FACTA - Greencard

Forum|Forum|1 year ago
March 4, 2025
6 replies
68 views

Me (US Citizen)
Wife (Greencard)

I used to work abroad and always filed my FBAR while filing as Married Filing Separately (MFS). I've been married to my wife for over 10 years. I returned to the U.S. in November 2023 and worked part-time for a U.S. company. I filed my 2023 taxes as MFS and used the Physical Presence Test, covering the period from November 2022 to November 2023.

To the best of my knowledge, since I qualified for the Physical Presence Test, I didn’t need to file Form 8833 because my foreign bank account balance was less than $100K.

In January 2024, my wife arrived in the U.S., received her green card, and got her SSN a week or two later. My question is: Did my wife need to file FBAR or FATCA when she wasn’t a U.S. resident before 2024?

Before 2024, I always filed as MFS, listing her name with "non-resident" next to it, and the IRS accepted our returns without issue. However, she has over $200K in her foreign bank account, and I’m getting worried about potential penalties. BTW, together, we have less than $300k and we don't share the same account.

Also, I have never owed taxes to the IRS because I always earned less than $100K while living and working abroad.

pk_

Level 15

@MJ Sally , hope you mean form 8938 -- Specified Foreign Assets Reporting.

(a) The FBAR and FATCA regs apply only to a US person ( citizen/GreenCard /Resident for Tax purposes ).

(b) Note that the trigger values are generally based on the last day of the year ( and yes there is also a "but" in it ).

(c) Your wife's residency ( US personhood) starts from the day she was admitted with the GreenCard or the first day here legally whichever is first ( under GreenCard test ). So it is essentially for the whole of 2024.. Thus , and absent any other or treaty considerations , she was not subject to FBAR/FATCA till then.

However, note that there is no tax consequences of reporting FBAR/ FATCA but willful disregard of the law is heavy penalized.

Is there more I can do for you ?

MJ SallyAuthor

Level 2

@pk12_2

So I'm guessing my wife and I didn't need to file form 8938 before 2024?

Please note: I came back to the US in November 2023, worked part time in the US, and claimed foreign exclusion using the physical presence test from November 2022 to November 2023. Before December 2023, I had over 50K in my foreign bank account. Does FACTA affect me because I lived in the US from November to December 2023?