WHAT IS THE FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA)?

Why do I need to know about FATCA?

The Foreign Account Tax Compliance Act (FATCA) has had important implications for the way US expats manage and declare their wealth in recent years. Its impact is far-reaching and the penalties for non-compliance are onerous, so while you don’t need to know the minutiae, you do need to know what it is and how it affects you. 

What is FATCA?

FATCA was introduced in 2010, aiming to identify US citizens evading tax by using offshore investment vehicles. Partly this was a revenue-raising exercise - US congress estimated that tax evasion cost the IRS up to $100bn per annum – but it also came at a time when policymakers were fearful that offshore vehicles were being used to fund criminal activity.  As such, the US authorities take it very seriously.

Who does it apply to?

FATCA extends to all US citizens, US residents, green card holders and trusts controlled by US-connected people. The legislation includes those who live outside the US and may have done so for some time. Even those who have never lived in the US but were born there, or those married to a US citizen, have found themselves caught by the legislation to some extent. 

What are my obligations under FATCA?

FATCA requires US citizens to report all financial accounts held outside the US – foreign financial institutions or FFIs. The Act also requires foreign financial institutions to report to the Internal Revenue Service (IRS) - or the relevant domestic authority if there is an intergovernmental approach - about their US clients. 

In other words, your bank has to report back on any assets you hold with them, including name, address and account numbers. They must also report the highest daily account value for the year, plus inflows and outflows to the account. This can make some institutions reluctant to deal with US citizens.

In terms of banking and investments, FATCA reporting requirements apply for most types of financial institutions that receive US income and hold US investments. These include all Channel Island funds and investment structures that hold US financial assets or receive certain US-sourced income.

However, even if a financial institution doesn’t hold US assets or receive US income, they may still be affected by FATCA as they may be part of an affiliated group or receive pass-through payments from other financial institutions. Included in the definition of FFIs are:

Banks

Trusts/Fiduciaries

Collective Investment Vehicles

Custodians

Hedge Funds

Stockbrokers

Private Equity Companies

Investment banks

What are the implications?

The administrative difficulty of reporting on all US-connected people has led many financial institutions to shy away from advising on and managing their money. This comes at a time when the reporting and investment requirements have become increasingly complex and the need for advice greater than ever.

What are the implications for non-compliance?

Foreign Financial Institutions that do not enter a legally binding agreement with the IRS to make the appropriate disclosures about their US clients face a 30% rate of withholding tax on all relevant payments received.  For investors, that may mean 30% of all deposits, dividend or interest payments are withheld.

There are also penalties for failure to report properly. For individuals, reporting on non-US financial accounts for amounts over $10,000 is done by way of a FBAR form. The penalty for failing to file an FBAR is $10,000, providing the IRS deems it ‘non-wilful’. If the violation is considered ‘wilful’, the potential penalties are even higher – the greater of $100,000 or 50% of the amount in the account for each violation.

In addition, US-connected people must file IRS Form 8938 if total foreign financial assets owned exceeded $50,000 on the last day of the tax year or more than $75,000 at any point during the year. These limits rise to $200,000 and $300,000 for people living outside the US, but investors should remember that this will include pension assets.

In summary

FATCA has prompted a significant shift in the reporting and tax rules for US citizens abroad. The IRS is also dramatically increasing the extent to which it enforces the rules, so there’s no escape. Those with connections to the US need to make sure that they are fully compliant with the rules or face some nasty penalties.

Choosing an adviser

Negotiating the complexities of the US/UK tax system, finding the right investment management, while staying on top of your long-term plans is no mean feat.

It is key that US/UK families find an investment advisor that can not only put a compliant investment strategy in place, but can also produce the US/UK investment information and manage their US, UK and offshore investments cohesively.

About London & Capital

The London & Capital US family office has been specialising in advising US citizens and Green Card holders on tax optimised investment solutions since 1989.

If you would like to discuss the above further, please get in contact via email robert.paul@londonandcapital.com or via telephone 0207 396 3388.

GET IN TOUCH

If you would like to discuss this topic further, please get in contact via email robert.paul@londonandcapital.com or via telephone 0207 396 3388.