FBAR compared to Form 8938: Differences, Which to File, When to File, etc.

We receive many client queries regarding FBAR and Form 8938. If you are a U.S. person and you have assets and accounts in a foreign country, you may need to submit Form 8938 and/or FinCEN Form 114 (Report of Foreign Bank and Financial Accounts) to the IRS. These forms are used by the IRS to keep track of your foreign holdings and are part of the IRS’ campaign to reduce international tax evasion.

The Form 8938 filing requirement does not replace or otherwise affect a taxpayer’s obligation to file FinCEN Form 114 (Report of Foreign Bank and Financial Accounts). Unlike Form 8938, the FBAR (FinCEN Form 114) is not filed with the IRS. It must be filed directly with the office of Financial Crimes Enforcement Network (FinCEN), a bureau of the Department of the Treasury, separate from the IRS. 

Individuals and domestic entities must check the requirements and relevant reporting thresholds of each form and determine if they should file Form 8938 or FinCEN Form 114, or both. Form 8938 and Instructions can be found at About Form 8938. FinCen Form 114 and Instructions can be found through FinCen’s BSA E-Filing System.

While both forms may seem to be collecting the same information, there are some subtle differences that every filer needs to be aware of. The requirement to file one form does not automatically mean you are required to file the other.

To help U.S. persons remain compliant with this reporting, we have presented below the IRS’ comprehensive comparison of all the requirements for these two forms.

 Form 8938, Statement of Specified Foreign Financial AssetsFinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR)
Who Must File?Specified individuals and specified domestic entities that have an interest in specified foreign financial assets and meet the reporting thresholdSpecified individuals include U.S citizens, resident aliens, and certain non-resident aliensSpecified domestic entities include certain domestic corporations, partnerships, and trustsU.S. persons, which include U.S. citizens, resident aliens, trusts, estates, and domestic entities that have an interest in foreign financial accounts and meet the reporting threshold
Does the United States include U.S. territories?NoYes, resident aliens of U.S territories and U.S. territory entities are subject to FBAR reporting
Reporting Threshold (Total Value of Assets)Specified individuals living in the US:Unmarried individual (or married filing separately): Total value of assets was more than $50,000 on the last day of the tax year, or more than $75,000 at any time during the year.Married individual filing jointly: Total value of assets was more than $100,000 on the last day of the tax year, or more than $150,000 at any time during the year.Specified individuals living outside the US:Unmarried individual (or married filing separately): Total value of assets was more than $200,000 on the last day of the tax year, or more than $300,000 at any time during the year.Married individual filing jointly: Total value of assets was more than $400,000 on the last day of the tax year, or more than $600,000 at any time during the year.Specified domestic entities:
Total value of assets was more than $50,000 on the last day of the tax year, or more than $75,000 at any time during the tax year.
Aggregate value of financial accounts exceeds $10,000 at any time during the calendar year. This is a cumulative balance, meaning if you have 2 accounts with a combined account balance greater than $10,000 at any one time, both accounts would have to be reported.
When do you have an interest in an account or asset?If any income, gains, losses, deductions, credits, gross proceeds, or distributions from holding or disposing of the account or asset are or would be required to be reported, included, or otherwise reflected on your income tax returnFinancial interest: you are the owner of record or holder of legal title; the owner of record or holder of legal title is your agent or representative; you have a sufficient interest in the entity that is the owner of record or holder of legal title.Signature authority: you have authority to control the disposition of the assets in the account by direct communication with the financial institution maintaining the account.See instructions for further details.
What is Reported?Maximum value of specified foreign financial assets, which include financial accounts with foreign financial institutions and certain other foreign non-account investment assetsMaximum value of financial accounts maintained by a financial institution physically located in a foreign country
How are maximum account or asset values determined and reported?Fair market value in U.S. dollars in accord with the Form 8938 instructions for each account and asset reportedConvert to U.S. dollars using the end of the taxable year exchange rate and report in U.S. dollars.Use periodic account statements to determine the maximum value in the currency of the account.Convert to U.S. dollars using the end of the calendar year exchange rate and report in U.S. dollars.
When Due?Form is attached to your annual return and due on the date of that return, including any applicable extensionsReceived by April 15 (6-month automatic extension to Oct 15)
Where to File?File with income tax return pursuant to instructions for filing the return. File electronically through FinCENs BSA E-Filing System. The FBAR is not filed with a federal tax return.
PenaltiesUp to $10,000 for failure to disclose and an additional $10,000 for each 30 days of non-filing after IRS notice of a failure to disclose, for a potential maximum penalty of $60,000; criminal penalties may also applyCivil monetary penalties are adjusted annually for inflation. For civil penalty assessment prior to Aug 1, 2016, if non-willful, up to $10,000; if willful, up to the greater of $100,000 or 50 percent of account balances; criminal penalties may also apply

Types of Foreign Assets and Whether They are Reportable

Types of Foreign AssetsForm 8938, Statement of Specified Foreign Financial AssetsFinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR)
Financial (deposit and custodial) accounts held at foreign financial institutionsYesYes
Financial account held at a foreign branch of a U.S. financial institutionNoYes
Financial account held at a U.S. branch of a foreign financial institutionNoNo
Foreign financial account for which you have signature authorityNo, unless you otherwise have an interest in the account as described aboveYes, subject to exceptions
Foreign stock or securities held in a financial account at a foreign financial institutionThe account itself is subject to reporting, but the contents of the account do not have to be separately reportedThe account itself is subject to reporting, but the contents of the account do not have to be separately reported
Foreign stock or securities not held in a financial accountYesNo
Foreign partnership interestsYesNo
Indirect interests in foreign financial assets through an entityNoYes, if sufficient ownership or beneficial interest (i.e., a greater than 50 percent interest) in the entity. See instructions for further detail.
Foreign mutual fundsYesYes
Domestic mutual fund investing in foreign stocks and securitiesNoNo
Foreign accounts and foreign non-account investment assets held by foreign or domestic grantor trust for which you are the grantorYes, as to both foreign accounts and foreign non-account investment assetsYes, as to foreign accounts
Foreign-issued life insurance or annuity contract with a cash-valueYesYes
Foreign hedge funds and foreign private equity fundsYesNo
Foreign real estate held directlyNoNo
Foreign real estate held through a foreign entityNo, but the foreign entity itself is a specified foreign financial asset and its maximum value includes the value of the real estateNo
Foreign currency held directlyNoNo
Precious Metals held directlyNoNo
Personal property, held directly, such as art, antiques, jewelry, cars and other collectiblesNoNo
‘Social Security’- type program benefits provided by a foreign governmentNoNo

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