Foreign Account Tax Compliance (FATCA) and OECD’s Common Reporting Standard (CRS)

FATCA was introduced in the US in October 2009. The broad provisions of FATCA are found in sections 1471 to 1474 of the (US) Internal Revenue Code, 1986. FATCA creates a tax information reporting regime under which financial institutions (FI), both US and foreign are expected to report certain financial information in respect of a US taxpayer (generally referred to as a ‘US person’ The OECD issued a recommended approach on Common Reporting Standard (CRS) for adoption by countries.

FATCA and CRS in India

The Finance (No. 2) Act, 2014 amended section 285BA of the Income-tax Act, 1961, by extending obligation of furnishing statement of financial transaction or reportable account to prescribed reporting financial institutions. However, the scope of furnishing SFT has been widened to include certain persons (as may be prescribed), other than those who are currently required to furnish the same in the budget 2019. India signed the minutes of Multilateral Competent Authority Agreement (MCAA) in Paris as part of India’s commitment to be an early adopter of OECD’s CRS in June 2015. For FATCA, the Government of India signed the Model 1 Inter-Governmental Agreement (IGA) on July 9, 2015. Under India’s IGA, all reporting is done to the Government of India which, in turn, will pass on the information to the US. Rules 114E to 114G for reporting under section 285BA of the Act were notified under Income-tax Rules on August 7, 2015 and the first reporting deadline in respect of records for 2014 was set at August 31, 2015 (later extended to September 10, 2015). The initial guidance was issued on August 31, 2015 and a guidance note was issued on December 31, 2015. Further clarifications were issued on February 19, 2016.

Who is to report

In terms of Rule 114G(1) read with Rule 114F(7), following reporting FIs has to do the relevant reporting:

• A financial institution which is resident (the reference here is to tax residence status) in India but excluding a branch outside India of an Indian FI
• Any branch in India of an FI that is not (tax) resident in India

In both cases, a non-reporting FI (not to be confused with Non Participating FI) will be excluded from the ambit of the term reporting FI. An Indian bank’s branch in (say) London will not be treated as a reporting FI but a Singapore or a US bank’s branch in India will be treated as reporting FI under Rule 114F(7).

Reporting deadlines and information required

The Table below gives the FATCA and the CRS reporting deadlines and the information required to be reported.

How to report

Under Rule 114G(9), the reporting FI must file the relevant Form 61B with the office of the Director of Income-tax (Intelligence and Criminal Investigation) electronically under a digital signature of the designated director. The reporting FI must register on the income-tax e-filing website through its own login giving certain information including a ‘designated director’ and a ‘principal officer’. Although not stated in the Rules, the latter will generally be the contact person for the Government of India for any queries and the former will be the escalation point. These two terms are used under the Prevention of Money Laundering Act (PMLA). For the 2015 reporting due in May 2016 and for later years, the reporting FI must also register on the e-filing website and obtain an ITDREIN. This requirement did not apply for the 2014 reporting done in September 2015. In addition, the reporting FIs may have to obtain a US Global Intermediary Identification Number (GIIN), a 20 character registration, so as not to be treated as an NPFI.

The report in Form 61B is, however, required to be uploaded through the personal PAN login of the designated director on the e-filing website.

FFIs and US person

FATCA requires reporting by FFIs in respect of certain financial transactions of US persons. The term ‘foreign financial institution’ is very broadly defined and encompasses a number of entities that have not traditionally been considered to be financial institutions. An FFI is any entity organised in a country (including a US possession) other than the US that:

1. Accepts deposits in the ordinary course of banking or similar business; or
2. As a substantial portion of its business, holds financial assets for the account of others; or
3. Is an investment entity; or
4. Is an insurance company (or the holding company of an insurance company) that issues or is obligated to make payments with respect to a cash value insurance or annuity contract; or
5. Is an entity that is a holding company or treasury centre that is part of an expanded affiliated group that includes a depository institution, a custodial institution, a specified insurance company or an investment entity or is formed in connection with (or availed of by) a collective investment vehicle, mutual fund, exchange traded fund, private equity fund, hedge fund, venture capital fund, leveraged buyout fund or similar investment vehicle.

As we can see above, the coverage is quite wide and the definition quite complex. There are certain exclusions e.g. group entities that are non-financial foreign entities (NFFEs) and non-financial start-up companies for the first 24 months after the latter type of entities are organised. We now turn to who or what is a US person. The term ‘US person’ means:

1. An individual who is a US citizen or resident of the US; or
2. A partnership created or organised under the laws of the US or a State of the US; or
3. A corporation created or organised under the laws of the US or a State of the US; or
4. An estate of the decedent, who is a US person; or
5. Any trust if:
   • court within the US is able to exercise primary supervision over the administration of the trust (i.e. the “Court test”); and
   • One or more US persons have the authority to control all substantial decisions of the trust (i.e. the ‘Control test”); or
6. The Government of the US, any State, municipality or other political sub-division, any wholly owned agency or instrumentality of such governments.

Registration of FFI and FFI agreement

An FFI is, on application to be made electronically, allotted a ‘Global Intermediary Identification Number’ (GIIN). The GIIN is 20 character identification unique to each FFI. An FFI, whose application for GIIN is under process with the IRS, may provide a Form W-8 to its counterparty and state that it has ‘applied for’ against the GIIN field. Such a Form W-8 will be valid for 90 days during which it is expected that the FFI will be granted the GIIN.

An FFI will agree with the IRS to undertake, amongst others, account holder due diligence, reporting and withholding. The nature of the obligations of the FFI varies depending upon whether the FFI is located in an IGA country or outside.

An FFI which agrees to sign (or signs) the agreement with the US IRS is called a participating FFI (PFFI) and one which does not do so a non-participating FFI (NPFFI). A PFFI may also agree that it will do the FATCA reporting on behalf of any other FFI within the group.

Account holder due diligence

To capture information about whether the account holder is a US person, FATCA allows for FIs to accept customer self-declarations. The FI is expected to make sufficient due diligence in respect of new accounts (NADD) opened after the coming into force of FATCA. It also requires the institutions to do due diligence in respect of pre-existing accounts (PADD). In particular, the due diligence has to focus on US indicia appearing in the data relating to accounts of individuals. Generally, US indicia in the context of individual accounts are one or more of the following viz.

1. US citizenship
2. Lawful permanent resident of the US (i.e. a non-US citizen with a ‘green card’)
3. US place of birth
4. Residence address or correspondence address in the US (this could include a US post box office)
5. US telephone number with no non-US telephone number associated with the account
6. Standing instructions to transfer funds to an account in the US
7. Current power of attorney or signatory authority granted to a person with a US address
8. ‘Care of’ mailing address is the sole address for the account or ‘Hold mail’ instruction applies in respect of the account.

In such cases, the institution has to exercise additional due diligence and obtain appropriate ‘cure’ documentation, which differs on the basis of the nature of the defect. For example, US citizenship cannot be ignored unless the US certifies that the individual concerned has given up his US citizenship. In the absence of cure documentation, it is presumed that the Account holder is a US person. For non-individuals, the NADD, PADD focuses on whether the entity is an FFI or it is non-financial foreign entity (NFFE). An FFI will have to provide its GIIN whereas an NFFE will have to provide information about its ownership in particular whether it has US person(s) having substantial i.e. greater than 10% interest in the NFFE.

An account holder with a PFFI

1. Who or which is not an FFI and who fails to comply with reasonable requests for information necessary to determine if the account is held by a US person; or
2. Fails to provide a valid self-declaration of being a US person (Form W-9); or
3. Fails to provide the correct name and (US) Tax Identification Number (TIN) combination; or
4. Fails to waive the secrecy law which would prevent the participating FFI from reporting information required to reported under FATCA; or
5. Is an NFFE which fails to provide the required certification regarding substantial US owners or lack of such ownership; or
6. Has a dormant account is treated as a ‘recalcitrant account holder’.

To address a Hindu Undivided Family (HUF), which is a traditional family institution peculiar to India, the Government has clarified that an HUF is to be treated as entity.

Due diligence

Rule 114H provides for different deadlines for categories of due diligence exercise in respect of client documentation under FATCA/ CRS for financial accounts viz.

The methodology of the due diligence differs for these although the documentation requirements are broadly similar. For NADD, the residency certificate issued by the authorities overseas forms the primary evidence of tax residency. For PADD, the address on record should be treated as being the indicator of the tax residency. If the FI does not rely on current mailing address, it must do an electronic search of its records for identification of tax residency outside India, or a place of birth in the US, or a current mailing or residence address (including post office box) outside India, or one or more telephone numbers outside India and no telephone number in India, or standing instructions to transfer funds to an account maintained in a jurisdiction outside India, or power of attorney given to a person outside India, or ‘hold mail’ or ‘care of’ address outside India. All of these indicia may be overridden by specific declarations from the customer. The FI will not be entitled to rely on the customer’s self-declaration, if the FI knows or has reason to know that the self-certification or documentation is incorrect. An example of this is where an account holder who is ostensibly a resident of India informs the FI’s representative that he (the account holder) is US ‘green card’ holder and has to visit the US to retain his green card. This is a case where the FI has to ignore the local address in India and treat the account holders being a US person. For high value accounts, enhanced due diligence is required to be done through the relationship manager meeting with the customer. Where any indicia show the account holder to be resident of more than one jurisdiction, the FI should treat the customer as being resident of each of the jurisdictions i.e. the FI shall not apply tie breaker tests.