FATCA temporary relief for missing US TINs

1.1 Notice 2023-11: Temporary Relief for Foreign Financial Institutions Required to Report US TINs

• The IRS published Notice 2023-11: Temporary Relief for Foreign Financial Institutions Required to Report US TINs on 30 December 2022.
• This Notice provides relief for certain FFIs (including Irish FFIs) required to report US TINs for prescribed Pre-Existing Accounts, as defined in an applicable Model I IGA.
  
• If an FFI in an eligible Model I IGA jurisdiction complies with the requirements prescribed in this Notice, then it will not be considered to be in “significant non-compliance”, which could ultimately lead to the FFI being considered a “Non-Participating FFI” and subject to 30% withholding tax on certain US source payments.
  
• For reporting on the calendar years 2022, 2023 and 2024, the US Competent Authority will not determine that there is significant non-compliance by a Reporting Model I FFI solely due to a failure to obtain and report each US TIN with respect to a Pre-Existing Account, provided that the conditions set out in the Notice are met.
  
• In particular, a Reporting Model I FFI must be in an eligible Model I IGA jurisdiction (as defined) and for each US Reportable Account with a missing US TIN, the Reporting Model I FFI:
  • Obtains and reports the date of birth of each Account Holder that is an Individual and Controlling Person whose US TIN is not reported.
  • Starting in calendar year 2023, annually requests from each Account Holder any missing US TINs (see further details below);
  • Starting in calendar year 2023, annually searches electronically searchable data maintained by the Reporting Model I FFI for any missing US TINs; and
  • Reports an accurate TIN Code (Reporting FAQ #6) for each account that is missing a US TIN. For the calendar year 2022, this condition may be satisfied by a Reporting Model I FFI by using either the TIN Codes issued by the IRS in May 2021 or the updated TIN Codes issued by the IRS in early 2023. For the calendar years 2023 and 2024, the most recent TIN Codes issued by the IRS must be used.

1.2 Annual US TIN request requirements for calendar year 2023 onwards

• To satisfy the requirement to make an annual request from each Account Holder for missing US TINs, Reporting Model I FFIs must use the method of communication that is, in the FFI's reasonable judgement, most likely to reach the Account Holder. Additionally, the communication must include either of the following:
• The web address of the State Department’s Joint FATCA FAQs (https://travel.state.gov/content/travel/en/international-travel/while-abroad/Joint-Foreign-Account-Tax-Compliance-FATCA-FAQ.html); or
  
• A copy of the FAQs described in the preceding bullet; and either (i) A copy of the relief procedures provided by the IRS for certain former citizens; or (ii) the web address for such procedures (https://www.irs.gov/individuals/international-taxpayers/relief-procedures-for-certain-former-citizens).

An FFI must retain records of the policies and procedures adopted to satisfy the requirement to make an annual request from each Account Holder for missing US TINs and documentation that those policies and procedures were followed to establish its compliance with these requirements until the end of the calendar year 2028.

1.3 Eligible Model I IGA jurisdiction requirements to qualify for temporary US TIN relief  

There are also conditions that must be met by each Model I IGA jurisdiction (including Ireland) in order to be considered an “eligible” Model I IGA Jurisdiction. For a Reporting Model I FFI to be eligible for the relief described in the Notice, the relevant Model I IGA jurisdiction must make good faith efforts, by the date that is nine months after the end of the calendar year to which the information relates to do the following:

1. Encourage US citizens resident in the jurisdiction to provide US TINs to FFIs when requested;
2. Take measures to enforce compliance by Reporting Model I FFIs identified by the US Competent Authority to the Model I IGA jurisdiction as potentially non-compliant;
3. Encourage FFIs located in a Model I IGA jurisdiction to not discriminate against US citizens that do provide a US TIN; and
4. If notified by the US Competent Authority, take steps to conclude Competent Authority Arrangements with the US Competent Authority, to implement an IGA, amend an Annex II to an IGA or exchange country-by-country information. 

To provide a transition period for the satisfaction of the above conditions, the conditions will be deemed to have been satisfied for the calendar year 2022.

2.1 MCAA Signatories

On 22 November 2022, the OECD published a revised list of MCAA Signatories, bringing the total number of signatories to 119.