On 18 December 2015, the Regulations implementing the OECD Common Reporting Standard ("CRS") in Ireland were approved by the Irish Parliament. This update follows on from previous updates published by Maples and Calder Dublin on CRS and US FATCA and outlines the practical next steps for Irish investment funds and SPVs and how Maples and Calder can assist.
CRS – What is it?
The CRS regime is the latest in a series of international automatic exchange of information ("AEOI") initiatives beginning with the EU Savings Directive and including the US FATCA regime. In recent years, there has been a global move towards greater tax transparency and CRS is the most comprehensive regime to date, covering over 90 countries. The CRS automatic exchange of information regime has, to a large extent, been inspired by the US FATCA Model 1 IGA mechanics and it should be possible for Financial Institutions to capitalise on the on-boarding and accounts classification processes that were put in place for FATCA.
Overview of CRS
The detail relating to CRS is contained in the OECD Standard for Automatic Exchange of Financial Account Information in Tax Matters (the "OECD Standard"). Ireland amended its tax legislation to allow for the introduction of CRS in 2014 and implementing regulations were published on 18 December 2015.
CRS goes live from 1 January 2016 for early adopters (including Ireland) and the regime will oblige Financial Institutions to collect certain information in relation to investors ("Account Holders") and report that information to the Irish Revenue Commissioners. This information will then be passed on to the tax authorities of the participating jurisdiction where the investor is resident.
Unlike FATCA, there are no withholding requirements under CRS.
Will CRS Apply to Irish Regulated Funds and Irish SPVs ("Section 110 Companies")?
CRS applies to Financial Institutions, a concept that is broadly similar to that which applies under FATCA and includes depositary and custodial institutions as well as investment entities. Irish regulated investment funds and Section 110 companies would typically constitute Financial Institutions as investment entities and will, therefore, need to comply with the CRS diligence and reporting requirements.
There are very limited exemptions available for investment entities and none are likely to apply to a widely held or regulated entity.
What Obligations Will Apply to Irish Financial Institutions?
Irish Financial Institutions will be obliged to confirm the tax residence status of all new and existing Account Holders. If the Financial Institution identifies that any of the Account Holders are reportable, i.e. held by tax residents in CRS participating reportable jurisdictions, it must identify those Account Holders in its annual CRS return. The return must be filed with Irish Revenue by 30 June of the tax year following the year of assessment for which a return is required.
What are the Next Steps?
The next steps for Irish entities which consider that they may have CRS obligations is to confirm the entity's classification for CRS purposes in order to determine whether CRS applies. Maples and Calder can assist in that process.
If the entity is a Financial Institution for CRS purposes, they should put in place due diligence procedures to gather the relevant information.
For regulated Irish investment funds, the Irish funds industry representative body Irish Funds has published self-certification forms which can be tailored for a client's application form. Self-certifications must be collected and validated as regards new investors at the time of opening of the account or within 90 days of the opening of the account, at the latest.
For Irish Section 110 Companies, an assessment should be made based on the structure and circumstances in each case as to what information must be collected and reported.
The Financial Institution should also confirm that its current FATCA due diligence and reporting servicer will also be able to take on any CRS due diligence and reporting requirements of the Financial Institution. Servicing and administration agreements may need to be updated to allow for the performance of CRS services.