Form 8938 (FATCA) vs FBAR: Which Do You File and When?
Form 8938 (FATCA) vs FBAR: Which Do You File and When?
If you have financial accounts or assets outside the United States, you may be required to report them to the federal government — potentially on two separate forms filed with two different agencies. Form 8938 (Statement of Specified Foreign Financial Assets) goes to the IRS under the Foreign Account Tax Compliance Act (FATCA). The FBAR (FinCEN Form 114) goes to the Financial Crimes Enforcement Network at the Treasury Department. The two forms overlap significantly, creating confusion about who files what and when. Getting this wrong carries some of the steepest penalties in the entire tax code.
Data Notice: Figures, rates, and statistics cited in this article are based on the most recent available data at time of writing and may reflect projections or prior-year figures. Always verify current numbers with official sources before making financial, medical, or educational decisions.
Why Two Separate Reports Exist
The FBAR has existed since 1970, created under the Bank Secrecy Act to combat money laundering. It requires disclosure of foreign bank accounts to the Treasury Department.
Form 8938 was created by the Foreign Account Tax Compliance Act (FATCA) in 2010, primarily to combat offshore tax evasion. It requires disclosure of foreign financial assets to the IRS.
Congress did not eliminate the FBAR when it created Form 8938. The result: if you have significant foreign assets, you may need to file both. The two reports go to different agencies, have different thresholds, cover slightly different assets, and carry different penalties.
Form 8938: FATCA Reporting to the IRS
Who Must File
U.S. citizens, resident aliens, and certain nonresident aliens who have an interest in specified foreign financial assets that exceed the reporting threshold.
Reporting Thresholds
The thresholds depend on your filing status and whether you live in the U.S. or abroad.
Living in the United States:
| Filing Status | Year-End Threshold | Any-Time-During-Year Threshold |
|---|---|---|
| Single / Married Filing Separately | $50,000 | $75,000 |
| Married Filing Jointly | $100,000 | $150,000 |
Living Abroad (qualifying under the FEIE tests):
| Filing Status | Year-End Threshold | Any-Time-During-Year Threshold |
|---|---|---|
| Single / Married Filing Separately | $200,000 | $300,000 |
| Married Filing Jointly | $400,000 | $600,000 |
You must file if the total value of your specified foreign financial assets exceeds either the year-end threshold or the any-time-during-year threshold.
What Must Be Reported
- Foreign bank accounts (checking, savings, time deposits)
- Foreign brokerage accounts
- Foreign mutual funds
- Foreign-issued life insurance or annuity contracts with cash value
- Foreign hedge funds or private equity funds
- Foreign stocks and securities held directly (not through a U.S. financial institution)
- Foreign partnership interests
- Foreign trust interests
- Financial instruments issued by a foreign person (notes, bonds, debentures)
What Is NOT Reported on Form 8938
- Foreign real estate held directly (not through an entity) — but if held through a foreign entity, the entity interest is reportable
- Foreign currency held as cash (not in a financial account)
- Precious metals held directly
- Art, antiques, and personal property
- Social Security-type programs in foreign countries
How to File
Form 8938 is attached to your annual Form 1040 and filed by the tax return deadline (including extensions). There is no standalone filing option — if you don’t file a tax return, you cannot file Form 8938 separately.
FBAR: Reporting to FinCEN
Who Must File
Any U.S. person (citizen, resident, entity) who has a financial interest in or signature authority over one or more foreign financial accounts if the aggregate value of all foreign financial accounts exceeds $10,000 at any time during the calendar year.
The $10,000 Threshold
This is an aggregate threshold. If you have three foreign accounts with maximum balances of $4,000, $3,500, and $3,000 during the year, the aggregate is $10,500 — and you must file the FBAR reporting all three accounts, not just the ones that pushed you over $10,000.
What Must Be Reported
- Foreign bank accounts (checking, savings, time deposits)
- Foreign securities accounts (brokerage)
- Foreign mutual funds
- Other foreign financial accounts (insurance policies with cash value, etc.)
- Accounts where you have signature authority (e.g., you are an authorized signer on a company’s foreign account) even if you have no financial interest
How to File
The FBAR is filed electronically through the BSA E-Filing System at bsaefiling.fincen.treas.gov. It is not filed with your tax return.
- Deadline: April 15, with an automatic extension to October 15 (no form needed for the extension)
- No filing fee
- No paper filing option — electronic only
Side-by-Side Comparison
| Feature | Form 8938 (FATCA) | FBAR (FinCEN 114) |
|---|---|---|
| Agency | IRS | FinCEN (Treasury) |
| Legal basis | FATCA (IRC §6038D) | Bank Secrecy Act (31 USC §5314) |
| Filed with | Tax return (Form 1040) | BSA E-Filing System (separate) |
| Threshold (U.S. resident, single) | $50,000 year-end / $75,000 any time | $10,000 aggregate any time |
| Threshold (abroad, single) | $200,000 year-end / $300,000 any time | $10,000 aggregate any time |
| Assets covered | Broad: accounts + securities + insurance + interests | Financial accounts only |
| Foreign real estate | Only if held through entity | No |
| Signature authority accounts | No | Yes |
| Deadline | Tax return deadline (with extensions) | April 15 (auto-extension to Oct 15) |
| Penalties (civil, non-willful) | $10,000 per year | Up to ~$16,117 per violation per year |
| Penalties (civil, willful) | $10,000 or greater of $100K/50% of account | Greater of ~$161,177 or 50% of account balance |
| Criminal penalties | Up to $250,000 and/or 5 years | Up to $250,000 and/or 5 years |
Do You Need to File Both?
In many cases, yes. The FBAR has a much lower threshold ($10,000 vs. $50,000+), so you may need to file the FBAR even if you fall below the Form 8938 threshold. Conversely, Form 8938 covers assets beyond just financial accounts, so you may need to file Form 8938 for foreign investments that are not FBAR-reportable.
Scenario Examples
| Situation | FBAR Required? | Form 8938 Required? |
|---|---|---|
| U.S. resident, $15,000 in foreign bank account | Yes | No (below $50K) |
| U.S. resident, $60,000 in foreign bank account | Yes | Yes |
| U.S. resident, $100,000 in foreign stocks held at U.S. brokerage (e.g., Schwab) | No (held at U.S. institution) | No (held at U.S. institution) |
| Expat, $150,000 in foreign bank accounts | Yes | No (below $200K abroad threshold) |
| Expat, $250,000 in foreign bank + investment accounts | Yes | Yes |
| U.S. resident, $80,000 interest in a foreign partnership (no account) | No (no financial account) | Yes |
Penalties: Why This Matters
The penalties for non-compliance with foreign asset reporting are among the most severe in tax law.
Non-Willful Violations
- Form 8938: $10,000 per year. If you don’t file within 90 days of an IRS notice, an additional $10,000 for each 30-day period (up to $50,000).
- FBAR: Up to ~$16,117 per violation (each unreported account is a separate violation). The IRS has discretion and may assert per-account penalties for each year of non-filing.
Willful Violations
- Form 8938: The greater of $100,000 or 50% of the unreported assets
- FBAR: The greater of ~$161,177 or 50% of the account balance at the time of the violation
Criminal Penalties
Both violations can carry criminal penalties of up to $250,000 in fines and 5 years imprisonment. These are reserved for cases involving intentional evasion.
Real-World Impact
The IRS has aggressively pursued FBAR penalties. Courts have upheld per-account, per-year penalties that can exceed the total value of the accounts. In United States v. Bittner (2023), the Supreme Court ruled that non-willful FBAR penalties apply per-report (not per-account), limiting non-willful penalties. However, willful penalties remain per-account.
Voluntary Disclosure and Amnesty Programs
If you have not been filing required FBARs or Forms 8938, options exist to come into compliance:
Streamlined Filing Compliance Procedures
Available to taxpayers who can certify that their failure to file was non-willful:
- Streamlined Domestic Offshore Procedures: File 3 years of amended returns and 6 years of FBARs. Pay a 5% miscellaneous offshore penalty on the highest aggregate balance.
- Streamlined Foreign Offshore Procedures: Same filing requirements, but no penalty if you live abroad and meet the non-residency requirement.
Delinquent FBAR Submission Procedures
If you have no unreported income (you just failed to file the FBAR), you can file late FBARs with a reasonable-cause statement. No penalties are typically assessed if the IRS has not already contacted you.
Delinquent International Information Return Submission Procedures
Similar to the FBAR procedure but for other international forms including Form 8938.
Important: These programs can be modified or eliminated at any time. If you are not in compliance, act sooner rather than later. Consult an attorney or tax professional experienced in international tax.
How to Value Foreign Assets
Form 8938
Use the year-end value and the highest value during the year. Convert foreign currency to U.S. dollars using the Treasury Department’s year-end exchange rate. For jointly owned accounts, each owner reports the full value.
FBAR
Use the maximum value of each account during the year. Convert using the Treasury Department’s exchange rate for the last day of the year. For jointly owned accounts, each owner reports the full value.
You can access your overall tax account information, including filed returns and notices, through your IRS online account.
Frequently Asked Questions
I have a foreign bank account with less than $10,000. Do I need to file anything?
If the aggregate value of all your foreign accounts stayed below $10,000 throughout the year, no FBAR is required. If you have no other foreign financial assets exceeding the Form 8938 thresholds, no Form 8938 is required either. However, you must still report any interest or income earned on the account on your Form 1040.
Does cryptocurrency held on a foreign exchange trigger these requirements?
The IRS and FinCEN have been working toward including foreign crypto exchanges in FBAR reporting. As of the current guidance, foreign crypto accounts may be FBAR-reportable. FinCEN has issued proposed regulations to this effect. For Form 8938, crypto held on a foreign exchange likely constitutes a specified foreign financial asset if it exceeds the threshold. Err on the side of reporting. See our cryptocurrency tax guide for more details.
My U.S. brokerage holds foreign stocks. Do I need to file?
No. If the foreign investments are held through a U.S. financial institution (Schwab, Fidelity, Vanguard), they are not reported on Form 8938 or the FBAR. The U.S. institution handles any required reporting. If you need to report capital gains from those sales, see our guide to reporting stock sales.
Can I file the FBAR late without penalty?
If you have reasonable cause for the late filing and no unreported income, you can use the delinquent FBAR submission procedures to file late with minimal risk of penalty. However, if the IRS has already contacted you about your foreign accounts, these procedures are not available.
I’m filing the FEIE on Form 2555. Do I also need Form 8938?
Potentially yes. The FEIE addresses income exclusion, while Form 8938 addresses asset reporting. They serve different purposes. If your foreign financial assets exceed the filing thresholds (which are higher for expats), you must file Form 8938 regardless of whether you claim the FEIE. Make sure you also check tax filing deadlines for all your obligations.
Key Takeaways
- Form 8938 (FATCA) and the FBAR are two separate reporting obligations filed with two different agencies
- You may need to file both — check the thresholds for each
- FBAR has a lower threshold ($10,000 aggregate) but covers only financial accounts
- Form 8938 has higher thresholds ($50K-$600K depending on status and location) but covers a broader range of assets
- Penalties for non-compliance are among the most severe in tax law — up to 50% of account balances for willful violations
- Voluntary disclosure programs exist for those who need to catch up — act before the IRS contacts you
- Filing one form does not satisfy the other — they are independent requirements
Tax information is for educational purposes only and does not constitute tax advice. Consult a licensed tax professional experienced in international tax for guidance specific to your situation.