FATCA and US Tax Compliance: Have You Received a Letter or Email From Your Foreign Bank About the Foreign Account Tax Compliance Act?

A ‘FATCA letter’ is a letter or other communication from your foreign bank requesting you clarify certain information about your potential US tax status (and typically requesting you complete either a W-9 or W-8BEN form, or provide information on the bank’s own questionnaire providing essentially the same information as those two Forms).  The letter usually also offers an incomplete discussion of the US’ Foreign Account Tax Compliance Act (FATCA) law which requires the bank to review its records for potential US depositors and obtain information from those who are identified as potentially US-connected.  Where a foreign bank identifies an account-holder as a US-connected individual, the bank will typically share your name, address, and other account details with the US authorities.

If you’ve received a letter from your foreign bank about FATCA compliance and you are in fact either ‘substantially present’ in the US (e.g. most US work visa holders), a US permanent resident or US citizen, you have already been identified as a likely US person and your name (and the fact of your ownership or relationship with a foreign financial account) will soon be revealed to the IRS.

If you were required to, but did not report this account to the IRS via (a) the Foreign Bank Account Report (‘FBAR,’ or more formally, FinCEN Form 114) and/or (b) the Form 8938, the time for action is now, and your goal should now be to make the appropriate IRS voluntary disclosure to come clean and resolve your FATCA foreign account problem.

Call (415) 745-1924 to receive a free, thorough and completely confidential consultation.  You will talk directly with FATCA attorney Andrew L. Jones to determine if you are eligible to resolve your noncompliance through the Streamlined Domestic Offshore Procedures, the Delinquent FBAR Submission Procedures and/or the Delinquent International Information Return Submission Procedures.  Experience matters, and working with our firm, which limits its practice exclusively to IRS foreign asset voluntary disclosure cases, means no surprises and no learning on the job. 

We are available by phone nationwide or by appointment at your choice of 7 different offices in California and Washington. We answer your calls from 8 am to 8 pm Pacific, 7 days a week. After hours, please leave a message or visit our contact form and we will reply the next morning.

Your Foreign Account Tax Compliance Act letter is a clear signal that it is time to consult with an attorney experienced in voluntary disclosures to the IRS.  International tax attorney Andrew L. Jones can work with you to determine whether (as a result of your ownership of a foreign financial account) you have committed one or more common US reporting violations, which might include:

• Failure to report a foreign financial account via FinCEN Form 114 (‘Report of Foreign Bank and Financial Accounts,’ also known as the Foreign Bank Account Report or ‘FBAR’)
• Failure to file the Form 926 (‘Return by a U.S. Transferor of Property to a Foreign Corporation’)
• Failure to file the Form 3520 (‘Annual Return To Report Transactions With Foreign Trusts and Receipt of Certain Foreign Gifts and Inheritances’)
• Failure to file the Form 3520-A (‘Annual Information Return of Foreign Trust With a U.S. Owner’)
• Failure to file the Form 5471 (‘Information Return of U.S. Persons With Respect To Certain Foreign Corporations’)
• Failure to file the Form 8621 (‘Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund’)
• Failure to file the Form 8865 (‘Return of U.S. Persons With Respect to Certain Foreign Partnerships’)
• Failure to file the Form 8938 (‘Statement of Specified Foreign Financial Assets’)
• Failure to report on your income tax return (Form 1040) the income from one or more foreign financial accounts or assets

Your FATCA tax attorney will also outline for you the options for making a voluntary disclosure of your foreign asset informational and tax noncompliance.  Your options will include the Streamlined Domestic Offshore Procedures, the Streamlined Foreign Offshore Procedures, the Delinquent International Information Return Submission Procedures, the Delinquent FBAR Procedures, and in rare instances, the IRS’ Voluntary Disclosure Practice.

FATCA Tax Requirements

In short summary, if you are a US person who has a beneficial interest in a foreign financial account, you must do at least two things:

• Report this account via the FBAR (FinCEN Form 114, Report of Foreign Bank and Financial Accounts and via the Form 8938 (Statement of Specified Foreign Financial Assets), if this account and all your other foreign financial accounts/assets cumulatively exceed the respective FBAR or Form 8938 thresholds. 
• Report as income the earnings of that account on your personal US income tax.  (Note that it is possible, although unusual, to have legal title over a foreign financial account yet not have beneficial interest in this account; in such a situation, the US person would have an obligation to file an FBAR, yet potentially not report that income on the taxpayer’s US income tax return; such a situation would be best analyzed by an international tax attorney).

Millions of US persons (US citizens, US permanent residents and individuals ‘substantially present’ in the US, e.g. most US work visa holders) with foreign accounts have concluded – logically but incorrectly – that if the principal funds in their foreign account did not ‘source’ from the US (meaning, were not earned from labor or investments inside the territorial borders of the US), the foreign account’s earnings cannot be reportable and taxable on their US income tax return.  While seemingly logical – surely where funds in an account came from ‘matters’ in determining whether the account’s earnings are US-taxable – this factor is actually irrelevant for purposes of US tax and does not render a foreign account’s earnings exempt from US taxation.

Similarly, many US persons with foreign accounts concluded that since their account is physically located outside the borders of the US, their foreign account’s earnings could not be subject to US tax.  While seemingly logical – how could the US’ taxation power extend beyond its territorial borders? – this factor too it is irrelevant and does not render a foreign account’s earnings non-US-taxable.

Finally, many US persons with foreign accounts concluded that since the earnings of their foreign account have been reported on another country’s tax return and since they (often) paid tax on those earnings to the other country, these foreign account earnings could not also be reportable or taxable on their US return.  While seemingly logical – surely paying tax to two different countries on the same amount of earnings would constitute unjust and impermissible ‘double taxation’ – this factor is also irrelevant and does not render a foreign account’s earnings exempt from US taxation.

For these and other US persons in a wide variety of related situations, the FATCA letter is a wake-up call to the reality that their foreign account was, is, and always will be both reportable (in terms of informational forms like the FBAR, the Form 8938 and others) and taxable (if the account produces income, as determined by US tax laws (not the tax laws of the country where the asset is located).

If you are discovering your error for the first time as the result of receiving a FATCA compliance letter from your foreign bank, there is still time to act – not much time, but time enough to put together a plan that protects your assets and your personal freedom.

The IRS voluntary disclosure programs reward proactivity.  Don’t wait for the IRS to find you; coming forward before you are contacted by the IRS allows you to manage the timeline and consequences of your prior errors.

Call (415) 745-1924 to speak immediately with experienced foreign account disclosure tax attorney Andrew L. Jones. 

FATCA Reporting and FATCA Requirements

FATCA – the Foreign Account Tax Compliance Act – is a US law that has made virtually all of the world’s financial institutions (such as foreign banks) a reporting and enforcement agent of the IRS.

FATCA has forced tens of thousands of foreign financial institutions (in over one hundred cooperating countries) to review their existing and new clients records.  If the bank’s records for an account-holder contain indications of US status (‘US indices’), the bank will contact this individual – typically via a mailed letter or a digital equivalent through the bank’s client portal (and less often, text messages or the like).  

This contact – what we call a ‘FATCA letter,’ will typically inquire about the account-holder’s US tax and residence status and usually provide a Form W-9 or a Form W-8BEN, one of which the bank requests be completed and signed under penalty of perjury.  Less frequently, and sometimes additionally, the bank will instead include its own self-created form by which the account holder provides essentially the same information as those two official US tax Forms.

If you have received a FATCA letter, it means that under the FATCA laws and regulations, your bank has detected “US indices” on your account which identify you as a likely US account-holder.

In turn, if you are a US person (again, a US citizen, permanent resident or ‘substantially present’ in the US, with the most typical example being US work visa holders) and have failed to report your foreign accounts on the Foreign Bank Account Report (FBAR, FinCEN Form 114), and/or failed to file the Form 8938 (or, less commonly, failed to file Forms 926, 3520, 3520-A, 5471, 8621 or 8865), or failed to report your income from these foreign accounts on your US tax return, then you have likely violated US law.

Thankfully, you have a limited amount of time remaining to act to resolve your violations of the US tax law.  Experienced IRS voluntary disclosure attorney Andrew L. Jones can assist in understanding your exposure and resolving it through the appropriate IRS program, either:

• Streamlined Domestic Offshore Procedures for those taxpayers whose noncompliance was negligent but not willful, or,
• Streamlined Foreign Offshore Procedures, a zero-penalty version of the program above but only available to individuals who were outside the borders of the US at least 330 days in one or more of the last three completed (post-deadline) tax years, or,
• Delinquent FBAR Submission Procedures for those taxpayers whose failure to file the Report of Foreign Bank and Financial Accounts (the ‘FBAR,’ formally titled FinCEN Form 114) is excused on the grounds of reasonable cause, or,
• Delinquent International Information Return Submission Procedures for those taxpayers whose failure to file Forms 3520, 3520-A, 5471, 8621, 8865 or 8938 is excused on the grounds of reasonable cause 

FATCA Compliance Letter

A FATCA letter (from the foreign bank or other financial institution at which you have an account or other registered non-ownership relationship with an account) will usually begin with a summary of why the foreign bank is writing you.  This communication will often contain a clumsy or difficult-to-understand summary of the US’ FATCA legislation and, to varying degrees of specificity and accuracy, an explanation of the ‘due diligence’ that the bank must undertake about your identity and possible connections to the US.

The letter will then turn to the bank’s actual goals: requiring you clarify your US tax status by either:

– Supplying a completed and signed Form W-9 conceding you are a US taxpayer (or doing the same via a bank-created document equivalent to a Form W-9), or,
– Supplying a completed and signed Form W-8BEN, which declares you are not a US taxpayer (or doing the same via a bank-created document equivalent to a Form W-8BEN).

The bank will sometimes warn in this initial letter (and more typically in follow-up correspondence) that if you fail to reply to this inquiry, the account will be closed (although note that the funds are not seized by the bank, much less remitted to the US authorities; the bank simply closes the account and provides you a monetary instrument, such as a cashier’s check equal to the value of the now-closed account).  

Do not be tempted to ignore the letter, or to commit a federal crime by falsely telling the bank that you are not a US resident and/or taxpayer if you in fact are a US person.

The FATCA letter means that you have a narrow window of time to take protective action; call international tax attorney Andrew L. Jones now at (415) 745-1924 to learn your options for responding to this letter.

FATCA Forces Foreign Banks to Provide Your Information to the IRS 

US taxpayers who received a FATCA compliance letter must understand that the banks are following the FATCA agreement between the US and the relevant country in which the bank is located or does business.  Whether you respond to the inquiry with a Form W-9 or stay silent, your information on record with the bank will be exchanged with the US authorities. 

At this point, the bank has no interest in protecting you – its only goal is protecting itself. Their FATCA compliance letter, asking you to provide private, US-tax-related information, proves that.

The bank is looking out for itself – that means it’s time to protect yourself from your foreign bank.

FATCA Tax Attorney Andrew L. Jones Can Help You Understand Your Foreign Bank’s FATCA Letter and Your US Tax Obligations

The truth is that you shouldn’t spend a significant amount of time trying to understand your FATCA letter.  Your bank’s explanation of FATCA regulations or the impact of their FATCA letter on your US tax reporting obligations is difficult to understand, if not impossible.

One call to (415) 745-1924 for a free consultation with IRS voluntary disclosure attorney Andrew L. Jones can help you understand what this FATCA letter means, and more specifically, what it means for you personally.

FATCA Tax Attorney Andrew L. Jones – Experience

• He has guided hundreds of clients through the collective disclosure of over $300 million in previously-unreported foreign assets (statistics as of September 2024).  Andrew has advised clients with undisclosed or hidden foreign bank accounts and financial assets ranging in value from $150,000 to eight figures.
• Andrew earned his J.D. and LL.M. in Taxation, with distinction, from Loyola Law School, Los Angeles, and has since 2009 limited his work as a tax attorney solely to international taxation and foreign account reporting controversies, compliance and planning.
• Not a single one of Andrew’s clients’ Streamlined Domestic Offshore Procedures or Streamlined Foreign Offshore Procedures filings have ever been challenged or rejected by the IRS.
• A substantial number of Andrew’s clients have successfully disclosed foreign asset noncompliance through the Delinquent International Information Return Submission Procedures and/or the Delinquent FBAR Submission Procedures.  Where fact-appropriate and acceptable in risk profile, Andrew has aggressively deployed reasonable cause arguments, winning zero-penalty results in virtually every instance.  This is a record of vigorous and effective advocacy which stands in sharp contrast to the risk-avoidant mindset of numerous other international asset disclosure attorneys whose solution for every instance of noncompliance – regardless of the facts – is to disclose via the Streamlined Procedures, leaving their innocent clients to pay an unnecessary penalty.
• Andrew will be your sole point of contact in your voluntary disclosure, from your first call and email to your last.  He responds personally to all your calls and messages, personally supervises the accounting phase (amendment of returns and/or FBARs) of your engagement and personally writes every word of your narrative statement (the Certification of Non-Willfulness for asset disclosures via the Streamlined Procedures, and the reasonable cause statement for asset disclosures via the Delinquent International Information Return Submission Procedures and the Delinquent FBAR Submission Procedures). 

Ask our competition: we think you’ll quickly learn that no other law firm offers this personal service commitment.

• Andrew has assisted taxpayers with undisclosed foreign accounts in countries around the globe, including (as examples) the United Kingdom, Switzerland, Germany, France, China, Malaysia, Philippines, Japan and dozens and dozens of other countries.  His clients have included those with large private wealth management accounts in Switzerland’s most notorious banks – banks that were or are under active US criminal investigation and banks that employed account managers indicted criminally by the US.  He has also worked with clients who owed tens or hundreds of thousands of dollars in unpaid US tax.
• Andrew’s clients have had a wide variety of additional factors complicating their offshore voluntary disclosures, including:
  • The spouse who opened the foreign account is now deceased.
  • Clients who received their accounts via a foreign inheritance (an inheritance event which may also be reportable on the Form 3520 if sufficient in value)
  • Clients who survived the Holocaust or who have other personal or familial-origin reasons, not related to avoidance of US tax, for owning accounts in traditional tax, privacy or secrecy havens like Switzerland.
  • Clients who did not know of their obligation to report their accounts on the FBAR, or had a good-faith misunderstanding of the FBAR filing requirement and/or US taxation of foreign bank account earnings.
  • Elderly clients and their adult children/caretakers.
  • Clients with signature authority over (but no beneficial interest) in hidden foreign bank accounts or with interest in foreign corporations, trusts or partnerships that controlled undisclosed foreign bank accounts.
  • Clients who are US permanent residents (resident aliens) and are anticipating or are already in the process of acquiring US citizenship at time of discovering the issue of undisclosed foreign accounts.
  • Foreign account disclosure clients who are divorced, separated, and estranged from spouses.
  • Clients who at the same time as pressure or investigation by the US Department of Justice of their original custodial bank, moved their account to another bank in the same or another jurisdiction (and may have even done this multiple times)
  • Clients with unreported or misreported foreign retirement arrangements such as pensions, annuities and/or life insurance policies
  • Clients who were mis-advised by prior preparers and can only establish their reasons for substantial tax and/or informational noncompliance through documentation (and often, an affidavit from) that former preparer

Call IRS Voluntary Disclosure tax attorney Andrew L. Jones now at (415) 745-1924 for a free, fully confidential consultation to determine if you are eligible to solve your foreign account problems through the Streamlined Filing Compliance Procedures or the Delinquent International Information Return Submission Procedures!

Every foreign account or asset disclosure is unique and you will get personalized service directly with Andrew, with access evenings and weekends to meet your schedule.

Your foreign bank’s FATCA inquiry means that you are no longer invisible to the IRS and your foreign account cannot stay invisible. Call now – (415) 745-1924!

The 113 Countries Which Have Made FATCA Agreements Forcing Their Countries’ Banks to Disclose US Depositors’ Information to the IRS