Electronic Filing for FBAR Forms – MANDATORY Beginning July 1, 2013
On June 29, 2011, FinCEN announced that all FinCEN forms must be filed electronically with certain exceptions. The FBAR was granted a general exemption from mandatory electronic filing through June 30, 2013. E-filing is a quick and secure way for individuals to file FBARs. Filers will receive an acknowledgement of each submission. For more information about FBAR e-filing, read the FinCEN news release.Interestingly, the FinCEN news release linked to says nothing about electronic FBAR filings being mandatory. On the contrary, the news release is titled “FinCEN Offers Optional Electronic Filing for FBAR Forms.” Emphasis added. The FinCEN news release explicitly states that “Paper FBAR forms will still be accepted until further notice is given by FinCEN.”
In addition, the instructions to the FBAR have no reference to electronic filing. The instructions provide two mailing addresses and also indicate that the FBAR may be hand delivered to any local office of the Internal Revenue Service or to the Internal Revenue Service’s tax attaches located in United States embassies and consulates for forwarding to the Department of the Treasury, Detroit, MI. No mention is made of electronic filing.
Additional investigation, however, supports the I.R.S.’s website that FBAR filings will be mandatory after June 30, 2013. FinCEN’s “Mandatory E-Filing FAQs” website indicates that “[w]ith limited exceptions, E-Filing is mandatory effective July 1, 2012” and that “FinCEN granted a general exemption for mandatory E-Filing for the FBAR until June 30, 2013.”
Thus, it would appear that electronic filing of the FBAR will be mandatory in less than three weeks. In fact, FinCEN states that it may impose a $500 penalty for failing to comply with its regulations if a form is required to be electronically filed but is filed on paper.
Although FinCEN states that it is working to allow tax preparation software to create and file an FBAR, this capability is not yet in existence. Consequently, after June 30, 2013, tax preparers will be unable to assist their clients in the preparation of FBARs. Clients will need to prepare and submit the FBARs on their own computers.
Many individuals file late FBARs. However, unless FinCEN provides an additional extension to exempt mandatory E-Filing of the FBAR, I wouldn’t be surprised if the number of late FBARs drops off precipitously after June 30, 2013. The combined $500 penalty for paper filing and the inability for tax advisors to assist in the preparation of the FBAR is likely sufficient to significantly impede the flow of FBARs being filed with FinCEN.
And, of course, as the I.R.S. likes to highlight, the FBAR must be received by the Department of the Treasury in Detroit, MI, on or before June 30th. An FBAR that is mailed on June 30th but that is received by FinCEN after June 30th is a late FBAR.