We remind readers that FinCEN Form 114 (formerly TD 90-22.1), the Report of Foreign Bank and Financial Accounts (the “FBAR”), for calendar year 2013, is due by June 30, 2014. The FBAR must be filed electronically.
As we advised previously, in 2011, the U.S. Treasury Department issued revised regulations regarding the FBAR. The FBAR filing now applies to foreign annuity policies and foreign life insurance policies that are owned by U.S. taxpayers, and to some beneficiaries of foreign trusts. If you are subject to the FBAR filing requirement, the 2013 FBAR is due by June 30, 2014.
The FBAR is required to be filed by a U.S. person who has a financial interest in, or signature or other authority over, any foreign financial account (including bank, securities or other types of financial accounts), if the aggregate value of the financial account(s) exceeds $10,000 at any time during the calendar year.
1. Foreign Annuity Policies
The 2011 FBAR regulations extend the FBAR requirement to foreign annuity policies that have a cash surrender value and are owned by U.S. persons. Under the new regulations, such annuity policies are considered a “foreign financial account”, reportable via the FBAR by the policy owner, which is usually the U.S. client. Such annuities are reportable even if they are deferred annuities and there are no present annuity payments.
2. Foreign Life Insurance
A foreign life insurance policy is now reportable as a “foreign financial account” if the insurance policy is owned by a U.S. person and the policy has a cash surrender value. The reporting requirement applies to the policy owner, if he/she is a U.S. person. It does not apply if the policy is owned by a foreign trust rather than a U.S. client. (Note, however, that a client who is a beneficiary of a foreign trust may still be subject to the FBAR, see 3 below.)
3. Foreign Trusts
The 2011 FBAR regulations extend the FBAR requirement to some U.S. beneficiaries of foreign trusts, such as foreign insurance trusts. The new regulations apply to U.S. beneficiaries of a foreign trust who have a reportable financial interest in the trust. A U.S. person has a reportable financial interest if the U.S. person had more than a fifty percent (50%) present beneficial interest in a trust’s assets or if the U.S. person received more than fifty percent of the current income of the trust. The beneficial interest in the assets of the trust must be a “present” beneficial interest for the FBAR to apply. A beneficiary of a purely discretionary trust, i.e., where trust distributions are made solely in the discretion of a trustee does not have a “present” interest. However, with respect to the trust income, a beneficiary who receives more than fifty percent of trust’s “current” (i.e., annual) income has a financial interest that is reportable on the FBAR.
Under prior FBAR regulations, there was ambiguity as to whether a discretionary trust beneficiary was subject to the FBAR. Beneficiaries of a foreign discretionary trust may only receive distributions at the discretion of the foreign trustee. The new rules clarify that only a present beneficial interest gives rise to the FBAR and only beneficiaries who receive more than fifty percent of a trust’s current income are subject to the FBAR.
4. Additional Important Points
• Even if the annuity policy or insurance policy was cancelled in 2013, and the trust account closed during 2013, if they existed at any point during 2013, an FBAR is required.
• The requirement to file the FBAR exists irrespective of whether you filed IRS Form 8938, Statement of Specified Foreign Financial Assets. This is yet another IRS form to report foreign assets, including foreign annuity policies, foreign life insurance policies, and interests in foreign trust. We’ve written about IRS Form 8938, here. Form 8938 is due with your annual tax return.
• The June 30, 2014 deadline is the deadline for receipt of the FBAR by the Treasury Department.
• Even if you have an extension for filing your tax returns, the 2013 FBAR is still due by June 30, 2014. There are no extensions for the FBAR deadline.
• The FBAR is now required to be filed electronically.