Flash News. Why should non-financial entities care about FATCA?

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1 Flash News Why should non-financial entities care about FATCA? Published in Kluwer - ACE Comptabilité, fiscalité, audit, droit des affaires au Luxembourg, 2014/6 17 July 2014 In 2010, the Hiring Incentives to Restore Employment Act introduced new rules, commonly known as the Foreign Account Tax Compliance Act (FATCA), into United States (US) tax law. Their main purpose is the detection of US tax evasion. In essence, FATCA requires Foreign Financial Institutions (FFIs) to identify, document and, if required, register with the US tax authority (Internal Revenue Service, IRS) and to report information about their US account holders. FFIs are non-us entities qualifying as Financial Institutions (FIs) for FATCA purposes, and generally include banks, investment funds, certain insurance undertakings as well as certain holding companies and investment structures. In order to facilitate the implementation of FATCA and enhance broader international tax transparency, a number of countries have already entered into bilateral agreements with the US (Intergovernmental Agreements, IGAs), and many more will follow. As a consequence, these countries will implement certain FATCA obligations into their local law, and oblige local entities to first of all identify whether or not they are to be considered as FI, and to what extent they need to perform FATCA obligations. It is a widespread misperception that FATCA only affects entities which have either US shareholders or investors, or which have US investments. In addition to investment funds or banks, holding or finance companies and all types of investment structures might be hit by FATCA, even if they have no nexus to the US at all. FIs all over the world will need to identify and document the FATCA status of their clients. In the following analysis, the authors will describe the situation for entities resident in an IGA country, based on the example of the Luxembourg IGA, which is in essence very similar to other IGAs. More precisely, the article focusses on the process of entity classification, and the issues it implies, as well as on the international debate with regard to holding companies.

2 Table of content 1. General obligations under FATCA 2. The Luxembourg IGA 3. Entity classification 4. The international debate about holding companies 5. Interaction with counterparties 6. Obligations for service providers 7. Conclusion 1. General obligations under FATCA FATCA obligations vary depending on whether or not the country in which the respective entity is resident, has signed an IGA. The full scope of the US Treasury Regulations will apply in countries which do not enter into an IGA with the US. But even if countries have signed an IGA, implementation into local law, local procedures and interpretation by local competent authorities may differ between countries. FATCA has a phasing-in approach, starting with some key elements as at 1 July 2014 and adding additional obligations during the years to follow. FATCA withholding obligations will effectively begin to apply from 1 July Furthermore, on 1 July 2014, FIs must have in place account opening procedures for new accounts. With respect to reporting obligations, data to be reported will increase from year to year. In essence, basic data relating to 2014, namely the name of account holder, address, tax identification number, account number and account balance, will have to be reported in For 2015 and 2016, in addition to this basic information, FIs will be required to report payments (interests, dividends, etc.), as well as provide the name of Non-Participating FFIs and the aggregate amounts of payments made to each of them. For 2016 and following years, gross proceeds will need to be reported as well. Depending on type of account and account value, FIs have 12 or 24 months to analyse and document their pre-existing account holders. Depending on the type of account holder and the specific situation, FIs may have to apply a 30% withholding tax (WHT) on certain payments made to these account holders. FIs resident in IGA countries will have to levy this withholding tax only in very specific situations. However, they need to ensure nevertheless that other FIs do not levy withholding tax on payments made to that entity. This is done usually by providing correct documentation to the other FIs. Some FIs might need to register with the IRS in order to receive a Global Intermediary Identification Number (GIIN). Whether or not registration is required depends mainly on the concrete FATCA status of the entity, and whether or not its country of residence has an IGA in place. The IRS will publish and regularly update a

3 list with all entities registered so far, including the respective GIIN (IRS FFI list). FFIs which would like to be on the first IRS FFI list, which will be published on 2 June 2014, will have to register by 5 May In order to be on the second list, which will be published on 1 July 2014, FFIs will have to register by 3 June The Luxembourg IGA There are two different IGA Model templates (Model I and Model II) and most countries that have signed an IGA until now have chosen Model I. These countries will have to implement the FATCA obligations as set out in the IGA into local law. Therefore, FIs resident in a Model I country will be obliged to follow such law. On 28 March 2014, Luxembourg has signed its IGA which follows Model I. The Luxembourg IGA consists of three parts, being the IGA itself, Annex I and Annex II. The IGA as such contains definitions of numerous FATCA related terms and also elaborates on the exchange of information obligations for Reportable Accounts. It also specifies temporal and procedural conditions to be complied with, and deals with the consequences of non-compliance, etc. Annex I stipulates due diligence obligations for identifying and reporting on US Reportable Accounts and on certain payments made to Non-Participating FFIs. Annex II contains numerous definitions of entities that are treated as exempt beneficial owners or Deemed-Compliant FIs, as well as exclusions from the definition of financial accounts. The Memorandum of Understanding (MoU) states that, in the event Luxembourg is not be able to complete its necessary internal procedures for entry into force of the IGA by 30 September 2015, the US Department of Treasury might accept a delay of one additional year i.e. until 30 September If the IGA enters into force after 30 September 2015, reporting for 2014 and 2015 would be due on 30 September The IGA contains a so-called most favoured nation clause, which allows Luxembourg, with respect to Article 4 or Annex I of the Luxembourg IGA, to apply any more favourable terms under another signed IGA, provided that certain conditions are fulfilled 3. The IGA distinguishes between Reporting FIs and Non-Reporting FIs. A Non- Reporting FI is defined as any Luxembourg FI that is described in Annex II as a Non- Reporting FI, or that otherwise qualifies as Deemed-Compliant or as an Exempt Beneficial Owner under relevant US Treasury Regulations. If an FI does not qualify for any Deemed-Compliant or Exempt Beneficial Owner category under Annex II or relevant US Treasury Regulations, it will be automatically considered to be a 1 Announcement IGA between Luxembourg and the US, Art. 7(1)

4 Reporting FI. It is important to note that FATCA obligations are different for Reporting and Non-Reporting FIs. Reporting Luxembourg FIs will have to register and will probably have to submit reports, even if nil 4, whereas Luxembourg Non- Reporting FIs will in general not have to register with the IRS. However, if they identify US Reportable Accounts, they will need to register and report accordingly. As outlined above, the Luxembourg IGA follows the Model I template, which means that Reporting FIs in Luxembourg will have to report certain information on their accounts directly or indirectly held by US persons to the Luxembourg tax authorities ( Administration des Contributions Directes ), which will subsequently exchange that information with the IRS. There are some specific features in the Luxembourg IGA regarding Annex II, which will be explained in section 3 of this article. Despite the existence of an IGA between the US and Luxembourg, the text of the US Treasury Regulations may need to be applied to a certain extent as well. It is explicitly mentioned in the IGA that Luxembourg may use definitions from the US Treasury Regulations instead of the definitions included in Article 1 of the Luxembourg IGA or its Annexes, provided that the alternative use does not conflict with the purpose of the IGA 5. In addition, Luxembourg may allow Reporting FIs to apply due diligence procedures described in the US Treasury Regulations as an alternative to the procedures describes in its Annex I 6. And as already mentioned above, the term Non-Reporting FI is also defined by reference to the US Treasury Regulations Entity classification First of all, each Luxembourg entity has to analyse whether it falls under the definition of an FI for FATCA purposes or, in the event it does not meet one of the FI definitions, is considered a Non-Financial Foreign Entity (NFFE). If the Luxembourg entity determines that it is an FI, the next step would be to analyse whether any of the Non-Reporting categories are applicable. When classifying an entity, a factual approach is taken, as emphasis will be put on the actual activities carried out by the entity. There are four types of FIs listed under Article 1 (g), these being are Custodial Institutions, Depositary Institutions, Investment Entities and Specified Insurance Companies. In particular, the 4 ml 5 IGA between Luxembourg and the US, Art. 4(7) 6 IGA between Luxembourg and the US, Annex I, Section I (C) 7 IGA between Luxembourg and the US, Art. 1(1)(q)

5 Investment Entity category might include entities which themselves would not expect to be treated as an FI. Custodial Institutions are defined by reference to their activity of holding financial assets for the account of others as a substantial portion of their business. In order to qualify as a Custodial Institution, at least 20% of its gross income must be derived from the above activities 8. The definition of a Depositary Institution refers to the accepting of deposits in the ordinary course of a banking or similar business 9. An Investment Entity (investment fund, hedge fund, etc.) defines itself mainly by its activities or, if applicable, by the activities of the company by which it is managed. These activities can consist of (1) trading in money market instruments, foreign exchange, transferable securities etc., (2) individual or collective portfolio management, or (3) investing, administering or managing funds or money on behalf of other persons 10. A Specified Insurance Company is defined as an insurance company or the holding thereof, which issues or is obligated to make payments with respect to a Cash Value Insurance Contract or an Annuity Contract 11. Annex II lists types of entities that should be treated as Deemed-Compliant FIs or Exempt Beneficial Owners. There are four categories of Non-Reporting FIs. The first refers to Exempt Beneficial Owners other than Funds, and consists of several types of entities which are Government Entities, International Organisations or Central Banks 12. The second category refers to funds that qualify as exempt beneficial owners, which could be Luxembourg Retirement Funds or Investment Entities Wholly Owned by Exempt Beneficial Owners 13. Thirdly, there is the category of small or limited scope FIs that qualify as Deemed-Compliant FIs (i.e. FIs with a Local Client Base, Local Banks, FIs with Only Low-Value Accounts, Qualified Credit Card Issuers, or Banks Issuing Covered Bonds) 14. The last group of entities comprises Investment Entities that qualify as Deemed-Compliant FIs. This group includes four types of entities, namely Sponsored Investment Entities and Controlled Foreign Corporations, Sponsored, Closely Held Investment Vehicles, Luxembourg Investment Advisors and Investment Managers and lastly Collective Investment Vehicles 15. Conditions have to be fulfilled in order to qualify for such a Deemed-Compliant status. As each of these has very specific conditions, this has to be analysed on a caseby-case basis. 8 IGA between Luxembourg and the US, Art. 1(1)(h) 9 IGA between Luxembourg and the US, Art. 1(1)(i) 10 IGA between Luxembourg and the US, Art. 1(1)(j) 11 IGA between Luxembourg and the US, Art. 1(1)(k) 12 IGA between Luxembourg and the US, Annex II, Section I (A)-(C) 13 IGA between Luxembourg and the US, Annex II, Section II (A)-(B) 14 IGA between Luxembourg and the US, Annex II, Section III (A)-(E) 15 IGA between Luxembourg and the US, Annex II, Section IV (A)-(D)

6 Furthermore, the Luxembourg Annex II includes among others, the following specific items: FI with a Local Client Base: In the IGA Model I template, this term refers to a situation in which 98% of the accounts held by a FI are maintained by residents of the same country or another EU Member State. The Luxembourg IGA adds accountholders resident in Switzerland to the above accountholders 16. Restricted Fund: In order to benefit from this Deemed-Compliant status, the US Treasury Regulations imposes complex conditions, including the need to include FATCA related restrictions in distribution agreements. Unlike the definition in the US Treasury Regulations, the Luxembourg IGA stipulates that an application form or subscription form is considered as a distribution agreement, which simply leaves funds with the obligation to include FATCA specific limits in their prospectus 17. An entity that does not have to be treated as an FI will be classified as an NFFE. Depending on the type of income the entity receives, it will be considered an Active or a Passive NFFE. If less than 50% of the entity s gross income is passive income (i. e. interests, dividends, annuities etc.) and less than 50% of the entity s assets are held for the production of passive income, this entity will be treated as Active NFFE. Even if the income and asset test is not met, an entity may nevertheless qualify as Active NFFE in the event it is considered as having an activity with low risk of tax avoidance. Annex I lists several types of entities and related conditions in which an entity having passive income qualifies as Active NFFE. For instance, an entity whose stock is regularly traded on an established securities market is treated as an Active NFFE. Other examples of Active NFFEs are holding companies which hold only operational companies, or non-profit organisations 18. A Passive NFFE is defined as any NFFE that is not an Active NFFE 19. In practice, there are certain grey areas where, due to the lack of concrete guidance, it is not clear yet whether these entities meet the definition of an FI, or whether they qualify as NFFEs. As an example, for general partners (GP) of partnerships, there is no common interpretation as to whether or not they are considered FIs or NFFEs. One position is that they are entities which manage another entity, meaning therefore that a GP would be an FI. But one could also say that these entities do this not as a professional manager but in their capacity as partner of the partnership. Therefore, a GP would not perform the activities for or on behalf of a customer. In addition, there are many discussions on the treatment of holding companies which will be addressed in section 4 of this article. Based on the activities of these entities, it is not fully clear whether they meet one of the FI definitions. The same issue arises 16 IGA between Luxembourg and the US, Annex II, Section III (A)(5) 17 IGA between Luxembourg and the US, Annex II, Section IV (E)(5)(b) 18 IGA between Luxembourg and the US, Annex I, Section VI (B)(4)(a)-(j) 19 IGA between Luxembourg and the US, Annex I, Section VI (B)(3)

7 for domiciliation agents, or entities whose sole purpose consists in the issuing of notes. To conclude, it is important to analyse the specific FATCA status of each Luxembourg entity on a case-by-case basis, taking into consideration the actual activity of that entity as well as all facts and circumstances. 4. The international debate about holding companies Unlike the US Treasury Regulations, IGAs do not contain a specific FI category for holding companies. Thus, at first sight, it would seem that holding companies are NFFEs for FATCA purposes. However, the classification of holding companies is not that straightforward, as these entities might fall under the definition of an Investment Entity under an IGA, this being defined as follows: The term Investment Entity means any entity that conducts as a business (or is managed by an entity that conducts as a business) one or more of the following activities or operations for or on behalf of a customer: (1) Trading in money market instruments ( ); foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures trading; (2) individual and collective portfolio management; or (3) otherwise investing, administering, or managing funds or money on behalf of other persons 20. Furthermore, the IGAs provide that the above definition of Investment Entity shall be interpreted in a manner consistent with similar language set forth in the definition of financial institution in the Financial Action Task Force (FATF) Recommendations. In looking at this Investment Entity definition with respect to the classification of holding companies, the following aspects seem to be of major importance: (i) reference to FATF (as transposed into local law); (ii) definition of customer ; (iii) definition of managed by ; and (iv) definition of business. The definition of Investment Entity explicitly refers to the FATF Recommendations. One might question whether this refers to the definition in the FATF Recommendations themselves, or to the transposition into local law. The concept of financial institution set out in the FATF Recommendations appears to be more restrictive than the corresponding concept applicable under FATCA rules. Under the FATF recommendations, holding companies are likely to be seen more as counterparties to Financial Institutions. The IGA does not include a definition of the term customer. From a commercial point of view, a customer is considered to be a client, buyer or purchaser, meaning someone who pays an agreed amount to a seller and receives in turn goods or a service from the seller. Based on this interpretation, private investment companies 20 IGA between Luxembourg and the US, Art. 1(1)(j)

8 would, in principle, be excluded from the Investment Entity definition under the IGA. Even if the entity itself does not perform an activity qualifying as an Investment Entity, the fact that it is managed by another Investment Entity would make it qualify as an Investment Entity. The definition of managed by is not clear under the IGA, and is also subject to discussions between consultants, market participants, etc. There is no shared view on this. Based on the examples given in the US Treasury Regulations, most people refer to whether or not the other Investment Entity (professionally) manages the assets of the first entity. Others say that management in this respect refers to management of the first entity s customers. Again, others refer to whether the other Investment Entity is a professional asset manager. Based on the above interpretation, there are good reasons to argue that a holding company which is wholly owned by a group (and hence having no third party investors) and whose sole purpose consists of the holding of participations only for the benefit of its shareholders, does not meet the conditions of the Investment Entity definition. On the contrary, an entity which is open to third party investors, or holds itself out as an investment vehicle, is likely to be considered to be an FI. However, there is no guarantee that the competent authority will finally share that view in its official guidance or administrative practice. Depending on the countries where the holding companies are located, their treatment may differ, as local competent authorities need to implement the IGA into local law and take position on points which are subject to interpretation. Some countries even take a more aggressive approach, by focusing only on the reference made to the FATF Recommendations, meaning that they exclude all entities which are not subject to local anti-money laundering regulations from the concept of Investment Entity. As a result, most of the holding companies resident in such countries will not meet the Investment Entity definition as they are usually not subject to local AML/KYC obligations. In contrast, the United Kingdom tax authorities will treat all holding companies which are formed in connection with or used by an collective investment scheme, mutual fund, exchange traded fund, private equity fund, hedge fund, venture capital fund, leveraged buyout fund, or any similar investment vehicle established with an investment strategy of investing, reinvesting, or trading in financial assets as Investment Entities 21. In the event holding companies do not meet the conditions of the Investment Entity definition, they should be considered to be NFFEs. Given the nature of their assets and income, most of them should be treated as Passive NFFEs, whose sole obligation consists in identifying their US Controlling Persons. To conclude, there is no clear answer with respect to the treatment of holding companies within the IGA context. The decision, on whether a holding company 21 UK-US FATCA Guidance Notes dated 28 February 2014, p

9 qualifies as an Investment Entity or as a (Passive) NFFE, has to be made on a caseby-case basis taking into consideration all potential risks involved, the actual activity of the holding company, its shareholders, the type of income it receives, the overall group structure as well as the country where it is located. 5. Interaction with counterparties When interacting with counterparties (e.g. banks, brokers, investors), entities will be confronted with requests for signing specific forms, or for providing additional information. Usually, such counterparties are themselves FIs having the obligation to identify their account holders FATCA status. Alternatively they may be institutional investors who wish to ensure that their investments are FATCA compliant in order to avoid facing a potential FATCA WHT at the level of their underlying investments. From a practical perspective, FIs which have obtained a GIIN will provide their GIIN as proof of their FATCA compliance. Their counterparties will have to verify the correctness of the GIIN based on the published IRS FFI list. The GIIN will also be used by Luxembourg Reporting FIs in the context of FATCA reporting, in order to identify themselves when dealing with tax administrations 22. Entities (FIs or NFFEs) which have not obtained a GIIN will need to either sign a self-certification or complete a so-called form W-8, the latter being a US tax form issued by the IRS. Some countries have self-certifications agreed by the competent authorities, but in other countries, entities can establish their own forms (or even coordinate these within their group). In most cases, entities have the choice between using the official US tax forms or a self-certification. The practical use will also depend on the industry and business of the entities, depending on whether their clients are already familiar with the US tax forms or not. Although a Passive NFFE will not need to report by itself (unless it has chosen to become a so-called Direct Reporting NFFE ), it nevertheless has to disclose information about its Controlling Persons who are US citizens or residents for tax purposes, or certify that it has none. 6. Obligations for service providers As already mentioned, the Luxembourg IGA not only affects FIs but might also affect other types of entities such as service providers which themselves might even be Active NFFEs. In particular within the investment management industry, outsourcing to different service providers is normal business practice, and different service providers might be able to assist the FI in performing the FATCA obligations. 22

10 In particular transfer agents might offer services with regard to account holder identification and reporting, as they will already have all the required information to hand. Taking the example of a domiciliation agent, the domiciliation agent is usually obliged to ensure that its clients are compliant with local law. As FATCA relevant obligations will become part of Luxembourg law, the domiciliation agent might as a first step help a client to determine its FATCA status. In the context of due diligence procedures, domiciliation agents should ensure that their clients have complied with their obligation to identify the FATCA status of their account holders (i.e. shareholders and/or investors). In particular, the domiciliation agent s support could involve classifying existing and new investors and monitoring existing accounts. With regard to the above, the domiciliation agent might be interested to ensure that all necessary documentation has been collected and, if this is not the case, assist in collecting all relevant documentation. For reporting obligations, domiciliation agents could ensure that their clients comply with their minimum reporting obligations if they have any. 7. Conclusion FATCA is an initiative to enhance tax compliance, tax transparency and automatic exchange of information. As this is in line with international trends, it has not been surprising to see so many countries entering into IGAs with the US, even including countries historically known as tax havens. In parallel to FATCA developments, a standard for the automatic exchange of information has also been developed by the OECD. The Common Reporting Standard (CRS) has recently been published, and more than 40 countries have meanwhile announced that they would participate. The currently proposed plan is to begin implementation of the CRS on 31 December 2015, which is only 18 months after the effective date of FATCA. Both the IGA and the CRS share the same spirit and concepts. Definitions with respect to FIs and NFFEs, as well as due diligence procedures, are very similar but also different in certain aspects. Whereas FATCA is focussed on identification of US taxpayers, CRS requires identification of persons and entities and related reporting for all countries which participate in the CRS. In practical terms, if one speaks about US persons today, it will be Luxembourgish, French, Belgian, etc. persons tomorrow. This will to a certain extent result in different approaches to be implemented for these two concepts. Although there is still some uncertainty with respect to FATCA regarding practical implementation, IRS and US Treasury officials have said on several occasions that FATCA will not be postponed, and 1 July 2014 is quickly approaching. Therefore,

11 entities need to determine their FATCA status, and their potential obligations, as soon as possible in order to avoid business pressure. For more information about FATCA, please visit our web site at or contact us: Contacts:... Kerstin Thinnes Olivier Carré This document is for general information purposes only, and should not be used as a substitute for consultation with professional advisors. PwC Luxembourg ( is the largest professional services firm in Luxembourg with 2,300 people employed from 57 different countries. It provides audit, tax and advisory services including management consulting, transaction, financing and regulatory advice to a wide variety of clients from local and middle market entrepreneurs to large multinational companies operating from Luxembourg and the Greater Region. It helps its clients create the value they are looking for by giving comfort to the capital markets and providing advice through an industry focused approach. The global PwC network is the largest provider of professional services in audit, tax and advisory. We re a network of independent firms in 157 countries and employ more than 184,000 people. Tell us what matters to you and find out more by visiting us at and PricewaterhouseCoopers, Société coopérative. All rights reserved. In this document, PwC Luxembourg refers to PricewaterhouseCoopers, Société coopérative (Luxembourg) which is a member firm of PricewaterhouseCoopers International Limited ( PwC IL ), each member firm of which is a separate and independent legal entity. PwC IL cannot be held liable in any way for the acts or omissions of its member firms.

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