- What is FATCA?
FATCA is the U.S. Foreign Account Tax Compliance Act that was enacted by the U.S. Government and that will come into effect on July 1, 2014.
The intention behind FATCA is to gain information about U.S. taxpayers’ accounts worldwide and to improve global transparency for the purpose of avoidance of tax evasion.
- What is considered a Financial Institution (FI) that is subject to FATCA?
A Financial Institute is an entity that is involved in any of the following financial activities:
Accepts deposits in the ordinary course of a banking or similar business;
Holds financial assets for the account of others as a substantial portion of its business;
is engaged (or holding itself out as beingengaged) primarily in the business of investing, reinvesting, or trading in securities, insurance and annuity contracts or any interest; or
Is an insurance company (or the holding company of an insurance company) that issues or is obligated to make payments with respect to a financial account.
Exclusions – certain nonfinancial holding companies, certain start-up companies, hedging/financing centers of a nonfinancial group, religious, charitable, educational non-profit organizations.
- How does FATCA work?
FATCA internationally requires all non-U.S. financial institutions (defined as Foreign Financial Institutions or FFIs) to identify, document and report on U.S. accounts
- What is the Inter-Governmental Agreement (“IGA”)?
The IGA is a partnership agreement between the U.S.A. and a FATCA Partner jurisdiction. The IGA makes it easier for the partner country to comply with the provisions of FATCA.
Under an IGA, financial institutions in the partner jurisdictions report information on U.S. account-holders directly to their national tax authorities, which in turn will report same to the Internal Revenue Service of the United States Department of the Treasury. An IGA provides the following benefits:
Extension of certain deadlines
Simplified due diligence
Increased clarity around due diligence, with country specific provisions
Establishment of a local legal umbrella for FFIs to act in accordance with their local laws and regulations.
- What is considered a U.S. account?
Any entity that is substantially owned directly or indirectly by a U.S. person, i.e. more than 25% shareholding.
Any account held by a U.S. person.
- For FATCA purposes, who is a U.S. person?
Generally, a U.S. person is someone to whom any of the following indicia apply:
Holds a U.S. passport or US citizenship (sole or dual)
Holds a U.S. residency (i.e. Green Card)
Was born in the U.S
Is a non-U.S. citizen who has substantial presence in the U.S. as per certain calculations of days of residency in the U.S. in the previous three years.
Is a U.S. taxpayer for any other reason
- What if I do not cooperate with my bank?
If you refuse to provide information requested from your bank or to complete FATCA-related forms, as per FATCA’s provisions, your bank will take measures to ensure its compliance with FATCA by applying tax withholding or suspending or closing your account(s).
- Do other local and international financial institutions also have to comply with FATCA?
Yes, as per the Intergovernmental Agreement (IGA) signed between Kuwait and the United States of America on May 1, 2014, all local financial institutions are expected to fully comply with FATCA as of July 1, 2014 based on local legislation or commercial perspectives; except for certain governmental, international, non-profit organizations that are exempted from FATCA reporting and withholding obligations. Any institution or client d
- If my country has a tax treaty with the U.S., am I exempted from FATCA?
No, even if a country has entered into a double taxation relief treaty or an exchange of information treaty with the U.S. Government, neither individuals nor entities located in that jurisdiction are exempted from complying with FATCA.
- What types of payments are subject to FATCA withholding?
FATCA provisions apply to “withhold-able” payments. “Withhold-able payments” are defined as:
Any payment of interest (including any portfolio interest and original issue discount), dividends, rents, royalties, salaries, wages, annuities, licensing fees and other fixed determined annual periodic income, gains and profits; if such payment is from a source within the U.S.
Any gross proceeds from the sale or disposition of U.S. property of a type that can produce interest or dividends
Interest paid by foreign branches of U.S. banks
Certain “pass thru” payments will also be subject to FATCA – a pass thru payment generally includes any portion of a payment that is not a withhold-able payment multiplied by the entity’s so called “pass thru payment percentage”. More guidance is expected to be obtained in this respect in the future.
- Are foreign exchange transactions subject to FATCA?
Exchange transactions will not be subject to FATCA, however, any gains on such transactions will generally be considered as gross proceeds which apply under FATCA to the sale or other disposition of any property of a type which can produce interest or dividends from sources within the United States. This could be changed by regulations from time to time.
- What if I do not earn money from the U.S. or our entity removes our investments from the U.S.?
If you or your entity do not receive any U.S. income, make investments nor gain deposit interest from foreign branches of a U.S. bank, then neither is subject to FATCA withholding. However, your bank must monitor and ascertain your status to protect you from any withholding which might be unintentionally applied.
- If I have a joint account, held by a U.S. and a non-U.S. person, is it considered 50% U.S. or 100% U.S.?
A joint account with a U.S. owner is treated as a U.S. account and is fully subject to withholding (where applicable) and being reported on.
- Will any non-U.S. account be reported?
There is no FATCA requirement to report or withhold on accounts classified as non-U.S. accounts.
- Do any withholding or tax collection requirements apply to U.S. accounts?
There is no FATCA requirement to withhold on accounts classified as U.S. accounts, and only reporting obligations apply.
- Will any additional information be requested by banks in order to confirm that certain accounts are non-U.S. accounts?
Only in minor cases will banks request customers who appear to be non-U.S. account holders to provide additional information and documentation.
- If my entity has one U.S. shareholder with a 26% stake in the entity and 3 non-U.S. shareholders holding the remaining 74% stake, how will the entity’s dividend income be reported?
If the U.S. person is revealed as a substantial partner, i.e. as holding more than a 25% stake in the entity, it is only the U.S. stakeholder who will be reported to the U.S. Government. The non-U.S. persons will not be subject to FATCA reporting or withholding. However, if the U.S. person is recalcitrant (does not comply with requests for required FATCA-related documentation), the entity’s account will be classified as a recalcitrant account.