Final FATCA rules are issued

BY SALLY P. SCHREIBER, J.D.

The IRS released regulations needed to implement the Foreign Account Tax Compliance Act (FATCA). FATCA, enacted as part of the Hiring Incentives to Restore Employment Act of 2010, P.L. 111-147, requires U.S. withholding agents to withhold tax on certain payments to foreign financial institutions (FFIs) that do not agree to report certain information to the IRS regarding their U.S. accounts and on certain payments to certain nonfinancial foreign entities (NFFEs) that do not provide information on their substantial U.S. owners to withholding agents. FATCA withholding goes into effect July 1, 2014.

Final regulations under FATCA were published in January 2013 (T.D. 9610). Additional regulations were issued in two parts on Feb. 20, 2014. The first part, under Secs. 1471 to 1474 (T.D. 9657), contains more than 50 amendments and clarifications to the earlier regulations, many in response to comments. One significant change is to accommodate direct reporting by certain entities about their substantial U.S. owners to the IRS rather than to withholding agents. Other key changes relate to the treatment of certain special-purpose debt securitization vehicles, the treatment of disregarded entities as branches of FFIs, the definition of an expanded affiliated group, and transition rules for collateral arrangements before 2017.

The second part of the regulations (T.D. 9658) addresses duplication and conflicts of the FATCA reporting and withholding rules with those under chapter 3 of the Code (Secs. 1441 to 1464), with the information-reporting rules under chapter 61 (Secs. 6001 to 6117), and with the backup withholding requirements under Sec. 3406.

  T.D. 9657 and T.D. 9658

By Sally P. Schreiber, J.D., a JofA senior editor.

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