Alert June 21, 2011

IRS Extends Filing Date for Prior Year FBARs for Individuals with Signature Authority; FinCEN Extends FBAR Filing Date for Officers or Employees of Registered Investment Advisers

Two recent notices issued by the Internal Revenue Service (the “IRS”) and the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) have extended the deadline for filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”) by certain individuals with signature authority over, but no financial interest in, foreign financial accounts.

IRS Notice 2011-54

IRS Notice 2011-54 provides additional administrative relief to persons whose requirement to file an FBAR to report signature authority over foreign financial accounts held during calendar year 2009 or earlier calendar years was previously deferred.  In Notice 2010-23, which modified and supplemented Notice 2009-62, the IRS and the Treasury Department had extended until June 30, 2011, the deadline for filing FBARs for 2010 and prior years for individuals with signature authority over, but no financial interest in, foreign financial accounts.  (Notice 2009-62 was discussed in the August 10, 2009 Goodwin Procter Alert; Notice 2010-23 was discussed in the March 8, 2010 Goodwin Procter Alert.)

In light of reported difficulties that such individuals are having in compiling the information needed to file complete and accurate FBARs with respect to the 2009 or earlier calendar years by the June 30, 2011 deadline, however, the IRS and FinCEN have provided the following additional administrative relief in Notice 2011-54:  Persons having signature authority over, but no financial interest in, a foreign financial account in 2009 or earlier calendar years will now have until November 1, 2011, to file FBARs with respect to those accounts. 

Notice 2011-54 states that the deadline for reporting signature authority over, or a financial interest in, foreign financial accounts for the 2010 calendar year remains June 30, 2011.  The administrative relief provided in this Notice, however, does not limit the relief provided in FinCEN’s Notice 2011-1 (Revised), which was discussed in the June 7, 2011 Alert.  In addition, it does not limit the relief provided in FinCEN Notice 2011-2, discussed below, which was issued after the publication of Notice 2011-54.

FinCEN Notice 2011-2

FinCEN Notice 2011-2 has been issued to provide administrative relief in the case of officers or employees of investment advisers registered with the SEC who have signature or other authority over, but no financial interest in, certain foreign financial accounts.  This FinCEN Notice relates to certain exceptions provided in the Final Rule issued by FinCEN that went into effect on March 28, 2011.  (The Final Rule was discussed in the March 1, 2011 Alert.)  One of those exceptions applies to officers and employees of Authorized Service Providers who have signature or other authority over, but no financial interest in, a foreign financial account owned or maintained by an investment company that is registered with the SEC.  “Authorized Service Provider” means an entity that is registered with and examined by the SEC (such as a registered investment adviser) and that provides services to an investment company registered under the Investment Company Act of 1940 (“registered investment company”). 

Following the release of the Final Rule, FinCEN received questions about processing issues in filing the FBAR by the June 30, 2011 compliance date in the case of officers and employees of registered investment advisers when such individuals have signature or other authority over, but no financial interest in, the foreign financial accounts of persons that are not registered investment companies.  In light of these questions, FinCEN has issued FinCEN Notice 2011-2, granting an extension of the filing date to June 30, 2012, to allow officers and employees of registered investment advisers with signature or other authority over, but no financial interest in, the foreign financial accounts of persons that are not registered investment companies additional time to file FBARs.  The extension is applicable to FBARs for calendar year 2010 and FBARs for calendar year 2009 or earlier calendar years for which the filing deadline was properly deferred under Notice 2009-62 or Notice 2010-23.