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Treasury and IRS Issued Guidance on FATCA

Below are selected publications from the Internal Revenue Service (IRS) and Treasure department providing guidance regarding Foreign Account Tax Compliance Act (FATCA). Guidance issues are posted as soon as they are made public. Tell us about issues by contacting us at FATCA@deloitte.com.

July 21, 2014: First edition of the Standard for Automatic Exchange of Financial Account Information in Tax Matters
The Organization for Economic Co-operation and Development (“OECD”) released the first edition of the Standard for Automatic Exchange of Financial Account Information in Tax Matters. The document contains the Model Competent Authority Agreement (“Model CAA”), the Common Reporting Standard (“CRS”) and Commentaries interpreting each section of the Model CAA and the CRS.

July 18, 2014: IRS Releases Instructions for the Requester of Forms W-8
The IRS released the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and W-8IMY ("Requester Instructions"). The Requester Instructions supplement the instructions for the noted Forms and can be used to help withholding agents and Foreign Financial Institutions ("FFIs") in validating the Forms for both chapter 3 and 4 purposes.

June 30, 2014: IRS Released Technical Corrections to FATCA and Chapters 3 & 61 Regulations
The IRS released for publication on the Federal Register, the promised technical corrections to both FATCA regulations and the chapter 3 and 61 coordination regulations. The original FATCA regulations and chapter 3 and 61 coordination regulations were released in February 2014, however certain errors and unclear provisions were discovered after publication to the Federal Register.

June 27, 2014: IRS Released Updated Qualified Intermediary Agreement 
The IRS released Revenue Procedure 2014-39, updating prior guidance applicable to foreign intermediaries seeking to enter into a QI Agreement with the IRS or such intermediaries planning to continue QI operations.

June 26, 2014: Instructions for Form 1042-S - Foreign Person's U.S. Source Income Subject to Withholding
The IRS released Instructions for the Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding, covering tax year 2014. This is important guidance for the development of reporting procedures for the implementation of both FATCA and the updated chapter 3 requirements.

June 26, 2014: The U.S. and China Reach FATCA Agreement in Substance
The U.S. and China reached an agreement in substance to implement the Foreign Account Tax Compliance Act (FATCA) through a Model 1 Intergovernmental Agreement ("IGA"). As China is one of the U.S. largest trading partners, this is a substantial development in achieving overall tax compliance through information sharing agreements.

June 24, 2014: IRS Releases Final Instructions for Forms W-8BEN-E and 8966 & Updated FFI Agreement
The IRS has released the highly anticipated Instructions to accompany the final Forms W-8BEN-E and 8966. The IRS additionally released an updated FFI Agreement for Participating FFIs and Reporting Model 2 FFIs.

June 19, 2014: Details on Final Version of Form W-8IMY and Instructions
IRS Issues Final Version of Form W-8IMY for Foreign Intermediaries, Foreign Flow-Through Entities, or Certain U.S. Branches for U.S. Tax Withholding and Reporting and corresponding instructions

June 10, 2014: U.K. position on Notice 2014-33
The U.K. has determined it will not adopt the delay to the onboarding of new entity accounts proposed by IRS Notice 2014-33.

June 2, 2014: FATCA Foreign Financial Institution Registration List and Download Tool
The IRS published the first list of FATCA compliant Foreign Financial Institutions ("FFIs"). This list contains information related to more than 77,000 FFIs that registered with the IRS as of May 23, 2014 to be compliant with FATCA as either participating FFIs or otherwise registered deemed compliant FFIs (including Reporting Model 1 FFIs).

May 8, 2014: IRS Published 2014 Form 1042 and Instructions
The IRS has published the 2014 Form 1042 (Annual Withholding Tax Return for U.S. Source Income of Foreign Persons) and corresponding instructions. The Form 1042 for 2014 has been modified from the Form 1042 used for prior years, primarily for withholding agents to report payments and amounts withheld under FATCA, or chapter 4 of the Internal Revenue Code (Code) in addition to those payments and amounts required to be reported pursuant to the existing withholding and reporting rules under chapter 3 of the Code.

May 2, 2014: IRS Notice 2014-33 Provides Relief on Implementation of FATCA and Coordination Rules
The IRS released Notice 2014-33 announcing that any enforcement actions for the calendar years 2014 and 2015 under FATCA and the temporary coordination regulations under chapters 3 and 61 and section 3406 will take into consideration the good faith efforts of foreign financial institutions (FFIs) and withholding agents to comply with those provisions. The Notice also provides some additional relief under FATCA and chapter 3; including relief for onboarding entity account holders from July 1, 2014 to December 31, 2014.

April 2, 2014: FATCA Announcement 2014-17
The U.S. Treasury Department issued Announcement 2014-17 to indicate that it will treat more than a dozen countries that have agreed in substance on the terms of an IGA with the United States as having signed bilateral agreements until the end of the year.

March 29, 2014: IRS Released Final Form W-8BEN-E for Entities
The IRS announced the release of the final Form W-8BEN-E, "Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)." The updated form will be used by foreign entities to certify their status under FATCA and chapter 3, as well as their entitlement to treaty benefits. No instructions were published with the form itself.

March 11, 2014: U.S. and the British Virgin Islands Conclude FATCA Negotiations
The British Virgin Islands Government announced that it has concluded negotiations with the United States on a Model I Intergovernmental Agreement ("IGA") and that signing is imminent. Final legal and administrative procedures to facilitate the FATCA implementation as well as guidance notes are expected shortly.

March 10, 2014: IRS Publishes Final 2014 Form 1042-S
The IRS published the final version of the Form 1042-S. The prior draft version was originally published in April 2013. The updated final version of the form includes several changes necessary because of changes in the recently released temporary and final FATCA (Chapter 4) regulations.

March 6, 2014: IRS Publishes Final Form 8966, "FATCA Report"
The IRS published the final Form 8966, "FATCA Report." Foreign Financial Institutions (FFIs) required to perform FATCA reporting will use the Form 8966 to report U.S. financial accounts, financial accounts held by passive non-financial foreign entities (NFFEs) with substantial U.S. owners and financial accounts held by owner-documented FFIs with specified U.S. owners.

March 4, 2014: Final Form W-8ECI for Income Effectively Connected with U.S. Trade or Business
The IRS released the final Form W-8ECI, "Certificate of Foreign Person's Claim That Income Is Effectively Connected With the Conduct of a Trade or Business in the United States." The final Form W-8ECI is nearly identical to the draft form released in July, 2013.

March 4, 2014: Release of Updated Final Version of Form W-8BEN (with instructions) for Individuals
The IRS released a finalized version of Form W-8BEN for individuals. In addition to the changes included in the draft released in June 2012, the finalized version adds (i) a date of birth field and (ii) language in the "Certification" section requiring the signatory to agree to submit a new form within thirty days of any change that would make any certification on the form incorrect.

February 13, 2014: OECD releases model of competent authority agreement and common reporting standard model
The Organisation for Economic Co-operation and Development (OECD) released the text of the "Model Competent Authority Agreement (CAA) and Common Reporting Standard and Due diligence for Financial Account Information (CRS)."

January 13, 2014: IRS publishes corrected FFI Agreement in updated Revenue Procedure 2014-13
The IRS published an updated version of the FFI Agreement in Revenue Procedure 2014-13 containing certain minor corrections to the original December 27th release.

December 19, 2013: IRS Publishes FATCA FFI List Resources and Support Webpage and FFI List FAQs
The IRS published the FATCA FFI List Resources and Support Webpage and FFI List FAQs. The FATCA FFI List Resources Webpage announces that a search tool will be available to the public beginning in June 2014 to assist withholding agents in locating FATCA compliant individual or groups of FIs and their branches.

December 19, 2013: FATCA International Data Exchange Webpage and the Intergovernmental FATCA XML Schema
The IRS published the FATCA International Data Exchange Webpage and the Intergovernmental FATCA XML Schema. The FATCA International Data Exchange Webpage announces that the IRS has finalized the format for exchanging FATCA data with IGA jurisdictions known as the IGA FATCA XML Schema (version 1.1).

December 16, 2013: Update on FATCA Financial Institution Registration (Announcement 2014-1)
The IRS restated that, as announced in Notice 2013-43, the FATCA Registration System has been accessible since August 19, 2013 and that all information entered into the system is saved. However, final submission cannot be completed until after December 31, 2013 even if already submitted.

December 5, 2013: Treasury Inspector General for Tax Administration Releases FATCA Report
Treasury inspector general for tax administration concludes improvements necessary to strengthen systems development controls for the FATCA registration system.

November 28, 2013: More than 30 Countries Working on the OECD’s Common Reporting Standard
More than 30 countries released a joint statement announcing their commitment to early adoption of the Common Reporting Standard (CRS) that is being developed in the Organization for Economic Co-operation and Development (OECD). 

November 5, 2013 Cayman, U.K. Sign ‘FATCA’-type Agreement
The Cayman Islands and the U.K. signed a ‘FATCA’-type intergovernmental agreement (IGA), preparing the way for Cayman to automatically share financial information with the U.K. on U.K. taxpayers who hold Cayman Islands accounts.

November 4, 2013: U.S. Treasury released revised models of FATCA Intergovernmental Agreements
Treasury released revised versions of the Model 1A, Model 1B and Model 2 IGAs as well as for their respective Annexes I and II.

October 29, 2013: U.S. Dept. of Treasury Released FFI Agreement and Related Notice 2013-69
Treasury takes next step in effort to curtail offshore tax evasion. The IRS has released the foreign financial institutions (FFI) agreement Notice 2013-69.

October 24, 2013: Treasury Issues Request for Comments on Forms W-8
The U.S. Department of Treasury released a Notice requesting comments on the currently released draft Forms W-8 by December 23, 2013.

September 17, 2013: IRS Publishes New FAQs for FATCA Registration Website
The IRS has published additional guidance for the recently opened FATCA Registration Website. The IRS posted two separate FAQs; one for general FATCA Registration guidance including IGA issues and the other geared towards qualified intermediaries.

August 30, 2013: IRS Releases Final Form W-9
The final Form W-9 and instructions contain no substantive changes and are largely the same as the previously released draft.

August 19, 2013: The IRS posted Form 8957, FATCA Registration, and the related instructions
The IRS posted Form 8957, FATCA Registration, and the related instructions for use by financial institutions that decide not to use the online registration provided by the IRS.

June 18, 2013: Details on the Format of the Global Intermediary Identification Number (GIIN)
Recent IRS comments at a conference hosted by the Economic Co-operation and Development (OECD) Business and Industry Advisory Committee (BIAC) have shed light on the format of a Foreign Financial Institution’s ("FFIs") Global Intermediary Identification Number ("GIIN").

May 31, 2013: The United Kingdom Releases Final Regulations and Guidance
The United Kingdom has released final regulations implementing the FATCA intergovernmental agreement ("IGA") it signed with the United States on September 12, 2012. In addition to the regulations, the HM Revenue & Customs ("HMRC") has released its final guidance interpreting the new U.K. Regulations.

May 23, 2013: Updated Draft of Form W-8EXP for Exempt Entities
The IRS has released another draft of the W-8EXP for exempt entities. Although an updated release was expected, an unexpected substantial change has been made to the form. The updated form now includes a new line 4 for the beneficial owner to select its FATCA status and includes several of the FATCA status types found on the Form W-8BEN-E (e.g., participating FFI, registered deemed-compliant FFI, certain IGA FFI designations, territory FFI, passive NFFE and the FATCA exempt status types).

May 9, 2013: U.S. Treasury Releases Updated FATCA Model Intergovernmental Agreements (IGAs)
On May 9, 2013 the U.S. Treasury released updated Model Intergovernmental Agreements ("IGAs") to improve international tax compliance and implement FATCA. The most significant development with the new releases is that the U.S. Treasury will now enter into IGAs with jurisdictions that do not have a preexisting tax information exchange agreement ("TIEA") or bilateral income tax treaty.

April 9, 2013: Foreign Financial Institution List Schema and Extensible Markup Language (XML) Test Files
The IRS released the Foreign Financial Institution (FFI) List Schema and Extensible Markup Language (XML) Test Files to allow withholding agents and other interested parties to prepare systems and procedures to validate Global Intermediary Identification Numbers (GIINs) provided by account holders and payees.

April 9, 2013: Tax Information Exchange among the G5 Countries
Taking a page from the United States’ FATCA playbook, the United Kingdom, France, Germany, Italy and Spain have announced an agreement to develop a multilateral tax information exchange methodology among the G5 countries.

November 29, 2012: IRS Revises ITIN System and the Impact on Certified Acceptance Agents
On November 29, 2012, the Internal Revenue Service released updated procedures strengthening the Individual Taxpayer Identification Number program ("ITIN"). The updated procedures take effect January 1, 2013 and build on interim procedures announced June 22, 2012 and October 2, 2012.

November 14, 2012: U.S. Treasury announces second model IGA for cooperation to facilitate the implementation of FATCA
On November 14, 2012, the U.S. Treasury announced the second model Intergovernmental Agreement for cooperation to facilitate the implementation of the Foreign Account Tax Compliance Act (FATCA) tax provisions.

October 24, 2012: IRS Announcement 2012-42 
On October 24, 2012 the IRS released Announcement 2012-42 which extends the deadlines for certain FATCA requirements. The Announcement presents new timelines for due diligence, withholding and reporting requirements that are closely aligned with those in the Model IGA and provides additional guidance on grandfathered obligations. The following are the key timeline changes announced and a graphic charting of the changes.

August 17, 2012: Acceptance of Electronic Forms W-8
In a memo released from the Internal Revenue Service (IRS) Office of Chief Counsel, Associate Chief Counsel Steven A. Musher concluded that under certain circumstances a PDF or fax of a Form W-8 is acceptable under the existing Chapter 3 regulations (Treas. Reg. § 1.1441-1(e)(4)(iv)).

August 15, 2012: ISDA protocol to tax FATCA derivative transactions
The International Swaps and Derivatives Association, Inc. (ISDA) published the 2012 ISDA protocol that offers market participants an efficient way to amend the ISDA Master Agreement tax provisions to address the effects of FATCA.

July 26, 2012: Treasury issues first model intergovernmental agreements
In an effort to boost cooperation in countering offshore tax evasion and improve global tax compliance, the United States in conjunction with France, Germany, Italy, Spain and the United Kingdom has released a "Model Intergovernmental Agreement to Improve Tax Compliance and Implement FATCA".

November 2011: Form 8938 Statement of Specified Foreign Financial Assets
If you are a specified person who owns specified foreign financial assets and the value of those assets exceeds an applicable reporting threshold, for tax years beginning after March 18, 2010, you must file, Form 8938 with your annual tax return (including extension).

July 25, 2011 Tax Alert: IRS Releases Revised Notice 2011-53
The IRS released revised Notice 2011-53 that clarifies the application of the phased implementation of Chapter 4 FATCA withholding to include certain payments to Non-Financial Foreign Entities.

April 8, 2011: IRS Provides Further Guidance on FATCA–Notice 2011-34
The Internal Revenue Service has released the Notice 2011-34, providing further guidance and requests comments on certain priority issues regarding the implementation of FATCA (Chapter 4 of the Internal Revenue Code).

February 8, 2011: Offshore Voluntary Disclosure Initiative
The IRS is offering people with undisclosed income from offshore accounts an opportunity to participate in a new, voluntary disclosure initiative in order to get current on their tax returns. The 2011 Offshore Voluntary Disclosure Initiative (OVDI) will be available only through Aug. 31, 2011. The OVDI is the government's effort to locate unreported overseas accounts.

October 13, 2010: Treasury official comments on analysis of accounts under Notice 2010-60
On October 13, 2010, Michael Plowgian, an attorney-adviser in Treasury’s Office of International Tax Counsel, spoke to a group of bankers and their advisers in New York. Lee Sheppard, a reporter from Tax Analyst summarized Mr. Plowgian’s comments.

IRS Issues Notice 2010-60 which provides preliminary guidance regarding priority issues involving the implementation of FATCA
On August 27th, the Internal Revenue Service issued Notice 2010-60, "Notice and Request for Comments Regarding Implementation of Information Reporting and Withholding Under Chapter 4 of the Code."

March 18, 2010: Legislative text new Chapter 4
Legislative FATCA text of the statute for new Chapter 4

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