Foreign Account Tax Compliance Act (“FATCA”) … Vehicle Classification Engaged (or holds itself out as being engaged) primarily in the business of Banking Atiit(Foreign Entity

Foreign Account Tax Compliance Act (“FATCA”) Provisions – Investment Vehicles

20 October 2010

Copyright © 2010 Deloitte & Touche LLP. All rights reserved.

AgendaFATCA Overview 3

Investment Vehicles 11

Critical Definitions for Investment Vehicles 14

Classification of Investment Vehicles 24

Account Identification 27

Fund Structures and Issues 30

Passthru Payments 34

Status of FATCA 37

Notice 2010 60 Req est for Comments 39Notice 2010-60 – Request for Comments 39

Q&A 44

Copyright © 2010 Deloitte & Touche LLP. All rights reserved.Copyright © 2010 Deloitte & Touche LLP. All rights reserved.

1As used in this document, “Deloitte” means Deloitte & Touche LLP, which provides audit and advisory services; and Deloitte Tax, LLP, which provides tax advisory services. Please see www.deloitte.com/us/about for a detailed description of the

legal structure of Deloitte LLP and its subsidiaries.

FATCA Overview


FATCA – OverviewFATCA Overview • Requires Foreign financial institutions (FFIs) to provide the U.S.

Treasury with information on certain U.S. persons invested inTreasury with information on certain U.S. persons invested in accounts outside of the U.S.

• FATCA will requires the imposition of a 30% withholding tax on “withholdable” payments made to:– FFIs that do not enter into an agreement with the U.S. Treasury and

– Non-financial foreign entities (NFFEs) that do not disclose substantial g ( )U.S. owners, or certify as to having no such owners

• This new withholding tax applies to U.S. source income, bank deposit interest and gross sales proceeds from U Sdeposit interest and gross sales proceeds from U.S. investments which can produce interest or dividends

• U.S. investments not U.S. investors is the test


• Effective for payments made on or after January 1, 20134

FFIs – DefinitionFFIs Definition• An FFI includes any non-U.S. entity that:

– accepts deposits

– holds financial assets for the account of others or

i il i th b i f i ti t di– engages primarily in the business of investing or trading securities, commodities, partnerships, or any interests in such positions

• This is a very broad definition and includes banks, broker dealers and custodians, insurance companies, pension plans, mutual funds hedge funds and family investment vehiclesmutual funds, hedge funds, and family investment vehicles


5

Agreement with U.S. Treasuryg y1. Obtain information maintained by the FFI to determine which

holders are U.S. accounts

2. Comply with verification and due diligence procedures as required by the U.S. Treasury

3 R t i f ti di “ ifi d U S t ” t th3. Report information regarding “specified U.S. accounts” to the U.S. Treasury on an annual basis

4. Deduct the 30% withholding tax on payments to Recalcitrant g p yAccount Holders, non-participating FFIs, and FFIs electing to “push-down” withholding

5 C l ith t f th IRS f dditi l5. Comply with requests from the IRS for any additional information

6. Where foreign law would prevent reporting obtain a waiver


g p p gand if unable to obtain a waiver close the account

6

FFIs – U.S. Accounts• An FFI must prove that an account holder is not a “specified

United States person” or a “United States owned foreign entity” using information maintained by the FFIusing information maintained by the FFI

• A “specified U.S. person” includes U.S. individuals, trusts, estates, and partnerships, and non-publicly traded corporations

• The following entities are not “specified United States persons”

– A corporation the stock of which is regularly traded on an established securities market or a member of its expandedestablished securities market or a member of its expanded affiliated group,

– A tax-exempt organization or individual retirement plan,

– The U.S. or any State, possession or any wholly-owned agency or instrumentality,

b k d f d d h


– A bank, REIT, RIC and a common trust fund and certain other trusts.

7

FFIs – Annual ReportingFFIs Annual Reporting• A FFI will meet the annual information reporting obligation

under an FFI Agreement by providing the followingunder an FFI Agreement by providing the following information on each U.S. account:– Name, address and TIN of each account holder that is a

specified U.S. person;specified U.S. person;– Name, address and TIN of each substantial U.S. owner of

any account held by a U.S. owned foreign entity;– Account number;Account number;– Account balance or value; and– Gross receipts and withdrawals/payments from the account

I li f l i d i hh ldi FFI l• In lieu of annual reporting and withholding, FFI can elect to provide Full Form 1099 reporting for each specified U.S. person and U.S. owned foreign entity


8

Payments to NFFEsPayments to NFFEs• Non-financial foreign entity (NFFE) includes any foreign entity

that is not an FFI, subject to certain exceptions, j p• Withholding agents will be required to withhold 30% on

withholdable payments to an NFFE unless the NFFE:C tifi t th ithh ldi t th t it h b t ti l– Certifies to the withholding agent that it has no substantial U.S. owners

– Provides the names, addresses and U.S. taxpayer identification numbers of the substantial U.S. owners to the withholding agent to report the information to the IRS, or

– Is a specifically excepted entityp y p y


9

Payments to NFFEsPayments to NFFEs• Substantial U.S. owner includes any U.S. person who owns

directly or indirectly the following:y y g– More than 10% of the stock (either by vote or value) of a

corporationM th 10% f th fit it l i t t i– More than 10% of the profit or capital interest in a partnership

– Any U.S. owner of a grantor trust, or more than 10% of the beneficial interest in a trust

• Special rule for investment vehicles – the ownership interest for a substantial U.S. owner is reduced to zero

• Excepted NFFEs include publicly traded companies, foreign governments, and foreign central banks


10

Investment Vehicles


Investment Vehicles as FFIsInvestment Vehicles as FFIs

• Foreign Entity: Foreign Corporation,Foreign Entity: Foreign Corporation, Partnership or “Business Trust”

• Activity: “is engaged (or holding itself out asActivity: is engaged (or holding itself out as being engaged) primarily in the business of investing, reinvesting, or trading in securities […].”

• No de minimis exception in the statute• U.S. Treasury is given broad authority to

exclude and/or exempt


12

Form of OrganizationForm of Organization

• Corporations and Partnerships can be FFIs– An investment vehicle can be an FFI if it is classified as

either a corporation or partnership for U.S. Federal income tax purposes

– May include business trusts classified as corporations or partnerships

• Ordinary and Investment Trusts can only be NFFEs not O d a y a d es e us s ca o y be s oFFIs – An investment vehicle classified as a “trust” for U.S.

Federal income tax purposes cannot be an FFI because:Federal income tax purposes cannot be an FFI because:• It cannot have objective to carry on business for profit, and it may

not engage in a business, including the “business of investing”• It has beneficiaries, but will not have “associates”


13

Critical Definitions for Investment Vehicles


Business of InvestingBusiness of Investing

• “Engaged primarily in the business of investing” gaged p a y t e bus ess o est gor “Holding itself out as” so engaged– Much lower threshold than “trade or business” under

the Internal Revenue Code– Exists in subchapter M of the Internal Revenue Code

for purposes of defining a Regulated Investmentfor purposes of defining a Regulated Investment Company

– United States Investment Company Act of 1940 d f “b f ” “ l ” ddefines “business of investing”, “primarily”, and “holding itself out” as so engaged

• Purposely broad to protect investors


p y p

15

FATCA and ICA Definitions are the dSame – No Coincidence

• Investment Company Act of 1940: “Investment p ycompany" is defined as any issuer which “… is or holds itself out as being engaged primarily … in the business of investing reinvesting or tradingthe business of investing, reinvesting, or trading in securities ….”

• Section 1471(d)(5)(C): An FI means any entity that “… is engaged (or holding itself out as being engaged) primarily in the business of investing, reinvesting or trading in securities ”reinvesting, or trading in securities ….

• ICA definition is quite broad and includes “intent”– “Holding itself out” requires intent under the ICA


16

“Business” of Investing under the fInvestment Company Act of 1940

• Exclusions– Holding companies of non-investment companies can

be excluded (Section 3(b)(1) of ICA; Hallwood Indus. Inc.)Inc.)

– Short transition periods can be excluded (Fifth Ave. Coach Lines, Inc.)

I l i• Inclusions– Purchases of securities in “sufficient quantities”– Commitment to invest assets in securitiesCommitment to invest assets in securities– Special situation companies

• Question of Fact


17

Engaged “Primarily” in the Business of Investing

• Question of fact under the Investment Company p yAct

• Relevant factors:f ’– Nature of company’s activities

– History of company’s business and development– Activities of its officers, directors, managersActivities of its officers, directors, managers– Importance they attach to the business of investments

as opposed to other businessN t f th ’ t d f it– Nature of the company’s assets and sources of its income

• Actions more important than intent


p

18

“Primarily” Engaged in Business of Investing

• Primarily engaged if:y g g– Assets are, and income mostly derived from,

investmentsShifts portfolio often– Shifts portfolio often

– Neither controls nor involved in operation of its portfolio companies

• Company with 2 or more businesses– Separate accounts of insurance companies are

investment companiesinvestment companies• Insurance companies are exempt from ICA• “Primarily” despite insurance element or purpose


19

Exemptions of Certain Investing h l f dVehicles from sections 1471 and 1472

• N2010-60: Exempts foreign entity “primarily engaged in investing … in securities” – note absence of “business of investing”

• Similar to ICA Exclusions:Similar to ICA Exclusions:– Holding Company/Parent of non-financial subsidiaries

(Section 3(b)(1) of ICA, Hallwood Industries)– 24-month start-up companies (Rule 3a-2 – one year– 24-month, start-up companies (Rule 3a-2 – one year

exemption if intent is non-investment business)– Liquidating or reorganizing entities (SEC Exemptions;

Fitrust Corp )Fitrust Corp.)– Hedging/financing entities of non-financial group

• Investment company: putting out money “at risk in the hope of gain” (Fifth Ave. Coach Lines)


ga ( t e Coac es)

20

Additional Exemptions for Investing h l “ ”Vehicles – “Investing”

• “Investing” - Putting out money “at risk in the est g utt g out o ey at s t ehope of gain”– Main purpose must be expectation of profits

• Intent important – Exclude investment entities managed for a gratuitous purpose (e.g., Ampal-Am. Palestine Trading Corp., and Ecclyco)

– Should exclude the keeping of cash ready for other purposes

• Exclude deposits• Exclude deposits• Claims for return of erroneous payments• “Reasonable” time to deploy large cash receipts


21

Additional Exemptions – “Holding Out” d “ l ”and “Primarily”

• Intending or holding out - Exclude entity untilIntending or holding out Exclude entity until it actually engages in the investment business

• Primarily:Primarily:– Operating businesses in transition holding cash

and/or investments temporarily– Acquisition of securities for purposes of control

• Where is the line drawn if an operating company holds a “substantial” portion of its assets in tradeable securities or investments?


22

Trusts as FFIs?Trusts as FFIs?

• Under IRC title to property held by a personUnder IRC, title to property held by a person to conserve or protect property for the benefit of another personbenefit of another person– no active management or it becomes a

corporation or partnership arrangementcorporation or partnership arrangement

• Ordinary trusts and investment trusts will be NFFEsNFFEs– Cannot be FFIs since trusts cannot have an

objective to carry on a business for profit


objective to carry on a business for profit

23

Classification of Investment Vehicles


Investment Vehicle ClassificationEngaged (or holds itself out as being engaged) primarily in the business ofBanking

A ti it (Foreign Entity

Excepted foreign entity

Invests, reinvests, or

trades in “securities,” but not engaged in

Yes

FFI Withh ldi d

engaged) primarily in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, or any derivative in such securities, partnership interests, or commodities?

Activity (e.g., originating loans) or

Custodian?

No No

under section 1471(f)?

not engaged in “business” of

doing so?

Yes

FFI - Withholding does not apply as provided

by section 1471(f). Not an NFFE because it is

an FFI.

Yes

No

Yes

NFFE subject to section 1472.

No

Any

Meets one or more of these N2010-60 definitions:Holding CompanyStart-up CompanyNon financial Liquidating/Reorganizing

Yes

No

Any recalcitrant

account holders?

Non-financial Liquidating/ReorganizingHedging/financing center of non-financial group

N2010-60 excludes from being an FFI. Notice states also exempting from NFFE

Yes

Withholding agent has obtained documentation,

identified each person having an interest in the entity, and

reports specified U.S. persons to the IRS? Trust with small number of

individual owners or NFFEs that will not be subject to

Deemed Compliant FFI - No FFI

Agreement required. Not an NFFE.

Yes

N

No

Yes

p gwithholding under section

1472(c)(1)(G).No

NFFE -Does not meet N2010-60 exclusion; however, facts

Excepted NFFE - No FFI Agreement required. Not

Yes

jwithholding or reporting under

sections 1471 or 1472?

Has it entered into a section

1471(b) Agreement?

No

Participating FFI - No withholding under section 1471(a).

Yes

Non-participating FFI – Subject to

withholding under section 1471(a)

No


and circumstances may exclude from being an FFI.

treated as an NFFE.Agreement?section 1471(a). section 1471(a).

25

Deemed Compliant FFI


26

Account Identification


Account IdentificationBasic Premise

• Pre-existing Accounts – Search existingPre existing Accounts Search existing electronically searchable data for indicia of U S ownership then remediateU.S. ownership, then remediate

• New Accounts – Higher standard:Obt i d t id t bli hi U S– Obtain documentary evidence establishing U.S. or non-U.S. status

If not identified as U S then examine all other– If not identified as U.S., then examine all other information collected to identify indicia of U.S. status, then remediate


status, then remediate

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Responsibilities of Participating h lForeign Investment Vehicles

• Determine if accounts are held by Individuals or Entities• If Individual Account, determine as being:

– U.S. Accounts (reportable)– Other Accounts– Recalcitrant Accounts (withholdable)( )

• If Entity Account, determine as being:– U.S. Person

» Specified U.S. Person (reportable)» Other U S Person (excluded under section 1473(3))» Other U.S. Person (excluded under section 1473(3))

– Foreign Financial Institution» Participating FFI» Deemed-compliant FFI» Non-participating FFI» Non participating FFI

– FFI excepted under section 1471(f)– NFFE

» U.S.-owned foreign entity» Excepted NFFE


» Excepted NFFE

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Funds Structures and Issues


Investment Fund Organization

Direct Investors FFI

Nominees/Distributors

Direct Investors

Transfer AgentAdministratorInvestment Manager

Non-U.S. Professionally-managed Investment Fund

Non-U.S. Custodian Bank


U.S. BankU.S. corporate stocks, and debt

instruments31

Private Fund Structure

100%

Owners/Managers

GP, LP, CAY

GP, LP, CAY

100% 100%

LPs LPs

Fund 1 Fund 2

98% 98%2% 20% carrying

2% 20% carrying

US PortfolioNon-US

Portfolio

• Will an FFI agreement entered into by Fund 1 would require Fund 2 to enter into a FFI agreement as well?

‒ Depends on value and voting shares held by Owners/Managers


32

Withholding Responsibility

• Who will apply FATCA withholding tax payable to a

Direct Investors

Recalcitrant Account Holder

Recalcitrant Account Holder:– Nominee/Distributor;

– Fund; or

Nominees/Distributors

Direct Investors

Fund; or

– Custodian bank?

• The last FFI in the chain of i lik l

Transfer Agent

payments is likely responsible for final withholding (if no prior

Non-U.S. Professionally-managed Investment Fund

withholding) on Recalcitrant Account Holders

• May “push down”

Non-U.S. Custodian Bank


• May “push-down” withholding responsibility U.S. Bank

U.S. corporate stocks, and debt instruments 33

Passthru Payments


Passthru PaymentPassthru Payment

• Applies to FFI payments “attributable to” aApplies to FFI payments attributable to a withholdable payment

• Does not appear to apply to NFFE payments asDoes not appear to apply to NFFE payments as it is defined in section 1471 rather than 1473 (definitions applicable to both sections 1471 and 1472)

• Requires an accounting for portion of passthrupayment attributable to U.S. source income and gross sales proceeds


35

Passthru Payment ExamplePassthru Payment Example

B CF d A (50% RAH El i )Activity Day Total US Non-US Total US Non-US RAH % W/H Total US Non-US Total US Non-US

1 200 160 40 100 80 20 50% -12 50 40 10 50 40 10MTM - Proporationate Loss 2 -50 -40 -10 -25 -20 -5 50% 3 -12.5 -10 -2.5 -12.5 -10 -2.5

150 120 30 75 60 15 -9 37.5 30 7.5 37.5 30 7.5MTM - Non-US Gain 3 10 0 10 5 0 5 50% 0 2.5 0 2.5 2.5 0 2.5

3 160 120 40 80 60 20 -9 40 30 10 40 30 10

B CFund A (50% RAH - Electing)

Full Red. of Non-RAH 3 -40 -30 -10 -40 -30 -10 100% 0 0 0 0 0 0 0120 90 30 40 30 10 -9 40 30 10 40 30 10

Withholdable Pymt Rec'd 4 30 30 0 10 10 0 100% -3 10 10 0 10 10 04 150 120 30 50 40 10 -12 50 40 10 50 40 10

Full Redemption of RAH 5 -50 -20 -30 -50 -20 -30 100% 6 0 0 0 0 0 05 100 100 0 0 NA NA 0% -6 50 40 10 50 40 10

Withholding on RAH RED"As if" GSP US Assets 30 9Income apportioned 10 3Non-US 10 0Total 50 12

Actual <> Proportionate ShareNote disproportionate sale of assets. Proportionate share of US Assets is 1/3 of $120. Fund sells only $20 of US Assets

Proportionate Approach"As if" 1/3 proportionate sale of US assets: $30 GSP from US Assets.

Accrual of W/HAccrual of FATCA W/H on RAH share of account

OrWithholding on RAH RED

Actual GSP US Assets 20 6Non-US 30 0Total 50 6

"Sub K" ApproachActual sale of US assets to fund RED: $20 GSP from US Assets.


36

Status of FATCA


Current Status• Treasury released Notice 2010-60 on August 28, 2010

• Notice 2010-60 indicates certain approaches Treasury intends to take in the forthcoming proposed regulations

• Notice 2010-60 invites comments on a number of specific items and indicates a continued interest in receiving comments from industry onindicates a continued interest in receiving comments from industry on FATCA

– Respond to Treasury’s specific requests for comments

– Address issues raised by the legislation and not addressed in the guidance to-date

– Respond to issues raised by the approach outlined in Notice 2010-60

• Deadline for submitting comments is November 1, 2010


38

N2010-60 - Request for Comments


Notice 2010-60: Specific Requests for Comments

General

• Priority of other issues that should be addressed in future guidance

• Measures for addressing long-term recalcitrant account holders and when FFI Agreements should be terminated due to a large number of recalcitrant account holders remaining after a reasonable period of time

• Treatment of entities that issue cash value insurance contracts, annuity contracts or similar arrangements

• An appropriate definition of cash value insurance contracts, annuity contracts and similar arrangements

• Circumstances when entities with a small number of direct or indirect account holders all of whom are i di id l NFFE th t d d li t h ld b t t d NFFEindividuals or NFFEs that are deemed compliant should be treated as NFFEs

• Other categories of foreign employee benefit or deferred compensation plans that should be treated as foreign retirement plans exempt from withholding

• Definition of a retirement plan; documenting a retirement plan to a withholding agent to verify that it is within the scope of the exclusion from withholding

Various Entities • Treatment of foreign charitable organizations

• Classes of entities that should be:

• Excluded from the definition of FFI

• Deemed compliant FFIs

• Considered to pose a low risk of tax evasion pursuant to 1471(f)Considered to pose a low risk of tax evasion pursuant to 1471(f)

• Procedures for identifying entities that are deemed compliant FFIs, participating FFIs, non-participating FFIs, entities in 1471(f), excepted NFFEs, and other NFFEs


40

Notice 2010-60: Specific Requests for Comments (continued)

• Methods that a participating FFI could use to determine whether payments it makes are attributable to withholdable payments, including any associated information reporting that may be necessary and which take into account the administrative burden imposed by any such approach

P ibl ti f ti i ti FFI f th bli ti t f ithh ldi th t t

Withholding

• Possible exemption for participating FFIs from the obligation to perform withholding on passthru payments to individual recalcitrant account holders where reporting by the participating FFI to the IRS is sufficient to permit the IRS to obtain information about the identities of those recalcitrant account holders through an information exchange request to a foreign jurisdiction

• Appropriate scope of an election to be withheld upon including details about the types of financial accounts for which such an election should be available and the type of information reporting an electing FFI wouldfor which such an election should be available and the type of information reporting an electing FFI would need to provide to a withholding agent so that the appropriate amount of tax could be deducted and withheld from any withholdable or passthru payments made to the electing FFI

• Exception to withholding requirements for payments by withholding agents other than FFIs to an NFFE engaged in an active trade or business

• Determining value of accounts

• Currency translation conventions

Reporting

• Situations where foreign law will prevent reporting and how FFI can overcome or waive such restrictions

• Ability of FFI to elect 1099 reporting with respect to a subset of accounts rather than all accounts

• Impact of proposed mandatory electronic filing for QI and FATCA purposes, effective for the taxable year ending after 12/31/2012


41

Notice 2010-60: Specific Requests for Comments (continued)

• Specific information about the applicable laws and regulations that may result in an investment vehicle’s determination to prohibit sales of its interests to U.S. persons:

• the categories of investment vehicles that may be covered by such laws and regulations;

• examples of the distribution or similar agreements that prohibit sales of interests to U.S. persons;

• information regarding the legally binding nature of such prohibitions and the penalties applicable to a violation

Funds

of such prohibitions;

• the extent to which the AML/KYC laws used to enforce such a prohibition would apply in identifying U.S. persons (as defined for U.S. tax purposes) that may invest in such vehicles, directly or through ownership in one or more other entities;

• the extent to which purchases of interests by non-participating FFIs would be treated as unsuitable investments and the extent to which and mechanisms by which non-participating FFIs could be prohibited from purchasingand the extent to which and mechanisms by which non-participating FFIs could be prohibited from purchasing such interests;

• approaches that would allow Treasury and the IRS to verify or otherwise ensure compliance with such prohibitions.

• Procedures performed by external auditors when conducting an AML/KYC audit or similar engagement

• Objectives of such engagements

• Types of procedures performed

• Types of reports issued

• Written certifications by high level management employees regarding the steps taken to comply with FATCA

Compliance Audits

• Written certifications by high-level management employees regarding the steps taken to comply with FATCA

• Information and representations that should b e included

• Extent to which public accountants or other external auditors rely on written certifications of compliance provided by officers or other responsible management employees in the course of AML/KYC audits or similar engagements

• Extent to which public accountants would be able to perform consistent with their attestation or other accounting


• Extent to which public accountants would be able to perform, consistent with their attestation or other accounting standards, verification procedures and reporting with respect to FFIs under engagements that are not agreed upon procedures

42

Strategies for Effective Comments• Provide detailed information regarding the complexity and/or cost of

i l i i l i d l l

Strategies for Effective Comments

implementing a particular requirement and propose an alternate, less complex and/or costly solution

• Review standard capital markets transactions and products and identify product-specific issues and solutions

• Provide details regarding legal restrictions faced by funds and service providers in meeting proposed requirementsp g p p q


43

Questions and Answers


Contact Information

Richard StandingDeloitte & Touche LLP (Singapore)Deloitte & Touche LLP (Singapore)PartnerSEA Leader, Financial Services Tax Practicerstanding@deloitte [email protected]: +65 6216 3157

Jim CalvinJim CalvinDeloitte Tax LLP (U.S.)National Tax Managing PartnerPrivate Equity, Hedge Funds, Mutual FundsPrivate Equity, Hedge Funds, Mutual [email protected]: +1 617 437 2365Mobile: +1 212 410 4422


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Documents

Foreign Account Tax Compliance Act (“FATCA”) … Vehicle Classification Engaged (or holds itself out as being engaged) primarily in the business of Banking Atiit(Foreign Entity