On August 24th, the Financial Crimes Enforcement Network (FinCen) issued a guidance that requires private banks, credit unions and trust companies to identify the beneficial owners of legal entities and the people who control these entities. The step is taken to track down people who are hiding company ownership to avoid taxes and other government rules.
As the readers may recall, the rules announced in May 2016 covered federally regulated banks.
It is believed that the FinCen will also soon announce that certain other banks and financial institutions will also be covered under these rules. Banks authorized by law in Puerto Rico and the U.S. Virgin Islands to provide banking and other services to nonresident aliens can also be included.
The IRS said this list isn’t exclusive and could be expanded at some point.
In one feature likely to attract attention, FinCEN didn’t propose changing the ownership percentage that triggers reporting from the 25% required in the final rule in May.
Some called for the agency to lower it, asserting that 25% was too high and wouldn’t catch numerous taxpayers trying to hide from the IRS. Others said it was too low and would create big hassles for banks.
FinCEN said it considered increasing the ownership percentage to 50%, but finally concluded that 25% is “appropriate to maximize the benefits of the requirement while minimizing the burden.”
The beneficial ownership rules would require banks to enhance customer identification programs and anti-money laundering initiatives.
Taiwan’s Financial Supervisory Commission (FSC) and the Ministry of Finance (MoF), jointly announced their intent to pursue an intergovernmental agreement to facilitate the implementation of the Foreign Account Tax Compliance Act (FATCA) – RIA News.
Taiwan has created an interagency task force, including the FSC, the MoF, the Ministry of Justice and the Ministry of Economic Affairs to study compliance options under FATCA. Previous consultations between the U.S. Treasury and Taiwan were focused on reducing compliance costs associated with FATCA. In addition, efforts have been dedicated to assisting local financial institutions to comply with all the domestic legal requirements and to protecting the depositors as well as the investors.
“The Taiwan authorities are supportive of the underlying goals of FATCA, and are interested in exploring a framework for mutual cooperation to facilitate the implementation of FATCA,” the statement said.
“Both sides affirm their willingness to continue their consultations and actively seek to finalize the signing of an agreement.
IRS recently released the draft Form 8621 to reflect changes made by FATCA effective March 18, 2010.
The new Part I of the Form suggests that the IRS generally intends to require annual filing of Form 8621—
- Without regard to whether an election under the PFIC rules is being made in that year, or whether the PFIC rules would alter otherwise generally applicable U.S. income tax rules for the year under section 1291, and
- Without regard to whether an income inclusion would be required under section 1293 or section 1296 for that tax year.
The information in this new Part I would require the taxpayers to provide IRS with information also generally required on new Form 8938 (Statement of Specified Foreign Investment Assets), and would enable the IRS to waive reporting on Form 8938 of foreign assets reported on Form 8621 without sacrificing the ability of the IRS to obtain desired information.
The IRS did not release draft instructions. Guidance is still awaited on issues such as whether it will retain current exceptions from filing of Form 8621 by tax-exempt U.S. entities that would not be subject to U.S. taxation under subchapter F on actual dividends from a PFIC.
To remind our readers, generally any investment by a US person in a foreign mutual fund is considered a PFIC and subject to be reported on Form 8621.
IRS yesterday released a draft version of Form W-8IMY, Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding, to accommodate the FATCA provisions of the Code’s Chapter 4. Instructions to the draft, which would expand the form from two to eight pages, haven’t been released yet.
Generally effective for payments made after Dec. 31, 2012, the HIRE Act established rules for withholdable payments to foreign financial institutions (FFIs) and for withholdable payments to other foreign entities by adding new Chapter 4 to the Code (Code Sec. 1471 through Code Sec. 1474). The rules provide for withholding taxes to enforce new reporting requirements on specified foreign accounts owned by specified U.S. persons or by U.S.-owned foreign entities.
Under Code Sec. 1471(a), a withholding agent must withhold 30% of any withholdable payment to an FFI that does not meet the requirements of Code Sec. 1471(b). A withholdable payment is, subject to certain exceptions:
- Any payment of interest, dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations, emoluments, and other fixed or determinable annual or periodical gains, profits, and income (FDAP income), if such payment is from sources within the US; and
- Any gross proceeds from the sale or other disposition of any property of a type which can produce interest or dividends from sources within the US (Code Sec. 1473(1))
An FFI satisfies Code Sec. 1471(b), if it either enters into an agreement (an FFI agreement) with IRS to perform certain obligations or meets requirements prescribed by IRS to be deemed to comply with Code Sec. 1471(b).
This question has been asked several times in our practice. A recent IRS Chief Counsel Advice discusses the issue and provides the answer.
Facts.The taxpayer, a UK resident, was a university professor who contributed to UK pensions scheme, qualified under UK law, over the course of his working life. The UK pension scheme was a qualified scheme for UK tax purposes.
Taxpayer accepted a position at a U.S. university where he taught from Date 1 through Date 3. After Date 3, the taxpayer permanently moved back to the UK.
Upon returning to the UK, the taxpayer sought to rollover his US pension contributions to his UK. scheme. To that end, the US pension plan issued a lump-sum check in the amount of his US pension contributions payable to the taxpayer’s UK plan. The following year, the taxpayer received a Form 1099-R (Distribution from Pension, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.)
Issue. The question presented in the memo is whether the taxpayer could rely on the parenthetical language in Article 18(1) to make a tax-deferred rollover distribution from a U.S. pension scheme to a UK pension scheme that is not an “eligible retirement plan” under IRC 402. The memo also addressed whether the lump-sum transfer from a US pension scheme to a U.K. pension scheme is taxable as a distribution in the US under Article 17(2).
Rollover did not satisfy US Internal Revenue Code Sec. 402 requirements. Chief Counsel said that the parenthetical language referenced by the taxpayer in Article 18(1), provided that a transfer of earnings from one pension scheme to another would not be treated as a distribution if the transfer qualified as a rollover. The language, however, did not create an independent basis for treating a transfer as tax deferred rollover distribution. To qualify as a tax-deferred rollover, the rollover would have to satisfy the requirements under the domestic laws of both the transferor and transferee pension scheme.
In this case, the memo found that the rollover did not satisfy US requirements because the UK pensions scheme is not an eligible plan as described under IRC 402. The failure to satisfy the IRC 402 requirements rendered Article 18 inapplicable making the distribution taxable under Article 17(2).
Switzerland and Japan are the latest additions to the list of countries that agreed to cooperate with US Treasury.
Treasury said on June 21, that the U.S. had signed separate joint statements with Japan and Switzerland to intensify cooperation in combatting international tax evasion by removing legal impediments to compliance with the Foreign Account Tax Compliance Act (FATCA). The approach taken under the joint statements with Japan and Switzerland permits foreign financial institutions (FFIs) to report information directly to the IRS, which is different from an earlier approach that called for FFIs to report information directly to their governments that would ultimately be shared with the U.S. on an automatic exchange of information basis.
The announcement expands the list of countries already cooperating with Treasury to implement FATCA. Treasury said in February it was negotiating with France, Germany, Italy, Spain and the U.K. (the so-called G5) to establish government-to-government information sharing arrangements. (See International Taxes Weekly, 02/14/2012). In April, Treasury also announced that Ireland had entered into discussions with Treasury regarding an intergovernmental approach to implementing FATCA.
Treasury’s joint statement with France, Germany, Italy, Spain and the U.K. envisages a two-step approach whereby FFIs report FATCA-required information to their own governments and then the governments exchange the information with the U.S. on an automatic basis.
Treasury’s separate joint statements with Japan and Switzerland contemplates the mutual intent to pursue a second model framework for intergovernmental cooperation, a senior Treasury official said. Under the second model for inter-governmental cooperation, FFIs would report information directly to the IRS to the extent permitted under the FFI’s domestic laws. Where consent is necessary and not granted by the account holder, the governments would then be able to obtain such information pursuant to a treaty request.