The draft instructions for the new Son of FBAR (Form 8938) were released today. (Here is a link to my discussion of the form itself.) Here are some highlights from a first skimming of the instructions:
- For unmarried taxpayers living in the United States, the new form must be completed if you have either more than $50,000 in foreign financial accounts on the last day of your tax year (usually December 31st) or if you had more than $100,000 at any time during the tax year. If you are married filing jointly, the amounts double (to $100,000/$200,000).
- For unmarried taxpayers living outside of the United States who are either bona fide residents of a foreign country(ies) or passes the Physical Presence Test (Form 2555, the Foreign Earned Income Exclusion), you must file the form if you have more than $200,000 on the last day of the tax year or more than $400,000 at any time during the tax year. If you are married filing jointly, the numbers increase to $400,000/$600,000.
As for the types of accounts and assets that are reportable:
- Any financial account maintained by a foreign financial institution;
- Other foreign financial assets, held for investment but not maintained by a financial institution, including stocks not issued by a US person, interests in foreign entities, and various financial instruments issued by non-US persons.
- A foreign financial institution is a non-US financial institution that is a bank (or similar entity), hold financial assets for others, and is engaged in investing, holding partnership interests, or other financial roles.
- Foreign mutual funds, foreign hedge funds, and foreign private equity funds are covered.
- Online gambling accounts do not appear to be covered.
There is a transitional rule available for taxpayers who would have had to file this form in 2011 (generally, business entities filing on a fiscal year); they can file in 2012 without penalty.
The instructions are 11 pages long, and I don’t have time to delve into all of them at this point. Suffice to say that if you are covered by the new Son of FBAR, your tax return just became far more complicated and you will need to talk to your tax professional about this issue.
are u sure?
this is what an attorney emailed me:
Online poker players raise an interesting issue that has not been addressed by the courts or the IRS. The issue is whether an online gaming account is a “foreign financial account” to which the reporting obligations apply. Currently it appears that this type of account WOULD be considered a reportable account. Note, the following however:
a. If this is the taxpayer’s only offshore account, the highest balance in the account would have to be >$10,000 in order to be reportable on the FBAR
b. Regardless of the amount in the account, the existence of the account is required to be reported on the form 1040 Schedule B. This is a very important distinction as the US tax court held the failure to disclose an account on Schedule B was instrumental in applying the “willful” failure to file penalties on the FBAR.
c. Depending on the account balance, the account may also have to be reported on the form 8938, which is a new form required for tax years 2011 forward ($10,000 penalty for failure to file).
d. In determining income from gambling, losses are deductible against winnings. If there are no net winnings, then there may be no unreported income. If this is the case, then FS 2010-13 sets forth the procedure for catching-up on unfiled FBARS. Typically no penalty will be charged if the taxpayer has “reasonable cause” for not having filed.
The regulations that were adopted in 2011 are specific. I assume you’re the individual who posted on 2+2; the regulations specify what is a reportable foreign financial account. Gambling accounts were considered such accounts until the changes in the regulations were adopted.
Yes, I’m sure.