Updated Irish Revenue guidance notes published

Updated Irish Revenue guidance notes published

On 2 October, the Irish Revenue Commissioners published Updated Guidance Notes on FATCA, which govern the implementation of the FATCA provisions contained in Ireland’s Intergovernmental Agreement (“IGA”) with the US and the related Final Regulations (S.I. No. 292 of 2014).  

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The updated Guidance Notes include a number of helpful clarifications and examples, including those highlighted below.

Should you require assistance with meeting your obligations under Ireland’s IGA or other Automatic Exchange of Information (“AEoI”) protocols, please contact Kevin Cohen, Rachel Hewitt or another member of your KPMG team.

Relevant Holding Company/Relevant Treasury Company FFI Classifications

  • Inclusion of guidance with respect to the application of the two new FFI classifications adopted in the Final Irish Regulations for Relevant Holding Companies and Relevant Treasury Companies 
  • Confirmation that the term “Financial Group” will be broadly defined to include any group with one of the original four FFI classifications (i.e. Custodial Institution, Depository Institution, Investment Entity, or Specified Insurance Company) 
  • Defines the term “wholly or mainly” to mean “greater than 50% of the company’s business”, however, as the term “business” is not further defined; it
    is likely that further clarification will be required

Investment Entity Exemptions

  • Explicit carve out from the definition of an Investment Entity for REITs that have non-debt direct interests in real property 
  • However, the carve-out does not specifically address the FATCA status of the REIT where the REIT is established with a number of 100% subsidiaries, each of which holds the underlying property 
  • No further examples provided of assets that may qualify for this exemption, such as tangible movable property 

Umbrella vs. Sub-Funds

  • Express guidance included which indicates that an umbrella fund may elect to complete its FATCA registration and reporting obligations at either the umbrella
    or sub-fund level

Investment Managers and Investment Advisors & Other Non-Reporting FFI Exemptions

  • Inclusion of FATCA registration and reporting exemption for certain Investment Mangers and Investment Advisors that may have otherwise been
    classified as Investment Entities, provided specific conditions are met 
  • Incorporation of the latest US Regulations Non-Reporting FFI exemptions 
  • The conditions required to meet the “Limited Life Debt Investment Entity Exemption” were updated to reflect the latest US Regulations, however the Irish Guidance Notes still indicate that this is a temporary exemption that only applies until 31 December 2016, notwithstanding that this expiration date is no longer referenced in the US Regulations

Depository Account - Credit Card Exemption

  • Inclusion of an exemption for Credit Cards from the definition of a Depository Account, where the credit card issuer implements policies and procedures (by the later of 30 June 2014 or the date it registers as a Financial Institution) either to prevent a customer deposit via the credit card in excess of $50,000 or to ensure that any customer deposit via the credit card in excess of $50,000 is refunded to the customer within 60 days

Self-Certifications

Inclusion of additional guidance with respect to the account due diligence, self-certification and documentation requirements, including:

  • Confirmation that IRS withholding certificates (e.g. W-8 or W-9 series) are acceptable in establishing an Account Holder’s status, including a pre-FATCA W-8 Form, until such time that the W-8 needs to be updated; 
  • Provision that a Reporting Irish Financial Institution can use its own forms to support an Account Holder’s status; and 
  • Clarification that documentation collected (including self-certifications) to establish an Account Holder’s status will remain valid indefinitely until there is a change in circumstances/knowledge

Responsible Officer

  • Clarification that the title of “Responsible Officer” included in the GIIN registration application on the IRS portal does not invoke the US Treasury concept of a Responsible Officer (i.e. penalty of perjury provisions) 
  • Outlines that a Responsible Officer merely serves as a Point of Contact to the IRS, is responsible for submitting the GIIN registration application to the IRS and can authorise one or more Points of Contact for the registering Irish Financial Institution
     

FATCA Return

  • Clarification that the US FATCA XML schema format must be used for all returns or else the return will not be accepted by the Irish Revenue Commissioners  
  • Transmission of the FATCA return to the Irish Revenue Commissioners will be completed via ROS

A number of other changes or clarifications were also introduced in relation to account closures, payments made to Non-Participating Financial Institutions, the Central Securities Depository, Transfer Agents, Placing Agents, and the meaning of Regularly Traded on an Established Securities Market.
 

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