U.S. Tax and the Issuance of Debt Securities after the HIRE Act

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1 October 2011 U.S. Tax and the Issuance of Debt Securities after the HIRE Act An update SPEED READ This Bulletin provides participants in debt capital markets transactions with updated guidance on U.S. tax issues raised by the U.S. Hiring Incentives to Restore Employment Act of 2010 (the HIRE Act, or the Act). It supplements our Bulletin of April 2010 (addressing the changes affecting bearer debt securities, which remain unchanged since its publication). The two Bulletins should be read together. Please refer to our earlier Bulletin for a detailed description of the basic principles and mechanics of the Act as they apply to the capital markets, as well as for a description of rules under the Act which have not recently been updated. The Foreign Account Tax Compliance Act (FATCA), part of the HIRE Act, added a new component to the U.S. withholding and information reporting regime. FATCA effectively makes foreign financial institutions (FFIs) information gathering agents for the United States by threatening an FFI s own U.S. source investments with 30% withholding, thereby incentivising all FFIs to comply with the new regime. The effective dates for this new withholding regime have recently been delayed. In addition, under recently released guidance, income of and payments by FFIs which are only indirectly attributable to U.S. assets are also potentially subject to U.S. withholding. This represents a further expansion of the universe of non U.S. financial entities that will need to comply with the new legislation. In light of the extensive scope of the rules, debt capital market participants should now be considering their standard documentation. Stephen Fiamma Partner, U.S. Tax, London Contact Tel +44 (0)

2 Summary of recent material developments affecting foreign financial institutions involved in debt capital markets NEW EFFECTIVE DATES The effective dates for the commencement of withholding have recently been delayed from the originally scheduled 1 January Unless an FFI enters into an agreement with the U.S. Internal Revenue Service (IRS), an FFI will now be subject to a new withholding tax of 30% (30% Withholding): on and from 1 January 2014 in respect of its U.S. source investment income; and on and from 1 January 2015 in respect of the gross proceeds from the sale or other disposition of its property of any type which can produce interest or dividends from sources within the United States; and on and from 1 January 2015 in respect of passthru payments (see below). Investment income in this context means interest, dividends, and other fixed or determinable annual or periodical gains, profits and income, if such payment is from sources within the United States. The 30% Withholding applies to investment income and gross proceeds which the FFI receives (1) for its own account when acting as an investor (e.g., with respect to its treasury or trading activities), and (2) with respect to any financial account it maintains for others when acting as paying agent, custodian, or in a similar role in the payment chain for a debt capital markets transaction. The 30% Withholding can be avoided if the FFI enters into an agreement with the IRS to take certain actions (see section 2.1 of our April 2010 Bulletin). Entering into such an agreement may, however, oblige the FFI to itself apply 30% Withholding to certain payments it makes to others (see, for example, the application of 30% Withholding to passthru payments below). CLARIFICATION OF SCOPE OF GRANDFATHERING RULE Recent guidance has clarified that 30% Withholding will apply to debt securities and (subject to the exception described in the next sentence) other obligations which produce withholdable payments only if they are issued after * 18 March The 30% Withholding will, however, apply to all equity securities and to all legal agreements that lack a definitive expiration or term, irrespective of when they were issued. * Since issuance of our Bulletin of April 2010, it has been clarified that grandfathering applies to debt securities issued on or prior to 18 March

3 U.S. Tax and the Issuance of Debt Securities after the HIRE Act October 2011 The scope of the grandfathering rule is significant in a number of contexts. For example, certain capital markets programmes allow for the issuance of instruments which are, and have always been, regarded as equity and taxed as such for U.S. federal tax purposes, even if they are legally issued in the form of debt. Index-linked notes without principal protection, notes with a very long or no maturity, deeply subordinated notes or notes issued by thinly capitalised entities are potential examples of this sort of instrument. Thus, not all issuances taking the form of debt which occur on or before 18 March 2012 will necessarily benefit from the grandfathering rule which has taken on significance in light of the expansive definition of passthru payments described below. PASSTHRU PAYMENTS IRS guidance on the definition of passthru payments dramatically expanded the number of FFIs that will need to comply with FATCA. According to such definition, a portion of any non-u.s. source payment made by an FFI, when such an FFI is acting as an issuer, will be treated as a passthru payment in proportion to the ratio of the FFI s U.S. assets to its total assets (the passthru percentage). An FFI which has entered into an agreement with the IRS under the Act will need to deduct 30% Withholding from each passthru payment it makes to a recalcitrant account holder or to an FFI that does not enter into an agreement with the IRS (see section 2.1 of our April 2010 Bulletin). As most FFIs are likely to hold some U.S. assets, most FFIs will have a positive passthru percentage. Thus, a passthru payment subject to 30% Withholding need not relate in any direct way to U.S. source income of the issuing FFI. To appreciate the significance of this definition, assume that Majorbank is a European financial institution. Majorbank has significant U.S. operations. Further, 10% of its worldwide assets are invested in U.S. treasury securities and debt of U.S. companies. Majorbank does not wish to suffer withholding on its U.S. source income and gross proceeds of sale, and therefore enters into an agreement with the IRS to comply with the Act. Majorbank issues notes treated as debt for U.S. federal tax purposes in February Its passthru percentage is 10%, based upon the ratio of its U.S. assets to its non-u.s. assets. No amount Majorbank pays on the notes after 1 January 2015 will be subject to 30% Withholding because the notes are grandfathered. Majorbank issues floating rate ten-year notes (treated as debt for U.S. federal tax purposes) in April Its passthru percentage is 10%, based upon the ratio of its U.S. assets to its non-u.s. assets. Thus, 10% of any interest Majorbank pays on the notes on and from 1 January 2015 will be subject to 30% Withholding if paid to a recalcitrant account holder or to non compliant FFIs. Participating FFIs in the payment chain which receive gross interest will need to apply the passthru percentage of Majorbank, not their own passthru percentage, in determining the 30% Withholding they need to apply on the payment of interest to a recalcitrant account holder or non-compliant FFIs down the payment chain. Majorbank issued index-linked notes without principal protection which are treated as equity for U.S. federal tax purposes in Its passthru percentage is 10%, based upon the ratio of its U.S. assets to its non-u.s. assets. Thus, 10% of any interest Majorbank pays on the notes on and from 1 January 2015 will be subject to 30% Withholding if paid to a recalcitrant account holder or to non-compliant FFIs. 3

4 In addition, when an FFI has entered into an agreement with the IRS it will be obliged to apply 30% Withholding to any U.S. source payments of interest and gross proceeds which it makes to others when acting in the capacity of a paying agent, custodian, or other similar component of a payment chain in a debt capital markets transaction. Such withholding will apply to the entirety of such payments, regardless of the FFI s passthru percentage. HEDGING/FINANCING CENTRES OF A NON-FINANCIAL GROUP The IRS has stated that if an entity (1) primarily engages in financing and hedging transactions with or for affiliates that are not themselves FFIs and (2) does not provide such services to non-affiliates, such an entity may be excluded from the definition of FFI, provided that the group of which it is a part is primarily engaged in a non-financial institution business. hedging transactions with its affiliates only. Absent an exception, FinanceCo will be treated as an FFI subject to 30% Withholding under the Act, unless it enters into an agreement with the IRS, and any payment it makes, including interest on non-publicly traded notes it issues, will be treated as a passthru payment subject to the rules discussed above. To illustrate this possible exception, assume that FinanceCo is a financing subsidiary of a multinational industrial group, which is engaged in financing and Frequently asked questions The following are frequently asked questions in relation to the most recent guidance issued under the Act. The answers reflect our reading of the Act, our judgement as to future developments, and our experience with the impact the Act is having on capital markets participants and their documentation. Do I need to do anything to my documents? No changes are needed now to any documents that deal with stand-alone issuances of debt securities to be made on or prior to 18 March As stated above, debt issues made on or prior to 18 March 2012 will be grandfathered until their maturity. Changes, however, should be considered to documents that deal with stand-alone issuances of securities treated as equity for U.S. federal tax purposes (see discussion below on the changes recommended to programme documents). Programme documents that cover issuances of debt securities that could occur after 18 March 2012, instruments which could be considered equity for U.S. federal tax purposes, or (c) agreements which have no definitive expiration or term, will need to address the HIRE Act changes. Market practice is currently evolving to accommodate such changes, with the current answers to the questions such as those below being as follows. Will I need to include additional risk factor language on the impact of the HIRE Act in my base prospectus? If you are a U.S. issuer, you will have to decide on the most appropriate method of disclosing the potential withholding tax risks to noteholders and to consider 4

5 U.S. Tax and the Issuance of Debt Securities after the HIRE Act October 2011 whether additional risk disclosure and/or additional disclosure in the U.S. tax section of your prospectus will achieve this purpose. Our experience to date includes the inclusion of a risk factor in debt programmes under which issuances can be made after 18 March 2012, and in all equity and other non-debt issuances (within the meaning of U.S. tax law). One of the uncertainties created by the HIRE Act is what will happen when payments cascade through a chain of FFIs, some of which have agreements with the IRS and are compliant with them, and some of which are not. Depending on the final regulations in this area, the risk that the ultimate holder may suffer withholding, even if it and the FFI with which it has direct dealings are compliant, should require disclosure. If you are a non-u.s., non-ffi issuer, you do not at present need to include an additional risk factor. If you are an FFI, however, you will have to decide on the most appropriate method of disclosing the potential withholding tax risk to noteholders with respect to the expanded definition of passthru payment (see above). Under current guidance, the payment of any interest on a debt issued after 18 March 2012 (or payments on an equity or other non-debt issuance by an FFI), to the extent it constitutes a passthru payment, will be subject to the 30% Withholding. Market practice is evolving towards HIRE Act risk factor disclosure in FFI programmes. Will I need to amend the taxation gross-up and redemption provisions? No, you will not if you are a non-u.s., non-ffi issuer, because you cannot make a withholdable payment. If you are a U.S. issuer, however, these provisions need to change. The changes we have seen consistently allocate the risk of the 30% Withholding to investors. Thus, the 30% Withholding generally is specifically carved out of the gross-up provisions. If you are an FFI, it is likely that your taxation gross-up provision would not cover withholding imposed by the United States. As a result, structurally, the risk of the new withholding tax remains on the investors. If, unusually, the definition of relevant tax jurisdiction is broad enough to cover any taxing authority, however, then the addition of a carve-out to the taxation gross-up provision should be considered. Please note, however, that 30% Withholding will be imposed on payments of dividends and interest on FFI securities if other FFIs to, or through, which payments are made do not comply with reporting requirements of FATCA. Thus, investors may suffer withholding due to an intermediary s failure to comply, irrespective of the status of the ultimate investor or that of the FFI through which such investor holds the security. What additional documentation issues should I be considering in light of the HIRE Act changes? If you are an FFI that acts as both issuer and underwriter, you will want to consider coordinating your approach to documenting the HIRE Act changes consistently when acting in different capacities. This could avoid awkward negotiations where a position taken in one capacity is being used to challenge an opposing position taken when acting in a different capacity, e.g., including a risk factor and/or carve-out to the tax gross-up provision when acting as issuer, but resisting their inclusion when acting as underwriter. Do I only need to worry about complying with the Act if I am an FFI with account holders who are or are owned by U.S. persons? No. Even an FFI with no U.S. accounts will need to comply with the Act to avoid 30% Withholding. The form which such compliance will take, however, has not yet been determined. Can I tap an existing debt issuance after 18 March 2012 without triggering HIRE Act consequences? It is unclear whether a tap of a grandfathered debt issuance (i.e., one which is itself grandfathered because it was in existence on or prior to 18 March 2012) will itself be grandfathered. Tap issuances after 18 March 2012 will need to be analysed carefully if there is no further guidance by the IRS on this issue. 5

6 Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that the U.S. federal tax discussion contained herein (1) was not intended or written to be used, and cannot be used, for the purpose of avoiding U.S. federal tax-related penalties under the Internal Revenue Code of 1986 and (2) was not written to support the promotion or marketing of any transaction. Taxpayers should seek the advice of their independent tax advisers based on their particular circumstances. 6

7 U.S. Tax and the Issuance of Debt Securities after the HIRE Act October 2011 Table 1: Application of the HIRE Act/FATCA Under Existing Guidance Issuer type Instrument Issued on or before 18 March 2012 Issued after 18 March 2012 Effective date of withholding tax Currently recommended documentary changes (i) (ii) Debt Bearer form possible if: TEFRA D compliant, or maturity of 183 days Bearer form possible only if: (i) issued through dematerialised clearing system (3), (ii) in immobilised bearer form (4), or (iii) maturity of 183 days Interest/dividends 1 January 2014 Gross proceeds from sale 1 January 2015 (c) (d) Risk factor Additional carve out to the tax gross-up Collection of relevant IRS Forms W-8 with respect to all notes Add registered option (debt issuances only) 30% Withholding not 30% Withholding applies Equity/ TEFRA not instruments treated as equity by IRS (2) 30% Withholding applies TEFRA repeal not relevant 30% Withholding applies Non-U.S. non-ffi issuer of: (5) Debt Bearer form possible (i) (ii) if: TEFRA C or D compliant, or maturity of 1 year Bearer form possible only if: (i) TEFRA-like compliant, (ii) issued through dematerialised clearing system (3), (iii) in immobilised bearer form (4), or (iv) maturity of 1 year Not None 30% Withholding not 30% Withholding not Equity/ TEFRA not instruments treated as equity by IRS (2) 30% Withholding not TEFRA repeal not relevant 30% Withholding not FFI issuer of: Debt Bearer form possible if: (i) TEFRA C or D compliant, or (ii) maturity of 1 year Bearer form possible only if: (i) TEFRA-like compliant, (ii) issued through dematerialised clearing system (3), (iii) in immobilised bearer form (4), or (iv) maturity of 1 year Interest/dividends/gross proceeds from sale, to the extent they constitute passthru payments 1 January 2015 Possible risk factor Additional carve-out to the tax gross-up if scope of gross up otherwise sufficiently broad to cover FFI withholding 30% Withholding not 30% Withholding on passthru payments (6) Equity/ TEFRA not instruments treated as equity by IRS (2) 30% Withholding on passthru payments (6) TEFRA repeal not relevant 30% Withholding on passthru payments (6) (1) U.S. issuers include not only U.S.-incorporated entities, but also non-u.s. corporate entities issuing out of their U.S. branches. (2) Certain securities that are in form debt instruments may be treated as equity for U.S. federal tax purposes. Such instruments may include, but are not limited to, securities with extended or no maturity, index-linked notes, deeply subordinated notes, or notes issued by thinly capitalised entities. (3) Dematerialised systems include other book entry systems specified by the Secretary [of the Treasury]. It is unclear whether Euroclear and Clearstream will be treated as such book entry systems. See 1.4 of our April 2010 Bulletin. (4) An immobilised bearer structure calls for the issuance of a non-transferable global note which underlies certificated or certificate-less depositary interests issued by a depositary to the clearing systems. (5) Non-U.S. non-ffi issuers include any non-u.s. issuers that do not fall within the category of FFIs. Entities falling within the category of FFIs include, but are not limited to, banks, building societies and securitisation vehicles, but exclude government owned agencies or instrumentalities, such as municipalities, and may exclude financing subsidiaries of a non-financial group. (6) Passthru payments are defined above. 7

8 Key contacts If you require advice on any of the matters raised in this document, please call any of our partners or your usual contact at Allen & Overy. Stephen Fiamma Partner, U.S. Tax, London Tel +44 (0) Dave Lewis Partner U.S. Tax, New York Tel Jack Heinberg Partner U.S. Tax, New York Tel Amanda Thomas Partner Head of International Capital Markets Know-How, London Tel +44 (0)

9 Allen & Overy LLP One Bishops Square, London E1 6AD, United Kingdom Tel +44 (0) Fax +44 (0) Allen & Overy maintains a database of business contact details in order to develop and improve its services to its clients. The information is not traded with any external bodies or organisations. If any of your details are incorrect or you no longer wish to receive publications from Allen & Overy, please Links to third party websites in this document are not monitored or maintained by Allen & Overy. We do not endorse these websites and are not responsible for their content. We accept no responsibility for any damage or loss you may suffer arising out of access to these websites. Please read all copyright and legal notices on each website prior to downloading or printing items to ensure that such actions are permitted under the third party website s copyright notices, legal notices and/or terms of use. In this document, Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Athens (representative office), Bangkok, Beijing, Belfast, Bratislava, Brussels, Bucharest (associated office), Budapest, Casablanca, Doha, Dubai, Düsseldorf, Frankfurt, Hamburg, Hong Kong, Jakarta (associated office), London, Luxembourg, Madrid, Mannheim, Milan, Moscow, Munich, New York, Paris, Perth, Prague, Riyadh (associated office), Rome, São Paulo, Shanghai, Singapore, Sydney, Tokyo, Warsaw and Washington D.C. Allen & Overy LLP This document is for general guidance only and does not constitute definitive advice. DP

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