This is a reminder that the Report of Foreign Bank and Financial Accounts (“FBAR”), T.D. 90-22.1, for calendar year 2011, is due by June 30, 2012.
As discussed previously, the U.S. Treasury Department in 2011 changed the FBAR filing requirements to now apply to U.S. beneficiaries of foreign trusts, along with their U.S. grantors.
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. If you are subject to the FBAR filing requirement, the 2011 FBAR is due by June 30, 2012.
Grantors (also known as settlors) of foreign asset protection trusts are deemed to be the owners of all trust assets for tax purposes. Thus, the FBAR filing requirement applies to such grantors, whether or not they actually control trust assets and whether or not they receive distributions from the trust.
The 2011 revised regulations now extend the FBAR requirement to some U.S. beneficiaries of foreign trusts, including foreign asset protection 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 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. Usually, beneficiaries of a foreign asset protection trust received 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.
Please also note the following with respect to the FBAR requirement:
- Even if the trust account was closed during 2011, if the account existed at any point during 2011, an FBAR is required.
- The requirement to file the FBAR exists irrespective of whether you filed new IRS Form 8938, Statement of Foreign Financial Assets. Please see our discussion regarding new Form 8938.
- The June 30, 2012 deadline is the deadline for receipt of the FBAR by the Treasury Department (unlike IRS Forms which must be postmarked by, e.g., April 15).
- Even if you have an extension for filing your tax returns, the 2011 FBAR is still due by June 30, 2012. There are no extensions for the FBAR deadline.
- A new FBAR form was issued in January 2012. Even though the new FBAR form is substantially similar to the prior version, you should use the new form.
Having established an offshore asset protection trust to safeguard your assets from attack by creditors and litigants, it is crucial to preserve the integrity of the trust and to be in compliance with all IRS requirements.
Please contact us with any questions.