FBAR vs FATCA: The Differences Every US Expat Must Know (2025)

Statutes and Agencies: Two Different Animals

FBAR is FinCEN Form 114, filed under the Bank Secrecy Act (31 USC §5314 and 31 CFR Chapter X). It is a Treasury Department form filed with the Financial Crimes Enforcement Network, not the IRS. It is not part of your tax return and is not signed by your tax preparer in the same way. The legal authority for FBAR pre-dates the modern income tax disclosure regime by decades.

FATCA Form 8938 is filed under IRC §6038D, an income tax statute. It is part of your Form 1040, signed under penalties of perjury along with the rest of the return, and administered by the IRS. The two forms ask similar questions for similar reasons, but they live in different legal universes — and a mistake on one does not protect you on the other.

• FBAR — Bank Secrecy Act, filed with FinCEN.
• Form 8938 — Internal Revenue Code, filed with the IRS as part of Form 1040.
• Different statutes, different agencies, different penalty regimes.

Who Has to File

FBAR applies to any US person — citizen, resident, or domestic entity — who has a financial interest in or signature authority over foreign financial accounts whose aggregate maximum value exceeded $10,000 at any moment during the calendar year. The signature authority piece is wide: corporate treasurers, officers, and employees of US companies with signing power on a foreign account file FBAR even with zero personal interest.

Form 8938 applies to specified individuals (and now certain entities) holding specified foreign financial assets above the applicable threshold. The thresholds depend on filing status and residence. For single filers living abroad: $200,000 on the last day of the year or $300,000 at any time. For married filing jointly abroad: $400,000 / $600,000. For unmarried domestic filers: $50,000 / $75,000. The thresholds are deliberately set so most domestic taxpayers escape Form 8938 entirely while most expats with meaningful foreign assets are pulled in.

• FBAR threshold: $10,000 aggregate, single bar for everyone.
• Form 8938 threshold: tiered by filing status and residence, much higher than FBAR.
• FBAR includes signature authority; Form 8938 generally does not.

What Counts as a Reportable Asset (the Definitions Differ)

FBAR's definition of a foreign financial account is broad: bank accounts, brokerage accounts, mutual funds, foreign pension accounts, and life insurance with cash value are all in scope. Direct holdings of foreign stocks held outside an account are not. Real estate is not. Foreign trust interests are reportable to FBAR if the trust has a foreign account, but the account itself is what triggers the form, not the trust interest.

Form 8938's definition of specified foreign financial assets overlaps but extends further. It captures the same accounts plus directly held foreign stocks, partnership interests, foreign hedge fund and PE fund interests, and certain foreign-issued financial instruments not held through an account. It does not capture foreign real estate held directly, the same blind spot as FBAR.

• Both: foreign bank, brokerage, mutual fund, pension, cash-value life insurance accounts.
• Form 8938 only: directly held foreign stocks, partnership interests, foreign fund interests.
• Neither: directly held foreign real estate.

Penalties: Where the Real Difference Bites

FBAR penalties are the heaviest in the US international compliance regime. Non-willful penalties are capped at roughly $16,000 per violation (adjusted annually for inflation) and, after the 2023 Bittner decision, apply per report rather than per account — a major taxpayer win. Willful penalties are the greater of $100,000 or 50% of the account balance per violation per year. Criminal penalties apply in the most egregious cases under 31 USC §5322.

Form 8938 penalties are smaller in absolute terms but procedurally more dangerous. The base penalty is $10,000 for failure to file, $50,000 for continued failure after notice, and 40% accuracy-related penalties on understatements attributable to undisclosed assets. Critically, an unfiled or incomplete Form 8938 tolls the statute of limitations on the entire return until the form is filed — meaning the IRS can audit the whole return forever, not just the form.

• FBAR non-willful: ~$16,000 per report (post-Bittner).
• FBAR willful: greater of $100,000 or 50% of account balance, per year, per violation.
• Form 8938 base: $10,000 + $50,000 continued, plus 40% accuracy-related.
• Form 8938 omission tolls the statute of limitations on the full Form 1040.

Filing Mechanics: Different Deadlines, Different Systems

FBAR is filed electronically through the BSA E-Filing System. The deadline is April 15 with an automatic extension to October 15. There is no paper option. The FBAR is filed separately from your tax return and does not require a signature in the conventional sense — you authenticate through the BSA system. Form 8938 is attached to Form 1040 and follows the same deadline as your tax return, including any expat extension to June 15 and the October 15 election.

If you owe back FBARs and back Forms 8938 because you only just learned about either, the cleanest path is the IRS Streamlined Foreign Offshore Procedures, which covers both forms together for non-willful taxpayers. WO-CS03 (FBAR Catch-Up) walks through the Streamlined package.

• FBAR — BSA E-Filing System, separate from tax return, due April 15 with auto-extension to October 15.
• Form 8938 — attached to Form 1040, follows the 1040 deadline.
• Streamlined Foreign Offshore Procedures handle catch-up of both together.

Practical Compliance for the Average Expat

Most US expats end up filing both forms every year and the marginal effort to file FBAR after Form 8938 is small once your account list is built. Build the list once, keep peak balances and year-end balances for every account, save brokerage and bank statements with your tax records, and feed the same data into both forms. The mistake to avoid is filing one and not the other — they are independent obligations and one does not satisfy the other.

WO-US02 (FBAR Filing Guide) and WO-US03 (FATCA Form 8938) are the deep dives on each form. WO-CR01, WO-CR02, and WO-CR03 cover the country-specific corridors where the reporting hits hardest.