From the June 2011 issue of Treasury & Risk magazine

FATCA Changes Ahead

Beginning in 2013, the new law affects processes for payments to non-U.S. entities, but guidance is still evolving

Finance executives busy with the many ramifications of Dodd-Frank see more potential problems looming with the Foreign Account Tax Compliance Act (FATCA). When FATCA goes into effect in 2013, it will require foreign financial institutions (FFIs) to provide much more information on payments for activities that originate in the U.S. and could subject such institutions to a 30% U.S. withholding tax on those payments. The most direct issue for U.S. companies is how FATCA will change processes and documentation for their payments to non-U.S. entities, such as directors' fees paid to foreign board members who attend board meetings in the U.S., or dividends and royalties to a foreign parent company. There is also the issue of whether non-U.S. entities owned by a U.S. company are considered FFIs.

Companies “need to begin to identify whether they make payments to non-U.S. businesses that would potentially be subject to FATCA’s withholding tax and whether their subsidiaries qualify as foreign financial institutions,” says Jonathan Sambur, a lawyer at Mayer Brown. The definition of an FFI has been dramatically expanded to include hedge funds, private equity funds, certain insurance companies and other collective investment entities.

“One thing that would be significant is if vendor payments are included,” says Laurie Hatten-Boyd, a principal in KPMG’s national tax practice. “The initial joint report of the U.S. Treasury and IRS indicated that they would exclude treasury payments for sale of goods, service and use of property―or royalty payments. But then the first guidance mentioned an exclusion on the sale of goods and performance of services but not on use of property.” This leaves open the possibility that use of property may not be excluded from the final guidance.

There’s also the question of whether the rules will affect the way overseas financial institutions deal with U.S. accounts.

Should complying with FATCA prove onerous, there is a risk that overseas banks will simply stop offering accounts to U.S. businesses, assuming anti-discrimination laws don’t come into play, says Avrohom Gelber, a partner at the law firm Clifford Chance.

Some smaller private banks in countries where anti-discrimination laws are not an issue no longer deal with U.S. companies, Gelber says.

Companies will need to discuss FATCA’s impact with their global banks, but few banks are making decisions yet. Big banks or those with a significant U.S. customer base are unlikely to shun U.S. accounts.

The new rules could also make it more complicated for U.S. companies to sell stock and debt to international investors.

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