Corporate Law Blog

The Facts on FATCA

On August 19, 2013, the Internal Revenue Service introduced its new registration portal to assist Foreign Financial Institutions ("FFI") as they make efforts to comply with the Foreign Account Tax Compliance Act ("FATCA"). Financial firms (banks, investment funds, and insurance companies) around the world must comply with the law, aimed at keeping US persons from hiding income and assets overseas, or risk serious consequences that could shut them out of financial markets. In recent years, the U.S. government has suspected that U.S. persons are underreporting massive sums of money hidden in offshore accounts.

FATCA was enacted as part of the Hiring Incentives to Restore Employment Act of 2010 ("HIRE"). Under FATCA, FFIs are required to collect, verify, and provide information about their U.S. clients to the IRS. If they fail to do so, they are subject to a 30% withholding tax on U.S. source payments. To assist foreign countries with the Act's reporting requirements, the U.S. Treasury Department developed model Intergovernmental Agreements ("IGAs"). FATCA implementation has been tumultuous, largely because there are foreign governments which have not entered into these IGAs with the U.S. government. To date, the Treasury has signed ten IGAs, and is engaged in ongoing conversations with more than 80 other countries. The Act was scheduled to take effect in January 2014, but the enforcement date has been postponed to July 2014. As of now, the IRS will start collecting firms' customer account information in 2015.

FATCA implementation is set to occur in three phases. The first is implementation of the Act itself, with the collection of information regarding U.S. accountholders in FFIs. Second, FATCA partner countries will enter into bilateral agreements for the purpose of exchanging this information. Last, this information will be transferred to a centralized FATCA database that acts as the central repository for offshore account information for all countries that are members of the Organization for Economic Co-Operation and Development ("OECD").

There has been significant resistance from FFIs, who are opposed to the IRS snooping into their financial affairs and frustrated with FATCA's reporting and compliance requirements. Many FFIs believe that the law turns them into tax collectors and burdens them with a job that the IRS should be handling itself. Some FFIs, faced with the complicated burdens and tax exposure risks, have simply chosen to drop their U.S. clients. Major banks like HSBC, Deutsche Bank, Credit Suisse and Commerzbank are among those that have done so. This, of course, presents a major problem to Americans who conduct business or invest internationally; it is harder to obtain bank accounts, find insurance coverage, and qualify for loans. Expatriates are especially hard hit by institutions that are dropping American clients. Businesses are not exempt, either. Pursuant to FATCA, FFIs are required to report any private foreign corporation, business, or partnership in which a U.S. citizen is a ten percent or greater shareholder. A foreseeable consequence of the law is that foreigners become hesitant to do business with U.S. citizens because FATCA could expose sensitive account information and compel tax investigations.

Curbing tax evasion is a worthy goal, but FATCA comes at an expense to the law-abiding Americans citizens, expatriates, and businesses that engage in financial transactions overseas. Whether it will be a successful endeavor remains to be seen, but you can be sure that the side effects of it are already being felt by many.

James H. Frazier, III is the Managing Member of the firm, a position he has held for over 18 years. Mr. Frazier's practice focuses on real estate, bankruptcy, mergers and acquisitions and general corporate practice with special emphasis on mineral and energy law. He can be reached at jfrazier@mcbrayerfirm.com or (859) 231-8780, ext. 1303.