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J.P. MORGAN T&SS GLOBAL TAX SERVICES – FATCA TAX SEMINARNovember 16, 2010
Agenda    Background    Definitions of FFI and NFFE    Key Withholding Requirements    FFI Compliance Requirements and...
Background   On March 18, 2010, President Obama signed the “Foreign Account Tax Compliance Act” (FATCA)   FATCA is effecti...
Background   FATCA achieves the goal of identifying U.S. persons for:    Foreign Financial Institutions (“FFI”)      by i...
Definition of FFI and NFFE    FATCA will apply to two types of foreign entities: FFIs and NFFEs.     Foreign Financial In...
Key Withholding Requirements     FATCA requires “withholding agents” to apply a 30% withholding tax on “withholdable     ...
Key Withholding Requirements                                    U.S. Withholdable Payment                                 ...
Key Withholding Requirements   FATCA does NOT require Withholding Tax if the FFI enters into an agreement with the U.S. Tr...
FFI Withholding Exceptions    FATCA does NOT require Withholding Tax in the following cases:     The FFI enters into an a...
NFFE Withholding Exceptions   FATCA does NOT require Withholding Tax in the following cases:    The NFFE certifies that i...
Overlay with NRA Withholding Rules  Source: Burt, Staples & Maner, LLP   10
Withholding Scenarios  Source: Cravath, Swaine and Moore, LLP                                           11
Other Features of FATCA   Other significant provisions of FATCA include:    Repeal of portfolio interest exemption to non...
IRS Notice 2010-60     Treasury and the IRS are responsible for the administration/implementation of FATCA, thus      for...
IRS Notice 2010-60     Reporting Requirements       The IRS is developing a new form for reporting information about U.S...
IRS Notice 2010-60     Entities potentially exempted from FATCA          Entities that are excluded from being FFIs:    ...
IRS Notice 2010-60    Electronic Filing Requirements for Financial Institutions         All or most financial institutio...
J.P. Morgan Lobbying    U.S. Governmental Institutions     J.P. Morgan is directly and actively participating and discuss...
Next Steps – Timeline     Development of Legislation Process:           FATCA legislation enacted into U.S. law: March 1...
IRS Circular 230 Disclosure:JPMorgan Chase & Co. and its affiliates do not provide tax advice. Accordingly any discussion ...
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FATCA

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Transcript of "FATCA"

  1. 1. J.P. MORGAN T&SS GLOBAL TAX SERVICES – FATCA TAX SEMINARNovember 16, 2010
  2. 2. Agenda  Background  Definitions of FFI and NFFE  Key Withholding Requirements  FFI Compliance Requirements and Withholding Exceptions  NFFE Compliance Requirements and Withholding Exemptions  Overlay with NRA Withholding Rules  Withholding Scenarios  Other Features of FATCA  IRS Notice 2010-60  Next Steps – Timeline 1
  3. 3. Background On March 18, 2010, President Obama signed the “Foreign Account Tax Compliance Act” (FATCA) FATCA is effective on:  September 14, 2010 for provisions related to withholding tax on substitute dividends and dividend equivalent payments.  March 18, 2010 for provisions related to withholding tax on other dividend equivalent payments.  January 1, 2013 for the general provisions. FATCA is designed to compel foreign financial institutions and foreign entities to provide information to the U.S. Internal Revenue Service (IRS) that identifies U.S. persons invested in non-U.S. bank or securities accounts. FATCA does NOT replace the current:  U.S. documentation, Reporting and Withholding Tax rules applicable to U.S. and non-U.S. persons.  Qualified Intermediaries regime. 2
  4. 4. Background FATCA achieves the goal of identifying U.S. persons for:  Foreign Financial Institutions (“FFI”) by imposing a new 30% withholding tax on U.S. source “withholdable payments,” UNLESS the FFI enters into an agreement with the IRS to identify its U.S. investors (or is deemed to have entered into such an agreement).  Non-Financial Foreign Entities (“NFFE”) by imposing a new 30% withholding tax on U.S. source “withholdable payments,” UNLESS the NFFE certifies that it has no owners that are “substantial U.S. persons” or provides information on substantial U.S. owners to the withholding agent. 3
  5. 5. Definition of FFI and NFFE FATCA will apply to two types of foreign entities: FFIs and NFFEs.  Foreign Financial Institution (“FFI”)  FATCA legislation defines FFI as “any financial institution which is a foreign entity.”  FATCA defines the term “Financial Institution” as any entity that: – accepts deposits; New IRS guidance (IRS Notice 2010-60, issued August 27, 2010) states that the IRS intends to issue regulations that will provide that this category of financial institution will include savings banks, commercial banks, savings & loan associations, thrifts, credit unions, building societies, and other cooperative banking institutions. – holds financial assets for the account of others; or Under Notice 2010-60, this category will include broker-dealers, clearing organizations, trust companies, custodial banks, and entities acting as custodians with respect to the assets of employee benefit plans. – is engaged primarily in the business of investing, reinvesting, or trading in securities, partnerships interests, commodities, or any interest (including a futures or forward contract or option) in such securities, partnership interests, or commodities. Under Notice 2010-60, this category will include mutual funds (or their foreign equivalent), fund of funds (and other similar investments), exchange-traded funds, hedge funds, private equity and venture capital funds, other managed funds, commodity pools, and other investment vehicles.  Non-Financial Foreign Entity (“NFFE”)  FATCA legislation defines a NFFE as “any foreign entity which is not a financial institution”. 4
  6. 6. Key Withholding Requirements  FATCA requires “withholding agents” to apply a 30% withholding tax on “withholdable payments” to non compliant FFIs and NFFEs.  Withholdable Payments include: – Interest, dividends and other periodic payments from U.S. assets; – Gross proceeds on the disposition of property of a type that can produce interest or dividends from U.S. sources; and – Deposit interest paid by foreign branches of U.S. banks, even though this interest is not treated as U.S. source under current U.S. tax law.  Withholding Agents are: – all persons having control, receipt, custody, disposal, or payment of any withholdable payment.  TAX REFUNDS? Claims for refunds are limited. For example, if an FFI is a beneficial owner of the payment, it may claim a refund only if it is entitled to a reduced rate of tax under a Double Tax Treaty and complies with the FFI/NFFE requirements. Moreover, no interest on refundable amounts is payable. 5
  7. 7. Key Withholding Requirements U.S. Withholdable Payment U.S. source income + gross proceeds 30% U.S. WHT UNLESS Foreign Financial Institution (FFI) Non Financial Foreign Entity (NFFE) enters into an agreement with provides information the IRS to identify its U.S. investors on substantial U.S. owners (if any) 6
  8. 8. Key Withholding Requirements FATCA does NOT require Withholding Tax if the FFI enters into an agreement with the U.S. Treasury to identify its U.S. accounts:  “U.S. Account” means any “financial account” held by a “specified U.S. person”.  “Financial Account” includes:  Any depository or custodial account maintained by a FFI  Any equity or debt interest in a FFI  Excluded from this definition are deposit accounts maintained by an individual if the aggregate value of all accounts owned by that individual is less than $50,000.  “Specified U.S. person” means any U.S. person other than a publicly traded corporation and their affiliates; certain organizations considered tax exempt under U.S. law (e.g. charities, pension plans, etc.); governmental units and banks, REITS, regulated investment companies or certain common trust funds.  “Recalcitrant Account Holder” means any account holder which fails to comply with reasonable request of information requested for identification or fails to provide a waiver.  An FFI that is compliant with the terms of FFI agreement, but unable to obtain the required information regarding a particular account holder (recalcitrant account holder) must either:  Withhold 30% from payments to the recalcitrant account holder, or  Elect to receive its withholdable payments subject to 30% withholding tax on the portion that is allocable to the recalcitrant account holder. 7
  9. 9. FFI Withholding Exceptions FATCA does NOT require Withholding Tax in the following cases:  The FFI enters into an agreement with the U.S. Treasury to identify its U.S. investors: 1) Obtain information for each holder of each account to determine which are U.S. accounts; 2) Comply with verification and due diligence procedures to identify “U.S. accounts;” 3) Report annually certain information (i.e., name, address, TIN, account number, account balance, and gross receipts and withdrawals) with respect to each account held by a U.S. person; 4) Deduct and withhold 30% from certain payments to non compliant account holders; 5) Comply with IRS requests for additional information on any U.S. account; and 6) Obtain a waiver where a foreign law would prevent the reporting of information on a U.S. account, and if no waiver is obtained, close that account. 7) As an alternative to reporting in 3) above, an FFI can elect to do full 1099 reporting of both U.S. and foreign-source amounts (including gross proceeds) to all account holders that are specified U.S. persons or U.S.-owned foreign entities.  Exception for certain financial institutions: If the FFI is a member of a class of institutions for which the IRS has determined the FATCA withholding and reporting requirements are not necessary or if the FFI complies with IRS procedures to ensure there are no U.S. accounts.  Exception for certain payments: Payments beneficially owned by a foreign government, international organization, foreign central bank of issue, and any other class of persons that pose a low risk of tax evasion are not subject to withholding. 8
  10. 10. NFFE Withholding Exceptions FATCA does NOT require Withholding Tax in the following cases:  The NFFE certifies that it has no owners that are “substantial U.S. persons” or provides information on substantial U.S. owners to the withholding agent: 1) a certification that the foreign entity has no direct or indirect “substantial U.S. owner,” or 2) the name, address, and TIN of each substantial U.S. owner. 3) Additionally, the withholding agent must not know or have reason to know that the certification or information provided is incorrect, and 4) The withholding agent must report the name, address, and TIN of each substantial U.S. owner to the IRS. A “substantial U.S. owner” is a U.S. person that owns more than 10% of the stock of a corporation or the profits or capital interests of a partnership; any portion of a grantor trust; or more than 10% of any other trust.  Exception for certain payments: No withholding is required on payments that are beneficially owned by: (i) publicly traded corporations (and their affiliates); (ii) entities organized under the laws of a U.S. possession (i.e. Puerto Rico); (iii) foreign governments, international organizations and foreign central banks of issue. Withholding does not apply to payments that are identified as posing a low risk of U.S. tax evasion. COMMENT: Regulations & Guidance are needed to clarify documentation and exceptions. 9
  11. 11. Overlay with NRA Withholding Rules Source: Burt, Staples & Maner, LLP 10
  12. 12. Withholding Scenarios Source: Cravath, Swaine and Moore, LLP 11
  13. 13. Other Features of FATCA Other significant provisions of FATCA include:  Repeal of portfolio interest exemption to non registered bonds  If the bond is not registered, it would be subject to a 30% withholding tax (or a reduced treaty rate if applicable). This provision will apply to debt obligations issued after March 18, 2012.  Inclusion of 30% U.S. withholding tax for substitute dividend and dividend equivalent payments  With respect to swaps, the legislation will impose U.S. withholding tax on dividend- equivalent payments made on or after September 14, 2010 where the referenced security is a U.S. equity and the equity is transferred between the parties upon entering into or terminating the contract. Withholding is also required if the referenced equity is not market- traded.  With respect to securities lending, the legislation will impose U.S. withholding tax on substitute dividend payments made to foreign investors on or after September 14, 2010, unless the withholding agent has proof that U.S. tax has already been withheld. This provision applies only to substitute dividend payments with respect to U.S. equities. 12
  14. 14. IRS Notice 2010-60  Treasury and the IRS are responsible for the administration/implementation of FATCA, thus forthcoming IRS regulations will fill in many of the gaps and questions unanswered by the statute  On August 27, 2010, the IRS released Notice 2010-60. This Notice sets forth the general framework that Treasury and the IRS intend to follow when implementing FATCA. In addition to providing preliminary guidance, the IRS also requests additional comments.  In particular, the Notice includes guidance on the following topics:  Documentation Requirements  Reporting Requirements  Definition of FFI  Documentation Requirements  The Notice sets out very detailed information on documentation requirements for both FFIs and U.S. financial institutions (USFIs).  Broadly, “participating FFIs” (FFIs that have entered into an agreement with the IRS in compliance with FATCA) must distinguish between U.S. and non-U.S. accounts and provide the IRS information about the owners of U.S. accounts. Different rules will apply depending on whether the account was pre-existing before the FFI entered into a FATCA agreement or it is a newly opened account, and whether the account is held by an individual or an entity.  With respect to entity accounts and for purposes of determining if payments to such entities must suffer FATCA withholding, participating FFIs must determine if the entity is a participating FFI, a deemed compliant FFI, a non-participating FFI, is statutorily exempt from FATCA, or is an NFFE.  USFIs, in their capacity as withholding agents, must determine the status of payees for FATCA purposes under due diligence rules that are similar to those applicable to FFIs. 13
  15. 15. IRS Notice 2010-60  Reporting Requirements  The IRS is developing a new form for reporting information about U.S. account holders (electronic)  Forthcoming regulations will coordinate the reporting provisions under FATCA with other U.S. tax reporting obligations, with the intent to minimize duplicate reporting.  FATCA requires a participating FFI to report the account balance of each account. The IRS is considering requiring this amount to be the highest value of such account during the year and is requesting comments on potential approaches to this requirement.  IRS will require reporting on the number and aggregate value of recalcitrant account holders, including those that have U.S. indicia, and the number and aggregate value of financial accounts held by related or unrelated non-participating FFIs. 14
  16. 16. IRS Notice 2010-60  Entities potentially exempted from FATCA  Entities that are excluded from being FFIs: – Holding companies of a group of non-financial entities – Start-up companies (only for the first two years of operation) that will operate a business other that that of a financial institution – Non-financial entities that are liquidating or emerging from reorganization / bankruptcy – Hedging/financing centers of non-financial groups – Insurance companies that do not issue cash value insurance and reinsurance contracts (i.e., companies that issue property, casualty, and term life contracts)  Deemed-compliant FFIs – Investment funds that have only a small number of accounts holders, all of whom are individuals, and for which the withholding agent obtains documentation (e.g., a family trust)  Financial institutions organized in U.S. territories  Classes of persons posing a low risk of tax evasion – Foreign retirement plans, but only if the retirement plan i. Qualifies as a retirement plan under the law of the country in which it is established ii. Is sponsored by a foreign employer, and iii. Does not allow U.S. participants or beneficiaries other than employees that worked in the country in which that retirement plan is established  Collective investment vehicles that prohibit U.S. ownership – potential carve (IRS has requested comments) 15
  17. 17. IRS Notice 2010-60  Electronic Filing Requirements for Financial Institutions  All or most financial institutions would be required to electronically file their returns with respect to tax liabilities under Chapter 3 (NRA withholding) and Chapter 4 (FATCA withholding).  The electronic filing requirement would be effective for returns filed for taxable years ending after December 31, 2012.  IRS Request for Comments  The IRS’s requests for comments represents a significant opportunity for the financial industry to influence forthcoming regulations.  The IRS requested specific comments on the following topics: – Verification requirements for FFI’s entering into an FFI Agreement – Treatment of Passthru Payments – Election to be Withheld Upon – Sanctions With respect to recalcitrant account holders – Collective investment vehicles with legal restrictions that prohibit the sale of their interests to U.S. persons 16
  18. 18. J.P. Morgan Lobbying  U.S. Governmental Institutions J.P. Morgan is directly and actively participating and discussing the FATCA legislation with various U.S. governmental institutions, in particular, with the U.S. Treasury, the Internal Revenue Service, the Joint Committee on Taxation, the U.S. Senate Committee on Finance and the Committee on Ways and Means.  Financial Industry Associations J.P. Morgan T&SS is also participating, liaising and closely monitoring comments and recommendations to the FATCA legislation from various financial industry associations to protect and represent the interests of J.P. Morgan T&SS clients.  In particular, J.P. Morgan T&SS is actively participating and leading in the British Bankers’ Association (BBA), the European Banking Federation (EBF), the Institute of International Bankers (IIB) and the Association of Global Custodians (AGC).  J.P. Morgan T&SS is also liaising with and closely monitoring the Investment Management Association (IMA), the Investment Company Institute (ICI), the European Fund and Asset Management Association (EFAMA), the Association of the Luxembourg Fund Industry (ALFI), the Irish Funds Industry Association (IFIA), the International Swaps and Derivatives Association (ISDA), the New York State Bar Association, the Association of Global Custodians U.S. (AGC), the European Private Equity and Venture Capital Association (EVCA), the Alternative Investment Management Association (AIMA), the International Securities Lending Association (ISLA), PASLA & RMA. 17
  19. 19. Next Steps – Timeline  Development of Legislation Process:  FATCA legislation enacted into U.S. law: March 18, 2010.  Certain “Dividend Equivalent” payments subject to U.S. withholding tax: September 14, 2010.  Guidance notes: August 2010.  Proposed regulations expected beginning of 2011.  More Guidance notes expected mid-2011 and in phases.  All “Dividend Equivalent” payments subject to U.S. withholding tax: March18, 2012.  General FATCA provisions effective date on January 1st, 2013. Clients interested in additional discussions with J.P. Morgan about the FATCA legislation, please contact your Relationship Manager. Clients should contact their tax advisors to analyse FATCA implications in their businesses.
  20. 20. IRS Circular 230 Disclosure:JPMorgan Chase & Co. and its affiliates do not provide tax advice. Accordingly any discussion of U.S. tax matters contained herein (including any attachments) isnot intended or written to be used, and cannot be used, in the connection with the promotion, marketing or recommendation by anyone unaffiliated with JPMorganChase & Co. of any of the matters addressed herein or for the avoidance of U.S. tax related penalties.This presentation was prepared exclusively for the benefit and internal use of the J.P. Morgan client to whom it is directly addressed and delivered (including suchclient’s subsidiaries, the “Company”) in order to assist the Company in evaluating, on a preliminary basis, certain products or services that may be provided byJ.P. Morgan. This presentation contains information which is confidential and proprietary to J.P. Morgan, which may only be used in order to evaluate theproducts and services described herein and may not be disclosed to any other person. In preparing this presentation, we have relied upon and assumed,without independent verification, the accuracy and completeness of all information available from public sources or which was provided to us by or on behalf ofthe Company or which was otherwise reviewed by us.This presentation is for discussion purposes only and is incomplete without reference to, and should be viewed solely in conjunction with, the oral briefing providedby J.P. Morgan. Neither this presentation nor any of its contents may be used for any other purpose without the prior written consent of J.P. Morgan. J.P. Morganmakes no representations as to the legal, regulatory, tax or accounting implications of the matters referred to in this presentation.Notwithstanding anything in this presentation to the contrary, the statements in this presentation are not intended to be legally binding. Any products, services,terms or other matters described in this presentation (other than in respect of confidentiality) are subject to the terms of separate legally binding documentationand/or are subject to change without notice.Neither J.P. Morgan nor any of its directors, officers, employees or agents shall incur any responsibility or liability whatsoever to the Company or any other partyin respect of the contents of this presentation or any matters referred to in, or discussed as a result of, this document.All services are subject to applicable laws and regulations and service terms. Not all products and services are available in all geographic areas. Eligibility forparticular products and services is subject to final determination by J.P. Morgan and or its affiliates/subsidiaries.J.P. Morgan is a marketing name for the treasury services businesses of JPMorgan Chase Bank, N.A. and its subsidiaries worldwide.J.P. Morgan is licensed under U.S. Pat Nos. 5,910,988 and 6,032,137.© JPMorgan Chase & Co. All rights reserved. JPMorgan Chase Bank, N.A. Member FDIC. 19
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