On August 15, the International Swaps and Derivatives Association, Inc. (ISDA) published the 2012 ISDA FATCA Protocol (the FATCA Protocol). The FATCA Protocol is intended to address the implications of the Foreign Account Tax Compliance Act (FATCA) on derivatives transactions documented under an ISDA Master Agreement. Currently the form ISDA Master Agreements do not cover the tax obligations and withholding imposed by FATCA, so these items must be addressed separately in a Schedule or, now, by adoption of the FATCA Protocol.
Where the FATCA Protocol is adopted by both parties to an ISDA Master Agreement, the agreement will be treated as having been amended to include the following provision:
- Withholding Tax imposed on payments to non-US counterparties under the United States Foreign Account Tax Compliance Act. “Tax” as used in Part 2(a) of this Schedule (Payer Tax Representation) and “Indemnifiable Tax” as defined in Section 14 of this Agreement shall not include any U.S. federal withholding tax imposed or collected pursuant to Sections 1471 through 1474 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code (a “FATCA Withholding Tax”). For the avoidance of doubt, a FATCA Withholding Tax is a Tax the deduction or withholding of which is required by applicable law for the purposes of Section 2(d) of this Agreement.
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