With the election looming and those of our readers in “battleground states” no doubt tiring of the election commercials and constant news coverage, we thought this might be a good time to write about something less sensational — Foreign Account Tax Compliance Act (“FATCA”).
The Internal Revenue Service (“IRS”) recently delayed a number of FATCA-related due-diligence, withholding, and reporting deadlines in Announcement 2012-42 (the “Announcement”). Although the extension of these deadlines will provide welcome relief to many foreign financial institutions (“FFIs”), it is not very likely that there will be any further extensions or delays in the FATCA deadlines. For that reason, and due to the extensive work that will be necessary on the part of U.S. withholding agents and FFIs to implement these rules, U.S. withholding agents and FFIs should ensure that appropriate FATCA policies and procedures are implemented as soon as possible. The following is a brief summary of some of the revised deadlines.
The first change is that U.S. withholding agents, participating FFIs (FFIs that enter into withholding agreements with the IRS), and “registered deemed-compliant FFIs” (foreign financial institutions that do not have to enter into IRS agreements) are required to implement new account opening procedures by January 1, 2014 (instead of 2013).
With respect to pre-January 1, 2014 accounts, the deadline for obtaining documentation for such accounts held by “prima facie FFIs” (payees that have indications of being FFIs) is now generally June 30, 2014, and the deadline for preexisting accounts held by non-prima facie FFIs is now generally December 31, 2015.
The deadline for participating FFIs to complete diligence with respect to preexisting high-value individual accounts (account with a balance or value exceeding $1 million) is now generally December 31, 2014, and the deadline for preexisting individual non-high-value accounts is now December 31, 2015.
The due date for participating FFIs to report to the IRS information concerning their U.S. accounts as well as accounts held by noncooperative account holders with respect to the 2013 and 2014 calendar years is March 31, 2015 (instead of September 30, 2014 in respect of the 2013 calendar year).
Pursuant to the Announcement, FATCA withholding will not apply to gross proceeds from the sale or other disposition of property of a type that can produce U.S.-source interest or dividends until after December 31, 2016.
Finally, the Announcement has also expanded the definition of “grandfathered obligations” (i.e., instruments not subject to FATCA withholding) to include three additional types of instruments: (1) an obligation that produces or could produce a “foreign passthru payment” but not a withholdable payment (provided the obligation is outstanding as of the date six months after publication of final regulations defining the term “foreign passthru payment”); (2) any instrument that produces a withholdable payment solely because the instrument is treated as giving rise to a dividend equivalent payment pursuant to section 871(m) and the regulations thereunder (provided the instrument is outstanding as of the date six months after instruments of its type first become subject to such treatment); and (3) any obligation to make a payment with respect to, or to repay, collateral posted to secure obligations under a notional principal contract that is itself a grandfathered obligation.
Then again, maybe those commercials aren?t so bad after all…