Should I file an FBAR if I'm a resident for taxes purposes only? (I'm a non-resident alien)

[Fern · Accepted solution]

As a non-resident alien, you do not have FBAR filing requirements. Individuals residing in the U.S. who do not meet one of the "United States Resident" residency tests are not considered U.S. residents for FBAR purposes. This includes individuals in the U.S. under a work visa who do not meet the substantial-presence test.

A "United States resident" using the definition of resident alien includes:
 - The green-card test -  includes individuals who have been lawfully granted the privilege of residing permanently in the U.S. under the immigration laws. These individuals automatically meet the definition of resident alien under the green-card test.

- The substantial-presence test. Individuals are defined as resident aliens under the substantial-presence test if they are physically present in the U.S. for at least 183 days during the current year, or they are physically present in the U.S. for at least 31 days during the current year and meet the specifications contained in IRC 7701(b)(3).

 - The individual files a first-year election on his income tax return to be treated as a resident alien under IRC 7701(b)(4).

 - The individual is considered a resident under the special rules in section 7701(b)(2) for first-year or last-year residency.

[yamacastilho]

I was present for more than 183 days in the US. So I am resident for tax purposes. Wouldn't that include fbar?
Also, I just read that I don't need to fill it if I have an IRA account. Would that apply to me?

[Fern]

If you meet the substantial presence test then you also have FBAR reporting requirements.  IRA accounts are included in FBAR reporting.

[bine22]

US IRA accounts do not need to be reported on the FBAR.

[dasani1337]

We are in the same situation this year. I am a US resident on H1B. My wife lived in the US for only 100 days in 2016 and she will come back only next year. We are going to do Married Filing Jointly. Hence she will be resident for tax purposes only and we will report our worldwide income. Does she have to report FBAR if she had more than 10K$ abroad in 2016?  She is a resident for federal tax purposes only, otherwise I guess she is a non resident? and therefore doesn't have to file FBAR? Need help from an expert for this one.

[bine22]

yes, she has to file the FBAR because she is a resident for tax purposes

[dasani1337]

"The federal tax treatment of a United States person does not determine whether the person has an FBAR filing requirement."
I read this on IRS website. Doesn't it mean she does not have to file fbar?

[dasani1337]

FinCEN clarified in the preamble to the regulations that an election under IRC 6013(g) or (h) is not considered when determining residency status for FBAR purposes.

[manudhundi]

@dasani1337 , what was the final conclusion ? Did you file FBAR for your wife ? Thanks