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Form 8938 FATCA: Who Must File & Reporting Thresholds (2026)

Resident $50K/$100K • Abroad $200K/$400K • FBAR vs. 8938 • $10K/Year Penalty • SOL Tolled Until Filed
IRC §6038DTreas. Reg. §1.6038D-1IRC §6501(c)(8)
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Form 8938 (Statement of Specified Foreign Financial Assets) is required under IRC §6038D as part of the Foreign Account Tax Compliance Act (FATCA). It requires certain US persons to report specified foreign financial assets - foreign bank accounts, foreign securities, interests in foreign entities, and certain foreign contracts - when the aggregate value exceeds the applicable threshold. Form 8938 is filed with the federal income tax return and is separate from the FBAR (FinCEN 114). Both may be required for the same foreign accounts. Failure to file when required triggers a $10,000 penalty per year, rising to $50,000 after IRS notice, and extends the statute of limitations on the entire tax return indefinitely until the form is filed.

Filing Thresholds by Taxpayer Category

US residents (living in the US):

Single or MFS: File if aggregate value exceeds $50,000 on last day of tax year OR $75,000 at any point during the year.

MFJ: File if aggregate value exceeds $100,000 on last day OR $150,000 at any point.

Bona fide residents abroad:

Single or MFS: File if aggregate value exceeds $200,000 on last day OR $300,000 at any point.

MFJ: File if aggregate value exceeds $400,000 on last day OR $600,000 at any point.

What Are Specified Foreign Financial Assets

Specified foreign financial assets include: financial accounts maintained by foreign financial institutions (foreign bank accounts, foreign brokerage accounts, foreign pension accounts); and foreign financial assets not held in an account, including stock or securities issued by a foreign person, any interest in a foreign entity, and any financial instrument or contract with a foreign counterparty. Foreign real estate is NOT a specified foreign financial asset for Form 8938 purposes - but any foreign entity that holds the real estate would be reportable if the taxpayer has an interest in the entity.

FBAR vs. Form 8938 - both may be required: The FBAR (FinCEN 114) is filed separately with FinCEN and covers foreign financial accounts exceeding $10,000 in aggregate value at any time during the year. Form 8938 is filed with the IRS as part of the tax return and covers specified foreign financial assets exceeding the higher thresholds above. The two forms have different thresholds, different filing locations, different asset definitions, and different penalties. An account that triggers FBAR filing (over $10,000) may not trigger Form 8938 filing (below $50,000 for a US resident). Both forms should be reviewed independently each year.

Penalties for Non-Filing

The penalty for failure to disclose a specified foreign financial asset is $10,000 for each annual failure, with an additional penalty of $10,000 for each 30-day period (or fraction thereof) after 90 days from the date of IRS notice of failure to disclose - up to a maximum additional penalty of $50,000. Total maximum penalty per year per account: $60,000. Underpayments attributable to non-disclosed foreign financial assets are subject to a 40% penalty (rather than the standard 20% accuracy-related penalty). No penalty is imposed if the taxpayer can demonstrate reasonable cause.

Statute of Limitations Extension

Under IRC §6501(c)(8), if a taxpayer fails to file Form 8938 when required, the statute of limitations on the entire tax return remains open - for all items on the return, not just the foreign asset items - until three years after the Form 8938 is filed. This is one of the most severe consequences of non-filing: a single missing Form 8938 keeps the entire return open indefinitely, exposing all items on the return to potential IRS adjustment without any limitations defense.

Related Topics
FBAR CheckerFinCEN 114 - separate from Form 8938, lower $10K threshold FATCA GuideFull FATCA framework - FFI reporting and §6038D Streamlined ProceduresCatch up on unfiled Form 8938 - streamlined domestic or foreign Statute of Limitations§6501(c)(8) - non-filing tolls the entire return's statute International Tax HubAll international tax topics Form 3520Foreign trusts - also reportable on Form 8938 as specified foreign asset
Authority: IRC §6038D (information with respect to foreign financial assets - requirement to disclose specified foreign financial assets exceeding threshold; thresholds differ by filing status and residency; $10,000 base penalty for failure; additional $10,000 per 30-day period after notice up to $50,000; 40% accuracy penalty on underpayments attributable to undisclosed assets); Treas. Reg. §1.6038D-1 through §1.6038D-8 (FATCA regulations - definition of specified foreign financial asset; financial account vs. non-account assets; foreign real estate excluded; interests in foreign entities included; valuation rules; reporting on Form 8938 with annual tax return); IRC §6501(c)(8) (statute of limitations tolled for non-filers of §6038D - entire return remains open until 3 years after Form 8938 is filed; applies to all items not just foreign asset items); IRC §6662(j) (40% accuracy penalty for underpayments attributable to undisclosed foreign financial assets - in addition to $10,000 base penalty); Treas. Reg. §1.6038D-2 (specified persons required to file - US citizens, US residents, non-resident aliens who elect to be taxed as residents; certain domestic entities); IRS Form 8938 instructions 2026 (filing thresholds; valuation rules; coordination with FBAR; penalties and reasonable cause exception).