If the extended FBAR date has passed and you have not filed, the answer is to file now. The report goes through FinCEN's BSA E-Filing System in the usual way, with a reason for the delay, and nothing has to be sent to the IRS first. The report is late, but it can still be filed, and waiting adds nothing in your favour. Our guide to FBAR and FATCA for UK residents covers the report itself.
This post is for US citizens and green card holders in Britain who realised after the extended date that an FBAR was due, or who missed one that was filed too late to count as timely. It sets out the dates, what a late filing looks like, what is known about penalties, how to write the reason for lateness, and when the streamlined procedures fit better than a standalone late report.
When was the FBAR due and does the extension still apply
The FBAR for a calendar year is due on 15 April, extended automatically to 15 October. The extension needs no request, so there is no later date to ask for. Once 15 October has gone, the report for that year is late, and the filer is in the position this post describes.
The FinCEN page on reporting foreign accounts (opens the official FinCEN page in a new tab) gives the same dates. The extension is automatic for every filer, wherever they live. It comes from FinCEN, not from the tax return, which is why it works differently from the tax-side rules. Where the due date falls on a weekend or a legal holiday, the filing moves to the next business day, so check the calendar before concluding that you were a day late.
People abroad often mix this up with the tax return. A filer living abroad has an automatic extension to 15 June for Form 1040 and can extend further with Form 4868 (opens the official IRS page in a new tab). Neither moves the FBAR. The two filings go to different agencies, and the return being on time says nothing about the report. A return filed on time with an FBAR missing is the usual pattern in the cases we see.
Can you still file an FBAR after the extended date
Yes. FinCEN's system accepts a report for a past year, and the form asks the filer to say why it is late. There is no separate late form and no application to make. You complete FinCEN Form 114 for the calendar year concerned, select a reason for the delay from the list on the form, and use the text box to explain it.
A late report is a first report for a year in which nothing was filed. That separates it from an amendment, which corrects a report already on record, as our post on correcting a mistake on an FBAR you already filed explains. The two use the same system but answer different problems.
FinCEN receives the report, and the IRS has the authority to examine compliance and assess civil penalties on FinCEN's behalf. The IRS page on the FBAR (opens the official IRS page in a new tab) is the place to read how the IRS describes that role. The report is not attached to Form 1040, which is why a missing one does not show up in the tax software.
- File one report for each calendar year that was missed
- List every account that was reportable in that year, with its highest balance converted to dollars
- Use the account details and statements for the year in question, not the current year
- Keep the confirmation FinCEN issues, with a copy of what you filed
What happens to someone who files an FBAR late
It depends on the facts. The IRS says that filing late, or not at all, is a violation that can lead to penalties, that whether any is asserted depends on the circumstances, and that a filer who has not been contacted should file as soon as possible. For years the IRS also published a procedure saying no penalty would be imposed in a narrow set of cases. The IRS no longer publishes that assurance.
The law has not changed. The statute provides that no penalty is imposed for a non-wilful violation that was due to reasonable cause, where the account balance was properly reported. The Internal Revenue Manual on the FBAR (opens the official IRS page in a new tab) tells examiners the same: a penalty is not asserted for an account where the failure was not wilful, there was reasonable cause, and the account was properly reported on the delinquent report.
A non-wilful violation without reasonable cause can still attract a civil penalty, and the Supreme Court held in Bittner v. United States that the non-wilful penalty applies per report and not per account. We do not quote penalty amounts, which are adjusted over time. Wilful failures, which include recklessness and deliberate avoidance of the facts, are treated far more seriously. Our post on wilful and non-wilful FBAR penalties after Bittner goes through the difference.
How do you explain why the FBAR was late
With facts that you can support. The form offers a list of reasons and a text box. The reason you pick and the words you write should say what you knew, when you learned that an FBAR was required, and what you did next. A sentence that says only that you were unaware, or acted in good faith, is a conclusion and gives a reader nothing to test.
Reasonable cause is judged by what a person of ordinary care and prudence would have done in your position. Reliance on a competent adviser who had the full picture can support it. A lifetime spent outside the United States, or a recent discovery of US citizenship, belongs in the account where it is true. It is a defence you have to show, and no explanation is certain to be accepted.
The statement must also agree with everything else on file. Schedule B of Form 1040 asks about foreign accounts, so if earlier returns answered it wrongly, the explanation has to deal with that openly. If it says the income from the accounts was always reported, the returns must show it. We keep a longer file note behind the short box, with the documents behind each point.
- Where you lived and for how long you had been outside the United States
- When and how you first learned an FBAR was required
- Who prepared your US returns and whether anyone asked about foreign accounts
- Whether income from each account was reported on the returns for the years concerned
- What you did once you learned, and how quickly
How does a late FBAR fit with the streamlined procedures
A standalone late FBAR deals only with the report. If the income from the accounts is missing from your US returns, or you filed no returns, the report on its own leaves the tax unresolved, and the streamlined filing compliance procedures are usually the better route.
The streamlined filing compliance procedures (opens the official IRS page in a new tab) call for three years of returns, six years of FBARs, payment of tax and interest, and a signed certification that the failures were non-wilful. The Foreign Offshore route (opens the official IRS page in a new tab) is for filers who meet the non-residence test, and it carries no miscellaneous offshore penalty. The Domestic Offshore route (opens the official IRS page in a new tab) charges 5%. Neither route is open once the IRS has begun an examination.
Consider a US citizen employed in Manchester who has filed a full return every year and reported her salary, but never the interest on a cash ISA, and who has never filed an FBAR. Her returns are wrong as well as her reports, so filing late FBARs alone would draw attention to the gap without closing it. She would look at the Foreign route. Had the interest been on her returns all along, standalone late reports would be the narrower answer. Our post on late FBARs after the IRS withdrew its procedure compares the two in more detail.
Where conduct may have been wilful, neither of these is the first step. The IRS Criminal Investigation voluntary disclosure practice (opens the official IRS page in a new tab) is a different programme with different consequences, and the case should go to a US tax attorney before anything is filed, because a late report is evidence and cannot be taken back.
What should you do this week
Work out which years are missing and what is wrong beyond the report. Then file the reports for the right route, in one go and accurately. The sequence matters more than the speed of any one step, because the returns, the FBARs and any Form 8938 should agree with each other.
Start with a list of every account you held in each year, including closed accounts, joint accounts with a non-US spouse and accounts you could sign on. Compare the years to the threshold of $10,000 in aggregate, which is a test across all accounts together and not account by account. Then check the returns for the same years: did they report the account income, and did the answer on Schedule B match?
We prepare late reports and streamlined submissions as part of our foreign income and FBAR reporting service, and we sort a case into the right route before filing. The IRS streamlined filing service handles cases with missing returns, and our tax controversy service covers cases where the IRS has already been in touch. The form itself is described on our FinCEN Form 114 page, and the wider picture is in our guide to FBAR and FATCA for UK residents.
General information, not advice. The right answer depends on your circumstances and the tax year concerned.
