Accidental American & U.S. Taxes, FBAR & FATCA

Accidental American & U.S. Taxes, FBAR & FATCA

How FATCA Impacts Accidental Americans 

Accidental Americans & FATCA: With the IRS taking an aggressive position on matters involving foreign accounts compliance and unreported foreign income, compliance is crucial to avoid offshore penalties. We will provide an introductory analysis to assist Accidental Americans & FATCA.

The Streamlined Foreign Offshore Procedures (SFOP) can help an Accidental American avoid penalties and get into tax compliance. In addition, the use of the Foreign Earned Income Exclusion and Foreign Tax Credit will assist with reducing, if not eliminating earned income and investment income tax liability

We have helped many clients both submit the SFOP and then subsequently expatriate.

And, for clients who fall within the parameters of the IRS Relief for Certain Former (and current) Citizens (and Residents), additional taxes may be forgiven.

Income Tax Requirements for Accidental Americans

An Accidental American is quite simply a foreign person who was unaware they were considered a U.S. person.

For example, Michelle grew up in Taiwan. Her mom is a U.S. Citizen, but the family is “Taiwanese” for all intent and purposes. Michelle never visits the U.S., nor has any family, friends, or employment/investment income in the U.S.

Then one day, by chance, she learns she is considered a U.S. person, because her mom was a U.S. citizen when Michelle was born (even though Michelle was born in Taiwan). She learns this when she applies for a passport to travel to the U.S. to look at graduate schools.

On the one hand, the visa process just became a whole lot simpler. Conversely, Michelle’s Tax situation just became much more complicated.

U.S. Tax for Accidental Americans

The U.S. utilizes a CBT (Citizen Based Taxation) model. Therefore, even if when an Accidental America resides outside of the United States, the U.S. still taxes U.S. persons on their worldwide income. This is the case, even if a U.S. Citizen or Legal Permanent Resident resides outside of the U.S. and all of the income is foreign sourced.

The U.S. Tax Code does include mechanisms to help reduce taxation.

*The two main methods are the Foreign Earned Income Exclusion (FEIE) and Foreign Tax Credit (FTC)

FATCA for Accidental Americans

FATCA is the Foreign Account Tax Compliance Act. The law requires more than 110 countries (and 300,000 Foreign Financial Institutions aka FFIs) to report U.S. account holder information to the IRS.

While the intended goal of the law is reduce offshore tax evasion, there are several other detriments that accompany this law:

  1. Foreign Financial Institutions refuse to open accounts for U.S. Persons
  2. Foreign Financial Institutions close or freeze accounts of U.S. Persons
  3. Accidental Americans have a higher likelihood of being outed by the IRS.

For individual and entity 1040 filers, they file an annual Form 8938 if they meet the threshold requirements for filing, and the failure to file may result in 8938 Form fines and penalties.

FBAR for Accidental Americans

Similar to FATCA reporting requirements, is the FBAR.

Technically, the FBAR is the Foreign Bank and Financial Account Reporting Form. It is also referred to as FinCEN Form 114. We have authored numerous articles on the FBAR.

When a U.S. person (even if they reside out of the U.S. or do not have a tax filing requirement) has more than $10,000 in annual aggregate total (not per account) combined in their foreign accounts, they are required to file an FBAR. It is filed electronically and (post-2016) is due to be filed at the same time a person’s tax return is due to be filed.

The failure to file the form may result in significant foreign account fines and penalties. These penalties range from a warning letter in lieu of penalty, all the way up to a 50% penalty on the annual maximum balance – up to a 100% penalty of the total value.

Accidental Americans Streamlined Procedures

When an Accidental American learns about their status and wants to get compliant, they may qualify for the Streamlined Foreign Offshore Procedures (SFOP). SFOP or “Expat Amnesty” results in a complete penalty waiver of the Title 26 Miscellaneous Offshore Penalty.

We Specialize in Streamlined & Offshore Voluntary Disclosure

Our firm specializes exclusively in international tax, and specifically IRS offshore disclosure

Contact our firm today for assistance with getting compliant.

Schedule a Confidential Reduced-Fee Initial Consultation with a Board-Certified Tax Attorney Specialist


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