Starting with the tax year 2011, the new IRS Form 8938 must be filed by all U.S. persons if total foreign financial assets exceeded $50,000 at any point during the year. Form 8938 will be in addition to the long-standing Treasury Department FBAR (Foreign Bank and Financial Accounts Report) required for financial assets abroad that exceed $10,000 and shall have to be filed together with the federal income tax return for the year.
Furthermore, Form 8621 (Passive Foreign Investment Company – PFIC) must now be filed every year for each separate PFIC investment where as previously it was only required to be filed in years that distributions were made from the PFIC investment. Finally, the statute of limitation for IRS audits of returns listing foreign sourced income has been extended to 6 years (previously 3 years).
Where non-compliance is “non-wilful,” failure to file form 8938 results in a minimum $10,000 penalty but may rise to as much as 40% of the value of the asset or account. This is in addition to the tax due and interest due. Non-compliance deemed “wilful” may result additionally in criminal prosecution.
While FATCA does not change the existing penalties resulting from failure to properly report such as the FBAR and Form 8621 (PFIC report), FATCA will result in a dramatically increased enforcement of these rules and therefore U.S. citizens and residents (including Americans living abroad and foreign nationals living in the U.S) should become familiar with the very significant penalties associated with these and other reporting requirements.