HONG KONG – DOLLAR7.811
HUNGARY – FORINT345.78
ICELAND – KRONA136.04
INDIA – RUPEE83.162
INDONESIA – RUPIAH15372.69
IRAN – RIAL42000
IRAQ – DINAR1308
IRELAND – EURO0.905
ISRAEL – SHEKEL3.619
ITALY – EURO0.905
JAMAICA – DOLLAR154
JAPAN – YEN141.47
JORDAN – DINAR0.708
KAZAKHSTAN – TENGE456.29
KENYA – SHILLING156.5
KOREA – WON1299.22
KOSOVO – EURO0.905
KUWAIT – DINAR0.307
KYRGYZSTAN – SOM89.062
LAOS – KIP20476
LATVIA – EURO0.905
LEBANON – POUND15000
LESOTHO – MALOTI18.427
LIBERIA – DOLLAR189
LIBYA – DINAR4.754
LITHUANIA – EURO0.905
LUXEMBOURG – EURO0.905
MADAGASCAR – ARIARY4564
MALAWI – KWACHA1700
MALAYSIA – RINGGIT4.59
MALDIVES – RUFIYAA15.42
MALI – CFA FRANC589
MALTA – EURO0.905
MARSHALL ISLANDS – DOLLAR1
MAURITANIA – OUGUIYA39.16
MAURITIUS – RUPEE43.87
MEXICO – PESO16.949
MICRONESIA – DOLLAR1
MOLDOVA – LEU17.25
MONGOLIA – TUGRIK3410.69
MONTENEGRO – EURO0.905
MOROCCO – DIRHAM9.855
MOZAMBIQUE – METICAL 63.25
MYANMAR – KYAT3380
NAMIBIA – DOLLAR18.427
NEPAL – RUPEE133.05
NETHERLANDS – EURO0.905
NETHERLANDS ANTILLES – GUILDER1.78
NEW ZEALAND – DOLLAR1.585
NICARAGUA – CORDOBA36.6
NIGER – CFA FRANC589
NIGERIA – NAIRA910
NORWAY – KRONE10.166
OMAN – RIAL0.385
PAKISTAN – RUPEE276.2
PALAU – DOLLAR1
PANAMA – DOLARES1
PAPUA NEW GUINEA – KINA3.727
PARAGUAY – GUARANI7249.99
PERU – SOL3.675
PHILIPPINES – PESO55.451
POLAND – ZLOTY3.924
PORTUGAL – EURO0.905
QATAR – RIYAL3.645
REP. OF N MACEDONIA – DINAR55.45
ROMANIA – NEW LEU 4.499
RUSSIA – RUBLE89.067
RWANDA – FRANC1250
SAO TOME & PRINCIPE – NEW DOBRAS22.142
SAUDI ARABIA – RIYAL3.75
SENEGAL – CFA FRANC589
SERBIA – DINAR105.92
SEYCHELLES – RUPEE13.473
SIERRA LEONE – LEONE22.7
SIERRA LEONE – OLD LEONE21.4
SINGAPORE – DOLLAR1.32
SLOVAK REPUBLIC – EURO0.905
SLOVENIA – EURO0.905
SOLOMON ISLANDS – DOLLAR8.065
SOMALI – SHILLING568
SOUTH AFRICA – RAND18.427
SOUTH SUDANESE – POUND1070
SPAIN – EURO0.905
SRI LANKA – RUPEE323.8
ST LUCIA – E CARIBBEAN DOLLAR2.7
SUDAN – SUDANESE POUND830
SURINAME – GUILDER36.723
SWEDEN – KRONA10.031
SWITZERLAND – FRANC0.838
SYRIA – POUND8585
TAIWAN – DOLLAR30.641
TAJIKISTAN – SOMONI10.93
TANZANIA – SHILLING2505
THAILAND – BAHT34.33
TIMOR – LESTE DILI1
TOGO – CFA FRANC589
TONGA – PA’ANGA2.26
TRINIDAD & TOBAGO – DOLLAR6.749
TUNISIA – DINAR3.064
TURKEY – NEW LIRA29.547
TURKMENISTAN – NEW MANAT3.491
UGANDA – SHILLING3775
UKRAINE – HRYVNIA38.089
UNITED ARAB EMIRATES – DIRHAM3.673
UNITED KINGDOM – POUND STERLING0.786
URUGUAY – PESO39.02
UZBEKISTAN – SOM12333.77
VANUATU – VATU116
VENEZUELA – BOLIVAR SOBERANO35.841
VENEZUELA – FUERTE (OLD)248832
VIETNAM – DONG24260
WESTERN SAMOA – TALA2.653
YEMEN – RIAL528
ZAMBIA – NEW KWACHA 25.71
ZIMBABWE – RTGS5801.47

*Note #1: As of the time of this article, the Department of Treasury still has not published the FBAR rate for Belarus. Please, consult the Department of the Treasury for clarification.

Child FBAR Obligations | FBAR Tax Lawyer & Attorney

/in , /by

Child FBAR filing obligations is a topic that comes up fairly often in my practice. In this short essay, I will discuss whether a child is required to file an FBAR and how it should be done.

Child FBAR Obligations: What is FBAR

FBAR is a common abbreviation for the Report of Foreign Bank and Financial Accounts, officially called FinCEN Form 114, Report of Foreign Bank and Financial Accounts (used to be TD F 90-22.1). This form is used by US persons to report to the IRS a financial interest in or signatory authority over foreign financial accounts.  This is one of the most important forms that US taxpayers need to file in order to comply with their US international tax law requirements. A failure to file an FBAR when required may result in an imposition of severe IRS penalties.

Child FBAR Obligations: No Age Limitations

All US Persons are potentially subject to the FBAR requirement with no regard for their age. In other words, minor children with foreign accounts that satisfy the FBAR filing threshold must file FBARs. Even a newborn infant may have to file an FBAR. See BSA Electronic Filing Requirements For Report of Foreign Bank and Financial Accounts (FinCEN Form 114), p. 6.

Child FBAR Obligations: How to file a Child’s FBAR

While a child is responsible for the filing of his own FBAR, the child’s parent, guardian or other legally responsible person must file the FBAR for the child if the child is unable to do it himself.  Id. In such cases, the responsible person, parent or guardian must sign the FBAR on behalf of the child as “Parent/Guardian filing for child”.

Contact Sherayzen Law Office for Professional Help with Your Child FBAR Obligations

Parents often overlook their children’s FBAR obligations.  Time and again, I discover that otherwise fully-compliant taxpayers completely neglected their children’s FBARs.

If your child has not filed the required FBARs or he needs help complying with his current FBAR obligations, contact Sherayzen Law Office for professional help.  We are a highly-experienced team of international tax professionals led by an international tax attorney, Mr. Eugene Sherayzen.  We have helped hundreds of people around the world with their FBAR obligations, including offshore voluntary disclosures, and we can help you!

Contact Us Today to Schedule Your Confidential Consultation!