PRESENTATION ON THE FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) FOR CONSULTATIONS WITH THE INDUSTRY
Prepared for the
Meeting with ECCU Non-Bank Financial Institutions February 2014
EASTERN CARIBBEAN CENTRAL BANK
ST KITTS
TABLE OF CONTENTS
LIST OF ACRONYMS ... 5
1.0 BACKGROUND ... 1
2.0 KEY PROVISIONS OF FATCA ... 1
3.0 FATCA COMPLIANCE TIMELINE ... 2
4.0 REVIEW OF THE REPORTING REQUIREMENTS OF FATCA ... 3
5.0 IMPLICATIONS OF FATCA FOR THE ECCU FINANCIAL SECTOR ... 3
5.1 New Cost Centre ... 3
5.2 New Customer Acceptance and Due Diligence Procedures ... 4
5.3 Potential Loss of US Customers ... 4
5.4 Potential Loss of Correspondent Banking Relationships ... 4
5.5 Penalties for Non-Compliance ... 5
6.0 LEGAL IMPEDIMENTS TO ECCU FATCA COMPLIANCE ... 5
7.0 CONCLUSION ... 7
APPENDIX ... i
LIST OF ACRONYMS
FDAP - Fixed, Determinable, Annual, Periodical ECCB - Eastern Caribbean Central Bank
ECCU - Eastern Caribbean Currency Union FATCA - Foreign Account Tax Compliance Act IRS - Internal Revenue Service
FFI - Foreign Financial Institution NFFE - Non-Financial Foreign Entity TIN - Tax Identification Number
US - United States
USWA - US Withholding Agent
PFFI - Participating Foreign Financial Institution
NPFFI - Non-Participating Foreign Financial Institution
1
UNITED STATES FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA):
REPORT ON THE WAY FORWARD 1.0 BACKGROUND
On 18 March 2010, the US government enacted FATCA, a derivative of the Hiring Incentives to Restore Employment Act, to combat tax evasion by US persons
1holding investments in offshore accounts. FATCA requires FFIs
2to report directly to the US IRS, information on assets held by US taxpayers, or by foreign entities in which US taxpayers hold substantial
3ownership interest. Since the enactment of FATCA, the IRS has issued a series of notices and proposed regulations to provide guidance on the full implementation of the FATCA reporting and withholding obligations.
2.0 KEY PROVISIONS OF FATCA
Under FATCA, certain FFIs are required to enter into an FFI Agreement with the IRS. The agreement outlines the FFI’s legally binding responsibilities which fall into four major categories: pre-existing accounts, new accounts, withholding and reporting. Institutions are stratified and depending on specific thresholds, some institutions may be deemed compliant and will therefore not be required to enter into agreements with the IRS.
Table 1 – Categories of Responsibility under FATCA Pre-Existing
Accounts
• For accounts with a balance between $50,000 and $1,000,000, FFIs are required to perform a review of an electronically searchable account database in an effort to determine if an account has any indicia of US status.
• If indicia status is found, the FFI is required to obtain additional information to substantiate the status.
• Should the information not be acquired, the account will be considered recalcitrant.
New Accounts • FFIs are required to determine if US indicia exists during the account
1The Term “specified US person” generally means any US person, excluding, (a) a corporation and any member of the same affiliated group; (b) a real estate investment trust; (c) the United States or any wholly owned agency; and (d) a US tax-exempt organization.
2Includes, banks and brokers and dealers and trust companies, as defined in Appendix I
3Generally greater than 10.0 per cent.
2
opening process. Should US indicia be determined, FFIs are required to obtain documentation to substantiate the account holder’s status.
• Accounts opened after the FFI agreement’s effective date are new accounts.
The earliest possible date for this is 01 July 2014.
Withholding • A withholding agent will be required to withhold 30.0 per cent of a withholdable payment made to a non-participating FFI or to a passive NFFE that fails to provide information with respect to its substantial US owners.
• There are two types of withholdable payments:
o US source FDAP Income; and
o Gross proceeds from the sale of property that can produce US source dividends or interest.
Reporting • Reporting requirements will be phased in, between 2015 and 2017.
• Identifying information such as name, address, TIN, account number and balance or value would be reported from 2015 and 2016. Beginning in 2017, reporting may be required for income and in 2018 it could be expanded to include gross proceeds from the sale of securities.
• The proposed regulations require FFIs to report any information in US dollars or in the currency in which the account is maintained.
3.0 FATCA COMPLIANCE TIMELINE
Table 2 outlines several key dates for FATCA, the most significant of these deadlines being the 1 July 2014, the implementation date for FATCA.
Table 2: Key FATCA Dates
Key Activity Due date
4Opening of IRS Portal for registration of all financial institutions 19 August 2013
Deadline for registration on IRS Portal 25 April 2014
Circulation of list of compliant FFIs 2 June 2014
Commencement of collection of information by FFIs 01 July 2014 Submission of 2014 data to the IRS by National Competent Authority March 2015
4 These dates were revised based on the US Department of Treasury and the IRS Notice 2013-43 issued on 12 July 2013, which provided a revised timeline and other guidance, regarding the implementation of FATCA.