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Reporting and disclosing foreign financial accounts.

EXECUTIVE SUMMARY

* U.S. taxpayers having a financial interest in, or signature or other authority over, any financial account in a foreign country exceeding $10,000 should file an FBAR.

* The AJCA increased the potential civil penalty for willful failure to file a report or disclose foreign accounts, and added a civil penalty for nonwillful failure to file or disclose.

* Many taxpayers are not aware of the FBAR filing and disclosure requirements, believe it does not apply to them or have questions about whether it applies in their case.

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Taxpayers with foreign financial accounts worth over $10,000 are required to file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR). This article describes FBAR filing and disclosure requirements and provides answers to common taxpayer questions.

U.S. persons are required to disclose information about foreign financial accounts over which they have signature authority or a financial interest. The penalties for failure to disclose such accounts are severe, but the relevant instructions are brief and ambiguous. This article summarizes key issues and answers the most frequently asked questions (1) about when to disclose foreign accounts.

FBAR

Under Treasury Regulations 31 CFR 103.24 and 31 USC Section 5314, U.S. persons, other than foreign subsidiaries, are required to file information reports on their foreign financial accounts. (2) To implement this law, Treasury developed Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR), which requires certain U.S. taxpayers to provide information about each foreign financial account in which they have signature authority or a "financial interest" In addition, disclosure questions are included in the tax returns of individuals, corporations and partnerships, to alert the government as to whether taxpayers should file this report.

Many taxpayers either are not aware of the requirement to file the FBAR or believe (1) they do not have an interest in, or authority over, (2) a financial account, (3) that is outside the U.S. Many tax preparers may not have been diligent in asking them about their involvement with foreign financial accounts. In addition, the FBAR instructions are not comprehensive, and the interpretation of "an interest in a foreign bank or securities account" is very broad. It includes, in some instances, a direct or indirect interest, as well as a beneficial interest, in a foreign bank or securities account.

While much of the discussion about reporting a financial interest in or signature authority over foreign financial accounts relates to the disclosure questions on Form 1040, Schedule B, Part III, similar questions can be found in most other tax returns. (3)

Filing Requirements

An FBAR is filed by each U.S. citizen, permanent resident or entity that has a financial interest in, or signature or other authority over, any financial account, including a bank, securities or other financial account in a foreign country, exceeding $10,000 in the aggregate at any time during a calendar year. An exception is available for accounts maintained in foreign branches, offices or agencies of banks or other financial institutions located in the U.S., Guam, Puerto Rico or the U.S. Virgin Islands.

For this purpose, a U.S. citizen is a (1) citizen or resident of the U.S., (2) domestic partnership, (3) domestic corporation or (4) domestic estate or trust. A signature authority includes the ability to control the disposition of money or property in the foreign account by giving oral or written instructions to the signatory or account titleholder. A financial interest includes interests in foreign accounts titled in the names of nominees, agents and trusts (if the beneficial interest in the trust exceeds 50% of corpus or income). Shareholders, officers or directors of foreign corporations, partners in foreign partnerships, grantors of foreign trusts or beneficiaries of foreign estates or trusts, may also be required to file an FBAR. In general, the information filed may be used by any Federal agency, such as the IRS, Customs Department, Federal Bureau of Investigation and Drug Enforcement Administration.

An FBAR must include taxpayer identification information (name, address, taxpayer identification number, etc.) and the number of foreign financial accounts. For each financial account, the form requests a description of the type of account, the range of value in it, the account number, the name of the institution, the country where the account is located and the name of the organization (e.g., corporation, partnership, trust or estate). The FBAR's instructions define a financial account as:

[A]ny bank, securities, securities derivatives or other financial instruments accounts. Such accounts generally encompass any accounts in which the assets are held in a commingled fund, and the account owner holds an equity interest in the fund. The term also means any savings, demand, checking, deposit, time deposit, or any other account maintained with a financial institution or other person engaged in the business of a financial institution.

The FBAR is due on or before June 30 of the year following the taxpayer's tax year, even if the taxpayer has an extension to file. It should be sent to: U.S. Department of the Treasury, P.O. Box 32621, Detroit, MI 48232-0621. It is not to be included with an income tax return.

Penalties

Prior to the American Jobs Creation Act of 2004 (AJCA), 31 USC Sections 5322 and 5321(a)(5) provided criminal and civil penalties for willful violation of the reporting requirements. Under Section 5322(a), a person who willfully failed to file was to be "... fined not more than $250,000, or imprisoned for not more than five years, or both." According to Section 5322(b), a person who willfully failed to file "... while violating another law of the United States or as part of a pattern of any illegal activity involving more than $100,000 in a 12-month period ... [was to] be fined not more than $500,000, imprisoned for not more than ten years, or both" Because of the extreme severity of the penalties, they were not imposed.

Under Section 5321(a)(5), the prescribed civil penalty was the transaction amount or account value up to $100,000 (minimum $25,000). The government had to establish that the failure to file the report was willful. However, Section 5321(a)(5) was amended by AJCA Section 821 to impose penalties of up to $10,000 for a nonwillful failure to file the report or disclose foreign accounts.

Under Section 5321(a)(5)(B)(ii), the penalty may be waived if there is reasonable cause. The AJCA also amended Section 5321(a)(5)(C) to increase the maximum potential civil penalty for a willful failure to disclose an interest in or authority over a foreign financial account, to the greater of (1) $100,000 or (2) 50% of the transaction amount (or balance in the account) at the time of the violation.

FBAR Questions and Answers

The following questions and answers relate only to the FBAR, but other tax returns, forms or schedules may need to be filed by taxpayers that have engaged in international investment or business transactions. The replies are the author's interpretations. (4)

The questions were submitted to The Jacobs Report (5) by individuals and owners of small foreign corporations (or other entities). (Officers and shareholders of large corporations with foreign branches or subsidiaries are either exempt from reporting or not concerned about disclosing their foreign accounts.)

Q: Can tangible assets in the U.S. be transferred offshore without reporting?

A: A tangible asset is not a "financial account." Such assets may not be required to be reported. However, if they are gifted to another person, the donor may be required to file a gift tax return.

Q: Can one buy certificates of precious metals and transfer the certificates offshore without reporting?

A: A certificate (of ownership) of precious metals is personal property, not the underlying hard metal. The transfer of certificates offshore appears to be the same as the transfer of any other intangible asset (e.g., a share of stock, partnership interest, membership interest in a limited liability company, etc.). Thus, reporting is not required. If certificates of precious metals are transferred to a foreign bank to be held in a safe deposit box there, the box appears to be classified as a "foreign account" and requires reporting, because it is in the bank's custody, rather than the certificate owner's.

Q: Is an FBAR the correct form to file for an individual offshore bank account? Must it be filed on opening the bank account, or can it simply be filed along with the annual tax return documents, by April 15?

A: Yes, the FBAR is the correct form to file when an individual has signature authority over, or a financial interest in, an offshore bank account. However, it is not filed with the person's income tax return, but, rather, with Treasury (not the IRS) at its Michigan office. The address is in the form instructions (as was previously discussed). The due date is June 30 (not April 15), but the form can be filed earlier.

Q: Is an e-gold account a foreign account? It is used as a vehicle to transfer money.

A: "E-gold" transactions are expressed as ounces of gold, silver or other bullion held for the benefit of the account holder. They are convertible into dollars or other currencies at spot prices. They perform the same function as a money market fund or checking account, and interest is paid on the account balance. As to whether e-gold is deemed to be a foreign account:

Gold & Silver Reserve, Inc. (G&SR.), a Delaware Corporation, developed and deployed the e-gold payment system in 1996 and, through 1999 administered both payment settlement and currency exchange.

In January 2000, the core e-gold roles of Issuance and Settlement were devolved to e-gold Ltd., a Nevis W.I. company created specifically to serve as the general contractor responsible for performance of the e-gold Account User Agreement. (6)

It thus appears that e-gold is now a foreign account. The conservative course of action would be to disclose any account balances whenever an e-gold account, plus any other foreign accounts, exceeds $10,000 at any time during the calendar year.

Q: Is an FBAR required for custodial IRA/simplified employee pension (SEP) accounts when the custodian is in the U.S., but the self-directed funds are invested in an offshore bank? If so, who should file it--the custodian or the IRA/SEP owner?

A: If a U.S. person has a self-directed SEP/IRA, and he or she tells the account custodian to deposit funds in an offshore bank account, the account owner must file the FBAR. If the custodian has signature authority over the offshore account, the custodian must file the FBAR as well.

Q: If a charitable organization has a foreign financial account, are the organization's officers required to file the report?

A: The income tax form for charities (Form 990-T, Exempt Organization Business Income Tax Return) asks for disclosure of foreign financial accounts. The FBAR instructions do not state that charities are exempt. Those officers of the charitable entity who have signature authority over the foreign accounts should file the FBAR.

Q: Can reporting be avoided for multiple accounts when they are each under $10,0007

A: No. The FBAR instructions state that reporting applies to the aggregate value of all foreign accounts for each person during the calendar year. If the combined value of all accounts in which a taxpayer has an interest or signature authority exceeds $10,000 at any time during the calendar year, reporting is required.

Q: What if the value of the account exceeds $10,000 briefly due to interest income or foreign exchange rate changes? Is reporting required even if sufficient funds were withdrawn to bring the balance below $10,000 before the end of the year?

A: Yes. A taxpayer has to report any accounts with an aggregate balance of more than $10,000 U.S. at any time during the calendar year.

Q: If one's spouse and child each have accounts of less than $10,000, do they have to be reported?

A: Each child is subject to separate reporting if the account belongs to the child. The FBAR instructions are silent regarding a spouse on a joint return. If a spouse has a separate foreign account, it is arguable that the taxpayer could treat it as separate from his or her own accounts, even though the couple files a joint return. One commentator suggests (7) that the accounts of a husband and wife do not have to be combined unless they are jointly owned. A safer course of action would be to file separate returns. However, that could cause the loss of some benefits available on joint returns. The safest course is to file the FBAR when the combined value of separately owned accounts of a taxpayer and spouse exceeds $10,000. The separate accounts of children do not have to be included in computing the aggregate amount of foreign accounts held by the parents. But if the accounts of children (or a spouse) are held jointly, they must be aggregated.

Q: An individual owns stock in a corporation that has a foreign account. Are the corporation's accounts combined with the shareholder's personal accounts?

A: If a shareholder owns 50% or more of a corporation that has a foreign financial account, the corporate account is combined with the shareholder's accounts.

Q: Does a financial account include a certificate of deposit or money market fund, or a bond issued by a foreign corporation or foreign government? Does it include installment notes issued by a foreign entity?

A: The term "financial account" includes money market funds, checking, demand, savings, pooled income funds and time deposit accounts, as well as securities accounts. Not included are actual shares of a foreign company or various kinds of "hard assets" such as real estate or precious metals. As to bonds or notes with a fixed rate of interest and a fixed maturity date, the FBAR instructions are unclear as to what constitutes a financial account beyond that described above. However, if debt obligations are owned directly by a taxpayer, and are not held in custody by a foreign financial institution, it does not appear that they must be reported.

Q: If a foreign account balance is less than $10,000, does the income received have to be reported?

A: Yes. U.S. taxpayers are still required to report all income from all sources, anywhere in the world, regardless of whether an information return is sent to the IRS by the income payer. However, if the aggregate value of foreign financial accounts is less than $10,000 at all times during the calendar year, the taxpayer does not have to respond affirmatively to the question regarding foreign accounts on the income tax return and does not have to file an FBAR.

Q: Does a non-U.S. citizen or permanent resident, who has U.S. income, also have to disclose his or her various non-U.S. bank and investment accounts?

A: Foreign persons who are not permanent residents of the U.S. do not file Form 1040. Foreign persons with U.S.-source income file Form 1040NR, U.S. Nonresident Alien Income Tax Return; there are no questions on that form regarding disclosure of foreign accounts. It is presumed that foreign persons will have foreign accounts. There is also no requirement to file the FBAR.

Q: A foreign trust has a foreign bank account. The grantor does not have signatory authority over that account. Does the grantor have to check "Yes" on Schedule B, Form 1040, and file an FBAR?

A: Yes. The instructions state that taxpayers who have a "financial interest" in any account for which the owner of record is a trust in which the taxpayer has a present beneficial interest of more than 50% of the assets or is entitled to more than 50% of the income must file an FBAR. A foreign trust that has a U.S. grantor and a U.S. beneficiary is deemed to be a "grantor trust" under Sec. 679. The grantor of a foreign trust is deemed to be the owner of the trust assets and must include the trust income in his or her return. Thus, the trust grantor must file an FBAR.

Q: A foreign trust is a nongrantor trust because it will not have any U.S. beneficiaries during the grantor's life. It is an irrevocable trust and the grantor is not a contingent beneficiary. As the grantor has no power over the trust's assets, does he or she need to file an FBAR?

A: When the trust settlor has no beneficial interest in the assets or income of a nongrantor foreign trust, it should not have to file an FBAR for any foreign accounts held by or for the foreign trust. If the beneficiaries of a foreign trust formed by a U.S. person are foreign persons, the trust should not be subject to the grantor trust rules of Sec. 679 and, thus, would not be subject to tax on the trust income. However, the instructions to Form 3520, Annual Return to Report Transactions with Foreign Trusts and Receipt of Certain Foreign Gifts, define a U.S. beneficiary as "... any U.S. person that could possibly benefit ... from the trust ... at any time, whether or not the person is named in the trust instrument as a beneficiary and whether or not the person can receive a distribution from the trust in the current year." Some tax advisers take the position that the language of Sec. 679 and the regulations are not so expansive and, thus, if no distributions are permitted to a U.S. person for at least a year after the death of the U.S. settlor, the trust is a nongrantor trust. Because this is a highly technical dispute, taxpayers must rely on the advice of a qualified tax professional as to whether they have funded a nongrantor trust and, thus, do not have to file the FBAR.

Q: A shareholder owns 100% of the stock of a foreign corporation, but its only bank account is in the U.S. Is FBAR filing required?

A: No. The FBAR disclosure form is for foreign accounts, not U.S. accounts.

Q: A foreign asset-protection trust owns a foreign corporation that has a foreign bank account. The trust grantor is not an officer of the corporation and has no signature authority over the bank account. As the foreign account is owned by a foreign entity, does the grantor have to report this as an indirect interest or authority?

A: Yes, because the U.S. grantor/settlor of a foreign trust with any U.S. beneficiaries is treated as the owner of the foreign trust's assets. Because the trust owns the foreign corporation's stock, the trust grantor is deemed to be the owner of that stock and must file an FBAR.

Q: A foreign trust has a foreign investment account. The trustee is subject to the oversight of a trust protector who is not a U.S. person. Are either the trustee or protector exempt from having to file the FBAR?

A: The U.S. trustee of a foreign trust should have authority over a foreign account owned by the trust and should file an FBAR. As for a trust protector, if the protector has no personal financial interest in the account and has no authority over the trust assets (other than to veto various distributions by the trustee and/or move the trust situs or replace the trustee with another (other than the protector)), it is arguable that the protector has no authority over the foreign account. Even so, given the potential penalties and lack of any benefit in not reporting the account, the safer course of action would be to file.

Q: Is a foreign trustee who is not a U.S. taxpayer required to file an FBAR?

A: No, but the U.S. grantor of the foreign trust would be required to file.

Q: A U.S. person forms an international business corporation; the stock is issued to a nominee owner who resides in a foreign jurisdiction. The U.S. person has no authority or power to sign checks or withdraw funds from the account. Does the account have to be reported?

A: Yes. The U.S. person is the "beneficial owner" of the account in the corporation's name. The foreign nominee is acting as the U.S. person's agent. The foreign persons acting as nominees will follow the U.S. person's advice as to when to invest the money and make distributions. Thus, the foreign corporation's account needs to be reported on an FBAR by the foreign corporation's beneficial owner.

Q: What if a taxpayer fails to report a foreign account because the promoter claims that it is not necessary?

A: It is the taxpayer's responsibility to file and report the correct information and returns, regardless of a promoter's statements. The taxpayer will be held responsible regardless of the promotor's advice. A failure to report foreign accounts may lead to financial penalties, even if the failure was not willful. If the government can prove that a taxpayer's failure to file the FBAR is intentional (willful), it can pursue criminal penalties.

Those in such a scenario should seek counsel from a criminal tax attorney. Such practitioners spend most of their time handling criminal and civil fraud litigation, rather than planning and structuring. It is possible that working through a criminal tax attorney, a U.S. person desiring to "come clean" can work out an arrangement with the IRS to file the appropriate returns, pay the taxes, penalties and interest and avoid criminal charges.

Q: A couple files Form 1040 jointly. The husband owned a foreign bond in his name alone during 2004, valued at about $7,500. The wife had a foreign bond, valued at $7,500, in her name alone. Are foreign bonds "foreign accounts"?

A: The definition of a financial account does not explicitly state that ownership of a specific security constitutes an "account." Thus, it does not seem that a specific security held directly by a taxpayer represents an "account." However, a security held by a foreign bank or other custodial service would be a financial account. To be safe, an FBAR could be filed.

Conclusion

Various money-laundering laws require U.S. taxpayers to disclose the existence of their foreign financial accounts to Treasury each year. Many taxpayers who have foreign financial accounts are either unaware of this requirement or are reluctant to disclose such accounts. This reluctance may be due to a desire for secrecy from potential creditors (or a spouse), or even paranoia about future government monetary controls. Whatever the motivation, a willful failure to disclose the existence of foreign financial accounts over which the taxpayer has a direct or indirect interest may lead to severe penalties. Following the passage of the AJCA, even a nonwillful failure to report such accounts may be subject to fines of up to $10,000. Tax preparers should begin to include questions about such accounts as part of their annual client questionnaire.

[C] 2004 Vernon K. Jacobs. All fights reserved.

Editor's note: Mr. Jacobs is a member of the AICPA Tax Division's International Tax Technical Resource Panel's (TRP's) Financial Reporting Task Force and chairs the TRP's Form 5471 Task Force.

Author's note: The author appreciates the assistance of various TRP members, the Financial Reporting Task Force and Eileen Sherr, the TRP's Technical Manager. In addition, helpful comments were provided by Bradley G. Korell, Esq., a partner at Osborne & Helman, L.L.P., Austin, TX. Assistance was also received from J. Richard Duke, J.D., LL.M., of Duke Law Firm, P.C., Birmingham, AL, in responding to some questions.

(1) The author publishes a free email newsletter (The Jacobs Report; see http://finance.groups.yahoo.com/ group/jacobsreport/) on international tax law and related foreign asset-protection subjects and has received numerous questions from subscribers about the requirements for filing TD F 90-22.1. This article is an edited compilation of those questions and the author's interpretation of the instructions and applicable law.

(2) See also the Privacy Act of 1974 (P.L. 93-579). This article is condensed from a larger report available to AICPA Tax Division members at www.cpa2biz.com/ResourceCenters/Tax/International/default.htm. Numerous Internet sources are provided in that version, including copies of pertinent parts of the U.S. Code.

(3) See, e.g., Schedule N, Foreign Operations of U.S. Corporations, of Form 1120, U.S. Corporation Income Tax Return; Form 1065, U.S. Return of Partnership Income; Form 1041, U.S. Income Tax Return for Estates and Trusts; and Form 990-T, Exempt Organization Business Income Tax Return.

(4) See note 1, supra. These responses are not intended to imply that the IRS or Treasury concurs. Although assistance was provided by some members of the International Tax TRP and the Form 5471 Task Force, the opinions expressed herein are the author's alone.

(5) See note 1, supra.

(6) See www.e-gold.com/unsecure/aboutus.html.

(7) See Knaupp, "FAQs on Reporting Ownership in Foreign Financial Accounts," at www.knaupplaw.com/tdf90FAQ.htm.

For more information about this article, contact Mr. Jacobs at jacobs@offshorepress.com.

Vernon K. Jacobs, CPA, CLU

Sole Practitioner

Prairie Village, KS
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Author:Jacobs, Vernon K.
Publication:The Tax Adviser
Date:Jun 1, 2005
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