Summary of Federal Laws
Miscellaneous Tax Issues
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Foreign Bank Accounts and Tax Filings
31 USC 5314(a)
US institutions and citizens that have an ownership interest in foreign bank accounts, or US citizens with signature authority over a foreign bank account have to file form TD F 90.22-1 (FBAR). The latter must report the account on an FBAR even if the foreign financial account is reported on an FBAR filed by the owner of the account (or other person that has a financial interest in the account). This form must be filed by June 30 of the year following any year during which they possessed signature or other authority over, or had a $ interest in foreign financial accounts whose value exceeded $10,000 at any time during the calendar year.The IRS FBAR page has an update to reporting deadlines and further clarification and extensions. There have been more than a few. See especially FinCEN Notice 2011-1 for an extension until June 30, 2012 in certain circumstances.
McDermott Will and Emery posted a chart on July 1, 2011 with various filing deadlines and an explanation as to who was covered by the various rules. See FBAR Filing Deadline for Extensions for Certain Individuals with Signature Authority.
FBAR Final Rule; Amendment to the Bank Secrecy Act Regulations-Reports of Foreign Financial Accounts, 76 Fed. Reg. 10234, Feb. 24, 2011, Effective March 28, 2011
The final rules clarify who has the signature authority over a foreign bank account as follows:
Signature or other authority means the authority of an individual (alone or in conjunction with another) to control the disposition of money, funds or other assets held in a financial account by direct communication (whether in writing or otherwise) to the person with whom the financial account is maintained.
The reports have to be filed by June 30, 2011, so the first report under the new rules will be due June 30, 2011 (for calendar year 2010) and the reporting is done using the Report of Foreign Bank and Financial Accounts-Form TD-F90-22.1 (FBAR). The rule is applicable if the foreign account exceeds $10,000. The FBAR may be filed electronically. Private colleges and universities are covered by this rule, but state colleges and universities are not. See Notice 2011-31 for guidance on how to answer questions related to foreign financial accounts found on 2010 federal income tax and information returns, e.g., Schedule B of Form 1040, the “Other Information” section of Form 1041, Schedule B of Form 1065, and Schedule N of Form 1120, among others.
The Report of Foreign Bank and Financial Accounts (FBAR) provides necessary information for certain governmental agencies. Information on the FBAR may be used in criminal, tax, or regulatory investigations or proceedings, or in the conduct of intelligence or counterintelligence activities, including analysis, to protect against international terrorism. Note the proposed regulations contain an exception for public entities, includes IHEs. The proposed regulations also state that the IRS must have received the form by June 30th, a postmark by June 30th does not count.
History of Regulation (see above for current filing deadlines)
This section of Bert Harding's newsletter was reprinted with permission of the author.
IRS EXTENDS FBAR FILING RELIEF; NEW FBAR PROPOSED REGULATIONS
As most institutions are aware, U.S. persons or entities that have a financial interest in, or signature or other authority over, a bank, securities, or other foreign financial account exceeding $10,000 in a calendar year must file a report with the Treasury Department by June 30 of the following year. The form that must be filed is Form TD F 90-22.1, the Report of Foreign Bank and Financial Accounts, commonly referred to as the "FBAR."
In August, 2009, the IRS issued Notice 2009-62, which extended to June 30, 2010, the filing deadline for (1) persons with signature authority over (but no financial interest in) a foreign financial account, and (2) persons who had either a financial interest in or signature authority over a foreign account where the assets were held in a commingled account. This extension applied to FBAR filings for the 2008 calendar year due on June 30, 2009, as well as any delinquent FBARs that had not been filed for prior years.
The IRS has now issued Notice 2010-23, which extends these filing deadlines in the following manner:
Persons with signature authority over, but no financial interest in, a foreign financial account for which an FBAR would otherwise have been due on June 30, 2010, will now have until June 30, 2011, to report those foreign financial accounts. But the IRS notes that when completing an FBAR that is subject to this extension, the persons must adhere to FBAR guidance in effect at the time the FBAR is filed.
Persons with a financial interest in and/or signature authority over a foreign commingled fund that is a mutual fund are required to file an FBAR unless another filing exception applies. But the IRS will not interpret the term "commingled fund" as applying to funds other than mutual funds with respect to FBARs for calendar year 2009 and prior years. Thus, relief is granted to those persons who have a financial interest in and/or signature authority over a foreign hedge fund or private equity fund.
With respect to the requirement that persons required to file FBARs are also required to respond to FBAR-related questions on certain tax forms (including Form 1040), persons who qualifies for Notice 2010-23 relief should check the "No" box for 2009 and earlier years, provided the person has no other reportable foreign financial accounts for the year in question
At the same time, the Financial Crimes Enforcement Network ("FinCEN"), the bureau within the Treasury Department with authority over FBAR reporting, issued new proposed FBAR reporting regulations together with a draft set of FBAR instructions that reflect the provisions in the regulations. The highlight of these new proposed regulations for the higher education community is the creation of a proposed FBAR filing exemption for governmental entities, which includes (1) colleges or universities that are agencies or instrumentalities of, or owned or operated by, a governmental entity, and (2) an employee retirement or welfare benefit plan of a governmental entity.
In addition, the new proposed regulations include a revised definition of a "United States person" required to file the FBAR to mean any citizen or resident of the U.S., including domestic corporations, partnerships, trusts, and limited liability companies. While these regulations are only proposed and are not yet in effect, the IRS issued Announcement 2010-16, which states that effective immediately the requirement to file an FBAR "due on June 30, 2010, is suspended for persons who are not United States citizens, United states residents, or domestic entities."
The proposed regulations also modify the definitions of the different types of foreign financial accounts that are subject to reporting. The regulations contain definition of a "bank account," a "securities account," as well as a definition of an "other financial account." An "other financial account" is defined in the regulations as follows:
- an account with a person that is in the business of accepting deposits as a financial agency;
- an account that is an insurance policy with a cash value of an annuity policy;
- an account with a person who acts as a broker or dealer for futures or options transactions in any commodity subject to the rules of a commodity exchange or association,
- or an account with a mutual fund or other pooled fund that issues shares available to the general public.
Editor's Note: Note differential treatment for private colleges versus public in proposed regulations.
CCR updated CFR links 6/15/15