Interactive Brokers Ireland Limited and IRS Form 8938

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squirrelcorn
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Interactive Brokers Ireland Limited and IRS Form 8938

Post by squirrelcorn »

Hi all,

I've been searching a while for a clear answer to this seemingly simple question but have been unable to find it. Any insight would be greatly appreciated.

I am a US citizen living in Europe. I have an Interactive Brokers account through Interactive Brokers Ireland Limited.

On the IRS Q&A page for Form 8938 (https://www.irs.gov/businesses/corporat ... -form-8938) it says the following:

Question:
I own foreign stocks and securities through a foreign branch of a U.S.-based financial institution. Do I need to report these on Form 8938?
Answer:
If a financial account, such as a depository, custodial or retirement account, is held through a foreign branch or foreign affiliate of a U.S.-based financial institution, the foreign account is not a specified foreign financial asset and is not required to be reported on Form 8938.
From what I can tell Interactive Brokers Group is based in Connecticut, U.S. so can anyone point me to something that can clarify whether Interactive Brokers Ireland Limited qualifies as a 'foreign affiliate of a U.S.-based financial institution' and therefore does not require reporting on Form 8938?
Lazerr
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Joined: Fri Aug 12, 2022 2:41 pm

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by Lazerr »

https://www.law.cornell.edu/cfr/text/26/1.1471-2#a_2_v

Does this clear things up for you? Just kidding, it obviously does not. The "foreign branch of US FI"-exception is way too ambiguous and opaque for laymen.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

If you look at exhibit 21 to Interactive Brokers Group, Inc.’s 10-K (that’s the public company), you’ll see the Irish entity listed as a subsidiary of a Connecticut company.

I believe you have received a 1099, which means the same info would have been reported directly to the IRS.

For these reasons, I don’t believe one is required to treat IBKR (Ireland) as “foreign” for either the FBAR or the 8938. However, I have not been able to get any conclusion from IBKR and out of an abundance of caution I include the account on my disclosures.
TedSwippet
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Location: UK

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by TedSwippet »

EddyB wrote: Sun Mar 05, 2023 6:44 am However, I have not been able to get any conclusion from IBKR and out of an abundance of caution I include the account on my disclosures.
I think that's probably the right answer to every "should I report this?" question regarding IRS form 8938, FinCEN form 114, and the plethora of other "informational" reporting forms that the IRS spews out.

These forms serve no purpose except to generate or increase potential penalties. There are penalties for under-reporting but none for over-reporting. Waste no time trying to decipher contorted IRS verbiage. Simply (over-)report wherever the IRS has, as usual, provided zero clarity.
squirrelcorn wrote: Sat Mar 04, 2023 2:45 pm I am a US citizen living in Europe. I have an Interactive Brokers account through Interactive Brokers Ireland Limited.
Can I just suggest you review what you hold in this account, to make sure nothing in it falls foul of the US's spiteful PFIC tax rules? Holding a UCITS ETF would probably be easily done in this account, but it creates a raft of nasty US tax problems. Because of US tax laws, US citizens living in the EU and UK face an especially difficult investing landscape.
Lazerr
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Joined: Fri Aug 12, 2022 2:41 pm

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by Lazerr »

EddyB wrote: Sun Mar 05, 2023 6:44 am If you look at exhibit 21 to Interactive Brokers Group, Inc.’s 10-K (that’s the public company), you’ll see the Irish entity listed as a subsidiary of a Connecticut company.
The problem is, is Interactive Brokers Group a financial institution? The US brokerage is Interactive Brokers LLC, itself a subsidiary of Interactive Brokers Group. So while Interactive Brokers Ireland is a subsidiary of a US corporation, it might not be a subsidiary of a US financial institution.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

Lazerr wrote: Sun Mar 05, 2023 8:18 am
EddyB wrote: Sun Mar 05, 2023 6:44 am If you look at exhibit 21 to Interactive Brokers Group, Inc.’s 10-K (that’s the public company), you’ll see the Irish entity listed as a subsidiary of a Connecticut company.
The problem is, is Interactive Brokers Group a financial institution? The US brokerage is Interactive Brokers LLC, itself a subsidiary of Interactive Brokers Group. So while Interactive Brokers Ireland is a subsidiary of a US corporation, it might not be a subsidiary of a US financial institution.
That’s indeed what gives me pause and why I do report it, as noted above. However, why IBKR (Ireland) would issue a 1099 if it is a foreign financial institution, and what my 8938 adds if the IRS already has a 1099, are questions that make me suspect my approach is unnecessarily conservative. Very frustrating, though, like many other aspects of dealing with US tax compliance even when one just wants to know what’s required.
tubaleiter
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

I'll join the consensus that I just report it (IBKR UK in my case, but same idea). If I have to go to the trouble of filling out an 8938, I'm just going to report everything that might be required - the incremental 60 seconds to type in another account is a small price to pay to not spend 60 minutes trying to puzzle out what the IRS really requires, or to run the risk that I missed something and will be subject to ridiculous penalties.
Lazerr
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by Lazerr »

Indeed. Only a big hassle if the account in question is the reason why you would have to file in the first place.
Topic Author
squirrelcorn
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by squirrelcorn »

Thanks for all the comments.
Lazerr wrote: Sun Mar 05, 2023 4:56 am https://www.law.cornell.edu/cfr/text/26/1.1471-2#a_2_v

Does this clear things up for you? Just kidding, it obviously does not. The "foreign branch of US FI"-exception is way too ambiguous and opaque for laymen.
Yeah, that was a bit beyond my comprehension skills :D
TedSwippet wrote: Sun Mar 05, 2023 7:41 am I think that's probably the right answer to every "should I report this?" question regarding IRS form 8938, FinCEN form 114, and the plethora of other "informational" reporting forms that the IRS spews out.

These forms serve no purpose except to generate or increase potential penalties. There are penalties for under-reporting but none for over-reporting. Waste no time trying to decipher contorted IRS verbiage. Simply (over-)report wherever the IRS has, as usual, provided zero clarity.
I'm somewhat relieved to hear that this appears to be actually an unclear topic and not just something I've overlooked. But the consensus is clear that the best option is to report it. Hopefully this can be useful to anyone else who comes searching for the same question :thumbsup
TedSwippet wrote: Sun Mar 05, 2023 7:41 am Can I just suggest you review what you hold in this account, to make sure nothing in it falls foul of the US's spiteful PFIC tax rules? Holding a UCITS ETF would probably be easily done in this account, but it creates a raft of nasty US tax problems. Because of US tax laws, US citizens living in the EU and UK face an especially difficult investing landscape.
I have tried to be careful here for exactly this reason and hold no ETFs (or mutual funds, etc.) in this account. So I hope I am good in this respect.
Lazerr wrote: Mon Mar 06, 2023 11:07 am Indeed. Only a big hassle if the account in question is the reason why you would have to file in the first place.
This is exactly the case for me :annoyed But it sounds like I should just bite the bullet and do the 8938 including this account, since it appears to be not worth the risk of not completing the form and proving definitively it isn't needed will not be possible.
tubaleiter
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

squirrelcorn wrote: Mon Mar 06, 2023 1:52 pm This is exactly the case for me :annoyed But it sounds like I should just bite the bullet and do the 8938 including this account, since it appears to be not worth the risk of not completing the form and proving definitively it isn't needed will not be possible.
The "good" news is that if you've done an FBAR, you've got almost all the information you need for the 8938 - just wasting time transcribing information the US government already has into a different form. I just keep a running Excel sheet with all the information for both of them, so it's a few minutes once a year looking up top account balances, then just transcription.
TedSwippet
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by TedSwippet »

tubaleiter wrote: Mon Mar 06, 2023 2:09 pm The "good" news is that if you've done an FBAR, you've got almost all the information you need for the 8938 - just wasting time transcribing information the US government already has into a different form. ...
From the National Taxpayer Advocate 2022 PURPLE BOOK:
Legislative Recommendation #8
Harmonize Reporting Requirements for Taxpayers Subject to Both the Report of Foreign Bank and Financial Accounts and the Foreign Account Tax Compliance Act by Eliminating Duplication and Excluding Accounts Maintained by U.S. Persons in the Countries Where They Are Bona Fide Residents
Best not to get too excited at the prospect. The Taxpayer Advocate Service suggests this regularly; in fact, almost every year since FATCA passed in 2010. The IRS simply ignores it every time.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

Lazerr wrote: Mon Mar 06, 2023 11:07 am Indeed. Only a big hassle if the account in question is the reason why you would have to file in the first place.
Yeah, for me it's the only reason I need to file an 8938. Grumble, grumble.
tubaleiter
Posts: 247
Joined: Tue Mar 09, 2021 11:58 am

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

TedSwippet wrote: Mon Mar 06, 2023 3:47 pm
Legislative Recommendation #8
Harmonize Reporting Requirements for Taxpayers Subject to Both the Report of Foreign Bank and Financial Accounts and the Foreign Account Tax Compliance Act by Eliminating Duplication and Excluding Accounts Maintained by U.S. Persons in the Countries Where They Are Bona Fide Residents
Best not to get too excited at the prospect. The Taxpayer Advocate Service suggests this regularly; in fact, almost every year since FATCA passed in 2010. The IRS simply ignores it every time.
Nibbling around the edges even if they did do it. While I welcome anything that avoids pointlessly wasting my time filling in forms, double reporting on FBAR and 8938 is very low on the list of pain points for US citizens abroad - just one of the most obviously silly.

Now if they recommended abolishing citizenship based taxation, that might be something to get a bit excited about...
TedSwippet
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by TedSwippet »

tubaleiter wrote: Tue Mar 07, 2023 12:54 am Nibbling around the edges even if they did do it. While I welcome anything that avoids pointlessly wasting my time filling in forms, double reporting on FBAR and 8938 is very low on the list of pain points for US citizens abroad - just one of the most obviously silly.
It is less about the waste of time though, than it is about the outrageous penalties the IRS applies if you don't waste this time, compounded by their hiding the requirement to waste it so well that you may never find it. Not everybody has the IRS home page as their browser's new tab setting. The second part of this recommendation, not requiring either of these forms for home country accounts, would at least be a huge weight off for many.

As for FATCA itself, TIGTA reports that the IRS does next to nothing with FATCA data, and over a decade generated a total of only $14 million of extra income; compare to the $8.7 billion extra income "estimate" used to justify passing FATCA. Set against IRS implementation costs of $547 million, that's a pretty poor ROI. For taxpayers then, either a kick in the teeth or heartwarming, depending on your viewpoint.
tubaleiter
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

TedSwippet wrote: Tue Mar 07, 2023 2:50 am It is less about the waste of time though, than it is about the outrageous penalties the IRS applies if you don't waste this time, compounded by their hiding the requirement to waste it so well that you may never find it. Not everybody has the IRS home page as their browser's new tab setting. The second part of this recommendation, not requiring either of these forms for home country accounts, would at least be a huge weight off for many.

As for FATCA itself, TIGTA reports that the IRS does next to nothing with FATCA data, and over a decade generated a total of only $14 million of extra income; compare to the $8.7 billion extra income "estimate" used to justify passing FATCA. Set against IRS implementation costs of $547 million, that's a pretty poor ROI. For taxpayers then, either a kick in the teeth or heartwarming, depending on your viewpoint.
No argument from me - I would welcome the removal of the duplication, and of the ridiculous fines for both FBAR and 8958. Would also welcome the FBAR threshold being indexed to inflation or similar, it's absurdly low. Repeal of FATCA would be nice, too!

But it's all just adding or removing incremental complexity - we're still stuck with US persons abroad needing to try to comply with two tax systems (their country of residence plus the US) that aren't designed to work together, and have greater or lesser success in papering over the gaps with a treaty (if you're lucky!). Fixing the root cause of citizenship based taxation would save masses of time, for taxpayers and the IRS. Don't think it would actually impact tax revenue that much (they could stop paying people like me with kids to file our taxes - I'll take the money I'm due, but it makes no sense why the US government is subsidising my kids in the UK).

But enough of my soapbox, I know we both think the US system is outrageous.
TedSwippet
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by TedSwippet »

tubaleiter wrote: Tue Mar 07, 2023 3:15 am But enough of my soapbox, I know we both think the US system is outrageous.
We do. The difference between us is that I'm free of it. :-) If you haven't already seen it, this Tax Notes International article on FATCA, published in January, offers a quite entertaining and refreshingly direct take on the whole nonsense. Selected quotes:
Dear IGA Partner:
Please urge your resident individuals to perform the requested tax compliance actions, even though it does not benefit your country one bit, and only benefits the U.S. fisc. Do this for Uncle Sam because we’re telling you to.
- Yours truly, the IRS.
Dear IGA Partner:
We would do this menial task ourselves, but it seems that we can’t because the individuals in question are not U.S. residents and they’ve stopped listening to us. Maybe they’ll listen to you.
- Regards, the IRS.
Dear IGA Partner:
Please don’t allow your FFIs to cut off banking services to U.S. persons, even though our unilateral actions have given them every reason to do so, and even though it’s entirely the FFI’s own business decision as to whom it does or doesn’t offer banking services. In short, please don’t do that bad thing which our laws have pushed you to do.
- Regards, the IRS.
tubaleiter
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

TedSwippet wrote: Tue Mar 07, 2023 11:57 am But enough of my soapbox, I know we both think the US system is outrageous.
We do. The difference between us is that I'm free of it. :-) If you haven't already seen it, this Tax Notes International article on FATCA, published in January, offers a quite entertaining and refreshingly direct take on the whole nonsense.
[/quote]

Thanks, that is a good take on it. I don't tend to consider the perspective of non-US banks and tax authorities, but totally makes sense that they'd be frustrated with FATCA too. I expect the only reason they put up with it is because it's the US - if any other country tried to impose all that work on them, I'd expect a big "no thanks!".
3333
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by 3333 »

I am in a similar situation: US citizen living in EU country. I opened a Interactive Brokers account, which was set up with Interactive Brokers UK. I have not yet funded this account because I am concerned about whether I would be buying a PFIC, a concern also raised by the poster below.
Can I just suggest you review what you hold in this account, to make sure nothing in it falls foul of the US's spiteful PFIC tax rules? Holding a UCITS ETF would probably be easily done in this account, but it creates a raft of nasty US tax problems. Because of US tax laws, US citizens living in the EU and UK face an especially difficult investing landscape.
I spoke to IB customer service, who said I can perform an in-kind transfer of my US domiciled Vanguard mutual funds. So my understanding is that I would avoid a PFIC by going this route, i.e., transferring my US based funds to IB UK.

I just want to make sure I'm not missing anything here. From reading this thread, it sounds like I would receive a 1099 from IB UK, and then file the IRS form 8938 just to be safe.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

3333 wrote: Sat Mar 25, 2023 2:38 am I am in a similar situation: US citizen living in EU country. I opened a Interactive Brokers account, which was set up with Interactive Brokers UK. I have not yet funded this account because I am concerned about whether I would be buying a PFIC, a concern also raised by the poster below.
Can I just suggest you review what you hold in this account, to make sure nothing in it falls foul of the US's spiteful PFIC tax rules? Holding a UCITS ETF would probably be easily done in this account, but it creates a raft of nasty US tax problems. Because of US tax laws, US citizens living in the EU and UK face an especially difficult investing landscape.
I spoke to IB customer service, who said I can perform an in-kind transfer of my US domiciled Vanguard mutual funds. So my understanding is that I would avoid a PFIC by going this route, i.e., transferring my US based funds to IB UK.

I just want to make sure I'm not missing anything here. From reading this thread, it sounds like I would receive a 1099 from IB UK, and then file the IRS form 8938 just to be safe.
I use IE, not UK, but I think the important question (if you are a fund investor) is whether you can buy fund investments for which no KID is produced. That they will accept an incoming transfer of an existing investment addresses that question once; will you be able to buy what you want thereafter?
3333
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by 3333 »

I use IE, not UK, but I think the important question (if you are a fund investor) is whether you can buy fund investments for which no KID is produced.
I think the answer is no - I won't be able to buy US based funds; I don't see those as available to me on their website. But I am now retired and in the spend-down phase, and I think I can rebalance using funds in my 403(B)(my 403(B) has no problem with me living in the EU). IB would also make currency transfers simple at good rates, though there are certainly other means to do that.

I think the downside is that transferring my US funds to IB UK/IR as an in-kind transfer and not having access to US domiciled funds would prevent me from being able to tax gain harvest in thosee accounts. So for me, the problem it would solve is my current lack of transparency with Vanguard, and the uncertainly of what might happen if they determine I am living abroad. I own a home in the US and have maintained that address with Vanguard. But from what I have read on this site and elsewhere, the most likely consequence Vanguard might take is to prevent me from buying funds, but allowing me to sell them - basically the same situation as IB UK.

My main concern has been whether performing an in-kind transfer of my US funds to IB UK (or IE) would still trigger PFIC status, because it's held by a foreign brokerage house, but from reading this thread it sounds like the fact that IB UK is a subsidiary of a US financial firm makes that a non-issue.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

The jurisdiction of organization of the broker (or a parent entity) is an issue for the FBAR/8938 reporting of the account; the jurisdiction of organization of the fund is an issue for PFIC status of the investment.
tubaleiter
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Joined: Tue Mar 09, 2021 11:58 am

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by tubaleiter »

3333 wrote: Sat Mar 25, 2023 2:38 am I am in a similar situation: US citizen living in EU country. I opened a Interactive Brokers account, which was set up with Interactive Brokers UK. I have not yet funded this account because I am concerned about whether I would be buying a PFIC, a concern also raised by the poster below.
Can I just suggest you review what you hold in this account, to make sure nothing in it falls foul of the US's spiteful PFIC tax rules? Holding a UCITS ETF would probably be easily done in this account, but it creates a raft of nasty US tax problems. Because of US tax laws, US citizens living in the EU and UK face an especially difficult investing landscape.
I spoke to IB customer service, who said I can perform an in-kind transfer of my US domiciled Vanguard mutual funds. So my understanding is that I would avoid a PFIC by going this route, i.e., transferring my US based funds to IB UK.

I just want to make sure I'm not missing anything here. From reading this thread, it sounds like I would receive a 1099 from IB UK, and then file the IRS form 8938 just to be safe.
Other thing to confirm is how your country of residence treats those US mutual funds. Do they have some kind of local analogue to the PFIC regime? You get around the KID restrictions by doing the transfer, and agree they're not PFICs, but some "other" countries have their own regimes (UK, for example, has the HMRC reporting regime, which is not nearly as painful as PFIC but still fairly ugly if you don't follow the rules).
3333
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Joined: Sun Dec 04, 2022 4:17 am

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by 3333 »

Another potential problem that might lead to a PFIC (if I do an in-kind transfer of US mutual funds to IB IE) is that when selling funds, if the proceeds go into a foreign money market fund, I think the money market fund would be considered a PFIC.
TedSwippet
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Location: UK

Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by TedSwippet »

3333 wrote: Fri Mar 31, 2023 7:49 am Another potential problem that might lead to a PFIC (if I do an in-kind transfer of US mutual funds to IB IE) is that when selling funds, if the proceeds go into a foreign money market fund, I think the money market fund would be considered a PFIC.
A non-US money market fund will almost certainly be a US PFIC.

However ... while this may result in some incredibly heavyweight US tax reporting overhead -- if full-on completion is required, IRS form 8621 can be astonishingly time-consuming and/or expensive to complete, and probably something you would want to avoid purely on the grounds of saving your time for something (anything!) more enjoyable -- for once things can probably be arranged so this will not result in a worse actual tax result.

If you use 'mark-to-market' PFIC reporting, you pay US income tax rates on a fund's entire return; that is, its dividends annually, and its capital gains annually even if not realised. The punitive part of this nonsense is income tax rates on unrealised capital gains. But, a money market fund will not have any capital gains, leaving just annual tax on dividends, and the tax on these will come out to be no worse than if you had held a US domiciled money market fund instead.

Non-US domiciled money market funds may be the one single case where PFIC rules do not make them a US tax trap in comparison to US domiciled money market funds.
EddyB
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by EddyB »

EddyB wrote: Sun Mar 05, 2023 9:27 am
Lazerr wrote: Sun Mar 05, 2023 8:18 am
EddyB wrote: Sun Mar 05, 2023 6:44 am If you look at exhibit 21 to Interactive Brokers Group, Inc.’s 10-K (that’s the public company), you’ll see the Irish entity listed as a subsidiary of a Connecticut company.
The problem is, is Interactive Brokers Group a financial institution? The US brokerage is Interactive Brokers LLC, itself a subsidiary of Interactive Brokers Group. So while Interactive Brokers Ireland is a subsidiary of a US corporation, it might not be a subsidiary of a US financial institution.
That’s indeed what gives me pause and why I do report it, as noted above. However, why IBKR (Ireland) would issue a 1099 if it is a foreign financial institution, and what my 8938 adds if the IRS already has a 1099, are questions that make me suspect my approach is unnecessarily conservative. Very frustrating, though, like many other aspects of dealing with US tax compliance even when one just wants to know what’s required.
In case anyone else was still curious, after a few months, I have received a response from Interactive Brokers. They have informed me that Interactive Brokers Ireland Limited is a "foreign financial institution."
Lazerr
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Re: Interactive Brokers Ireland Limited and IRS Form 8938

Post by Lazerr »

Sure glad I reported mine then.
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