The Foreign Account Tax Compliance Act (FATCA)

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1 The Foreign Account Tax Compliance Act (FATCA) Applying FATCA to Funds and other Collective Investment Vehicles Jonathan Sambur Partner February 2013 Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

2 Overview FATCA is the law Signed by President Obama on March 18, 2010 Proposed Regulations issued on February 8, 2012 (published on February 15, 2012) Final Regulations issued on January 17, 2013 (officially published January 28, 2013) Bilateral Intergovernmental Agreements can modify outcomes under the Final Regulations New withholding tax and information reporting system for payments made to foreign financial institutions (FFIs) Similar system of withholding tax and information reporting for payments made to non-financial foreign entities (NFFEs) Designed to reduce the incidence of improper tax avoidance through the use of offshore accounts and non-us investments Targets financial institutions serving US investors rather than the US investor itself Goal: increased information reporting and transparency Enforcement mechanism: 30% withholding tax imposed on US payments to certain non- US persons 2

3 To Whom Does FATCA Apply Foreign financial intermediaries that have US clients, directly or indirectly US client is determined using US tax law definition of US person: resident of the United States (green card holder or person that satisfies the substantial presence test ) or US citizen (including a dual citizen)), US corporation or US partnership, US trust or US estate Virtually every foreign financial institution that holds, trades or invests in US investment property for itself or on behalf of an account holder (whether or not the client is a US person) Includes: banks, trust companies, custodians, investment entities (i.e., collective investment vehicles), insurance companies that issue policies that have cash value Final regulations treat managers of investment entities as financial institutions ( (e)(4)(i)(A) page 418) Excludes: Non-financial holding companies, start-up companies, entities in the process of liquidation or reorganization, hedging or financing centers of non-financial groups with respect to transactions with non-ffi affiliates, and certain charitable organizations US payors and foreign institutions that make withholdable payments to FFIs and NFFEs Withholdable Payment means any payment of US source FDAP income (i.e., interest, dividends, rents, premiums, annuities, etc.) and any gross proceeds from the sale or other disposition (occurring after 12/31/16) of any property of a type which can produce interest or dividends that are US source FDAP income 3

4 Two Implementation/Compliance Regimes Final regulations complex implementation regime Intergovernmental Agreement FFI considered to be deemed compliant FFI Depending on type of IGA, FFI may not be subject to final regulations and only subject to regulation under local guidance that implements the relevant IGA 4

5 Final Regulations: FATCA In a Nutshell Any withholdable payment made by a US payor to a non- US entity is subject to FATCA Any withholdable payment made by a FFI with respect to a financial account maintained by any individual or to any entity is also subject to FATCA Identify, report and withhold Step 1: Identify the payee under the relevant rules applicable to US payors or to FFIs Special rules for preexisting accounts (those in existence as of 1/1/14) Step 2: Report the payment to the IRS under prescribed rules Step 3: Withhold tax if payment is made to nonparticipating FFI, recalcitrant client (i.e., an individual or passive NFFE that has not provided sufficient information to the payor) 5

6 Final Regulations: Phased in Withholding and Reporting Obligations US withholding agents: Preexisting accounts Withholding Withholding with respect to payments to prima facie FFIs 7/1/14 Withholding with respect to payments to all other undocumented preexisting accounts 1/1/16 Gross proceeds withholding begins 1/1/17 Reporting Form 8966 Reporting (identifying U.S. owners) for 2013 and 2014 occurs on March 31, 2015 Reporting FATCA reportable amounts (1042/ 1042-S) begins March 15, 2015 New Accounts Withholding begins with respect to payments made on or after 1/1/14 Same timeline for reporting 6

7 Final Regulations: Phased in Withholding and Reporting Obligations FFIs Preexisting accounts Generally the same as for US withholding agents, but Withholding begins for undocumented high value preexisting accounts on 1/1/15 Withholding begins for remaining undocumented preexisting accounts on 1/1/16 Passthru payment withholding will commence on the later of 1/1/17 or six months after final regulations are published New Accounts Same as US withholding agents 7

8 Final Regulations: Grandfathered Rules Payments made with respect to preexisting obligations (i.e., those existing as of 1/1/14 that are not equity) may be grandfathered and exempt from FATCA unless materially modified Grandfathered rules were expanded to also address certain obligations that would otherwise be subject to withholding tax under section 871(m) (dividend equivalent payments) and obligations that give rise to foreign passthru payments 8

9 Final Regulations: Investment Entity Proposed regulations focused on how the entity derived its gross income Income from investing, reinvesting or trading activities were tested Final Regulations focus on activities, gross income and functions/marketing Activity test: does the entity perform certain activities on behalf of a customer Captures portfolio management; trading in securities and financial products; or other management of financial assets for others Gross income test: does the entity derive sufficient income from investment, reinvestment or trading activities and is it managed by another party that is a financial institution (including a FFI by reason of the to the activity test) Functional test: does the entity hold itself out as a collective investment vehicle or similar fund and does it have an investment strategy of investment in financial assets 9

10 Distinguishing FFIs from NFFEs FFI is any financial institution that is a foreign entity Includes any entity that is engaged primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, notional principal contracts, insurance or annuity contracts, or any interest in such items and is managed by a financial institution An entity is engaged primarily in this business if 50% or more of its gross income is attributable to such investing, reinvesting, or trading activities Rental income or proceeds from the sale of real property is not included Dividends and proceeds from the sale of REIT stock or partnerships holding direct real property are included NFFE is a foreign entity that is not a financial institution A Passive NFFE is an NFFE that derives passive income, such as rental income or proceeds from the sale of real property Should a fund whose direct investments consist of real estate be classified as an FFI or a Passive NFFE? What about indirect investments in real estate? Indirect investments in real estate are more likely to result in FFI treatment since the underlying investments are held via JVs/Partnerships/REITs 10

11 Final Regulations: Application of FATCA to Funds US Fund with Foreign Investors FATCA withholding requirements will apply to withholdable payments made by a US fund to foreign entity investors (i.e. payments to FFIs and NFFEs) Required to withhold 30% of any withholdable payment unless the US Fund can reliably associate such payment with documentation that allows it to treat the payment as exempt from withholding Requires fund to collect withholding certificates (W-8BEN series) and, in some cases, supporting documentation from non-us investors and W-9s from US investors Withholding phased in over several years Required to conduct information reporting with respect to withholdable payments Foreign Fund that is an FFI FATCA withholding requirements will apply to withholdable payments made by a foreign fund to FFIs and NFFEs (i.e. must withhold 30% without qualifying documentation) FATCA withholding obligations will also apply to withholdable payments and, in the future, to foreign pass thru payments (payments attributable to withholdable payments) made to certain individual and entity investors (i.e., recalcitrant investors and nonparticipating FFI investors ( NPFFI )) FATCA reporting obligations are triggered by a US person s or a US owned foreign entity s ownership of an interest in an investment fund 11

12 Final Regulations: Application of FATCA to Funds (cont d) Funds treated as FFIs have two (possibly three) choices: Option 1: Enter into FFI Agreement with IRS to conduct due diligence, report information about its US account holders, and withhold tax on NPFFI and recalcitrant account holders FATCA provides a blanket exception from the 30% withholding tax if an FFI enters into an FFI Agreement and complies with such agreement Option 2: 30% withholding tax imposed on all US source income (e.g., interest or dividends) and on gross proceeds from sale of such property. Tax would be imposed on assets beneficially owned by the entity and account holders Tax imposed when FFI is the beneficial owner and when it collects the payment as an intermediary on behalf of a client Foreign passthru payment rule is intended to force FFIs to become participating FFIs Option 3: Obtain deemed compliant status by either certifying that you have no US person clients/owners or your entity poses a low risk of tax evasion Registered Deemed-Compliant FFIs (includes certain investment funds) Certified Deemed-Compliant FFIs Owner-Documented FFIs (includes certain investment funds) Fund located in a jurisdiction with an applicable IGA 12

13 Final Regulations: Application of FATCA to Funds (cont d) Funds treated as NFFE If fund is considered a passive NFFE (less than 50% of assets or income is from active, non-financial trade or business), fund will be obligated to provide a certification NFFE Certification (1) NFFE has no 10% or greater US owners directly or indirectly, or (2) NFFE identifies those 10% or greater US owners to the person paying it a withholdable payment 13

14 Deemed Compliant FFIs Registered Deemed Compliant FFIs Nonreporting Members of Participating FFI Groups Qualified Collective Investment Vehicles Restricted Funds Sponsored Investment Entities FFIs located in a jurisdiction with an applicable Intergovernmental Agreement Certified Deemed Compliant FFIs Sponsored, Closely Held Investment Vehicles 14

15 RDCFFI: Nonreporting Members of Participating FFI Groups No US accounts/investors Review accounts to identify US accounts or accounts held by nonreporting member FFI within six months of opening Review existing accounts under rules applicable to all FFIs (generally 2 year lead, except for high value accounts) such that within six months of identification, transfer account to participating FFI ( PFFI ), US financial institution or FFI located in a Model I IGA jurisdiction that is a member of the non-reporting member FFI affiliated group (a reporting affiliate ) Appropriate policies and procedures to identify new investors and transfer US accounts or accounts held by NPFFIs to a reporting affiliate within six months days of account opening and to monitor changes in circumstances that warrant such a transfer to a reporting affiliate 15

16 RDCFFI: Qualified Collective Investment Vehicles Investors are FATCA compliant entities or exempt from FATCA. Must only be an investment entity and be regulated in country of organization as an investment fund and in all locations in which it operates Each holder of debt in excess of $50,000, equity interests in the FFI, or any other holder of a financial account with the FFI must be: A PFFI or deemed compliant FFI, including an FFI subject to an applicable IGA A US person that is not a specified US person (e.g., regularly traded US corporation, 501(c)(3) entity, IRA plan, REITs and RICs, brokers and dealers), or An exempt beneficial owner (includes certain retirement funds that may obtain benefits under a US tax treaty) Bearer shares permitted but must be redeemed or immobilized prior to 1/1/17 and such holder must be document (under FFI due diligence rules) prior to payment Affiliates of Qualified CIV must be a PFFI or a RDCFFI, sponsored FFI, nonreporting IGA FFI or exempt beneficial owner Significantly limits ability to market fund interests to direct individual/entity investors 16

17 RDCFFIs: Restricted Funds Must be an FFI via investing/reinvesting/trading rule and be an investment fund regulated as such by country of organization (manager regulation also required) Interests issued by fund are redeemed by or transferred by the fund and are not sold by investors in secondary market. Interests in FFI may only be sold via PFFIs, RDCFFIs, nonregistering local bank, or restricted distributor ( approved distributors ) Must certify to IRS that it will terminate a distribution agreement and acquire/redeem all fund interests issued through any distributor that no longer qualifies as an approved distributor Special conditions in distribution agreements (and prospectus/marketing materials) By 6/30/14 or 6 months after FFI registration Sales of fund interests to US persons, NPFFIs, and Passive NFFEs with a substantial US owner must be prohibited ( prohibited investors ) Distributor must notify restricted fund within 90 days of any change in an investor s status for purposes of FATCA Fund must conduct due diligence with respect to preexisting direct accounts to identify US accounts or accounts held by NPFFIs and implement appropriate procedures to avoid selling interests to such persons and redeem such interests if any investor is later determined to be a prohibited investor No review required if fund distribution agreements explicitly restricted sales to US entities and US resident individuals By 12/31/13 or date of registration: Does not open or maintain accounts or make withholdable payments to specified U.S. persons, nonparticipatin FFIs or passive NFFEs with one or more substantial US owners and if such accounts are discovered; close account within 6 months Any identified US accounts, nonparticipating FFI accounts or passive NFFE with a US owner accounts must be redeemed or will be subject to withholding and reporting as if the restricted fund were a PFFI All affiliates that are FFIs must be particpating FFIs or RDCFFIs, sponsored FFIs, nonreporting IGA FFIs or exempt beneficial owners 17

18 RDCFFIs: Sponsored Investment Entities Must be an FFI: That is an investment entity that is not a QI, WP, or WT; and For which an entity has agreed to act as a sponsoring entity A sponsoring entity: Is authorized to manage the FFI and enter into contracts on behalf of the FFI (such as a fund manager, trustee, corporate director, or managing partner) Has registered with the IRS as a sponsoring entity Has registered the FFI with the IRS Agrees 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 Identifies the FFI in certain reporting completed on the FFI's behalf and Has not had its status as a sponsor revoked (status can be revoked by the IRS if there is a material failure to comply with its obligations) A sponsored FFI will be liable for any failure of its sponsoring entity to comply with these obligations 18

19 Certified Deemed Compliant FFIs: Sponsored, Closely Held Investment Vehicles Entity does not need to register with the IRS An FFI solely because it is an investment entity and is not a QI, WP, or WT Has a contractual arrangement with a sponsoring entity that is a participating FFI, reporting Model I FFI, or US financial institution that is authorized to manage the FFI Does not hold itself out as an investment vehicle for unrelated parties Twenty or fewer individuals own all of the debt and equity interests Disregarding debt interests owned by participating FFIs, registered deemed-compliant FFIs, and certified deemed-compliant FFIs and equity interests owned by an entity if that entity owns 100 percent of the equity interests in the FFI and is itself a sponsored FFI The sponsoring entity: Has registered with the IRS as a sponsoring entity Agrees to perform all due diligence, withholding, reporting, and other requirements that the FFI would have been required to perform if it were a participating FFI and retains documentation collected with respect to the FFI for a period of six years Identifies the FFI in certain reporting completed on the FFI's behalf Has not had its status as a sponsor revoked 19

20 Alternative Regime: Intergovernmental Agreements (IGAs) In February 2012, US, France, Germany, Italy, Spain, UK issued a joint statement in support of the underlying goals of FATCA but recognized legal impediments to compliance In June 2012, Switzerland and Japan with the US issued a joint statement describing a approach different from that of the G5 countries US is open to an intergovernmental approach to implementing FATCA and reportedly is in discussions with over 50 countries regarding such an intergovernmental approach To date, 3 different approaches Model I with reciprocity Model I without reciprocity Model II 20

21 Alternative Regime: IGAs Benefits Local law generally governs interpretation and compliance No withholding tax collected, only information reporting No passthru payment regime Possibility of reciprocity Greater certainty for FFIs to avoid withholding tax (less likely to have due diligence failure that leads to improper tax withholding) No certifications by responsible officer or complex IRS-imposed verification procedures (Model I only) 21

22 Alternative Regime: IGAs Model I Agreements: automatic information exchange Partner Country would pursue legislation to implement a regime whereby FFIs would perform due diligence to identify US accounts and report to their local government. Partner Country would then transfer such reported information to the US FFIs in Partner Country would not be required to terminate or impose passthru payment withholding on recalcitrant accounts, or impose passthru payment withholding on payments to other FFIs in a country that has an intergovernmental agreement US would not require FFIs in Partner Country to enter into a separate agreement and would eliminate withholding under FATCA on payments to FFIs in the partner country Reciprocity: US would commit to reciprocity with respect to collecting and reporting information regarding US accounts of Partner Country residents to the authorities of the Partner Country FFIs include Investment Entities: 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: trading in money market instruments (cheques, bills, certificates of deposit, derivatives, etc.); foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures trading; individual and collective portfolio management; or otherwise investing, administering, or managing funds or money on behalf of other persons 22

23 Alternative Regime: IGAs Model II Agreements: direct transfer of data where privacy laws are waived, treaty information exchange in all other cases Partner Country directs FFIs to enter into FFI Agreements with the IRS, but the FFI Agreement would be modified by the IGA, particularly the rules relating to due diligence and account identification FFIs, including Investment Entities, would directly transmit information to the IRS after waiver obtained from account holder/investor Account holders that refuse permission to transmit information to the IRS would have their information reported to the IRS via group requests pursuant to an existing information exchange agreement No automatic exchange of information Investment Entity: 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: trading in money market instruments (cheques, bills, certificates of deposit, derivatives, etc.); foreign exchange; exchange, interest rate and index instruments; transferable securities; or commodity futures; individual and collective portfolio management; or otherwise investing, administering, or managing funds or money on behalf of other persons. 23

24 Alternative Regime: IGAs As of 2/19/13, IGAs have been signed or initialed with: Model I United Kingdom Denmark Mexico Ireland Spain Finland Norway Model II Switzerland Treasury indicates it is in discussions with 50 countries A Partner Country would need to have an income tax treaty or TIEA with the United States or be a party to the OECD Convention on Mutual Administrative Assistance on Tax Matters as a precursor to an IGA 24

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