LindseyAnn

Ok, this is our situation and I am not sure what to do. Myself and daughter returned to the UK in June 2011, intending to return here. I am British, husband is US citizen. I did have a Greencard but it expired in Dec 2011 whilst I was here and as I didn't intend returning to the US, didn't renew it. Since then I have lost my job and haven't been employed and have been living with my parents here in the UK and we have been going through the procedures to getting another Greencard. So, I now have my visa in my passport and will be returning to the US in a few months.

This is the FBAR question and dilemma I have:-
My husband filed joint taxes for us since I have been back in the UK. A few weeks ago when he filed our 2013 tax return he was told that I needed to fill in FBAR 114. I have a UK account here with over $10,000 in it. I looked at the form and it is for US citizens, Green Card holders and Permanent Residents. From Dec 2011 I was non of these up till a few weeks ago. I called the IRS and the agent I spoke to told me that because non of these applied to me (at that time) that no I was not to fill in the form. My husband was not satisfied with this and asked me to contact the FBAR by e-mail to ask them and they have asked for my telephone number to call me

We have not filled out an FBAR form before, didn't know about it and only knew about it this time because my husband was prompted by the tax place, whilst filing taxes. Does anyone know if I need to fill this in or not, I do not want to get in trouble?

thanks

penguinsix

At what time did you have signing authority over a foreign bank account that had > $10,000 USD in it, i.e. when did the money go into the account? You might have had to file for the time June 2011-Dec 2011. Whether to retroactively go back and file is a question for a tax attorney, if the money was there in the first place. I suppose you could even go with the argument you left in June intending never to return, abandoning your residence as of June so the IRS agent you spoke with would be correct.

(and as a general note--whenever you speak to an IRS agent on the phone WRITE DOWN the Agent Number they tell you at the beginning of the call. Their advice can be a defense to any future claim. You may even call back and get the advice again and write it down this time for your files).

BUT...this is the bigger question. Does your husband have signing authority over the bank account that has > $10,000 in it? It might be your account, but is he a signatory such that he can get money out of it? If so, he may have had a FBAR requirement he didn't meet for the last few years.

JAJ

Not clear what the background is.

Where's "here"?
The Green Card "expired", what actually happened? Was a form I-407 filled out to abandon it, or was there an Immigration Judge ruling to remove permanent residence.

A new visa, is that an SB-1 Returning Resident visa, or a new Immigrant Visa (IR-1)?

Depending on the answers, Permanent Resident status may or may not have expired before now.

nun

By choosing to file a joint return with your husband you have also chosen to be treated as a resident alien for tax purposes.

LindseyAnn

JAJ - We returned to the UK in June 2011, not intending to go back to the US. I was wanting to come back here, we let our home go into foreclosure, sold our vehicle etc - so yes our intention was not to return. I had a job from June 2011-Aug 2012 here (UK) and my Greencard had an expiry date on it of Dec 2011. I didn't renew the Greencard, as I had a job and as far as we were concerned were re-settling back here in the UK and didn't need the Greencard. You have 6 months from the date of expiry to renew it and I didn't. I have been unemployed here in the UK since Aug 2012 and the job situation for me here is not what I expected at all and I can't make enough for my husband (who is in the US still) to get a visa to come here and job wise it would not be great for him either. We then had to apply for another spousal visa - you have to go through all the process again, as the other had expired. As far as for immigration purposes, I wasn't a permanent resident after my Greencard expired and that is why I have had to reapply for another.

penguinsix - The bank account I have is in my name only, no my husband has not got signing authority over the bank account. The money in is over $10,000 but is comprised of a few thousand I had when I returned to the UK, money I earned when I worked, my daughters disability benefit, child benefit and child tax credit etc, that she gets here in the UK.

I hope that's a bit clearer.

nun

You will be treated by the IRS as a resident alien because you have filed jointly with your US citizen spouse.....whether you have a green card or not doesn't matter.

LindseyAnn

I called the IRS again and got the agent number this time. I explained the situation, that my husband had filed a joint tax return in the US and explained my situation. She said that the FBAR 114 does not apply to me, as the bank account is in my name only and because my Greencard had expired and I would not be considered as a permanent resident. So, for the 2013 tax year, I am not required to fill this out. I explained that I had been applying for another Greencard and got my visa in my passport a few weeks ago and she said that that was irrelevant and that doesn't make any difference at all.

nun

By filing a joint return you have chosen to be treated as a tax resident. I would argue with the agent's conclusion and file the FBAR, where's the harm? You will already have included all your UK income and gains anyway. Also remember that tax free UK benefits are generally not US tax free.

http://www.irs.gov/Individuals/Inter...-as-a-Resident

LindseyAnn

thanks for the info and advice

JAJ

Except that the expiry date of a green card does not in itself cause loss of Lawful Permanent Resident (LPR) status. The green card is only evidence of LPR status, not the status itself.

It may be that when you applied for and were granted the Immigrant Visa, your previous LPR status ceased and you will regain it when re-admitted to the United States as an immigrant. You'd need to ask on the U.S. immigration form to know more.

Based on that, and also if you filed a joint return for 2013, you should normally file the FBAR. Many first-time filers don't go back and file for prior years, even if they should have done technically. As long as you have filed and paid the correct taxes, it is unlikely the IRS or U.S. Treasury will take any action for non-filed FBAR reports.

LindseyAnn

JAJ - yes I did loose permanent residency status, after my Greencard expired, I was told this by the Embassy after I tried to renew it. I was told that after the 6 month renewal period, you then have to reapply from the start and you are considered as not having permanent residency. When I went for my interview at the Embassy in London, I was given a form and it had LPR on it and was asked to give in my expired Greencard and then they could process my visa. My alien registration number is completely different to the one I had before. I was told it is classed as a totally different visa and permanent residency status.

I have also rechecked again with the IRS and even if you filed jointly, you may be regarded as being a permanent resident for tax purposes, but the FBAR report is not a tax form as such. I have now spoken to three different IRS agents and all have said that same thing. They also all told me that the tax office, where my husband filed our taxes (H&R block) should have known not to even ask about the FBAR based on my circumstances and that they didn't know what they were talking about. Incidentally we got the smallest refund ever this year, due to not being eligible for the usual child tax credits, as my daughter is here with me and not in the US. So, even though she is a US citizen, she was not considered a resident as she is not physically there.

Thanks again for the advice.

JAJ

It sounds like you applied for an SB-1 Returning Resident visa (which must have been refused, if so), and/or filled out an I-407 form to formally abandon your permanent resident status. It would make sense that the Embassy would require this in order to process a new Immigrant Visa application.

Have you got a document from U.S. Citizenship & Immigration Services with a new Alien Number (A#)? I thought these numbers were fixed for life, like a Social Security Number is.



So you did cease to be a permanent resident at some point, however you say you filed a joint return which is something that only U.S. residents (for tax purposes) can do. Did you make an election to continue to be treated as U.S. tax resident? However, see page 3 of the following report from PWC, which suggests that this election to be treated as U.S. resident does not trigger an FBAR filing liability.
https://www.pwc.com/en_GX/gx/hr-mana...ort-filing.pdf

Which tax credit did you miss out on? As far as I know, you should still be able to take a personal exemption for a U.S. citizen child (who has a Social Security Number) even if that child is not physically in the United States.