FIBA FATCA Forum June 25, 2013 Presented by: Marian Ancheta Llera Partner Concepcion Martinez & Bellido 255 Aragon Avenue, 2 nd Floor Coral Gables, FL 33134 mllera@cfclaw.com 305.444.6669 ext. 179
Panel: FATCA and Tax Transparency How did we get here? Where are we going? This panel will cover the legislative history and purpose of FATCA, the UBS case and discuss similar efforts around the globe as well as the impact of the signing of Intergovernmental Agreements ( IGAs ).
FATCA is a Persuasion Tool? FATCA is supposed to be an incentive to encourage voluntary compliance by US taxpayers in connection with their foreign assets; not a direct revenue raiser. IRS representatives have indicated that the goal of FATCA is transparency with respect to US taxpayers who invest through foreign financial institutions and nonfinancial foreign entities; the goal is not to collect the 30% withholding tax. Does the end justify the means?
The Back Story: US Context o US Federal Income Tax applies on the worldwide income of US Taxpayers o Who is a US Taxpayer? o US Citizen (even if also citizen of other country/ies) o US Resident Alien - can be a US Resident Alien in 2 ways: o Lawful Permanent Alien ( Green Card Test ); and o Non-US citizens who spend 183 days or more in the US during that calendar year or over a 3-year period applying a weighted formula ( Substantial Presence Test ) o Many exceptions to Substantial Presence Test o Entities organized under the laws of the US o July 17, 2008: Senate Permanent Subcommittee on Investigations issues Report on Tax Haven Banks and US Tax Compliance o Includes case histories on UBS and LGT cases o Report estimates that each year, the US loses an estimated $100 billion in tax revenues due to offshore tax abuses o Previously introduced bills in US Congress o Stop Tax Haven Abuse Act
UBS Case Feb 2009 the Swiss bank agreed to cooperate with the US Justice Department under a Deferred Prosecution Agreement to avoid criminal prosecution in the US against the institution. The US alleges the bank assisted US Persons in maintaining foreign accounts without declaring them to the United States. UBS reveals list of thousands of names of US Persons as part of the agreement with the United States. UBS agreed to pay US$780 million in fines to finalize the investigation in 2009.
Wegelin & Co. Case Feb 2012 Grand Jury Indictment So. Dist. of New York Oldest Swiss private bank (founded in 1741) had to pay US$74.17 million in fines and confiscated accounts to the US: US$16.3 million - confiscation of US correspondent bank account in April 2012 US$22.05 million in fines US$20.00 million in restitution; on 4 March 2013 US$15.82 million in forfeiture
Mary Estelle Curran Case The Palm Beach, Florida widow inherits accounts at UBS Switzerland from her husband in 2000. She was indicted by the US Dept of Justice In Feb 2013 the 79 year old pleads guilty to the charges she failed to report the account on the FBAR form, among others. In April 2013 US Dist Ct Judge Ryskamp notes she was unable to participate in an amnesty property because she was on an IRS bad list and sentences her to only 6 seconds of probation and recommends she applies for a Presidential pardon.
The US Problem which FATCA Solves o Enforcement of US Federal tax laws are strengthened through the use of information reporting system so that the IRS does not have to depend on the taxpayer s voluntary compliance with US tax laws. o For payments made within the US, there is a well-developed information reporting system in place o US taxpayer provides IRS Form W-9 with US Tax ID Number to Payor o Payor files IRS Form 1099 annually to provide information report to IRS o Payments made outside the US, however, are not subject to a similarly robust information reporting system. o US taxpayers were avoiding their US tax obligations by hiding behind offshore entities or other non-us investment vehicles
The Back Story: International Context o Global Tax Enforcement Efforts o EU Savings Directive: The tax was introduced at the time of the introduction of the European Union Savings Directive ( EUSD ), a directive on the taxation of interest income from savings within the European Union that came into effect on 1 July 2005. o The EU withholding tax applies to residents of the 27 EU Member States. o OECD o Convention on Mutual Administrative Assistance in Tax Matters - 1988 o Mechanism for Multilateral Exchange of Tax Information o Since 2011 Changes - More than 50 countries have signed on o FATF/GAFI o Tax crimes became a predicate office to money laundering, with the adoption of the 2012 FATF Recommendations
Source: OECD website available at http://www.oecd.org/ctp/exchange-of-tax-information/status_of_convention.pdf
IGAs Signed to Date: United Kingdom (12-Sept-2012) Mexico (19-Nov-2012) Denmark (19-Nov-2012) Ireland (23-Jan-2013) Switzerland (14-Feb-2013) = Model 2 Norway (15-Apr-2013) Spain (14-May-2013) Germany (31-May-2013) Status of IGAs IGAs Initialed Not Yet Signed: Italy France? Geographical Key: Americas The Caribbean Europe Middle East Asia-Pacific Africa Japan (11-Jun-2013)
IGAs Signed to Date Country: Type: Date Signed: Entry into Force: United Kingdom Model 1 (Reciprocal) Denmark Model 1 (Reciprocal) Mexico Model 1 (Reciprocal) Ireland Model 1 (Reciprocal) Sept. 12, 2012 Nov. 19, 2012 Nov. 19, 2012 January 1, 2013 Dec. 21, 2012 The Parties shall notify each other in writing when their necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on the date of the later of such notifications. The Parties shall notify each other in writing when their necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on the later of January 1, 2013, or the date of the later of such notifications. The Parties shall notify each other in writing when their necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on the later of January 1, 2013, or the date of the later of such notifications, and shall continue in force until terminated. Switzerland Model 2 Feb. 14, 2013 Each Party shall notify the other Party in writing through diplomatic channels upon completion of the procedures required by its law for bringing this Agreement into force.
IGAs Signed to Date Country: Type: Date Signed: Entry into Force: Norway Model 1 (Reciprocal) Spain Model 1 (Reciprocal) Germany Model 1 (Reciprocal) Apr. 15, 2013 May 14, 2013 May 31, 2013 The Parties shall notify each other in writing when their necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on the date of the later of such notifications, and continue until terminated. The Parties shall notify each other in writing when their necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on the date of the later of such notifications, and continue until terminated. The Agreement enters into force on the date Germany notifies the US in writing that the necessary internal procedures for entry into force have been completed. The Agreement shall enter into force on such date and continue until terminated. Japan Model 2 Jun. 11, 2013 1. The Statement starts to be implemented 11 Jun 2013. 2. Either may discontinue at any time, but should endeavor to give 12 months notice in writing.
UK Crown Dependencies & Overseas Territories Are they covered under the US-UK IGA? o Crown Dependencies: Isle of Man, Guernsey; and Jersey o Overseas Territories: Cayman Islands, the British Virgin Islands, Bermuda, Anguilla, Turks and Caicos Islands, Montserrat and Gibraltar Yes, they have all agreed to enter into automatic tax information exchange agreements with the UK. They are in varying stages of execution, ratification and implementation of these agreements.
IGA Status by Region Levels of Negotiations: 1. Preliminary Meetings with US Treasury 2. Exploring Options 3. Actively Engaged 4. Imminent 5. IGA Initialed 6. IGA Signed Europe Country Status Country Status Belgium Actively Engaged Jersey Imminent Cyprus Actively Engaged Liechtenstein Actively Engaged Czech Republic Exploring Options Luxembourg Exploring Options Denmark IGA Signed Malta Actively Engaged Estonia Actively Engaged Netherlands Imminent Finland Imminent Norway IGA Initialed France Imminent Romania Exploring Options Germany IGA Signed Russia Actively Engaged Gibraltar Exploring Options Slovak Republic Actively Engaged Guernsey Imminent Slovenia Exploring Options Hungary Actively Engaged Spain IGA Signed Ireland IGA Signed Sweden Actively Engaged Isle of Man Imminent Switzerland IGA Signed Italy IGA Initialed UK IGA Signed Americas Country Status Argentina Actively Engaged Brazil Exploring Options Canada Imminent Chile Exploring Options Mexico IGA Signed Caribbean Country Status Bahamas Preliminary Meeting Bermuda Exploring Options BVI Imminent Cayman Imminent St. Maarten Exploring Options
Levels of Negotiations: 1. Preliminary Meetings with US Treasury 2. Exploring Options 3. Actively Engaged 4. Imminent 5. IGA Initialed 6. IGA Signed IGA Status by Region Middle East Asia-Pacific Africa Country Bahrain Kuwait Israel Lebanon Oman Qatar Saudi Arabia UAE Status Preliminary Meeting Preliminary Meeting Actively Engaged Exploring Options Preliminary Meeting Preliminary Meeting Preliminary Meeting Preliminary Meeting Country Australia India Japan Korea Malaysia New Zealand Singapore Status Actively Engaged Exploring Options IGA Signed Actively Engaged Actively Engaged Actively Engaged Imminent Country Seychelles South Africa Status Exploring Options Exploring Options Jordan Preliminary Meeting Morocco Preliminary Meeting
G5 Pilot Multilateral Exchange Apr 9, 2013 - The UK, Spain, Italy, France and Germany agree to develop and pilot multilateral tax information exchange. Under the agreement, a wide range of financial information will be automatically exchanged between the five countries. This pilot will be based on the FATCA IGA. o Source: HMRC press release and G5 Letter to European Commission The G5 letter to the commission states, in part: We will be looking to promote these agreements as the new international standard, including through the various international fora, with the ultimate aim of agreeing a multilateral framework. In this regard we wanted to bring to your attention that France, Germany, Italy, Spain and the UK have today agreed to work on a pilot multilateral exchange facility between our countries using the model agreed with the US as the basis for this multilateral exchange. This pilot will not only help in catching and deterring tax evaders but it will also provide a template as to the wider multilateral agreement we hope to see in due course. We would invite other EU Member States to join in this pilot and we hope that Europe can take a lead in promoting a global system of automatic information exchange, removing the hiding places for those who would seek to evade paying their taxes.
What is FATCA? o In a few words: FATCA is a new (i) withholding and (ii) reporting mechanism which will first begin to apply to withholdable payments made to foreign financial institutions ( FFIs ) as of January 1, 2014 if the FFI does not meet certain obligations under agreements with the US government. o On March 18, 2010, the Hiring Incentives to Restore Employment Act of 2010, Public Law 111-147 (the HIRE Act ) was passed by the US Congress. Subtitle A of Title V of the HIRE Act added chapter 4 ( Chapter 4 ) which contains the provisions dealing with Foreign Account Tax Compliance ( FATCA ). o Chapter 4 added Sections 1471 through 1474 to the Internal Revenue Code ( Code ). o Chapter 4 expands the information reporting requirements imposed on FFIs with respect to certain US accounts, and imposes withholding, documentation, and reporting requirements with respect to certain payments made to certain foreign entities. o The scope of FATCA is very broad. Almost every FFI is within the reach of this new regime. In addition, non-financial foreign entities ( NFFEs ) with direct or indirect US investments or US owners are also affected by this regime, but it is much easier for NFFEs to become FATCA compliant and avoid the 30% withholding tax.
Key FATCA Lingo Withholding Agent = Required to apply 30% withholding tax under Chapter 4 on withholdable payments on or after January 1, 2014 made to FFIs and NFFEs who do not meet FATCA requirements. Withholdable Payment = Generally speaking, includes US source payments of dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income ( FDAP Income ), if such payment is from sources within the United States, as well as gross proceeds from sale of assets capable of producing FDAP Income. FFI = Foreign Financial Institution NFFE = Non-Financial Foreign Entity IGA = Intergovernmental Agreement o 3 Types of IGAs: Model 1A (Reciprocal) Model 1B (Non-Reciprocal), and Model 2 EAG -= Expanded Affiliate Group = requires more than 50% common ownership and all FFIs within the EAG must participate and become FATCA compliant.
Who is a US Withholding Agent? Withholding Agent means any person, US or foreign, in whatever capacity acting, that has the control, receipt, custody, disposal, or payment of a withholdable payment of foreign passthru payment. See 1.1473-1(d) of the Final Regulations
What is a Withholdable Payment? F D A P Income A withholdable payment means: 1. any US source payment* of FDAP Income on or after December 31, 2013, such as: i. Interest**; ii. dividends; iii. rents; iv. royalties ; v. wages, salaries and remuneration; vi. premiums; vii. annuities; and viii. Other types of fixed or determinable annual or periodic income Gross Proceeds 2. Gross proceeds from the sale or other disposition on or after December 31, 2016 of any property of a type that can produce interest or dividends that are subject US source FDAP Income. *It does not include any item of income that is effectively connected with a US trade or business. **There are special sourcing rules for interest paid by foreign branches of domestic banks (interest derived from deposits maintained at foreign branches of domestic banks which under other provisions of the Code are considered foreign source).
New IRS Forms IRS Form W-8BEN-E (Entities): draft issued May 20, 2013 -Available at http://www.irs.gov/pub/irs-dft/fw8bene--dft.pdf IRS Form W-8BEN (Individuals): draft issued May 17, 2013 -Available at http://www.irs.gov/pub/irs-dft/fw8ben--dft.pdf IRS Form 1042 Annual Withholding Tax Return for US Source Income of Foreign Persons: draft issued Apr. 17, 2013 -Available at http://www.irs.gov/pub/irs-dft/f1042--dft.pdf IRS Form 1042-S Foreign Persons US Source Income Subject to Withholding: draft issued Apr. 2, 2013 -Available at http://www.irs.gov/pub/irs-dft/f1042s--dft.pdf IRS Form 8957 FATCA Registration Form: May 17, 2013 -Available at http://www.irs.gov/pub/irs-dft/f8957--dft.pdf IRS Form 8966 FATCA Annual Reporting Form: Not yet published
The new W-8BEN-E Form Draft issued on May 20, 2013
New IRS Forms for US Persons IRS Form 8938 Statement of Specified Foreign Financial Assets -Available at http://www.irs.gov/pub/irs-pdf/f8938.pdf This is referred to as the shadow FBAR Don t forget the existing requirement for US Persons, including LLCs formed under US law, to report any ownership interest or signature authority over a foreign bank account. This is not under the US Internal Revenue Code (Title 26 of the US Code) but Bank Secrecy Act (Title 31 of the US Code) TD Form 90-22.1 Foreign Bank Account Report (FBAR) Form Due JUNE 30 of Each Year
Ultimate Goal of FATCA: Compliance by US Persons Prior IRS Amnesty Programs Mar 23 to Oct 15, 2009 - Offshore Voluntary Disclosure Initiative Offshore penalty 25% (reduced to 5% and 12.% rates available in limited circumstances. 12.5% applies to accounts under US$75k Closed Oct 15 2009 Over 15,000 disclosures made Feb 8 to Sep 9, 2011 - Offshore Voluntary Disclosure Program Covers 2003 to 2010 Offshore penalty 25% 5% and 12.% rates available in limited circumstances) Current IRS Amnesty Programs & Routes to Compliance 2012 Offshore Voluntary Disclosure Program Covers 8 years (e.g., 2004-2011) Offshore penalty 27.5% http://www.irs.gov/uac/2012-offshore-voluntary-disclosure-program Streamlined Filing Compliance Program Must be US Person living abroad since 2009 File last 3 years of income tax returns File last 6 years of FBARs
Important Notices The speaker is an attorney with the law firm of Concepcion Martinez & Bellido. The views expressed herein are solely those of the speaker and should not be attributed to the speaker s firm or its clients. Tax Advice Disclosure: The speaker informs you that any U.S. federal tax advice contained in this communication and any attachment hereto are not intended or written to be used, and cannot be used, for the purpose of: (1) avoiding penalties under the Internal Revenue Code, or (2) promoting, marketing or recommending transaction or any matter addressed herein.
Questions? Marian Ancheta Llera Partner Concepcion Martinez & Bellido 255 Aragon Avenue, 2 nd Floor Coral Gables, FL 33134 mllera@cfclaw.com 305.444.6669 ext. 179