Next phase of FATCA guidance arrives with proposed regulations and announcement of possible intergovernmental approach

Abstract

PurposeThe purpose of this paper is to explain the proposed Foreign Account Tax Compliance Act (FATCA) regulations released on February 8, 2012 by the US Treasury Department and the Internal Revenue Service (IRS).Design/methodology/approachThe paper provides an overview of the changes to prior FATCA guidance in the proposed regulations, including the definition of a foreign financial institution (FFI), due diligence requirements to identify US accounts, procedures to verify compliance, phase‐in information required to be reported, verification procedures, definitions of FFIs that are “deemed” to meet the FATCA requirements, definition of “passthru” payments, explanation of exemptions from withholding related to certain “grandfathered obligations,” temporary relief for FFIs with non‐compliant affiliates, and a proposed intergovernmental approach to FATCA implementation through domestic reporting and reciprocal automatic exchange of information.FindingsThe paper reveals that the FATCA grew out of Congressional concern that US taxpayers were evading taxes by failing to report US‐source income on assets held abroad. The FATCA legislation left many of the details on implementation to the US Treasury and IRS. The intergovernmental framework is not a done deal. The proposed reciprocal, automatic exchange of information would be a sea change from existing US information reporting practices and is sure to be controversial.Originality/valueThe paper provides expert guidance from experienced financial institutions lawyers.