June 9, 2009 - Phil Hodgen

Nonresidents Needn’t File Foreign Bank Account Forms (For Now)

It brings to mind Emily Litella.  “Never mind,” says the IRS.

The IRS just announced that — despite the changes to the FBAR instructions made effective January 1, 2009 — nonresidents do not have to file Form TD F 90-22.1.  Only citizens, U.S. residents, and domestic entities need to do so.

Announcement 2009-51

Temporary Suspension of FBAR filing Requirements for Persons who are not Citizens, Residents, or Domestic Entities

June 5, 2009

The Internal Revenue Service is temporarily suspending the reporting requirement with respect to foreign bank accounts (Form TD F 90.22-1 (Report of Foreign Bank and Financial Accounts) due on June 30, 2009, for those persons who are not citizens, residents, or domestic entities. The revised Form TD F 90.22-1 (October 2008) was issued with a change in the instructions to the definition of “United States person.” The IRS has received a number of questions and comments from the public concerning the new filing requirement that may require additional guidance.

To reduce the burden on the public with respect to FBARs due on June 30, 2009, all persons may rely on the definition of “United States person” found in the instructions for the prior version of the FBAR (the July 2000 version) to determine whether they have an obligation to file an FBAR. The definition of “United States person” from the prior version is as follows:

United States Person The term “United States person” means (1) a citizen or resident of the United States, (2) a domestic partnership, (3) a domestic corporation, or (4) a domestic estate or trust.

The definition of the term “United States person” from the instructions for the prior version of the FBAR form may be relied upon for purposes of determining who must file an FBAR. All other requirements of the current version of the FBAR form and instructions (revision October 2008) are still in effect. The current version of the form must be used when filing an FBAR.

The substitution of the definition of “United States person” from the instructions for the prior version of the FBAR applies only with respect to FBARs due on June 30, 2009. Additional guidance will be issued with respect to FBARs due in subsequent years.

The Service invites interested persons to submit comments regarding the revised FBAR form and instructions (revision October 2008). Please submit comments by August 31, 2009 to: Internal Revenue Service, CC:PA:LPD:PR (Announcement 2009-51), room 5203, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions also may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to: CC:PA:LPD:PR (Announcement 2009-51), Courier’s Desk, Internal Revenue Service, 1111 Constitution Avenue N.W., Washington, DC. Alternatively, taxpayers may submit electronic comments directly to the IRS e-mail address: (attention: Announcement 2009-51).

The principal author of this announcement is Adrienne Mikolashek of the Office of Associate Chief Counsel (Procedure and Administration). For further information regarding this announcement contact Adrienne Mikolashek at 202-622-4940 not a toll-free call).

What does this mean to you?

  • If you are a nonresident of the United States and you were concerned about getting caught up in this new requirement, you have a temporary reprieve.  You do not need to file Form TD F 90-22.1 at this time.
  • Don’t go to sleep.  The danger is not gone.  It will be back for calendar year 2009 and future years.  We just don’t know what the exact requirements will be.
  • Look at the way you have configured your U.S. investments and U.S. business operations.  Make changes now.  This is an unexpected window of opportunity to restructure your affairs.  Seize it.
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