What If I Forgot To File Form 8938 With My Returns?
Failure-To-File Penalty
If you are required to file Form 8938 but do not file a complete and correct Form 8938 by the due date (including extensions), you may be subject to a penalty of $10,000.
Continuing Failure To File
If you do not file a correct and complete Form 8938 within 90 days after the IRS mails you a notice of the failure to file, you may be subject to an additional penalty of $10,000 for each 30-day period (or part of a period) during which you continue to fail to file Form 8938 after the 90-day period has expired. The maximum additional penalty for a continuing failure to file Form 8938 is $50,000.
Presumption of Maximum Value
If the IRS determines that you have an interest in one or more specified foreign financial assets and asks you for information about the value of any asset, but you do not provide enough information for the IRS to determine the value of the asset, you are presumed to own specified foreign financial assets with a value of more than the reporting threshold that applies to you. See Determining the Total Value of Your Specified Foreign Financial Assets, earlier. In such case, you are subject to the failure-to-file penalties if you do not file Form 8938.
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DERREN JOSEPH:
And what happens if you didn't know about filing an 8938? Okay. So the 89 38 is above the threshold of the FBAR. So it depends on whether you're single or married or whatever, but if it is that you didn't report it and you were supposed to report it and your non-compliance was non-willful and non-willfulness has no definition in code. So we rely on case law and basic case law tells the US is like if there's an if you intentionally avoid a known legal duty, right? So, and we find it with our clients who have sophisticated structures to, you know, basically they knew what they were doing when they sort of void. But if it is that you genuinely did not know, Hey, oh my God, I need to do an 89 30. And I didn't know that I was supposed to do it to report my foreign investments in Portugal or France or wherever it is you are, then it's okay. There's something called a streamlined compliance procedure, which is an amnesty in orbit name. And it allows you to go back three years. So the last three years, which due date has already passed, and you make the changes through the return and you submit that now it's the United 38 is just a reporting requirement. It doesn't impact the tax liability. So it should not trigger any additional taxes. But the great thing about streamlining is like with any amnesty, you go forward to the IRS before the IRS comes in and taps and knocks on your door and they agreed to waive all penalties. So that's obviously a big news story, right? So what I suggest you do is reach out to your preferred tax team. If you don't have one, feel free to reach out to us and we'll be able to walk you through there, the streamlined compliance procedure. So in terms of how you find us because you can find us, my name is Derren Joseph industrial Polina, with both on LinkedIn. You can reach out to us on LinkedIn, or you can find me and I'm an HTJ.tax. So just go to HTJ.tax, super easy.
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