Don’t overlook the requirement for any individual who holds any interest in a “specified foreign financial asset” during the tax year to complete and attach Form 8938 to his or her income tax return if a certain reporting threshold is met. The reporting threshold varies, depending on whether or not the individual lives in the U.S. and files a joint return with his or her spouse. For example, an individual who is not married and does not live abroad will need to file Form 8938 for 2012 if the total value of his or her specified foreign financial assets amounts to more than $50,000 as of December 31, 2012 or more than $75,000 at any time during 2012. For married taxpayers filing a joint return and living in the U.S., the threshold amounts are twice as high. The thresholds are also higher for taxpayers residing abroad.
Specified foreign financial assets include financial accounts maintained by foreign financial institutions and other investment assets not held in accounts maintained by financial institutions, such as stock or securities issued by non-U.S. persons, financial instruments or contracts with issuers or counterparties that are non-U.S. persons, and interests in certain foreign entities. However, no disclosure is required for interests that are held in a custodial account with a U.S. financial institution.
The penalty for failing to report specified foreign financial assets for a tax year is $10,000. However, if this failure continues for more than 90 days after the day on which the IRS mails notice of the failure to the individual, there are additional penalties of $10,000 for each 30-day period (or fraction of the 30-day period) during which the failure continues after the expiration of the 90-day period, with a maximum penalty of $50,000.
To the extent that the IRS determines the individual to have an interest in one or more foreign financial assets but fails to provide enough information to enable the IRS to determine the aggregate value of those assets, the aggregate value of those assets will be presumed to have exceeded $50,000 (or other applicable reporting threshold amount) for purposes of assessing the penalty.
No penalty will be imposed if the failure to file the 8938 is due to reasonable cause and not due to willful neglect. The fact that a foreign jurisdiction would impose a civil or criminal penalty on the taxpayer (or any other person) for disclosing the required information is not reasonable cause.
In addition, if it is shown that the individual failed to report the income from the foreign financial account on his or her income tax return, a 40% accuracy-related penalty is imposed for underpayment of tax that is attributable to an undisclosed foreign financial asset.
If you have questions related to this issue or are uncertain as to whether you are required to file Form 8938, please give this office a call in order to discuss your particular situation.