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January 16, 2023
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Do I need to file 3520+8938+FinCEN114 if I received foreign cash gift in my foreign account? Do I need to file FinCEN114 next year if I keep my foreign cash in foreign account

  • January 16, 2023
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Scenario: my dad in China transferred cash (equivalent to USD 220k)  into my Chinese bank account as gift in 2022, several questions:

1. Should I file form 3520 + form8938(fill part IV line15) + efile FinCEN114 for tax year 2022? Any other forms I should submit for this foreign cash gift?

2. The gift is for me only and deposited into my individual Chinese bank account, can I file 3520 individually(not check 1i box)? But I file 1040 together with my husband.

3. Because of currency control in China I can't transfer all money to my US account within 1 year, If I keep >100K cash gift in my Chinese account for tax year 2023, 2024, do I need to efile 3520, 8938, FinCEN114 again in year 2023,2024? 

Thank you in advance for whoever willing to help answer the questions.

Best answer by pk12_2

@Yangza , should  one assume that you  and your spouse are both US persons ( Citizen / Green Card / Resident for tax purposes ) ?  Additionally should we assume that your parents ( donors) are US persons  (or foreign i.e. Non-Resident Aliens?)?

 If I assume  both to be true  i.e. you/spouse  are both US persons and the donors are foreign persons, then

(a) for a gift of that size -- above US$ 100,000-- form a foreign person you must  use form 3520 to recognize  the gift. It has no effect on your taxes  or those of the donor(s).  This is only for the year in which you constructively received the amount.

(b) If any  amount above US#10,000 rests in  your foreign bank account you would need to recognize this  on FinCen form 114  by the return filing date -- again this has no tax implications.  You have to continue doing this as long as  a foreign bank account/ financial account at any time in the year has more than US$10,000 or equivalent -- no tax implications but if not reported the penalties are quite onerous. Each person whom owns  or has signature authority over a foreign bank account is subject to FBAR  ( form 114, FinCen  ) requirements.

(c) form 8938 -- FATCA , may also need to be filed  and again this has nil tax implications but not filing  penalty is onerous.

(d) note that both these forms  ( Fincen 114 and  8938 ) are individual  ownership related not per  joint filing.

(d)  When you  choose to transfer these amounts from a foreign account to US bank account  there  will be SAR ( Suspicious  Activity  Report ) raise by your bank to treasury but generally this is just routine paperwork.  However if you do move a million or more , if I remember correctly , you will need treasury permission.

(e) also please note that any amounts sitting in foreign bank or otherwise  that generates  income ( interest / dividend  etc. ), you need to recognize  these amounts as income on your  return for the year .

 

Does this answer your query?   Is there more I can do for you ?

Xie Xie

pk

 

2 replies

Employee
January 16, 2023

Paging @pk12_2. Stay tuned.

pk12_2Answer
Employee
January 16, 2023

@Yangza , should  one assume that you  and your spouse are both US persons ( Citizen / Green Card / Resident for tax purposes ) ?  Additionally should we assume that your parents ( donors) are US persons  (or foreign i.e. Non-Resident Aliens?)?

 If I assume  both to be true  i.e. you/spouse  are both US persons and the donors are foreign persons, then

(a) for a gift of that size -- above US$ 100,000-- form a foreign person you must  use form 3520 to recognize  the gift. It has no effect on your taxes  or those of the donor(s).  This is only for the year in which you constructively received the amount.

(b) If any  amount above US#10,000 rests in  your foreign bank account you would need to recognize this  on FinCen form 114  by the return filing date -- again this has no tax implications.  You have to continue doing this as long as  a foreign bank account/ financial account at any time in the year has more than US$10,000 or equivalent -- no tax implications but if not reported the penalties are quite onerous. Each person whom owns  or has signature authority over a foreign bank account is subject to FBAR  ( form 114, FinCen  ) requirements.

(c) form 8938 -- FATCA , may also need to be filed  and again this has nil tax implications but not filing  penalty is onerous.

(d) note that both these forms  ( Fincen 114 and  8938 ) are individual  ownership related not per  joint filing.

(d)  When you  choose to transfer these amounts from a foreign account to US bank account  there  will be SAR ( Suspicious  Activity  Report ) raise by your bank to treasury but generally this is just routine paperwork.  However if you do move a million or more , if I remember correctly , you will need treasury permission.

(e) also please note that any amounts sitting in foreign bank or otherwise  that generates  income ( interest / dividend  etc. ), you need to recognize  these amounts as income on your  return for the year .

 

Does this answer your query?   Is there more I can do for you ?

Xie Xie

pk

 

YangzaAuthor
January 17, 2023

Thank you so much PK! Your answer is precise and very helpful! Your assumption is correct, me and my husband are US person and donor is Chinese citizen. 

Thank you for also reminding the interest generated in foreign bank account I need to file that part as income. 

One follow up question: If the cash gift is a fixed deposit (I can't withdraw or transfer until 2 years later), do I still need to recognize the interest as part of my income next year? Or I only need to recognize it in 2 years later when I can withdraw or transfer it?

Appreciate if you can advise about the 3520 filing: Do I need to joint file 3520 with my husband since we will file 1040 as joint? Can I file 3520 for myself only? 

Employee
February 24, 2023

@Yangza  I apologize for missing to reply to your question about form 3520 ---- it is form for the individual whom received the gift -- so if it is a gift ONLY to you then you include  only your name / details on the gift ( even when filing as MFJ). Same thing is true for form 114 ( FBAR form at FinCen ) , assuming the  foreign account is ONLY in the name of you alone -- if joint then each owner must file his/her own FBAR form ( kind of stupid because the same amount shows up in each of the forms  -- but it is an individual responsibility ).

 

Does this cover your query?   Is there more I can help you with ?

pk