US FDAP


100040 – Background – Foreign Account Tax Compliance Act (FATCA)

100040 – Background – Foreign Account Tax Compliance Act (FATCA)

In 2010 the United States enacted the Foreign Account Tax Compliance Act provisions (FATCA) which are contained in the HIRE Act 2010. These provisions are aimed at reducing tax evasion by US citizens andentities.

FATCA requires financial institutions outside the USA to pass information about their USA customers to the US tax administration, the Internal Revenue Service. The legislation allows for a 30% withholding tax to be applied to the US source income of any non-­‐US financial institution that fails to comply with this requirement. This caused a number of issues for UK financial institutions not least of which was how they could comply with the requirements of FATCA without breaching data protection restrictions.

On 12 September 2012 the UK and the USA signed a Treaty to implement FATCA in the UK – “The UK-­‐US Agreement to Improve International Tax Compliance and to Implement FATCA” (the US IGA). Legislation at section 222 Finance Act 2013 provides HM Treasury with powers to make regulations to give effect to this and other similar agreements. The US IGA was brought into force by the Tax Compliance (United States of America) Regulations 2014, which were subsequently incorporated into the International Tax Compliance Regulations 2015 ( SI 2015/878 ). These regulations impose obligations on UK financial institutions to identify, maintain and report information to HMRC on financial accounts held by US citizens and entities. There is an also a requirement under FATCA for Reporting Financial Institutions to report payments to Non-Participating Financial Institutions (see FATCA Guidance paragraphs 2.5 and 9.4 ). Provided these financial institutions comply with the requirements of the legislation they will not be subject to the 30% withholding tax on US source income .

U.S. source FDAP income

Source URL: https://haydonperryman.com/terms-and-definitions/u-s-source-fdap-income/

U.S. source FDAP income

FATCA

U.S. source FDAP income defined [§1.1473-1(a)(2)] (2)(i) In general [§1.1473-1(a)(2)(i)]

(i)(A) FDAP income defined [§1.1473-1(a)(2)(i)(A)]

For purposes of chapter 4, the term FDAP income means fixed or determinable annual or periodic income that is described in §1.1441-2(b)(1) or §1.1441-2(c) (excluding income described in paragraph (a)(2)(vi) of this section or §1.1441-2(b)(2) (such as gains derived from the sale of certain property)) and including the types of income enumerated in paragraphs (a)(2)(iii) through (v) of this section.

(i)(B) U.S. source [§1.1473-1(a)(2)(i)(B)]

The term U.S. source means derived from sources within the United States. A payment is derived from sources within the United States if it is income treated as derived from sources within the United States under sections 861 through 865 and other relevant provisions of the Code. In the case of a payment of FDAP income for which the source cannot be determined at the time of payment, see §1.1471-2(a)(5).

(i)(C) Exceptions to withholding on U.S. source FDAP income not applicable under chapter 4 [§1.1473-1(a)(2)(i)(C)]

Except as otherwise provided in paragraph (a)(4) of this section, no exception to withholding on U.S. source FDAP income for purposes other than chapter 4 applies for purposes of determining whether a payment of such income is a withholdable payment under chapter 4. Thus, for example, an exclusion from an amount subject to withholding under §1.1441-2(a) or an exclusion from taxation under section 881 does not apply for purposes of determining whether such income constitutes a withholdable payment.

(2)(ii) Special rule for certain interest [§1.1473-1(a)(2)(ii)]

Interestthat is described in section 861(a)(1)(A) (relating to interest paid by foreign branches of domestic corporations and partnerships) is treated as U.S. source FDAP income.

(2)(iii) Original issue discount [§1.1473-1(a)(2)(iii)]

The rules described in §1.1441-2(b)(3)(ii) for determining when an amount representing original issue discount is subject to withholding for chapter 3 purposes apply for purposes of determining when original issue discount from sources within the United States is U.S. source FDAP income. (2)(iv) REMIC residual interests [§1.1473-1(a)(2)(iv)]

U.S. source FDAP income includes an amount described in §1.1441-2(b)(5) .

(2)(v) Withholding liability of payee that is satisfied by withholding agent [§1.1473-1(a)(2)(v)]

If a withholding agent satisfies a withholding liability arising under chapter 4 with respect to a withholdable payment from the withholding agent’s own funds, the satisfaction of such liability is treated as an additional payment of U.S. source FDAP income to the payee to the extent that the withholding agent’s satisfaction of such withholding liability also satisfies a tax liability of the payee under section 881 or 871 with respect to the same payment, and the satisfaction of the tax liability constitutes additional income to the payee under §1.1441-3(f) that is U.S. source FDAP income. In such case, the amount of any additional payment treated as made by the withholding agent for purposes of this paragraph (a)(2)(v) and any tax liability resulting from such payment shall be determined under §1.1441-3(f). See §1.1474-6 regarding the coordination of the withholding requirements under chapters 3 and 4 in the case of a withholdable payment that is also subject to withholding under chapter 3.

(2)(vi) Special rule for sales of interest bearing debt obligations [§1.1473-1(a)(2)(vi)]

[Reserved]. For further guidance, see §1.1473-1T(a)(2)(vi).

Special rule for sales of interest bearing debt obligations. Income that is otherwise described as U.S. source FDAP income in paragraphs (a)(2)(i) through (v) of this section does not include an amount of interest accrued on the date of a sale or exchange of an interest bearing debt obligation if the sale occurs between two interest payment dates and is not part of a plan described in §1.1441-3(b)(2)(ii).

(2)(vii) Payment of U.S. source FDAP income [§1.1473-1(a)(2)(vii)]

(vii)(A) Amount of payment of U.S. source FDAP income [§1.1473-1(a)(2)(vii)(A)]

The amount of U.S. source FDAP income is the gross amount of the payment of such income, unreduced by any deductions or offsets. The rules of §1.1441-3(b)(1) shall apply to determine the amount of an interest payment on an interest-bearing obligation. In the case of a corporate distribution, the distributing corporation or intermediary shall determine the portion of the distribution that is treated as U.S. source FDAP income under this paragraph (a)(2) in the same manner as the distributing corporation or intermediary determines the portion of the distribution subject to withholding under §1.1441-3(c). Any portion of a payment on a debt instrument or a corporate distribution that does not constitute U.S. source FDAP income under this paragraph (a)(2) solely because of a provision other than the source rules of sections 861 through 865 shall be taken into account as gross proceeds under paragraph (a)(3) of this section. For rules regarding the determination of the amount of a payment of U.S. source FDAP income under paragraph (a)(2) of this section made in a medium other than U.S. dollars, see §1.1441-3(e). For determining the amount of a payment of a dividend equivalent, see section 871(m) and the regulations thereunder.

(vii)(B) When payment of U.S. source FDAP income is made [§1.1473-1(a)(2)(vii)(B)]

A payment is considered made when the amount would be includible in the income of the beneficial owner under the U.S. tax principles governing the cash method of accounting. If an FFI acts as an intermediary with respect to a payment of U.S. source FDAP income, the FFI will be treated as making a payment of such U.S. source FDAP income to the person with respect to which the FFI acts as an intermediary when it pays or credits such amount to such person. The following rules also apply for purposes of this paragraph (a)(2)(vii)(B): §§1.1441-2(e)(2) (regarding when a payment is considered made in the case of income allocated under section 482); 1.1441-2(e)(3) (regarding blocked income); 1.1441-2(e)(4) (regarding when a dividend is considered paid); and 1.1441-2(e)(5) (regarding when interest is considered paid if a foreign person has made an election under §1.884-4(c)(1)) .

100040 – Background – Foreign Account Tax Compliance Act (FATCA)

100040 – Background – Foreign Account Tax Compliance Act (FATCA)

In 2010 the United States enacted the Foreign Account Tax Compliance Act provisions (FATCA) which are contained in the HIRE Act 2010. These provisions are aimed at reducing tax evasion by US citizens andentities.

FATCA requires financial institutions outside the USA to pass information about their USA customers to the US tax administration, the Internal Revenue Service. The legislation allows for a 30% withholding tax to be applied to the US source income of any non-­‐US financial institution that fails to comply with this requirement. This caused a number of issues for UK financial institutions not least of which was how they could comply with the requirements of FATCA without breaching data protection restrictions.

On 12 September 2012 the UK and the USA signed a Treaty to implement FATCA in the UK – “The UK-­‐US Agreement to Improve International Tax Compliance and to Implement FATCA” (the US IGA). Legislation at section 222 Finance Act 2013 provides HM Treasury with powers to make regulations to give effect to this and other similar agreements. The US IGA was brought into force by the Tax Compliance (United States of America) Regulations 2014, which were subsequently incorporated into the International Tax Compliance Regulations 2015 (SI 2015/878). These regulations impose obligations on UK financial institutions to identify, maintain and report information to HMRC on financial accounts held by US citizens and entities. There is an also a requirement under FATCA for Reporting Financial Institutions to report payments to Non-Participating Financial Institutions (see FATCA Guidance paragraphs 2.5 and 9.4). Provided these financial institutions comply with the requirements of the legislation they will not be subject to the 30% withholding tax on US source income.

U.S. source FDAP income

Source URL: https://haydonperryman.com/terms-and-definitions/u-s-source-fdap-income/

U.S. source FDAP income

FATCA

U.S. source FDAP income defined [§1.1473-1(a)(2)](2)(i) In general [§1.1473-1(a)(2)(i)]

(i)(A) FDAP income defined [§1.1473-1(a)(2)(i)(A)]

For purposes of chapter 4, the term FDAP income means fixed or determinable annual or periodic income that is described in §1.1441-2(b)(1) or §1.1441-2(c) (excluding income described in paragraph (a)(2)(vi) of this section or §1.1441-2(b)(2) (such as gains derived from the sale of certain property)) and including the types of income enumerated in paragraphs (a)(2)(iii) through (v) of this section.

(i)(B) U.S. source [§1.1473-1(a)(2)(i)(B)]

The term U.S. source means derived from sources within the United States. A payment is derived from sources within the United States if it is income treated as derived from sources within the United States under sections 861 through 865 and other relevant provisions of the Code. In the case of a payment of FDAP income for which the source cannot be determined at the time of payment, see §1.1471-2(a)(5).

(i)(C) Exceptions to withholding on U.S. source FDAP income not applicable under chapter 4 [§1.1473-1(a)(2)(i)(C)]

Except as otherwise provided in paragraph (a)(4) of this section, no exception to withholding on U.S. source FDAP income for purposes other than chapter 4 applies for purposes of determining whether a payment of such income is a withholdable payment under chapter 4. Thus, for example, an exclusion from an amount subject to withholding under §1.1441-2(a) or an exclusion from taxation under section 881 does not apply for purposes of determining whether such income constitutes a withholdable payment.

(2)(ii) Special rule for certain interest [§1.1473-1(a)(2)(ii)]

Interestthat is described in section 861(a)(1)(A) (relating to interest paid by foreign branches of domestic corporations and partnerships) is treated as U.S. source FDAP income.

(2)(iii) Original issue discount [§1.1473-1(a)(2)(iii)]

The rules described in §1.1441-2(b)(3)(ii) for determining when an amount representing original issue discount is subject to withholding for chapter 3 purposes apply for purposes of determining when original issue discount from sources within the United States is U.S. source FDAP income. (2)(iv) REMIC residual interests [§1.1473-1(a)(2)(iv)]

U.S. source FDAP income includes an amount described in §1.1441-2(b)(5).

(2)(v) Withholding liability of payee that is satisfied by withholding agent [§1.1473-1(a)(2)(v)]

If a withholding agent satisfies a withholding liability arising under chapter 4 with respect to a withholdable payment from the withholding agent’s own funds, the satisfaction of such liability is treated as an additional payment of U.S. source FDAP income to the payee to the extent that the withholding agent’s satisfaction of such withholding liability also satisfies a tax liability of the payee under section 881 or 871 with respect to the same payment, and the satisfaction of the tax liability constitutes additional income to the payee under §1.1441-3(f) that is U.S. source FDAP income. In such case, the amount of any additional payment treated as made by the withholding agent for purposes of this paragraph (a)(2)(v) and any tax liability resulting from such payment shall be determined under §1.1441-3(f). See §1.1474-6 regarding the coordination of the withholding requirements under chapters 3 and 4 in the case of a withholdable payment that is also subject to withholding under chapter 3.

(2)(vi) Special rule for sales of interest bearing debt obligations [§1.1473-1(a)(2)(vi)]

[Reserved]. For further guidance, see §1.1473-1T(a)(2)(vi).

Special rule for sales of interest bearing debt obligations. Income that is otherwise described as U.S. source FDAP income in paragraphs (a)(2)(i) through (v) of this section does not include an amount of interest accrued on the date of a sale or exchange of an interest bearing debt obligation if the sale occurs between two interest payment dates and is not part of a plan described in §1.1441-3(b)(2)(ii).

(2)(vii) Payment of U.S. source FDAP income [§1.1473-1(a)(2)(vii)]

(vii)(A) Amount of payment of U.S. source FDAP income [§1.1473-1(a)(2)(vii)(A)]

The amount of U.S. source FDAP income is the gross amount of the payment of such income, unreduced by any deductions or offsets. The rules of §1.1441-3(b)(1) shall apply to determine the amount of an interest payment on an interest-bearing obligation. In the case of a corporate distribution, the distributing corporation or intermediary shall determine the portion of the distribution that is treated as U.S. source FDAP income under this paragraph (a)(2) in the same manner as the distributing corporation or intermediary determines the portion of the distribution subject to withholding under §1.1441-3(c). Any portion of a payment on a debt instrument or a corporate distribution that does not constitute U.S. source FDAP income under this paragraph (a)(2) solely because of a provision other than the source rules of sections 861 through 865 shall be taken into account as gross proceeds under paragraph (a)(3) of this section. For rules regarding the determination of the amount of a payment of U.S. source FDAP income under paragraph (a)(2) of this section made in a medium other than U.S. dollars, see §1.1441-3(e). For determining the amount of a payment of a dividend equivalent, see section 871(m) and the regulations thereunder.

(vii)(B) When payment of U.S. source FDAP income is made [§1.1473-1(a)(2)(vii)(B)]

A payment is considered made when the amount would be includible in the income of the beneficial owner under the U.S. tax principles governing the cash method of accounting. If an FFI acts as an intermediary with respect to a payment of U.S. source FDAP income, the FFI will be treated as making a payment of such U.S. source FDAP income to the person with respect to which the FFI acts as an intermediary when it pays or credits such amount to such person. The following rules also apply for purposes of this paragraph (a)(2)(vii)(B): §§1.1441-2(e)(2) (regarding when a payment is considered made in the case of income allocated under section 482); 1.1441-2(e)(3) (regarding blocked income); 1.1441-2(e)(4) (regarding when a dividend is considered paid); and 1.1441-2(e)(5) (regarding when interest is considered paid if a foreign person has made an election under §1.884-4(c)(1)).

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