FBAR Filing Deadline Again Extended for Certain Individuals

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Morgan Lewis

Certain individuals who have only signature authority over foreign financial accounts now have until April 15, 2022 to file the Report of Foreign Bank and Financial Accounts.

On December 9, 2020, the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) released Notice 2020-1, which states that certain persons who are obligated to file FinCEN Form 114: Report of Foreign Bank and Financial Accounts (FBAR) now have until April 15, 2022 to file the form.[1] This extended filing deadline applies to certain individuals who have signature authority over, but no financial interest in, one or more foreign financial accounts. The extension also applies to certain employees or officers of investment advisers registered with the US Securities and Exchange Commission (SEC) who have signature authority over, but no financial interest in, certain foreign financial accounts.

In Notice 2020-1, FinCEN references proposed rules issued on March 10, 2016, that would expand and clarify the exemptions for certain US persons with signature authority over foreign financial accounts, which exemptions were addressed in prior notices that extended deadlines for such individuals. This extension covers not only the reporting of signature authority held by such persons for 2020 but also the reporting deadlines previously extended under FinCEN Notices 2011-1, 2011-2, 2012-1, 2012-2, 2013-1, 2014-1, 2015-1, 2016-1, 2017-1, 2018-1, and 2019-1. The filing due date of April 15, 2021 (with respect to the 2020 calendar year) remains applicable to all others who are required to file FBARs.

Generally, FinCEN Notice 2020-1 further extends the FBAR filing deadline for the following employees and officers of certain “excepted entities” (as defined in the final regulations released by FinCEN on February 24, 2011[2]):

  • An employee or officer of an excepted entity who has signature or other authority over, but no financial interest in, a foreign financial account of a controlled person of the entity.
  • An employee or officer of a controlled person of an excepted entity who has signature or other authority over, but no financial interest in, a foreign financial account of the entity or another controlled person of the entity. For this purpose, a “controlled person” is a US or foreign entity that is more than 50% owned (directly or indirectly) by an excepted entity.

Notice 2020-1 also generally extends the filing deadline for employees or officers of investment advisers registered with the SEC who have signature or other authority over, but no financial interest in, foreign financial accounts of persons who are not investment companies registered under the Investment Company Act of 1940 (1940 Act). The exemption set forth in the final regulations covers only employees of “authorized service providers” with respect to accounts of mutual funds that are registered under the 1940 Act.[3]

As noted, the above-described employees or officers now have until April 15, 2022 to file FBARs. When adopted in final form, proposed regulations issued in March 2016 (discussed in our March 2016 LawFlash) will provide significant relief from the FBAR filing requirement to a broader group of individuals than those eligible for the extension under Notice 2020-1.

Our Ultimate FBAR Due Date Chart has been updated to reflect these extended deadlines.

 

[1] The prior deadline for such persons was April 15, 2021, per Notice 2019-1, which is consistent with the federal income tax due date. Pursuant to P.L. 114-41, FinCEN will grant filers failing to meet the FBAR annual due date of April 15 an automatic extension to October 15 of the same calendar year; specific requests for this extension are not required. For further details on the FBAR, see our previous LawFlashes: FinCEN and IRS Issue Guidance on FBAR Filing Requirements for Certain U.S. Persons (Feb. 26, 2010); FinCEN Issues Final FBAR Regulations for Certain U.S. Persons Holding Foreign Financial Accounts (Mar. 11, 2011); FinCEN Issues Extension for Certain FBAR Filers (June 3, 2011); Two More Extensions: IRS and FinCEN Issue Extensions for Certain FBAR Filers in IRS Notice 2011-54 and FinCEN Notice 2011-2 (June 20, 2011); FinCEN Issues Additional Extension for Certain FBAR Filers (Mar. 1, 2012); FinCEN Announces Third Extension for Certain FBAR Filers (Jan. 4, 2013); FinCEN Announces Extension for Certain FBAR Filers (Jan. 14, 2014); FinCEN Again Extends Deadline for Certain FBAR Filers (Jan 26, 2015); FinCEN Extends Filing Deadline for Certain FBAR Filers (June 22, 2016), FBAR Deadline Extended for Certain FBAR Filers (Dec. 20, 2016), FBAR Filing Deadline Further Extended (Jan. 10, 2018), FBAR Filing Deadline Deferred for Certain Individuals (Feb. 1, 2019), and FINCEN Again Extends FBAR Filing Deadline for Certain Individuals (Jan. 7, 2020).

[2] For further details, see our June 2011 LawFlash, FinCEN Issues Extension for Certain FBAR Filers.

[3] For further details, see our June 2011 LawFlash, Two More Extensions: IRS and FinCEN Issue Extensions for Certain FBAR Filers in IRS Notice 2011-54 and FinCEN Notice 2011-2.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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