Newly Released Form 8938 - Statement of Specified Foreign Financial Assets

The IRS just released a new DRAFT of Form 8938 and a first DRAFT set of Instructions.

This Statement of Specified Foreign Financial Assets needs to be attached to and filed with the taxpayer's tax return (eg Form 1040) in addition to filing the FBAR (TDF 90.22.1) for all tax years starting after March 18, 2010.  Therefore calendar year taxpayer's are technically required to attach this form to their Form 1040, starting with their 2011 filing.

Foreign Financial Asset and PFIC Shareholder Reporting Requirements Are Temporarily Suspended by Notice 2011-55, 2011-29 I.R.B. (7/18/11). According to the notice, once Form 8938 and revised Form 8621 have been released, taxpayers for whom the reporting requirements have been suspended must attach Form 8621 or Form 8938, as the case may be, for the suspended taxable year with their next income tax or information return.

For many each of the 7 million US persons overseas and hundreds of thousands back home in the States this new reporting immediately represents a significant increase in annual US tax data collection and reporting and will be highly complex to understand.
Here are some highlights from a first reading of the instructions:

1. For unmarried taxpayers living in the United States, the new form must be completed if one had either more than $50,000 in foreign financial accounts on the last day of the tax year (usually December 31st) or if one had more than $100,000 at any time during the tax year. If married filing jointly, the amounts double (to $100,000/$200,000).
2. Unmarried taxpayers living outside of the United States who are either bona fide residents of a foreign country or physically present abroad, must file this form if they had 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 married filing jointly, the numbers increase to $400,000/$600,000.
3. As for the types of accounts and assets that are reportable:
1. Any financial account maintained by a foreign financial institution; 
2. 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. The words "for investment" appear to eliminate interests in active businesses even if not reportable on any other return, but the wording is slightly unclear as drafted.
3. 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.
4. Foreign mutual funds, foreign hedge funds, and foreign private equity funds are covered.
5.  Foreign pension plans are not specifically mentioned, but may well be foreign grantor or non-grantor trusts so may be covered or reportable elsewhere.
6.  Foreign real property is not mentioned specifically.

The instructions are 11 pages long.

While for the sophisticated investor it is still possible to structure foreign assets in ways that minimise US reporting; this new filing obligation may create increasing confusion for the Average American living outside of the US as well as costing more in annual accounting fees.

The draft instructions for Form 8938 are available on the IRS website at http://www.irs.gov/pub/irs-dft/i8938--dft.pdf. The draft Form 8938 is available at http://www.irs.gov/pub/irs-dft/f8938--dft.pdf.