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Financial Accounts & Investing Abroad
If you have an outlying Foreign Bank and Financial Accounts Report (FBAR) that you have not been able to file, you’re likely worried. After all, there’s plenty of fear-mongering on the internet regarding the strict, harsh penalties you can face for past-due FBAR forms. The good news is that you have options if you have delinquent FBARs you need to file.
Because of the complicated nature of the subject, it’s normal for people to not know and/or misunderstand the full extent of all FBAR requirements. After all, it’s a lot to take in, and if your finances are spread around a number of different countries, it gets harder to stay organized. Before diving into the world of delinquent FBAR forms, you should refresh yourself with an FBAR overview.
Here are the two most common mistakes made on FBAR filings:
If you think you might have filing errors on your FBAR forms from previous years — or you haven’t filed them in the first place — rest assured that you can still correct or file FBAR forms with a simple, headache-free process.
If you’re filing your FBAR later but aren’t under criminal investigation by the IRS, here’s how to proceed.
Visit FinCEN to file FBAR for previous years, and make sure you follow their instructions to the letter.
Prepare a statement that explains why you are late on filing the FBARs. The cover page of the electronic form will include a section where you can select a reason for filing late.
The IRS won’t impose a penalty as long as you properly reported on your US tax returns and paid all taxes on any income from your foreign financial accounts reported on the late FBARs.
If you’re unable to file electronically for any reason, you can contact FinCEN’s Regulatory Help line to determine alternatives to electronic filing.
For slightly more complicated scenarios, you will want to consider using streamlined filing compliance procedures if any of the following apply to you:
The streamlined filing compliance procedures certify that your failure to report on foreign financial assets and pay any associated tax due wasn’t due to willful conduct. They’ll help you file amended or late returns, resolve your tax and penalty procedures for previously amended or late returns, and resolve your tax or penalty obligations.
Some recent changes to the streamlined procedures include:
If you’re concerned that failing to report and submit the required information could lead to criminal liability or substantial monetary penalties, consider participating in the IRS Criminal Investigation Voluntary Disclosure Practice.
This program allows you to consult with an IRS professional or legal advisors and determine whether you have acceptable reasons for filing FBAR late.
If you don’t have substantial changes to make on your tax return involving unreported income, you may be eligible for the Delinquent FBAR Submission Procedures. Under these rules, you can get into compliance with the IRS without penalty.
Eligibility for this program is limited to taxpayers who don’t have unreported income and aren’t required to file additional delinquent forms besides the FBAR.
The severity of the penalties associated not filing an FBAR vary depending on whether the IRS believes your mistake is willful or non-willful. As long as you can prove that filing delinquent FBAR forms was non-willful and you have support for your claim, there’s less of a chance that you’ll be penalized.
If the IRS rules your violation non-willful, it means they’ve determined you didn’t know about the requirement. In this case, they’ll find you negligent and may issue a penalty of up to $10,000 per foreign bank account for every year you committed the violation.
If they believe your violation was willful, it means they believe you knew you were required to file an FBAR but chose not to do so.
The consequence for a willful violation can include either a penalty of $100,000 or 50% of your account value, depending on which amount is higher. The IRS can also assess the penalty for each unreported account for each year you failed to report. A willful violation of the FBAR can even lead to criminal incarceration.
Whether the IRS finds you willful will depend on certain evidence, including:
The burden of proving willfulness falls on the IRS. They’ll review as much information as possible to determine whether your actions were intentional.
It’s important to note that the IRS may consider you willful if they determine you were willfully ignorant about the requirement to file an FBAR.
Our expat-expert CPAs and IRS Enrolled Agents have particular expertise in helping US expats get caught up on delinquent taxes using the various programs and procedures available through the IRS. Get started with your Expat Tax Return, file late FBAR forms, and become compliant on your US expat tax obligation!