U.S. Tax Services Stewart H. Patton FATCA Overview. March 2014

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1 U.S. Tax Services Stewart H. Patton FATCA Overview March 2014

2 FATCA Terminology FATCA: The U.S. Foreign Account Tax Compliance Act, added by the HIRE Act of FATCA added new Chapter 4 to the U.S. Internal Revenue Code, sections Withholdable Payments: FATCA withholding generally applies only to withholdable payments, which are of two types: U.S. source dividends, interest, royalties, and other fixed or determinable annual or periodic income ( FDAP payments ), and The gross proceeds from the sale of assets that produce FDAP payments (e.g., stocks and bonds) ( gross proceeds payments ). FFI and NFFE: Every non-u.s. entity is classified as either a foreign financial institution (an FFI ) or a non-financial foreign entity (an NFFE ). FFIs include depository institutions (e.g., banks), custodial institutions (e.g., broker-dealers), and investment entities (any entity that (i) derives more than 50% of its income from investing in securities and (ii) has professionallymanaged assets). NFFEs are all non-u.s. entities other than FFIs.

3 FATCA Terminology cont d Types of FFIs: Non-Participating FFIs: FFIs that take no action this is the default. Participating FFIs: FFIs that fulfill the following requirements: registration with the IRS (pursuant to which the FFI and IRS enter into an FFI agreement ), on-going compliance with the terms of the FFI agreement, determination of the Chapter 4 status (i.e., the treatment under FATCA) of each account holder, withholding on certain account holders in certain circumstances and/or reporting of account holders Chapter 4 status to U.S. withholding agents, and annual reporting of certain account holders and other information to the IRS. Deemed-compliant FFIs: certain specific types of FFIs that avoid being treated as a non-participating FFI by fulfilling certain requirements.

4 Deemed-Compliant FFIs Local FFI: a regulated financial institution that primarily operates in its country of incorporation (which must be an FATF-compliant jurisdiction) and meets several other detailed requirements. Non-registering local bank: a bank or credit union that primarily operates in its country of incorporation and has less than US$175 million in assets. FFI with only low-value accounts: a depository or custodial institution with no accounts in excess of US$50,000 and less than US$50 million in assets on its balance sheet. Owner-documented FFI: an investment entity with respect to which a U.S. withholding agent or participating FFI has agreed to report all required information to the IRS. An FFI can only be an owner-documented FFI with respect to one participating FFI or U.S. withholding agent. Sponsored investment entity: an investment entity that is sponsored by a person with management authority over it (e.g., a trustee). The sponsor agrees to perform due diligence on the sponsored entity s owners and report certain information to the IRS.

5 FATCA Basics FATCA in five words: Name names or pay up. FATCA is an information-gathering tool the IRS is looking for Americans who hide assets offshore. FATCA recruits FFIs to provide information about their account holders by requiring U.S. withholding agents to withhold 30% on an FFI that fails to do so. Separately from the rules discussed in this presentation, FATCA also requires Americans to disclose ownership of certain offshore financial assets (including interests in trusts and IBCs). FATCA generally operates as follows (pursuant to 544 pages of regulations): U.S. withholding agents must withhold 30% from each withholdable payment to a non-participating FFI. To avoid such withholding, an FFI must become a participating FFI or a deemedcompliant FFI (if eligible). Where a participating FFI is an intermediary (e.g., a broker-dealer), it reports the Chapter 4 status of each account holder to the U.S. withholding agent, which then withholds if necessary from payments to each account holder. U.S. withholding agents are also required to withhold 30% from an NFFE unless the NFFE either certifies that it has no 10% U.S. owners or discloses its 10% U.S. owners. U.S. withholding agents must begin FATCA withholding on (i) July 1, 2014 for FDAP payments and (ii) January 1, 2017 for gross proceeds payments.

6 FATCA Basics cont d A non-u.s. government can change how FATCA applies to FFIs within its jurisdiction by entering into an inter-governmental agreement (an IGA ) with the IRS. There are two types of IGAs. Under the type of IGA the GOB was negotiating, FATCA would generally operate as follows: U.S. withholding agents would not be required to withhold from payments made to an FFIs; an FFIs would not be required to report directly to the IRS; Instead, an FFIs would only be required to Determine whether any of their account holders are U.S. persons (generally using standard AML/KYC procedures under law as enhanced by the IGA, not the more complicated procedures in the FATCA regulations) and Report U.S. account holders to the GOB (which would then report them to the IRS).

7 Common Misconceptions Myth: FATCA allows the IRS to remove funds from offshore accounts held by Americans. Fact: The only enforcement mechanism is withholding. Also, individuals are not withheld upon only non-cooperating non-u.s. entities are withheld upon. Myth: Once FATCA withholding begins, the IRS will take 30% of all amounts paid to a IBC/trust owned by a U.S. investor. Fact: Withholding can be avoided through proper structuring (which generally requires disclosure of the U.S. investor to the IRS). Myth: I am a non-u.s. bank/broker-dealer/fund/etc. As long as I avoid U.S. account holders, I do not have to worry about FATCA. Fact: If you hold U.S. securities, you will still be withheld upon even if you have no U.S. account holders unless you become a participating FFI or a deemed-compliant FFI (if eligible).

8 Application IBC Registered Agent Individual(s) IBC Brokerdealer U.S. securities Example Structure One or more individuals own 100% of the issued and outstanding shares of IBC. Individual(s) could be U.S. or non-u.s. Registered Agent is the registered agent for the IBC. IBC s only activity is to hold an account with Brokerdealer, through which it holds U.S. securities. This example discusses the FATCA treatment of each entity under the FATCA regulations (not an IGA).

9 Application IBC cont d Registered Agent Individual(s) IBC Brokerdealer U.S. securities Broker-dealer Broker-dealer is an FFI. If Broker-dealer were a nonparticipating FFI, the U.S. withholding agent would be required to withhold 30% from each withholdable payment. For example, Broker-dealer would receive only $0.70 per share from a $1.00 per share dividend paid on U.S. shares. Beginning in 2017, Broker-dealer would receive only $70 on gross proceeds of $100 paid on a sale of such shares. To avoid unhappy clients, Broker-dealer decides to become a participating FFI (assuming it does not qualify as a deemed-compliant FFI).

10 Application IBC cont d Registered Agent Individual(s) IBC Brokerdealer U.S. securities IBC IBC could be treated as an FFI or an NFFE (depending on the exact facts and the resolution of a regulatory ambiguity). If IBC is an NFFE, it can avoid withholding by providing either (as the case may be) (i) a statement that it has no 10% U.S. owners or (ii) information about its 10% U.S. owners. If IBC is an FFI, without further action, the U.S. withholding agent would be required to withhold 30% from each withholdable payment. To avoid this result while also avoiding the burden of being a participating FFI, IBC can either: Make a U.S. tax election to be a disregarded entity (if it is wholly owned by one individual) or Ask Broker-dealer to treat IBC as an owner-documented FFI.

11 Application IBC cont d Registered Agent Individual(s) IBC Brokerdealer Registered Agent Registered Agent is not an FFI and does not receive withholdable payments under this structure. Registered Agent therefore has no obligations under FATCA as far as this structure is concerned. However, Registered Agent should expect FATCA-related questions from its clients (both U.S. and non-u.s.) U.S. securities

12 Application Company Registered Agent Individual(s) IBC Brokerdealer U.S. securities Example Structure One or more individuals form. Individual(s) could be U.S. or non-u.s. s only asset is 100% of the shares of IBC. IBC s only activity is to hold an account with Brokerdealer, through which it holds U.S. securities. Company is the trustee of, and Registered Agent is the registered agent for the IBC.

13 Application cont d Individual(s) Broker-dealer Same consequences as the previous structure. Company Registered Agent IBC Brokerdealer U.S. securities

14 Application cont d Company Registered Agent Individual(s) IBC Brokerdealer U.S. securities IBC Again, IBC could be treated as an FFI or an NFFE. As in the previous structure, if IBC is an NFFE, it can avoid withholding by providing either (as the case may be) (i) a statement that it has no 10% U.S. owners or (ii) information about its 10% U.S. owners. Indirect ownership through counts as ownership of IBC. If IBC is an FFI, IBC can elect disregarded entity treatment for U.S. tax purposes because it is wholly owned by. IBC makes this election on an IRS Form 8832 (after obtaining an EIN using IRS Form SS-4). After such election, will be treated as the holder of the account with Broker-dealer for FATCA purposes.

15 Application cont d Company Registered Agent Individual(s) IBC Brokerdealer is an FFI because it is an investment entity. has two options to avoid being a non-participating FFI while also avoiding the burden of being a participating FFI: It can be an owner-documented FFI if (i) IBC is disregarded (as described above), (ii) it meets all of the requirements for such status, and (iii) Broker-dealer agrees; or It can be a sponsored investment entity if Company agrees to sponsor it. U.S. securities

16 Sponsored FFIs An FFI that is an investment entity can be a sponsored investment entity if an entity has agreed with the FFI to act as a sponsoring entity for the FFI. A sponsoring entity must: Be a person (such as a trustee) that is authorized to manage the FFI and enter into contracts on behalf of the FFI; Register with the IRS as a sponsoring entity; Register the FFI with the IRS as a sponsored investment entity; Agree to perform, on behalf of the FFI, all due diligence, withholding, reporting, and other requirements that the FFI would have been required to perform if it were a participating FFI; and Identify the FFI in all required reporting. Advantages for of being a sponsored investment entity include the following: It can avoid withholding without having to register with the IRS and comply with the FATCA regulations; It does not need Broker-dealer s agreement to be treated as an owner-documented FFI; and It can have multiple brokerage and/or bank accounts (it could have just one if it were an owner-documented FFI).

17 Application cont d Company Registered Agent Individual(s) IBC Brokerdealer Company Company is an FFI if more than 50% of its income is from providing trustee services. However, Company is not in the chain of withholdable payments under this structure. Therefore, Company s status as an FFI only has consequences for any independent investments it makes, not for or Individual(s). U.S. securities

18 Conclusion FATCA is coming U.S. Tax Services can help. For select broker-dealers, U.S. Tax Services offers a complete FATCA solution that is fully funded through fees collected from account holders. For trust companies, U.S. Tax Services can assist you in offering sponsored investment entity services to your trusts. For registered agents, U.S. Tax Services can help your clients (whether U.S. or non-u.s.) smoothly navigate through FATCA. For other an companies with U.S. investments, U.S. Tax Services can help you insure cost-effective FATCA compliance across the organization. U.S. Tax Services pays a 20% referral fee on all referred business. U.S. Tax Services Stewart H. Patton

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