While the name changed from the Stop Tax Haven Abuse Act (Abuse Act), which was first introduced on February 17, 2007,1 to the Foreign Account Tax Compliance Act (FATCA), which became effective on March 18, 2010, the intent remained the same. Both pieces of legislation were designed to deter the use of tax havens for tax evasion. To accomplish this goal, among other provisions, the Abuse Act and FATCA: (i) enhanced the mandatory disclosure; (ii) expanded the statutes of limitation; (iii) increased penalties; and (iv) imposed rebuttable presumptions to ease the burden on the government in prosecuting tax cases involving offshore noncompliance.
FATCA is being used as a revenue offset for the Hiring Incentives to Restore Employment Act (HIRE), which President Obama signed on March 18, 2010. HIRE is designed to incentivize the creation of up to 300,000 new jobs this year. Employers who hire previously unemployed workers are entitled to a Social Security and Medicare Tax holiday as well as credits if the employees are retained for at least one year. A more detailed discussion of HIRE is beyond the scope of this article. Rather, this article will summarize FATCA’s impact on the following areas: (i) informational returns – increased disclosure; (ii) penalties; (iii) statutes of limitation; (iv) foreign trusts; (v) dividend equivalent payments; and (vi) foreign targeted obligations. The article begins, however, with an overview of FATCA’s initial introduction.
History. FATCA was first introduced on October 27, 2009, by Senator Max Baucus (D-MT, Chair of the Senate Finance Committee), Senator John Kerry (D-MA, senior Finance member), Congressman Charles Rangel (D-NY, Chairman of the House Ways and Means Committee), and Representative Richard Neal (D-MA, Chairman of the Ways and Means Subcommittee on Select Revenue Measures) as S. 1934, H.R. 3933.
President Obama and Treasury Secretary Geithner, who outlined similar proposals in their 2010 budget blueprint, had endorsed the prior version of FATCA with the President stating, “I look forward to working with Congress to turn these proposals into law so that honest Americans no longer shoulder the burden of the few individuals and businesses that put profit before responsibility.”2
On December 10, 2009, during his opening remarks before the 22nd Annual George Washington University International Tax Conference, IRS Commissioner Douglas Shulman stated, “[t]o meet the broad array of challenges that we face in the international arena, the Administration and the IRS are focused on a multi-year international tax compliance strategy that is tailored for both corporate and individual taxpayers.”3 The Commissioner’s statement preceded his discussion on a number of topics, one of which was his support for the Tax Extenders Act of 2009, which was passed by the House the day before, and which at the time included FATCA.
The White House said the Extender’s legislation “will provide much-needed relief to families and businesses who are struggling in the current economic downturn.”4 The statement further noted that the “legislation would fulfill the Administration’s commitment to crack down on overseas tax havens and put a stop to billions of dollars worth of tax abuse and would end the special preferential tax treatment for carried interest income.”5 In spite of strong support for the Extenders, the legislation floundered in the Senate.
The FATCA provisions contained in the HIRE legislation are almost identical to those that were originally introduced. There is one provision, however, that was not enacted. It is worth discussing briefly, as it may very well appear in future legislation. The eliminated provision dealt with “material advisors” and from the practitioner’s perspective was perhaps the most troublesome provision in FATCA.
A new Section 6116 was to have been created requiring certain material advisors to a foreign entity transaction to disclose the transaction. In essence, material advisors would be required to file an information return disclosing their assistance to a U.S. individual in acquiring or forming a foreign entity, if the individual is required to file certain specified information returns with respect to the transaction.6
A “material advisor” was defined as any person who provides any material aid, assistance or advice with respect to carrying out one or more foreign entity transactions and who directly or indirectly derives gross income in excess of $100,000 for providing the aid, assistance or advice during the calendar year. A material advisor who failed to make the required disclosure would have been subject to a penalty equal to the greater of $10,000 or 50 percent of the fee the advisor earned for providing assistance on the transaction. It is interesting to note that the penalty would appear to have always been a minimum of $50,000, as 50 percent of the $100,000 gross income is always greater than $10,000.
The $100,000 threshold included all advice related in any way to the transaction. Thus, for practitioners in a firm, the value included all aid, assistance and advice provided by colleagues – not just the individual advisor.
The troubling aspect of this disclosure requirement is that it appeared to implicate ethical issues on whether disclosure of client foreign structures to Treasury compromises the attorney client privilege and/or work product doctrine. Another problem with the disclosure was that in some transactions, such as offshore securitization vehicles, advisors may not have the identity of all parties involved and therefore would be unable to comply with the required disclosure
1. Informational Returns – Increased Disclosure. This potentially could be the greatest area of change. The default rule is that there will be a 30 percent withholding by the U.S. payor on the payment of certain income earned from U.S. sources to foreign financial institutions and foreign nonfinancial entities. The default rule can be avoided if the foreign entities provide the government with information regarding U.S. taxpayers. It would appear that the foreign entities would then receive a certification or receipt from the IRS to provide the U.S. payor reflecting that they have complied with the disclosure requirement and are exempt from the withholding obligation. Additionally, taxpayers are required to file disclosures reporting the existence of foreign financial assets when the aggregate value of all such assets exceeds $50,000, investments in passive foreign investment companies (PFICs) and connections with foreign trusts.
Financial Institution Disclosure. Section 501 of FATCA adds a new withholding system described in a new Chapter 4 to the Internal Revenue Code of 1986 as amended (the Code) and creates new Sections 1471 and 1472. These provisions are generally applicable to payments made after December 31, 2012. Taken together, these sections require foreign financial institutions with U.S. customers and foreign nonfinancial entities with substantial U.S. owners to disclose information regarding the U.S. taxpayers. Failure to disclose the information to the IRS will result in the U.S. payor being required to withhold a 30 percent tax on certain U.S. source income. The withholding will be imposed on income normally subject to U.S. taxation such as dividends as well as to income that is traditionally excluded under Section 871 such as bank interest and capital gains. Failure to comply will subject the U.S. withholding agents to financial penalties. Of course, the withholding and disclosure can both be eliminated if the foreign institutions simply avoid investing in the United States. It is logical to question whether Congress came up with estimates as to the potential loss to the economy if investors flee our markets and compared such loss to the supposed tax loss from evasion.
Additionally, after March 18, 2010, the IRS can issue Regulations requiring foreign financial institutions and foreign nonfinancial institutions to file on magnetic media all returns due to report taxes withheld. This requirement is equally applicable regardless of whether the withholding is pursuant to Section 1441 or Section 1474(a).7 The IRS can also require financial institutions to electronically file returns for taxes they withhold regardless as to how many returns the institutions file during the year. Consequently, the IRS can assert a failure to file penalty under Section 6721 on financial institutions that fail to comply with these new electronic filing requirements.
Section 1471. Foreign financial institutions include, but are not limited to, banks, brokerages and investment funds. Furthermore, non-publicly-traded equity and debt interests in foreign financial institutions are deemed to be accounts for purposes of this section. Failure to comply will subject such institution to financial penalties. These foreign financial institutions have the option of disclosing their U.S. account holders to the IRS or else there will be a 30 percent withholding by U.S. payors on payments of U.S. source income.
Foreign financial institutions wishing to comply with the disclosure must agree to provide the IRS all of the following information specified in Section 1471(b):
(i) obtain information from each holder of an account at the financial institution to determine if any of its accounts is a U.S. taxpayer account
(ii) comply with any due diligence procedures required by the Secretary in relation to a U.S. taxpayer account
(iii) provide an annual report to Treasury on any U.S. taxpayer accounts maintained by the institution
(iv) deduct and withhold 30 percent from certain pass-through payments made to recalcitrant U.S. taxpayer account holders or certain other foreign financial institutions
(v) comply with any information requests by the Secretary with respect to any U.S. taxpayer account
(vi) procure a waiver of any foreign law from each U.S. taxpayer with an account, which foreign law would prohibit the financial institution from disclosing information
The institutions will be obligated to provide this information annually for all their U.S. account holders. The actual disclosure is specified in Section 1471(c)(1) and includes: (i) the identifying number of the U.S. account holder or U.S. owner of a foreign entity holding an account at the institution; (ii) the account number; (iii) account balance; and (iv) the gross deposits and withdrawals from the account.8
If a foreign financial institution satisfies the IRS that it does not have any U.S. clients and also agrees to satisfy any future procedural requirements that may be instituted, it will be exempt from the Section 1471(b) withholding and the Section 1471(c) disclosure. The institution may also be exempt if the Secretary determines that it is one of a class for which the new rules are not necessary.
A foreign financial institution may also agree to the Section 1471 withholding and bypass the Section 1471(c)(1) disclosure if it makes an election under Section 1471(c)(2) to be subject to the same reporting requirements as a U.S. financial institution under Sections 6041, 6042, 6045 and 6049.
FATCA recognizes that in the case where a foreign financial institution is making a U.S. source payment to another foreign financial institution that does not comply with FATCA’s disclosure requirements, the payor may not wish to act as a withholding agent for the U.S. source payments. Under new Section 1471(b)(3), such a foreign financial institution may elect to have a U.S. withholding agent or a foreign financial institution that has entered into an agreement with the U.S. Treasury withhold on payments made to the electing foreign financial institution.
If an election under Section 1471(b)(3) is made, the withholding tax will apply with respect to any payment made to the electing foreign financial institution to the extent the payment is allocable to accounts held by foreign financial institutions that do not enter into an agreement with the U.S. Treasury or to payments made to recalcitrant account holders (i.e., any account holders that refuse to provide required information). A foreign financial institution making the election under Section 1471(b)(3) must notify the withholding agent of the election and must provide information necessary for the withholding agent to determine the appropriate amount of withholding.
In order to eliminate the duplicate reporting that could occur in tiered arrangements (i.e., a structure in which a foreign financial institution is owned by another foreign financial institution), the FATCA provisions are not applicable provided the foreign financial institution where the account is held entered into an agreement with the U.S. Treasury, or is otherwise subject to information reporting requirements that the U.S. Treasury determines would make the reporting duplicative.
The Section 1471 rules will be generally effective for payments made after December 31, 2012, and will not apply to any obligation or disposition of an obligation made prior to March 18, 2012. This will allow Treasury time to draft regulations concerning the procedures foreign financial institutions would need to adopt to comply with the legislation. Specifically, there is no guidance regarding the due diligence foreign financial institutions are expected to implement to comply with the legislation’s objectives. Presumably, foreign financial institutions would need to obtain documentation from all of their account holders, both U.S. and foreign, to determine which are U.S. account holders. In essence, foreign financial institutions would possibly need to obtain W-8s or W-9s from each of its account holders to ensure it complies with the information reporting requirements of the new Section 1471. This would clearly create a burden for foreign financial institutions and their account holders. In addition, it is questionable whether sufficient time exists for the IRS to enter into withholding agreements with the foreign financial institutions.
Section 1472. Section 1472 imposes a 30 percent withholding tax on any payment made to a nonfinancial foreign entity from a U.S. institution if (i) the beneficial owner of the payment is a nonfinancial foreign entity, and (ii) all of the following requirements are met with respect to the beneficial owner:
- The beneficial owner or the payee provides the “withholding agent” with either (i) a certification that the beneficial owner does not have any substantial U.S. owners (i.e., more than a 10 percent direct or indirect interest), or (ii) the name, address and TIN of each substantial U.S. owner of the beneficial owner.
- The withholding agent does not know, or have reason to know, that any information provided as described above is incorrect.
- The withholding agent provides the information described above to the Secretary in the manner provided for by the Secretary.
The rules described above do not apply to any payment beneficially owned by:
- a publicly traded corporation
- any corporation that is a member of an expanded affiliated group that includes a publicly traded corporation
- any foreign government (or political subdivision, wholly-owned agency, or instrumentality)
- any international organization (or wholly-owned agency or instrumentality)
- any foreign central bank of issue
- any other class of persons identified by the Secretary
In addition, the rules described above do not apply to any class of payments identified by the Secretary as posing a low risk of tax evasion.
The requirements under Section 1472 could cause greater disruption than those under Section 1471 because nonfinancial foreign entities, such as hedge funds, may not have procedures in place to conduct the required due diligence that is commonplace for financial institutions. Thus, Section 1472 could impact hedge fund managers and other investment fund managers who may have never requested due diligence information from investors in the past. These financial managers may be required to learn the ownership attribution rules of Section 318 to accurately determine whether they have U.S. investors. The fund managers may also need to request further documentation from investors such as W-8s or W-9s to comply with the requirements of the new Section 1472. In a financial environment where there is a great turnover of investors in each vehicle, the proposed legislation would appear to impose an immense burden on these foreign nonfinancial institutions.
Foreign Accounts and Assets. As if taxpayers and tax advisors do not already have enough confusion regarding the filing requirements for the Foreign Bank Account Report (FBAR), FATCA imposes a second filing requirement on U.S. taxpayers with foreign accounts and assets. Section 511 of FATCA creates a new Section 6038D, which requires U.S. taxpayers with foreign accounts and assets to report these investments on an informational return when the aggregate value of the investments exceeds $50,000.
Section 6038D is applicable to assets held during taxable years beginning after March 18, 2010. The new reporting requirement is much broader than the FBAR, so it is possible that individuals who do not have an FBAR filing obligation may be subject to the new reporting requirement. For example, the FATCA reporting requires taxpayers with investments in foreign entities, such as foreign hedge funds and private equity funds, to report the existence of these investments. The recent FBAR regulations issued by FinCen on February 26, 2010, exempt these assets from FBAR reporting.
It is not clear if the IRS will issue a new form on which this disclosure will be made or whether it is up to each taxpayer to make the disclosure in the way he or she deems best, or whether a Form 8275 should be used. What is clear is that taxpayers are to attach the informational return to their Form 1040. Consequently, the informational return should be cloaked with the same confidentiality rules which govern tax returns. As referenced earlier, this disclosure is in addition to the FBAR, which is filed with the Detroit Service Center, and not cloaked with any degree of confidentiality, as federal officials are able to access the computer database in which FBAR information is entered.
The FBAR is generally required to be filed by a U.S. person with a financial interest, signature authority or other authority over foreign financial accounts if at any point during the calendar year the aggregate value of all such foreign accounts equaled or exceeded $10,000, even if for one day. The section 6038D disclosure is required to report “specified foreign financial assets” when the aggregate value exceeds $50,000.9
Section 6038D(b) defines a “specified foreign financial asset,” to include ownership of: (i) any financial account maintained by a foreign financial institution; (ii) any stock or security issued by a non-U.S. person; (iii) any financial interest or contract held for investment that has a non-U.S. issuer or counterparty; and (iv) any interest in a foreign entity. A foreign entity is defined to include any entity that is not a U.S. person.10 Consequently, foreign real estate, which is often purchased through an entity, would have to be reported as a specified foreign financial asset.
While Section 6038D requires individuals to file this disclosure, the Secretary has the ability to require “any domestic entity which is formed or availed of for purposes of holding, directly or indirectly, specified foreign financial assets,” to file the disclosure as if it were an individual.11 Similarly, the Secretary is to issue regulations exempting nonresident aliens and bona fide residents of any U.S. possession from the disclosure. The Secretary also has authority to exempt certain assets from being reported.
The disclosure under new Section 6038D includes: (i) the name and address of the financial institution in which the account is maintained; (ii) the account number; (iii) in the case of any stock or security, the name and address of the issuer and other information necessary to determine the ownership; (iv) in the case of an instrument, the names and addresses of all issuers and counterparties; and (v) the maximum value of the asset during the taxable year. While this information is quite similar to that required on an FBAR, this disclosure is not required by persons who have signature authority or other authority over a foreign financial account. It is likely, however, that much of the same confusion that surrounds the FBAR filing requirements will impact this informational filing. Notwithstanding, since this disclosure is mandated by 6038D (i.e., Title 26, and not Title 31, as is the FBAR), Treasury may be able to clarify the confusion with regulations.
The minimum penalty for failing to submit the required disclosure is $10,000, and it increases by $10,000 for each 30-day period following notification from Treasury, with the maximum penalty being $50,000. There is, however, a 90-day grace period following notification from the Treasury before the additional $10,000 penalties accrue. This is similar to the penalty for failure to file Form 5471 and Form 3520. As with those forms, the penalty may be waived if the taxpayer is able to demonstrate the failure to file was due to reasonable cause. It is important to realize that taxpayers who have this disclosure requirement will likely also have an FBAR filing requirement. While the penalty for failure to file the FBAR is much harsher than the penalty under Section 6038D for failure to file this new disclosure, both of these penalties may be assessed.
Interestingly, there is a presumption that a taxpayer with “specified foreign financial assets” has a filing obligation for purposes of the penalty if the IRS believes the taxpayer has an interest in one or more such assets, and the taxpayer does not provide sufficient information to demonstrate the aggregate value is less than $50,000.
Foreign Companies. Generally, a foreign corporation will qualify as a passive foreign investment company (PFIC) if (i) 75 percent or more of its gross income in the tax year is passive income, or (ii) on average during the tax year at least 50 percent of the assets held by the corporation produce passive income or are held for the production of passive income.12 Section 521 of FATCA amends Section 1298 of the Code to require persons owning shares in a PFIC to file an annual information return disclosing their ownership of the PFIC.13 This replaces current law where such disclosure is only required when the taxpayer makes a Qualifying Elective Fund election or disposes of their interest in the PFIC. The PFIC disclosure is effective as of March 18, 2010. Notwithstanding, on April 6, 2010, the IRS issued Notice 2010-34 indicating that guidance would be forthcoming clarifying the new reporting obligation. As a result, the Notice indicates that taxpayers who were not otherwise required to file Form 8621 prior to the creation of Section 1298(f) will not have to do so for tax years prior to March 18, 2010.
2. Penalties. Section 6662 permits the IRS to impose a 20 percent penalty on a substantial understatement of income that is not related to fraud.14 Section 512 of FATCA amends Section 6662 and increases the standard 20 percent accuracy related penalty to a 40 percent penalty on any portion of an underpayment attributable to an undisclosed financial asset that should have been reported under Sections 6038,15 6038B,16 6046A,17 604818 or new Section 6038D. Clearly, under FATCA, the penalties associated with failure to file the informational returns required by the Code will become progressively more expensive. The increased penalty structure is effective as of the tax year beginning after the date of enactment, or January 1, 2011.
3. Expanded Statute of Limitations. Generally, the IRS has three years in which to audit a taxpayer and assess additional tax.19 The statute is increased to six years if a taxpayer omits 25 percent or more of the income that should have been reported in gross income.20 Section 513 of FATCA amends Section 6501(e) to extend the six-year statute of limitations to situations where a taxpayer omitted more than $5,000 of income attributable to one or more assets required to be reported under Section 6038D. Thus, even if the taxpayer does not have a substantial understatement, the IRS will have a six-year period in which to investigate and audit the taxpayer. Additionally, however, the three-year and six-year statutes of limitation will be suspended until the information required to be reported under Sections 6038, 6038B, 6046A, 6048 or new Section 6038D is provided to the IRS.21
The extended statutes of limitation are applicable to: (i) returns filed after the March 18, 2010 date of enactment, and (ii) returns filed on or before such date if the limitation period under Section 6501 has yet to expire. Thus, the extended six-year statute and suspended three-year statute could theoretically apply to tax returns that were filled as early as 2004 if a six-year statute applies or 2007 if the normal three-year statute applies. It should be noted that the extended statute of limitations applies to the entire tax return, not just the information that was not reported.
4. Foreign Trusts. As stated above, U.S. persons who transfer assets to a foreign trust (including Mexican real estate transferred to a Fideicomiso) or who receive a distribution from a foreign trust are required to file Form 3520. This is simply an informational filing, and has no tax significance. The penalty under Section 6677 is 35 percent of the gross reportable amount (generally the amount transferred to the trust or received from the trust). Section 535 of FATCA amends Section 6677 such that a failure to file Form 3520 would have a minimum penalty of $10,000. Thus, the penalty will now be the greater of $10,000 or 35 percent of the gross reportable amount. The penalty increases by $10,000 for each 30-day period following notification from Treasury that the filing is delinquent. There is, however, a 90-day grace period following notification from the Treasury before the additional $10,000 penalties accrue. Additionally, the total penalty assessed for failure to file Form 3520 will not exceed the gross reportable amount. The penalty is effective for Forms 3520 filed after December 31, 2009. Therefore, any taxpayers who fail to file a Form 3520 with their Form 1040, and are otherwise required to do so will be faced with the new penalty structure.
Grantor Trust Status. When a U.S. person transfers assets to a foreign trust that has U.S. beneficiaries, Section 679 deems the trust to be a grantor trust, and the U.S. transferor is responsible for reporting the trust’s income. The regulations under Section 679 create the presumption that the trust will have U.S. beneficiaries, thus it is rare that a U.S. person will fund a foreign trust, and it will not be qualified as a grantor trust. Whether taxpayers simply failed to look at the regulations, or intended to avoid paying U.S. income tax on the trust’s income, the IRS felt that it needed to codify the regulations into the statute.
In general, Section 679 treats a U.S. taxpayer who transfers property (whether directly or indirectly) to a foreign trust with U.S. beneficiaries as the grantor of the portion of the trust assets transferred to the trust in accordance with the grantor trust rules. Section 679(c) has three subparagraphs, all of which are designed to find a U.S. beneficiary of the foreign trust.
Sections 531 and 532 of FATCA add several new provisions to Section 679, and three subparagraphs to Section 679(c), all of which are designed to find a U.S. beneficiary of the foreign trust. The FATCA additions are effective for transfers to a foreign trust after March 18, 2010, and include the following:
- Amending Section 679(c)(1) to treat amounts accumulated in a foreign trust as being for the benefit of a U.S. person even if the U.S. person’s interest in a foreign trust is contingent on a future event.
- Section 679(c)(4) provides that if any person has the discretion to make a distribution from a foreign trust to, or for the benefit of, any person (U.S. or otherwise), the trust will be treated as having a U.S. beneficiary unless the terms of the trust specifically identify the class of persons to whom the distributions may be made and none of those persons can be U.S. persons during the taxable year.
- Section 679(c)(5) provides that if any U.S. person who directly or indirectly transfers property to a foreign trust is directly or indirectly involved in any agreement or understanding that may result in the trust’s income or corpus being paid or accumulated for the benefit of a U.S. person, the agreement or understanding will be treated as a term of the trust. In essence, any discretion held by a trustee or protector to make a distribution or accumulate income for a U.S. person will be deemed to have been exercised.
- Section 679(c)(6) provides any loan of cash or marketable securities (or the use of any other trust property) directly or indirectly to or by any U.S. person will be treated as paid or accumulated for the benefit of such U.S. person. However, this provision would not apply to the extent that the U.S. person repays the loan at a market rate of interest or pays the fair market value of the use of the property within a reasonable period of time.
- Whereas Section 679(c) lists several instances in which a foreign trust will be deemed to have a U.S. beneficiary, new Section 679(d) makes a conclusive determination that a foreign trust has a U.S. beneficiary provided a U.S. person transfers property to the trust. The new Section 679(d) provides that if a U.S. person transfers (whether directly or indirectly) to a foreign trust, the trust will be presumed to have a U.S. beneficiary unless the transferor submits information, as requested, by the Secretary to demonstrate that no part of the income or trust may be paid or accumulated to or for the benefit of a U.S. person.
Taxable Distributions. Prior to FATCA, Section 643(i) provided that a loan of cash or marketable securities from a foreign trust to any U.S. grantor, U.S. beneficiary, or any other U.S. person who was related to a U.S. grantor or U.S. beneficiary was generally treated as a distribution by the foreign trust to such grantor or beneficiary.
Section 533 of FATCA provides that any use of trust property after March 18, 2010, by a U.S. grantor, U.S. beneficiary, or any U.S. person related to a U.S. grantor or U.S. beneficiary is treated as a distribution. The individual utilizing the trust property will be subject to income equal to the fair market value on the use of the property or loan under Section 643(i)(1). This rule does not apply to the extent that the foreign trust is paid fair market value for the use of the property within a reasonable period of time following the use. FATCA does not define “a reasonable period of time,” but presumably this will be defined in subsequent Treasury Regulations.
It is interesting to note that a subsequent return of the property to the foreign trust is disregarded for tax purposes under Section 643(i)(3). Notwithstanding, consistent with Section 679, the transferor of the property would qualify as a grantor and, consistent with Section 6048, the transfer would be a reportable event that would need to be reported on a Form 3520.
5. Dividend Equivalent Payments. The term “dividend equivalent” is defined as any payment made pursuant to a specified notional principal contract that (directly or indirectly) is contingent upon, or determined by reference to, the payment of a dividend from sources within the United States. Under Section 871(l)(3)(A) a specified notional principal contract is a notional principal contract if: (i) in connection with entering into the contract, any long party to the contract transfers the underlying security to any short party to the contract; (ii) in connection with the termination of the contract, any short party to the contract transfers the underlying security to any long party to the contract; (iii) the underlying security is not readily tradable on an established securities market; (iv) in connection with entering into the contract, the underlying security is posted as collateral by any short party to the contract to any long party to the contract; or (v) IRS identifies the contract as a specified notional principal contract.
Section 541 of FATCA is another provision that is likely to impact nonfinancial foreign institutions such as hedge funds as well as their U.S. investors. It would amend Section 871(l)(1) to eliminate the disparate tax treatment between dividends on stock of U.S. corporations, which are subject to U.S. withholding tax, and dividend equivalent payments, which are not, by treating dividend equivalent payments as U.S.-source dividend payments made on or after September 14, 2010. Consequently, any such payments made to a nonresident alien would be subject to a withholding tax applicable to the payment.
Payments that may be treated as U.S. source dividends include any gross amounts used in computing any net amounts transferred to or from the taxpayer (the gross amount rule) under Section 871(l)(5). As a result, a counterparty to a total return equity swap may be obligated to withhold and remit tax on the gross amount of a dividend equivalent payment even though it is not required to make an actual payment to the foreign investor. There is no grandfathering provision. Dividend equivalent payments on outstanding notional principal contracts 180 days after the March 18, 2010 date of enactment (i.e., on or after September 14, 2010), therefore, are subject to withholding. This provision is specifically targeted towards the variety of notional principal contracts and equity swaps that have been traditionally excluded from dividends under Sections 871 and 1441. John Harrell, senior counsel in the Treasury Office of Tax Counsel, stated on April 12, 2010, at a conference sponsored by the Practicing Law Institute that the IRS and Treasury Department hope to put out guidance “substantially in front of that” (i.e., the September 14, 2010 effective date).
6. Foreign Targeted Obligations. Prior to FATCA, a deduction was permitted for foreign targeted obligations which were issued in bearer format (i.e., not registered) provided certain exceptions were satisfied (i.e., they could not be sold to U.S. persons). Section 502 of FATCA repeals the foreign targeted obligation exception. Consequently, for obligations issued in bearer format after March 18, 2012, an interest deduction will be prohibited unless the obligation: (i) is issued by a natural person; (ii) matures in no more than one year; or (iii) is not of a type offered to the public. Therefore, issuers of bearer debt obligations with a maturity greater than one year will not be permitted a deduction for interest on the obligation unless the obligations qualify for the FATCA exception.
Similarly, FATCA denies a tax exemption for interest on state and local bonds not issued in a registered form. Thus, for state and local bonds issued after March 18, 2012, the tax exempt status will be denied unless the obligation matures in no more than one year or is not of a type offered to the public.
Finally, Section 871(h)(2) is amended. Currently, portfolio interest is exempt from the 30 percent tax that applies to other U.S. source interest income received by nonresident aliens. Section 871(h)(1). IRS Publication 519 defines portfolio interest (including original issue discount) as including interest that is paid on any of the following obligations:
- not in registered form (bearer obligations) that are sold only to foreign investors, and the interest on which is payable only outside the United States and its possessions, and that has on its face a statement that any U.S. person holding the obligation will be subject to limitations under the U.S. income tax laws
- in registered form that are targeted to foreign markets and the interest on which is paid through financial institutions outside the United States
- in registered form that are not targeted to foreign markets, if the taxpayer furnished the payer of the interest (or the withholding agent) as with a Form W-8BEN or similar form indicating that the taxpayer is not a U.S. person
Portfolio interest paid to a nonresident alien after March 18, 2012, will be subject to 30 percent withholding unless the bond is issued in a registered form or satisfies the FATCA requirements. Portfolio interest will also be defined after March 18, 2012, as any interest including original issue discount that: (i) would be subject to the withholding tax but for this exemption, and (ii) is paid on an obligation that is in registered form, and with respect to which: (a) the U.S. person who would otherwise be required to deduct and withhold tax from the interest under Section 1441 receives a statement that the beneficial owner of the obligation is not a U.S. person (i.e., usually a Form W-8BEN); or (b) IRS has determined that the statement described above, is not needed to carry out the purposes of the portfolio interest exemption (i.e., poses a low risk of U.S. tax base erosion).
Conclusion. On April 5, 2010, Martin Vaughan wrote an article titled “More Americans Sever U.S. Ties as IRS Gets Tougher,” in The Wall Street Journal. Unfortunately, it is not just taxpayers who may decide to terminate their connection to the United States. The due diligence requirements imposed on foreign financial institutions and nonfinancial foreign entities may very well lead these institutions to stop investing in the United States and cease accepting U.S. clients.
U.S. taxpayers will come to quickly realize that as a result of FATCA the costs involved with reporting their foreign activities to the IRS have increased as there are additional disclosures. However, the cost of complying with the new FATCA mandated disclosures is not the only effect. Once the various provisions are enacted, the penalties associated with foreign noncompliance will increase and the statute of limitation in which the IRS can audit a taxpayer will double. Certainly, the doubling of the penalties and statute of limitations for foreign noncompliance may cause certain taxpayers to rethink investing abroad. However, it may very well be the accidental Americans and resident aliens under the substantial presence test who bear the greatest burden, as they often are not aware of their U.S. Form 1040 requirements, much less should they be expected to know about FATCA.