Alert February 21, 2012

FinCEN Extends FBAR Filing Deadline Until June 30, 2013 for Certain Financial Professionals

On February 14, 2012, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued FinCEN Notice 2012-1 (the “Notice”), extending until June 30, 2013 the date for filing Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (“FBAR”), by certain individuals with signature or other authority only over certain foreign financial accounts.  The Notice further extends the deadlines that were previously extended until June 30, 2012 by FinCEN pursuant to FinCEN Notice 2011-1 (Revised) issued on June 2, 2011 (and discussed in the June 7, 2011 Financial Services Alert) and FinCEN Notice 2011-2, issued on June 17, 2011 (and discussed in the June 21, 2011 Financial Services Alert) (collectively, the “Prior Notices”).  In the Notice, FinCEN stated that it was further extending the deadlines in the Prior Notices because of additional questions and concerns raised with respect to the exceptions addressed in the Prior Notices.

Individuals Covered by the Prior Notices

FinCEN Notice 2011-1 (Revised) 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 Financial Services Alert.)  In particular, the Final Rule provides filing relief in the form of exceptions for certain officers and employees with signature or other authority over, but no financial interest in, a foreign financial account owned or maintained by an entity described in 31 CFR §§1010.350(f)(2)(i)-(v) of the Final Rule.  Those exceptions apply only with respect to accounts maintained by the entity that is the employer of the excepted officer or employee, however, and do not extend, for example, to accounts maintained by a subsidiary of the employer over which such an officer or employee has signature authority.  Notice 2011-1 (Revised) provided relief to individuals described in the following two categories:

(1)  an employee or officer of an entity under §1010.350(f)(2)(i)-(v) who has signature or other authority over and no financial interest in a foreign financial account of a “controlled person” of the entity; or

(2)  an employee or officer of a “controlled person” of an entity under §1010.350(f)(2)(i)-(v) who has signature or other authority over and no financial interest in a foreign financial account of the entity, the “controlled person,” or another “controlled person” of the entity.

For this purpose, a “controlled person” means a United States or foreign person more than 50 percent owned (directly or indirectly) by an entity under §1010.350(f)(2)(i)-(v).

FinCEN Notice 2011-2 provided administrative relief in the case of officers and employees of investment advisers registered with the Securities and Exchange Commission (the “SEC”) with signature or other authority over, but no financial interest in, foreign financial accounts of persons that are not registered investment companies.  (These individuals are not covered by the exception in §101.350(f)(2)(iii) of the Final Rule for 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.)

Extension Provided by the Notice

The extension until June 30, 2013 in the Notice applies to FBARs that would have been due on June 30, 2012 for the reporting of signature authority by individuals who were covered by the Prior Notices as described above.  Taken together with the extensions provided in the Prior Notices, the Notice applies with respect to FBARs for calendar year 2011 and 2010, as well as for earlier calendar years for which the filing deadline was properly deferred under the Internal Revenue Service (“IRS”) Notice 2010-23 (discussed in the March 8, 2010 Goodwin Procter Alert) and IRS Notice 2009-62 (discussed in the August 10, 2009 Goodwin Procter Alert).  For all other individuals with an FBAR filing obligation, the filing due date remains unchanged.