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FBAR after leaving USA

FBAR after leaving USA

Old Jun 11th 2016, 8:14 am
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Aoi
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Default FBAR after leaving USA

I am no longer a "United States Person" because I left the USA in March 2015. Is there anything in the rules that clearly states whether I have to file a FBAR (FinCEN Form 114) for 2015?

Also a heads-up for next year. While trying to find the answer to this question I found the following on irs.gov:
"Note: The recently enacted Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 changes the standard FBAR due date to April 15 beginning with the 2016 calendar year reports, which are due in 2017. The FBAR deadline for calendar year 2015 reports remains June 30, 2016 (with no extensions allowed)."
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Old Jun 11th 2016, 1:05 pm
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Default Re: FBAR after leaving USA

I just went to the effort of locating the original FBAR wording, via the IRS site. As far as I can see, there is no direct clarification for people leaving the US, and it's certainly ambiguous.

The relevant section says (my bolding):
"§ 1010.350 Reports of foreign financial accounts.
(a) In general. Each United States person having a financial interest in, or signature or other authority over, a bank, securities, or other financial account in a foreign country shall report such relationship to the Commissioner of Internal Revenue for each year in which such relationship exists and shall provide such information as shall be specified in a reporting form prescribed under 31 U.S.C. 5314 to be filed by such persons. The form prescribed under section 5314 is the Report of Foreign Bank and Financial Accounts (TD–F 90–22.1), or any successor form. See paragraphs (g)(1) and (g)(2) of this section for a special rule for persons with a financial interest in 25 or more accounts, or signature or other authority over 25 or more accounts. (b) United States person. For purposes of this section, the term ‘‘United States person’’ means—
(1) A citizen of the United States;
(2) A resident of the United States. A resident of the United States is an individual who is a resident alien under 26 U.S.C. 7701(b) and the regulations thereunder but using the definition of ‘‘United States’’ provided in 31 CFR 1010.100(hhh) rather than the definition of ‘‘United States’’ in 26 CFR 301.7701(b)–1(c)(2)(ii); and..."
https://www.gpo.gov/fdsys/pkg/FR-201.../2011-4048.pdf

I would probably read that conservatively to say that if you were a US person in early 2015, and had sufficient foreign assets, then you are required to file an FBAR for 2015. That said, I imagine there are thousands in your position who don't and who have no problem.
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Old Jun 13th 2016, 12:38 pm
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Default Re: FBAR after leaving USA

Originally Posted by Aoi View Post
I am no longer a "United States Person" because I left the USA in March 2015. Is there anything in the rules that clearly states whether I have to file a FBAR (FinCEN Form 114) for 2015?

Also a heads-up for next year. While trying to find the answer to this question I found the following on irs.gov:
"Note: The recently enacted Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 changes the standard FBAR due date to April 15 beginning with the 2016 calendar year reports, which are due in 2017. The FBAR deadline for calendar year 2015 reports remains June 30, 2016 (with no extensions allowed)."
You were a US resident during (part of) 2015 therefore should file. Interesting though, whether you report the figure for the period you were resident or for the whole year.

I would just do it for the whole year and be finished with it.
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Old Jun 14th 2016, 2:48 am
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Default Re: FBAR after leaving USA

I found this bit (but personally I always recommend being conservative and filing if in doubt on things like this):

https://www.irs.gov/irm/part4/irm_04-026-016.html#d0e57

4.26.16.3.1.2 (11-06-2015)
U.S. Resident

Prior to February 24, 2011, when revised regulations were issued, the FBAR regulations did not define the term "U.S. resident."

For FBARs required to be filed by June 30, 2011, or later, 31 CFR 1010.350(b) defines "United States resident" using the definition of resident alien in IRC 7701(b), but using the Title 31 definition of "United States." The major tests of residency found in section 7701(b) are:

The green-card test. Individuals who at any time during the calendar year have been lawfully granted the privilege of residing permanently in the U.S. under the immigration laws automatically meet the definition of resident alien under the green-card test.

The substantial-presence test. Individuals are defined as resident aliens under the substantial-presence test if they are physically present in the U.S. for at least 183 days during the current year, or they are physically present in the U.S. for at least 31 days during the current year and meet the specifications contained in IRC 7701(b)(3).

The individual files a first-year election on his income tax return to be treated as a resident alien under IRC 7701(b)(4).

The individual is considered a resident under the special rules in section 7701(b)(2) for first-year or last-year residency.

Individuals residing in the U.S. who do not meet one of these residency tests are not considered U.S. residents for FBAR purposes. This includes individuals in the U.S. under a work visa who do not meet the substantial-presence test.

Using these rules of residency can result in a non-resident being considered a U.S. resident for FBAR purposes. This would occur when a green-card holder actually resides outside the U.S.

FinCEN clarified in the preamble to the regulations that an election under IRC 6013(g) or (h) is not considered when determining residency status for FBAR purposes.

U.S. tax treaty provisions do not affect residency status for FBAR purposes. A treaty provision which allows a resident of the U.S. to file tax returns as a non-resident does not affect residency status for FBAR purposes if one of the tests of residency in IRC 7701(b) is met.

Diplomats residing at foreign embassies in the U.S. are not generally considered U.S. residents since foreign embassies are generally considered part of the sovereign nation they represent.
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