Form 8938 vs FBAR: Which to File, or Both?

Two Different Forms, Two Different Agencies

The FBAR and Form 8938 get confused constantly, because they both ask about foreign money and they both punish you for staying quiet. But they are two entirely separate rules. The FBAR is the Report of Foreign Bank and Financial Accounts, officially FinCEN Form 114. The FBAR is a Treasury filing under the Bank Secrecy Act, and it goes to FinCEN through its own e-file system. The FBAR never rides along with your tax return. Form 8938, the Statement of Specified Foreign Financial Assets, comes from a different law (the one known as FATCA) and is attached right to your Form 1040.

The agency, the form, the starting line and the penalty all differ. The single most important thing to understand is that filing one does not satisfy the other. The IRS treats them as serving separate purposes, so when both apply you file both, even for the exact same foreign account. Below we walk through each threshold, what each form actually reaches, why so many people file both, and the penalties for getting it wrong.

The FBAR: When $10,000 Triggers It

The FBAR has the lower trigger of the two, and it catches a lot of people who think their accounts are too small to matter. You have to file if the combined value of all your foreign financial accounts topped $10,000 at any single moment during the calendar year. Three details do the damage.

• The test is an aggregate, not per account. Two accounts at $6,000 each add up to $12,000, so both must be reported, even though neither alone crosses $10,000.
• The test is the high point, not the year-end balance. If a foreign account hit $15,000 in March and you emptied it by December, you still had an FBAR obligation for that year.
• Signature authority counts. If you can sign on a foreign account you do not own, you may have to file even with no money of your own in it.

A foreign account covers more than a checking account. It reaches foreign brokerage and securities accounts, foreign mutual funds, and even foreign cash-value life insurance or annuity policies. If you have lived or worked abroad, or you have family money sitting in a foreign bank, assume the FBAR is in play until you confirm otherwise.

Form 8938: Higher Thresholds That Shift

Form 8938 starts at a higher number than the FBAR, and the number itself moves depending on your filing status and where you live. No single threshold exists, which is why people guess wrong. The grid breaks down like this.

• Single or married filing separately, living in the US. More than $50,000 at year-end, or more than $75,000 at any time during the year.
• Married filing jointly, living in the US. More than $100,000 at year-end, or more than $150,000 anytime.
• Single or married filing separately, living abroad. More than $200,000 at year-end, or more than $300,000 anytime.
• Married filing jointly, living abroad. More than $400,000 at year-end, or more than $600,000 anytime.

So an American living in Israel files Form 8938 only once foreign assets pass $200,000 (single) or $400,000 (a couple), but that same person still owes the FBAR the moment accounts top $10,000. The two trigger at very different points, and that mismatch is exactly why you can owe one without the other, or both at once.

What Each Form Reaches That the Other Misses

Life would be simpler if the two forms covered the same things at different thresholds, and they do not. Each one reaches assets the other leaves out.

Form 8938 reaches some assets that are not in an account at all. Form 8938 is built around ownership of specified foreign financial assets, so it captures things like foreign stock or securities you hold directly, an interest in a foreign partnership, or a financial contract with a foreign issuer. The FBAR is built around accounts, so a stock certificate of a foreign company sitting in your desk drawer is not an FBAR item but can be a Form 8938 item.

The FBAR reaches accounts you only sign on. If you have signature authority over a foreign account you do not own, an employer account, a parent company's account, or a charity's account, the FBAR applies to you. Form 8938 does not, because it tracks what you own, not what you can sign for. The FBAR also catches accounts at its lower $10,000 line that never come near the Form 8938 threshold. Neither form is a substitute for the other, and the gaps run in both directions.

FBAR vs Form 8938, Side by Side

The table below puts the whole comparison in one place. When in doubt, run your situation against every row, not just the threshold.

Do I Have to File Both the FBAR and Form 8938?

The question I get most about this is, "Do I have to file both?" Very often, yes, and for the same account. Say a single filer living in the US has one foreign account that peaked at $90,000 during the year. The peak clears the FBAR line of $10,000, so an FBAR is due. The same account also clears the Form 8938 line of $50,000 year-end or $75,000 anytime, so Form 8938 is due too. The same account, the same money, reported twice, in two places, to two agencies.

Reporting the same account twice is not a glitch or double-counting. The two regimes are independent by design, and the IRS has been explicit that one filing does not cover the other. The danger is the half-fix, where people hear about the FBAR, file it, and never realize Form 8938 was also required. The half-fix leaves them exposed on the form they skipped, and as the next section explains, a missed Form 8938 carries a consequence that does not fade with time. When foreign accounts are in your life, map every account against both forms, not just the one you happened to learn about first.

The Penalties: $10,000 and Up, Each

Both forms carry real teeth, and they bite differently.

The FBAR. A non-willful miss, an honest mistake, is capped at $16,536 for each yearly form. The Supreme Court confirmed in 2023 that this is per form, per year, not per account, which keeps small-account mistakes manageable. A willful miss is in another league, and runs to the greater of about $165,353 or half the highest account balance, charged per account, per year. On a large account over several years, that climbs into the millions.

Form 8938. The penalty starts at $10,000 for the failure to file. If the failure continues for more than 90 days after the IRS mails notice, the IRS then adds $10,000 for each additional 30-day period, up to $50,000 more. On top of that, if the missing form is tied to underreported income, a steeper accuracy penalty can apply to the tax involved.

The quiet trap is the statute of limitations. When a required Form 8938 is never filed, the IRS clock that normally closes that tax year never starts. The year stays open until you finally file, plus three more years. So a return from years ago can still be examined in full, not just the foreign asset, until the form goes in. The FBAR does not do this, because it runs on its own separate six-year clock. If a penalty notice has already arrived, see our guide on FBAR penalties and how they are reduced.

How We Fix a Missed Filing, and Who Does What

If you are reading this because you already missed a year or several, the good news is that this is common and usually fixable, as long as you do not panic-file the back forms quietly. The IRS already receives much of this account data from foreign banks under information-sharing agreements, so a silent late filing can read as concealment and make the situation worse. The right path is a formal cleanup program. For innocent, non-willful mistakes, the Streamlined procedures can bring you current with a zero penalty (if you have been living abroad) or a modest percentage (if you have been living in the US). We screen the facts first and tell you which program fits, before anything is filed.

The willfulness screen, penalty defense, and the Voluntary Disclosure Practice for willful exposure are handled here, under attorney-client privilege, on fees quoted up front once we see the facts. The streamlined submissions and the return preparation are referred to an international tax preparer who does them every day, and foreign trusts or layered offshore structures bring in co-counsel who does that work full time. Almost all of this is done by phone and video, which fits clients who are out of state or out of the country. Our international and cross-border hub maps how the FBAR, FATCA, and the trust and gift forms fit together.

Frequently Asked Questions

Common Situations

The one account, two forms. A single professional in Florida keeps a foreign brokerage account that peaked near $90,000 during the year. She files the FBAR after reading about it online, then learns from us that the account also crossed the Form 8938 line and belonged on her 1040. We file the missing 8938 and confirm her FBAR was correct, closing both gaps at once.

The American in Israel. A US citizen living in Tel Aviv has about $150,000 spread across Israeli bank and pension accounts. He is over the FBAR's $10,000 line but under the $200,000 Form 8938 threshold for someone living abroad. So he owes the FBAR but not the 8938. We make the willfulness call, and a cross-border tax preparer files the missed years through the Streamlined procedures, where the penalty for a non-resident is zero.

The signature-only surprise. A client can sign on her employer's foreign operating account but owns none of it. She assumed neither form applied. In fact the FBAR reaches that signature authority, while Form 8938 does not, because she has no ownership. We file the FBAR for the open years and document why the 8938 was never required.

Sources of Law

• FBAR authority and $10,000 aggregate threshold: 31 U.S.C. §5314; 31 C.F.R. §1010.350 (financial interest and signature authority; aggregate over $10,000 at any point in the year).
• FBAR penalties: 31 U.S.C. §5321(a)(5); 31 C.F.R. §1010.821 (inflation-adjusted figures, January 2025: non-willful $16,536 per form, willful the greater of $165,353 or 50% of the highest balance per account per year); per-form non-willful rule per Bittner v. United States, 598 U.S. 85 (2023). 6-year assessment period: 31 U.S.C. §5321(b)(1). irs.gov FBAR
• Form 8938 (FATCA): IRC §6038D; Treas. Reg. §1.6038D-2 (thresholds: single or married filing separately in the US, $50,000 year-end or $75,000 anytime; married filing jointly in the US, $100,000 or $150,000; single or married filing separately abroad, $200,000 or $300,000; married filing jointly abroad, $400,000 or $600,000). Penalty: $10,000 initial, then (after a 90-day grace period following IRS notice) $10,000 per 30 days up to $50,000 more (IRC §6038D(d)); 40% accuracy penalty under IRC §6662(j). irs.gov Form 8938
• Case retold below: United States v. Reyes, No. 24-2333 (2d Cir. Jan. 7, 2026) (willful FBAR penalties of $420,051 against each spouse affirmed; recklessness satisfies willfulness; the six percent late-payment penalty is mandatory). Read in full from the official opinion text (retrieved 2026-08-18).
• Open statute of limitations from an unfiled Form 8938: IRC §6501(c)(8) (the income-tax year stays open until the form is filed, plus three years).
• Streamlined Filing Compliance Procedures (Streamlined Domestic and Streamlined Foreign Offshore): IRS Streamlined procedures (non-willful certification; SFOP 0% with the 330-day non-residency test, SDOP 5% of the highest aggregate year-end balance). irs.gov Streamlined (retrieved 2026-07-11)

What One Foreign Account Cost a Couple Who Answered No

Most articles on this topic cite each other. I would rather cite the court. The federal appeals court for New York decided an FBAR case in January 2026 that I read in full, and the facts in it answer the question this page is about better than any threshold chart.

In my practice, the return is where both of these forms begin, because the foreign-account question on Schedule B and the Form 8938 attachment sit on the same Form 1040, and a preparer asks about both in the same organizer. The couple in that case were a surgeon, born in Nicaragua and a US citizen since 1982, and his American-born wife. His parents had opened a bank account for him in Managua in 1972, and about $200,000 went in. Nothing was ever added. The account moved to London and later to Switzerland, his wife became a joint owner, and by 2012 the market had grown it to $2,101,330, which was 75 to 90 percent of everything the couple owned. In 1994 they paid the bank a fee to keep all of their mail. In 2000 each of them signed a bank form for people with US tax liability, declining to let the bank disclose the account and directing it to stay out of US securities. From 2003 they drew a few thousand dollars a month on credit cards issued to an address in Spain, a country they never lived in. Their accountant sent them an organizer every year that asked about foreign accounts, and they never returned it. Their 2010, 2011 and 2012 returns answered the foreign-account question no.

In 2013 they brought the money to a bank in the United States, filed amended returns, and looked at the IRS offshore disclosure program. The program would have cost them roughly $600,000, and they withdrew because they considered that too high. In 2018 the IRS found the three missed years willful and assessed $516,065 against each spouse, the IRS Independent Office of Appeals cut that by twenty percent to $420,051 each, and in 2019 both of them signed forms agreeing to the assessment. They never paid. The government sued in 2021, won on the papers, and in January 2026 the appeals court affirmed a judgment of $420,051 against each of them, with interest and a late-payment penalty of about $84,102 on top.

In reading that opinion with this page's question in mind, I have a few take-home points.

The first is that the return decided the case, and the return is where Form 8938 lives. The court did not need a confession. The answer of no on three returns, the organizer that was never sent back, the fee for held mail, and the form declining disclosure were enough to make the failure reckless, and reckless counts as willful for the civil penalty. Practice pointer. Answer your preparer's foreign-account question in writing every year, even when the answer is a single account with a small balance, because that written answer is what produces the FBAR and the Form 8938 at the same time, and its absence is what a court reads first.

Second, the thresholds are the wrong place to look for risk. The couple's account was over the FBAR line by a factor of two hundred and over every Form 8938 line from the year that form existed. Nobody near a threshold ends up in a published opinion. The people who do are the ones who treated a large account as private for years. Practice pointer. Map every foreign account against both forms once, in a table, and keep the table with the return, because a $15,000 account that appears on the FBAR and not on the return is a question the IRS can ask years later.

Third, the program number is the floor, and walking away from it does not lower the bill. The disclosure program in 2013 would have cost roughly $600,000 and ended the matter with a signed agreement. What the couple paid instead was $840,102 in penalties, about $84,102 for paying late, interest, and thirteen years of it, from the 2013 withdrawal to the 2026 decision. Practice pointer. Compare a program's number against the statutory penalty on the same facts, which for a willful miss is half the highest balance per year, and never against zero. Avoid a return that answers the foreign-account question no while a foreign bank is holding your mail, because the answer on the return is the evidence a court reads first, and it is the one document you signed under penalty of perjury.

Had that account gone on the return in 2011, with the foreign-account question answered yes, a Form 8938 attached and an FBAR filed, there would have been nothing to assess, because the tax on the account's income was never the problem. The screen I run at the consult asks the questions that opinion turned on, in the same order, before anything is filed, and it is a flat fee quoted at consult. Where the screen says non-willful, the streamlined submission goes to an international tax preparer. Where it says willful, the voluntary disclosure stays here.

Two limits apply to reading that case. The opinion decides the FBAR penalty and says nothing about whether a Form 8938 was ever filed for those years, so the Form 8938 penalty was not at issue and I will not guess at it. And the question of which facts make a failure reckless is decided case by case, so nobody can tell you from a chart which side of that line your own history sits on.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Each case described above is a decision of a court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on September 3, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. This article is general information about US tax and Florida law, not legal or tax advice, and does not create an attorney-client relationship. Reporting thresholds, penalty figures, and IRS procedures change; confirm current numbers at irs.gov and get advice on your own facts. Streamlined submissions and return preparation are referred to an international tax preparer; voluntary disclosure for willful exposure is handled here. Past results do not guarantee a similar outcome.