Alert January 08, 2013

FinCEN Extends FBAR Filing Deadline Until June 30, 2014 for Certain Individuals With Signature or Other Authority Only Over Certain Foreign Financial Accounts

On December 26, 2012, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued FinCEN Notice 2012-2 (the “Notice”), extending until June 30, 2014  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 pursuant to several prior Notices (the “Prior Notices”), as discussed in the February 21, 2012 Financial Services Alert.  In the Notice, FinCEN stated that it was further extending the deadlines in the Prior Notices in light of ongoing consideration of questions regarding the filing requirement and its application to such individuals.

Individuals Covered by the Prior Notices

FinCEN Notice 2012-2 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 (a “specified entity”) that is the employer of the excepted officer or employee.  Notice 2012-2 and the Prior Notices provide relief to individuals described in the following two categories:  (1) an employee or officer of a specified entity 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 a specified entity 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 a specified entity.

Notice 2012-2 and the Prior Notices also provide 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, 2014 in the Notice applies to FBARs that would have been due on June 30, 2013 for the reporting of signature authority held during the 2012 calendar year, as well as the reporting of signature authority held in prior years for which the deadlines were previously extended by the Prior Notices.  For all other individuals with an FBAR filing obligation, the filing due date remains unchanged.