Missed FBAR or Form 8938: Which One Do You Actually File?

Missed FBAR filings and unfiled Forms 8938 are two separate failures, not one. The FBAR reports foreign financial accounts to FinCEN once the aggregate tops $10,000; Form 8938 reports a wider class of specified foreign financial assets to the IRS at far higher thresholds. For a US person living in the UK, both usually apply.

At Jungle Tax this is the page we send clients to when the question finally surfaces — usually after a UK bank writes asking them to confirm their US status, or after an adviser mentions FATCA in passing. It is written for people with real balance sheets: a founder with shares on a Companies House register, an executive with a workplace pension and a share incentive plan, a family with a portfolio held through a UK platform. The two regimes look similar from a distance. They are not. Understanding exactly where they diverge is what turns a frightening, open-ended exposure into a defined, finite catch-up project.

Missed FBAR or Form 8938: the short answer

If you are a US citizen, green card holder or otherwise a US tax resident, and you hold financial accounts outside the United States, you are inside two overlapping reporting systems that were built at different times, by different agencies, for different reasons.

• FinCEN Form 114, the FBAR. Filed electronically with the Financial Crimes Enforcement Network — part of the Treasury, but not the IRS. It is a Bank Secrecy Act report, not a tax form. It captures foreign financial accounts: bank accounts, building society accounts, brokerage and custodial accounts, most pensions held in account form, and accounts over which you merely hold signature authority. The trigger is an aggregate value of more than $10,000 at any point in the calendar year.
• IRS Form 8938, Statement of Specified Foreign Financial Assets. Created by FATCA in 2010 and filed with your Form 1040. It captures foreign financial accounts too, but it reaches further: directly held foreign stock, interests in foreign partnerships and LLCs, foreign pension interests, certain insurance contracts with cash value, and debt instruments issued by foreign persons. The thresholds are much higher, and they change depending on whether you live abroad.

The practical answer to “which one do I file?” is almost always both, and the reason people get this wrong is that the FBAR threshold is so low that it is crossed by an ordinary UK current account and a workplace pension, while the Form 8938 threshold for a UK resident is high enough that many people assume they are outside it — right up until the year they exercise options, sell a property, or a pension transfer lands.

Why the thresholds differ so sharply when you live in the UK

The FBAR threshold does not move. It is $10,000 aggregate, for everyone, everywhere, and it has not been indexed since 1970. A US person in Chicago with $10,001 across two accounts and a US person in Chelsea with the same balances have identical FBAR obligations.

Form 8938 is different by design. Congress recognised that Americans genuinely living abroad hold ordinary domestic-to-them assets that would otherwise flood the system, so the thresholds for taxpayers meeting the foreign-residency test are set four times higher. The result is a wide band — roughly $10,000 to $200,000 of UK assets for a single filer — in which the FBAR is mandatory and Form 8938 is not required at all. That band is where most of the confusion in this topic lives.

Filing position	FBAR (FinCEN 114)	Form 8938 — year-end value	Form 8938 — peak during year
Single, living in the US	$10,000 aggregate, any time	$50,000	$75,000
Married filing jointly, living in the US	$10,000 aggregate, any time	$100,000	$150,000
Single or married filing separately, living abroad (UK)	$10,000 aggregate, any time	$200,000	$300,000
Married filing jointly, both living abroad (UK)	$10,000 aggregate, any time	$400,000	$600,000

Two traps sit inside that table. First, the higher abroad thresholds require you to meet a residency test — broadly, a tax home abroad plus either bona fide residence for a full tax year or physical presence outside the US for at least 330 days in a twelve-month period. A US-based executive on a two-year London secondment who keeps a US abode may fail it and be held to the $50,000 threshold. Second, a US citizen married to a British spouse who files separately gets the single-filer thresholds, not the joint ones — and must generally report the full value of any jointly held account, not half of it.

Which UK assets appear on one form and not the other?

This is the heart of it. The FBAR asks a narrow question: is there an account at a foreign financial institution? Form 8938 asks a broader one: do you hold a specified foreign financial asset? The same economic exposure can therefore land on one form, both, or neither — depending entirely on the legal wrapper.

UK asset	FBAR	Form 8938	The point that catches people out
UK current, savings or building society account	Yes	Yes, if threshold met	Dormant accounts with small balances still count once the aggregate is crossed.
Cash ISA	Yes	Yes, if threshold met	UK tax-free status is irrelevant to US reporting; the interest is also US-taxable.
Stocks and shares ISA held via a platform	Yes (custodial account)	Yes, if threshold met	The wrapper is reportable and the funds inside are usually PFICs requiring Form 8621.
General investment account with a UK platform (nominee-held)	Yes (custodial account)	Yes, if threshold met	The account is reportable even though the platform’s nominee is the registered holder.
Shares in your own UK limited company, registered in your name	No	Yes	No account exists, so no FBAR — but the shareholding is a specified foreign financial asset. This is the single most common omission in founder files.
Interest in a UK LLP or foreign partnership	No	Yes	Reportable on Form 8938 as an “other” asset; the partnership’s own accounts are not yours to report unless you have authority.
UK SIPP or personal pension	Generally yes	Yes, if threshold met	Held in account form with an identifiable value; report the maximum value in the year.
UK workplace defined contribution pension	Generally yes	Yes, if threshold met	Employer schemes are routinely forgotten because the member never “opened” anything.
UK defined benefit (final salary) scheme	Often no	Generally yes	There may be no account, but there is an interest in a foreign pension plan. Valuation is the hard part.
UK State Pension	No	Generally no	Treated as a foreign social-security-type programme rather than a reportable asset.
UK life assurance or investment bond with cash surrender value	Yes	Yes	Cash value policies are financial accounts; term-only cover with no cash value is not.
Premium Bonds and NS&I products	Generally yes	Generally yes	Held with a government-backed institution, but still outside the US — and prizes are US-taxable income.
Company bank account you can sign on but do not own	Yes (signature authority)	No	The exact mirror image of the founder shareholding: FBAR only, 8938 never.
UK residential or commercial property held directly	No	No	Directly held real estate is outside both regimes — but rental income is still returnable.
UK property held through a company or partnership	No (property itself)	Yes (the entity interest)	The wrapper is reportable even though the bricks are not.
Physical gold, art, watches in a UK safe deposit box	No	No	A safe deposit box is not a financial account. Metals held in a custodial account are.
Cryptocurrency on a UK-based exchange	Position evolving	Position evolving	FinCEN has signalled an intention to bring virtual currency accounts within FBAR; treat as high-risk and document your position.

The UK company shareholding: 8938 only

A founder who incorporated a UK limited company and holds the shares personally — name on the register at Companies House, share certificate in a drawer — has no foreign financial account in respect of that holding. There is nothing to put on an FBAR. But those shares are stock issued by a foreign person that is not held in a financial account, which is precisely what Form 8938 Part II was written to capture. If the company is worth more than the abroad threshold and nothing else changes, the founder’s first-ever Form 8938 obligation can arise in a year in which they filed no FBAR at all, because their personal cash never touched $10,000.

Note the knock-on effects. Ownership of 10% or more of a foreign corporation usually pulls in Form 5471 as well, and where a Form 5471 is filed the shareholding does not need to be repeated in Part IV of Form 8938 — but the Form 8938 must still be filed and must state how many such forms were submitted. Missing that cross-reference is a common defect in otherwise competent returns.

The platform nominee account: both forms

The mirror scenario is an investor holding the same UK equities through an execution-only investment platform. Legally, the platform’s nominee company is the registered shareholder; the client holds a beneficial interest through a custodial account. That custodial account is unambiguously a foreign financial account — FBAR applies from the first dollar over the aggregate threshold — and it is also a specified foreign financial asset for Form 8938. Same shares, same value, completely different reporting footprint, purely because of how the holding is wrapped.

We flag this constantly in review work: a client who moved a personal holding onto a platform mid-year, or off a platform into direct registration, changes their reporting profile without changing their investment at all.

Pensions: where the two regimes drift apart

UK pensions are the most valuable and the most misreported category in this corpus. A SIPP or a modern workplace defined contribution scheme has an identifiable account and an identifiable value, so it belongs on both forms. A classic final salary scheme frequently has neither, and the FBAR position is often that there is no reportable account — while Form 8938 still requires the interest in the foreign pension plan to be disclosed, with a value determined on a reasonable basis and the methodology documented. Reporting a defined benefit entitlement at nil without explanation is not the same as reporting it correctly.

Has filing one ever satisfied the other?

No. Not once, at any point since Form 8938 was introduced for the 2011 tax year. The forms go to different agencies under different statutes, and the IRS says so explicitly in its published comparison of the two regimes. Three consequences follow that matter in a catch-up:

• Duplication is required, not optional. A UK bank account above the thresholds is listed on both forms, in full, every year. There is no election to report once.
• The Form 8938 duplicative-reporting exception does not work in reverse. Assets already disclosed on Forms 3520, 5471, 8621 or 8865 need not be itemised again in Part IV of Form 8938 — but nothing on any of those forms relieves you of an FBAR.
• Separate penalty regimes attach. One omission can therefore generate exposure under Title 31 and Title 26 simultaneously, assessed by different parts of the Treasury on different timetables.

What actually happens when both were missed

Most of the files that reach us are not single-year problems. They are five, eight or fifteen years of quiet non-filing by someone who left the US in their twenties, or who never lived there at all. The correct response is almost never to file one late form and hope. It is to establish which relief route the facts support, and then to build the whole submission to that route’s evidential standard.

Streamlined Foreign Offshore Procedures

For a US person resident in the UK whose failure to file was non-wilful, the Streamlined Foreign Offshore Procedures remain the principal route. The submission comprises three years of delinquent or amended federal returns, six years of FBARs filed electronically with the appropriate reason code, and a signed certification of non-wilfulness. For taxpayers who meet the non-residency test, the miscellaneous offshore penalty is not imposed — tax and interest are due, but the penalty regime that makes this topic frightening is switched off. Our IRS streamlined filing team prepares these end to end, including the narrative that carries the certification.

The certification is the part that is routinely underestimated. It is a signed statement, under penalties of perjury, setting out the specific facts of your personal and financial background that explain the failure. A generic paragraph is a weak submission. A properly built narrative reconciles to the return package: if the returns show a UK company, the narrative explains the company; if the FBARs show an account opened in 2013, the narrative explains 2013.

Delinquent FBAR submission procedures

Where the only defect is the FBAR — all income was correctly reported, all US tax was paid, and the taxpayer is not under examination or investigation — late FBARs can be filed directly through the BSA E-Filing System with a stated reason for late filing. The IRS has said it will not impose a penalty in those circumstances. This is a narrow door. It closes the moment there is unreported income, which in UK fact patterns is common: ISA interest, dividend income inside a general investment account, or a PFIC distribution will usually take you out of it.

Late Forms 8938 on their own

The IRS retired its formal delinquent international information return procedures page in late 2020. Late Forms 8938 are now filed with the amended or delinquent return to which they belong, accompanied by a reasonable-cause statement where relief from the automatic penalty is being sought. That statement is subject to the same discipline as a streamlined certification: specific, dated, consistent with everything else in the package.

Choosing between them

Fact pattern	Usual route	Why
Returns filed and correct, FBARs missed	Delinquent FBAR filing with reason code	No unreported income means the narrow no-penalty path is available.
Returns missed or understated, plus missed FBAR and 8938	Streamlined Foreign Offshore	The only route that packages returns, FBARs and certification together with penalty relief.
Returns correct, Form 8938 omitted only	Amended return with late 8938 and reasonable cause	Form 8938 travels with the return; it cannot be filed alone.
Conduct may not have been non-wilful	Specialist counsel before anything is filed	A streamlined certification signed on wrong facts is a materially worse position than doing nothing yet.

Valuation, exchange rates and the 5 April problem

Both forms are reported in US dollars, and both use the maximum value during the calendar year. Neither uses HMRC’s average rates and neither uses the UK tax year. This creates predictable errors in files prepared from UK data:

• The year end is wrong. A UK pension statement dated 5 April is not a 31 December value. Peak balances must be reconstructed from the calendar year, which usually means pulling twelve months of statements rather than one annual summary.
• The rate is wrong. Conversion for both forms is by reference to the Treasury Reporting Rates of Exchange for the last day of the calendar year, applied to the maximum sterling value — not the rate on the day the peak occurred.
• Transfers are double-counted — correctly. Moving £150,000 between two UK accounts in March means both accounts show that peak. The FBAR does not net; the aggregate for threshold purposes is inflated, and that is the intended result.

Penalties: what is genuinely at risk

	FBAR (Title 31)	Form 8938 (Title 26)
Non-wilful failure	Statutory $10,000, inflation-adjusted annually; the Supreme Court held in 2023 that this applies per annual report, not per account	$10,000 per year
Continued failure after IRS notice	Not applicable	$10,000 per 30 days, up to a further $50,000
Wilful failure	Greater of $100,000 or 50% of the account balance at the time of the violation, inflation-adjusted; criminal exposure in the worst cases	Fraud and criminal provisions apply generally
Related accuracy penalty	Not applicable	40% accuracy-related penalty on an understatement attributable to an undisclosed foreign financial asset
Assessment window	Six years from the FBAR due date	The return stays open until three years after the missing information is furnished

That last row is the one sophisticated clients react to. An omitted Form 8938 does not merely expose the asset — it can keep the limitation period open on the entire return until the form is filed, and there is a separate six-year window where more than $5,000 of income from a foreign financial asset was omitted. A 2016 return with a missing Form 8938 may still be assessable today. That is the strongest argument for filing rather than waiting: filing starts a clock that has otherwise never started. If you want to model the downside before deciding, our FBAR penalty calculator gives an indicative range.

Why HMRC data reaches the IRS anyway

The UK and the US operate a Model 1 intergovernmental agreement. UK banks, building societies, investment platforms and many pension providers identify account holders with US indicia — a US place of birth, a US address, a US telephone number, standing instructions to a US account — and report those accounts to HMRC, which transmits the data to the IRS annually. The letters clients receive asking them to confirm their US status and supply a taxpayer identification number are that process in action.

The asymmetry matters. FATCA reporting captures the accounts, which means the IRS may already hold data that maps to your FBAR and to Part I of your Form 8938. It does not capture the directly held company shareholding, the LLP interest or the defined benefit entitlement — the Part II items. So the risk profile is uneven: the account data is likely already there, while the asset data depends entirely on you disclosing it.

Item	United States	United Kingdom
Reporting year	Calendar year to 31 December	6 April to 5 April
Foreign account disclosure	FBAR and Form 8938	No equivalent standalone form; offshore income reported on the foreign pages of the Self Assessment return
Filing deadline	15 April, automatic extension for expatriates and an automatic FBAR extension to 15 October	31 January following the tax year for online Self Assessment
Catch-up mechanism	Streamlined Foreign Offshore Procedures; delinquent FBAR filing	Worldwide Disclosure Facility for offshore matters
Data source on you	FATCA data received from HMRC	Common Reporting Standard data from over 100 jurisdictions

A US catch-up that ignores the UK side is half a job. Where the same accounts produced income that was never declared to HMRC — foreign dividends, offshore bond gains, income arising after a change of residence status — the UK exposure runs on its own timetable and its own penalty scale. Our UK compliance team works the HMRC side of the same file so that the two disclosures do not contradict each other. Nothing damages a non-wilfulness narrative faster than a UK disclosure telling a different story about the same account.

A worked example

Take a US citizen who moved to London in 2016 and has filed nothing since 2018. She holds a current account and a cash ISA (peak combined value about £60,000), a stocks and shares ISA on a UK platform (£140,000), a workplace pension (£210,000) and 60% of the UK consultancy she founded in 2019, worth perhaps £900,000.

• FBAR. Required every year from the moment the aggregate crossed $10,000. Reportable: current account, cash ISA, stocks and shares ISA, workplace pension. Not reportable: the company shares.
• Form 8938. The account values alone sit near the $200,000 single-filer abroad threshold in the earlier years and clearly exceed it later. Once the company shareholding is added, the threshold is comprehensively breached in every year. Reportable: all four accounts plus the shareholding.
• Beyond the two forms. Majority ownership of a UK company brings Form 5471 and potentially GILTI computations. The funds inside the stocks and shares ISA are almost certainly PFICs requiring Form 8621 with elections to consider. UK pension treatment turns on the US–UK treaty.
• Route. Streamlined Foreign Offshore, assuming non-wilfulness holds: three years of returns with the full information-return suite, six years of FBARs, and a certification that explains a decade of silence in her actual words.

The instructive point is that her single largest asset — the company — never appears on an FBAR at all, while her smallest — a cash ISA with a few thousand pounds — appears on every one. Anyone reasoning from balance size alone gets this exactly backwards.

How we sequence a clean catch-up

1. Establish the perimeter first. Every account, every entity interest, every pension, every year, before a single form is drafted. Scope creep discovered mid-submission is what forces amended amendments.
2. Fix the residency test. Which years meet the abroad thresholds and the streamlined non-residency requirement determines both the Form 8938 obligation and the relief route.
3. Rebuild calendar-year peaks. Twelve months of statements per account per year, converted at the correct Treasury year-end rate.
4. Map assets to forms. Using the table above, so the FBAR schedule and Form 8938 Parts I and II are built from one reconciled inventory rather than assembled independently.
5. Layer the other information returns. Forms 5471, 8621, 3520 and 3520-A as the facts require, applying the duplicative-reporting exception correctly.
6. Write the certification last. Once the numbers are settled, so the narrative and the schedules cannot diverge.
7. Align the UK position. Confirm whether an HMRC disclosure is also required, and file the two in a consistent order.

The mistakes we see most in high-value files

• Filing FBARs for the missed years and assuming the Form 8938 problem went with them. It did not, and the limitation period on those returns is still open.
• Omitting the company shareholding because it is not an account, and therefore “not a foreign account issue”.
• Treating a stocks and shares ISA as tax-exempt because it is exempt in the UK — then compounding it by ignoring the PFIC funds inside.
• Reporting only the accounts a UK bank has already reported under FATCA, on the assumption the IRS knows the rest.
• Using 5 April statement values on a 31 December report.
• Netting an internal transfer between two UK accounts and understating the aggregate.
• Filing a streamlined submission with a two-sentence certification and no supporting chronology.

If you are working through this alongside other cross-border filing questions, our full guide library covers the individual forms in depth, and our private client team handles the larger, entity-heavy catch-ups where several regimes interact at once.

Primary sources worth reading

We work from the published guidance rather than summaries of it. The IRS maintains a direct comparison of Form 8938 and FBAR requirements, and its FBAR reference page sets out who must file, the deadline and the position on late filing. Form 8938 itself, with current instructions and thresholds, sits on the About Form 8938 page, and the relief routes are described under the streamlined filing compliance procedures. On the UK side, HMRC’s overview of tax on foreign income and its guidance on Individual Savings Accounts are the relevant starting points.

Speak to us before you file anything

A missed FBAR and a missed Form 8938 are solvable, and for most US persons in the UK they are solvable with no penalty at all — but only if the submission is built once, correctly, to the standard of the relief route the facts actually support. The worst outcome is not the years of silence; it is a rushed, partial filing that fixes one regime, leaves the other exposed, and starts a conversation you are not ready to have. If you are weighing up a multi-year catch-up, contact our cross-border team for a confidential, privileged-in-substance conversation about your position. We will tell you what is actually required, what it will cost, and how long it will take before you commit to anything.