Tax·Luxury

Part V · Compliance · No. 02

FATCA and Form 8938

FATCA imposes withholding obligations on foreign financial institutions that fail to report on U.S.-owned accounts and creates a parallel reporting obligation on U.S. persons under §6038D, filed on Form 8938. The United States does not participate in the OECD Common Reporting Standard; FATCA and its intergovernmental agreements serve as the U.S. counterpart.

What is reported

Form 8938 reports specified foreign financial assets under §6038D, including:

Tangible foreign assets — art held in a Geneva freeport, real estate in Tuscany, a Cayman-flagged yacht — are not Form 8938 reportable in their own right, but interests held through reportable foreign entities are.

Who must report

Specified individuals (U.S. citizens, resident aliens) and specified domestic entities (closely held domestic corporations and partnerships meeting passive-asset and passive-income tests).

Thresholds

TaxpayerYear-endMaximum during year
Individual, unmarried, U.S. resident$50,000$75,000
Individual, married filing jointly, U.S. resident$100,000$150,000
Individual, unmarried, foreign-resident U.S. citizen$200,000$300,000
Individual, married filing jointly, foreign-resident$400,000$600,000
Specified domestic entity$50,000$75,000

The form

Form 8938 attached to the annual income-tax return (Form 1040 or 1120 etc.). Due date follows the return.

Penalties

FATCA withholding (chapter 4)

The foreign-financial-institution withholding regime under §§1471-1474 imposes 30% withholding on certain U.S.-source payments to a foreign financial institution that has not entered into an agreement (or that does not comply with applicable IGA terms) to report on U.S.-person account holders. The system is implemented through bilateral Intergovernmental Agreements (Model 1 and Model 2 IGAs) between the United States and most major jurisdictions.

Relief procedures

Same streamlined and voluntary-disclosure procedures available as for FBAR. Form 8938 and FBAR are independent — a taxpayer may have only one filing obligation, or both, depending on what is held and where.

Recent guidance

The Form 8938 thresholds are fixed by regulation and are not indexed for inflation; they have not changed since the regime began. Information received from foreign financial institutions and partner jurisdictions under FATCA and its intergovernmental agreements is available to the IRS for matching against taxpayer filings.

Interaction with luxury-asset holdings

Primary Sources

  1. 26 U.S.C. §§1471-1474 (FATCA chapter 4).
  2. 26 U.S.C. §6038D (specified foreign financial asset reporting).
  3. 26 U.S.C. §6038D(d) (penalties).
  4. 26 U.S.C. §6662(j) (accuracy penalty).
  5. Treas. Reg. §1.6038D-1 through -8.
  6. IRS Form 8938 instructions — irs.gov/forms-pubs/about-form-8938.
  7. U.S. Treasury FATCA IGAs — home.treasury.gov.

Reviewed October 2026