The 440 page LexisNexis® Guide to FATCA Compliance was designed in consultation, via numerous interviews and meetings, with government officials, NGO staff, large financial institution compliance officers, investment fund compliance officers, and trust companies, from North and South America, Europe, South Africa, and Asia, and in consultation with contributors who are leading industry experts. The contributors hail from several countries and an offshore financial center and include attorneys, accountants, information technology engineers, and risk managers from large, medium and small firms and from large financial institutions. Thus, the challenges of the FATCA Compliance Officer are approached from several perspectives and contextual backgrounds. See http://www.lexisnexis.com/store/catalog/booktemplate/productdetail.jsp?pageName=relatedProducts&prodId=prod19190327
This 28 chapter Guide contains three chapters written specifically to guide a financial institution's lead FATCA compliance officer in designing a plan of internal action within the enterprise and interaction with outside FATCA advisors with a view of best leveraging available resources and budget [see Chapters 2, 3, and 4]. Sample chapter available at http://www.lexisnexis.com/store/images/samples/9780769853734.pdf
1. Overview of the FATCA
(Foreign Account Tax Compliance Act)
Prof. William Byrnes
2. to pre-order with 20% discount
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Discount Code: FATCA13
3. Primary Author
Prof. William Byrnes,
International Tax & Financial
Services
williambyrnes@gmail.com
+1 786 271 5202
The information contained herein and during this presentation is
only for academic discussion, and not applicable to any specific
situation. The information is of a general nature and based on
authorities that are subject to frequent change.
4. biography
Associate Dean William H. Byrnes, IV, has
achieved authoritative prominence with more
than 38 book and compendium volumes, 93
book & treatise chapters and supplements, 800
articles, and a monthly subscriber tax
newsletter Tax Facts Intelligence that
complements Tax Facts Online. He advised
TSPs, CSPs, and institutions globally, working
for Coopers & Lybrand.
5. Q1: What is FATCA?
– Information Reporting Regime on Foreign
Institutions & Entities to Assist the Internal
Revenue Service Collect Identification and
Financial Information about US Individual
Taxpayers
– Match this information to new Form 8938
Statement of Specified Foreign
Financial Assets (and the Foreign Bank
& Financial Accounts form FBAR)
– 30% withholding
6. Congress Push to Provide Additional
Tools to Avoid Tax Evasion
• Problem: Country Sovereignty and Bank
Secrecy Laws used to Promote Non-Tax
Compliance
• Congressional Solution:
– New Chapter 4 –
• Creates a Withholding Tax not for the sake of Collecting
Tax, but to Encourage (Coerce some would say) FFIs
into providing detailed account information of U.S.
persons
7. Chapter 3 vs. New Chapter 4
• Collecting Tax on Chapter 3 –
– Collecting Withholding Tax
• Encouraging (some would say “coercing”)
– Providing Information – Re: Accounts
• Practical Benefits of Getting in “Old” W-8s
– Foreign Taxpayer ID
– Presumably now also from W-8-BENE
8. Chapter
3
Taxpayer Character of Income Withholding
Tax
Withholding Agent Exemption
IRC §1441 NRA’s
Foreign
Partnerships
-FDAP Income:
Interest,
Premiums,
Annuities,
Dividends,
Compensations,
Rents,
Royalties,
Salaries,
Wages,
Remunerations,
Emoluments, etc.
30% gross Payor -ECI
-Portfolio Interest
-Interest and
Dividends
from 80/20
Corporations
- Real Estate (871)
IRC §1442 Foreign Corps. Idem 30% gross Payor Idem
IRC §1445 Foreign Persons Real Estate Dispositional
Income
10% gross Payor Certificate of
Reduced WH’
IRC §1446 Foreign Partner Partnership Income
Effectively Connected to a
U.S. Trade or Business
Progressive tax
rate
Payor Income not ECI
9. Chapter
4
Taxpayer Character of
Income
Withholding Tax Withholding Agent Exemption
IRC §1471
Non Participating
FFI
“withholdable
payments”:
which in Theory
includes all of
Chapter 3
30% gross U.S Payor Payment whose
beneficial owners
are:
-Foreign
governments
-international
Organizations
-foreign central
bank of issue
-“Low risk tax
evaders”
.
U.S. Recalcitrant
Account Holders
“pass-thru
payments”
30% gross FFI
What happens with the withholding exemptions or
modifications under IRC Chapter 3??
10. Q2: What Caused FATCA?
–60+ Tax Treaty EOI articles, 20+TIEAs,
MLATs, and Hague Evidence
Convention
–FBAR (Foreign Bank & Financial
Accounts)
• 1996 by BSA
• in 2003 FINCEN signed MOA for IRS to enforce
–QI Regime (2000)
• Approx. 5,500 financial institutions (vs. 100,000s)
– OECD TRACE (Treaty Relief & Compliance
Enhancement) multi-lateral auto info exchange
11. Q2: QI Differences?
• Expanded application of reporting
– (names + specific account in(s)/out(s))
• Look through to UBO
• Expanded application of reporting persons
• Expanded application of reportable transactions
• FFI cannot determine customer w/h pools
• Only approx. 5,500 QI v. 100,000s of FFIs and
FEs
12. Q2: What Caused FATCA?
Offshore Voluntary Disclosure Programs
2009 & 2011: 33,000 raised $5B
2012 remains open: 1,500 (and now up to $5.5B)
UBS headline case: 17,000 hide $20B
$780m fine with $104m to convicted insider
whistleblower Bradley Birkenfield
14. Q3: Financial Costs?
Treasury: $100m per large institution
Can. Bankers Association: $1B each for 5 largest banks
Generally accepted: $250m per large MN bank
$30m-$80m for UK investment banks
E20-E50 per investor for investment funds, $1m per
fund
Mexican banks - $5m each
How much did Y2K cost?
EU Savings Directive? New expanded reporting?
QI regime?
15. Q3: Labor / Systems Costs?
Which department will wear the FATCA yoke? (Tax,
AML, Comp)
•Employ / Outsource add. compliance manager /
staff ?
•Employ / Outsource add. systems and software
integration staff (probably both, at least on short
term contracts)
•Employ / Outsource FATCA consultants
least cost is your Lexis FATCA Compliance
Handbook ;-)
16. Q3: Labor / Systems Costs?
- enterprise software programming/building (AML,
FATCA, Internal and External treasury/client
reports)
- new protocols and rules
- new onboarding procedures
- data entry
-middleware
-systems maintenance
17. Q3: Management
Enterprise Steering Committees
•Each business unit has working team
•Drilling down impact by country, product
Decision making process: CCO, CTO, AMLRO, CLO
(GC), and new FATCA “Responsible (Certification)
Officer”?
Investment Funds re-drawing investor agreements
18. Q3: EU Cost Concerns
Data Protection & Civil Law Privacy
- costs of obtaining each client’s signature on new
FATCA waiver
New EU Tax Exchange Directive (2013 by request /
2015 automatic of 2014 info)
(a) income from employment
(b) director's fees
(c) life insurance products
(d) pensions
(e) ownership of and income from immovable property
19. Q4: Who does FATCA apply to?
Two Categories: FFI & NFFE
Foreign Financial Institution
Non-Financial Foreign Entity
20. Q4: What is an FFI?
Not Territory-Organized (aka TOFI)
-Accepts deposits in ordinary course of bus.
-Holds financial assets for 3rd
p as sub. bus.
-bus. of investing, trading in securities, commodities,
p’shp interests, futures, forwards
Sign FFI agreement or IGA in place (still must get
GIIN)
22. Q4: Exempt from FFI?
“Low Risk of Tax Evasion”
Foreign governments, Central Banks
23. Q4: Registered Deemed Compliant ?
Still Register with Treasury but as compliant FFI
Certain local-only banks
Qualified collective investment fund
Restrictive fund
24. Q4: Certified Deemed Compliant?
Don’t register with IRS but certify to W/H agents
Certain small local banks with local accounts
Non-profits
Certain retirement plans
25. Q: Challenges?
SWAPS – difficult to value, changing counter
parties in opaque market
Funds: lack access to information for approx.
40%-45% UBOs, distributors & transfer agents
must become PFFI
fund of funds
private equity funds & tie-up periods
Life Insurance: whole life touch points with
owner
26. Q5: NFFE?
Exemptions
•foreign governments, IGO, central banks;
•publicly traded companies and entities within their
expanded group of affiliates;
•U.S. possessions
Active NFFEs (less than 50% of gross income from
assets that produce passive income).
If not exempt: US (10%) shareholders or IGA
“control” FATF standard
27. Q6: FFI Due Diligence ?
3 categories of accounts / 2 time periods
1.< $50,000 (low value accounts)
2.$50,000 - $1m
3.> $1m (high value accounts)
Current (look back) vs. New (onboarding)
28. Q6: FFI DD
$50k - $1m Electronic Search of AML records of
the KYC / CIP program
> $1m CCO -> RM communicate about account
holder and if necessary, review account file docs
for previous 5 years
W8Ben (foreign) or W9 (US): “Trust but Verify”
29. Q6: US Indicia
(1) Citizenship or residency in U.S.;
(2) U.S. place of birth;
(3) U.S. residency or mailing address;
(4) U.S. telephone number;
(5) any standing instructions to transfer funds to a
U.S. account;
(6) any power of attorney or other signatory
authority to any person with a U.S. address; or
(7) Whether the account holder has provided any
verified “in-care” or “hold mail” address with the U.S.
30. Q6: EDD for High Value Accounts
RM communicate about account holder using file
and KYC or CCO directly accesses file
•review account file KYC for previous 5 years
•account opening documents, signatory card
•POA / incapacitation or death instructions
31. Q6: DD for NFFE
W-9 on file ? specified U.S. person ?
• < $250,000 - Excluded from review, until account
balance exceeds $1,000,000.
• Search existing CIP/KYC info/account opening
docs to determine status
• Passive NFFEs – Must identify substantial U.S.
owners or certify that there are no substantial U.S.
owners.
32. Q6: specified US person is not
• Publicly traded corporation
• Affiliates of a publicly traded corporation
• Exempt organization or IRA
• REIT
• RIC / SEC registered (1940 Investment Company Act)
• The United States
• U.S. state, DC, or U.S. possession
• US bank
• Common trust fund
• Exempt trust under section 664(c)
• US registered dealer
• US Broker – 26 USC 6045(c)
33. Participating FFIs Systems
• Documentation: evolve current AML systems
to capture FATCA DD across enterprise
customer base
• Reporting: implementing then maintaining
annual reporting system with US (or IGA) for
US individuals, including identifiers, account
balances, gross payments
• Withholding: building system for 30%
withholding on recalcitrant account holders
34. 1. identity and residence of the beneficial owner;
2. name and address of the paying agent;
3. account number of the beneficial owner;
4. and amount of interest income earned
5. TIN if available
6. If resident in a country different than passport or
I.D. card, then tax residence certificate
Q6: EU TSD Art 8 Info
35. • Report must contain
–Name / address / TIN
–Account No(s) / Balance(s)
–Annual Gross transactions
(receipts/deposits/payments/
withdrawals)
• Can elect to report like US-FI (1099s)
• Or w/h and close account
Q6: Foreign Info Reporting?
36. 1. the name, address, and TIN of any person that is a
resident of FATCA Partner and is an Account Holder;
2. the account number;
3. the name and identifying number of the U.S.
Financial Institution;
4. the gross amount of interest paid on a Depository
Account;
5. the gross amount of U.S. source dividends paid or
credited to the account; and
6. the gross amount of other U.S. source income paid
or credited to the account
Q6: US Info Report to IRS?
37. Q6: FATCA 30% Withholding
• FDAP
• portfolio interest
• loan principal
• Real estate proceeds (FIRPTA subject payments)
• Proceeds from sale of stock in US corp. or other
non-dividend distributions
Not payments for ordinary course of business for
non-financial services like consulting (but FDAP
applies)
38. Q6: Withholding
WH agent (USWHA or PFFI) required to report annually
Form 1042 and Form 1042-S
•Form 1042 to IRS, with aggregated
reportable amounts and any tax withheld.
•Form 1042S to IRS, copy US specified
person with reportable amounts paid.
•Form 1042-S is required for each US person,
with separate Forms for each separate type of
payment.
39. Q7: IGAs
• No IRS agreements required for FFIs
• ƒ No officer certifications directly to the IRS
• ƒ Retirement account issues addressed
• ƒ Data privacy concerns addressed
• ƒ Withholding concerns addressed
• ƒ Customer identification issues addressed
• ƒ No closing accounts of recalcitrant account hold
40. Q7: IGAs
• Effects of Signing IGA
• Reciprocal Agreements?
• Language i.e. “reporting under Chapter 3”
41. Q7: IGA definitions
40 terms defined
“Any term not otherwise defined in this
Agreement shall, unless the context otherwise
requires or the Competent Authorities agree to
a common meaning (as permitted by domestic
law), have the meaning that it has at that time
under the law of the Party applying the
Agreement, any meaning under the applicable
tax laws of that Party prevailing over a meaning
given to the term under other laws of that Party”
42. Q7: IGA definitions
(a) the definition of financial institution is
expanded to include investment entities
(b) the definition of Substantial U.S. Owner in
the proposed regulations has been replaced
by one for Controlling Persons which is
expected to be interpreted in a manner
consistent with the recommendations of the
Financial Action Task Force and better
aligned to KYC procedures
43. Q8: Latin America Impact?
BIS stats as indicators
US <-> Argentina: $12.9B in US v . $4.6B in Arg.
US <-> Brazil: $34.4B v. $81.4B (b/c of structures)
Mexico: $67.2B in US banks (DTA)
Chile: $27.4B (DTA but not yet ratified by US)
Panama: $8.7B
Venezuela: DTA
44. Q8: Mexico IGA US Reporting
(1) the name, address, and Mexican TIN of any
person that is a resident of Mexico;
(2) the account number;
(3) the name and identifying number of the
Reporting U.S. Financial Institution;
(4) the gross amount of interest paid on a Depository
Account;
(5) the gross amount of U.S. source dividends paid
or credited to the account; and
(6) the gross amount of other U.S. source income
subject to US reporting.
45. Q8: TIEAs
Antigua & Barbuda, Aruba, Bahamas, Barbados,
Bermuda, Brazil, Cayman Islands, Costa Rica,
Dominica, Dominican Republic, Grenada Honduras,
Jamaica, Mexico, Panama, Peru, St. Lucia, and
Trinidad & Tobago
DTAs: Barbados, Jamaica, Mexico, Venezuela, and
Trinidad & Tobago (+ Chile signed)
46. Q8: US-Brazil TIEA
US Taxes Covered
(i) federal income taxes;
(ii) federal taxes on self-employment income;
(iii) federal estate and gift taxes; and
(iv) federal excise taxes
47. Q8: US-Brazil TIEA
Brazil Taxes Covered
(i) individual and corporate income tax (IRPF and
IRPJ, respectively);
(ii) industrialized products tax (IPI);
(iii) financial transactions tax (IOF);
(iv) rural property tax (ITR);
(v) contribution for the program of social integration
(PIS);
(vi) social contribution for the financing of the social
security (COFINS); and
(vii) social contribution on net profits (CSLL).
48. Q9: Timeline
TY 2011 Form 8938 (filed 4/17/12)
FFI agreement & electronic
registration 15 July – 25 Oct. 2013
49. Q9: Timeline DD
1/1/14: PFFIs new account USDD
6/30/14: existing accounts USDD
must be completed (for prima facie
FFI)
50. Q9: Timeline Overview
12/31/14 PFFIs complete review & documentation of
all other pre-existing high value individual accounts (&
certified completed by FATCA officer)
12/31/15 PFFIs complete review & documentation of
all other pre-existing individual accounts and all pre-
existing entity accounts not previously identified as
being held by prima facie FFIs (& Certify by FATCA
Officer)
51. Q9: Timeline Withholding
– 1/1/2013: Obligations issued before are
grandfathered (material modification)
– 1/1/2014: Start withholding on FDAP to non-
compliant account holders
– 3/15/2015 start of annual report (for 2014) via
Form 1042(S) of FATCA withholding (Foreign
Person’s U.S. Source Income Subject to
Withholding)
52. Q9: Timeline Withholding
1/1/2017: Start expanded
withholding on US-source gross
proceeds arising from sales and
redemptions &
foreign pass through payments
53. Q9: Timeline Reporting
3/31/2015 (for 2013 and 2014) annual report:
•US accounts (name, address, TIN and account
balance)
•recalcitrant account holders (aggregate reporting)
3/31/2016 + income associated with these US
accounts
3/31/2017 + gross proceeds
54. Q10: FORM 8938
A specified foreign financial asset is:
•Any financial account maintained by a foreign
financial institution
•Other foreign financial assets held for investment that
are not in an account maintained by a US or foreign
financial institution, namely:
– Stock or securities issued by someone other than a U.S.
person
– Any interest in a foreign entity, and
– Any financial instrument or contract that has as an issuer
or counterparty that is other than a U.S. person.
55. Q10: 8938 thresholds
Individual / Filing Separate taxpayers in the
US:
total value of specified foreign financial assets
> $50,000 on the last day of the tax year or
> $75,000 at any time during the tax year
(Joint = 2x threshold)
Living Abroad: foreign tax residence + bona fide
or 330 days in 12 months ending in tax year
> $200,000 / $300,000 (Joint = 2x threshold)
57. Q10: 8938 Foreign Financial Asset
– Stock or securities issued not by US person
– Any interest in a foreign entity
– Any financial instrument or contract that has
as an issuer or counterparty that is not US
person
– Foreign pensions and deferred comp plans
– Foreign estates
58. Q10: 8938 Foreign Property ?
Not if direct ownership of real property
Yes if -> foreign entity -> Property (FE interest)
Yes if mortgage (FA interest)
Not if direct ownership of movable assets
(e.g. metals, jewels, art works)
59. Q10: 8938 Questions
Part II Other Foreign Assets (see instructions)
1 Description of asset 2 Identifying number or other designation
3 Complete all that apply
a Date asset acquired during tax year, if
applicable . . . . . . . . . . . . . . . . . .
b Date asset disposed of during tax year, if applicable . . . . . . . . . . .
. . . . . .
c Check if asset jointly owned with spouse d Check if no tax item
reported in Part III with respect to this asset
4 Maximum value of asset during tax year (check box that applies)
a $0 - $50,000 b $50,001 - $100,000 c $100,001 - $150,000 d
$150,001 - $200,000
e If more than $200,000, list value . . . . . . . . . . . . . . . . . . . . . . . . $
5 Did you use a foreign currency exchange rate to convert the
value of the asset into U.S. dollars? . . . Yes No
60. Q10: 8938 Questions
7 If asset reported in Part II, line 1, is stock of a foreign entity or an interest in a
foreign entity, report the following information.
a Name of foreign entity
b Type of foreign entity (1) Partnership (2) Corporation (3) Trust (4) Estate
c Check if foreign entity is a PFIC
d Mailing address of foreign entity
8 If asset reported in Part II, line 1, is not stock of a foreign entity or an interest in a
foreign entity, enter the following information for the asset.
a Name of issuer or counterparty
b Type of issuer or counterparty
(1) Individual (2) Partnership (3) Corporation (4) Trust (5) Estate
c Check if issuer or counterparty is a U.S. person Foreign person
d Mailing address of issuer or counterparty.
63. Q11: Trusts
• A person treated as an owner under
§§671-679 of the Code, or
• A person who holds a beneficial interest:
Right to receive directly or indirectly (e.g.
through a nominee) a mandatory distributor or
may receive, directly or indirectly, a
discretionary distribution
64. Q11: Trusts
Example 1: On January 1, 2013 Y, an individual,
establishes Trust Z, a nongrantor foreign trust for
the benefit of Z’s children. Y appoints his brother
W to act as trustee of Trust Z. The assets of Trust
Z are stocks and bonds, and its income is derived
from those financial assets. Under the terms of
the trust, Trustee W manages and administers the
trust property himself. W does not hire any third
party professional manager. Trust Z is not an
investment entity and FFI.
65. Q11: Trusts
Example 2: The facts are the same as in Example
1, except that Y hires a Trust Co., an FFI to act as
trustee on behalf of the Trust Z. As trustee, Trust
Co. manages and administers the assets of the
trust in accordance with the trust instrument for the
benefit the beneficiaries (in this example the
children). Trust Z will be an investment entity and
an FFI, since it is managed by an FFI.
66. Q11: Trusts
Example 3: a Trust Co., a professional trustee,
acts as trustee for the Z Family Trust, a foreign
trust for the benefit of the family of Mr. Z. Trust Co.
is unable to determine the type of trust Z Family
Trust is for U.S. tax purposes. Accordingly, Z
Family Trust will be treated as a grantor trust by
the withholding agent.
67. Q11: Trusts
Mandatory beneficial interests: A specified US person has more than
a 10% interest if the value of the person’s interest exceeds 10% of the
value of all the assets held by the trust
Mandatory and discretionary beneficial interests: A specified US
person has a more than 10% interest in the trust if the value exceeds
either 10% of the value of all distributions made by the trust during the
year or 10% of the value of all assets of the trust
Exception for substantial US Owner:
•Discretionary distributions. The value of the currency or other property
distributed to the specified US person during the calendar year must
exceed $5,000
•Mandatory distributions or mandatory/discretionary distributions. The
value of such person’s interest (determined under the valuation rules)
exceeds $50,000
68. Q11: Trusts
Example 4 -- Determining the 10% Beneficial Interest in a Foreign
Trust.
Andrea and her cousin Ralph are both discretionary
beneficiaries in AnRa Family Trust, a foreign trust. The
trustee distributes $25,000 to Andrea and $5,000 to Ralph
in Year 1. Total distributions from the AnRa Family Trust to
beneficiaries for year 1 were $200,000. Andrea’s beneficial
interest in the trust will exceed 10% of the total distributed
for Year 1, therefore she is considered a substantial U.S.
owner. Ralph, on the other hand, will not be considered a
substantial U.S. owner in the trust as his distribution of
$5,000 is de minimis.