외국에 있는 금융자산에 대하여 미국의 시민권자나 영주권자가 해외에 금융 자산을 가지고 있는 경우 미국 국세청에 두가지의 다른 보고서를 제출하여야 한다.   해외 금융자산을 보고하는 Form 8938 과 해외은행 구좌를 보고하는 Form TDF 90-22.1 이다.

 

Foreign Account Tax Compliance Act (FATCA)는 2010 년 3월 18일 발효 되었으며 이 규정에 의하면

1)        IRS 는 외국의 금융기관과 협약하여 해외 금융기관이 미국 시민권자나 영주권자의 구좌에 대한 예금주 이름, 주소, 잔고 및 거래내력을 IRS에 알려주게 만든다.

2)        IRS Code 6038D 로 제정되었으며 미국의 시민권자나 영주권자는 2010년 3월 18일 이후 해외구좌에 있는 돈,이나 주식등을 포함한 금융자산을 합산하여 $50,000 이 넘는 경우 Form 8938 을 이용하여 개인세금 보고시 같이 보고 하여야 한다.

 

Report of Foreign Bank and Financial Account (FBAR) 의 규정에 의하면

미국의 시민권자 나 영주권자 (법인 등 회사 포함) 는 해외구좌에 합산한 금액이 $10,000 을 넘을 경우Form TDF 90-22.1 을 이용하여 다음해 6월 30일 까지 보고하여야 한다.  FBAR 규정은 3/28/2011 을기준으로 발효되어 2010 년 부터 적용 되었다.

 

자세한 내용은 아래의 도표와 IRS 규정을 참조하시기 바랍니다.

Comparison of Form 8938 and FBAR Requirements

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 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?	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 48232-0621For express mail to:IRS Enterprise Computing Center ATTN: CTR Operations Mailroom, 4th Floor 985 Michigan Avenue Detroit, MI 48226Certain 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

Report of Foreign Bank and Financial Accounts (FBAR)

If you have a financial interest in or signature authority over a foreign financial account, including a bank account, brokerage account, mutual fund, trust, or other type of foreign financial account, exceeding certain thresholds, the Bank Secrecy Act may require you to report the account yearly to the Internal Revenue Service by filing a Report of Foreign Bank and Financial Accounts (FBAR). See the ‘Who Must File an FBAR’ section below for additional criteria.

Current FBAR Guidance

FBAR final regulations

On February 24, 2011, the Treasury Department published final FBAR regulations. These regulations became effective March 28, 2011, and apply to FBARs required to be filed with respect to foreign financial accounts maintained at any time during calendar year 2010, and for FBARs required to be filed with respect to all subsequent calendar years. The FBAR form and instructions were revised to reflect the amendments made by the final regulations.

Filing deferral for certain individuals with signature authority only, effective through June 30, 2014

On May 31, 2011, the Financial Crimes Enforcement Network (FinCEN) issued FinCEN Notice 2011-1 (revised June 6, 2011), to provide an extension of time for certain individuals with signature authority over, but no financial interest in, foreign financial accounts of their employer or a closely related entity. The filing deadline to report signature authority over these accounts was extended to June 30, 2012, for the following individuals:

• An employee or officer of an entity under 31 CFR § 1010.350(f)(2)(i)-(v) who has signature or other authority over and no financial interest in a foreign financial account of a controlled person of the entity; or
• An employee or officer of a controlled person of an entity under 31 CFR § 1010.350(f)(2)(i)-(v) who has signature or other authority over and no financial interest in a foreign financial account of the entity, the controlled person, or another controlled person of the entity.

For purposes of FinCEN Notice 2011-1, a controlled person is a United States or foreign entity more than 50 percent owned (directly or indirectly) by an entity under 31 CFR § 1010.350(f)(2)(i)-(v).

On June 17, 2011, FinCEN issued Notice 2011-2 to provide an extension of time to file for certain officers or employees of investment advisors registered with the Securities and Exchange Commission who have signature authority over, but no financial interest in, foreign financial accounts of their employer. The filing deadline for employees and officers to report signature authority over these accounts was similarly extended to June 30, 2012.

Due to additional questions and concerns regarding the signature authority filing exceptions within Notice 2011-1 and Notice 2011-2, FinCEN twice extended the revised filing deadlines imposed by those two notices. On February 14, 2012, FinCEN issued FinCEN Notice 2012-1, extending the deadline to file to June 30, 2013, for those persons identified in Notice 2011-1 and Notice 2011-2. More recently, on December 26, 2012, FinCEN issued Notice 2012-2, further extending the due date for filing to June 30, 2014.

Who Must File an FBAR

United States persons are required to file an FBAR if:

1. The United States person had a financial interest in or signature authority over at least one financial account located outside of the United States; and
2. The aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year to be reported.

United States person means U.S. citizens; U.S. residents; entities, including but not limited to, corporations, partnerships, or limited liability companies, created or organized in the United States or under the laws of the United States; and trusts or estates formed under the laws of the United States.

Exceptions to the Reporting Requirement

Exceptions to the FBAR reporting requirements can be found in the FBAR instructions. There are filing exceptions for the following United States persons or foreign financial accounts:

1. Certain foreign financial accounts jointly owned by spouses;
2. United States persons included in a consolidated FBAR;
3. Correspondent/nostro accounts;
4. Foreign financial accounts owned by a governmental entity;
5. Foreign financial accounts owned by an international financial institution;
6. IRA owners and beneficiaries;
7. Participants in and beneficiaries of tax-qualified retirement plans;
8. Certain individuals with signature authority over but no financial interest in a foreign financial account;
9. Trust beneficiaries (but only if a U.S. person reports the account on an FBAR filed on behalf of the trust); and
10. Foreign financial accounts maintained on a United States military banking facility.

Review the FBAR instructions for more information on the reporting requirement and on the exceptions to the reporting requirement.

Reporting and Filing Information

A person who holds a foreign financial account may have a reporting obligation even though the account produces no taxable income. The reporting obligation is met by answering questions on a tax return about foreign accounts (for example, the questions about foreign accounts on Form 1040 Schedule B) and by filing an FBAR.

The FBAR is a calendar year report, which must be filed with the Department of Treasury on or before June 30 of the year following the calendar year reported. Generally, extensions of time to file an FBAR are not granted. The FBAR is not filed with a federal tax return. Any filing extensions of time granted by the IRS to file a tax return does not extend the time to file an FBAR.

A person required to file an FBAR who fails to properly file a complete and correct FBAR may be subject to a civil penalty not to exceed $10,000 per violation for violations that are not due to reasonable cause. For additional guidance when circumstances such as natural disasters prevent the timely filing of an FBAR, see FinCEN guidance, FIN-2013-G002 (June 24, 2013).

Effective July 1, 2013 – Electronic filing of FBARs is mandatory

E-filing is a quick and secure way for individuals to file FBARs. Filers will receive an acknowledgement of each submission. For more information about electronic filing, read the FinCEN news release . Help with electronic filing technical questions is available at BSAEfilinghelp@fincen.gov or through the BSA E-Filing Help Desk at 866-346-9478.

There are now procedures to allow the filing of an FBAR by a third party (such as a paid preparer or a spouse) on behalf of the person who has the obligation to file an FBAR. For information pertaining to authorizations for third parties to electronically file and sign FBARs on behalf of an obligated filer, see FinCEN FAQ, Understanding What BSA E-Filing is and What It Offers (June 2013).

U.S. Taxpayers Holding Foreign Financial Assets May Also Need to File Form 8938

Taxpayers with specified foreign financial assets that exceed certain thresholds must report those assets to the IRS on Form 8938, Statement of Specified Foreign Financial Assets, which is filed with an income tax return. The new Form 8938 filing requirement is in addition to the FBAR filing requirement. A chart providing a comparison of Form 8938 and FBAR requirements may be accessed on the IRS Foreign Account Tax Compliance Act Web page.

Offshore Voluntary Disclosure Program

On Jan 9, 2012, the IRS reopened the Offshore Voluntary Disclosure Program  following continued interest from taxpayers and tax practitioners after the closure of the 2011 and 2009 programs. This program offers people with unreported taxable income from offshore financial accounts or other foreign assets another opportunity to resolve their tax and information reporting obligations, including the FBAR. Although the program does not have a closing date, the IRS may end the program at a later time.

FBAR Assistance

Help in completing the FBAR is available Monday through Friday, 8 a.m. to 4:30 p.m. Eastern Time, at 866-270-0733 (toll-free inside the U.S.) or 313-234-6146 (not toll-free, for callers outside the U.S.). Questions regarding the FBAR can be sent to FBARquestions@irs.gov. Filers residing abroad may also contact U.S. embassies and consulates for assistance.

Help with electronic filing technical questions is available at BSAEFilingHelp@fincen.gov or through the BSA E-Filing Help Desk at 866-346-9478

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FATCA has three main provisions:

1. It requires foreign financial institutions, such as banks, to enter into an agreement with the IRS to identify their U.S. account holders and to disclose the account holders’ names, TINs, addresses, and the accounts’ balances, receipts, and withdrawals.^[12] U.S. payors making payments to non-compliant foreign financial institutions are required to withhold 30% of the gross payments.^[13][14][15] Foreign financial institutions which are themselves the beneficial owners of such payments are not permitted a credit or refund on withheld taxes absent a treaty override.^[16]
2. U.S. persons owning these foreign accounts or other specified financial assets must report them on a new Form 8938 which is filed with the person’s U.S. tax returns if they are generally worth more than US$50,000;^[17] a higher reporting threshold applies to overseas residents and others.^[18][19] Account holders would be subject to a 40% penalty on understatements of income in an undisclosed foreign financial asset.^[14][20] Understatements of greater than 25% of gross income are subject to an extended statute of limitations period of 6 years.^[21] It also requires taxpayers to report financial assets that are not held in a custodial account, i.e. physical stock or bond certificates.^[22]
3. It closes a tax loophole that foreign investors had used to avoid paying taxes on U.S. dividends by converting them into “dividend equivalents” through the use of swap contracts.^[23][24]

These reporting requirements are in addition to reporting of foreign financial accounts to the U.S. Treasury;^[25] this most notably includes Form TD F 90-22.1 “Report of Foreign Bank and Financial Accounts” (FBAR) for foreign financial accounts exceeding US$10,000 required under Bank Secrecy Act regulations issued by the Financial Crimes Enforcement Network (FinCEN).^[26]