For American Members...

[taxout]

U.S. v. Carlton, 512 U.S. 26 (1994), is the leading case on the constitutionality of retroactive tax legislation.

It's an estate tax case, and the facts are somewhat complex, but in essence Carlton sold some assets on behalf of the estate, and then calculated the estate tax due on the basis of favorable tax law provisions that were in effect both when the assets were sold and when the estate tax return was due and filed. The next year, however, Congress eliminated the favorable provisions, and made the elimination retroactive, increasing the estate's tax bill by over $2.5 million. The Supreme Court rejected Carlton's claim that this was unconstitutional, noting "This Court repeatedly has upheld retroactive tax legislation against a due process challenge."

In short, any tax lawyer, even Robert W. Wood, knows that the Supreme Court doesn't get worked up over retroactive tax rules.

So if the IRS says to re-file with a revised FBAR form -- and they haven't, yet -- then do so. You won't get much sympathy from the courts if you don't.

It's irresponsible to advise otherwise. This isn't a good topic for good guesses. The stakes are too high.

http://openjurist.or...tes-v-w-carlton

[SurfRider]

"Congress eliminated the favorable provisions, and made the elimination retroactive, increasing the estate's tax bill by over $2.5 million. The Supreme Court rejected Carlton's claim that this was unconstitutional"

If that's the situation, it sounds like Congress could "eliminate the favorable provisions" that have been enacted since 1960 and the Supremes would back that action-- returning the marginal tax rate to 90%, retroactive.

That might upset more than just a few people and corporations. Let's hope Congress isn't reading this Forum . . .

.

[lopburi3]

This regulation (FBAR) change does not effect any tax. The change from my reading is only allowing more exceptions and less reporting rather than before so any report done under the current system should be as complete or more so than under the new regulations. Until there is such an order I do not intend to refile and do not believe anyone would be required to do so. This is not a IRS type tax law - it is a way to get mafia type activities when others fail. I suspect there are in any given year more people not filing than filing as many do not even know of the requirement.

[taxout]

The revised regulations do indeed make significant changes that increase reporting requirements. I'm not going to get into a detailed discussion here, but to mention just a few that may affect many, required reporting now extends to certificates of deposit, certain mutual fund accounts, and certain commodities accounts.

The detailed preamble to the revised regulations does say throughout that, in effect, "no changes are being made," but that's discussing the final revised regulations compared with a prior draft of the revised regulations. It's not comparing the revised regulations with the old ones.

It's a complete waste of time to continue to correct posts like the previous one, so this'll be my last post about FBAR.

[Pib]

Until the Treasury Dept publishes a revised/updated TD F 90-22.1, which will include updated instructions on what to report and how to report it, I will just report what the current TD form requests/requires. Current TD F 90.22.1 is dated Revision Oct 08; same revision number used for tax years 2008, 2009, and 2010. Mailed mine last week. If the Treasury Dept don't like the form I mailed them, then they can just send me a letter saying so with an updated form/instructions and I will be happy to comply. Also got my federal tax refund direct deposit last Thursday. Hopefully I'm through with forms/reports to the IRS and Treasury Dept for another year plus I got my overpaid tax dollars back from Uncle Sam....all is good (expect Uncle Sam is going broke).

[JimGant]

Turbotax did a better job this year with its FBAR template -- but still not perfect.

The wife (US citizen) and I have all our accounts -- single and joint -- with Bangkok Bank. And these accounts all come under the umbrella of our BB internet banking ID. As such, we can file a single FBAR, using in Part III ("Joint Accounts") our BB internet banking ID, which certainly meets the "other designation" requirement. (Otherwise, because our individual savings accounts both exceeded $10k, we'd both have to file a FBAR.)

From the FBAR instructions:

A spouse having a joint financial interest in an account with the filing spouse should be included as a joint account owner in Part III of this report. The filer should write (spouse) on Line 26 after the last name of the joint spousal owner. If the only reportable accounts of the filer’s spouse are those reported as joint accounts, the filer’s spouse need not file a separate report. If the accounts are owned jointly by both spouses, the filer’s spouse should also sign the report. See the instructions for Item 44.

Now, my name and SSN already appear in Part I -- but I need to get my wife's name and info in Part III. Turbotax (TT), however, asks for the primary owner -- but you need to designate your wife as primary in order to get her information in Part III. Also, no parenthetical "spouse" will emerge (now, TT knows I'm doing a joint return, so you'd think they'd have considered this aspect...).

And, you need both signatures in block 44. TT doesn't prompt for both signatures.

Also, TT prints out all 5 pages, which in my case, above, means blank page 2, 4, and 5. It doesn't take a genius to figure out that the "page ? of ?" block at the top of the FBAR pages is for the purpose of eliminating blank pages from the package. Strike 3 for TT re FBAR.

But, no big deal. Uncle Sam isn't going to fine you for forgetting your wife's signature.

However, if they revise the FBAR form -- and you forget to re-file -- LOOKOUT!!! (NOT!!)

[Pib]

Yeap, I just prefer to pull up a TD F 90.22-1 form on the 'puter and complete manually versus using tax software. It's mostly just name, address, account number(s), and dollar amounts anyway. This way you can easy make any required special notations identified in the form instructions, espeically for a husband and wife filing one TD form where (Spouse) is put after the spouse's/wife's name, both sign in the one signature block, etc (kinda like filing a joint tax return). Pretty simple form especially when reading the instructions...preaching to the choir I know.

[craigt3365]

Hmmmm....last year was my first time for this lovely FBAR form. But TT printed out separate forms for both me and my wife. One for me and her for our joint account and only one for her for her separate account (she is a US citizen). It asked who had authority on the accounts and on one, I checked both of us. On the other, just her.

Worked great for me last year, but have not done taxes yet for this year. Maybe an email to TT to see what they say?

I'll have to keep an eye out for this....

[Pib]

Hmmmm....last year was my first time for this lovely FBAR form. But TT printed out separate forms for both me and my wife. One for me and her for our joint account and only one for her for her separate account (she is a US citizen). It asked who had authority on the accounts and on one, I checked both of us. On the other, just her.

Worked great for me last year, but have not done taxes yet for this year. Maybe an email to TT to see what they say?

I'll have to keep an eye out for this....

From reading the posts it seems TurboTax gets pretty close to complying with the TD F 90-22.1 instructions, with the exception of entering Spouse in parenthesis after the spouse's name whenever the spouse only has a joint account with the primary filer and also not mentioning both should sign the form in such a case, which allows submission of just one form versus a separate form for both husband and wife. Maybe from a software programming standpoint TurboTax finds it easier just to print out separate forms for each spouse. However, since your wife has a separate account in her name only, I can see why TurboTax printed out a separate form for her as that is in-sync with the TD form instructions which require a separate form in such a case. My wife is a Thai and US citizen but only has joint Thailand accounts with me, so a separate form is not required; just one form for both of us with the proper annotation and both of us signing fully complies with the TD instructions as quoted below.

Below is a cut and paste/quote from the form instructions which specifically talks about how to file when the spouse has a joint account or a separate account:. Note the "should" word is used which provides little to no support for legal action against anyone if the spouse don't sign the one submitted form when the spouse only has a joint account and/or the word Spouse is not put in parenthesis after the spouse's name. In fact, the form instrucitons uses the "should" word a lot. I did use the Spouse word in our report mailed last week and both of us signed the form....done for another year.

Cut and Paste/Quote

Item 25--33. Enter this identity information about the joint owner. If there is more than one joint owner, enter the identity information about the principal joint owner. The filer may leave blank items for which no information is available. A spouse having a joint financial interest in an account with the filing spouse should be included as a joint account owner in Part III of this report. The filer should write (spouse) on Line 26 after the last name of the joint spousal owner. If the only reportable accounts of the filer's spouse are those reported as joint accounts, the filer's spouse need not file a separate report. If the accounts are owned jointly by both spouses, the filer's spouse should also sign the report. See the instructions for Item 44. If the filer's spouse has a financial interest in other accounts that are not jointly owned with the filer or has signature or other authority over other accounts, the filer's spouse should file a separate report for all accounts including those owned jointly with the other spouse.

End Quote