March 21, 2023

Volume XIII, Number 80


March 20, 2023

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FBAR Proposed Regulations Expand Both Filing Exemption and Reporting

The proposed rules provide welcome relief for employees and officers of many private investment funds, but expand reporting for holders of 25 or more accounts.

On March 1, the Financial Crimes Enforcement Network (FinCEN) issued proposed regulations that revise and clarify certain provisions in the rules regarding the filing of Reports of Foreign Bank and Financial Accounts (FBAR).


Among other things, the revisions would relieve certain employees from having to file an FBAR with respect to accounts owned by their employer or affiliate, and expand the amount of information to be provided by holders of more than 25 non-US financial accounts.

The proposed regulations would do the following:

  • Eliminate the requirement for officers and employees of entities to report on institutional accounts for which they have signature authority, but no financial interest, due solely to their employment, so long as their employer has an FBAR filing obligation with respect to such accounts

  • Require entities to maintain a list of all officers and employees with signature authority over those same accounts, and make the list available to FinCEN and law enforcement upon request

  • Remove the provisions that limit the information reported with respect to situations when a filer has 25 or more foreign financial accounts and instead require all US persons obligated to file an FBAR to report detailed account information on all foreign financial accounts for which they are required to file an FBAR

FinCEN has previously issued temporary notices of exemptions concerning those filers covered by the proposed regulations, and those temporary exemptions remain unaffected. The FBAR is a calendar year report ending December 31 of the reportable year. Please note: Beginning with the 2016 reporting year, the due date for the FBAR filing is April 15 of the following year (so that with respect to the 2016 calendar year, the due date for the FBAR filing is April 15, 2017). The due date for FBARs filed with respect to 2015 remains June 30, 2016.

Simplified, Expanded Exception for Employees with Only Signature Authority

Generally, any US person or entity that at any time during a calendar year had a financial interest in, or signature or other authority over, financial accounts located in a foreign country with an aggregate value in excess of $10,000 is required to file an FBAR.

Under final FBAR regulations issued in 2011, officers and employees of certain entities (“excepted entities”) are exempt from the FBAR filing obligation if they hold only signature authority but no financial interest in the accounts held by the entities.[1] It was not clear, however, how this exemption applied with respect to an officer or employee’s overlapping signature authority within a corporate or business structure (e.g., employees or officers of a large company’s treasury group that is either at the parent or subsidiary level that have signature authority over financial accounts of the entities within the corporate group). Uncertainty over how to implement the filing obligation for such persons with only signature authority over, but no financial interest in, financial accounts led to numerous deferrals of FBAR filing dates applicable to such persons.

Recognizing that the prior exemptions, as a practical matter, would potentially impose greater filing obligations than necessary,[2] the proposed regulations would simplify and expand the exception for employees with only signature authority over their employer’s accounts, where the employer or other entity in the employer’s corporate group is already required to file an FBAR to report its financial interest in such account. The new exemption also applies to “agents” and their employees that have no financial interest in the entity’s accounts and that are not otherwise holders of legal title or owners of record in the account. As a result, an entity’s service provider that has signature authority over the entity’s financial accounts may be covered under this exception.

Notably, the proposed regulations significantly expand the availability of this exception to cover officers, employees, and agents of all US entities—not just “excepted entities” as described in the current final regulations. In particular, this expansion would be a welcome reprieve for employees and officers of many private investment funds with offshore accounts, as the typical private equity or hedge fund is not considered an “excepted entity” under the current final FBAR regulations.

For those officers and employees that are eligible for this new exception, the employer that is required to file the FBAR with respect to the account due to its financial interest in the account must maintain a list of those persons with signature authority over the account for five years. That list would be made available to FinCEN upon request.

It is important to note that the proposed exemption does not cover an officer or employee with signature authority over an account where neither the employer nor any other entity in the employer’s group is required to report a financial interest in the non-US account. Thus, for example, a US employee of a non-US entity who has signature authority over that non-US entity’s accounts remains obligated to file the FBAR with respect to such account where the non-US entity is not included as a subsidiary of a US entity that files the FBAR for such accounts.

Expanded Reporting for 25 or More Non-US Financial Accounts

Under the current final regulations, where the filer has a financial interest or signature authority over 25 or more non-US financial accounts, the filer need only provide the number of accounts and certain other basic information on the report. However, such filers need not provide more detailed information regarding the accounts, such as value/balance, type of account, and identity of the financial institution where the account is held. Based upon an “information gap” identified by FinCEN with respect to situations where a filer has more than 25 non-US financial accounts, the proposed regulations now require full reporting of all the filer’s reportable non-US financial accounts, rather than the summary disclosure permitted under current final regulations.

Miscellaneous Changes

The proposed regulations contain other miscellaneous changes to the final regulations. Most notable among these changes is the change in due date for the FBAR. Up to and including the 2015 calendar year, the due date for the FBAR filing has been June 30 of the following year. Beginning with the 2016 reporting year, the due date for the FBAR filing is April 15 of the following year (so that with respect to the 2016 calendar year, the due date for the FBAR filing is April 15, 2017).

In addition, the proposed regulations now provide for the availability of extensions to October 15 of the reporting year, with such extensions available upon request. The exact procedures for requesting an extension are not yet clear. While the FBAR is electronically filed with FinCEN each year, the proposed regulations continue to state that persons remain obligated to file a similar return on Form 8938 with the IRS to report non-US accounts.

The proposed regulations described above will not take effect until and unless they are adopted in final form. In the interim, existing procedures for FBAR filings remain in effect. The US Department of the Treasury and FinCEN are currently seeking comments regarding these proposed regulations.

[1] “Excepted entities” include federally regulated banks, a financial institution registered with the US Securities and Exchange Commission (SEC) or US Commodity Futures Trading Commission (CFTC), an authorized service provider with signature authority over an account owned by an SEC-registered investment company, or an entity with securities listed on a US national securities exchange.

[2] The preamble to the proposed regulations notes that up to 100 employees may have signature authority over the same financial account, leading to the filing of 100 FBARs regarding the same financial account.

Copyright © 2023 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VI, Number 64

About this Author

Gabriel Quihuis, Morgan Lewis, tax attorney
Of Counsel

Gabriel A. Quihuis advises fund sponsors on tax matters relating to fund structuring and operations, and provides tax advice to institutional investors in connection with domestic and offshore private fund investments. Gabriel regularly advises clients on issues relating to the Foreign Account Tax Compliance Act (FATCA). Gabriel also assists clients on various corporate tax issues related to domestic and cross-border mergers, acquisitions, financings, and restructurings.

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Nathan Hochman, Morgan Lewis, tax attorney, criminal litigation, civil lawyer

Nathan J. Hochman, the former head of the US Department of Justice’s Tax Division, practices complex civil and criminal litigation, with a focus on white collar criminal defense, tax controversy, securities, and environmental matters. He represents individuals and organizations involved as targets, subjects, or witnesses in state and federal criminal investigations and related grand jury and pre-trial proceedings, conducts internal investigations, and handles complex civil litigation, arbitrations, trials, and appeals.

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Richard LaFalce, Tax lawyer, Morgan Lewis

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William Zimmerman, Morgan Lewis, Tax lawyer

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