New FATCA FAQ on Trustee Registration increases to 15 added this month
Posted by William Byrnes on May 13, 2014
On May 13, 2014 the IRS has released a new FATCA FAQ: How do Trustees of Trustee-Documented Trusts register? This FAQ adds to the 10 new ones included April 24th and the 4 added May 2nd. See below for the date-annotated FAQs by topic, followed by the date-annotated by question. Link within this Blog for my other analysis of FATCA updates.
Qualified Intermediaries/Withholding Foreign Partnerships/Withholding Foreign Trusts <– 2 new FAQs on April 24 (see >April 24< update)
IGA Registration <– 1 new FAQs on April 24 (see >April 24< update)
Expanded Affiliated Groups <– 2 new FAQs on April 24 (see >April 24< update)
Responsible Officers and Points of Contact <– 2 new FAQs May 2 (see >May 2nd< update)
Registration Update <– 1 new questions May 13 (see below), <– 1 new FAQ May 2 (see >May 2nd< update)
Branch/Disregarded Entity <– 1 new FAQ May 2 (see >May 2nd< update)
General Compliance <– 5 new FAQs on April 24 (see >April 24< update)
Qualified Intermediaries/Withholding Foreign Partnerships/Withholding Foreign Trusts
| # | Questions | Answers |
| Q1 | How does a Financial Institution that is not currently a Qualified Intermediary (“QI”), a Withholding Foreign Partnership (“WP”), or a Withholding Foreign Trust (“WT”) register to become one? | The process to become a QI, WP or WT has not been modified by the provisions of FATCA.The application for Qualified Intermediary status can be found here: QI ApplicationInformation on acquiring Withholding Foreign Partnership, or Withholding Foreign Trust status can be found here: WP/WT Application |
| Q2 | How do FIs that are currently QIs, WPs and WTs renew their agreements? | Existing QIs, WPs and WTs are required to renew their QI agreements through the FATCA registration website as part of their FATCA registration process.All QI, WP, or WT agreements that would otherwise expire on December 31, 2013 will be automatically extended until June 30, 2014. (Notice 2013-43; 2013-31 IRB 113). |
| Q3 | I am not currently a QI/WP/WT. Can I use the LB&I registration portal to register for FATCA and become a new QI/WP/WT? | QI/WP /WT status can only obtained by completing and submitting a Form 14345 (“QI Intermediary Application”) and Form SS-4 (“Application for Employer Identification Number”) directly to the QI Program. Interested QIs/WPs/WT should submit the required paperwork to the QI program and separately use the FATCA registration portal to obtain a GIIN for FATCA purposes. FFIs can not become a new QI/WP/WT through the FATCA portal.Applications for QI/WP/WT status can be made to:IRS-Foreign Intermediary Program Attn: QI/WP/WT Applications 290 Broadway, 12th floor New York City, New York 10007Note: Form 14345 (“QI Intermediary Application”) should be used for WPs and WTs in addition to QIs. |
| Q4 | Must an FI become a QI/WP/WT in order to register under FATCA? | An FI is not required to obtain QI/WP or WT status to register under FATCA. If at the time of FATCA registration, the FI does not have in effect a withholding agreement with the IRS to be treated as a QI, WP or WT, the FI will indicate “Not applicable” in box 6 and will continue with the registration process. |
| Q5 | If an FFI has a QI/WP/WT agreement in place, does the Responsible Party for purposes of the QI/WP/WT Agreement also have to the serve as the FFI’s Responsible Officer? (see >April 24< update) | No, the FFI’s Responsible Party for purposes of a QI/WP/WT Agreement does not have to be the Responsible Officer chosen by the FFI for purposes of certification under the regulations or for FATCA Registration purposes. |
| Q6 | If a member of the Expanded Affiliated Group is a Qualified Intermediary/Withholding Trust/Withholding Partnership, does the Lead Financial Institution renew the Qualified Intermediary/Withholding Trust/Withholding Partnership agreement on behalf of the member or does the member renew its own agreement? (see >April 24< update) | Each Member FI with a Qualified Intermediary/Withholding Trust/Withholding Partnership (“QI/WP/WT”) agreement will renew its own agreement on the registration system. When a Member is completing its registration it will be asked about whether it maintains and seeks to renew a QI/WP/WT agreement with the Service. If the Member indicates it has one of these agreements and would like to renew the agreement, the Member will do so in Part 3 of the registration system in addition to claiming status as a participating FFI or registered-deemed compliant FFI (and obtaining its required GIINs). |
IGA Registration
| # | Questions | Answers |
| Q1 | Please provide a link that lists the jurisdictions treated as having in effect a Model 1 or Model 2 IGA. | The U.S. Department of Treasury’s list of jurisdictions that are treated as having an intergovernmental agreement in effect can be found by clicking on the following link: IGA LIST |
| Q2 | How do Foreign Financial Institutions in Model 1 jurisdictions register on the FATCA registration website? | Financial Institutions that are treated as Reporting Financial Institutions under a Model 1 IGA (see the list of jurisdictions treated as having an IGA in effect at IGA LIST) should register as Registered Deemed-Compliant Foreign Financial Institutions.More information on registration can be found in the FATCA Registration Online User Guide:User Guide Link (See Section 2.4 “Special Rules for Registration”) |
| Q3 | How do Foreign Financial Institutions in Model 2 jurisdictions register on the FATCA registration website? | Financial Institutions that are treated as Reporting Financial Institutions under a Model 2 IGA (see the list of jurisdictions treated as having an IGA in effect at IGA LIST) should register as Participating Foreign Financial Institutions.More information on registration can be found in the FATCA Registration Online User Guide:User Guide Link (See Section 2.4 “Special Rules for Registration”) |
| Q4 | We are an FFI in a country that has not signed an IGA, and the local laws of our country do not allow us to report U.S. accounts or withhold tax. What is our FATCA classification? | Unless the Treasury website provides that your country is treated as having an IGA in effect, then, because of its local law restrictions, this FFI should register as a Limited FFI provided it meets the definition shown directly below. See FATCA – Archive for a list of countries treated as having an IGA in effect.A Limited FFI means an FFI that, due to local law restrictions, cannot comply with the terms of an FFI Agreement, or otherwise be treated as a PFFI or RDCFFI, and that is agreeing to satisfy certain obligations for its treatment as a Limited FFI. |
| Q5 | In a Model 1 IGA jurisdiction, does the FFI need to fill out Question 10 about Responsible Officers? (see >April 24< update) | Yes, if an FFI treated as a reporting Model 1 FFI wishes to have a GIIN, a Responsible Officer must be designated in Part 1, line 10 of Form 8957. Please see the FAQs on Responsible Officers for further information. |
Expanded Affiliated Groups
| # | Questions | Answers |
| Q1 | For registration purposes, can an EAG with a Lead FI and 2 Member FIs be divided into: (1) a group with a Lead FI and a member FI, and (2) a member FI that will register as a Single FI? | Yes. An EAG may organize itself into subgroups, so long as all entities with a registration requirement are registered. An FI that acts as a Compliance FI for any members of the EAG is, however, required to register each such member as would a Lead FI for such members. |
| Q2 | What is required for an entity to be a Lead FI? | A Lead FI means a USFI, FFI, or a Compliance FI that will initiate the FATCA Registration process for each of its Member FIs that is a PFFI, RDCFFI, or Limited FFI and that is authorized to carry out most aspects of its Members’ FATCA Registrations. A Lead FI is not required to act as a Lead FI for all Member FIs within an EAG. Thus, an EAG may include more than one Lead FI that will carry out FATCA Registration for a group of its Member FIs. A Lead FI will be provided the rights to manage the online account for its Member FIs. However, an FFI seeking to act as a Lead FI cannot have Limited FFI status in its country of residence. See Rev. Proc. 2014-13 to review the FFI agreement for other requirements of a Lead FI that is also a participating FFI. |
| Q3 | Can a Member FI complete its FATCA registration and obtain a GIIN if the Lead FI for that Member FI has not yet registered under FATCA? (see >April 24< update) | No, a Member FI can only register after its Lead FI has registered. When the Member FI does register, it should indicate in Part 1, line 1, that it is a member of an expanded affiliated group.In Part 2 of the Lead FI’s registration, the Lead FI will add basic identifying information for each Member, and the system will create the Member FATCA accounts. Each Member FI will then be required to log into the system and complete its registration. |
| Q4 | Is a limited FFI who is a member of an Expanded Affiliated Group subject to Chapter 4 withholding? (see >April 24< update) | Yes. A limited FFI (regardless of whether it is a member of an Expanded Affiliated Group) must identify itself to withholding agents as a nonparticipating FFI and, as a result, is subject to Chapter 4 withholding. Thus, while limited FFIs are generally required to register, they will not be issued GIINs. |
Sponsoring/Sponsored Entities
| # | Questions | Answers |
| Q1 | We are a Sponsoring Entity, and we would like to register our Sponsored Entities. How do we register our Sponsored Entities? | The Sponsoring Entity that agrees to perform the due diligence, withholding, and reporting obligations of one or more Sponsored Entities pursuant to Treas. Reg. §1.1471-5(f)(1)(i)(F) should register with the IRS via the FATCA registration website to be treated as a Sponsoring Entity. To allow a Sponsoring Entity to register its Sponsored Entities with the IRS, and, as previewed in Notice 2013-69, the IRS is developing a streamlined process for Sponsoring Entities to register Sponsored Entities on the FATCA registration website. Additional information about this process will be provided by the IRS at a later date.While a Sponsoring Entity is required to register its Sponsored Entities for those entities to obtain GIINs, the temporary and proposed regulations provide a transitional rule that, for payments prior to January 1, 2016, permit a Sponsored Entity to provide the GIIN of its Sponsoring Entity on withholding certificates if it has not yet obtained a GIIN. Thus, a Sponsored Entity does not need to provide its own GIIN until January 1, 2016 and is not required to register before that date. |
Responsible Officers and Points of Contact
| # | Questions | Answers |
| Q1 | What is a Point Of Contact (POC)? | The Responsible Officer listed on line 10 of Form 8957 (or the online registration system) can authorize a POC to receive FATCA-related information regarding the FI, and to take other FATCA-related actions on behalf of the FI. While the POC must be an individual, the POC does not need to be an employee of the FI. For example, suppose that John Smith, Partner of X Law Firm, has been retained and been given the authority to help complete and submit the FATCA Registration on behalf of an FI. John Smith should be identified as the POC, and in the Business Title field for this POC, it should state Partner of X Law Firm. |
| Q2 | Is the Responsible Officer required to be the same person for all lines on Form 8957 or the online registration (“FATCA Registration”)? | No, it is not required that the Responsible Officer (“RO”) be the same person for all lines on Form 8957 or the online registration. It is possible, however, that the same person will have the required capacity to serve as the RO for all FATCA Registration purposes.The term “RO” is used in several places in the FATCA Registration process. In determining an appropriate RO for each circumstance, the Financial Institution (“FI”) or direct reporting NFFE should review the capacity requirements and select an individual who meets those requirements. This will be a facts and circumstances determination.Please note that the responsible officer used for registration purposes may differ from the certifying responsible officer of an FFI referenced in Treasury Regulation §1.1471-1(b)(116). (See, however, below regarding “Delegation of RO Duties.”)Below is a description of the required RO capacity per line:
Part 1, Question 10 (FATCA RO for the Financial Institution) Language from the Form 8957 Instructions and the FATCA Online Registration User Guide specifies that the RO for question 10 purposes is a person authorized under applicable local law to establish the statuses of the entity’s home office and branches as indicated on the registration form. (See FAQ below for what it means to “establish the FATCA statuses” of the FI’s home office and branches or direct reporting NFFE.) Part 1, Question 11b (Point of Contact authorization) The RO identified in question 11b must be an individual who is authorized under local law to consent on behalf of the FI or direct reporting NFFE (“an authorizing individual”) to the disclosure of FATCA-related tax information to third parties. By listing one or more Points of Contact (each, a “POC”) in question 11b and selecting “Yes” in question 11a, the authorizing individual identified at the end of question 11b (to the right of the checkbox) is providing the IRS with written authorization to release the entity’s FATCA-related tax information to the POC. This authorization specifically includes authorization for the POC to complete the FATCA Registration (except for Part 4), to take other FATCA-related actions, and to obtain access to the FI’s (or direct reporting NFFE’s) tax information. Once the authorization is granted, it is effective until revoked by either the POC or by an authorizing individual of the FI or direct reporting NFFE. Part 4 The authority required for an individual to be an RO for purposes of Part 4 is substantially similar to the authority required for RO status under Treas. Reg. § 1.1471-1(b)(116). The RO designated in Part 4 must be an individual with authority under local law to submit the information provided on behalf of the FI or direct reporting NFFE. In the case of FIs or FI branches not governed by a Model 1 IGA, this individual must also have authority under local law to certify that the FI meets the requirements applicable to the FI status or statuses identified on the registration form. This individual must be able to certify, to the best of his or her knowledge, that the information provided in the FI’s or direct reporting NFFE’s registration is accurate and complete. In the case of an FI, the individual must be able to certify that the FI meets the requirements applicable to the status(es) identified in the FI’s registration. In the case of a direct reporting NFFE, the individual must be able to certify that the direct reporting NFFE meets the requirements of a direct reporting NFFE under Treas. Reg. § 1.1472-1(c)(3). An RO (as defined for purposes of Part 4) can delegate authorization to complete Part 4 by signing a Form 2848 “Power of Attorney Form and Declaration of Representative” or other similar form or document (including an applicable form or document under local law giving the agent the authorization to provide the information required for the FATCA Registration). Note: While the certification in Part 4 of the online registration does not include the term “responsible officer,” the FATCA Online Registration User Guide provides that the individual designated in Part 4 must have substantially the same authority as the RO as defined for purposes of Form 8957, Part 4. Delegation of RO Duties While the ROs for purposes of Question 10, Question 11b, and Part 4 of the FATCA Registration may be different individuals, in practice it will generally be the same individual (or his/her delegate)). The regulatory RO is responsible for establishing and overseeing the FFI’s compliance program. The regulatory RO may, but does not necessarily have to, be the registration RO for purposes of 1) ascertaining and completing the chapter 4 statuses in the registration process; 2) receiving the GIIN and otherwise interacting with the IRS in the registration process; and 3) making the Part 4 undertakings. Alternatively, the regulatory RO, or the FFI (through another individual with sufficient authority), may delegate each of these registration roles to one or more persons pursuant to a delegation of authority (such as a Power of Attorney) that confers the particular registration responsibility or responsibilities to such delegate(s). The scope of the delegation, and the delegate’s exercise of its delegated authority within such scope, will limit the scope of the potential liability of the delegate under the rules of agency law , to the extent applicable. The ultimate principal, whether that is the regulatory RO or the FFI, remains fully responsible in accordance with the terms and conditions reflected in the regulations, and other administrative guidance to the extent applicable under FATCA, the regulations. |
| Q3 | The Instructions for Form 8957 state that for purposes of Part 1, question 10, “. . . RO means the person authorized under applicable local law to establish the statuses of the FI’s home office and branches as indicated on the registration form.” What does it mean for an RO to have the authority to “establish the statuses of the FI’s home office and branches as indicated on the registration form”? | To have the authority to “establish the statuses” for purposes of question 10, an RO must have the authority to act on behalf of the FI to represent the FATCA status(es) of the FI to the IRS as part of the registration process. This RO must also have the authority under local law to designate additional POCs. |
| Q4 | My FI plans on employing an outside organization (or individual) solely for the purpose of assisting with the registration process. Once registration is complete, or shortly thereafter, my FI intends to discontinue its relationship with this organization. Is this permissible under the FATCA registration system? How should my FI use the registration system to identify this relationship? | Yes, the FI or direct reporting NFFE may employ an outside organization to assist with FATCA registration and discontinue the relationship with the outside organization once registration is complete. As part of the registration process, an FI or direct reporting NFFE may appoint up to five POCs who are authorized to take certain FATCA-related actions on behalf of the entity, including the ability to complete all parts of the FATCA Registration (except for Part 4), to take other appropriate or helpful FATCA-related actions, and to obtain access to the entity’s FATCA-related tax information. The POC authorization must be made by an RO within the meaning of Part 1, question 10. Part 4 must be completed by the RO or a duly authorized agent of the RO. (See FAQ 1 for a discussion of the process for delegating authorization to complete Part 4.)Once the services of a POC are no longer needed, the RO may log into the online FATCA account and delete the POC. This process revokes the POC’s authorization. At this point, the Responsible Officer can input a new POC, or leave this field blank if they no longer wish to have any POC other than the RO listed on Line 10.If a third-party adviser that is an entity is retained to help the FI or direct reporting NFFE complete its FATCA registration process, the name of the third-party individual adviser that will help complete the FATCA registration process should be entered as a POC in Part 1, question 11b, and the “Business Title” field for that individual POC should be completed by inserting the name of the entity and the POC’s affiliation with the entity. For example, suppose that John Smith, Partner of X Law Firm, has been retained and been given the authority to help complete the FATCA Registration on behalf of FI Y. John Smith should be identified as the POC, and in the Business Title field for this POC, it should state Partner of X Law Firm. |
| Q5 | For each of the following FATCA classifications (i.e. Participating Foreign Financial Institution “PFFI”, PFFI that elects to be part of a consolidated compliance program, Registered Deemed-Compliant Foreign Financial Institution “RDCFFI”, Reporting Model 1 FFI, Limited FFI and US Financial Institution “USFI”) what type of individual may serve as a Responsible Officer for purposes of Part 1, Question 10 of the FATCA Registration? (see >May 2nd< update) | With respect to a PFFI, an RO is an officer of the FFI (or an officer of any Member FI that is a PFFI, Reporting Model 1 FFI or Reporting Model 2 FFI) with sufficient authority to fulfill the duties of a Responsible Officer described in a FFI Agreement.With respect to a PFFI that elects to be part of a consolidated compliance program, an RO is an officer of the Compliance FI with sufficient authority to fulfill the duties of a Responsible Officer described in the FFI Agreement on behalf of each FFI in the compliance group (regardless of whether the FFI is a Limited FFI or treated as a Reporting Model 1 FFI or Reporting Model 2 FFI).With respect to a RDCFFI, other than a RDCFFI that is a Reporting Model 1 FFI, an RO is an officer of the FI (or an officer of any Member FFI that is a PFFI, Reporting Model 1 FFI, or Reporting Model 2 FFI) with sufficient authority to ensure that the FFI meets the applicable requirements to be treated as a RDCFFI.With respect to a Reporting Model 1 FFI, an RO is any individual specified under local law to register and obtain a GIIN on behalf of the FFI. If, however, the Reporting Model 1 FFI operates any branches outside of a Model 1 IGA jurisdiction, then the RO identified must be an individual who can satisfy the requirements under the laws of the Model 1 IGA jurisdiction and the requirements relevant to the registration type selected for each of its non-Model 1 IGA branches.
With respect to a Limited FFI, an RO is an officer of the Limited FFI (or an officer of any Member FI that is a PFFI, Reporting Model 1 FFI, or Reporting Model 2 FFI) with sufficient authority to ensure that the FI meets the applicable requirements to be treated as a Limited FFI. With respect to a USFI that is registering as a “Lead FI”, an RO is any officer of the FI (or an officer of any Member FI) with sufficient authority to register its Member FIs and to manage the online FATCA accounts for such members. |
| Q6 | (see >May 2nd< update)Part 4 of the online registration system* states:By checking this box, I, _________, [(the responsible officer or delegate thereof (herein collectively referred to as the “RO”)], certify that, to the best of my knowledge, the information submitted above is accurate and complete and I am authorized to agree that the Financial Institution (including its branches, if any) will comply with its FATCA obligations in accordance with the terms and conditions reflected in regulations, intergovernmental agreements, and other administrative guidance to the extent applicable to the Financial Institution based on its status in each jurisdiction in which it operates.*Note: Part 4 of Form 8957 contains a substantially similar certification.
Can this statement be broken down into two declarations of the RO, as follows? (i) The RO certifies that, to the best of its knowledge, the information submitted above is accurate and complete. (ii) The RO agrees that the FI (including its branches, if any) will comply with its FATCA obligations in accordance with the terms and conditions reflected in regulations, intergovernmental agreements, and other administrative guidance to the extent applicable to the FI based on its status in each jurisdiction in which it operates. |
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| Does the first declaration above mean that the RO certifies that, to the best of its knowledge, the FI meets the requirements of its claimed status? | ||
| Does the second declaration above apply to an FI treated as a reporting Model 2 FFI? | ||
| Does the second declaration above (relating to a Participating FFI) require the signing party to ensure that the FFI and its member FFIs (including its branches, if any) comply with its respective obligations under the terms of its FFI Agreement or any applicable intergovernmental agreement and any such applicable local law? | The second declaration requires the signing party to be able to certify that, to the best of the signing party’s knowledge at the time the FATCA registration is signed, the FI and its member FFIs intend to comply with their respective FATCA obligations.A Participating FFI will have its certifying responsible officer (as defined in Treasury Regulation §1.1471-1(b)(116)) periodically certify to the IRS regarding the FFI’s compliance with its FFI agreement. As noted in FAQ 1, the RO identified in Part 4 will normally be an individual with sufficient authority to be eligible for RO status under Treas. Reg. § 1.1471-1(b)(116). (See, however, above regarding “Delegation of RO Duties.”) | |
| How do the certifications in Part 4 apply to FIs treated as reporting Model 1 FFIs? | The first declaration above applies to FIs treated as reporting Model 1 FFIs and, as such, the RO of an FI treated as a reporting Model 1 FFI certifies that, to the best of the RO’s knowledge, the information submitted as part of the FATCA Registration process is accurate and complete. The second declaration, however, has limited applicability to FIs treated as reporting Model 1 FFIs because the FI does not have ongoing FATCA compliance obligations directly with the IRS. Instead, the compliance and reporting obligations of an FI treated as a reporting Model 1 FFI are to its local authority. However, a reporting Model 1 FFI that has branches (as identified in Part 1, line 9 of Form 8957) that are located outside of a Model 1 IGA jurisdiction will also agree to the terms applicable to the statuses of such branches. Additionally, an FI (including an FI in a Model 1 IGA jurisdiction) that is also registering to renew its QI, WP, or WT Agreement will agree to the terms of such renewed QI, WP, or WT Agreements by making the second declaration. |
Financial Institutions
| # | Questions | Answers |
| Q1 | Are U.S. Financial Institutions (USFIs) required to register under FATCA? If so, under what circumstances would a USFI register? | A USFI is generally not required to register under FATCA. However, a USFI will need to register if the USFI chooses to become a Lead FI and/or a Sponsoring Entity or seeks to maintain and renew the QI status of a foreign branch that is a QI. Furthermore, a USFI with a foreign branch that is a reporting Model 1 FFI is required to register on behalf of its foreign branches (and should identify each such branch when registering). A USFI with non-QI branch operations in a Model 2 jurisdiction or in a non-IGA jurisdiction is not required to register with the IRS. |
| Q2 | Is a Foreign Financial Institution (“FFI”) required to obtain an EIN? | If the FFI has a withholding obligation and will be filing Forms 1042 and Forms 1042-S with the Internal Revenue Service, it will be required to have an EIN. Please see publication 515 (“Withholding of Tax on Nonresident Aliens and Foreign Entities”) for further information about U.S. Withholding requirements. See Pub. 515. An FFI is also required to obtain an EIN when it is a QI, WP, or WT (through the application process to obtain any such status) or when the FFI is a participating FFI that elects to report its U.S. accounts on Forms 1099 under Treas. Reg. §1.1471-4(d)(5). |
| How does a FFI apply for a EIN if it does not already have one? | If a FFI does not have an EIN, it may apply for one using Form SS-4 (“Application for Employer Identification Number”) or the online registration system. See Apply-for-an-Employer-Identification-Number-(EIN)-Onlinefor more information. |
Exempt Beneficial Owners
| # | Questions | Answers |
| Q1 | We are a foreign central bank of issue. Will we be subject to FATCA withholding if we do not register? | You will generally be exempt from FATCA Registration and withholding if you meet the requirements to be treated as an exempt beneficial owner (e.g. as a foreign central bank of issue described in Treas. Reg. § 1.1471-6(d), as a controlled entity of a foreign government under Treas. Reg. §1.1471-6(b)(2), or as an entity treated as either of the foregoing under an applicable IGA). A withholding agent is not required to withhold on a withholdable payment to the extent that the withholding agent can reliably associate the payment with documentation to determine the portion of the payment that is allocable to an exempt beneficial owner in accordance with the regulations. However, an exempt beneficial owner may be subject to withholding on payments derived from the type of commercial activity described in Treas. Reg. § 1.1471-6(h). |
| Q2 | We are a foreign pension plan. Will we be subject to FATCA withholding if we do not register? | You will be exempt from FATCA Registration and withholding if you meet the requirements to be treated as a retirement fund described in Treas. Reg. § 1.1471-6(f), or under an applicable IGA. A withholding agent is not required to withhold on a withholdable payment to the extent that the withholding agent can reliably associate the payment with documentation to determine the portion of the payment that is allocable to an exempt beneficial owner (in this case, a retirement fund) in accordance with the regulations. |
NFFEs
| # | Questions | Answers |
| Q1 | How should an entity seeking the FATCA status of “direct reporting NFFE” (other than a sponsored direct reporting NFFE) register for this status to obtain a GIIN in order to avoid FATCA withholding? | A direct reporting NFFE is eligible to register for this status and when registering should complete an online registration (or, alternatively, submit a paper Form 8957) based on the instructions provided in this FAQ. For registrations occurring in years after 2014, it is anticipated that both the online registration user guide and the Instructions for Form 8957 will be updated to incorporate this information.In general, for purposes of completing the registration of a direct reporting NFFE, substitute the words “direct reporting NFFE” for the words “financial institution” wherever they appear in the online registration user guide (or in the Instructions for Form 8957). Unless specific instructions for a registration question are described here in this FAQ, please use the generally applicable instructions provided in the online registration user guide (or in the Instructions for Form 8957).Part 1Question 1 – – Select “Single”.
Question 4 – – Select “None of the above”. Question 6 – – Select “Not applicable”. Question 7 – – Select “No”. (If using the portal online, selecting “no” will automatically skip Questions 8 and 9.) Question 8 – – Skip this question (which relates to branches) Question 9 – – Skip all parts (a) through (c) of this question (which relate to branches). Question 10 – – Enter the information of the individual who will be responsible for ensuring that the direct reporting NFFE meets its FATCA reporting obligations and will act as a point of contact with the IRS in connection with its status as a direct reporting NFFE. Part 2 – – It is not necessary for a direct reporting NFFE to complete this section. (If using the portal online, selecting Single in question 1 will automatically skip Part 2.) Part 3 – – It is not necessary for a direct reporting NFFE to complete this section. (If using the portal online, selecting “Not Applicable” in question 6 will automatically skip Part 3.) Part 4 – – The individual who completes this part must have the authority to provide the certification. Direct reporting NFFE QIs/WPs/WTs should renew their agreements through the existing traditional paper process. Instructions can be found at the following link (Question IX), see:Qualified-Intermediary-Frequently-Asked-Questions |
| Q2 | How should a sponsor of a sponsored direct reporting NFFE register itself for this status and obtain a GIIN? | A sponsor of a sponsored direct reporting NFFE is a sponsoring entity (see Treas. Reg. § 1.1471-1T(b)(124)) and should complete an online registration (or, alternatively, submit a paper Form 8957) as a sponsoring entity, based on the instructions provided in this FAQ. A sponsoring entity need only complete one registration to act as the sponsor for both sponsored FFIs and sponsored direct reporting NFFEs. For registrations occurring in years after 2014, it is anticipated that both the online registration user guide and the Instructions for Form 8957 will be updated to incorporate this information, including by incorporating the definition of sponsoring entity provided in Treas. Reg. § 1.1471-1T(b)(124).In general, for purposes of having a sponsor register a sponsored direct reporting NFFE, substitute the words “sponsor of a direct reporting NFFE” for the words “sponsoring entity” wherever they appear in the online registration user guide (or in the Instructions for Form 8957). Unless specific instructions for a registration question are described here in this FAQ, please use the generally applicable instructions provided in the online registration user guide (or in the Instructions for Form 8957).Part 1Question 1 – – Select “Sponsoring Entity”.
Question 4 – – Select “None of the above”. Question 6 – – Select “Not applicable”. Question 7 – – Select “No”. (If using the portal online, selecting “no” will automatically skip Questions 8 and 9) Question 8 – – Skip this question (which relates to branches) Question 9 – – Skip all parts (a) through (c) of this question (which relate to branches). Question 10 – – Enter the information of the individual who will be responsible for ensuring that the direct reporting NFFE meets its FATCA reporting obligations and who will act as a point of contact with the IRS in connection with its obligations as a sponsoring entity. Part 2 – – It is not necessary for a sponsor of a direct reporting NFFE to complete this section. (If using the portal online, selecting Sponsoring Entity in question 1 will automatically skip Part 2.) Part 3 – – It is not necessary for a sponsor of a direct reporting NFFE to complete this section. (If using the portal online, selecting “Not Applicable” in question 6 will automatically skip Part 3.) Part 4 – – The individual who completes this part must have the authority to provide the certification. |
Registration Update
| # | Questions | Answers |
| Q1 | Why has my registration been put into “Registration Incomplete”? What can I do? | If your registration has been put into Registration Incomplete status, it is because the IRS has identified an issue with your registration. If you are Registration Incomplete status, please review your registration for any of the following errors and update it accordingly:
After you have updated your registration, you must resubmit in order for your registration to be processed. |
| Q2 | For each of the following FATCA classifications (i.e. Participating Foreign Financial Institution “PFFI” for Reporting Model 2 FFI, Registered Deemed Compliant Foreign Financial Institutions “RDCFFI” (for both Model 1 and non-Model 1 FFIs), Sponsoring Entity, Limited FFI or Limited Branch, Renewing QI/WP/WT, US Financial Institution “USFI” treated as a Lead FI and Direct Reporting NFFE) what is the impact of completing Part IV of the FATCA Registration? (see >May 2nd< update) | PFFI Status for Reporting Model 2 FFIReporting Model 2 FFIs are registering to obtain a GIIN, provide authorization for individuals named in Part 1, Line 11 of the FATCA Registration to receive information related to FATCA registration, and to confirm that they will comply with the terms of an FFI Agreement in accordance with the FFI agreement, as modified by any applicable Model 2 IGA.Notwithstanding the paragraph above, Reporting Model 2 FFIs operating branches outside of Model 1 or 2 IGA jurisdictions are agreeing to the terms of an FFI Agreement for such branches, unless the branches are treated as Limited Branches or are U.S. branches that are treated as U.S. persons. Additionally, Reporting Model 2 FFIs requesting renewal of a QI, WP or WT Agreement are entering into the renewed Model QI, WP, or WT Agreements, as applicable.RDCFFI Status for Reporting Model 1 FFI
Reporting Model 1 FFIs are not entering into FFI Agreements via the FATCA registration process. Reporting Model 1 FFIs are registering to obtain a GIIN and to provide authorization for individuals named in Part 1, Line 11 of the FATCA Registration to receive information related to FATCA registration. Notwithstanding the preceding sentence, Reporting Model 1 FFIs operating branches outside of Model 1 or 2 IGA jurisdictions are agreeing to the terms of an FFI Agreement for such branches, unless the branches are treated as Limited Branches. Additionally, Reporting Model 1FFIs requesting renewal of a QI, WP or WT Agreement are entering into such renewed Model QI, WP, or WT Agreements, as applicable. RDCFFI Status for FFI (other than a Reporting Model 1 FFI) An FFI that is registering as an RDCFFI, other than a Reporting Model 1 FFI, is agreeing that it meets the requirements to be treated as an RDCFFI under relevant Treasury Regulations or is agreeing that it meets the requirements to be treated as a RDCFFI pursuant to an applicable Model 2 IGA. Sponsoring Entity Status An entity that is registering as a Sponsoring Entity is agreeing that it will perform the due diligence, reporting and withholding responsibilities of one or more Sponsored FFIs or Sponsored Direct Reporting NFFEs. Limited FFI or Limited Branch Status An FFI that is registering as a Limited FFI is confirming that it will comply with the terms applicable to a Limited FFI. A branch of a PFFI that is registering as a Limited Branch is confirming that it will comply with the terms applicable to a Limited Branch. GIINs will not be issued to a Limited FFI or Limited Branch. Renewing QI/WP/WT An FFI, including a foreign branch of a USFI, requesting renewal of a QI Agreement is agreeing to comply with the relevant terms of the renewed Model QI Agreement with respect to its branches that are identified as operating as a QI. The obligations under the renewed Model QI Agreement are in addition to any obligations imposed on the FFI to be treated as a PFFI, Reporting Model 2 FFI, RDCFFI, or Reporting Model 1 FFI.
An FFI that is applying to renew its WP or WT Agreement is agreeing to comply with the relevant terms of the renewed Model WP or WT Agreement. The obligations under the renewed Model WP or WT Agreement are in addition to any obligations imposed on the FFI to be treated as PFFI, Reporting Model 2 FFI, RDCFFI, or Reporting Model 1 FFI. Additionally, a QI, WP, or WT is also certifying that it has in place and has implemented written policies, procedures, and processes for documenting, withholding, reporting and depositing tax with respect to its chapters 3 and 61 withholding responsibilities under its QI, WP, or WT Agreement. USFI treated as a Lead FI A USFI that is part of an EAG and registering its Members FIs is agreeing to manage the online FATCA account for each such Member FI. Direct Reporting NFFE A direct reporting NFFE is agreeing to comply with the terms and obligations described under Treas. Reg. § 1.1472-1(c)(3). |
| Q3 | How do Trustees of Trustee-Documented Trusts register? | Trustees needing to register Trustee-Documented Trusts (a certified deemed-compliant status for FFIs under the Model 1 and Model 2 IGAs) should use the same procedures Sponsors use to register Sponsored Entities. The trustee should select “Sponsoring Entity” as its FI Type, and select “None of the above” in Part 1, Question 4. More information on how to register a Sponsoring Entity can be found in the FATCA Registration Online User Guide.Please note that if a trustee is required to register itself based on its own applicable status as an FFI, it will do so on a separate registration, and thus will have two separate GIINs, one for such use and another for use in its capacity as a trustee of a Trustee-Documented Trust.The Trustee-Documented Trust itself will not be registered and does not need to obtain a GIIN. |
Branch/Disregarded Entity
| # | Questions | Answers |
| Q1 | How does a disregarded entity (DE) in a Model 1 IGA jurisdiction satisfy its FATCA registration requirements? (see >May 2nd< update) | A DE in a Model 1 IGA jurisdiction must register as an entity separate from its owner in order to be treated as a reporting Model 1 FFI, provided that the DE is treated as a separate entity for purposes of its reporting to the applicable Model 1 jurisdiction. Select either a “Single” FFI or “Member” FFI in Part 1, Question 1 of the FATCA Registration (as appropriate). Select “Registered Deemed-Compliant Financial Institution (including a Reporting Financial Institution under a Model 1 IGA)” in Part 1, Question 4. When the owner of the DE registers on its own behalf, it should not report the DE as a branch. |
| How does a branch in a Model 1 IGA jurisdiction satisfy its FATCA registration requirements? | In general, a branch (as defined in Treas. Reg. § 1.1471-4(e)(2)(ii)) should be registered as a branch of its owner and not as a separate entity. Thus, the branch will be registered by the FI of which the branch is a part (including an appropriate Lead FI or Sponsoring Entity) when that FI completes Part 1 of its own FATCA registration. The online registration user guide provides further instructions on how to register branches. In general, a branch is a unit, business, or office of an FFI that is treated as a branch under the regulatory regime of a country or is otherwise regulated under the laws of such country as separate from other offices, units, or branches of the FI. | |
| How does a branch or a disregarded entity (DE) in a jurisdiction that does not have an IGA, or that is in a Model 2 IGA jurisdiction, satisfy its FATCA registration requirements? | A branch (including a DE) that is in a Model 2 IGA jurisdiction, or a jurisdiction without an IGA, should be registered as a branch of its owner (rather than as a separate entity). As such, the branch will be registered by the FI of which the branch is a part (including an appropriate Lead FI or Sponsoring Entity) when that FI completes Part 1 of its own FATCA registration. The branch will not have a separate registration account, but will be assigned a separate GIIN, if eligible. When the FI completes its FATCA registration and registers its branches by answering Questions 7, 8, and 9, GIINs will be assigned with respect to the registered branches, where appropriate. The online registration user guide provides further instructions on how to register branches. A separate GIIN will be issued to the FI to identify each jurisdiction where it maintains a branch that is participating or registered deemed-compliant.All branches (and, except in Model 1 IGA jurisdictions, disregarded entities) of an FI located in a single jurisdiction are treated as one branch and, as a result, will share a single GIIN. U.S. branches and limited branches are not eligible to receive their own GIINs. A branch of an FFI located in the FFI’s home country will use the GIIN of the FFI. For example, suppose FI W (located in Country X) has one branch in Country X, two branches in Country Y and owns a DE in Country Z. Country Z is a Model 1 IGA jurisdiction. FI W will receive a Country X GIIN. FI W’s Country X branch will use W’s GIIN. The two branches in Country Y will be treated as a single branch, and so FI W will be issued a single Country Y GIIN for these two branches to share. The Country Z DE will register as an entity separate from its owner, in order to be treated as a reporting Model 1 FFI, and will receive its own GIIN. |
General Compliance
| # | Questions | Answers |
| Q1 | How will Certified-Deemed Compliant FFIs, Owner-documented FFIs, or Excepted FFIs certify to U.S. withholding agents that they are not subject to Chapter 4 withholding given that they are not required to register with the IRS? (see >April 24< update) | Certified-Deemed Compliant FFIs, Owner-documented FFIs, and Excepted FFIs will demonstrate their Chapter 4 withholding status to U.S. withholding agents by providing a withholding certificate and documentary evidence that complies with the requirements of Treas. Reg. 1.1471-3(d). |
| Q2 | We are an FFI in a non-IGA country. Will we be subject to Chapter 4 withholding if we do not register with the IRS? (see >April 24< update) | Yes, to the extent that you receive withholdable payments and are not subject to an exemption from the registration requirement. Under FATCA, to avoid being withheld upon, FFIs that are not subject to an exemption from the registration requirement must register with the IRS and agree to report to the IRS certain information about their U.S. accounts, including accounts of certain foreign entities with substantial U.S. owners. An FFI that fails to satisfy its applicable registration requirements will generally be subject to 30% withholding on withholdable payments that it receives.Categories of FFIs that are exempt from registration include:
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| Q3 | What are the consequences of terminating the FFI agreement for a Participating Foreign Financial Institution? (see >April 24< update) | If the FFI agreement is terminated by either the IRS or the FFI pursuant to the termination procedures set forth in Section 12 of the FFI agreement, the FFI will be treated as a nonparticipating FFI and subject to 30% withholding on withholdable payments made after the later of (i) the date of termination of the FFI agreement, or (ii) June 30, 2014, except to the extent that the withholdable payments are exempt from withholding (e.g. under the rules related to grandfathered obligations) or the FFI qualifies for a chapter 4 status other than a nonparticipating FFI (such as a certified deemed-compliant FFI). See Revenue Procedure 2014-13, 2014-3 I.R.B. 419, for the terms of the FFI agreement |
| Q4 | What happens if an FFI is not registered by May 5th, 2014? (see >April 24< update) | As set forth in Announcement 2014-17, released April 2, 2014, to ensure inclusion on the first IRS FFI List (which is expected to first be electronically available on June 2, 2014) prior to the date FATCA withholding goes into effect, an FFI must finalize its registration by May 5, 2014. The regulations generally provide that, in order for withholding not to apply, a withholding agent must obtain an FFI’s GIIN for payments made after June 30, 2014, though it need not confirm that the GIIN appears on the IRS FFI List until 90 days after the FFI provides a withholding certificate or written statement claiming status as a participating FFI or registered deemed-compliant FFI. A special rule, however, provides that a withholding agent does not need to obtain a reporting Model 1 FFI’s GIIN for payments made before January 1, 2015. See Treas. Reg. § 1.1471-3(d)(4)(iv)(A). As a result, while a reporting Model 1 FFI is currently able to register and obtain a GIIN, it will have additional time beyond July 1, 2014, to register and obtain a GIIN in order to ensure that it is included on the IRS FFI list before January 1, 2015. See Announcement 2014-17 for revised FATCA registration deadlines to ensure inclusion on the first FFI List (which is expected to be electronically available on June 2, 2014). |
| Q5 | Are Forms W-8 still required to be renewed by the appropriate beneficial owners? (see >April 24< update) | Generally, a Form W-8BEN will remain in effect for purposes of establishing foreign status for a period starting on the date the form is signed and ending on the last day of the third succeeding calendar year, unless a change in circumstances makes any information on the form incorrect. For example, a Form W-8BEN signed on September 30, 2015, remains valid through December 31, 2018.However, under certain conditions a Form W-8BEN will remain in effect indefinitely until a change of circumstances occurs. To determine the period of validity for Form W-8BEN for purposes of chapter 4, see Treas. Reg. § 1.1471-3(c)(6)(ii). To determine the period of validity for Form W-8BEN for purposes of chapter 3, see Teas. Reg. § 1.1441-1(e)(4)(ii).Withholding certificates and documentary evidence obtained for chapter 3 or chapter 61 purposes that would otherwise expire on December 31, 2013, will not expire before January 1, 2015, unless a change in circumstances occurs that would otherwise render the withholding certificate or documentary evidence incorrect or unreliable.Please note that various Forms in the W-8 series were revised in 2014 to incorporate the certifications required for FATCA purposes and can now be found at the following link: Form & Pubs. See Treas. Reg. § 1.1471-3(c) for rules regarding reliance on a pre-FATCA Form W-8. |
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