FinCen for Aussie?

[Possi]

My client is NOT a US Citizen. He and his wife are citizens of Australia. 

She does not work, he is here, gainfully employed, on a VISA, and they have a home in Australia. They have rental property in the US as well as his employment. 

Is he considered a "US Resident" and required to file the FinCEN? I didn't think so, but I'm doubting myself. 

Reading this:

"FinCEN Form 114, Report of Foreign Bank and Financial Accounts (FBAR). A U.S. person is required to file Form 114 if the person had a financial interest in or signature authority over at least one financial account located outside the U.S., and the aggregate value of all foreign financial accounts exceeded $10,000 at any time during the calendar year. A U.S. person includes U.S. citizens, U.S. residents, and business entities, trusts and estates, created or organized in the United States."

 

[Pacun]

No. FinCEN is for US citizens and green card holders.

[TaxCPANY]

If those Australians can be considered 'tax residents' of the US due to the "substantial presence" test of IRC Sec. 7701(b)(3), they indeed are the "U.S. residents" who would be required to file FinCEN Form 114. FBAR encompasses even certain non-resident aliens who are not required income-tax returns; so please scrutinize those clients' situation as thoroughly as your doubt is telling you to, Possi.

A pertinent section of BNA puts it this way:

"The instructions to the form [FinCEN Form 114] say that an alien is a "resident" for FBAR purposes if classified as a resident alien under §7701(b).^{10 The Preamble to the 2011 FBAR regulations does provide that "a legal permanent resident who elects under a tax treaty to be treated as a non-resident for tax purposes must still file the FBAR,"11}

10 See
^{http://sdtmut.fincen.treas.gov/news/FinCENFBARElectronicFilingRequirements.pdf,
at page 49. It should be noted that the definition of the term "resident" in the statute requiring Form 114 to be filed by a resident appears to be much broader than the definition in §7701(b). See the discussion of this issue - which has been rendered moot by the current FBAR regulations - in Bissell, "The 2004 Act: Impact on Foreign Private Clients," 34 Tax Mgmt. Int'l J. 177 (3/11/05), at 185-187.}

^{http://bna-stage.bna.com/#_ftnref1111 See http://www.gpo.gov/fdsys/pkg/FR-2011-02-24/pdf/2011-4048.pdf
at pages 10238 and 10245 (31 CFR §1010.350(b)(2), which defines "resident of the United States" as "an individual who is a resident alien under 26 U.S.C. §7701(b) and the regulations thereunder …." (Emphasis added.)"}

Good hunting!

[Possi]

Thanks for all the information!