Archive for the ‘FinCen 114’ Tag
Back to Basics Part XXXIV – Form 8938 – Statement of Specified Foreign Financial Assets
Filed under: Back to Basics, Foreign Reporting | Tags: FBAR, FinCen 114, foreign income, Form 8938, Statement of Specified Foreign Financial Assets, TD F 90-22.1
Leave a comment Originally published in the Cedar Street Times
March 4, 2016
For those of you living in the US (not just US citizens) with foreign bank accounts, foreign securities accounts, ownership interests in foreign corporations, partnerships, or other foreign potentially income generating assets, you may have a reporting requirement on Form 8938 – Statement of Specified Foreign Financial Assets. Failure to report on this form carries with it significant penalties, so you want to be sure you are in compliance if you have assets of this type.
You may have heard about the Report of Foreign Bank and Financial Accounts (FBAR) which is currently filed on a Form FinCen 114 with the US Treasury Department (a few years ago the form was called a TD F-90-22.1) each year. That form received a lot of press a few years ago as some of the large banks overseas cooperated with the US government to release the names of account holders living in the US, and is also tied to some of the amnesty programs you may have read about. This often conjures up images of mutli-millionaires hiding money overseas to avoid paying US taxes. Although this may be a component of it, I can assure you that it touches “normal” people as well that just happened to have foreign accounts, perhaps from living in a foreign country years ago, and still have the account, or maybe just living in the US for a few years and on a US work visa.
If you are reading this article, and thinking, “I have never heard of this before,” you likely have a relatively easy solution for the FBAR that will not result in huge monetary fines. This often consists of filing amended tax returns for the past three open tax years to report any income generated on these accounts, and filing FBARs for the past six years. But you must do this before the IRS discovers it – so do not bury your head in the sand.
Whereas the FBAR can attribute its roots in the Bank Secrecy Act passed by Congress in 1970 and is filed separately from your tax returns with the US Treasury Department, the Form 8938 has only been around since 2011, and is filed as a form with your tax returns. The Form 8938 has different reporting requirements as well. Whereas the FBAR is focused on foreign bank and securities accounts whose aggregate value of all accounts exceeds $10,000 at any point during the year, the Form 8938 is broader and includes more foreign income generating assets, and is only required if the aggregate value at year end is over $50,000 or if the maximum value at any point during the year is over $75,000 for single and married filing separate filers or $100,000 at year end/$150,000 maximum value if married filing jointly.
Since the US taxes people residing in the US on worldwide income, (and so does California), the IRS wanted a way to ensure that the income from foreign accounts was being properly included on the US tax returns. The FBAR does not do this, so the 8938 was created.
Parts I and II of the Form 8938 are a summary of the various types of specified foreign financial assets that you are reporting. Part III is a cross-reference to the forms and line numbers in the tax return where any income generated by these assets is included. Part IV is a cross-reference to foreign assets whose detail is not reported on the 8938 itself, but on other form specifically designed for those types of assets. Parts V and VI are the specific details of each account listed in parts I and II, and include things like account numbers, addresses, amounts, foreign currency conversions, etc.
You can easily download the instructions to the Form 8938 online if you would like to learn more about the reporting requirements. Even if you do not have a Form 8938 or FBAR filing requirement, you are still required to report on your US tax returns any foreign income earned by the accounts. With many countries there are also tax treaties in place to prevent double taxation.
Please keep in mind, there are complex issues involved with these reportings, and depending on the assets, you may require the assistance of an accountant or attorney.
If you have questions about other schedules or forms in your tax returns, prior articles in our Back to Basics series on personal tax returns are republished on my website at www.tlongcpa.com/blog .
Travis H. Long, CPA, Inc. is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. Travis can be reached at 831-333-1041. This article is for educational purposes. Although believed to be accurate in most situations, it does not constitute professional advice or establish a client relationship.
Back To Basics Part VI – Schedule B
Filed under: Back to Basics | Tags: 1099-INT, address, amortizable bond premiums, dividends, FinCen 114, foreign assets, Form 3520, Form 8938, interest, muni bonds, municipal bonds, nominee distributions, ordinary dividends, original issue discount, private activity bond interest, qualified dividends, Schedule B, seller-financed mortgage, Social Security Number, tax-exempt, U.S. Treasury Bonds, W-9
Leave a comment Originally published in the Cedar Street Times
December 26, 2014
In this issue, we are discussing Schedule B – Interest and Ordinary Dividends. Prior articles are republished on my website at www.tlongcpa.com/blog if you would like to catch up on our Back to Basics series on personal tax returns.
Interest you earn from the use of your money by others is reported in detail in Part I of Schedule B and then summarized on Line 8a of Form 1040. Interest is taxed as ordinary income depending on your tax bracket. The most common form is interest earned from your banks or investment companies. You will generally receive a Form 1099-INT telling you the amount you paid if the amount is over $10. If it is under $10, there is no requirement for the payor to go through the hassle to report it to you and the IRS; technically that does not alleviate your responsibility to report it on your tax returns, however. This holds true for all IRS reportings. Some people think if no tax document is received, they are somehow relieved from the responsibility to report. This is an incorrect notion.
Other forms of interest to report on Schedule B could be interest earned from personal loans made to friends or family, or loans made to a business. In practice, you often will not receive a 1099-INT from individuals you loan money to, but they actually have the same requirements as a bank to file a 1099-INT for interest they pay to you, and they could be penalized for not doing so.
Another form of interest you need to report on Schedule B is interest earned from a seller-financed mortgage. If you sold your home and carried back a note on the house from the buyer, the interest they pay you is reportable interest on Schedule B. You are required to track the interest and report it properly. You and the buyer are both required to provide your names, Social Security numbers, and addresses to each other for proper tax reporting and matching. You list the buyer’s information in Part I of Schedule B next to the amount they paid you. A buyer will do the same for reporting the mortgage interest on Schedule A. A Form W-9 is the best document to request and provide Social Security Numbers. Buyers and sellers could each be penalized if they fail to provide their Social Security numbers for this purpose or if they simply get it verbally, and it is incorrect. A W-9 signed by the other party is a protection to you.
Be careful to not include any tax-exempt interest such as from U.S. Treasury Bonds or tax-free municipal bonds on Schedule B. These would be reported on Line 8b of Form 1040 and are generally not taxable unless there are other adjustments such as those made for Alternative Minimum Tax on Form 6251. Another source of interest to avoid reporting on your Schedule B is interest earned from investments in your retirement plan (I have see people make this mistake!).
There are other forms of interest or adjustments such as original issue discounts, private activity bond interest, amortizable bond premiums, and nominee distributions which are beyond the scope of this article.
Dividends are reported in detail in Part II of Schedule B and summarized on Line 9a of Form 1040. Dividends are essentially a return of part of the profits of the business to the owners. When you own shares of stock in a company, for instance, they may pay out a certain amount per share if the company is doing well. You can reinvest the dividends and buy more shares or take the cash. Either way, the dividends get reported on Schedule B.
Dividends are taxed at your ordinary income tax bracket rate unless they qualify for special capital gains rate treatment. Then they are called qualified dividends. To qualify for special treatment the dividends must be from U.S. corporations, corporations set up in U.S. Possessions, or in foreign countries with certain tax treaty benefits, or if readily tradable on U.S. stock exchanges. If you have held the stock for less than a year, there are also some specific holding period requirements that could still allow the stock to qualify.
The portion of ordinary dividends that are considered qualified are reported on Line 9b of Form 1040, and don’t actually show up on the Schedule B. This is a large advantage as people in the 10 percent or 15 percent income tax bracket pay no tax on capital gains and qualified dividends! People in the top 39.6 percent bracket pay a 20 percent rate on qualified dividends and everyone in between pays 15 percent.
Part III of Schedule B consists of questions about any foreign accounts or trusts you own or have signature authority over. These questions are EXTREMELY important to answer correctly. If you have a foreign account you will also need to file FinCen Form 114 with the Treasury Department. There are potentially massive penalties for failure to properly report on FinCen Form 114, even if unintentional, and possible jail time if you willfully do not report. You may also need to file a Form 8938, a 3520 or other forms related to foreign assets. If you have foreign assets, you should seek professional support that has experience in this area. Getting caught is much worse than coming forward.
In two weeks we will continue our Back to Basics series with Schedule C – Profit or Loss from Business
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
New, Friendlier Option for Foreign Bank Account Disclosure
Filed under: Foreign Reporting | Tags: $10000, $100000, affidavit, FBAR, FinCen 114, Foreign Bank Account Reporting, Offshore Voluntary Disclosure Program, OVDP, privilege, resident, Streamlined Domestic Offshore Procedures, Streamlined Foreign Offshore Procedures, tax returns, U.S. Treasury Department
Leave a comment Originally published in the Cedar Street Times
August 8, 2014
In July, a few new and more attractive options became available for taxpayers that have accounts in foreign countries that they have not reported. Taxpayers with over $10,000 in aggregate in bank or financial securities accounts (or even just signature authority on someone else’s account) established outside the United States have a requirement to report these accounts to the United States Treasury Department by electronically filing Financial Bank Account Reporting (FBAR) Form FinCen 114 by June 30th each year. In addition, there is a requirement to report any related income on your tax returns and possibly file another reporting form (Form 8938) with your tax returns as well.
These requirements do not just apply to rich people that establish accounts overseas to “hide” money and not pay taxes. If you are simply residing in the U.S. as defined by U.S. tax law and file tax returns as a resident, these requirements apply to you. Many foreigners residing in the U.S., or people with roots in foreign countries from years ago that still maintain bank accounts in another country do not realize this applies to them. It also applies to U.S. taxpayers residing outside the United States – such as U.S. citizens or green card holders.
The mission, as stated by the Financial Crimes Enforcement Network in the Treasury Department is, “to safeguard the financial system from illicit use and combat money laundering and promote national security through the collection, analysis, and dissemination of financial intelligence and strategic use of financial authorities.”
The stated penalties for failure to comply are massive by most people’s standards. If you are caught before coming forward on you own, and it becomes apparent you were aware of the requirement but specifically chose not to report, or even if you were not aware, but it is apparent you purposely did not take reasonable steps given your circumstances to find out (willful blindness), the penalty is the greater of $100,000 or 50 percent of the account balance and possible criminal prosecution. Even a truly non-willful situation (i.e. I had no idea I had to file) carries a $10,000 PER violation penalty if caught.
The IRS has had several voluntary disclosure programs over the past few years to help people come clean. The most recent program (2012 Offshore Voluntary Disclosure Program – OVDP), carried with it a hefty penalty – conceding 27.5 percent of the account balance on top of filing eight years of amended tax returns and paying past due tax, interest, and penalties on any income generated for those years. Besides having minimum tax liabilities that would keep many people out of the program, it just seemed like the punishment far exceeded the crime for those who were non-willful violators.
The all new Streamlined Domestic Offshore Procedures and Streamlined Foreign Offshore Procedures provide a much more palatable avenue for those who have non-willful violations. The new domestic program requires three years of amended tax returns, six years of FBARs, signed affidavits attesting to the non-willful nature, and only a five percent penalty. The five percent is calculated on the highest aggregate year-end balance of your accounts during the past six years. For U.S. taxpayers living abroad the foreign program is similar but does not even have a five percent penalty! For situations that could be deemed willful, the 2012 OVDP program is still available as well.
I have been involved with both the 2012 Offshore Voluntary Disclosure Program and now the new Streamlined Domestic Offshore Procedures program with clients, and it definitely feels like this new program is a good option for people with non-willful violations who want a greater sense of closure. For people who still cannot stomach the idea of giving up five percent, there are other possible options to discuss which are better than doing nothing and continuing to be non-compliant. If there is any chance that a willful case could be made, I would also advise you to keep conversations with your accountant hypothetical and broad until you are connected with the right attorney that specializes in this area. Communications with attorneys are privileged, whereas communications with accountants, although confidential, are not generally privileged until the attorney hires the accountant directly. In two weeks I will discuss this concept in more detail.
Prior articles are republished on my website at www.tlongcpa.com/blog.
Travis H. Long, CPA is located at 706-B Forest Avenue, PG, 93950 and focuses on trust, estate, individual, and business taxation. He can be reached at 831-333-1041.
