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New Form 8938 and FBAR Requirements

posted Jul 24, 2012, 10:45 AM by Jeongho Kim   [ updated Jan 12, 2015, 7:18 AM ]
그동안 말도 많고 탈도 많고 많은 분들이 고민하고 속앓이를하게 했던, 해외 금융자산에 대한 보고의무가 한층 강화되었습니다.
1만불 이상 보고 의무가 있었던, FBAR라고 불리는 TD F 90-22.1 Form에 이어, IRS가 추가로 그 보고 의무 범위를 확대하여 Tax Return과 함께 보고해야 하는 Form 8938을 발표하고 2011년도 세금보고부터 시행하고 있습니다.
비슷하지만 다른 두 보고의무에 대해서 많은 CPA 및 세금 전문가들 조차도 정확한 이해가 없는 경우가 많이 있습니다.
아래 테이블은 IRS에서 발표한 자료로, 두 가지 의무규정을 자세히 비교하여 보고의무와 해당 자산에 대해서 설명하고 있습니다.
 
예를들어, 많은 한국분들이 질문하시고, 많이들 확실하게 대답하지 못하는 부분을 아래 테이블에서 찾아보면,
부동산, 금/은/보석, 그림, 현찰등은 보고 대상이 아닙니다.

The new Form 8938 filing requirement does not replace or otherwise affect a taxpayer’s obligation to file Form TD F 90-22.1 (Report of Foreign Bank and Financial Accounts). Individuals must file each form for which they meet the relevant reporting threshold.

  

Form 8938, Statement of Specified Foreign Financial Assets

Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR)

Who Must File?

Specified individuals, which include U.S citizens, resident aliens, and certain non-resident aliens that have an interest in specified foreign financial assets and meet the reporting threshold

U.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?

No

Yes, resident aliens of U.S territories and U.S. territory entities are subject to FBAR reporting

Reporting Threshold (Total Value of Assets)

$50,000 on the last day of the tax year or $75,000 at any time during the tax year (higher threshold amounts apply to married individuals filing jointly and individuals living abroad)

$10,000 at any time during the calendar year

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 return

Financial 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 assets

Maximum 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 reported

Convert 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?

By due date, including extension, if any, for income tax return

Received by June 30 (no extensions of time granted)

Where to File?

File with income tax return pursuant to instructions for filing the return

Mail to:

Department of the Treasury
Post Office Box 32621
Detroit, MI 48232-0621

For express mail to:

IRS Enterprise Computing Center
ATTN: CTR Operations
Mailroom, 4th Floor
985 Michigan Avenue
Detroit, MI 48226

Certain individuals may file electronically at BSA E-Filing System

Penalties

Up 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 apply

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

Financial (deposit and custodial) accounts held at foreign financial institutions

Yes

Yes

Financial account held at a foreign branch of a U.S. financial institution

No

Yes

Financial account held at a U.S. branch of a foreign financial institution

No

No

Foreign financial account for which you have signature authority

No, unless you otherwise have an interest in the account as described above

Yes, subject to exceptions

Foreign stock or securities held in a financial account at a foreign financial institution

The account itself is subject to reporting, but the contents of the account do not have to be separately reported

The 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 account

Yes

No

Foreign partnership interests

Yes

No

Indirect interests in foreign financial assets through an entity

No

Yes, if sufficient ownership or beneficial interest (i.e., a greater than 50 percent interest) in the entity. See instructions for further detail.

Foreign mutual funds

Yes

Yes

Domestic mutual fund investing in foreign stocks and securities

No

No

Foreign accounts and foreign non-account investment assets held by foreign or domestic grantor trust for which you are the grantor

Yes, as to both foreign accounts and foreign non-account investment assets

Yes, as to foreign accounts

Foreign-issued life insurance or annuity contract with a cash-value

Yes

Yes

Foreign hedge funds and foreign private equity funds

Yes

No

Foreign real estate held directly

No

No

Foreign real estate held through a foreign entity

No, but the foreign entity itself is a specified foreign financial asset and its maximum value includes the value of the real estate

No

Foreign currency held directly

No

No

Precious Metals held directly

No

No

Personal property, held directly, such as art, antiques, jewelry, cars and other collectibles

No

No

‘Social Security’- type program benefits provided by a foreign government

No

No

 

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