On January 17, the Internal Revenue Service issued long-awaited final regulations (the Final Regulations) for implementing the Foreign Account Tax Compliance Act (FATCA) (the Final Regulations are contained in T.D. 9610). For those of you who may not have yet finished reading the 543 page regulation package, this Alert provides some salient highlights. Perhaps most important are a few key dates as they relate to withholding on U.S.-source payments and registration by participating foreign financial institutions.
For withholding agents, including U.S.-based multinationals who make outbound payments of interest, dividends, royalties or other fixed and determinable annual or periodic (FDAP) outbound payments, the withholding tax regime begins on January 1, 2014. Accordingly, collection of withholding tax certificates (e.g., W-8 series forms) to properly classify payees for FATCA withholding purposes will soon need to become part of standard operating procedures. Withholding agents should also be aware that debt instruments outstanding on that date may be grandfathered, so care should be taken to evaluate whether the instrument is grandfathered and if possible to avoid amendments that could cause grandfathered status to be forfeited.
For foreign financial institutions (FFIs) hoping to avoid becoming subject to FATCA withholding, registration in the new "portal" will become an important next step. Treasury and the IRS have indicated that an online registration portal will be open by July 15, 2013, and that the FFI agreement will be available before that date. FFIs must register by October 25, 2013, to be included on the IRS's list of participating FFIs list for December 2013, providing a three-month window for FFIs to register to avoid 30 percent withholding beginning January 1, 2014. Once an FFI has registered, the IRS will provide a Global Intermediary Identification Number (GIIN) to each participating FFI and registered deemed compliant FFI.
FATCA was enacted as part of the Hiring Incentives to Restore Employment (HIRE) Act in 2010. It generally imposes a 30 percent withholding tax on payments to certain foreign financial institutions that fail to enter into an agreement with the IRS to provide information on U.S. account holders. Since its enactment, Treasury and the IRS have issued numerous rounds of guidance and rules in the forms of proposed regulations, notices, intergovernmental agreements (IGAs) and other informal guidance. The proposed FATCA regulations were issued on February 8, 2012 (the Proposed Regulations), and stakeholders have been eagerly anticipating the Final Regulations, especially given the requirement to begin the FATCA implementation process during 2013 in order to meet the January 1, 2014, effective date.
This Alert addresses several noteworthy aspects of the Final Regulations, but is no replacement for a careful analysis of FATCA's effect on specific situations. At a minimum, however, stakeholders should be aware that the Final Regulations:
- Coordinate certain definitions and the implementation timeline to be consistent with IGAs;
- Clarify the treatment of certain investment entities;
- Outline a streamlined registration and technical implementation process;
- Expand the types of instruments initially exempt from FATCA withholding under the grandfather rule;
- Expand the categories of FFIs that are deemed to comply with FATCA without the need to enter into an FFI agreement;
- Increase monetary thresholds for due diligence and relax certain due diligence requirements; and
- Lengthen the implementation timeline (consistent with Announcement 2012-42).
Although FFIs (other than those in a so-called Model 1 IGA jurisdiction (described below) are required to enter into FFI agreements during 2013 under the Final Regulations, the IRS has not yet released the draft FFI agreement.
In spite of numerous commenters requesting more simplicity than the Proposed Regulations, the Final Regulations are quite complex. For example, the already complex FATCA entity classification regime has grown in complexity, requiring analysis of even more classification categories than the 24 entity classification types listed on the Draft Form W-8BEN-E released in May 2012. That said, the changes made to the Final Regulations generally reflect that Treasury and the IRS are striving to strike a balance between complete information reporting and eliminating those reporting requirements where there is a low risk of U.S. federal tax evasion. Treasury and the IRS appear to have determined that some degree of complexity is necessary to carefully strike this balance.
In the end, IGAs are likely to be the primary approach to FATCA implementation for a variety of reasons. There may be certain privacy or banking secrecy requirements under foreign law that prevent an FFI from reporting to the IRS, making it a violation of foreign law to comply with FATCA. Thus, IGAs are often necessary to overcome the foreign legal impediments to FATCA implementation. Treasury has already concluded IGAs with the United Kingdom, Mexico, Denmark and Ireland, and IGAs have been agreed to with Norway, Switzerland and Spain and will soon be signed. Treasury also has announced that it is in negotiations with more than 50 countries to conclude IGAs.
There are two model IGAs: (1) the Model 1 IGA published on July 26, 2012, which allows reporting to the foreign government, followed by automatic information exchange with the IRS; and (2) the Model 2 IGA published on November 14, 2012, which allows for reporting directly to the IRS. There is a reciprocal and non-reciprocal version of the Model 1 IGA. The reciprocal Model 1 IGA is available only to jurisdictions with which the United States has an income tax treaty or information exchange agreement, as it provides for reciprocal information sharing by the United States. The non-reciprocal version does not require the United States to provide information on U.S. accounts and only requires the foreign jurisdiction to provide information to the United States. The Model 2 IGA requires the foreign jurisdiction to direct and enable FFIs located in the jurisdiction that are not otherwise excepted or exempt to register with the IRS and report specific information about U.S. accounts directly to the IRS in a manner consistent with the Final Regulations.
The IGAs were released subsequent to the Proposed Regulations, and there were numerous coordination issues between them. The Final Regulations resolve a number of these issues and attempt to coordinate with future IGAs.
The Final Regulations provide that an FFI in a jurisdiction with a Model 1 IGA is a registered deemed compliant FFI if it is compliant with local requirements. Thus, these FFIs may not need to follow certain aspects of the Final Regulations and instead are subject to local law requirements. In some cases, however, the laws of the partner jurisdiction may allow the resident FFI to elect to apply the Final Regulations rather than local law. While FFIs are not required to register for a GIIN under the Model 1 IGA, the IRS has indicated that it may seek for FFIs in Model 1 jurisdictions to register for a GIIN. In addition, for payments made prior to January 1, 2015, a withholding agent may treat the payee as a resident in a Model 1 IGA country if it receives a withholding certificate from the payee, indicating that the payee is a reporting FFI and the FATCA partner country in which the payee is treated as a reporting FFI. FFIs in Model 2 jurisdictions are required to implement FATCA, except that the Final Regulations allow for an FFI in a Model 2 jurisdiction to be treated as a registered deemed compliant FFI if the Model 2 IGA so provides.
Under the Final Regulations, entities are classified based on their classification for U.S. federal tax purposes, meaning that accounts held by disregarded entities are treated as held by the owner of the disregarded entity rather than by the disregarded entity itself. In contrast, the IGA definition of an "entity" is any legal person or legal arrangement, which appears to include entities that are disregarded for U.S. federal tax purposes (e.g., a limited company that has elected disregarded status). It is not clear under the Final Regulations how the regulatory withholding requirements apply to an entity that is disregarded for U.S. federal tax purposes, but is treated as a regarded entity under an IGA. There also is limited guidance addressing FFIs that operate in multiple jurisdictions that do and do not have an IGA.
FINANCIAL INSTITUTION DEFINITION
The primary concern of FATCA is its extraterritorial application to 'financial institutions' that are organized in a foreign jurisdiction. Thus, the definition of a 'financial institution' is critical. Many comments were provided to the IRS regarding the different categories of entities classified as financial institutions, given the importance of the definition to potential stakeholders.
One of the broadest categories of financial institution is an 'investment entity.' An important change was made to that definition in the Final Regulations. This change made the definition more consistent with the analogous definition of investment entity in the IGAs. In the IGAs, an investment entity is defined broadly as any entity that conducts business (or is managed by an entity that conducts business) in (i) trading in money market instruments; foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures trading; (ii) individual and collective portfolio management; or (iii) otherwise investing, administering or managing funds or money on behalf of other persons. These activities must be "for or on behalf of a customer." The Proposed Regulations also contained a broad definition (with slightly different language, although directed towards the same activities), but without the requirement that the activities be "for or on behalf of a customer." The Final Regulations make a welcome change by following the approach in the IGAs and requiring that activities be performed on behalf of customers, and also adopting definitional language mirroring the IGAs. This new definition, however, leaves open the possibility that private equity and hedge fund managers, in addition to their funds, are considered financial institutions.
In addition, the Final Regulations narrow the investment entity definition further by treating an entity (other than an entity that primarily conducts as a business on behalf of customers) the gross income of which is primarily attributable to investing, reinvesting or trading as an investment entity only if the entity is managed by a depository institution, a custodial institution, another investment entity, or an insurance company that qualifies as a financial institution. This narrower definition precludes many passive entities that are not professionally managed from being treated as financial institutions. However, private equity funds, mutual funds, hedge funds and similar managed funds are investment entities.
The IGA definition of an investment entity also differs from the definition in the Final Regulations, in that the IGA definition provides that the definition is interpreted in a manner consistent with similar language set forth in the definition of 'financial institution' in the Financial Action Task Force (FATF) recommendations. This may cause additional entities to be treated as investment entities under the Final Regulations that would not otherwise be treated as investment entities under an IGA (such as managed passive investment companies).
The Final Regulations also provide additional interpretive guidance as to the definition of an investment entity. Significantly, the Final Regulations provide that an entity is treated as 'primarily attributable' to investing, reinvesting or trading in financial assets if the entity's gross income attributable to those activities equals or exceeds 50 percent of the entity's gross income during the three-year period ending the year preceding the year of the determination, or the period during which the entity has been in existence. The IGAs do not contain a similar definitional clarification.
While the Final Regulations contain additional clarifications using similar objective tests, it may be necessary for additional guidance to be provided to operate the tests. For example, no guidance is provided in the case of an entity that has disregarded subsidiaries in jurisdictions with an IGA. In this case, the disregarded subsidiary could be an FFI under the IGA definition (as a disregarded entity appears to be regarded as an entity under the IGA definition as noted above), but it is unclear whether that disregarded subsidiary's income would be counted in any objective test to determine whether the parent is an FFI.
An additional peculiarity in the Final Regulations may affect private equity funds and hedge funds. The first example of an investment entity in the Final Regulations involves an investment advisor. The example begins by noting that the fund manager is an investment entity, but that fund manager hires an investment advisor to provide advice about the financial assets in which the fund invests. Because the investment advisor earns more than 50 percent of its gross income from the preceding three years from providing services as an investment advisor (and, therefore, primarily conducts business providing investment advice on behalf of clients), the investment advisor is an FFI. Depending on how this example is interpreted, multi-national private equity and hedge fund sponsors may be subject to duplicative and unnecessary reporting (although this may be alleviated by certain entities in the multinational group being treated as sponsored FFIs).
More limited changes were made to the definition of 'depository institution,' another category of financial institution. The Final Regulations clarify that accepting deposits is necessary, but not sufficient by itself in order for an entity to be defined as a depository institution. The entity must also engage in additional banking and financing activities (the activities are drawn from the definitions of active banking or financing activities under the sourcing and subpart F rules). These activities also must be performed on a regular basis.
The definition of a depository institution was further narrowed to address concerns of the remittance industry, as remittances are not typically used to avoid U.S. taxes. The Final Regulations provide that merely completing money transfers by instructing agents to transmit funds is not in a banking or similar business, as this is not treated as accepting deposits or other similar temporary investment of funds. Similarly, finance companies that do not fund their operations through deposits, entities acting as networks for credit card banks that hold cash collateral, and entities that solely accept deposits from persons as collateral or security pursuant to a lease, loan or similar financing arrangement are not depository institutions.
Exceptions to FFI Status
Similar to the Proposed Regulations, the Final Regulations provide exceptions to FFI status for holding companies, treasury centers and captive finance companies that are part of a non-financial group (unless availed of by private equity funds or similar entities). Entities that qualify for an exception are instead treated as excepted non-financial foreign entities (NFFEs). The Final Regulations contain significantly more detailed exceptions than the Proposed Regulations, in particular with respect to holding companies, captive financing and treasury centers. These changes were necessary given the refinements to the definition of an investment entity discussed above (pursuant to which an entity is only an investment entity if managed by a depository institution, a custodial institution, another investment entity or an insurance company that qualifies as a financial institution), to ensure that holding companies and treasury centers cannot be used by financial groups with nonparticipating FFIs or limited FFIs to shelter payments from FATCA withholding. While the new exceptions are arguably more complex than the analogous definitions in the Proposed Regulations, the overall change is welcome for non-financial groups that would have been treated as owning FFIs under the Proposed Regulations.
Deemed-Compliant FFI Status
There are three types of deemed-compliant FFIs that are not required to enter into an FFI agreement, nor are subject to the rigorous reporting requirements of FATCA: (1) registered deemed-compliant FFI (which must be registered with the IRS); and (2) certified deemed-compliant FFIs (which need only to certify their status to withholding agents on Form(s) W-8); and (3) owner documented FFIs.
The Final Regulations generally retain the same deemed-compliant categories from the Proposed Regulations, but also add categories of deemed-compliant FFIs for certain credit card issuers, sponsored FFIs and limited-life debt investment entities. The Final Regulations also simplify some of the categories of the deemed-compliant status by, for example, treating non-profits as exempt from FFI status and instead, treating all non-profits as excepted NFFEs. Few other changes were made, and it appears that Treasury and the IRS will address additional deemed-compliant FFIs on a jurisdiction-by-jurisdiction basis through IGAs.
The Final Regulations retain the entities that qualify as local FFIs (which can qualify as registered deemed-compliant FFIs), but also expand this category to include insurance companies, credit unions and investment entities. In addition, local FFIs are permitted to have a place of business outside of the country or organization, provided that the location is not publicly advertised and provides only back office functions. Otherwise, the local FFI category is limited to FFIs whose activities are limited to a single country. In addition, Final Regulations allow local FFIs to advertise U.S. dollar accounts, so long as the FFI does not solicit customers outside its country of incorporation. The Final Regulations provide specific guidance as to the types of advertising permitted by local FFIs.
Under the Proposed Regulations, certain foreign retirement plans or pension funds were treated as deemed-compliant FFIs if they met certain requirements and were otherwise treated as an exempt beneficial owners (a classification of NFFE for which no withholding is required, which includes entities such as foreign governments, foreign central banks and other entities where there is a low risk of tax evasion). Under the Final Regulations, this category has been eliminated. Instead, qualified foreign retirement plans and pension funds are all treated as exempt beneficial owners.
The Final Regulations add a new category of "sponsored FFI." A sponsored FFI is an investment entity that has a contractual arrangement with a sponsoring FFI. This category allows a fund manager or trustee to enroll as a "sponsor" for its funds (that are also treated as FFIs). The sponsor is required to perform the due diligence and reporting for all of the FFIs that it sponsors. The sponsored FFI is treated as certified deemed-compliant and is not required to enter into its own FFI agreement. This change was especially important for the private-equity and hedge fund industry and also could be advantageous for professionally managed trust groups.
Owner Documented FFIs
This category of FFI is only available to investment entities. An investment entity that qualifies as an owner-documented FFI (i) avoids FATCA withholding tax only with respect to payments from a withholding agent that is either a U.S. financial institution or a participating FFI; and (ii) agrees to collect and report to the withholding agent (and the agent agrees to report to the IRS) certain information with respect to the owner-documented FFI's equity holders. Under the Proposed Regulations, owner-documented FFIs could not issue non-regularly traded debt interests in excess of $50,000. The Final Regulations remove this prohibition, provided that the owner-documented FFI reports all individuals and specified U.S. persons that directly or indirectly hold the debt interests.
EXTENDED TIMELINE FOR IMPLEMENTATION AND COORDINATION WITH IGA TIMELINE
There were significant concerns among financial institutions as to the implementation timeline for FATCA. For most institutions, significant changes to operating procedures and systems are necessary to meet FATCA's requirements. The lack of finalized implementation guidance has left most institutions concerned that it was impossible to meet the implementation timeline in the Proposed Regulations. In response, the IRS released Announcement 2012-42, providing an extended timeline for implementation.
The implementation timeline built into the Final Regulations is consistent with the timeline laid out in Announcement 2012-42. BakerHostetler has produced an updated graphical implementation timeline. The timeline in the Final Regulations is as follows:
- Account opening procedures are to begin on January 1, 2014 (or the effective date of an FFI agreement, whichever is later). The new deadlines under the Final Regulations for withholding agents and participating FFIs are as follows:
- Participating FFIs and other withholding agents must complete due diligence with respect to preexisting accounts belonging to prima facie FFIs by June 30, 2014 (or 6 months after the effective date of an FFI agreement, whichever is later);
- Participating FFIs must complete due diligence with respect to preexisting accounts of entities other than prima facie FFIs and preexisting individual accounts other than high value accounts by December 31, 2015 (or two years after the effective date of the FFI agreement, whichever is later);
- For preexisting high value accounts of individuals, participating FFIs must complete due diligence by the later of December 31, 2014, or one year after the effective date of the FFI agreement.
- Withholding on gross proceeds and pass-thru payments is postponed until January 1, 2017.
- Information reporting on U.S. accounts with respect to calendar years 2013 and 2014 for participating FFIs is postponed until March 31, 2015.
Withholding begins on January 1, 2014, except that the only accounts that will be subject to withholding at that point are new accounts subject to the new account opening procedures. Other accounts are subject to withholding in accordance with the due diligence guidelines outlined above. The IRS will begin publishing a list of participating FFIs in December of 2013 in anticipation of FATCA withholding beginning in January of 2014. Regardless of the list being available, prima facie FFIs are not subject to withholding on pre-existing accounts until the completion of the due diligence deadline of June 30, 2014, under the Final Regulations.
EXPANDED SCOPE OF GRANDFATHERED TRANSACTIONS
FATCA provides that certain obligations are grandfathered and no withholding is required on such obligations. While the statute provides that withholding is not required on any payments relating to an obligation outstanding on March 18, 2012, Treasury and the IRS have already extended this deadline in the Proposed Regulations. The Final Regulations further extend this date, providing that debt obligations outstanding on or before January 1, 2014, are not subject to withholding. In addition, consistent with Announcement 2012-42, the Final Regulations provide that certain obligations that produce dividend equivalents (such as certain equity swaps) are grandfathered if the obligations are outstanding prior to six months after implementing regulations are published under section 871(m). Consistent with the delayed effective date for withholding on foreign pass-thru payments, grandfathering is also available for obligations outstanding prior to six months after implementing regulations providing guidance on foreign pass-thru payment withholding. A grandfathered obligation also includes any agreement requiring a secured party to make payments with respect to collateral securing one or more grandfathered obligations (even if the collateral is not itself a grandfathered obligation). It is important not to amend a grandfathered obligation (in a manner that would result in a material modification within the meaning of U.S. realization rules) in order to prevent forfeiture of grandfathered status.
RELAXED DOCUMENTATION AND DUE DILIGENCE REQUIREMENTS
The Final Regulations provide some relief with respect to the documentation and due diligence requirements. Importantly, in response to numerous comments, the Final Regulations allow a withholding agent to rely on documentary evidence in lieu of a Form W-9 (essentially adopting the "eyeball test" from the standard Chapter 3 withholding documentation requirements). The Proposed Regulations contained a particularly burdensome requirement to collect new Forms W-8 during the due diligence process and to refresh that form every three years. The Final Regulations relax this requirement and provide that a withholding agent may rely upon pre-FATCA Form W-8 in lieu of obtaining an updated version of the withholding certificate in certain circumstances. Finally, the Final Regulations allow the use of substitute forms (such as internally prepared forms), as long as those forms contain the required information and a translated version (if the form is in a language other than English) of the form is provided to the IRS upon request. The substitute forms may be used for purposes of standard Chapter 3 withholding as well.
Consistent with the Proposed Regulations, once sufficient documentation is obtained, it is valid for three years. There is a new exception in the Final Regulations that permits documentation to remain valid indefinitely, subject to a change in circumstances, for certain payees where there is a low risk of tax evasion (such as certificates from a foreign individuals in which there is no U.S. address or phone number on file with the FFI, retirement funds, nonfinancial groups, certain charitable and non-profit organizations, certain public companies or foreign governments, among others).
Another helpful change made in the Final Regulations is a change in the definition of what accounts are treated as pre-existing accounts subject to the due diligence requirements. Under the Final Regulations, an account that is later opened by a pre-existing account owner generally is also treated as pre-existing. This change eliminates the need for new account opening procedures to be put in place for certain existing account owners.
REPORTING AND WITHHOLDING
Numerous changes were made to the timeline for withholding and reporting, as noted above. In response to comments, the Final Regulations also change some of the withholding and reporting requirements contained in the Proposed Regulations. A significant change is the addition of a consolidated compliance program. Under the final regulations an FFI (or U.S. financial institution) may agree to establish and maintain a consolidated compliance program and perform a consolidated periodic review on behalf of one or more FFIs in the same expanded affiliated group, thereby becoming a "Compliance FI." The consolidated compliance group is not required to include every FFI in an expanded affiliated group (allowing flexibility, for example, if some members are in IGA jurisdictions and others are not). Similarly, as discussed above, the regulations add a category of Sponsored FFI. The sponsoring entity must act as the Compliance FFI for all Sponsored FFIs.
FATCA only requires withholding on certain withholdable payments. These generally include payments of interest, dividends, rents, royalties and certain gross proceeds, among others. Certain payments are specifically excluded under the Final Regulations:
- Interest on certain short-term obligations;
- Income already taxable in the United States that is treated as effectively connected income;
- Non-financial payments for certain services, leases, licenses, transportation, awards, prizes, scholarships and interest on accounts payable; and
- Certain gross proceeds from the sale of property that produces income otherwise excluded in the above list.
This Alert is merely a summary of some of the more significant and welcome changes made in the Final Regulations. The IRS also rejected numerous comments that were perceived as not providing a sufficient ease of administrative burden to justify the increased risk of evasion by U.S. taxpayers. The Final Regulations provide significant details to help financial institutions determine whether they will be excepted from the requirements of FATCA and to make additional steps towards FATCA implementation. That said, the IRS has not yet released a draft FFI agreement in addition to many other forms necessary for implementation. Additional guidance will be forthcoming that will hopefully further ease the burdens on stakeholders. For additional information, please see the FATCA resource page or contact any member of the BakerHostetler Tax Group.
Authorship Credit: Michael W. Nydegger, Paul M. Schmidt and Allen J. Littman
BakerHostetler's Tax Group is one of the legal profession's largest, with more than 75 tax attorneys serving eleven offices. For more information about our Tax Group, please contact:
Paul M. Schmidt
BakerHostetler Tax Group Chair
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