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IRS releases draft questions to aid preparation for upcoming FATCA certifications

On its website, IRS has released draft certification questions to help Responsible Officers (ROs) who are preparing to complete upcoming FATCA certifications due this summer.

Background. The Foreign Account Tax Compliance Act (FATCA), included within the Hiring Incentives to Restore Employment Act of 2010 (P.L. 111-147), added Chapter 4 (Code Sec. 1471 through Code Sec. 1474) to the Code. Chapter 4 generally requires withholding agents to withhold a 30% tax on certain payments to a foreign financial institutions (FFI) unless it has entered into an FFI agreement with the U.S. to, among other things, report certain information with respect to U.S. accounts. Withholding can also apply to FFI account holders who refuse to identify themselves as U.S. taxpayers. The FATCA rules are essentially a mechanism to enforce reporting requirements. Chapter 4 also imposes withholding, documentation, and reporting requirements on withholding agents, with respect to certain payments made to certain non-financial foreign entities (NFFEs).

The participating FFI must appoint an RO to oversee the participating FFI’s compliance with the requirements of the FFI agreement. The RO must (either personally or through designated persons) establish a compliance program that includes policies, procedures, and processes sufficient for the participating FFI to satisfy the requirements of the FFI agreement.

The RO is required to make certifications with respect to both the FFI’s compliance with various FATCA requirements (the “periodic certification”) and certain diligence performed for its preexisting accounts. The due date for these certifications is is July 1 following the third full calendar year after the date the entity registered and received a global intermediary identification number (GIIN).

Draft certifications provided. IRS noted on its website that it will be updating the “FATCA Registration Portal” on its website that contains FATCA certifications, but that such will not be available prior to July 2018. For entities that have certifications due by July 1, 2018, any RO that is required to certify will have no less than three months from when the certifications are posted on the FATCA Registration Portal to submit them.

In an effort to assist ROs in preparing to complete the FATCA certifications, IRS is releasing draft versions of the certification questions.

IRS provided five sets of draft certification questions with respect to the certification of preexisting accounts, including certifications of compliance with the due diligence requirements for: (i) preexisting accounts of participating FFIs, (ii) consolidated compliance groups, (iii) registered deemed-compliant FFIs (RDCFFIs)/local FFIs, (iv) RDCFFIs/restricted funds FFIs, and (v) sponsoring entities of sponsored FFIs.

Twelve sets of draft certification questions were provided for periodic certifications, including for: (1) participating FFIs, (2) consolidated compliance groups, (3) RDCFFIs/local FFIs, (4) RDCFFIs/nonreporting members of participating FFI groups, (5) RDCFFIs/qualified collective investment vehicles, (6) RDCFFIs/qualified credit card issuers or servicers, (7) RDCFFIs/restricted funds, (8) sponsoring entities of sponsored FFIs, (9) sponsoring entities of sponsored direct reporting NFFEs, (10) sponsoring entities of sponsored FFIs and sponsored direct reporting NFFEs, (11) trustee documented trusts, and (12) direct reporting NFFEs.

References: For withholdable payments to FFIs and other foreign entities, see Federal Tax Coordinator 2d ¶ O-13070 et seq.; United States Tax Reporter ¶ 14,714 et seq. IRS website,  Draft FATCA Certifications

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