FBAR question

[ferricide 3]

Hi --

My spouse entered the U.S. as a fiance on a K1 Visa on December 3, 2013. We got married on December 10, 2013. By none of the "tests" in IRS documentation was he considered a resident of the U.S. for 2013.

Consequently, the only way for him to be treated as a resident for tax purposes was to include a signed statement saying he wished to be treated as a resident for 2013. That being the case, I filed a joint tax return (1040) for 2013.

Now, I'm a bit confused about FBAR. The FBAR uses the same schemes to determine residency, and again none of them apply. Only "US persons" have to file an FBAR. For 2013, he is not a "US person" as best as I can tell. However, if we filed joint taxes and asked for him to be treated as a resident for tax purposes, does that mean we should file an FBAR?

Reading the website documentation for FBAR, I don't see anything which indicates that this applies or that a similar statement would be accepted with the FBAR filing.

Thanks!

[ferricide 3]

For those who are curious, I emailed the IRS FBAR help email and got this reply:

Dear Sir/Madam,

Individuals who elect to be treated as US Residents for tax purposes under section 7701(b) should file FBARs only with respect to foreign accounts held during the period covered by the election.

Section 7701(b)

(1). Green card test ~ individuals who at any time during the calendar year have been lawfully granted the privilege of residing permanently in the U.S. under the immigration laws automatically meet the definition of resident alien and the green card test; or

(2). Individual who are not lawful permanent resident are defined as resident aliens under the substantial-presence test for and meet the specification contained in IRC 7701(b)(3); to meet the Substantial Presence Test for the calendar year (January 1 to December 31), individuals must be physically present in the U.S. for at least 31 days during the current year, and at least 183 days during the three year period that includes the current year and the two immediately preceding years.

In addition, the following are exempted individuals who do not count days in US (Pub 519)

A or G visa – an individual temporarily present in the US as a foreign government- related

J or Q visa – a teacher or trainee temporarily present in the US who substantially complies with the requirement of the visa

F, J, M or Q visa – a student temporarily present in the US who substantially complies with the requirement of the visa

A professional athlete temporarily present in the US to complete in a charitable event

(3). The person files a first year election on his income tax return to be treated as a resident alien under IRC 7701(b)4.

Therefore, if none of the three criteria listed above apply, then the person is not a US Resident for FBAR purpose.