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2018 FinCEN Form 114 Deadline | FBAR International Tax Lawyer & Attorney

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The 2018 FinCEN Form 114 deadline is approaching fast. It is definitely one of the most important deadlines that US taxpayers face in 2019. It is also one of the most confusing ones, because this form is not filed with a federal income tax return. Moreover, some taxpayers mistakenly treat 2018 FinCEN Form 114 as something separate from the 2018 FBAR. In order to clarify these issues, Sherayzen Law Office is publishing this notice on the 2018 FinCEN Form 114 deadline to US taxpayers.

2018 FinCEN Form 114 Deadline: Relationship Between FBAR and FinCEN Form 114

FBAR is an acronym for FinCEN Form 114, the Report of Foreign Bank and Financial Accounts. In other words, these are two names of the same form. Also, it is useful to know that, prior to mandatory e-filing, the official name of FBAR was TD F 90-22.1 and it was filed on paper. The name of the form changed once the e-filing form was created.

2018 FinCEN Form 114 Deadline: Pre-2016 Deadline

For the years preceding 2016, the US government chose a very strange deadline for FBARs – June 30 of each year. For example, the 2012 FBAR was due on June 30, 2013. No filing extensions were allowed.

The last FinCEN Form 114 that followed the June 30 deadline was the 2015 FinCEN Form 114; its due date was June 30, 2016. This fact is still relevant for offshore voluntary disclosures and IRS FinCEN Form 114 audits due to the six-year FBAR statute of limitations. The June 30 deadline will continue to be relevant as late as June 30, 2022.

2018 FinCEN Form 114 Deadline: Changes Starting 2016 FinCEN Form 114

In order to resolve the problem of confusing deadlines, the US Congress changed the FinCEN Form 114 deadline as part of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (the “Act”). Under Section 2006(b)(11) of the Act, starting 2016 FinCEN Form 114, US Persons must e-file FBARs by the due date of that year’s tax return (i.e. usually April 15), not June 30.

Furthermore, during the transition period (which continues to this date), the IRS granted to US taxpayers an automatic extension of the FinCEN Form 114 filing deadline to October 15. Taxpayers do not need to make any specific requests in order for an extension to be granted.

In other words, starting 2016 FinCEN Form 114, the Act adjusted the FinCEN Form 114 due date to coincide with the federal income tax filing deadlines. This is the case even if federal law requires a different filing date. For example, in situations where the tax return due date falls on a Saturday, Sunday, or legal holiday, the IRS must delay the due date until the next business day; the FBAR deadline will follow suit and also shift to the next business day.

2018 FinCEN Form 114 Deadline

Based on the current law, the 2018 FinCEN Form 114 deadline will be April 15, 2019. In other words, your 2018 FinCEN Form 114 has to be e-filed by and including that date. Automatic extension to October 15, 2019, is available.

2018 FinCEN Form 114 Deadline: Who Must File by April 15, 2019

A US Person must file his 2018 FinCEN Form 114 by April 15, 2019, as long as his foreign bank and financial accounts meet the FinCEN Form 114 filing requirements.

“US Person” has special significance in the context of FinCEN Form 114. This term is very similar to the concept of “US tax resident”, but there are some differences between these terms. In general, a US Person includes a US citizen, a US permanent resident and any person who satisfies the Substantial Presence Test. The term also covers any business entity, trust and estate formed under the laws of the United States.

Moreover, “US Person” also applies to certain non-resident aliens who make first-year election under IRC §7701(b)(4). This term, however, does not apply to persons who make the first-year election pursuant to IRC §6013(g) or (h) election. See this article for a more detailed discussion of individual FinCEN Form 114 filers.

2018 FinCEN Form 114 Deadline: the Trigger for the FinCEN Form 114 Requirement

The FinCEN Form 114 requirement is triggered whenever a US person has a financial interest in or signatory authority or any other authority over foreign bank and financial accounts the highest aggregate value of which exceed $10,000. The term “accounts” is defined very broadly to include pretty much any custodial relationship. For example, this terms includes: foreign bank accounts, foreign fixed-deposit accounts, foreign investment accounts, foreign mutual funds, foreign precious metals accounts, foreign life insurance policies, foreign retirement accounts and so on and so forth.

A PPF account in India is a reportable foreign account for FinCEN Form 114. The French Assurance Vie accounts, Malaysian health insurance investment accounts, Australian Superannuation Fund accounts, Colombian building contract accounts, Argentinian “participation” accounts, German “building” accounts, Spanish mutual fund accounts, Swiss financial products are all reportable bank and financial accounts for FinCEN Form 114 purposes; so are Goldmoney and BullionVault accounts.

Contact Sherayzen Law Office for Professional Help With Your 2018 FinCEN Form 114 Deadline

Sherayzen Law Office is an international tax law firm that specializes in FinCEN Form 114 compliance. We have filed thousands of FBARs for our clients as part of their annual tax compliance as well as offshore voluntary disclosures. We can help You!

Contact Us Today to Schedule Your Confidential Initial Consultation!

FinCEN Form 114 Business Filers | FBAR Lawyer & Attorney Delaware

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In a previous article, I described individuals who need to file FinCEN Form 114. This essay is a continuation of the same series of articles concerning FinCEN Form 114 filers. Today, I will devote my attention to FinCEN Form 114 Business Filers.

FinCEN Form 114 Business Filers: FBAR Filing Requirement

We first need to understand what Form 114 is. The Report of Foreign Bank and Financial Accounts, FinCEN Form 114 also known as “FBAR”, is one of the most important information returns administered by the IRS since 2001 (the form itself has existed since 1970). FBAR requires a US person to disclose his financial interest in or signatory authority (or any other authority) over foreign bank and financial accounts as long as the highest balance of these accounts, in the aggregate, exceeds $10,000 at any point during a calendar year.

FBAR is the creation of the Bank Secrecy Act, Title 31 of the United States Code (“USC”). In other words, it is technically not a tax form. In fact, its original purpose was to fight financial crimes.

Due to this legal history, FBAR has a ruthless yet highly elaborate penalty system. FBAR penalties range from criminal penalties that include incarceration to the astonishingly high willful and even non-willful civil penalties. This severe penalty system makes FBAR one of the most dangerous US international information returns.

FinCEN Form 114 Business Filers: General Definition

As described above, only US persons are required to file FBARs. There are various categories of US persons: individuals, businesses, trusts and estates. Our focus today is on business filers.

The general rule is that a business entity is considered a US person if it was created or organized in the United States or under the laws of the United States. There are two terms that we need to understand within this general rule in order to the rule apply correctly: entity and the United States.

FinCEN Form 114 Business Filers: Entity

For FBAR purposes, the word “entity” is defined broadly to include without limitation a corporation, a partnership and a limited liability company. This term applies even if a business is a disregarded entity for US tax purposes.

In other words, a single member limited liability company is required to file an FBAR if it has foreign accounts that satisfy the FBAR filing threshold. Again, the reason for applying the legal, rather than a tax a definition of “entity”, is driven by the FBAR’s legal history; it is a Title 31 requirement, not a Title 26 (i.e. the Internal Revenue Code) requirement.

FinCEN Form 114 Business Filers: Definition of the United States

I have already explored the FBAR definition of the United States in another article. Hence, I will only briefly state the rule here. 31 CFR 1010.100(hhh) defines the United States for FBAR purposes as: the States of the United States, the District of Columbia, the Indian Lands (as defined in the Indian Gaming Regulatory Act) and the territories and insular possessions of the United States.

Thus, a business entity formed in Guam is considered a US person for FBAR purposes. Similarly, a partnership formed in Delaware by two non-resident aliens is also a US person. Even an entity created under the laws of the Commonwealth of Puerto Rico will still be a US person. If these entities have foreign financial and bank accounts which exceed the FBAR filing threshold, they will also be considered FinCEN Form 114 business filers.

Contact Sherayzen Law Office for Professional FBAR Help

If you are a US business entity which maintains foreign accounts outside of the United States, please consider contacting Sherayzen Law Office for professional legal help. We have extensive experience in helping US businesses to comply with their FBAR requirements as well as to remedy their past FBAR noncompliance through an offshore voluntary disclosure.

Contact Us Today to Schedule Your Confidential Consultation!

This article focuses on FinCEN Form 114 business filers and is part of the series of articles on FinCEN Form 114 filers. The series began with the article that FBAR and Form 114a are the same form, then another article on the FBAR definition of the United States and still another article on the FinCEN Form 114 Filers (with the focus on the individual filers). Future articles are planned to continue this series.