BURT, STAPLES & MANER, LLP SUITE EYE STREET, NW WASHINGTON, DC PHONE (202) FACSIMILE (202)

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1 BURT, STAPLES & MANER, LLP SUITE EYE STREET, NW WASHINGTON, DC PHONE (202) FACSIMILE (202) TO: FROM: RE: Distribution Burt, Staples & Maner, LLP Final FATCA Regulations Issued The U.S. Treasury and the IRS published the final FATCA regulations ( Regulations ) on 1/17/13. While the Regulations contain many useful clarifications and modifications, the Regulations largely follow the rules laid out in the proposed regulations (good news considering the Regulations contain 544 pages at least a lot will be familiar). Accordingly, this letter does not summarize the Regulations but rather highlights some key changes. A. Summary of What You Really Need to Know About the Regulations 1. Tight Deadlines Start Sprinting! The end of the FATCA marathon is startlingly close. It is time to sprint in order to finish overhauling FATCA systems and procedures on time. Key Effective Dates: Our client letter on Announcement provides a great deal of information on the new effective dates but remember the following: o First Sign Up For Foreign Financial Institution ( FFI ) Agreements: 7/15/13 through an on-line FATCA Registration Portal ( Portal ) -- FFI Agreements start taking effect on 1/1/14. o Initial List of FFIs: To be published on 12/2/13. o New Accounts: 1/1/14 o Grandfathering: 1/1/14 o Withholding: Begins 1/1/14 for U.S. source income paid to certain payees (new accounts and preexisting accounts of known recalcitrant account holders and nonparticipating FFIs ( NPFFI )) and then phases in for additional tiers of payees in 2015 and 2016 gross proceeds and foreign passthru payment withholding can begin in 2017 although the Regulations reserve on those rules for now. o Reporting: U.S. account reporting begins 3/31/15 for the 2013 and 2014 years and each year through 2017 see additional tiers of reporting added. Updated Comprehensive Timeline: We will be supplying an updated, comprehensive timeline to our FATCA implementation clients.

2 Page 2 2. The Limited Sword of Damocles: The Regulations retain the sunset date of 12/31/15 for the limited status of branches and affiliates located in jurisdictions where they are unable to comply with the FATCA rules (which allows the worldwide group to be considered participating ). Bottom Line: Financial Institutions ( FIs ) operating in limited jurisdictions after 12/31/15, face being thrown out of the FATCA regime worldwide and out of the U.S. capital markets. Needless to say there is extraordinary pressure on affected governments to enter into IGA discussions with the IRS before that date. 3. Important Guidance Still Missing Stay Tuned! The Regulation s preamble promises the following over the coming months and hopefully before the FATCA Portal goes live in July: (1) the FFI Agreement (unfortunately not in draft for comment); (2) new Form 8966 ( FATCA Report ); (3) updated drafts Form W-8, as well as draft Forms 1042 and 1042-S; and (4) proposed regulations coordinating FATCA with existing withholding rules (chapter 3 and chapter 61 rules). The missing guidance complicates efforts to be ready on time. 4. Lack of Expansive New Carve-Outs See Annex 2 of IGAs: The Regulations fine-tune many of the proposed carve-outs and add a few useful new ones (discussed later). Anyone hoping for expansive new carve-outs will be disappointed. Treasury and the IRS explain that they think that Annex 2 of the IGAs is the appropriate venue for any such expansions. B. Some Points on FFI Registrations and GIINs : All FFIs registering through the Portal (starting 7/15/13) will be assigned a global intermediary identification number ( GIIN ) starting no later than 10/15/13. FFIs will provide their GIIN to withholding agents to avoid FATCA withholding and identify themselves to the IRS. Model 1 and 2 reporting FIs and registered deemed-compliant FFIs will need to register through this process and get a GIIN. All FFIs can manage their FFI account on-line through the Portal. QIs/WPs/WTs Registration: Existing Qualified Intermediaries ( QIs ), Withholding Foreign Partnerships ( WPs ) and Withholding Foreign Trusts ( WTs) can renew their agreements through the Portal. New QIs/WPs/WTs must register as such on paper and update their status on the Portal. All will get GIINs. C. Some Important Changes to the FI Definition: The FI definitions are important since they determine which entities must comply with FATCA and which are out of scope. The proposed definitions were considered overly expansive and there are helpful clarifications. 1. Investment Entity Definition Adopted from IGA: The Regulations eliminate the proposed Category 3 FI definition ( in the business of investing, reinvesting in securities, etc.) and good riddance. Even small, unsophisticated investment entities like family trusts were considered FIs and expected to enter into agreements with the IRS. Under the Regulations, such small entities are considered nonfinancial foreign entities ( NFFEs ) unless they are professionally managed. If the latter, they are still FFIs but the expectation is that the manager (also now deemed to be an FFI) will do FATCA compliance for them. Alert for Managing Entities! Entities managing trusts, small investment companies and similar entities should assess their FATCA obligations given this change in approach, which may confer FI status on them where the proposed rules had not.

3 Page 3 2. Depository Institutions: The Regulations largely follow the same approach as the proposed rules of providing a list of activities similar to banking that lead to FFI status for the entity BUT with two particularly useful modifications: (1) charge and credit card services are no longer banking type activities although entities in such businesses can still land in FFI status if they accept deposits (e.g., prepayments) $50k; and (2) accepting collateral or security pursuant to a lease, loan, or similar financing arrangement is not a deposit. It is now far less likely to have a depository institution that has no depository accounts to report on. 3. Other FI Definitions Largely the Same: No great changes to the definitions for custodial institutions and insurance companies. 4. Limited Treatment of Holding Companies and Treasury Centers as FIs: Holding company and treasury centers are FIs in only two situations: (1) if the expanded affiliated group ( EAG ) includes a depository institution, custodial institution, insurance company or an investment entity; and (2) if the entity is formed or availed of by any fund or similar investment vehicle. These rules are intended to prevent financial groups with NPFFIs or limited FFIs from using the entities to shelter payments from FATCA withholding. D. What You Should Know About Some Other Important Definitions: You should be aware of some other key definitions, some of which relate to the IGAs. 1. Substantial U.S. Owner: The Regulations keep the key ownership threshold the same a substantial owner of an NFFE is one who owns >10%. The Regulations do not adopt the FATF controlling person approach which typically leads to higher thresholds (25% is common). This is additional pressure on governments to enter into IGA discussions with the Treasury to get such favorable terms. NOTE: For trusts, a U.S. person is not a substantial owner if the person receives $5k in annual discretionary distributions and, if the person is entitled to mandatory distributions, the value of the interest is $50k. 2. Model 1 and 2 IGAs: Both are now defined as expected in the Regulations. The IRS will publish lists of which countries fall under both categories. 3. Recalcitrant Account Holder: The Regulations clarify that recalcitrant include uncooperative passive NFFEs. For preexisting accounts $1m, the FFI can rely on its AML due diligence to identify any substantial U.S. owners but only through 1/1/2017 and only if the AML rules require an FI to so identify U.S. owners. 4. Ordinary Course Business Payments Have Morphed Into Excluded Nonfinancial Payments : The Regulations clarify which payments (ordinarily handled by the accounts payable department) are carved out of FATCA as withholdable payments. FIs were particularly concerned about this since it appeared that many of their ordinary course payments were subject to FATCA withholding a huge headache. The Regulations address this concern by providing a specific list of payments that are and are not withholdable payments for FIs.

4 Page 4 E. Withholding 1. Grandfathering: The new grandfathering date is 1/1/14. There will be special grandfathering dates that will apply to instruments producing dividend equivalent payments and foreign passthru payments, if and when regulations concerning such instruments are issued. Good News Sort Of -- on Collateral: Grandfathering extends to agreements requiring collateral to secure a party to the transaction (e.g., NPCs). Grandfathering applies regardless of when the collateral was first issued or whether the collateral itself would be considered a grandfathered obligation. If collateral (or a pool of collateral) secures both grandfathered obligations and obligations that are not grandfathered, the collateral posted to secure the obligations must be allocated to all outstanding obligations secured by the collateral pro rata by value. Reliance on Issuer: Withholding agents now are permitted to rely on statements from issuers of obligations as to whether the obligation is grandfathered and whether it subsequently undergoes a material modification that throws the obligation out of grandfathered status. As always, if the withholding agent has actual knowledge of the status of the obligation, that trumps the issuer reliance rule. 2. Gross Proceeds Withholding Remains Theoretical: Theoretically this can begin in 2017 but the Regulations reserve on the rules to do so. 3. The Death of Withholding on DVP/COD Transactions? Brokers can breathe a sigh of relief, at least temporarily, that the Regulations eliminate withholding on delivery versus payment and cash on delivery transactions. Brokers lacked systems to do this withholding and market disruptions were a real concern. However, the IRS has left open the possibility of further consideration on the issue. 4. Presumption of U.S. Source and Character: Beware that if the character of a payment is unknown, then it must be presumed to be a withholdable payment, and if the source is unknown then it must be presumed U.S. source. Withholding agents can either start withholding and depositing these amounts or escrow the amount of withholding for up to one year while they try to figure it out. 5. Withholding on Prima Facie FFIs: Begins 7/1/14 unless a good FATCA status can be determined. FIs must use electronic searches to identify prima facie FFIs in accordance with established criteria by this 2014 date. The Regulations clarify that FFIs do not have to use U.S. standard industrial codes in their searches. 6. Caution: There Are Conflicting Start Dates for Withholding on Preexisting Entity Accounts: Sections 1471 and 1472 have conflicting start dates for withholding on preexisting accounts of entities: 1/1/16 for withholding on NPFFIs (this one consistent with Announcement ) and 1/1/15 for withholding on noncompliant NFFEs. The Preamble contains the same discrepancy, which suggests this is intentional. Nonetheless, this will need to be clarified with the IRS. 7. Withholding by Foreign Branch of USFI in Model 1 IGA Country: Such branches remain withholding agents, which means that they must withhold on payments to NPFFIs, unlike other Reporting FIs in such jurisdictions. Withholdable payments include payments of deposit interest by these branches. However, this requirement is delayed to 1/1/17.

5 Page 5 8. QI Election to be Withheld Upon: A QI, other than a QI branch of a USFI, can elect to be withheld upon only if it does not accept primarily withholding responsibility under chapter 3, i.e., is a nonwithholding QI. The election is available only if the withholding agent is a USFI, PFFI, Model 1 FFI or another QI. The electing QI can designate whether the election applies to all of its accounts or only certain accounts. Other intermediaries have no election to make; they must pass up documentation to the withholding agent. F. Documentation Rules: The Regulations retain the approach of specifying specific documentation requirements for different kinds of payees (e.g., individuals, different FATCA entity types, retirement funds, non-profits, IGA entities, etc.) which are then further differentiated depending upon whether the relevant account is onshore (which typically will require a Form W-8) or offshore (where one can use Forms W- 8 or statements and/or other documentation) and then even further differentiated depending upon whether the documentation relates to a new account or a preexisting account. It is important to note that there are many changes to all of these different characterizations in the Regulations from the proposed rules some of which are useful liberalizations. The only practical way to reduce this dizzying set of rules to a comprehensible form is to create a matrix that can then be incorporated into relevant systems and procedures. Please note that our FATCA implementation clients will receive updated matrices. We note some key changes that you should focus upon. 1. Third-Party Credit Reports: Third-party credit reports that meet specified conditions, including that the third-party credit agency verifies the non-u.s. address with a government data source, have been added to the list of acceptable documentary evidence to establish foreign status. 2. Use of Codes to ID Preexisting Accounts: The Regulations allow the identity of preexisting accounts to be determined by standard industrial codes whether public or private and whether U.S. or not, for example, to determine if an NFFE is active. 3. Reliance on Documentation from Other Parties: The withholding agent may rely on documentation collected by or certifications provided by other persons, including a shared documentation system maintained by an agent, documentation collected by a third-party data provider, a certification provided by an introducing broker, and documentation and certifications provided between principals and agents. 4. Reliance on Documents Acquired in Bulk Acquisitions: Rules are provided for a withholding agent to rely on documentation for accounts acquired in a merger or a bulk acquisition for value, but the period during which the withholding agent may rely on the transferor s determination of chapter 4 status is limited to no longer than six months. 5. Reliance on Pre-FATCA Form W-8: This is allowed to 1/1/17, which is likely to encourage many withholding agents to begin re-solicitations of forms before the new Forms W-8 are released with FATCA relevant information all of which require new validation procedures to process. 6. Annex 2 Entity Verification: The Regulations leave unclear how FIs should identify Annex 2 entities. Pragmatic approaches are advisable pending clarification. G. Expiration of Documentation and Permanent Documentation: The Regulations replace the proposed rule that documentation expires after 3 years unless the documentation has an earlier expiration date and replace with a much more workable rule that documentation is valid for the longer of three years or until

6 Page 6 expiration. Forms and documentation for certain low risk accounts can remain valid indefinitely, subject to a number of restrictions and conditions. The following are some categories of documentation that can remain valid indefinitely: 1. Documentation that Does Not Typically Expire or Change: For example, a withholding certificate, written statement or documentary evidence furnished by a foreign government or a government of a U.S. territory; also, any documentary evidence that is not generally renewed or amended, such as a certificate of incorporation. 2. Enhanced Verification Categories: Certain categories provide for indefinite validity but are subject to ongoing verification requirements. For example: Annual GIIN Re-Verification: Any withholding certificate or written statement with a GIIN falls under this rule. The $1 Million Limit Accounts: For offshore entity obligations whose accounts do not exceed $1 million, a withholding certificate of a passive NFFE or excepted territory NFFE, or a withholding statement associated with a withholding certificate of an owner-documented FFI. The $1 million limit must be monitored on an ongoing basis. Active NFFEs: Active status subject to ongoing verification, which potentially may affect the withholding certificate and documentary evidence required of these entities. 3. Added Documents for Indefinite Validity: Certain categories require documentary evidence along with other documentation to qualify for indefinite validity: A Form W-8BEN provided by an individual claiming foreign status for whom the withholding agent does not have a current U.S. residence or U.S. mailing address for the payee and does not have one or more current U.S. telephone numbers that are the only telephone numbers for the payee. (NOTE: For offshore accounts, a Form W-8BEN or documentary evidence provided will remain valid indefinitely provided there also are no standing instructions to make a payment in the U.S.) A Form W-8BEN-E provided by one of the following types of entities claiming foreign status as defined in the respective provisions of the Regulations and furnished with documentary evidence (NOTE: For offshore accounts, all documentation provided will remain valid indefinitely.): o A retirement fund o An excepted non-financial group entity o A section 501(c) entity o A nonprofit organization o A nonreporting IGA FFI o A territory FI that agrees to be treated as a U.S. person for chapter 4 purposes o An NFFE whose stock is regularly traded o An active NFFE engaged in a business other than that of a financial institution, subject to ongoing monitoring of the account o A sponsored FFI

7 Page 7 4. Some Intermediary Documentation: Certain information provided by intermediaries (e.g., an intermediary withholding certificate) may remain valid indefinitely. H. Exceptions from FFI Status: The definitions for the different varieties of registered and certified deemedcompliant FFIs remain largely the same as proposed (which will disappoint many who had hoped for substantial liberalization of the rules) although the following two have been added and the ownerdocumented FFI rule liberalized: 1. Sponsored Investment Entity or CFC: An FI that either sets up investment entities or has controlled foreign corporations may agree to sponsor some or all of these entities if the sponsor: (1) has management control over the sponsored entity; (2) identifies itself to the IRS as the sponsor as well as those entities sponsored; and (3) does all chapter 4 related compliance tasks. This rule should be welcome news particularly to FIs who may have scores of these kinds of structures. 2. Qualified Credit Card Issuer: Credit card companies can be considered deemed-compliant if they: (1) only accept deposits where there has been an overpayment that is not immediately returned to the customer, and (2) adopt procedures prohibiting balances > $50k. 3. Owner-Documented FFIs: The requirements are significantly relaxed: (1) such FFIs may have debt in excess of $50k; (2) account documentation for the owners of FFIs with accounts less than $1 million remains valid indefinitely (if there are no contingent or unidentified beneficiaries); and (3) Model 1 FFIs can act as withholding agents to take advantage of the rule. I. Presumption Rules Align More with Those in Chapters 3 and 61: The following rules are important to note: 1. Classification of Entity: Different rules apply onshore and offshore. Onshore: If the entity s name or account information clearly establishes it as a trust, estate or corporation, then that classification applies. Any other entity will be presumed to be a partnership. Offshore: Entities lacking documentary evidence to establish a classification are presumed corporations. Such entities cannot be treated as beneficial owners if the documentary evidence indicates the person is a bank, broker, intermediary or other agent. However, if the entity provides written notification, which does not have to be signed, that it is the beneficial owner, the withholding agent may treat the entity as such. Eyeball Test Reinstated: USFIs may apply the eyeball presumption rules under the section 6049 regulations to treat the payee as other than a specified U.S. person. However, if the U.S. withholding agent does not have documentary evidence to support the client s U.S. status, the client will still be presumed to be a NPFFI under the Regulations. 2. Presumption Regarding Effectively Connected Income: The Regulations adopt the same rule that applies for chapter 3 purposes. J. Account Reporting Including Transition Rules: The IRS intends to publish Form 8966 ( FATCA Report ) for reporting payments made to specified U.S. persons, substantial U.S. owners of a non-excepted

8 Page 8 NFFE and U.S. owners of an owner-documented FFI. The IRS will be publishing XML schemas for electronic filing of Forms 8966 and 1042-S. An FFI may elect to meet its U.S. account reporting obligation by completing Form 1099 reporting. The same transition rules that apply to IGA s phased implementation and in the proposed regulations apply. 1. Caution: No Coordination with Chapter 3 and 61: This means that entities such as QIs and branches of USFIs located in Model 1 IGA countries continue to face the prospect of duplicative reporting. 2. Aggregate Reporting of Bad Actors: PFFIs are required to report the aggregate number and aggregate balance or value of accounts held by recalcitrant account holders (i.e., passive NFFEs, U.S. persons, accounts that have U.S. indicia, accounts that do not have U.S. indicia, and dormant accounts). 3. Forms 1042-S Reporting: All chapter 4 reportable amounts paid to passive NFFEs, NPFFIs and recalcitrant account holders must be reported on a Form 1042-S. 4. NPFFI Reporting Transition Rule: The aggregate amount of all foreign reportable amounts paid to a NPFFI and any payment of U.S. source FDAP income must be reported on a payee specific basis during the transition years 2015 and K. Payment Reporting on Form 1042-S: This has changed subtly from what was proposed. Reporting on Form 1042-S is required for FATCA if it would otherwise be required under Chapter 3 or if Chapter 4 withholding was actually applied. Thus, gross proceeds, foreign passthru payments and interest paid by foreign branches of U.S. persons are generally not reportable on Form 1042-S until (or unless) regulations are issued requiring withholding on these amounts. In addition, foreign reportable amounts paid by a PFFI to an NPFFI are reportable on Form 1042-S. L. Compliance and Responsible Officers ( RO ): The Regulations expand significantly upon the proposed rules. 1. Basic Rule Applies at FFI Level: Every PFFI must appoint an RO and adopt a compliance program. 2. Alternative: Consolidated Compliance Program and RO: All or some of the FFIs in an EAG may instead agree that a compliance FFI will take on the compliance obligation for the designated group. The RO of the compliance FFI makes any necessary certifications. These arrangements must be identified to the IRS. Fund managers can use this consolidated compliance approach for their groups. 3. RO Certifications Upon Effective Date of FFI Agreement and Every 3 Years After: The RO must certify: (1) that the RO has established a compliance program (that is, good internal controls and procedures) to comply with FATCA; (2) that there have been no material failures to comply; and (3) any material failures identified have been remediated and actions taken to prevent reoccurrence. 4. RO Certification Due 60 Days After Two Year Deadline For Account Review: The RO must certify that the FFI(s) have: (1) not helped any U.S. person to avoid FATCA, starting from 8/6/2011; (2) completed the review of high value accounts; and (3) completed the review of all other preexisting accounts. 5. How to File Certifications: Certifications will be filed via the Portal.

9 Page 9 M. Treatment of Insurance Companies The Regulations clarify and add significant guidance for insurance companies including the following: (1) a holding company that is a member of an EAG that includes an insurance company will be treated as an FFI if it issues or is obligated to make payments with respect to cash value insurance or annuity contracts; (2) obligation with a limited term can include life insurance contracts payable no later than upon the death of the insured; (3) one can ignore reserve activities in determining FFI status; (4) guaranteed investment contracts are deposits; (5) there are relaxed identification rules for group cash value insurance contracts; and (6) section 953(d) insurance companies are not considered U.S. persons unless they are licensed to conduct business in the United States. Conclusion: FFIs and USFIs face a daunting task to be ready for FATCA in just 49 weeks. FATCA implementation plans must be reviewed and modified to reflect the Regulations. Most importantly, different efforts must be prioritized in consideration of the phased-in effective dates. Developing compliance plans is the key next step for withholding agents. Tactical implementation will vary depending on whether you are a USFI or an FFI, but critical considerations include identifying FFI compliance group(s), determining FFI RO(s), engaging AML/KYC, IT, Account Onboarding, and Tax Operations, and making strategic decisions regarding due diligence and withholding. These strategic decisions are crucial, as while the Regulations provide an array of options for documenting clients, ROs will have to develop auditable due diligence strategies to which they can ultimately certify compliance.