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Home/International Tax/FBAR, FATCA & Offshore Compliance
International Tax · New York City

FBAR, FATCA & Offshore Compliance

A U.S. person with foreign accounts worth more than $10,000 at any point in the year must report them. Many never knew. The penalties for not knowing are still significant, and the penalties for knowing are severe.

We bring foreign accounts and assets into compliance, choose the right correction path and defend clients when the IRS has already asked questions.

FBAR  ·  Form 8938  ·  Streamlined procedures  ·  Voluntary disclosure  ·  Penalty defense
Why It Matters

Two reporting systems, different thresholds, and the same accounts.

The FBAR is filed with the Treasury’s Financial Crimes Enforcement Network and covers foreign financial accounts over $10,000 in aggregate. Form 8938 is filed with the tax return and covers a wider range of foreign assets above higher thresholds.

Foreign banks report U.S. account holders to the IRS under FATCA. The IRS often knows about an account before the taxpayer discloses it.

The correction path depends on whether the failure was non-willful. That judgment is made once and shapes everything that follows.

The Landscape

The reporting thresholds.

From IRS guidance on the FBAR, Form 8938 and the streamlined procedures.

$10,000
Aggregate value of foreign financial accounts above which an FBAR is required for the year
$50,000
Form 8938 threshold on the last day of the year for a single filer living in the United States ($75,000 at any time)
$200,000
Form 8938 threshold at year end for a single filer living abroad ($300,000 at any time)
5%
Miscellaneous offshore penalty under the streamlined domestic procedures, in place of other penalties

Joint filers have higher Form 8938 thresholds. The FBAR is due April 15 with an automatic extension to October 15. Taxpayers abroad who meet a non-residency test may use the foreign procedures with no miscellaneous penalty. Sources: IRS, Report of Foreign Bank and Financial Accounts; IRS, Comparison of Form 8938 and FBAR Requirements; IRS, Streamlined Domestic Offshore Procedures.

What We Do

What we do in offshore compliance.

Assess

Exposure review

Accounts, assets, years and the facts that bear on willfulness, under privilege.

Streamlined

Streamlined filing procedures

Domestic and foreign submissions with the certification of non-willfulness, drafted to withstand review.

Disclosure

Voluntary disclosure

The IRS voluntary disclosure practice for cases where willfulness cannot be ruled out.

Delinquent

Delinquent filings

Late FBARs and information returns where no tax is due and the facts support it.

Defense

Penalty defense and examinations

Reasonable cause submissions, responses to penalty notices and representation in audits.

Ongoing

Annual compliance

FBAR, Form 8938 and related filings kept current, with the foreign institutions’ statements in hand.

How We Work

How an offshore compliance matter runs.

Facts first, under privilege, before anything is filed.

01

Facts

Accounts, statements, prior returns and how the accounts came to exist, reviewed under privilege.

02

Path

Streamlined, voluntary disclosure, delinquent filing or reasonable cause, chosen on the facts.

03

Prepare

Amended returns, FBARs, information returns and the certification or narrative.

04

Submit and defend

Submission filed, follow-up questions answered, penalties contested where appropriate.

How the Practice Is Built

Lawyers who plan the structure and defend it.

Planning

Structure before the move, the investment or the sale.

Residency timing, entity choice, trusts and elections are decided together, with the home-country result in view. We coordinate with your accountants and counsel abroad so the plan works in both places.

Protection

Compliance and controversy in the same hands.

Foreign asset reporting, penalty exposure, streamlined and voluntary disclosures and IRS examinations. The firm also litigates and arbitrates, so a plan is written knowing how it will be tested.

If You Have Unreported Accounts

The options narrow once the IRS makes contact.

Streamlined procedures are not available after an examination begins.

Do
  • Gather statements for every foreign account for the last six years
  • Speak to a lawyer before an accountant; the privilege is different
  • Preserve the history of how the account was opened and funded
  • Act before a bank letter or IRS notice arrives
Do not
  • Close or empty the account before deciding on a path
  • File quiet amended returns without a procedure
  • Sign a non-willfulness certification that overstates the facts
  • Assume a small account is beneath notice
Insights

From the firm’s writing.

Expats

FBAR and FATCA Risks for U.S. Expats

What citizens abroad must file and what happens when they do not.

Read the article
Certification

IRS Streamlined Disclosure Attorney: Non-Willfulness

How the streamlined certification is written and tested.

Read the article
Disclosure

IRS Voluntary Disclosure for Foreign Assets and Crypto

When the voluntary disclosure practice is the right path.

Read the article
FAQ

Frequently asked.

The Report of Foreign Bank and Financial Accounts, FinCEN Form 114, filed electronically by a U.S. person whose foreign financial accounts exceeded $10,000 in aggregate at any time in the year. It is separate from the tax return and due April 15, with an automatic extension to October 15.

Form 8938 is filed with the tax return under FATCA and covers specified foreign financial assets, including some that are not accounts, above higher thresholds that depend on filing status and residence. Many people must file both.

IRS procedures for taxpayers whose failure to report was non-willful. The domestic version requires three years of amended returns, six years of FBARs, a certification of non-willfulness and a 5 percent miscellaneous penalty. The foreign version, for those who meet a non-residency test, has no miscellaneous penalty.

The IRS voluntary disclosure practice exists for cases where willfulness cannot be ruled out. It involves a preclearance request, a fuller disclosure and higher penalties, in exchange for a path that avoids criminal referral. The choice between paths is made carefully and under privilege.

Streamlined procedures are closed once an examination begins, but other options remain: reasonable cause, penalty mitigation and representation in the audit. Call before responding.

Foreign accounts that were never reported?

A confidential, privileged consultation. We will tell you which path fits the facts and what it will cost.

Dilendorf Law Firm PLLC · 115 Broadway, 5th Floor, New York, NY 10006 · info@dilendorf.com
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