The US issued regulations finalising implementation terms of the Foreign Account Tax Compliance Act, (‘FATCA’). The legislation is intended to help the IRS fight tax evasion by US persons and is designed to encourage a vast range of non-US financial institutions, including banks and trustees, to implement new client identification requirements. Where US persons are identified, FATCA generally requires details of their accounts to be reported to the IRS. Affected organisations opting not to participate can subject themselves and all their clients to 30% gross withholding on US investments.
As a consequence of FATCA, some organisations have opted not to take on new US clients or even to ask long standing clients with US connections to leave. It is a misunderstanding that refusing to take on US clients will allow organizations to avoid FATCA. Under the FATCA regulations all organisations must generally agree to implement FATCA identification procedures on all clients regardless of whether or not they have implemented their own policy with respect to refusing US persons.
During 2012, the US released model intergovermental agreements intended to help all organisations in participating jurisdictions ease their FATCA compliance burdens and, more importantly, avoid violating local laws in sharing client details with the US. A primary focus of the final regulations is coordination of the obligations of affected organisations between the regulations themselves and intergovernmental agreements. Over 50 jurisdictions have agreed or are negotiating agreements with the US, including the UK, Switzerland, BVI, Cayman, Jersey, Guernsey, Isle of Man and New Zealand.
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