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By Prof. William H. Byrnes IV and Haydon Perryman *
Foreign financial institutions (FFIs), along with their branches and affiliates, are defined as an "expanded affiliated group." There are 3,778 Lead Entities of EAGs among the approximately 88,000 FFI registrations from 250 countries...
FATCA EAG DefinitionThe FFI and its branches and affiliates are defined as an "expanded affiliated group" ("EAG"). An entity is a part of an EAG if it is affiliated with a common parent that directly or indirectly owns over 50% of the stock by vote and value of such corporation, or in the case of a partnership or non-corporate entity, owns over 50% by value of the beneficial interest of such partnership or non-corporate entity. [26 U.S. Code § 1471 - Withholdable payments to foreign financial institutions.]
Subject to certain phase-in provisions regarding "Limited Branches" and "Limited Affiliates",... each FFI that is a member of an EAG must obtain the status of either a PFFI or RDCFFI before any of the other group members are able to obtain the benefit of either such status. Said another way, one bad apple poisons the barrel, and leads to FATCA withholding for all....
Limited Branches and Affiliates Exceptions Under the FATCA RegulationsA FFI is, however, allowed to be a PFFI even if one or more of its branches cannot satisfy all of the requirements of an FFI-agreement under important exceptions to the general rule regarding "limited branch" and "limited FFI affiliates".An FFI is permitted to obtain "participating FFI" status if one or more of its branches are non-compliant under the "limited branch" exception. The limited branch exception applies to those FFIs that are in a jurisdiction that has applicable law that prohibits the FFI from reporting, closing, or transferring U.S. accounts, or withholding, closing, blocking, or transferring recalcitrant or nonparticipating FFI accounts. In such case, the limited branch is treated as a "nonparticipating FFI" even though it is an affiliated branch of the "participating FFI." The other branches with "participating FFI" status must withhold on payments to the limited branch. The limited branch must not open U.S. accounts and must identify itself as a "nonparticipating FFI" to withholding agents....
A Reporting Model IGA FFI may continue to treat branches and affiliates as compliant under the limited branch and limited FFI exceptions even after the expiration of the transitional rule, provided that the branch or affiliate is still unable to comply with FATCA due to restrictions under local law and the Reporting Model FFI continues to comply with its obligations under the IGA with respect to such limited branches or affiliates.
* Prof. William H. Byrnes, IV is the Associate Dean of the Walter H. & Dorothy B. Diamond International Tax & Financial Services Graduate Program. He has achieved authoritative prominence with more than 38 book and compendium volumes, 93 book, treatise and supplement chapters, and 800 articles. Professionally, William Byrnes left Coopers and Lybrand as an Associate Director to full time academia wherein he pioneered online legal education in 1995, thereafter creating the first online LL.M. offered by an ABA accredited law school. He trains and supervises more than 200 professional and government LLM and JSD candidates annually for international tax and money laundering compliance. Haydon Perryman is a FATCA Compliance Expert with Strevus (http://www.strevus.com/).Information referenced herein is provided for educational purposes only. For legal advice applicable to the facts of your particular situation, you should obtain the services of a qualified attorney licensed to practice law in your state.
LEXIS users can view the complete commentary HERE. Additional fees may apply. (Approx. 33 pages)
RELATED LINKS: For more on FATCA and its requirements, see:
"Completing FATCA Forms," by Prof. William H. Byrnes IV
"FATCA FFI Registrations as of July 2014," by Prof. William H. Byrnes IV and Haydon Perryman