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Foreign Account Tax Compliance Act (FATCA) Framework

Last Updated on June 13, 2025 by Arnaud Collignon

This title introduces a suite of measures designed to improve transparency and enforcement regarding foreign financial assets.

  • Foreign Account Tax Compliance Act (FATCA) Framework (New Sections 1471-1473):Withholding on Payments to Foreign Financial Institutions (FFIs): A new section 1471 mandates a 30% withholding tax on “withholdable payments” made to FFIs that do not agree to provide the IRS with information about “United States accounts.”
  • FFI Requirements: Agreements require FFIs to obtain information on accounts, comply with verification/due diligence, report annually on U.S. accounts, and attempt to obtain waivers from account holders if foreign law prevents reporting, or close the account if a waiver is not obtained.
  • Definition of “United States account”: Any financial account held by one or more “specified United States persons” or “United States owned foreign entities.” Exceptions exist for certain low-value depository accounts and accounts already subject to duplicative reporting.
  • Definition of “Foreign financial institution”: Any financial institution that is a foreign entity, generally excluding those organized under laws of U.S. possessions.
  • Definition of “Financial institution”: Any entity that accepts deposits, holds financial assets for others as a substantial portion of business, or is primarily engaged in investing/trading securities or commodities.
  • “Recalcitrant account holder”: An account holder failing to provide requested information or a waiver.
  • Withholding on Passthru Payments to Nonparticipating FFIs and Recalcitrant Account Holders (New Section 1472): Imposes a 30% withholding tax on “passthru payments” to nonparticipating FFIs or recalcitrant account holders.
  • Definitions (New Section 1473): Clarifies terms like “withholdable payment,” “substantial United States owner,” “specified United States person,” and “non-financial foreign entity.”
  • Repeal of Certain Foreign Exceptions to Registered Bond Requirements (Section 502): Eliminates previous exceptions that allowed non-registered bonds to avoid certain tax disadvantages, particularly for foreign holders. This applies to “obligations issued after the date which is 2 years after the date of the enactment of this Act.”
  • Disclosure of Information with Respect to Foreign Financial Assets (Section 511, New Section 6038D):Reporting Requirement: Any individual holding an interest in a “specified foreign financial asset” must attach information about it to their tax return if the aggregate value exceeds $50,000 (or higher as prescribed).
  • “Specified foreign financial asset”: Defined as any financial account maintained by a foreign financial institution or, to the extent provided by the Secretary, any stock or securities issued by a non-U.S. person, or any interest in a foreign entity.
  • Penalties for Non-compliance: Penalties of $10,000 for initial failure, and an additional $10,000 for each 30-day period of continued failure after notification, up to $50,000.
  • Presumption of Value: If an individual doesn’t provide sufficient information, the assets are “treated as being in excess of $50,000” for penalty assessment.
  • Effective Date: Applies to “taxable years beginning after the date of the enactment of this Act.”
  • Penalties for Underpayments Attributable to Undisclosed Foreign Financial Assets (Section 512, Section 6662): Introduces a new category of accuracy-related penalty: “Any undisclosed foreign financial asset understatement.” This is a significant expansion of existing penalty regimes.
  • Statute of Limitations for Failure to Report (Section 513, Section 6501): Extends the period for assessing tax if there is an omission of gross income related to offshore financial assets or failure to report information.
  • Reporting Requirements of United States Owners of Foreign Trusts (Section 534, Section 6048(b)): Amends existing law to explicitly require U.S. owners of foreign trusts to “submit such information as the Secretary may prescribe with respect to such trust for such year.”
  • Minimum Penalty for Failure to Report on Certain Foreign Trusts (Section 535, Section 6677): Increases the minimum penalty for failure to report foreign trust information to “the greater of $10,000 or 35 percent of the gross reportable amount.”
  • Substitute Dividends and Dividend Equivalent Payments Received by Foreign Persons Treated as Dividends (Section 541, New Section 871(l)):Tax Treatment: “a dividend equivalent shall be treated as a dividend from sources within the United States” for various tax purposes.
  • “Dividend equivalent”: Includes substitute dividends from securities lending/sale-repurchase transactions, payments from “specified notional principal contracts” contingent on U.S. dividends, and other similar payments determined by the Secretary.
  • Purpose: Aims to prevent tax avoidance by foreign persons through derivative instruments that mimic dividend income without incurring dividend withholding tax.