Form 8938 — Statement of Specified Foreign Financial Assets (FATCA): Filing Thresholds by Residency Status, What Must Be Reported, Overlap with FBAR, and the $10,000 Per-Violation Penalty in 2026
Form 8938 is required under IRC §6038D (the FATCA reporting provision) for U.S. taxpayers who hold specified foreign financial assets above the applicable threshold. The form is attached to the individual income tax return (Form 1040) and is separate from the FBAR (FinCEN Form 114), which is filed separately with the Financial Crimes Enforcement Network. Many practitioners confuse the two forms or assume that filing one satisfies the other — it does not. Both forms may be required for the same assets, and the penalties for non-compliance are severe: $10,000 per violation for Form 8938 (up to $50,000 for continued failure after IRS notice) and $10,000–$100,000 per violation for willful FBAR non-compliance. This guide covers the Form 8938 filing thresholds by residency status, what constitutes a specified foreign financial asset, the overlap and differences between Form 8938 and FBAR, and the penalty and correction procedures.
$50,000
Form 8938 filing threshold for unmarried U.S. residents — the threshold is $50,000 on the last day of the year or $75,000 at any point during the year; higher thresholds apply for married filers and U.S. citizens living abroad
$10,000
Minimum penalty per Form 8938 violation — the IRS can assess $10,000 for each failure to disclose, plus an additional $10,000 for each 30-day period of continued failure after IRS notice (up to $50,000 maximum per violation)
FBAR
FinCEN Form 114 — a separate filing required for foreign financial accounts exceeding $10,000 at any point during the year; the FBAR is filed with FinCEN (not the IRS), has different thresholds, and covers a different (but overlapping) set of assets than Form 8938
6 Years
Extended statute of limitations for Form 8938 non-filers — if a taxpayer omits more than $5,000 of income attributable to a foreign financial asset that should have been reported on Form 8938, the IRS has 6 years (instead of 3) to assess tax on the entire return
Form 8938 Filing Thresholds by Residency Status
| Filer Category | Year-End Balance Threshold | Intra-Year High Threshold |
|---|---|---|
| Unmarried U.S. resident | $50,000 | $75,000 |
| Married filing jointly, U.S. resident | $100,000 | $150,000 |
| Married filing separately, U.S. resident | $50,000 | $75,000 |
| Unmarried U.S. citizen living abroad | $200,000 | $300,000 |
| Married filing jointly, living abroad | $400,000 | $600,000 |
Source: IRC §6038D(a); Treas. Reg. §1.6038D-2. "Living abroad" means the taxpayer's tax home is in a foreign country and the taxpayer satisfies either the bona fide residence test or the physical presence test under IRC §911.
Frequently Asked Questions — Form 8938
My client filed the FBAR for their foreign accounts. Do they still need to file Form 8938?
Yes — the FBAR and Form 8938 are separate requirements with different thresholds, different filing locations, and different asset coverage. The FBAR (FinCEN Form 114) is filed with the Financial Crimes Enforcement Network by April 15 (with automatic extension to October 15) and covers foreign financial accounts with an aggregate balance exceeding $10,000 at any point during the year. Form 8938 is filed with the IRS as an attachment to Form 1040 and covers specified foreign financial assets above the higher thresholds described above. Many assets that require FBAR reporting also require Form 8938 reporting — but Form 8938 also covers assets that are not "accounts" (such as foreign stock held directly, foreign partnership interests, and foreign trusts) that may not be covered by the FBAR. Filing one does not satisfy the other. Practitioners must analyze both requirements independently for each client with foreign assets.
Does a foreign pension plan need to be reported on Form 8938?
Yes — a foreign pension plan is generally a specified foreign financial asset for Form 8938 purposes. The value of the plan is included in the aggregate threshold calculation. However, the reporting of foreign pension plans is complex and depends on whether the plan is a "tax-favored foreign retirement trust" under Treas. Reg. §1.6038D-6. If the plan qualifies as a tax-favored foreign retirement trust, the taxpayer may be able to elect to exclude it from Form 8938 reporting. Additionally, some foreign pension plans may be subject to separate reporting requirements under Form 3520 (foreign trust) or Form 8621 (PFIC). Practitioners with clients who have foreign pension plans (common for clients who worked abroad or are dual citizens) should carefully analyze the applicable reporting requirements for each plan type. The intersection of Form 8938, Form 3520, and Form 8621 is one of the most complex areas of international tax compliance.
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Foreign Assets Require Two Separate Filings — Don't Confuse the FBAR with Form 8938
A qualified tax professional can identify all foreign reporting requirements, calculate the correct thresholds, and ensure both Form 8938 and the FBAR are filed correctly and on time.
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