FBAR vs. Form 8938: Which Foreign Accounts You Must Report

A single foreign bank account with $12,000 in it can trigger an FBAR filing obligation, but not a Form 8938. Flip the facts to a $60,000 foreign brokerage account held by a married couple living in Germany, and the picture inverts in a way that surprises people: they owe the FBAR (the $10,000 trigger applies no matter where you live), yet they may owe no Form 8938 at all, because the 8938 threshold for a couple abroad starts at $400,000. Two forms, same account, opposite answers. These filings sound like the same requirement, they overlap constantly, and taxpayers routinely file one while forgetting the other. The penalties for guessing wrong are among the harshest in the whole Code.

Here is the practical breakdown of who files what, at what dollar levels, and where the two regimes diverge.

What is the difference between an FBAR and Form 8938?

The FBAR is filed with the Treasury's Financial Crimes Enforcement Network under the Bank Secrecy Act; Form 8938 is filed with the IRS under §6038D and attached to your income tax return. They are two separate laws administered by two separate agencies, and filing one does not satisfy the other.

The FBAR is technically FinCEN Form 114, the Report of Foreign Bank and Financial Accounts. It is filed electronically through the BSA E-Filing System, not with your 1040. Form 8938, the Statement of Specified Foreign Financial Assets, was created by the 2010 FATCA legislation and rides along with your income tax return.

Feature	FBAR (FinCEN 114)	Form 8938 (§6038D)
Governing law	Bank Secrecy Act, 31 U.S.C. §5314	IRC §6038D (FATCA)
Filed with	FinCEN (BSA E-Filing)	IRS, attached to return
Filing threshold	$10,000 aggregate	$50,000+ (varies by status)
Who files	US persons	"Specified persons"
Signature-authority accounts	Reportable	Generally not reportable

Who has to file an FBAR?

Any US person with a financial interest in, or signature authority over, foreign financial accounts whose aggregate value exceeds $10,000 at any point during the calendar year must file the FBAR. That $10,000 threshold is set at 31 CFR 1010.306(c), implementing 31 U.S.C. §5314 and 31 CFR 1010.350, and has not been indexed for inflation. It applies identically to a taxpayer in Toledo and a taxpayer in Tokyo: living abroad raises the Form 8938 thresholds, but never the FBAR's.

"US person" is broad: citizens, resident aliens, and domestic entities including corporations, partnerships, trusts, and LLCs. Two features trip people up:

• The threshold is an aggregate, not per account. Five accounts holding $2,100 each ($10,500 total) trigger the FBAR even though no single account is close to the limit.
• You report the maximum value during the year, not the year-end balance. An account that peaked at $40,000 in March and closed the year at $500 is reported at $40,000.

Signature authority alone counts. If you are a controller or CFO who can direct transactions in the company's foreign account but have no personal ownership, you still have a personal FBAR obligation. Finance employees at companies with overseas operations miss this one constantly, because nothing about the account feels like theirs.

Who has to file Form 8938?

You file Form 8938 only if your specified foreign financial assets exceed a threshold that depends on your filing status and whether you live in the US or abroad. The thresholds are set in Reg. §1.6038D-2, and unlike the FBAR they distinguish between the year-end value and the year's peak.

For taxpayers living in the United States (per the Form 8938 instructions):

Filing status	Value on last day of year	Value at any point in year
Single / MFS	over $50,000	over $75,000
Married filing jointly	over $100,000	over $150,000

Taxpayers whose tax home is abroad and who meet the presence tests get much higher thresholds: $200,000 year-end / $300,000 peak for single filers, and $400,000 / $600,000 for joint filers. This is why the German couple in the opening example likely owes no 8938: living abroad with a $60,000 account leaves them well under the $400,000 joint threshold, while a stateside couple with the same account would be filing. Their FBAR obligation, meanwhile, was triggered the day the account crossed $10,000.

What accounts and assets are reportable, and where do they differ?

The FBAR covers foreign financial accounts; Form 8938 covers a broader category of specified foreign financial assets, which includes accounts plus certain foreign holdings that are not in an account. The overlap is large but not complete.

Reportable on both:

• Foreign bank accounts (checking, savings, time deposits)
• Foreign brokerage and securities accounts
• Foreign mutual funds
• Certain foreign-issued cash-value life insurance and annuity contracts

Reportable on Form 8938 but generally NOT the FBAR:

• Stock or securities issued by a foreign entity but held directly (not inside an account)
• An interest in a foreign entity, such as a foreign partnership interest or foreign corporation stock held directly
• Foreign financial instruments and contracts with a non-US counterparty

Reportable on the FBAR but NOT Form 8938:

• Accounts over which you have only signature authority (no financial interest)

Neither form generally covers directly held foreign real estate, foreign currency held physically, or tangible assets like art and gold held directly. Real estate owned through a foreign entity is a different analysis: the entity interest itself can be a §6038D asset.

What are the deadlines?

The FBAR is due April 15, with an automatic extension to October 15 that requires no request. Form 8938 follows your income tax return deadline, including any extension you file for the 1040.

The FBAR's automatic six-month extension is granted by FinCEN without any form; you do not file for it. Form 8938, by contrast, is only extended if you extend your underlying return with Form 4868.

What are the penalties for not filing?

FBAR penalties are far more severe than Form 8938 penalties, and both are steep. The distinction between "willful" and "non-willful" FBAR failures is where cases are won and lost.

• Non-willful FBAR failure: a penalty capped per report. In Bittner v. United States (2023), the Supreme Court held the non-willful penalty applies per FBAR form, not per account, a meaningful taxpayer win. The base statutory figure is $10,000, adjusted for inflation under 31 U.S.C. §5321.
• Willful FBAR failure: the greater of roughly $100,000 (inflation-adjusted) or 50% of the account balance, per violation. This can exceed the account itself over multiple years.
• Form 8938 failure: a $10,000 penalty under §6038D(d), rising by up to $50,000 for continued failure after IRS notice, plus a 40% accuracy penalty under §6662(j) on any understatement attributable to an undisclosed asset. The §6038D statute of limitations can stay open on your whole return until the form is filed.

If you have unreported accounts from prior years, do not simply start filing this year and hope the past stays buried: "quiet disclosures" can convert a non-willful posture into something worse. The IRS maintains delinquent-filing and streamlined procedures for taxpayers who can certify non-willful conduct. Which path fits is fact-specific, and this is the point to consult your tax advisor and, where exposure is significant, a tax attorney before filing anything.

The bottom line for both forms

Most people who cross one threshold cross both, and they file them in two different places under two different laws. Run the FBAR aggregate test at $10,000 and the §6038D test at your applicable threshold separately, use each account's peak value where the form calls for it, and remember that signature authority alone puts you on the FBAR even with zero ownership. When in doubt, file. The cost of an unnecessary FBAR is a few minutes; the cost of a missed willful one can be half the account.

Sources

• 31 U.S.C. §5314 and §5321 (FBAR requirement and penalties)
• 31 CFR 1010.306(c) (FBAR $10,000 threshold); 31 CFR 1010.350 (reportable accounts)
• FinCEN Form 114 (Report of Foreign Bank and Financial Accounts) and instructions
• IRC §6038D (Statement of Specified Foreign Financial Assets)
• Reg. §1.6038D-2 (Form 8938 reporting thresholds)
• IRC §6662(j) (40% accuracy-related penalty for undisclosed foreign assets)
• Form 8938 and instructions (thresholds, reportable assets, filing deadline)
• Form 4868 (application for automatic extension of time to file)
• Bittner v. United States, 598 U.S. 85 (2023)