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The Foreign Account Tax Compliance Act (‘FATCA”)

 

The Foreign Account Tax Compliance Act (commonly called “FATCA”) was enacted in the United States in March 2010.  As part of that country’s efforts to thwart tax evasion, the Act requires financial institutions around the world to report on U.S. persons and entities as well as on foreign entities in which U.S. persons hold a substantial ownership interest (more than 10% direct or indirect ownership).  Failure to comply with FATCA means that a financial institution could suffer a 30% withholding tax.

FATCA became effective on July 1, 2014.

Who is a ‘U.S. person’ under the FATCA?
Under the FATCA, a ‘U.S. person’ is identified as one who meets one or more of the following indicia:

  • U.S. citizenship or lawful permanent residence (green card) status;
  • A U.S. birthplace;
  • A U.S. residence address or a U.S. correspondence address (including a U.S. P.O. box);
  • A current US telephone number;
  • Standing instructions to transfer funds to an account maintained in the U.S. or directions regularly received from a U.S. address;
  • An “in care of” U.S. address or a “hold mail” U.S. address that is the sole address with respect to the client;
  • A Power of Attorney or signatory authority granted to a person with a U.S. address; or
  • Any non-financial foreign entity (such as a privately held operating business, professional services firm, foreign trust or foreign partnership) in which one or more ‘U.S. Persons’ own more than 10% either directly or indirectly.

What are the thresholds for an account to be considered reportable?
Reporting will apply to pre-existing customers who have in excess of US$50,000 and entities that have in excess of US$ 250,000 as at June 30,2014.

What are the documentary requirements?
Pre-existing Customers whose records reveal the presence of one or more of the abovementioned indicia and whose accounts exceed the reporting threshold will be required to submit the following documentation to the Bank:

  • Completed self-certification;
  • Completed withholding certificate (Form W-9);
  • Appropriate documentary evidence (e.g. passport, ID, driver’s license, green card) [a copy will be taken by the Bank];
  • Signed waiver of reporting restrictions

These documentary requirements would also apply to new customers.

Customers whose records reveal the presence of one or more of the abovementioned indicia and, for pre-existing customers whose accounts exceed the reporting threshold but who are not U.S. persons ( such as customers with a student visa) will be required to submit the following documentation to the Bank:

  • Completed self-certification;
  • Completed withholding certificate (From the W-8 series);
  • Appropriate documentary evidence (e.g. foreign passport, ID, driver's license.) [a copy will be taken by the Bank]

Are there any penalties for Customers who do not wish to comply with FATCA?
Any customer who fails or provides insufficient documentation to the Bank to determine whether or not he/she/it is a U.S. person or entity runs the risk of having his/her/its account closed by the Bank or a 30% withholding tax deducted from his/her/its  U.S. sourced income.

What happens in the case of jointly held accounts?
With respect to a jointly held account, each joint holder is treated as an account holder for purposes of determining whether the account is a U.S. account.  Consequently, the balance or value in the account will be attributed in full to all joint holders of the account.

Where at least one joint account holder possesses any of the abovementioned indicia and is a U.S. person, he/she will also be required to submit the required documentation.

What is the Substantial Presence Test?
Individuals are considered U.S. residents for tax purposes if they meet the substantial presence test for the calendar year. To meet this test, they must be physically present in the United States on at least:

  • 31 days during the current year, and
  • 183 days during the 3-year period that includes the current year and the 2 years immediately before that

Example:
‘A’ was physically present in the United States on 120 days in each of the years 2010, 2011, and 2012. To determine if ‘A’ meets the substantial presence test for 2012, count the full 120 days of presence in 2012, 40 days in 2011 (1/3 of 120), and 20 days in 2010 (1/6 of 120). Since the total for the 3-year period is 180 days, ‘A’ is not considered a resident under the substantial presence test for 2012.

For more information on whether you may be reportable as a result of the substantial presence test, please visit the following link:

http://www.irs.gov/Individuals/International-Taxpayers/Substantial-Presence-Test

How are Dual Citizens treated?
A dual citizenship holder (e.g. citizenship in Guyana and in the United States) is treated as a U.S. account holder because he/she is a U.S. taxpayer.  Hence, dual citizens are also subject to FATCA reporting and withholding.

 

Please see below for samples of various forms related to FATCA

Glossary of Terms
Proposed self-certification for individuals
Proposed self-certification for NFFEs
Proposed Waiver of Professional Secrecy
W-8BEN - Individuals
W-8BEN Instructions - Individuals
W-8BEN-E - Entities
W-8BEN-E Instructions - Entities
W-8BEN-E Updated Information - Entities
W-8ECI - Foreign Persons
W-8ECI Instructions - Foreign Persons
W-8EXP - Foreign Organizations
W-8EXP Instructions - Foreign Organizations
W-8IMY - Foreign Intermediaries
W-8IMY Instructions - Foreign Intermediaries
W-9 - Taxpayers
W-9 Instructions - Taxpayers

 


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