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Privacy PolicyPRACTICE AREAS
Annual obligations, compliance gaps, and the pathways to resolve them
U.S. persons with foreign financial accounts, foreign business interests, foreign investment holdings, or foreign trust connections are subject to an extensive annual reporting framework — entirely separate from the income tax return. The penalties for non-compliance are severe, FATCA and the OECD Common Reporting Standard have made undisclosed foreign accounts increasingly visible, and the time to come into compliance voluntarily is before the IRS makes contact.
This checklist is organized in two parts. Part A covers the annual compliance obligations that apply on an ongoing basis. Part B covers the remediation pathways for U.S. persons who have discovered prior non-compliance and need a path forward.
Who should use this?
This checklist is for U.S. citizens, green card holders, and other U.S. persons with foreign financial accounts, foreign business interests, foreign investment portfolios, or foreign trust connections. It covers both the annual compliance obligations that apply to everyone in this category and the remediation pathways available to those who have fallen behind. Use Part A for ongoing compliance; use Part B if you have discovered historical gaps.
Annual obligations for U.S. persons with foreign accounts, entities, trusts, and investments
Section 1
The FBAR is filed with FinCEN — not the IRS — and is due April 15 with an automatic extension to October 15. It is separate from your tax return and is not filed with it.
If the aggregate maximum value exceeded $10,000 at any point during the year — even for a single day — the FBAR filing obligation is triggered for that year.
Willful failure to file FBAR penalties can reach the greater of $100,000 or 50% of the account balance per violation, per year. Non-willful penalties begin at $10,000 per violation.
Section 2
Form 8938 is filed with your U.S. tax return and covers a broader category of specified foreign financial assets than the FBAR. Both may apply to the same account simultaneously.
For U.S. residents filing single/MFS: $50,000 at year-end or $75,000 at any point. For married filing jointly: $100,000/$150,000. For taxpayers abroad: $200,000/$300,000 (single) or $400,000/$600,000 (joint).
The FBAR covers foreign financial accounts. Form 8938 covers a broader set of specified foreign financial assets — the two forms overlap but are not identical. Both must be filed if applicable.
Section 3
The U.S. tax classification of a foreign entity is not always obvious and must be determined before the correct reporting form is identified. A foreign entity treated as a corporation for U.S. purposes requires Form 5471; one treated as a partnership requires Form 8865; a disregarded entity requires Form 8858.
The U.S. classification does not automatically follow local law. Certain foreign entities are ‘per se’ corporations under the regulations regardless of local law treatment. Others may elect their classification. The applicable regulations must be reviewed.
Penalties for failure to file Form 5471 begin at $10,000 per form per year and increase to $50,000 for continued non-compliance. The IRS has significantly increased enforcement in this area.
Section 4
U.S. persons with interests in foreign partnerships and foreign disregarded entities have separate information reporting obligations distinct from the foreign corporation regime.
| Step | Action | What to know |
|---|---|---|
| Form 8865 | Confirm Form 8865 filing obligations if you own a 10% or greater interest in a foreign partnership. | Also triggered if you acquired, disposed of, or had a change in proportional interest during the year. |
| Form 8858 | Confirm Form 8858 filing obligations if you own a foreign disregarded entity or a foreign branch. | Applies to disregarded entities and branches — not to entities classified as corporations or partnerships. |
| Classify first | Verify the U.S. tax classification of each entity before selecting the form. | Entity classification determines whether Form 5471, 8865, or 8858 applies. |
| File | File Forms 8865 and 8858 as attachments to your annual U.S. tax return. | Penalties for failure to file Forms 8865 and 8858 mirror those for Form 5471 — beginning at $10,000 per form per year. |
Section 5
Foreign mutual funds, ETFs, and most non-U.S. pooled investment vehicles are PFICs. The default PFIC regime is punitive — annual reporting is required and timely elections can significantly reduce the tax burden.
Elections must be made on a timely basis. Missing the first-year window for a QEF or MTM election results in the default excess distribution regime — the most punitive outcome. Late elections are available in limited circumstances but require additional steps.
Section 6
Foreign trusts with U.S. connections trigger some of the most penalized reporting obligations in the international framework. Forms 3520 and 3520-A have different deadlines and different responsible parties.
Form 3520 is due on the same date as your income tax return (including extensions). The reporting threshold for foreign gifts from non-corporate foreign persons is $100,000 or more in aggregate. Penalties begin at $10,000 or 35% of the gross reportable amount.
Form 3520-A is due March 15 (or the 15th day of the 3rd month after the trust’s year-end), with an extension to September 15. The U.S. grantor is responsible for ensuring this form is filed even if the foreign trustee fails to do so. Penalties begin at $10,000 or 5% of the gross value of trust assets.
For U.S. persons who have discovered prior non-compliance and need a path forward
Section 7
The most important threshold question in any compliance remediation is whether the non-compliance was willful or non-willful. This determination drives program selection — and selecting the wrong program can create serious exposure.
Checking ‘no’ on Schedule B while having reportable foreign accounts is a significant indicator of willfulness in IRS examinations and court decisions, even if the taxpayer claims lack of awareness.
Section 8
There are several IRS pathways to come into compliance, and each is appropriate for a different set of facts. The programs are not interchangeable.
SFOP requires: (1) non-willful non-compliance; (2) failure to meet the substantial presence test for at least one of the three most recent tax years; and (3) filing three years of amended or original returns and six years of FBARs with a non-willfulness certification. Penalty: zero.
SDOP has the same substantive requirements as SFOP but applies to U.S. residents. Penalty: 5% miscellaneous offshore penalty calculated on the highest aggregate balance of unreported foreign assets during the covered period.
VDP requires disclosure before the IRS opens an examination or criminal investigation. It provides no guarantee of non-prosecution but substantially reduces criminal and civil exposure. It involves a more extensive process including a preliminary submission, a conference with IRS-CI, and a closing agreement.
These delinquent procedures are narrower than Streamlined — they apply only when income was properly reported and there is no FBAR issue (for the information return procedures) or no income issue (for the FBAR procedures). If there is any doubt about whether income was fully reported, the Streamlined pathway should be evaluated instead.
Section 9
Once the program is selected, execution must be careful and complete. A defective Streamlined or VDP submission can be rejected by the IRS or, worse, treated as a fraudulent submission.
The non-willfulness certification is the most critical document in a Streamlined submission. It must be factually accurate, thorough, and consistent with the amended returns. IRS examinations of Streamlined submissions often focus on the certification — an inaccurate or incomplete certification can result in the submission being treated as willful.
Section 10
Coming into compliance through a disclosure program is not the end — it is the beginning of a compliant posture that must be maintained going forward.
Concepción Global PLLC advises U.S. persons on the full range of international information reporting obligations — from annual FBAR and Form 8938 advisory to multi-year compliance remediation through the IRS Streamlined Procedures and Voluntary Disclosure Program. We work in English, Spanish, French, and Portuguese.
Christine Alexis Concepción, Esq. caconcepcion@
concepcionlaw.com +1.305.444.6669
201 South Biscayne Boulevard, Suite 2832, Miami, Florida 33131
concepcionlaw.com