Banoonagh

Hello

So, filing my taxes for 2016.. I have figured out form 8938 and FBAR reporting requirements and now I'm having a quiet little panic about what I did for 2015 reporting.

I moved to the US on a K1 visa in August 2015. We were married in October 2015 and immediately applied for AOS. I didn't start working until February 2016, when I received my SSS and conditional green card. Our tax advisor filed our taxes for 2015 as "married filing jointly" but I didn't file form 8938 or FBAR as I wasn't a resident, wasn't earning income, and to be honest, had no idea I needed to do all this at that stage.

Now reading the instructions, this line for form 8938 is breaking me out in a sweat:
"•A nonresident alien who makes an election to be treated as resident alien for purposes of filing a joint income tax return "

The FBAR looks to be ok, as I was a non resident alien for 2015, but I'm concerned about form 8938. Not sure if this is the right place to post, but thank you in advance!!

Jerseygirl

I have moved your threads into the General US forum. Please note the BE Immigratiom forums are for those inquiring about visas and citizenship. Thank you.

tom169

You can't MFJ and be a non-resident alien at the same time. So that brings up a larger issue... is your entire 2015 return wrong? And by being a resident alien you should have filed FBAR if required...

theOAP

Semantics, but yes you can be a non-resident alien and file an MFJ return given the right circumstances. The OP is unclear as to the status of the spouse, but if that spouse is a resident alien or a US citizen, MFJ is allowed albeit with sever obligations for reporting income and assets for the entire tax year (no matter where the income or assets are located) and future filing requirements. They were married as of Dec. 31.

But, I believe the point is, for FBAR, tom169 is correct. You can't claim MFJ for 1040 filing and non-resident status for FBAR. Becoming a US Person (MFJ) means adhering to all US reporting requirements.

See Publication 54, page 6.

How excessive above the threshold are the non-reported FBAR and/or 8938 amounts?

EDIT TO ADD:

The OP is indicating a professional tax advisor prepared the 2015 US return. If so, a questionnaire/ interview should have taken place to determine the existence of 'foreign assets' for form 8938, and for this case, all foreign assets held during all of 2015 by either taxpayer. If such a question was raised, and the foreign assets were not disclosed, the onus lies on the OP. If the question of foreign assets was not raised, then the onus is on the tax preparer, although the OP signed the 1040 return and is therefore responsible for its contents (with recourse to the tax preparer).

The threshold for reporting (form 8938) for MFJ (if resident in the US for tax purposes) is $100,000.

Cook_County

You say that both of you elected jointly to be US persons. What Section of the Code did you both sign? Section 6013(g) or 6013(h)? Did you report your worldwide income for the whole of 2015?

tom169

Correct, but as the statement to be treated as a resident alien is processed first, then the MFJ 1040 is referring to 2 resident aliens. Without a statement a non-resident alien cannot partake in a MFJ 1040.

I did it for the previous tax year and I just hope that the OP, like myself, realized they needed to include all foreign income in it - unlike someone doing a dual status return.

Moonsquirrel

Ok, so the plot thickens.

For confirmation, my husband is an American citizen, and took care of the filing that year. He neglected to tick the correct box, indicating we had accounts abroad (which has been the source of much marital discourse over the past week, so let's not dwell on the mistake )

When letting our tax preparer know of the mistake, and asking to prepare revised filings for 2015, our tax preparer laughed, and said we could, but we shouldn't worry so much as the IRS has bigger fish to fry, and that we didn't need to. It would be great to hear if anyone has made a similar mistake and it "hasn't been a problem". I'm not sure if we should refile or not - I'd love to avoid the fees and faff associated with this, but then don't want to get in trouble either!

Cook_County

What Statute is the preparer relying on? If it is FATCA; this would be disaster for you because the statute of limitations would never expire. I'd seek alternative professional advice quickly.

Moonsquirrel

Thanks for the advice - I don't feel so good with what he's telling us.

What do you mean by statute of limitations never expiring? I'm just a produce buyer so tax terms blow my mind a little.

Our advisor just explained that as we'd have tax credits, we probably won't owe anything, but I'm also aware it's as much about disclosure as what you pay. He's an advisor used by my husbands company, as my husband was working in the U.K. for part of 2015, so he deals specifically in expat taxes, so you'd think his info would be pretty sound?