What is Form 8938 and is it required for non-residents?

Dec 14, 2014

Until now, non-residents who didn’t meet the substantial presence test didn’t need to file form 8843. Or they used a closer connection exemption (form 8840) and didn’t have to file form 8938. The latter form is the FATCA version of the foreign asset reporting. People often see it as a duplicative version of the FBAR’s Fincen 114.

And speaking of those who were non-residents by taking a treaty positions (essentially, they had a closer connection with a foreign country (with an income tax treaty with the US), but were unable to use form 8840 because they spent more than 183 days in the US) had to file form 8938 with their US income tax return.

The final regulations referenced below, effective December 12, 2014, eliminates the need to file form 8938 for such individuals. Obviously, that is a good thing although it doesn’t cover their requirement to file other informational returns.

From https://www.federalregister.gov/articles/2014/12/12/2014-29125/reporting-of-specified-foreign-financial-assets :

(2) A dual resident taxpayer filing as a non-resident alien at the end of the taxable year. If a specified individual to whom this paragraph (e) applies computes his or her U.S. income tax liability as a non-resident alien on the last day of the taxable year and complies with the filing requirements of § 301.7701(b)-7(b) and (c) of this chapter and, in particular, such individual timely files with the Internal Revenue Service Form 1040NR, “U.S. Nonresident Alien Income Tax Return,” or Form 1040NR-EZ, “U.S. Income Tax Return for Certain Nonresident Aliens With No Dependents,” as applicable, and attaches thereto Form 8833.
It’s “Treaty-Based Return Position Disclosure Under Section 6114 or 7701(b),” such individual will not be required to report specified foreign financial assets on Form 8938 with respect to the portion of the taxable year covered by Form 1040NR (or Form 1040NR-EZ).
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