Requirements that taxpayers report certain information related to foreign assets have been suspended while the IRS is revising the relevant forms. An individual holding an interest in a specified foreign asset must, under Code Sec. 6038D, file Form 8938, Statement of Specified Foreign Financial Assets. A shareholder of a passive foreign investment company (PFIC) is required by Code Sec. 1298 to file Form 8621, Return by a Shareholder of a Passive Foreign Investment Company or a Qualified Electing Fund.
The Form 8938 requirement is new and applies on or after March 18, 2010. The Form 8621 requirement has been expanded, as some taxpayers were previously required to file this form. For those newly required to file this form, the requirement also applies on or after March 18, 2010. The forms are to be attached to the individual’s tax return. However, the IRS intends to issue new regulations and revised versions of these forms. For taxpayers who are required to file their tax returns prior to the release of the revised forms, the requirement of attaching the forms to the returns is suspended (except for those who were previously required to file Form 8621).
When the revised forms are released, affected taxpayers will be required to attach them to their next returns, completed for the year for which the requirement was suspended (the “suspended year”). The limitation period for assessment of tax will not expire until three years after the IRS receives the form (or forms, if both are required). If the revised form is properly filed with a timely filed return, it will be treated as having been filed on the date that the income tax or information return for the suspended year was filed. The statute of limitations may be extended if the forms are not properly filed when they become available. The requirement for some taxpayers to file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts, is not affected by the application of Code Sec. 6038D or 1298.
Notice 2011-55, 2011FED ¶46,402
Code Sec. 1298
CCH Reference – 2011FED ¶31,642.75
Code Sec. 6038D
CCH Reference – 2011FED ¶35,598.021
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