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FATCA Switzerland: Swiss Senate Approves FATCA

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FATCA Switzerland: FATCA Legislation Approved

On September 23, 2013, Swiss Senate voted to approve the implementation of Foreign Account Tax Compliance Act (FATCA). This event came barely a few weeks after the Swiss House of Representative approved the same legislation.

At this point, Swiss Banks have a clear way to cooperate with the IRS and US Department of Justice in turning over the required information regarding U.S. accountholders in Switzerland.

At the same time, on August 29, 2013, the DOJ announced the creation of the Program for Non-Prosecution Agreements or Non-Target Letters for Swiss Banks (the “Program”) – a voluntary disclosure program for Swiss Banks.

FATCA Switzerland: What is Driving Swiss Acceptance?

While there may have been strong reasons to oppose the bill, it appears that the driving force behind the acceptance of FATCA by Switzerland has been the fear that Swiss banks would be effectively excluded from the US capital markets if they did not accept FATCA. Most representatives acknowledged that FATCA is a reality, whether Switzerland likes it or not.

FATCA Switzerland: Model 2 Treaty

Unlike most European countries currently engaged in FATCA negotiations, Switzerland opted for the “model two” FATCA implementation treaty. Swiss banks will have to report accounts belonging to US taxpayers with more than $50,000, but client data will only be exchanged once the US authorities have requested administrative assistance (there are exceptions, especially under the Program).

Most European Union countries have accepted another type of FATCA implementation treaty, in which information is exchanged automatically, the so-called “model one”.

FATCA Switzerland: Impact on U.S. Taxpayers With Undeclared Financial Accounts

The FATCA bill will be implemented in Switzerland in stages starting in July 2014. In the meantime, however, the Program will be the main event with respect to FATCA compliance.

The impact on the U.S. taxpayers with undeclared financial accounts is likely to be a dramatic one, though not unexpected. We can already observe a rise in the OVDP (the IRS Offshore Voluntary Disclosure Program now closed) participation and the expectation is that 2014 will reflect a major participation of US non-compliant taxpayers in the program.

From the IRS perspective, starting the second half of 2014 and especially 2015, we also expect to see a large increase in criminal prosecutions and investigations of U.S. persons with undeclared financial accounts. This is because, through OVDP and the Program, the IRS will accumulate a massive amount of information allowing it to target non-compliant taxpayers with terrifying precision.

Contact Sherayzen Law Office For Help With Undeclared Foreign Accounts

If you are a U.S. taxpayer with undeclared foreign accounts, you should contact Sherayzen Law Office as soon as possible. Our firm consists of a team of highly intelligent and experienced tax professionals dedicated to helping U.S. taxpayers to bring themselves into compliance with U.S. tax law in a reasonable ethical manner. Not only will we be able to advise you on your voluntary disclosure options, but we will also be able to prepare all of the required tax forms and legal documents for you under the protection of the Attorney-Client Privilege.

Final Regulations and Guidance Issued on Reporting Interest Paid to Nonresident Aliens under FATCA

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The Foreign Account Tax Compliance Act (FATCA), was enacted in 2010 as part of the Hiring Incentives to Restore Employment (HIRE) Act, and mandates new reporting requirements, and amends existing IRC Sections.  Recently, the IRS issued final regulations and guidance regarding the reporting interest paid to nonresident aliens by certain financial institutions, as well as revenue procedure specifying foreign countries with which the U.S. has a information exchange agreement.  Nonresident aliens should be especially aware of these new rules, as many individuals will likely be affected by these rules.

TD 9584 (Guidance on Reporting Interest Paid to Nonresident Aliens), effective April 19, 2012, has the final regulations concerning the reporting requirements for commercial banks, savings institutions, credit unions, securities brokerages, and insurance companies that pay interest on deposits.

In general, beginning with interest payments made on, or after, January 1, 2013, covered financial institutions will be required to report deposit interest paid to certain nonresident alien individuals.  The IRS may then exchange information relating to tax enforcement with the officials of foreign countries.  Under the new Treas. Reg. §§ 1.6049-4(b)(5) and 1.6049-8(a), interest paid to nonresident aliens must be reported if the amount in aggregate is $10 or more.

The IRS views this ability to share such information as important to its goal of gathering information from other jurisdictions about US taxpayers who may be evading US tax by hiding assets offshore.  Additionally, the IRS enacted the new reporting requirements to limit US taxpayers with US deposit accounts from falsely claiming to be nonresident aliens in order to avoid paying US taxes on interest they receive from deposits.

FATCA: Increased Foreign Asset Disclosure Requirements for U.S. Persons

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The Foreign Accounts Tax Compliance Act (FATCA) was enacted as part of the Hiring Incentives to Restore Employment Act of 2010 (“HIRE Act” or “Act”). In addition to specific requirements and a withholding tax, FATCA imposed a new foreign asset disclosure requirements on U.S. persons.

This article will give a general summary about FATCA disclosure requirements, penalties and its statute of limitations

Disclosure Requirements

In general, under IRC section 6038D, disclosure is required if the aggregate value of all “specified foreign financial assets” as defined in the statute, exceeds $50,000 (compare this threshold to the FBAR requirement of $10,000). This information must be attached to the current year tax returns. The provision of FATCA is effective as of tax year 2011.

Covered individuals or entities must disclose the maximum value of the asset(s) during the year, as well as other pertinent information regarding the account, stock, financial instrument, contract, interest, or related items. It should be noted that FATCA disclosure is likely to be broader than the reporting requirements under the FBAR.

Penalties

IRC section 6038D imposes a penalty of $10,000 on U.S. persons (i.e., individuals, corporations, partnerships, trusts or LLC’s) who do not meet the required disclosure requirement. If the required disclosure information is not provided within 90 days of notice and demand by the IRS, penalties will increase by $10,000 each 30 days following the notification, up to a maximum penalty of $50,000. A reasonable cause exception to the penalty may apply in certain circumstances. An international tax attorney should determine whether exception applies to your particular situation.

Furthermore, FATCA amended IRC section 6662 (substantial understatement penalty provision) to double the penalty on any underpayment attributable to an undisclosed foreign financial asset (which means any asset that should have been reported under IRC sections 6038, 6038B, 6038D, 6046A, or 6048) to a draconian 40% penalty. This provision is effective for tax years beginning after the enactment of the Act on March 18, 2010 – i.e. tax year 2011.

State of Limitations Provisions

In addition to other provisions expanding the powers of the IRS under FATCA, the Act also has an increased statute of limitations for an IRS audit. Under Section 513 of the Act, the statute of limitations is extended to six years after a return is filed when a taxpayer makes an omission of income attributable to one or more assets required to be reported under section 6038D in excess of $5,000. This is an extension of the general statute of limitations of three years from the filing of a return.

The Section 513 statute of limitations applies to returns filed after March 18, 2010. The extended statute of limitations may also apply to returns filed on or before this date if the general statute of limitation period (under IRC section 6501) has not yet expired.

Contact Sherayzen Law Office to Help You

Do you have questions relating to FATCA reporting issues, or concerns that you may be neglecting to report information that can lead to substantial penalties? Sherayzen Law Office is here to assist you with all of your U.S. tax compliance tax issues. Contact us by email: [email protected] to discuss your tax situation with an experienced international tax lawyer.