FBAR and Form 8938 — what's the difference, and do I have to file both?
Often yes. The FBAR (FinCEN Form 114) and Form 8938 are two separate laws, two separate agencies, and two separate filing requirements that frequently apply to the same accounts. Filing one does not satisfy the other. Check each one on its own.
Head-to-head comparison
| FBAR (FinCEN Form 114) | Form 8938 (FATCA) | |
|---|---|---|
| Governing law | Bank Secrecy Act (Title 31) | Internal Revenue Code § 6038D |
| Filed with | FinCEN, electronically via the BSA E-Filing system — not with your tax return | IRS, attached to your Form 1040 |
| Filing threshold | $10,000 aggregate — combined maximum value of all foreign financial accounts at any point during the year | Varies (see table below); measured at year-end or at any point during the year |
| What it covers | Foreign financial accounts only (bank, brokerage, mutual funds, pensions, cash-value insurance, signature-authority accounts) | Broader: specified foreign financial assets — accounts plus directly held foreign stock, foreign entity interests, foreign financial instruments |
| Deadline | April 15, with automatic extension to October 15 (no request needed) | Same as your tax return — April 15 (June 15 automatic if living abroad), plus extensions |
| Non-willful penalty | Up to $10,000 per violation (~$16,536 adjusted), per annual report | $10,000 per failure, plus $10,000 per 30 days after IRS notice, up to $50,000 additional |
| Willful penalty | Greater of $100,000 or 50% of account balance (~$165,353 adjusted), per year | Up to 40% underpayment penalty on the related tax, plus criminal exposure |
| Covers signature authority without ownership | Yes | No |
Form 8938 thresholds (the part people get wrong)
The FBAR threshold is the same $10,000 for everyone. Form 8938's threshold depends on where you live and your filing status — each pair is "last day of the year" versus "at any time during the year," and crossing either one triggers filing:
| Filing status | Living in the U.S. | Living abroad |
|---|---|---|
| Single / married filing separately | $50,000 (year-end) / $75,000 (any time) | $200,000 (year-end) / $300,000 (any time) |
| Married filing jointly | $100,000 (year-end) / $150,000 (any time) | $400,000 (year-end) / $600,000 (any time) |
The "living abroad" thresholds only apply if you meet Form 8938's foreign-residency test (a tax home in a foreign country plus either bona fide residence or the 330-day physical-presence test). Example: a single filer living in Toronto with $60,000 in a Canadian brokerage account must file an FBAR (well over $10,000 aggregate) but does not hit Form 8938 ($200,000/$300,000 abroad test). The same person living in New York would file both.
Why both exist at once
Congress created FATCA in 2010 without repealing the older FBAR regime, so the two overlap but never merged:
- The same account can be on both forms. A Canadian brokerage account over $200,000 for a single filer abroad appears on the FBAR and on Form 8938, each with its own rules.
- Some things appear on only one. Foreign stock held directly in your own name (not through a brokerage account) is reportable on Form 8938 but not the FBAR. An employer's foreign account where you only have signature authority (no ownership) is FBAR-reportable but not an 8938 asset.
- TFSA, RRSP, and other Canadian registered accounts go on both forms when each threshold is met — treaty treatment changes the tax, not the reporting.
- Directly held foreign real estate is reportable on neither.
Frequently asked questions
If I file Form 8938 with my return, do I still need a separate FBAR?
Yes, if you meet the FBAR's $10,000 aggregate test. They go to different agencies through different systems — the FBAR is filed electronically with FinCEN, and nothing attached to Form 1040 submits it. The Schedule B question on your tax return asks whether you have foreign accounts and whether you were required to file an FBAR; answering honestly doesn't file it for you.
Why is the FBAR penalty per report and the 8938 penalty per form?
Both quirks come from litigation and statute design. For non-willful FBAR violations, the Supreme Court's 2023 Bittner decision held the penalty applies per annual FBAR report, not per account — so one missed FBAR with ten accounts is one non-willful penalty. Form 8938's penalty is statutory: $10,000 for the initial failure, then $10,000 for each 30-day period after the IRS sends notice, capped at $50,000 additional. Neither structure makes either form optional.
Do I have to file an FBAR if I live in the U.S. and only have a small Canadian chequing account?
If all your foreign accounts combined never exceed $10,000 at any point in the year, no FBAR is due. But check the math: aggregate means adding every foreign account's maximum value during the year. A $6,000 chequing account plus a $5,000 TFSA is $11,000 — a filing requirement. Form 8938 is almost certainly not triggered at those balances for a U.S.-resident single filer (needs $50,000/$75,000).
Sources
- IRS Publication 5569, Report of Foreign Bank and Financial Accounts (FBAR) Reference Guide — https://www.irs.gov/pub/irs-pdf/p5569.pdf
- IRS, "Comparison of Form 8938 and FBAR requirements" (official comparison chart referenced in Publication 5569)
- FinCEN, BSA E-Filing system — FinCEN Form 114 filing instructions (via Publication 5569)