China: China is to negotiate an intergovernmental agreement with the US to implement FATCA

Last Updated: 7 August 2013

The US promulgated the Foreign Account Tax Compliance Act ("FATCA") in March 2010, in order to strengthen the taxation over offshore investment (such as offshore financial assets and offshore accounts) by US persons. Following that, the Internal Revenue Service ("IRS") of the US published the corresponding Final Regulation and a series of implement timing arrangements.

Under FATCA, the participating Foreign Financial Institutions ("FFIs") are required to register with IRS and fulfill the following obligations:

  • For pre-existing accounts, to search the account information, and to identify the reportable accounts hold by US persons or foreign entities owned by US persons ("Reportable US Account");
  • For new accounts, to identify and verify Reportable US Accounts in due diligence procedures;
  • To report on an annual basis the relevant information with respect to Reportable US Accounts;
  • To deduct and withhold a tax equal to 30% of certain payments made to recalcitrant account holders or non-participating FFIs;
  • Upon request, to report additional information with respect to Reportable US Accounts; and
  • In any case where any foreign law would prevent the reporting of such information:
    1. to attempt to obtain a waiver from the account holder, or
    2. to close such account.

For non-participating FFIs, the counter measure is that when a US source payment is made to such non-participating FFIs by a payer who is a participating FFI, the payer will withhold 30% of the amount of such payment.

In accordance with §1471(d)(5) of FATCA and §1.1471-5(e) of the Final Regulation of FATCA, a Financial Institution, as referred to in the term "FFI", refers to any entity that:

  • accepts deposits in the ordinary course of a banking or similar business (depository institution);
  • holds, as a substantial portion of its business, financial assets for the benefit of one or more other persons (custodial institution);
  • is an investment entity;
  • is an insurance company or a holding company that is a member of an expanded affiliated group that includes an insurance company, and the insurance company or holding company issues, or is obligated to make payments with respect to, a cash value insurance or annuity contract (specified insurance company); or
  • is an entity that is a holding company or treasury center with certain characteristics.

As far as the financial institutions in the PRC are concerned, the following entities may be classified as FFIs under FATCA:

  • Financial institutions in the banking sector, e.g. commercial banks (including domestic funded commercial banks and foreign funded commercial banks), rural banks, rural financial cooperatives and PRC branches of foreign banks;
  • Securities companies;
  • Investment funds and products, e.g. securities investment funds, collective investment trusts, collective asset management schemes of securities companies, asset management schemes for certain customers of fund management companies, asset management schemes of futures companies, and asset management schemes of asset management companies of insurance companies; and
  • Insurance companies, e.g. life insurance companies, property insurance companies, and re-insurance companies.

The key dates with respect to the implementation of FATCA, in accordance with the notice issued by IRS most recently on July 12, 2013 (Notice 2013-43) are as follows:

As FATCA is a US domestic law, an FFI's participation in FATCA shall be within the legal framework of the place where such FFI is located. Therefore, the US government is keen to enter into intergovernmental agreements with other countries so as to facilitate the implementation of FATCA in such jurisdictions. As of July 12, 2013, the following countries have signed such agreements with the US government respectively: Denmark, Ireland, Mexico, Norway, UK, Germany, Spain, Switzerland and Japan.

According to the Release of Joint Outcomes of the Economic Track under the US-China Strategic and Economic Dialogue V (published on the official website of the Ministry of Foreign Affairs of the PRC on July 12, 2013), "the Chinese government and the US government agree that each government will exert its best effort to enter into an inter-governmental agreement ("IGA") to implement FATCA before the deadline of January, 2014. In order to seek for a cooperation scheme for the implementation of FATCA, the US Treasury, IRS, Ministry of Finance of the PRC, State Administration of Taxation of the PRC and People's Bank of China undertake that a discussion for the next round will be launched as early as possible in the summer of 2013?.

When the Sino-US IGA is signed, the relevant financial institutions in the PRC shall comply with and fulfill the due diligence and reporting obligations as set out in such IGA.

As it is not clear when China and the US will sign the IGA and the implementation dates of FATCA are coming near, the relevant financial institutions in the PRC would better get prepared in advance, and take certain measures so as to face the implementation of FATCA:

  • Determining whether it is an FFI regulated by FATCA;
  • Determining whether it is affected by the implementation of FATCA and the extent it may be affected;
  • To the extent permitted by the PRC law, preparing to register with IRS, establishing corresponding due diligence policies and procedures, and revising the standard documentation so as to collect the requisite information required for the due diligence procedure and to obtain authorization for information reporting; and

Assessing the legitimacy and compliance under the PRC law of the due diligence policies and procedures and the actual reporting of information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions