Form 8938 Instructions: A Guide For US Taxpayers

As complex as international tax laws can be, you don’t have to feel overwhelmed by Form 8938 instructions. For US taxpayers with foreign financial interests, Form 8938 is crucial. This is true whether those interests stem from bank accounts, investments, or ownership in foreign entities. 

This form called the Statement of Specified Foreign Financial Assets, has become essential for those who must disclose their holdings to the IRS. 

Understanding when you need to file, what to report, and how to avoid common pitfalls can save you trouble and stress. That’s where we come in.

For years we’ve helped clients through these international reporting mazes. Along the way, I’ve noticed patterns – mistakes people keep making year after year. The key is proactive planning, knowing the rules inside out, and avoiding risky shortcuts like quiet disclosures.

Key Takeaways:

• Crucial for U.S. Taxpayers: Form 8938 is vital for U.S. taxpayers with foreign financial interests to comply with IRS rules.
• Reporting Thresholds: Single filers must report foreign assets over $50,000 at year-end or $75,000 anytime during the year; higher for those abroad or filing jointly.
• Broad Asset Range: Includes foreign stocks, partnerships, bonds, trusts, and financial agreements beyond bank accounts.
• Avoid Common Mistakes: Separate filings like FBAR are also required; don’t neglect smaller accounts.
• Strategic Filing: Filing status and residency impact requirements; non-resident aliens can elect resident status for tax purposes.

Understanding Form 8938 Reporting Requirements

Many people get intimidated when they hear “foreign asset reporting”. I get it; it sounds complex. But you have to remember: this isn’t about hiding assets; it’s about transparency.

For US tax purposes, a “US Person” needs to report their worldwide income, wherever it’s earned. That includes earnings from foreign investments or bank accounts.

Now, this is where the infamous Form 8938 comes into play. Officially named “Statement of Specified Foreign Financial Assets,” it’s filed alongside your yearly federal tax return if you meet certain requirements.

You can find a concise summary of the Form 8938 requirements and instructions directly on the IRS website. It details exactly how to file and what information is needed.

One key point to remember, you only need to worry about Form 8938 if the total value of those assets exceeds a certain limit. Think of it as a threshold: If your foreign holdings stay below this mark, you don’t need to bother with this form.

Who Needs to File Form 8938?

I often encounter misconceptions about who precisely needs to file this form. It’s more common than you might think.

For those living in the US, single filers with foreign assets valued above $50,000 on the last day of the tax year or above $75,000 at any point during the year are required to file. Those thresholds are higher, at $200,000 and $300,000, respectively, for an unmarried taxpayer living outside the US.

For married couples filing jointly and living in the US, the limit jumps to $100,000 at the year’s end or $150,000 during the year. However, if married taxpayers live outside the United States and file a joint income tax return, the reporting threshold is $400,000, or more than $600,000 at any time during the year. 

Interestingly though, if you’re married and file separately while residing in the US, you each go back to the single filer limits ($50,000/$75,000). This distinction surprises many filers. They often assume that separate filers are always treated as single individuals when dealing with foreign assets.

The reality is slightly more complicated. There are nuances depending on your residency and filing status.

You might even discover strategic options based on these rules. That’s why diving deeper into the Form 8938 instructions or consulting an international tax specialist at Dimov Tax is never a bad idea.

When You’re Living Abroad

Filing Form 8938 when living abroad can get confusing. Taxpayers need to determine their residency status correctly. Determining your tax home and abode is important for more than just tax returns, including filing deadlines as well.

Are you considered a “resident” based on the physical presence test, or do you hold bona fide residency in that country? This distinction affects not only filing deadlines but also those all-important reporting thresholds.

You’ll notice those thresholds shift if your tax home is overseas, and you pass either the “Physical Presence Test” or hold “Bona Fide Residence.” In these cases, a married couple filing jointly needs a combined asset value of over $400,000 on December 31st or exceeding $600,000 during the year to worry about Form 8938. This bump can be a welcome relief for couples navigating life abroad.

Specified Foreign Financial Assets: Beyond Bank Accounts

Form 8938 reaches beyond just overseas bank accounts. It casts a wide net capturing a whole array of foreign financial assets:

• Foreign stock holdings not held in an account with a financial institution.
• Interests in foreign partnerships.
• Foreign-issued notes, bonds, or similar debt instruments.
• Interests in foreign trusts and estates.
• Financial agreements with a foreign counterparty such as swaps, options, or derivatives related to investments, currencies, or commodities.

Essentially, any asset tied to a foreign entity or investment may need to be disclosed. The key takeaway? When considering Form 8938, broaden your perspective.

Don’t make the mistake of only thinking about foreign bank accounts. This could leave you in a vulnerable position with unreported assets and penalties looming.

Navigating the Nuances: Filing Status & Form 8938

Tax filing status significantly impacts reporting requirements. It’s especially important when understanding Form 8938 instructions.

If a non-resident alien wants to file “Married Filing Jointly” with their US citizen or resident spouse, they can choose to be treated as a resident alien for tax purposes. This lets them file a joint return.

But while this avoids FBAR reporting requirements for the non-resident spouse, Form 8938 still needs to be filed.

Imagine a situation where most of the foreign assets are owned by the non-resident spouse. In this case, avoiding “Married Filing Jointly” and electing resident alien status can be advantageous.

If there’s not a significant tax benefit to filing jointly, and a desire to keep the lower income-earning spouse’s foreign asset details private, “Married Filing Separately” might be more favorable. Especially when one spouse earns substantially more and doesn’t own foreign assets.

Under “Married Filing Separately”, any jointly owned assets get divided for reporting purposes, though separate assets are reported in full. That lower filing threshold can become a lifesaver, preventing Form 8938 complexities.

Delving Deeper: Common Form 8938 Mistakes and How to Avoid Them

Form 8938 isn’t a standalone requirement. Often, multiple forms are needed. You might think you’re done once Form 8938 is submitted, but several additional filings could be needed, depending on your circumstances.

The Double Filing Trap

Here’s a classic error I see a lot: Someone carefully prepares Form 8938, breathing a sigh of relief. They believe their international reporting obligations are finished, assuming Form 8938 acts like a catch-all document.

But they fail to consider a fundamental IRS rule: Just because you file a Form 8938 doesn’t mean you’re off the hook for other separate filing requirements. Let’s take a common scenario: an overseas bank account exceeding the FBAR reporting threshold of $10,000 during the calendar year.

It doesn’t matter if you dutifully listed that account on Form 8938. You’ll still need to separately file FinCEN Form 114, known as the “FBAR,” or “Report of Foreign Bank and Financial Accounts,” directly with the Financial Crimes Enforcement Network (FinCEN).

It’s easy to forget, especially since Form 8938 focuses on the value exceeding $50,000 or $75,000 at the end of or at any time during the year.

Here’s why it’s vital to remember the FBAR:

• FBAR penalties hit hard. These fines for non-compliance can be significantly steeper than those associated with Form 8938, sometimes exceeding $100,000 per violation.
• Separate reporting, separate deadlines. The FBAR deadline (usually April 15) doesn’t necessarily align with your Form 1040 tax return deadline, which is usually April 15 for US taxpayers living in the United States (and June 15 for US taxpayers living abroad).
• Although both deadlines have extensions, don’t let these varying dates trip you up. Keep these requirements top of mind; don’t let Form 8938 lull you into a false sense of security.
• Additional forms like Form 3520 (for reporting transactions related to foreign trusts and receiving certain foreign gifts) and Form 5471 (for US individuals or entities that control certain foreign corporations) also might be required, alongside Form 8938.
• Remember that while certain financial interests disclosed on these forms are exempt from duplicate reporting on Form 8938, foreign bank accounts don’t fall under this exemption. So, while there is an element of coordination among these international forms, always check each one’s specific guidelines. Don’t assume what’s covered elsewhere automatically excludes a Form 8938 filing requirement.

Navigating these waters successfully is about diligence and taking a comprehensive view. Make sure you aren’t blindsided. Form 8938 instructions give you a starting point but rarely paint the entire international reporting picture.

Don’t Fall Into the Assumption Trap.

Here’s another common mistake that’s surprisingly subtle.  I see taxpayers breathe a sigh of relief. They meet the reporting thresholds for Form 8938 because of large investments, let’s say a stake in a foreign trust, pushing them over the $50,000 or $200,000 mark.

Now, many people then assume they only need to report that larger asset, neglecting to include smaller foreign accounts that fall under the radar individually. This misconception catches a lot of people. Always remember, once you meet Form 8938 requirements because of a large holding, you are obligated to list ALL foreign bank accounts you directly own.

That means even if each account is individually below $10,000 (and not reportable on the FBAR), they still get included on Form 8938. So a person with three tiny $3,000 accounts, triggered into filing because of that big trust, has to include all those accounts.

I can’t stress this enough – the analysis for Form 8938 and the FBAR must be separate and meticulous. Each has its triggers.

Don’t Dismiss ‘Foreign Financial Assets’.

When reading Form 8938 instructions, a term that sometimes trips people up is the word “foreign.” Remember, a financial account at a foreign branch of a US bank – say your Chase account in London – isn’t considered “foreign” for Form 8938 but IS considered “foreign” for FBAR purposes.

I’ve noticed a misconception about US possessions. It can catch people off guard. While an account in a possession (Guam, Puerto Rico, etc) isn’t “foreign” for FBAR purposes, it does need reporting on Form 8938.

So you have this unusual scenario: Accounts within those territories aren’t seen as completely foreign, depending on the filing context.

Be careful not to over-simplify it in your mind. Pay attention to subtle differences like these. It highlights why consulting experts who specialize in foreign asset reporting is a wise move.

Don’t Rely on Other Forms as Exemptions.

Sometimes taxpayers look for shortcuts. It makes sense – who wants to fill out more paperwork than absolutely necessary?

But those shortcuts are where penalties often start cropping up. I can’t emphasize enough how specific Form 8938 reporting instructions can be.

A common misstep I witness is assuming the reporting on certain other forms, specifically Forms 3520 and 5471, is enough to avoid filing Form 8938 altogether.

Yes, certain assets – if included on properly and timely-filed Forms 3520 or 5471, for example – don’t need a repeat performance on 8938, which helps prevent unnecessary reporting burdens.

BUT, there’s a critical exception you absolutely have to remember: While those larger holdings, the trusts, or foreign corporations, might fall under this exemption, foreign BANK ACCOUNTS don’t enjoy this same luxury. They require Form 8938, period. It’s as if those accounts demand their own stage, a spotlight beyond what’s disclosed on those other forms.

The Pitfall of Quiet Disclosure: Risking More Than You Gain

The idea behind quiet disclosure seems logical on the surface. If I quietly file now, fixing the oversight and moving forward, won’t that just make things easier?

I’ve encountered many taxpayers tempted by this logic. Especially when they feel overwhelmed and behind.

But let me tell you from my years of experience – a quiet disclosure might feel tempting but is rarely worth the gamble. Especially given recent increases in scrutiny surrounding some offshore disclosure options like the Streamlined Procedures, you never want the IRS thinking you’re intentionally avoiding compliance. That’s where penalties can become a significant issue.

For example, for anyone out of compliance with FBAR and FATCA requirements in the past, the urge is strong to correct those mistakes NOW and simply file forward this year.

You might think you can start fresh, but the IRS isn’t oblivious to past omissions. They are constantly improving data-matching capabilities.

Let’s be crystal clear: That “catch-up” strategy isn’t compliant, and I’ve witnessed some harsh consequences, including criminal charges. This makes it incredibly important to note the IRS has developed a multitude of different offshore amnesty programs.

These initiatives are there to give people a chance to become tax-compliant in a less stressful way while lessening or eliminating those steep penalties.

So, when tempted to take a quiet disclosure “shortcut,” think long and hard. It often turns out to be more problematic.

Understanding Form 8938 Penalties: Willfulness Matters

Many people get consumed by anxiety when Form 8938 penalties are mentioned. They often picture the IRS unleashing a torrent of fines over minor omissions or miscalculations, which understandably creates panic.

The IRS has the power to impose steep penalties on those who fail to file required forms. Specifically, Form 8938 is a prime example.

Beyond the initial $10,000 penalty for the first 90-day period, each additional 30-day period (or partial 30-day period) that passes without filing will add another $10,000 to the total penalty.

This can escalate quickly, with a maximum penalty of $50,000. Take heed: the IRS means business when it comes to compliance. Don’t risk incurring hefty fines – stay on top of your filing obligations. And, in certain circumstances, they can even start criminal proceedings.

This harsher route is less common, usually reserved for more blatant cases of intentional non-compliance or egregious violations.

How FATCA Plays into It

One common question is “Do I still need to file an FBAR when there is FATCA?”. The short answer: YES.

Form 8938 was created partly due to FATCA or the “Foreign Account Tax Compliance Act,” signed into law back in 2010 to battle international tax evasion. In short, this law casts an expansive net for those with certain accounts and assets overseas.

This law’s impact goes far, with various additional reporting obligations impacting both American taxpayers and institutions.

What makes FATCA so powerful, even on a global scale? Let’s get into why. One aspect of the law focuses on foreign financial institutions (FFIs). FATCA has helped transform the global tax reporting landscape.  

Under the law, a US person (that’s you) could get hit with a whopping 30% withholding tax on payments from an FFI if those institutions aren’t reporting the required information. Suddenly, for many institutions, the stakes got much higher.

Think Ahead, Stay Informed.

These rules underscore something crucial for every US taxpayer, even those living stateside. International financial activity is constantly evolving. Think of cryptocurrency, online brokerage accounts, and international investment options readily available – that’s today’s reality.

Don’t let these complexities take you by surprise. Form 8938 and FATCA offer a glimpse of just how seriously the IRS considers international compliance. This means you have to stay informed and seek expert counsel, especially when on unfamiliar ground.

Streamlining Form 8938: Tips for Completing and Submitting

If you’re familiar with IRS tax form complexities, you might assume 8938 instructions are overly detailed and time-consuming. But while there’s detailed guidance about various situations, it isn’t about overloading taxpayers with mountains of confusing forms.

First, you have to understand when it’s needed. As mentioned, it only applies to those US taxpayers required to file an annual income tax return, unlike some forms such as FBAR and Form 3520, which must be filed annually even when you are not required to file a tax return. Plus, if your total foreign asset value falls below that all-important threshold for your specific tax and residency situation, you can relax.

What if your assets don’t need separate reporting on Form 8938 due to information already on timely filed Forms 3520, 5471, or any other forms requiring similar disclosure?

Good news: Form 8938 instructions anticipate these scenarios. Instead of filling the form completely, you simply provide basic identifying details and complete Part IV, indicating those other forms filed.

It cuts out the redundant paperwork, a nice win. Remember, you are required to use the US Treasury Department’s year-end exchange rate to report in USD.

Do this for every transaction, regardless of the actual exchange rate when it took place. Form 8938 instructions explicitly state the IRS accepts any published exchange rate as long as you apply it consistently.

Form 8938 Instructions: Final Thoughts

As you’ve seen, while filing Form 8938 comes with a fair share of intricacies, it’s about transparently revealing those financial assets you own overseas to comply with US regulations.

Mastering its intricacies, particularly those Form 8938 instructions, and using updated software ensures efficient and correct completion, avoiding unnecessary issues. Remember to review the IRS guidelines regularly. Stay vigilant to ensure compliance, year after year. 

For more information or to speak with highly qualified, experienced international tax professionals, contact Dimov Tax today.