[IMGCAP(1)][IMGCAP(2)]It’s the beginning of the end of the filing date disconnect between foreign bank account reports and income tax returns.
On July 31, President Obama signed the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 into law, which modified the due date of several key forms for Americans with foreign income and Americans living abroad.
That includes the Report of Foreign Bank and Financial Accounts, or Form 114, colloquially known as the FBAR. Any U.S. person with a financial interest in, or signatory authority over, foreign financial accounts must file the FBAR, if at any time, the aggregate value of their relevant foreign account or accounts exceeds $10,000. An account over which a person has signature authority but no ownership interest is included in this computation.
The FBAR gained notoriety in 2008 when UBS, responding to pressure from the U.S. Department of Justice, disclosed the identities of thousands of U.S. holders of Swiss accounts.
Failure to file an FBAR may result in a civil penalty of up to $10,000 for negligent violations, or up to the greater of $100,000 or 50 percent of the account balance for willful violations. Failure to comply with the e-filing mandate may result in a separate $500 penalty. The new law did not change the requirement that the FBAR be filed electronically with the Bank Secrecy Act form (as opposed to together with a tax return to a service center), nor did it eliminate the requirement to file a Form 8938 with a tax return reporting certain foreign holdings.
New Due Date
The Act states that the Secretary of the Treasury, or the Secretary’s designees, shall modify appropriate regulations to provide that “[t]he due date of FinCEN Report 114 (relating to Report of Foreign Bank and Financial Accounts) shall be April 15 with a maximum extension for a 6-month period ending on October 15 and with provision for an extension under rules similar to the rules in Treas. Reg. section 1.60815.”
This is a good first step toward an integrated system. For filers living in the U.S., this change in the law will coordinate the timing of their FBAR submission with the timing of their income tax return. The FBAR will be due April 15, along with their Form 1040. If they apply for an extension of six months until October 15, the FBAR will also be due on October 15.
For Americans living abroad, the reference in the Act to Treas. Reg. section 1.60815 will allow for the coordination of the FBAR due date to the June 15 deadline (after automatic extension) for the coordinating income tax return.
Please note, this extension only comes into effect for the 2016 FBAR (now due April 15, 2017). It does not apply to taxpayers who missed the June 30, 2015 filing deadline for their 2014 FBAR.
New Penalty Waiver Provisions
Of particular interest for individuals who have made a minor foot fault in the first year of filing an FBAR, the Act states that “[f]or any taxpayer required to file such Form for the first time, any penalty for failure to timely request for, or file, an extension, may be waived by the Secretary.” This is a significant deviation and may provide some degree of comfort to those taxpayers who have just learned of filing obligations. Other options exist to correct filing deficiencies, and should be considered in light of all the facts and circumstances with your tax professional.
Shannon Smith Retzke and Aaron D. Schumacher are attorneys and partners at the law firm Withers Bergman LLP in New Haven, Conn.
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