On February 8, 2012, the U.S. Department of the Treasury
("Treasury") and the Internal Revenue Service (the
"IRS") released proposed regulations (the "Proposed
Regulations") implementing the Foreign Account Tax Compliance
Act ("FATCA") provisions of the Hiring Incentives to
Restore Employment Act enacted on March 18, 2010
("HIRE"). Contemporaneously with the issuance of the
Proposed Regulations, Treasury issued a joint statement with the
governments of France, Germany, Italy, Spain, and the United
Kingdom expressing their mutual intention to create an
intergovernmental framework for implementing FATCA.
Congress enacted FATCA to combat tax evasion by U.S. persons holding investments in offshore accounts. FATCA seeks to accomplish this goal by requiring foreign financial institutions ("FFIs") and non-financial foreign entities ("NFFEs") to disclose information about their account holders and beneficial owners or face a mandatory 30 percent withholding tax on certain amounts payable to them. The FATCA rules sweep broadly, requiring compliance by many foreign institutions and entities, including banks, brokerages, investment funds, and insurance companies. FATCA also requires U.S. taxpayers to report information annually about their non-U.S. assets with values exceeding certain thresholds on IRS Form 8938, despite some overlap with reporting by taxpayers on interests in financial accounts on Form TD F 90-22.1.
The Proposed Regulations provide detailed instructions on how U.S. withholding agents, FFIs, and NFFEs are to comply with FATCA. The Preamble to the Proposed Regulations (the "Preamble") expresses Treasury's intention to strike a balance between fulfilling the policy objectives of FATCA while minimizing the considerable burdens imposed by the new regime. To that end, the Preamble explains that the IRS is considering an alternative form of compliance whereby an FFI would report the required information to the government of its residence country, and that government would in turn supply the information to the United States pursuant to an income tax treaty, tax information exchange agreement, or other agreement.
The Proposed Regulations generally will become effective upon publication of final regulations. As discussed in greater detail below, the Preamble highlights eight principal features. Thus, the Proposed Regulations:
- Expand the scope of "grandfathered obligations" that are not subject to FATCA withholding to include any payment made under an obligation outstanding on January 1, 2013 (and any gross proceeds from the disposition of such an obligation);
- Delay full implementation until January 1, 2016 of the rule requiring all FFI members of an "expanded affiliated group" to comply with applicable reporting requirements;
- Expand the list of "deemed-compliant FFIs" that do not need to enter into "FFI agreements" in order to avoid FATCA withholding;
- Simplify the due diligence procedures applicable to a "participating FFI" in its identification of "U.S. accounts" to permit primary reliance on electronic review of many accounts;
- Explain how a participating FFI certifies its compliance with FATCA requirements;
- Narrow the definition of "financial account" to exclude certain accounts or interests, including debt and equity interests that are regularly traded on an established securities market; retirement accounts, pension accounts, and non-retirement savings accounts that meet certain requirements; certain term life insurance contracts; and certain accounts held solely by or on behalf of exempt beneficial owners;
- Delay information reporting on income and gross proceeds until 2016 (with respect to the 2015 calendar year) and 2017 (with respect to the 2016 calendar year), respectively; and
- Delay withholding on foreign "passthru payments" until at least 2017.
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