Withholding and FATCA

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On July 11, 2023, the Senate Finance Committee released an open letter to the Digital Asset Community asking a variety of questions in connection with possible future legislation. Public comments must be emailed to the Senate Finance Committee staff at responses@finance.senate.gov by September 8, 2023. The questions are related to the following nine general areas.

  • Marking-to-market for traders and dealers;
  • Trading safe harbor;
  • Treatment of loans of digital assets;
  • Wash sales;
  • Constructive sales;
  • Timing and source of income earned from staking and mining;
  • Nonfunctional currency;
  • FATCA and FBAR reporting; and
  • Valuation and substantiation.

The balance of this blog describes each area, lists each question, and discusses certain of them.

On June 7, 2019, the U.S. Treasury Department (“Treasury”) and the Internal Revenue Service (“IRS”) released proposed Treasury regulations under Sections 897, 1445 and 1446 (the “Proposed Regulations”) regarding the exception for qualified foreign pension funds (“QFPFs”) from taxation under the Foreign Investment in Real Property Tax Act (“FIRPTA”) provisions…

On May 13, 2019, the U.S. Internal Revenue Service (“IRS”) and Treasury Department published proposed regulations providing guidance on the rules imposing withholding and reporting requirements under the Code[1] on dispositions of certain partnership interests by non-U.S. persons (the “Proposed Regulations”). The Proposed Regulations expand and in important ways modify earlier Notice 2018-29[2] on dispositions of non-publicly traded partnership interests.[3] Unless otherwise specified, this post focuses on the aspects of the Proposed Regulations affecting transfers of interests in non-publicly traded partnerships.

Enacted as part of the “Tax Cuts and Jobs Act”, Section 1446(f) generally requires a transferee, in connection with a disposition of a partnership interest by a non-U.S. person, to withhold and remit 10 percent of the “amount realized” by the transferor, if any portion of any gain realized by the transferor would be treated as effectively connected with the conduct of a trade or business in the United States under the substantive sourcing rule of Section 864(c)(8).[4]

Prior to issuing the Proposed Regulations, the IRS issued Notice 2018-08 and Notice 2018-29 to provide interim guidance with respect to these withholding and information reporting requirements. On December 27, 2018, the IRS issued proposed regulations under Section 864(c)(8), providing rules determining the amount of gain or loss treated as effectively connected gain or loss with a U.S. trade or business.

On December 13, 2018, the Internal Revenue Service (the “IRS”) and the U.S. Department of the Treasury (the “Treasury”) issued proposed regulations (the “Proposed Regulations”) addressing various aspects of the withholding and information reporting regime commonly referred to as “FATCA”.[1] The Proposed Regulations provide significant relief from potential withholding and compliance burdens that U.S. and non-U.S. financial institutions would otherwise be subject to under FATCA. The preamble to the Proposed Regulations announces that taxpayers may generally rely on the Proposed Regulations pending issuance of final regulations.

Read this post for a brief background of FATCA and a discussion of the most important aspects of the Proposed Regulations. For more information please contact any of the Proskauer tax lawyers listed on this post or your regular Proskauer contact.

On April 2, 2018, the Internal Revenue Service (“IRS”) released Notice 2018-29[1] (the “Notice”), announcing the intention of the IRS and the Department of the Treasury to issue regulations regarding the withholding requirements under Section 1446(f),[2] which was promulgated pursuant to recently enacted U.S. tax legislation, commonly referred…

On April 6, 2017, the Internal Revenue Service (the IRS) added three new frequently asked questions to its Foreign Account Tax Compliance Act (“FATCA”) compliance page, which is available only online.[1] These additional FAQs clarify recent temporary regulations (the “Temporary Regulations”) requiring that a beneficial owner withholding certificate contain a foreign taxpayer identification number (“TIN”) and, in the case of an individual beneficial owner, such individual beneficial owner’s date of birth.[2] The FAQs provide temporary relief for calendar year 2017, describing less stringent requirements that are effective through December, 2017.