With certain limited exceptions, U.S. taxpayers with one or more foreign bank and investment accounts containing at least $10,000 (in cash or assets) in the aggregate during the calendar year must file an FBAR (Report of foreign bank and financial accounts), FINCIN Form 114. This obligation is separate from your obligation to file income tax return. See my article on FBARS – The Basics.
What is a foreign financial account for FBAR purposes?
If you have an on-line gambling account hosted in a foreign country in which you deposit funds to gamble, is it a foreign bank account? A federal district court said yes, but it was overruled by the Ninth Circuit Court of Appeals in U.S. v Hom (decided in 2016), in which the court held that merely having a foreign account that primarily facilitated online gambling, without additional characterizes of a financial account or bank — such as the transfer of funds from one financial institution to another, or providing interest-bearing accounts or lending services — was not a bank for FBAR purposes. Unfortunately, the Hom case was designated as “unpublished” and cannot be used for legal precedent, although FinCEN has backed off challenging on-line gambling accounts for the time-being.
What about a foreign virtual currency account?
The same reasoning under Hom should apply to these accounts. But there is good news and bad news concerning virtual currency accounts: Currently, FinCEN’s position is they are not reportable on an FBAR; the bad news – FinCEN is drafting regulations to make them FBAR reportable; however, as of the end of 2023, those regulations have not materialized.
Conclusion
If you currently have unreported on-line foreign gambling or virtual currency accounts that lack any traditional banking attributes, you probably do not have a FBAR filing requirement. For virtual currency accounts, this will change when FinCEN publishes regulations requiring FBAR reporting.