2.This presentation does not constitute tax advice. It is for information purposes only.
US financial institutions (USFIs) and foreign financial institutions (FFIs) may be required to:
Identify and report directly or indirectly to the IRS with respect to:
accounts owned directly or indirectly by specified US persons, and
financial institutions that do not comply (or "participate") with FATCA (so-called "non-participating FFIs”)
Withhold a 30% FATCA tax from certain U.S. source income when paid to:
Non-participating FFIs (NPFFIs),
Non-compliant passive non-financial foreign entities (NFFEs), and
If the withholding agent is an FFI, recalcitrant accounts
The Foreign Account Tax Compliance Act (FATCA) is
US tax legislation that aims to prevent or detect tax evasion by U.S. Persons who
Hold bank deposits and/or securities in offshore accounts, or
Own foreign investment entities (e.g., personal investment corporations and trusts)
FATCA was enacted into law on 3/18/2010 as part of the HIRE ACT
Added new Chapter 4 to the Internal Revenue Code
4.30 Percent FATCA Withholding
Imposed on “withhold-able” payments, including:
U.S. source income from securities
Interest on bank deposit accounts maintained in the United States or in a foreign branch of a U.S. bank
Gross proceeds from the sale/redemption of U.S. securities (not until 2017)
When made to FFIs or NFFEs unless:
The FFI qualifies as a participating FFI, a registered deemed-compliant FFI, a certified deemed-compliant FFI or an exempt beneficial owner
The NFFE certifies that it has no substantial U.S. owners, certifies that it has substantial U.S. owners and discloses their identity, or is classified as an excepted NFFE (excepted from the ownership certifications because it presents a low risk of being used for tax evasion)
Withholding as an Enforcement Tool
Gross Sales Proceeds paid after 2016
FATCA Withholding tax
Interest Income paid after 2014 to a new account
FATCA Withholding tax
US Treasury Securities
Malaysian Bank invests in US Treasury securities that generate US source interest income and eventually gross proceeds from sale
If Bank is a NPFFI a new 30% FATCA withholding tax will apply to periodic payments of interest income, and if the bonds are sold after 2016, gross sale proceeds
Example: Impact if a Bank Does Not Comply with FATCA
6.The term “foreign financial institution” includes investment entities and certain holding companies as well as traditional financial institutions
Any non-U.S. entity that falls into one of the following categories:
Custodial banks or brokerage firms
Insurance companies that issue policies having cash value or annuities
Investment Entities, including
Entities that conduct the following activities as a business on behalf of customers
Trading in financial assets
Investing, administering, or managing money or financial assets
Collective investment vehicles, mutual funds, hedge funds, and private equity funds
Holding company or treasury center that
Is part of an expanded affiliated group (EAG) that includes another FFI
Is formed in connection with or availed of by certain investment entities
What is an FFI?
7.To avoid 30 percent withholding under FATCA, a FFI must enter into agreement with IRS and meet the following obligations:
Comply with verification and due diligence procedures for payees and financial accounts
Obtain information necessary to determine if each account is a U.S. account
File annual reports with the IRS on U.S. accounts
Withhold and pay the IRS 30 percent of withhold-able payments made to:
Recalcitrant account holders, Non-compliant FFIs, and FFIs electing to be withheld upon
Comply with IRS requests for additional information on U.S. accounts
Obtain a waiver of foreign laws that would prevent reporting or disclosure (e.g., privacy or bank secrecy laws) of U.S. persons or close any U.S. account failing to provide a required waiver.
The IRS can terminate the FFI agreement for any performance failures.
All FFIs in expanded affiliated group need to be compliant in order for any FFI in that expanded affiliated group to be compliant.
What is Expected of an FFI?
8.FFIs are required to register as Participating FFIs, Registered deemed-compliant FFIs or Limited FFIs
Every FFI that is a member of an expanded affiliated group (EAG) must register with the IRS, unless an exception applies
A Limited FFI is an NPFFI that is a member of an EAG and is subject to FATCA withholding
Once an FFI has registered, the IRS will approve its registration and issue a GIIN (Global Intermediary Identification Number) to each Participating FFI and Registered deemed compliant FFI.
The IRS registration web site will be primary means for FFIs to complete and maintain their FATCA registrations, renew QI agreements and make periodic compliance certifications.
The web site will be used for ongoing electronic communication between the IRS and FFIs
A GIIN will be used as an identifying number in satisfying the FFI’s reporting obligations and identifying its status to a withholding agent.
The IRS will electronically post the first IRS list of Participating FFIs and registered deemed compliant FFIs (including Model 1 FFIs) on June 2, 2014, and will update the list on a monthly basis.
IRS Registration of FFIs
9.1 Note: These dates are based on Notice 2013-43 and the final FATCA Regulations and as further amended by Announcement 2014-17 and Notice 2014-33.
2 Once a preexisting account is documented, it will be treated as having the FATCA status that is claimed from the time it is documented rather than starting at the end of the due diligence period. For preexisting entity accounts documented as NPFFIs, withholding must begin even if the due diligence period has not ended.
3 U.S. account reporting for USFIs is limited to reporting on Substantial U.S. Owners of Passive NFFEs and Specified U.S. Owners and Debt Holders of an Owner Documented FFI.
4 FFIs located in an IGA country are not required to perform due diligence to identify prima facie FFIs by 1/1/2015
5 FFIs located in an IGA country are not required to withhold on recalcitrant accounts
Key FATCA Due Dates
10.Unless documentation sufficient to determine the FATCA status of the payee or account holder is provided to the withholding agent, an entity will be presumed to be an NPFFI and subject to FATCA withholding
Applies to new accounts opened or obligations entered into after 12/31/2014
This presumption is rebutted by providing documentation sufficient to establish that the payee or account holder is FATCA compliant
Key Differences between FATCA and prior law:
FATCA requires increased due diligence on the claims made
A withholding agent must treat the claim as invalid, if any information contained in the account opening file or other client files “conflicts” with the payee’s claimed FATCA status
This includes a review of information or documentation collected in the performance of due diligence under Anti-money laundering (“AML”) and Know-your-customer (“KYC”) rules.
A claim of foreign status will be treated as unreliable if there are certain types of “U.S. indicia” present, unless additional documentation sufficient to “cure” the U.S. indicia is obtained.
This means that clients having U.S. indicia will be required to provide additional documentation to substantiate a claim of foreign status.
New Account Due Diligence
11.How to Classify Accounts Under FATCA
FIs need to determine whether to treat:
An individual account holder as a U.S. person or a foreign person
An entity account holder as:
a U.S. person
A foreign financial institution (FFI)
An exempt foreign organization (e.g., a foreign government) or
A non-financial foreign entity (NFFE)
An FFI as:
A participating FFI
A deemed-compliant FFI
An exempt beneficial owner, or
An NFFE as:
An excepted NFFE or
A passive NFFE (having a substantial US owner)
Presents a new and completely different way to categorize client accounts and service providers
12.Definition of a US Person
A Specified U.S. person is any U.S. person OTHER THAN:
A publicly traded corporation or member of its expanded affiliated group;
Organization exempt from tax under Section 501(a) or an individual retirement plan;
The U.S., the District of Columbia, any state, any U.S. territory, any political subdivision the foregoing, or any wholly-owned agency or instrumentality thereof;
Banks; REITS; RICs,
Common trust fund or trust exempt from tax;
A U.S. registered dealer in securities, commodities or derivatives; or
Above list is similar to list of “exempt recipients” used to identify persons exempt from Form 1099 reporting, except that certain private corporations are specified U.S. persons
13.What Your Financial Institution Will Ask you
What is your FATCA status?
A multi-national corporation must determine the FATCA status for each entity in its expanded affiliated group.
Establish FATCA status by providing appropriate documentation:
U.S. Legal Entities – Form W-9
Non-U.S. Legal Entities – Form W-8
Request for additional documentation if US indicia are present
Failure to provide appropriate documentation will result in 30% FATCA withholding and reporting
You are obligated to inform your bank of any change in circumstances that affects your FATCA status within 30 days of the change.
Impact on Transactional Documentation
May need to update Legal Documents.
Impact on Your Relationship with Your Bank
14.FATCA Intergovernmental Agreements (IGAs)
An IGA establishes a partnership between the US and a foreign country
To improve international tax compliance
To establish uniform reporting standards and an automatic information exchange
To eliminate local legal obstacles to FATCA compliance, and
To implement FATCA in a manner that will reduce compliance burdens and costs .
IGAs modify the FATCA compliance obligations of financial institutions located in the IGA country from that otherwise required by the U.S. Treasury Regulations
There are two primary types of IGAs: Model 1 and Model 2
Both models suspend the requirement to withhold on or close recalcitrant accounts, provided that the information reporting requirements are met
Under Model 1, FATCA information returns are to be filed with local tax authorities while under Model 2, these returns are to be filed directly with the IRS
Allow reliance on self-certifications (IRS form or similar agreed upon form)
15.Local Legal Issues
FATCA imposes obligations on FFIs that may be in conflict with the laws of the jurisdiction in which an FFI operates, including
Privacy laws prohibiting the sharing of personal information on clients, including sharing with a foreign tax authority
Access-to-banking laws that guarantee that an account must be opened or that accounts may not be closed unilaterally
Laws prohibiting the withholding of taxes for a foreign government or withholding without clients’ consent
The IGAs present an opportunity for a country to support its FFIs compliance with FATCA by
Changing local laws to remove legal obstacles to FATCA compliance
Accepting the U.S. offer in the IGAs to modify or eliminate certain FFIs obligations that would apply under the Final FATCA Regulations
16.IGA Status Update
As of May 19, 2014, 32 countries have signed an IGA
27 are Model 1 IGAs
5 are Model 2 IGAs
Model 1 bilateral agreement published in July 2012 and Model II published in November 2012.
33 additional countries have reached an agreement in substance
31 are Model 1 IGAs and 2 are Model 2 IGAs
On April 2, 2014, Treasury and IRS announced that it would treat IGAs as in effect in countries that have reached an agreement in substance on the terms of an IGA
Provides FFIs in those countries with clarity on their FATCA status when they register with the IRS and what they need to do to implement FATCA
Until the country specific IGA is signed, the terms of the model agreement apply
A country will be removed from this list if the IGA is not signed by 12/31/2014
Updates to the lists of IGAs in effect are posted to the Treasury web site periodically at http://www.treasury.gov/resource-center/tax-policy/treaties/Pages/FATCA-Archive.aspx
The text of the model agreements can be found at:
17.Information Reporting by FATCA Partner FIs
Report U.S. account holders who are:
Specified U.S. persons,
Non-U.S. entities having at least 1 controlling person that is a specified U.S. person
A specified U.S. person is generally means any U.S. person other than an exempt recipient (but includes a privately held corporation that is not a related entity)
Name, address and TIN of each specified U.S. person
Name, address and TIN (if any) of a non-US entity with at controlling specified U.S. person
Account balance or value at year end or account closing date
Total gross interest, dividends, other income, gross proceeds from sale or redemption of property paid or credited to the account
Form 8966 will be used by FFIs in reporting on U.S. accounts,
unless an election is made to report on Form 1099
FATCA Partners in Model 2 countries must report annually the “aggregate” information required respecting U.S. accounts that do not consent to reporting