24 April 2024

Financial Firms Get FATCA Reprieve

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Global financial firms breathed a brief sigh of relief this week on news that the U.S. Treasury will temporarily relax enforcement on the Foreign Account Tax Compliance Act (FATCA). The rule, which will take effect on July 1 of this year, will require foreign financial firms to disclose information about U.S.-owned accounts to the IRS. The purpose of the law, of course, is to limit the ability of U.S. citizens to set up offshore tax shelters.

FATCA compliance has been a big concern for many financial firms who’ve cited everything from a lack of clear IRS guidance to the exceeding complexity of navigating different intergovernmental agreements as obstacles to their ability to meet the July deadline. According to a recent Thomson Reuters survey of 500 European and U.S. tax professionals, 74% cited a lack of clarity in the IRS regulations as the key obstacle to FATCA compliance. Fifty-four percent of respondents said they expect the IRS to delay FATCA implementation for another six months.

Instead of an outright delay, they got no-action relief.  Specifically, the notice from the IRS states:

“Calendar years 2014 and 2015 will be regarded as a transition period for purposes of IRS enforcement and administration of the due diligence, reporting, and withholding provisions…

With respect to this transition period, the IRS will take into account the extent to which a participating or deemed-compliant FFI, direct reporting NFFE, sponsoring entity, sponsored FFI, sponsored direct reporting NFFE, or withholding agent has made good faith efforts to comply with the requirements of the chapter 4 regulations and the temporary coordination regulations.

For example, the IRS will take into account whether a withholding agent has made reasonable efforts during the transition period to modify its account opening practices and procedures to document the chapter 4 status of payees, apply the standards of knowledge provided in chapter 4, and, in the absence of reliable documentation, apply the presumption rules of §1.1471-3(f).”

Translated for the non-IRS speaker, this means that, although the law will still be in effect as of July 1, the IRS will go easy on enforcing it.  Instead of aggressively policing each bank’s FATCA reporting accuracy, the IRS will instead be making sure foreign financial institutions are making a good faith effort to file W-8 and W-9 forms and accurately capturing data for their customers.

While that doesn’t remove the enormous administrative headache financial firms are facing to accurately capture and report this customer information by July 1, it does take some of the sting out of making some initial mistakes.  The IRS has said previously that FATCA non-compliance could result in fines of up to $50,000 on individuals who fail to report foreign assets and that it will withhold 30% of any payments of U.S. source income for individual account holders for whom sufficient information has not been captured.  With this new guidance, it sounds like those fines may be on the table for a couple of years, but the threat is still very much alive.

Click here for the original post by Joe Harpaz in Forbes.

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