The US Department of Treasury and the IRS have issued sweeping proposed regulations implementing information reporting and withholding tax provisions for foreign financial institutions (FFIs). Although the proposed regs are targeted at FFIs, they drive home the need for individual taxpayers with foreign accounts to be vigilant about compliance with their own reporting obligations.
Late last year, the IRS released a new form (Form 8938) for individual taxpayers to report foreign financial assets for the 2011 tax year. The filing requirement is part of the Foreign Asset Tax Compliance Act (FATCA), which was enacted in 2010. The law is intended to improve tax compliance by US taxpayers who hold offshore financial accounts.
FATCA also requires FFIs to report to the IRS certain information about the financial accounts held by US taxpayers or foreign entities in which US taxpayers hold a substantial ownership interest. FFIs that fail to provide the required information face significant US tax penalties.
For each account identified as being held by one or more US persons or US-owned foreign entities, an FFI generally must report the:
The term "US persons" includes citizens, residents and entities created or organized in the United States or under the laws of the United States, as well as estates formed under those laws. Foreign trusts are considered US persons to the extent that the US person or persons control "substantial decisions" of the trust.
Since the passage of FATCA, many FFIs expressed concern about the potential compliance burdens. The proposed regulations—which detail a step-by-step process for US account identification, information reporting and tax withholding—appear to have incorporated some of these FFIs’ suggestions for easing the burdens.
The proposed regulations require an FFI to enter into an agreement with the IRS to:
The proposed regulations would also:
Reduce the administrative burden of identifying US accounts. The regulations base the required degree of due diligence for an account on its value and risk profile. They also, in many cases, allow FFIs to rely on information the institutions already collect, such as that obtained during customer intake procedures to comply with their anti–money-laundering obligations.
Expand the categories of "deemed-compliant." Certain categories of FFIs are deemed to comply with FATCA without entering into an agreement with the IRS. The expansion is intended to focus the application of FATCA’s requirements on financial institutions that provide services to the global investment community.
Phase in reporting and withholding obligations over an extended transition period, culminating in 2017. Under the proposed regs, FFIs would have to report the identities, account balances and other information on US accounts in 2014 and 2015 (for the 2013 and 2014 calendar years). Beginning in 2016 (for 2015), FFIs must also report income associated with US accounts. By 2017 (for 2016), FFIs would have to supply full reports, including gross proceeds from broker transactions.
In December 2012, The US Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) announced the fourth in a series of deadline extensions for certain required filings in relation to foreign assets. FinCEN Notice 2012-2 extends the filing date for some filers of Form TD F 90-22.1, "Report of Foreign Bank and Financial Accounts (FBAR)," from June 30, 2013, to June 30, 2014.
One of the primary concerns expressed by FFIs before the release of the proposed regs involved the role of local secrecy laws. Some FFIs worried that providing the information required by FATCA directly to the IRS would necessarily require violations of their local banking secrecy laws.
To prevent such issues, the Treasury Department and the IRS issued a joint statement with several other governments on the same day the proposed regs were released. The statement—joined by the governments of France, Germany, Italy, Spain and the United Kingdom—outlines a cross-border regulatory system.
Under the system, FFIs will report the required information to their respective governments, which will then share the information with the IRS pursuant to existing bilateral income tax treaties. This framework will serve as a model for future agreements between the United States and other countries. That means more FFIs will be reporting information on US-held accounts in the future.
FATCA requires certain US taxpayers holding foreign financial assets with an aggregate value that exceeds $50,000 to report certain information about those assets on Form 8938, along with their annual tax returns, beginning with the 2011 tax year. As FFIs increasingly report the information, the likelihood of being tripped up by neglecting to file Form 8938 will become greater, as will the likelihood of incurring a costly penalty.
Failure to report foreign financial assets on Form 8938 will result in a penalty of $10,000, with an additional penalty of up to $50,000 for continued failure to file after receiving IRS notification to file. A 40% penalty on any understatement of tax attributable to nondisclosed foreign financial assets can also be imposed.
Taxpayers are also required to file Form TD F 90-22.1, Report of Foreign Bank and Financial Accounts (FBAR), with the IRS if:
The FBAR must be received by the IRS on or before June 30 of the year following the calendar year being reported.
If you hold offshore financial accounts, it’s increasingly critical that you properly report them to the IRS. The proposed FATCA regulations will bring an increased level of scrutiny of your foreign assets. To ensure you’re in compliance, or if you have questions regarding FATCA regulations, please contact your Baker Tilly advisor or send an e-mail to firstname.lastname@example.org.