THIS IS NEW - THANKS TO FACTA, Foreign Asset Tax Compliance Act, which was included in part of the HIRE Act of 2010.
This new form, Form 8938 (Statement of Specified Foreign Financial Assets) will need to be filed by taxpayers with specific types and amounts of foreign financial assets or foreign accounts. The rule applies to U.S. citizen and residents, and nonresidents, and certain nonresidents who live in American Somoa or Puerto Rico.
FACTA applies to foreign ASSETS, whereas the FBAR only applies to foreign ACCOUNTS. Although the two overlap, the FACTA requirements to file IRS Form 8938 in no way eliminates or changes the FBAR requirements to file Treasury Form 90-22.1
It is effective for years beginning after March 18, 2010 - so for most taxpayers this will be the 2011 tax return which will be filed during the 2012 tax filing season. Failing to file Form 8938 when requried could reslt in a $10,000 penalty, with an additional penalty of up to $50,000 for continued failure to file after IRS notification.
The IRS is interested in foreign financial assets such as stocks, bank accounts, financial instruments, which are MAINTAINED OVERSEAS. The regulations include a list of examples, such as swaps, options, derivative contracts, a capital or profit interest in an foreign partnership, an note or indebtedness issued by a foreign person. This is for invesment - not trade or business.
The following are NOT considered reportable:
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Foreign financial account maintained by a foreign branch of a U.S. financial institution
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Beneficial interest in a foreign trust or a foreign estate
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Interests in social security, social insurance or similar program of a foreign government
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Foreign assets held in a bankrupty trust
The threshold is as follows:
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Unmarried, livining in U.S. = $50,000 on last day of year, or $75,000 at any time during year
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Married, living in U.S. = $100,000 on last day of year, or $150,000 at any time during year
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Unmarried, living abroad = $200,000 on last day of year, or $300,000 at any time during year
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Married, livng abraod = $400,000 on last day of year, or $600,000 at any time during year.
For more information - see the IRS "Do I need to file Form 8938? and IRS Instructions for Form 8938
The Journal Of Accountancy has a great article published August, 2010, "The Foreign Account Tax Compliance Act".
