Two separate forms, two different agencies, two sets of thresholds — and potentially two sets of penalties. Here's how to determine which forms you need to file and why confusing them can be costly.
If you're a U.S. person with foreign financial accounts or assets, you may need to file two separate information returns: the FBAR (FinCEN Form 114) and Form 8938 (Statement of Specified Foreign Financial Assets). They sound similar — and there is overlap — but they are distinct requirements enacted under different laws, with different thresholds, different filing locations, different deadlines, and very different penalty structures.
The FBAR traces back to the Bank Secrecy Act of 1970 and is filed with FinCEN, a Treasury bureau focused on financial crimes. Form 8938 was created much more recently under the Foreign Account Tax Compliance Act (FATCA) of 2010 and is filed with your tax return (the IRS). Both share the same goal — giving the U.S. government visibility into foreign financial holdings — but they operate on parallel tracks.
Filing one does not satisfy the requirement to file the other. Many taxpayers must file both. The penalties for failing to file can stack — and FBAR penalties, in particular, are among the harshest in U.S. tax law.
If you have foreign accounts, start by assuming you may need to file both FBAR and Form 8938. The FBAR's $10,000 threshold catches most people first. Even if you're below the Form 8938 thresholds, the FBAR obligation stands on its own.
| Feature | FBAR (FinCEN Form 114) | Form 8938 |
|---|---|---|
| Authorizing Law | Bank Secrecy Act (1970) | FATCA (2010) |
| Filed With | FinCEN (Treasury Dept.) | IRS (with your tax return) |
| Filing Method | Electronic only (BSA E-Filing) | With your Form 1040 (paper or e-file) |
| Deadline | April 15, automatic extension to October 15 | Same as your tax return (April 15, or October 15 with extension) |
| Threshold (U.S. residents) | $10,000 aggregate at any time in the year | $50,000 year-end / $75,000 at any time (unmarried); double for joint filers |
| Threshold (living abroad) | Same — $10,000 aggregate | $200,000 year-end / $300,000 at any time (unmarried); double for joint filers |
| What's Reported | Foreign financial accounts (bank, brokerage, mutual fund, insurance, pension) | Specified foreign financial assets (accounts + foreign stock, partnership interests, financial instruments) |
| Penalties (non-willful) | Up to $10,000 per violation | Up to $10,000 per year, with additional $10,000 after 90 days; max $60,000 |
| Penalties (willful) | Greater of $100,000 or 50% of account balance per violation; criminal possible | Generally civil penalties apply; criminal possible in extreme cases |
The decision tree is straightforward. Here's how to determine your obligations:
Mei is a U.S. resident with a foreign bank account ($8,000 max balance) and a foreign brokerage account ($5,000 max balance). Her aggregate is $13,000 — she must file FBAR. Her total foreign assets are $13,000, which is below the Form 8938 threshold of $50,000 for an unmarried U.S. resident. She files FBAR only.
The penalty difference between FBAR and Form 8938 is a major reason to take both obligations seriously. FBAR penalties are tied to the IRS's authority under Title 31 (the Bank Secrecy Act, not the Internal Revenue Code), which is why they can be so much larger.
For non-willful FBAR violations — meaning you didn't know about the requirement — the IRS may impose a penalty of up to $10,000 per year (adjusted for inflation). For willful violations, the stakes rise dramatically: the greater of $100,000 (adjusted for inflation) or 50% of the account balance — per violation, per year. That means a single $500,000 foreign account, willfully unreported for 3 years, could theoretically generate $750,000 in civil penalties alone. Criminal charges are also possible.
Form 8938 penalties are also significant but more bounded: a $10,000 initial penalty for failure to disclose, with an additional $10,000 for each 30-day period after IRS notification (up to $60,000 maximum). Criminal penalties may apply in extreme cases.
Our CPA can review your foreign accounts, determine which forms apply, and prepare both FBAR and Form 8938 for you.
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