Are you looking to learn more about the regulations surrounding the Foreign Account Tax Compliance act, “FATCA” or “Chapter 4”? Whether you are a bank customer representative, treasury manager, or a member of a corporate tax department, understanding the technical terms associated with Chapter 4 is essential. In this article, we will explore the important terms you need to know in order to begin to learn about that FATCA. As you will realize, FATCA is a vast and complex tax technical subject area. Learning the terms provided will be a good start to learning the overall rules. We recommend you also look at the Regulations and Forms W-8, specifically the instructions, to continue to increase your understanding of the subject matter.
The Foreign Account Tax Compliance Act (“FATCA”) falls within Chapter 4 of the Internal Revenue Code (“I.R.C.”), Code Sections 1471-1474, and introduced under the HIRE Act. The purpose of FATCA is to identify U.S. persons (individuals and entities) that are not reporting income earned from outside of the U.S. Operationally, this requires foreign financial institutions (“FFI”) and vehicles in which a person holds a substantial ownership interest to conduct due diligence on their account holders and report Specified U.S. persons to the Internal Revenue Service (“IRS”).
In some countries, local law restrictions prohibit the ability for direct reporting to the IRS. To remedy that issue, some foreign governments developed agreements with the U.S. Treasury. The agreement allows for the entity to provide the reportable information to the local government that will report that information to the IRS. These agreements are known as intergovernmental agreements (“IGA”). The agreement provides a framework for implementing Chapter 4 compliance in that country. These agreements are identified as a Model 1 or Model 2 Agreement.
- Model 1 Agreements require the submission of the required Chapter 4, U.S. person information to the local government. That local government will exchange the information with the United States.
- Model 2 Agreements allow for information to be shared directly with the IRS instead of going through the local government. Model 2 FFIs sign an FFI Agreement with the IRS. If the FFI has a U.S. person to report, then this would be submitted to the IRS using the Form 8966.
Below are some additional FATCA terms that you should know.
General FATCA Terms:
Foreign Financial Institution
A foreign financial institution (“FFI”) is a financial institution organized outside of the United States.
Under Chapter 4, a financial Institution is a depository institution, broker, custodial institution, investment fund, or insurance company that issues annuities or certain cash value insurance contracts. It would not include property and casualty insurance.
An account holder is the person listed as owning the income of an account held with a financial institution. At a bank, the customer would be the account holder. In an investment fund, the investor would be the account holder. At an insurance company, the policy holder or beneficial owner of the policy would be the account holder. The term holder is also used within this article to identify persons with substantial ownership interest as provided below.
A Recalcitrant person is an account holder that refuses to provide required documentation to a withholding agent or participating FFI.
Specified U.S. Person
Under FATCA, reportable U.S. persons are called specified U.S. persons. These persons are reported to the United States Tax Authorities in the event that they hold accounts at Foreign Financial Institutions or FFIs.
A specified U.S. person means any U.S. person other than:
- A publicly traded corporation, or a corporation that is related to a publicly traded corporation
- An organization exempt from U.S. federal tax
- Individual Retirement Plans or IRAs
- The United States or any agency of the United States
- Any state, the District of Columbia, any U.S. territory or any agency of each
- Any bank incorporated or doing business in the United States
- Any real estate investment trust
- Any regulated investment company
- Any common trust fund
- Any trust that is exempt from U.S. federal tax or that is a charitable trust
- Any registered dealers or brokers
- Any tax exempt trust under a tax exempt or public school annuity plan or governmental plan
In simpler terms, a specified U.S. person is any person that is not already subject to strict regulatory oversight. Specified U.S. persons generally are U.S. individuals, private corporations, and certain types of trusts.
Substantial Ownership Interest
A person with more than 10% of interest in the foreign entity (directly or indirectly). From a FATCA perspective, the analysis is looking for a Specified U.S. person with more than 10% of interest in the foreign entity (directly or indirectly) defined as a Substantial U.S. owner.
Global Intermediary Identification Number
A Global Intermediary Identification Number (“GIIN”) is the identification number assigned to an entity that has registered with the IRS for chapter 4 purposes.
Types of FFIs:
A nonparticipating FFI is a foreign financial institution that will not comply with the FATCA requirements.
Reporting Model 1 FFI
A reporting Model 1 Foreign Financial Institution is a Foreign Financial Institution located within a country that has restrictions preventing the FFI from reporting information directly to the IRS. A Reporting Model 1 FFI conducts due diligence on account holders to identify and report Specified U.S. Persons. If identified, Specified U.S. Person are reported by the FFI to the local government that reports these persons and their account information to the IRS.
A Participating FFI is a Foreign Financial Institution that conducts due diligence on account holders to identify and report Specified U.S. Persons directly to the U.S. Treasury department. These requirements are documented between the FFI and the US department directly within an FFI agreement. All FFIs that fall under a Model 2 Intergovernmental Agreement and all FFIs that are not located in a country with an IGA, are considered Participating FFIs.
A deemed compliant FFI is a Foreign Financial Institution that meets the requirement of FATCA. A registered deemed-compliant FFI registers with the IRS and attests to the IRS that it satisfies certain procedural requirements. Separately a certified deemed compliant FFI, is not required to register with the IRS but is required to certify that it meets the certified status on an IRS Form W-8. The Form W-8 has numerous types of deemed-compliant FFIs listed and the Form W-8 instructions should be reviewed for a more in depth understanding of the different categories.
Other Entity Types under FATCA:
Exempt Beneficial Owner
A person must be a beneficial owner of a payment to be treated as an exempt beneficial owner with respect to the payment. Examples of persons who are exempt beneficial owners, include but are not limited to: i) foreign governments, any political subdivision of a foreign government, or any wholly owned agency or instrumentality of the foreign government, which may not include a government owned retirement fund; ii) Any international organization or any wholly owned agency or instrumentality of the international organization ; iii) any foreign central bank of issue, which may not include securities held by foreign centra banks of issue; iv) certain foreign retirement funds depending on their composition; and v) certain entities that are wholly owned by one or more other exempt beneficial owners.
Nonfinancial Foreign Entity
Entities that do not meet the definition of a foreign financial institution are called a nonfinancial foreign entity or NFFE. As with FFIs, NFFEs have more than one type. NFFEs will be either active or passive. What does this mean?
A Active NFFE is an entity that has an active trade or business. Generally, 50 percent or more of that business generates active income and 50 percent or more of the assets held by that entity would produce active income. Active NFFEs are usually operating companies, professional service firms, or charitable organizations.
A Passive NFFE is the opposite. More than half of the business generates passive income (such as interest, dividends, etc.) and more than half of the assets held will generate passive income. Passive NFFEs are usually trusts that are meant to hold passive income for their beneficial owners or other types of investment entities. Passive NFFEs are important, because any U.S. person who owns more than 10 percent of that NFFE will need to be disclosed as a Substantial U.S. Owner. This information is provided on the Form W-8BEN-E of the Passive NFFE.
We hope that these key terms provided an initial understanding to FATCA.