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Covering entrepreneurship and business start up questions for non-residents and US citizens.


Sep 17 2009

A new age of “transparency” for non-residents: doing business in the US requires disclosing your foreign bank accounts

by John Gordon | 14:09 GMT

This is from the IRS website:

Q. A non resident alien who doesn’t meet the 183 day test is a partner in a US partnership where the US partnership deals with rentals; must he file an FBAR?
A. With the October 2008 revision to the FBAR form and instructions, FBARs are now required by nonresidents who are in, and doing business in, the United States. Whether a person is a nonresident alien for tax purposes has no bearing on the person’s FBAR reporting obligation. The domestic partnership may have to file FBARs if it has a financial interest in, or signature authority (or other authority that is comparable to signature authority), over a financial account that is located in a foreign country. Whether a person is considered to be in, and doing business in, the United States is determined based on an analysis of the facts and circumstances of each case. Generally, a nonresident is not considered to be in, and doing business in the United States for FBAR reporting purposes if he only holds a partnership interest in a domestic partnership.

OK, so what does this mean? The above case says that the non-resident, with just a partnership interest in a US partnership, doesn not have to disclose all his foreign (non-US) bank and financial accounts to the US Treasury; but, by extension: Suppose you are a Canadian corporation; you send salespeople on a regular basis to clients in Buffalo and Detroit. Somewhere between 2 trips a year and opening a full time office, a line gets crossed, and your Canadian bank accounts must be reported to the US Treasury Dept by the following June 30, or face steep fines AND IMPRISONMENT for the officers and directors of the company:

Q. What happens if an account holder is required to file an FBAR and fails to do so?

A. Failure to file an FBAR when required to do so may potentially result in civil penalties, criminal penalties, or both. If you learn you were required to file FBARs for earlier years, you should file the delinquent FBAR reports and attach a statement explaining why the reports are filed late. No penalty will be asserted if the IRS determines that the late filings were due to reasonable cause. Keep copies, for your record, of what you send.

What to do if you are in this situation?

Q. How do foreign account holders report their accounts to the IRS?

A. The holders report their foreign accounts by completing boxes 7a and 7b on Form 1040 Schedule B and completing Form TD F 90-22.1




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