FBAR vs FATCA Form 8938: 2026 Thresholds
Neither form computes a tax. Both carry penalties large enough to matter, and the penalty figures most often quoted are the un-indexed statutory ones rather than the amounts actually in force.
The FBAR is FinCEN Form 114, filed with the Financial Crimes Enforcement Network through the BSA E-Filing System, not with the tax return. Form 8938 is a FATCA form filed with the IRS inside the return. Neither replaces the other. The FBAR threshold is $10,000 aggregate; Form 8938 starts at $200,000 for single filers who meet the defined living-abroad test.
| Point | FBAR | Form 8938 |
|---|---|---|
| Form | FinCEN Form 114 | Form 8938 |
| Agency | Financial Crimes Enforcement Network, Treasury | Internal Revenue Service |
| Statutory basis | Section 5314 of Title 31, the Bank Secrecy Act | Section 6038D, enacted by FATCA |
| Threshold — single, in the U.S. | $10,000 aggregate at any time in the year | $50,000 on the last day, or $75,000 at any point |
| Threshold — joint, in the U.S. | $10,000 aggregate — there is no separate joint figure | $100,000 on the last day, or $150,000 at any point |
| Threshold — single, abroad | $10,000 aggregate | Over $200,000 on the last day, or over $300,000 at any point |
| Threshold — joint, abroad | $10,000 aggregate | $400,000 on the last day, or $600,000 at any point |
| Deadline | 15 April, with an automatic extension to 15 October | Filed with the federal return |
| Filing channel | The BSA E-Filing System, separate from the return | Attached to the federal income tax return |
| Penalty — non-wilful | $16,536 per report, for assessments on or after 17 January 2025 (31 CFR §1010.821) | $10,000, plus $10,000 for each 30-day period after 90 days’ notice, capped at $50,000 — a $60,000 maximum for one year |
| Penalty — wilful | $165,353, or 50% of the balance if greater | — |
| Unit of penalty | Per report for non-wilful, following Bittner v. United States (28 February 2023); wilful remains per account | Per year |
Two regimes that overlap without replacing each other
The FBAR is FinCEN Form 114, filed with the Treasury Department’s Financial Crimes Enforcement Network through the BSA E-Filing System. The IRS states plainly that it is not filed with the federal tax return. It is due 15 April, with an automatic extension to 15 October granted to filers who miss that date.
Form 8938 was created by FATCA and is filed with the IRS as part of the return. The two overlap heavily and neither substitutes for the other; many Americans abroad file both, reporting largely the same accounts twice.
The FBAR is triggered when the aggregate value of all foreign financial accounts exceeds $10,000 at any time during the calendar year. It is an aggregate test — three accounts of $4,000 each cross it together — and it reaches accounts over which a person has only signature or other authority, defined as the authority to control the disposition of assets by direct communication with the institution.
Form 8938 has higher thresholds for people who genuinely live abroad: more than $200,000 on the last day of the tax year or more than $300,000 at any point for a single filer, and $400,000 or $600,000 for a married couple filing jointly. For taxpayers living in the United States the thresholds are $50,000 and $75,000, or $100,000 and $150,000.
One qualifier is essential and routinely dropped. "Living abroad" here is a defined test, not a self-description: it requires a foreign tax home together with either bona fide residence for an uninterrupted period covering an entire tax year, or physical presence in a foreign country for at least 330 days in a 12-month period ending in the tax year. Someone who does not meet that test uses the lower thresholds however long they have been away.
The definitions also differ in reach. Section 6038D covers specified foreign financial assets, which extends beyond accounts to foreign stock or securities held outside a financial account, financial instruments or contracts with a non-U.S. issuer or counterparty held for investment, and interests in foreign entities — the IRS gives foreign partnership interests, hedge funds and private equity funds as examples of assets reportable on Form 8938 but not on the FBAR.
The penalties, at the figures actually in force
The statutory non-wilful FBAR penalty is $10,000, but that figure is inflation-adjusted and the adjusted amount is what applies. The current table at 31 CFR §1010.821 — current as of 30 July 2026 — sets the maximum at $16,536 for a non-wilful violation and $165,353, or 50% of the account balance at the time of the violation if greater, for a wilful one. These are the amounts for penalties assessed on or after 17 January 2025; no adjustment took effect for 2026.
The unit of the penalty differs between the two. In Bittner v. United States, decided 28 February 2023, the Supreme Court held that the maximum non-wilful penalty accrues on a per-report, not a per-account, basis. The Internal Revenue Manual reflects that — a failure to file a legally compliant FBAR is a single reporting violation — and adds an administrative ceiling that the total of non-wilful penalties across all open years will not exceed 50% of the highest aggregate balance of all foreign accounts. Wilful violations remain per account.
Form 8938 carries a $10,000 failure-to-file penalty, and a further $10,000 for each 30-day period, or part of one, that the failure continues more than 90 days after IRS notice, capped at $50,000 — a maximum of $60,000 for a year, not $50,000.
There is also a limitations consequence. Where a required Form 8938 is not filed or an asset is not properly reported, the assessment period is extended to three years after the information is furnished. The IRS instructions describe this as applying to all or a part of the return, so the common shorthand that it holds the entire return open is broader than the source supports. A separate provision extends the period to six years where more than $5,000 attributable to a specified foreign financial asset is omitted from gross income.
What is specific to Americans abroad
Both obligations are disclosure obligations. Section 5314 of Title 31 sits in the Bank Secrecy Act rather than the Internal Revenue Code and requires records and reports; section 6038D sits among the information-return provisions. Neither computes or imposes tax. Reporting a Portuguese bank account does not, by itself, create a U.S. liability.
The scale is worth stating: FinCEN recorded 1.7 million FBARs filed in fiscal 2024, up from 1.6 million in 2023 and 1.5 million in 2022. The IRS maintains a list of foreign financial institutions registered under FATCA, updated monthly and described by the IRS as fewer than 400,000 records; Treasury’s page listing FATCA agreements and understandings by jurisdiction, last updated in September 2024, records 113.
For people who did not file when they should have, the Streamlined Filing Compliance Procedures remain open — the IRS page was last reviewed on 19 February 2026 and the programme was still listed among the IRS’s offshore compliance options as at 30 June 2026. The foreign version requires no U.S. abode and physical presence outside the United States for at least 330 full days in any one of the most recent three years, and calls for three years of returns and six years of FBARs. For those who qualify as non-resident and non-wilful, the IRS states that they will not be subject to failure-to-file, failure-to-pay, accuracy-related, information-return or FBAR penalties. The domestic version carries a miscellaneous offshore penalty of 5% of the highest aggregate balance across the covered periods.
The programme is discretionary. The Internal Revenue Manual states that the streamlined procedures were approved by the Commissioner and can be changed or terminated at any time — a sentence that does not appear on the public landing page. The predecessor Offshore Voluntary Disclosure Program, by comparison, ran from 1 July 2014 and terminated on 28 September 2018.
Where the obligation actually comes from
What has to be reported follows from what is held and where, and both change with every new account, insurance wrapper, pension scheme or joint holding acquired abroad. The thresholds interact — the FBAR’s $10,000 aggregate is crossed long before Form 8938’s $200,000 — and the definitions do not line up, so an inventory of holdings answers a different question from a list of bank accounts. Whether a particular history is non-wilful, and which route follows from that, depends on facts that only the filer and a qualified professional can establish.
Sources
- Internal Revenue Service — Report of Foreign Bank and Financial Accounts (FBAR) (FinCEN Form 114; deadline and automatic extension) — https://www.irs.gov/businesses/small-businesses-self-employed/report-of-foreign-bank-and-financial-accounts-fbar — checked 2 August 2026
- Financial Crimes Enforcement Network — Report Foreign Bank and Financial Accounts ($10,000 aggregate; signature authority) — https://www.fincen.gov/report-foreign-bank-and-financial-accounts — checked 2 August 2026
- Internal Revenue Service — Comparison of Form 8938 and FBAR requirements (thresholds abroad and domestic; assets reportable on one and not the other) — https://www.irs.gov/businesses/comparison-of-form-8938-and-fbar-requirements — checked 2 August 2026
- Internal Revenue Service — Do I need to file Form 8938? (the defined living-abroad test) — https://www.irs.gov/businesses/corporations/do-i-need-to-file-form-8938-statement-of-specified-foreign-financial-assets — checked 2 August 2026
- Electronic Code of Federal Regulations — 31 CFR §1010.821, Penalty adjustment and table ($16,536 and $165,353; current as of 30 July 2026) — https://www.ecfr.gov/current/title-31/subtitle-B/chapter-X/part-1010/subpart-H/section-1010.821 — checked 2 August 2026
- Supreme Court of the United States — Bittner v. United States, No. 21-1195, decided 28 February 2023 — https://www.supremecourt.gov/opinions/22pdf/21-1195_h3ci.pdf — checked 2 August 2026
- Internal Revenue Service — Internal Revenue Manual 4.26.16 (single reporting violation; 50% administrative ceiling; wilful penalties per account) — https://www.irs.gov/irm/part4/irm_04-026-016 — checked 2 August 2026
- Internal Revenue Service — Instructions for Form 8938 (penalty escalation; limitations extension) — https://www.irs.gov/instructions/i8938 — checked 2 August 2026
- Internal Revenue Service — Streamlined filing compliance procedures — https://www.irs.gov/individuals/international-taxpayers/streamlined-filing-compliance-procedures — checked 2 August 2026
- Internal Revenue Service — Internal Revenue Manual 4.63.3 (streamlined procedures may be changed or terminated; OVDP termination date) — https://www.irs.gov/irm/part4/irm_04-063-003r — checked 2 August 2026
- Financial Crimes Enforcement Network — FinCEN Year in Review for FY 2024 (1.7 million FBARs) — https://www.fincen.gov/system/files/2025-08/FinCEN-Infographic-Public-2025-508.pdf — checked 2 August 2026
- U.S. Department of the Treasury — Foreign Account Tax Compliance Act, agreements and understandings by jurisdiction (113 jurisdictions; page last updated September 2024) — https://home.treasury.gov/policy-issues/tax-policy/foreign-account-tax-compliance-act — checked 2 August 2026
Figures and rates cited were current as of August 2026 and are subject to change.
Common questions
- Do I have to file an FBAR if I have several small foreign accounts rather than one big one?
- The FBAR is triggered when the aggregate value of all foreign financial accounts exceeds $10,000 at any time during the calendar year. It is an aggregate test — three accounts of $4,000 each cross it together. It also reaches accounts over which a person has only signature or other authority, defined as the authority to control the disposition of assets by direct communication with the institution.
- Does filing Form 8938 mean I don’t also have to file an FBAR?
- No. The two regimes overlap heavily and neither substitutes for the other. The FBAR is FinCEN Form 114, filed with the Financial Crimes Enforcement Network through the BSA E-Filing System, and the IRS states plainly that it is not filed with the federal tax return; Form 8938 was created by FATCA and is filed with the IRS as part of the return. Many Americans abroad file both.
- Do I get the higher Form 8938 thresholds just because I live overseas?
- Only if the defined test is met. The $200,000 year-end and $300,000 any-time thresholds for a single filer require a foreign tax home together with either bona fide residence for an uninterrupted period covering an entire tax year, or physical presence in a foreign country for at least 330 days in a 12-month period ending in the tax year. Otherwise the $50,000 and $75,000 thresholds apply.
- What is the penalty for not filing an FBAR if the failure was not deliberate?
- The current maximum for a non-wilful violation is $16,536 per report. The statutory $10,000 figure is inflation-adjusted, and the table at 31 CFR §1010.821 sets the adjusted amount for penalties assessed on or after 17 January 2025. In Bittner v. United States the Supreme Court held that the maximum non-wilful penalty accrues per report, not per account. Wilful violations remain per account.
- Does filing an FBAR mean I owe US tax on my foreign bank account?
- No. Both obligations are disclosure obligations rather than tax computations. Section 5314 of Title 31 sits in the Bank Secrecy Act rather than the Internal Revenue Code, and section 6038D sits among the information-return provisions — neither computes nor imposes tax. Reporting a Portuguese bank account does not, by itself, create a U.S. liability.
- When is the FBAR due, and is there an extension?
- The FBAR is due 15 April, with an automatic extension to 15 October granted to filers who miss that date. It is FinCEN Form 114, filed with the Financial Crimes Enforcement Network through the BSA E-Filing System, and it is not filed with the federal tax return — so the two deadlines are separate items on the calendar.
- Do I have to report a foreign hedge fund or private equity interest on Form 8938?
- Yes, where the holding falls within the section 6038D definition. Specified foreign financial assets extend beyond accounts to foreign stock or securities held outside a financial account, financial instruments with a non-U.S. counterparty held for investment, and interests in foreign entities. The IRS gives hedge funds and private equity funds as examples reportable here but not on the FBAR.
- Is the FBAR penalty charged per account or per report?
- Per report for a non-wilful violation, per account for a wilful one. In Bittner v. United States, decided 28 February 2023, the Supreme Court held that the maximum non-wilful penalty accrues on a per-report basis. The Internal Revenue Manual adds an administrative ceiling of 50% of the highest aggregate balance across all open years.
- How much can Form 8938 penalties add up to in a single year?
- Up to $60,000 for one year. Form 8938 carries a $10,000 failure-to-file penalty, and a further $10,000 for each 30-day period, or part of one, that the failure continues more than 90 days after IRS notice, capped at $50,000. Adding the two together gives a yearly maximum of $60,000 rather than the $50,000 often quoted.
- Does a missing Form 8938 keep my whole tax return open to the IRS forever?
- Not the entire return, on the source as written. Where a required Form 8938 is not filed or an asset is not properly reported, the assessment period is extended to three years after the information is furnished, described as applying to all or a part of the return. A separate provision reaches six years where more than $5,000 is omitted from gross income.
- I have been abroad for years and never filed an FBAR — is there a published way to catch up?
- The Streamlined Filing Compliance Procedures remain open, and were still listed among the IRS offshore compliance options as at 30 June 2026. The foreign version requires no U.S. abode and physical presence outside the United States for at least 330 full days in one of the most recent three years, and calls for three years of returns and six years of FBARs.
A note on tax content
Tax content on this site is for general informational purposes only and does not constitute tax advice. Rules for U.S. citizens abroad depend on individual circumstances, country of residence, income sources, account structures, and applicable treaties — always consult a qualified tax professional in the relevant jurisdiction before making decisions.
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