Combined summarization and response to comments

Please see the supplemental file “F8938CommentsBinderOMB2195.pdf” for original
comments that are summarized in this document with corresponding page numbers.
Pg01 Duplication of TD 9022.1

The number of filers is an estimate
provided by the form’s originating office. It
is based upon an extrapolation of filing
numbers for similar forms that must be
filed. Since this is not a duplicated
collection with identical requirements for
taxpayers are required to file, precise filing
numbers will not be available until the form
actually is filed for a complete filing
season. Therefore we consider the
professional estimate of the originating
office as valid.

Pg01 expects time to
complete to be same as TD
90-22.1 (his case 3.0 hours

R1

Pg01 why cant IRS and
Treasury share info already
provided on TD 90-22.1
Pg02 only implement if FBAR
is eliminated
Pg03 Unfair and
unconstitutional to treat
Americans and Americans
living abroad differently
Pg03 Duplicate information
from 5471
Pg03 reporting of pension
accounts that are tax
compliant in the country
where they are located
should be eliminated from
reporting.
Pg03 if individual is not the
beneficial owner of the
assets should be eliminated.
Pg03 50,000 threshold is too
low raise to 1/4 or 1/2 million
and use index to inflation
exchange rate to value
assets.
Pg03 foreign tax compliance
should exclude any IRS
action
Pg04 estimate of burden too
low

R1

R1

Please see IRC 6038D

R2

No Response

NR

R1
R2

The originating office has been informed
and will take under advisement.

R3

R2

R2

The OMB UNIT stands behind its estimate
of burden of form 8938 provided to it by the
1

R4

Pg04 remove section B and
C
Pg 04 section B should not
require reporting of
Pg04 Section should not
include leases
Pg 04 section B should not
require reporting of
retirement funds or securities
Pg04 Section C would take
hours to fulfill.
Pg04 Delete section B and C
Pg04 questions wording of
"Schedule of any interest in a
foreign entity", proposes
"controlling interest"
Pg05 States the form will
take more than 1 hour to fill
out
Pg06 Questions that with 5
million Americans living
abroad how can 300,000
respondents’ is accurate.
Pg07 8939 is a duplicate
request of TD F90-22.1
Pg07 Part B is already
reported in schedule D.
Pg07 Part C is duplicate of
Schedule B.
Pg07 Part D is already
reported in Schedule C.
Pg07 It will take 5 hours to fill
out.
Pg10 allow for electronic
filing.
Pg10 All Parts need more
lines for reporting.
Pg11 1hour and 5min is
unrealistic should be double
or triple this figure.
Pg11 reporting will take at
least 8 hours.
Pg12 This form is redundant
with TD F 90-22.1, Form
5471, Form 8865, Form 6252

originating office
NR
NR
R3
R3

R1
NR
R3

R4

R1

R1
R3
R3
R3
R4
The form will be eligible for electronic filing.
R5
R4

R4
R1

2

R5

and 3520.
Pg13 1 hour and 5min in
reporting is not accurate.
Pg14 Requiring this form will
require an income tax return
and an Estate tax to be
reported for each year and
tax payer meeting the
threshold. .
Pg15 Exchange rate will
cause middle income to fill
out form.
Pg16 How to determine
reporting of joint accounts
held by US citizens and nonUS citizens.
Pg17 not requiring everyone
with foreign assets to use the
form would discriminate
against expatriates.
Pg17 require Americans who
are married to nonAmericans to file jointly
before they can collect social
security payments.
Pg18 no issue request for
form.
Pg19 This form places US
spouses’ of foreign nationals
at risk because the reporting
requirements requires too
much of local financial
institute.
Pg20 the form discriminates
against Americans living
abroad. It assumes guilt until
proven innocence.
Pg20 US citizens living
abroad are required to
provide net worth while those
living in the US are not
required to do this.
Pg20 Having comments
deadlines over the holidays
is designed to discourage
comments.
Pg21 Form's part A is

R4
R3

NR

R3

NR

NR

NR
NR

NR

R3

NR

R3
3

duplicative reporting of
information required on TD
90.22-1. Also the same
might be true for form 5471
Pg22 Schedule D and B are
redundant.
Pg24 8938 covers any
foreign financial accounts.
Pg25 states that it has been
published that the form will
be required for tax year
2010.

Pg 26 IRS should conduct
more outreach to insure tax
payers abroad know their
obligations
Pg 26 Asks that the IRS
“Listens to the organizations
such as the “American
Citizens Abroad, and The
New York Bar Association.
As well as others who have
proposed improvement to
this process.

R3
R3
As of today, April 13, 2011, Form 8938 has
not been finalized. The reporting
requirement applies only to tax years
beginning after March 18, 2010. As a result,
individuals whose tax year is calendar year
2010 do not have to submit Form 8938 with
their 2010 income tax return. The IRS will
not require compliance with section 6038D
until the IRS releases the revised, final
Form 8938””.
R3.

R6

Counsel met with citizen organizations on
the week of April 11 Counsel is going to
provide questions and responses

Pg 27 1 hour and 5 min. is
unrealistic
Pg 27 Form TD F 90-22.1 is
already gathering info
Pg 27 The Respondent
believes that they would be
required to list foreign assets
held in excess of 50,000 in
addition to the 1099 reporting
requirement. Even if the
don’t live abroad. And that
will take more than an hour.

R4

Pg 28 reporting request is
duplicated already covered
by Forms 5471 (foreign

R1 and R5

R1
Should be cleared up with publication of
instructions

4

R7

corporations), 8865 (foreign
partnerships), 8858 (foreign
disregarded entities) and
3520 (foreign trusts).
Pg28 Unclear what value of
asset should be reported
PG 28 Respondent wants
the comment period to be
extended until after the final
form and instructions are
released.
Pg30 The 378,000 is too low
for the required file form.
Pg This form would then
require disclosure of
accounts to the US
government by non-US
citizens.
Pg 33 objection to all
information must be in
English.
Pg34 Obtaining the value of
the assets for the foreign
hold owner will be costly
Pg 34 issue with determining
and getting highest value of
offshore assets
Pg 34 yearly reporting of
Real estate property will
require yearly profession
valuation and will be too
costly.
Pg 34 is foreign insurance to
be listed?
Pg 34 Individual assets will
take an average of 15
minutes to report typical
holding will be 20 items.
Pg 35 reporting is duplicated
for T99-22.1
Pg 35 will require hiring tax
preparer professional
Pg 36 reporting will illegal in
some countries as being an
invasion of privacy.
Pg 36 rejects number of
who will be required to file

R7
Although the initial comment period for the
Federal Register Notice process has ended
all comments received are taken into
consideration."
R1
R7

R2

NR

NR

NR

R7
R4

R1
NR
R7….

R1
5

R8

this form
Pg 37 would require repeat
reporting of assets as they
are transferred between
different accounts.
Pg 39 asking for comments
during the holidays is to
discourage comments.
Pg 41 dead line for
comments should be
extended to 60 days after the
forms instructions are
published.
Pg 42 allow reporting in
foreign currency
Pg 43 Number of filers is not
consistent with those who file
form 2555, 1116 and FBAR.
Pg 44 cost to the IRS if it is
assumed “At 1200 effective
hours per IRS agent per
year, this corresponds to
1,666 agents fully devoted to
just Form 8938. At an
average cost of $100,000 per
IRS agent, this amounts to
$166 million of IRS expense.”
Pg 45 to specify that the
amounts reported are yearend balances, rather than
high water marks, translated
into U.S. dollars at year-end
exchange rates;
Pg. 46 if electronic filing of
this form is not provided then
the taxpayer will not be able
to file any of their taxes
electronically.
Pg 47 "Identifying number"
instead of "Your social
security number",
Pg 49 Threshold minimum
requirements are often times
lower than 50,000 reporting
requirement of form 8938
Pg 50 Encourages the IRS
should encourage Congress

R3

R8

R8.

R2
R1

NR

R2

R5

R3

NR

NR
6

to repeal FATCA Legislation.
Pg 53 The threshold doesn't
comply with the Foreign
Earned Income Exclusion
(form 2555-EZ) stated for the
2009 tax return, which is
91,400 USD.
Pg 54 Parts A-D of Draft
Form 8938 offers in
adequate space or reporting.
Pg 56 Provide electronic
filing and growth of the form.
Pg 58 form is redundant
because you already have
the foreign bank account
form (the TD F 90-22.1), and
Forms 5471, 8865, 6252 and
3520.
Pg 65 Should we be
gathering information from
our clients with a view to this
form being included in the
2010 returns.
Pg 66 form 8938 is a deep
invasion of the privacy of our
financial matters.
Pg 66 Respondent questions
possible vulnerability to filers
by sending tax information
and account information
through foreign mail services.
Exposing filers of 8938 to
identity theft.
Pg 69 same information as
Form 8891 (relating to
Canadian retirement plans,
and already redundant with
FBAR), and there is much
overlap with Form 3520
(foreign trusts).
Pg69 does the form itself
require double reporting of
assets in different parts of
form? “Part B asks for a list
of separate stocks and
bonds. If these are contained
within the accounts reported

R3

R5

R5
R1

R6

NR

R5

R3

R7

7

in Part A, must they be listed
again in Part B?”
Pg 70 Respondent suggests
that beefing up Form TD F
90-22.1 so that it meets the
8938 reporting requirements.
Pg 73 Respondent believes
that Form 8938 should be
required of anyone with
foreign assets; otherwise it
would discriminate against
expatriates.
Pg 77 Requests that only
report the last 4 digits of the
bank account numbers.
Pg 77 Eliminate the
requirement of filing this form
if all bank accounts are held
in the taxpayers country of
residence and the resident
country has entered into a bilateral treaty arrangement for
the sharing of information.
Pg 77 Respondent suggests
that instead of reporting
numbers just report a tick
mark beside a range.
Pg 78 Remove Part D since
this is all ready required on
Forms 5471. Form 3520, and
Forms 8865.
Pg 80 Respondent states
that the form is a property
census not an income tax
measure (thereby risking
constitutional objections),
Pg 84 Respondent wants to
know how to handle
properties that value is either
under or over asset’s
evaluation.
Pg 85 Which evaluation
methods is required,
preferable, and which are
allowed and must a taxpayer
reevaluate the value of the
holding every year?

R2

R7.

R3

R3

R3

R7

NR

R7

R7

8

9