Singapore and US shake hands on FATCA

By Desmond Teo & Mercy Joseph

Singapore is on the brink of concluding an agreement with the US to clamp down on tax evasion by US citizens or residents (US persons), a move that will enhance Singapore’s credentials as a global financial hub.

On 6 May 2014, Singapore announced that it had substantially concluded discussions with the US on a tax information sharing agreement that will help Singapore-based financial institutions comply with the US Foreign Account Tax Compliance Act (FATCA).

In fact, the wheels for this had already been set in motion more than a year ago. Singapore had announced on 14 May 2013 that it intended to ink a Model 1 Intergovernmental Agreement (IGA) with the US on FATCA. On 5 May 2014, Singapore was added to the US Internal Revenue Service’s (IRS) list of jurisdictions that have “reached agreements in substance”. The IGA with the US is expected to be signed in the second half of this year.

Enacted in the US Congress in March 2010, FATCA aims to prevent US persons from using offshore accounts to avoid paying US taxes. Under this legislation, financial institutions outside the US are required to report, on an annual basis, information about financial accounts held by US persons either directly or through other non-US entities to the IRS as well as withhold tax in certain prescribed situations. Non-compliant foreign financial institutions face a 30% FATCA-related withholding tax on certain US source payments.

Under the Model 1 IGA, exchange of information on accounts held by US persons will be done on a government-to-government level. Singapore-based financial institutions, including banks, custodians, trust companies, insurers, and asset management groups, will be required to identify, review, and report information on financial accounts held by US persons to the Inland Revenue Authority of Singapore (IRAS), which will in turn provide the information to the US Internal Revenue Service (IRS).

Providing certainty to financial institutions

Being one of the first Asean nations to commit to an IGA with the US, Singapore’s move will surely earn itself plaudits among financial institutions operating in Singapore. The swiftness and decisiveness of its decision provides certainty and clarity to financial institutions on the government’s position on FATCA.

A Model 1 IGA is also a less cumbersome option than a Model 2 IGA. Under the latter model, governments take a less involved approach, leaving the financial institutions to deal directly with the IRS in reporting prescribed information on US persons.

That said, Singapore-based financial institutions will still have to register with the IRS (where applicable) to identify themselves as Model 1 IGA financial institutions and obtain a Global Intermediary Identification Number (GIIN).

The deadlines to register for FATCA and ensure inclusion on the first and second IRS list were 5 May 2014 and 3 June 2014 respectively. With the clarity on the IGA, Singapore-based financial institutions will now have until 31 December 2014 to register and obtain a GIIN.

An IGA will also see withholding tax requirements under the FATCA legislation suspended. Certain entities that could otherwise be caught by FATCA may also now be considered as exempt or “deemed compliant” under the IGA, making the compliance with FATCA more straightforward.

Going forward

We expect to see regulations and more guidance from the Singapore authorities in the course of 2014 on FATCA and the IGA. The Ministry of Finance is expected to hold a consultation on the draft guidance that is expected to be released.

With Singapore taking the leap, will other countries in the region follow suit? It will be interesting to see how the overall impact of such developments on the financial ecosystem within the region will unravel.

The IRS has issued a further guidance notice announcing that calendar years 2014 and 2015 will be regarded as a transition period for purposes of IRS enforcement and administration with respect to the implementation of FATCA. Financial institutions that have not made efforts in good faith to comply with the new requirement will not be given any relief from IRS enforcement during the transition period. The US Treasury is also working with the IRS on technical updates to the temporary FATCA regulations.

Finally, FATCA has been lauded as a reporting structure from which the Organisation for Economic Development’s (OECD) looming Common Reporting Standard (CRS) can benefit, insofar as the latter is intended to be a system which builds upon the former (albeit with design variations). During the OECD annual tax conference held over 2-3 June 2014, the panel discussed the intention for the CRS to be the automatic exchange of information standard implemented by OECD and non-OECD jurisdictions by the end of 2015.

While this is a topic for a separate discussion, all eyes are on the horizon to see how the looming “Global FATCA” will affect financial institutions in Singapore notwithstanding that the city-state is not an OECD member.

In a nutshell, financial institutions have to get their house in order. Systems need to be improved for additional monitoring and reporting activity, due diligence processes need to be strengthened, and staff will need to be trained for what is possibly a new decree in the realm of international finance.

The views reflected in this article are the views of the author and do not necessarily reflect the views of the global EY organisation or its member firms.

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