Significant Changes Made in Final FATCA Regulations

by Dechert LLP

On January 17, 2013, the U.S. Department of the Treasury (“Treasury”) and the U.S. Internal Revenue Service (the “IRS”) released final regulations (the “Regulations”) implementing foreign account reporting provisions of the U.S. Hiring Incentives to Restore Employment Act enacted in March 2010. These provisions, which have become commonly known as “FATCA”, were introduced to address perceived deficiencies in the methods available to the IRS to combat the use of foreign financial accounts or foreign entities by U.S. persons to evade U.S. taxes. Generally, FATCA imposes a new 30% withholding tax on “withholdable payments”1 and certain other payments made to non-compliant foreign financial institutions (“FFIs”) and “recalcitrant account holders".2 To avoid withholding under FATCA, an FFI generally must enter into an agreement (“FFI Agreement”) in which it agrees to comply with new reporting, due diligence and withholding requirements with respect to its U.S. accounts.3 For a brief overview of FATCA, please refer to “Final Proposed FATCA Regulations Issued.” 

The Regulations make a number of important changes to earlier guidance contained in the FATCA proposed regulations published in February 2012 (the “Proposed Regulations”) and IRS Announcement 2012-42 released in October 2012. Most notably, the Regulations coordinate many of the FATCA requirements with the existing U.S. source income tax withholding rules and recently concluded intergovernmental agreements (“IGAs”) that provide an alternative approach to FATCA implementation.4

Overview of changes made by the Regulations

The Regulations:

  • Introduce the concept of a “sponsoring entity” (e.g., trustee, director or fund manager) that may perform centralized compliance for “sponsored FFIs”;
  • Extend grandfathering from FATCA withholding to obligations outstanding on January 1, 2014 and certain other obligations;
  • Announce an online “Portal” that FFIs will use to register and enter into FFI Agreements and certify compliance with FATCA requirements;
  • Announce the introduction of a Global Intermediary Identification Number (“GIIN”) to be assigned to all registered FFIs to facilitate FATCA reporting and establish FATCA status; 
  • Summarize the provisions that will be included in FFI Agreements;
  • Clarify that an entity that is disregarded for U.S. federal income tax purposes is also disregarded for FATCA purposes;
  • Expand the scope and liberalize the rules for “preexisting obligations”;
  • Delay the effective date for withholding on gross proceeds until 2017;5
  • Expand the FFI definition to include investment advisers and managers, but relax requirements for collective investment vehicles and restricted funds to qualify as deemed-compliant FFIs; and
  • Relax documentation and diligence requirements. 

Changes to FFI status

To conform to the IGAs, the Regulations expand the definition of an FFI to include certain entities such as certain insurance companies and entities “that primarily conduct as a business” portfolio management or investing, administering, or managing funds, money, or financial assets on behalf of other persons. The Regulations exclude from the definition passive investment entities that are not professionally managed. In the case of an entity resident in an IGA jurisdiction, the determination of whether that entity is an FFI is based on the applicable IGA. The laws of an IGA jurisdiction may provide its FFIs the flexibility to comply with FATCA pursuant to the Regulations or the IGA. In addition, the Regulations expand the categories of “exempt beneficial owners” to include certain retirement funds. An expanded discussion on the changes that affect qualified collective investment vehicles and restricted funds is included below under “Special considerations for investment funds.”

Sponsored FFIs

The Regulations establish a new deemed-compliant FFI category for “sponsored FFIs” where a “sponsoring entity” agrees to register with the IRS and undertake the diligence, withholding, and reporting obligations of a participating (i.e. compliant) FFI on behalf of one or more sponsored FFIs. The provisions enable trustees and fund managers to ensure FATCA compliance of family trusts, investment subsidiaries and other passive investment vehicles where compliance by each vehicle itself would be impracticable or overly burdensome. 

Similarly, an FFI that is a member of an “expanded affiliated group” that includes one or more FFIs may elect to be part of a consolidated compliance program where a “Compliance FI” reports and ensures FATCA compliance on a consolidated basis.

Favorable rules for preexisting obligations and preexisting accounts

The Regulations contain favorable rules for preexisting obligations and preexisting accounts, and expand the definition of what constitutes a preexisting obligation.6 Generally, a preexisting obligation will include any account, instrument, contract, debt, or equity interest maintained, executed, or issued by the withholding agent that is outstanding on December 31, 2013. The Regulations also treat as a preexisting obligation a new account of a customer with a prior preexisting obligation as a preexisting obligation, provided that the agent or FFI maintaining the account treats the new obligation and the prior obligation as one obligation for certain other purposes. The Regulations permit this preexisting obligation treatment to apply on a group-wide basis for expanded affiliated groups and sponsored FFI groups.

Generally, unless the payee is a “prima facie FFI”, no withholding is required before 2015 on a payment on a preexisting obligation (even if the payor lacks documentation for the payee).7 Moreover, subject to a few exceptions, the Regulations generally permit a withholding agent to rely on information previously recorded in the withholding agent’s files in determining the FATCA status of a payee, without the need to obtain new forms or documentation. 

Relaxed diligence and documentation requirements

In addition to the favorable rules for preexisting obligations, the Regulations reduce some of the diligence and documentation requirements that would have applied based on the Proposed Regulations. For example, the Regulations permit reliance on pre-FATCA versions of Forms W-8 in certain circumstances, permit an “eyeball test” for identifying certain parties, and allow for electronic transmission of Forms W-8 in some circumstances. Moreover, the Regulations allow reliance, in certain circumstances, on FATCA determinations made by other parties such as introducing brokers, parties to mergers, and certain third-party data providers. The Regulations also adopt the timeframe from IRS Announcement 2012-42 that generally allows FFIs two years to perform the requisite diligence on financial accounts (other than accounts of prima facie FFIs). 

Grandfathered obligations

FATCA withholding is not required on payments (including gross proceeds) in respect of grandfathered obligations. The Regulations provide that grandfathered obligations consist of (i) any obligation outstanding on January 1, 2014, (ii) any obligation producing withholdable payments solely because the obligation is treated as giving rise to a dividend equivalent pursuant to Code section 871(m) if the obligation is entered into on or before six months after the date on which obligations of its type are first treated as giving rise to dividend equivalents, and (iii) collateral securing one or more obligations described in (i) or (ii). The Regulations further provide, as noted above, that an obligation will not give rise to a foreign passthru payment if it is entered into on or before six months after the date on which final regulations defining the term foreign passthru payment are promulgated. While grandfathered obligations are not subject to withholding under FATCA, grandfathered obligations that are “financial accounts” will nonetheless be subject to any applicable FATCA reporting.  

For purposes of the grandfathering rule, an obligation does not include an instrument that is treated as equity for U.S. tax purposes or lacks a stated maturity or term. For debt obligations, the date an obligation is outstanding is based on the issue date of the debt, so that a qualified reopening will be grandfathered if the original debt was issued prior to 2014. A material modification of an outstanding obligation, however, will result in the obligation being treated as newly issued or executed as of the effective date of such modification.

The “Portal”

FFIs registering with the IRS will be able to do so through a secure online web portal (the “Portal”). The Portal will permit an FFI to complete an entirely paperless registration process with the IRS from anywhere in the world. FFIs will be issued a GIIN through the Portal, which will be used for an FFI to establish its FATCA status for withholding purposes and to facilitate compliance. The Portal will also be the primary means for financial institutions to communicate with the IRS regarding their FATCA requirements. It will be accessible beginning no later than July 15, 2013, and FFIs will be required to register by October 25, 2013 to be included on an initial list of compliant FFIs to be published electronically by the IRS starting December 2013 (and updated monthly). 

Special considerations for CLO and repack issuers

Although the Regulations include a transitory deemed-compliant FFI exception for “Limited Life Debt Investment Entities” that were formed prior to 2012, this category only includes entities that require the consent of all investors to amend their organizational documents, including the trust indenture.8  Accordingly, collateralized loan obligation (“CLO”) issuers are not generally expected to qualify for this exemption. Certain CLO issuers, however, may be able to avoid FATCA compliance if: (i) their reinvestment period has ended; (ii) the issuer will not, or is not expected to, hold obligations that have been significantly modified after 2013; and (iii) there is no person that owns more than 50% of the interests treated as equity for U.S. tax purposes that would be adversely affected by non-compliance of the issuer. 

FATCA compliance is generally tested on an expanded affiliated group basis. Subject to limited exceptions, an FFI will not be treated as compliant with FATCA if another FFI in its expanded affiliated group is not compliant.9 Accordingly, owners of more than 50% of the equity interests in an issuer may wish to ensure that the relevant issuer is FATCA compliant, as failure of a majority equity-owned FFI to comply with FATCA could cause otherwise unrelated FFIs that are more than 50% held by the same person to be unable to comply with FATCA.10 Further to this point, under an anti-abuse rule, a change in ownership, voting rights, or form of an entity that results in an entity meeting or not meeting the ownership requirements to be part of an expanded affiliated group will be disregarded for purposes of determining whether an entity is a member of an expanded affiliated group if the change is pursuant to a plan a principal purpose of which is to avoid reporting or withholding that would otherwise be required under FATCA.

Special considerations for investment funds

The Regulations relax the requirements for deemed-compliant FFI qualification for “qualified collective investment vehicles” (“QCIVs”) and “Restricted Funds”. Under the Proposed Regulations, a QCIV would have been required to be regulated as an investment fund by its country of incorporation or organization. Under the Regulations, an FFI may be eligible for QCIV status if either its fund manager is regulated with respect to the fund or the fund is regulated in all of the countries in which it is registered and operates. In addition, the Regulations permit certain nonprofit organizations to invest in a QCIV.

The Regulations change or clarify a number of provisions that apply to Restricted Funds. A Restricted Fund now has until the later of June 30, 2014 or six months after the date the fund registers as a deemed-compliant FFI to renegotiate its distribution agreements. A Restricted Fund is also permitted under the Regulations to sell to U.S. persons other than specified U.S. persons.11 The Regulations clarify that interests in a Restricted Fund may be issued by the fund directly if the investor can only dispose of those interests by having them redeemed or transferred by the fund, and not by selling them on a secondary market. 

It is worth noting that the Regulations do not disqualify funds with outstanding bearer shares issued before 2013 from qualifying as a QCIV or Restricted Fund as long as those shares are redeemed or “immobilized” before 2017.12

Next steps for FFIs

FFIs are generally not required to take any immediate action as a result of the promulgation of the Regulations. CIVs and Restricted Funds should ensure that they do not issue bearer shares unless such shares will be treated as issued in registered form for U.S. tax purposes. Trustees and investment fund managers should begin considering whether, and for which FFIs, they will act as a sponsoring entity. FFIs may wish to consider the feasibility of qualifying for a deemed-compliant category. Furthermore, FFIs may wish to consider delegating FATCA diligence and reporting obligations to third-party service providers (for example, fund administrators).

FFIs should note that they will be required to register by October 25, 2013 to be included in the initial published list of compliant FFIs. In the meantime, the Preamble to the Regulations states that the IRS will publish a revenue procedure containing all the terms and conditions applicable to FFIs for FATCA purposes before July 15, 2013 (when the Portal is expected to become accessible). We also expect that Treasury will conclude a substantial number of IGAs with partner jurisdictions before the October 25, 2013 deadline, which may ease the burdens of FATCA compliance substantially for FFIs resident in those jurisdictions. 

Draft versions of certain revised IRS Forms W-8 have already been released, and a draft Form W-8BEN-E for foreign entities is expected to be released shortly. In addition, the IRS also intends to release shortly a new Form 8966, “FATCA Report,” that will be used by FFIs and, in limited circumstances, withholding agents to comply with their FATCA reporting obligations.


1 A withholdable payment generally includes (i) passive U.S. source income such as U.S. source interest, dividends, and other fixed or determinable annual or periodical gains, profits, and income, and (ii) any gross proceeds from the sale or other disposition of any property of a type which can produce U.S. source interest or dividends.

2 A recalcitrant account holder includes any account holder that fails to provide (i) the information required to determine whether an account is a U.S. account or the information required to be reported by the FFI, or (ii) a waiver of any foreign law that would prevent reporting.

3 “U.S. accounts” for which reporting is required under FATCA generally include accounts held by U.S. persons (as defined for U.S. federal income tax purposes) and also accounts of certain non-U.S. entities that have U.S. persons as owners.

4 As of January 31, 2013, Treasury had concluded four IGAs (with the United Kingdom, Denmark, Mexico and Ireland), although many more IGAs are expected.

5 The Regulations do not define “foreign passthru payments”. Consistent with the Proposed Regulations, the effective date for withholding on foreign passthru payments has been delayed until the later of January 1, 2017 or six months after the publication of final regulations defining the term foreign passthru payments.

6 The term “preexisting account” means any financial account that included within a preexisting obligation.

7 A “prima facie FFI” includes: (i) an entity for which the withholding agent has available as part of its electronically searchable information a designation for the payee as an intermediary, or (ii)  for an account maintained in the U.S., (A) the payee is presumed to be a foreign entity or is documented as a foreign entity for other withholding purposes, and (B) the withholding agent has recorded as part of its electronically searchable information certain codes indicating that the payee is a financial institution.

8 A further complication is that the FFI must be a collective investment vehicle formed pursuant to a trust indenture or similar fiduciary arrangement.

9 In general, an “expanded affiliated group” includes a chain of corporations connected through stock ownership with a common parent corporation if the common parent possesses directly at least 50% of the voting power and value of at least one of the corporations in the chain and each of the corporations in the chain is owned by one or more corporations in the chain that possess directly at least 50% of the voting power and value of such corporation. Partnerships and other entities are members of an expanded affiliated group if they are controlled by members of the group.

10 Similarly, a failure of an FFI more than 50% of the equity of which is held by an owner could have adverse FATCA effects that impact other majority owned investments held by that person.

11 Under the Proposed Regulations, no sales to U.S. persons would have been permitted. A “specified U.S. person” includes a U.S. person other than a regularly-traded corporation, US tax-exempt investor, bank, REIT, RIC, registered dealer, broker, or certain individual retirement plans. Non-U.S. persons other than noncompliant FFIs are generally permitted to invest in a Restricted Fund. 

12 Although not referenced in the Regulations, a recent IRS Notice provides guidance on when certain bearer instruments will be treated as “immobilized.” See Notice 2012-20 (March 7, 2012).

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