International Tax Legislation
Under FATCA (Foreign Account Tax Compliance Act), adopted by New Zealand in 2014, the United States aims to detect and prevent tax evasion by US citizens and tax residents on their worldwide income from financial assets owned by an offshore entity, which they control e.g. a family trust or company settled/incorporated in New Zealand.
Additionally, from 1 July 2017, New Zealand endorsed the OECD’s standard Automatic Exchange of Financial Information in Tax matters (AEOI), which incorporates the Common Reporting Standard (CRS), a global version of FATCA. New Zealand is one of many OECD nations to have signed a multi-lateral agreement to combat offshore tax evasion on a global scale. All citizens of these countries are subject to the same level of tax scrutiny in New Zealand and the other participating countries, as are Americans under FATCA.
All entities (family trusts, companies and partnerships, but not individuals) have to comply with this legislation. All professionals, such as lawyers, accountants, investment fund managers/advisors etc need to advise their “entity” clients of their obligations under this complex and far-reaching legislation.
Is your trust/company/partnership (“entity”) a Financial Institution under FATCA or CRS?
It is important to know whether or not your entity (trust, company, partnership) is either a Foreign Financial Institution (FFI) under FATCA or a Financial Institution (FI) under CRS, both or neither. If your entity is a FFI then it needs to register on the United States Internal Revenue Services (IRS) site. If your entity is a FI under CRS then your entity will have to disclose to IRD in New Zealand all financial information and personal details for those trustees and beneficiaries who are residing overseas in one of the other participating jurisdictions combating offshore tax evasion.
We are in the process of corresponding with all of our trust clients and providing them with a form to assist the trustees decide whether or not their trust has to register on the US site and ultimately, report to our IRD under CRS. If you are a trust client of ours, and you have not yet received this form, please contact us.
Can this legislation be ignored?
Unfortunately, registration on the IRS site under FATCA is compulsory, even if your trust is not “controlled” by any US tax resident or citizen, provided that:
(a) It has some financial assets (shares, bonds, term deposits) managed by an investment advisor/fund manager; OR an FFI, such as one of our corporate trustees is one of the trustees of your trust; AND
(b) More than 50% of the trust’s gross income for the preceding calendar year comes from financial assets (excluding rental from property).
Unfortunately, (b) above will be satisfied even if the only income producing asset of the trust is a bank account which earns minimal interest. However, if the trust or other entity earns the majority of its income from residential rentals, it will not satisfy (b) above.
Once registered, no further personal information disclosure is needed, if there is no such “control” by a US tax resident or citizen. By contrast, registration on the IRD site under CRS is required only if your entity is “controlled” by anyone who resides overseas (but not the US).
What if my entity is not a FFI or FI?
If your entity is neither a FFI or FI then it will, by default, be a NFFE (Not a Foreign Financial Entity) or a NFE (Not a Financial Entity). As such, your entity will not have registration requirements, however it may have reporting obligations to other FFI’s/FI’s such as a bank with which your entity has funds or an investment advisor with whom your entity has a share portfolio. Such institutions will send to their customers/clients Self-Certification Forms, similar to those we are sending to our trust clients. If the completion of these forms conclude that your entity is a passive NFFE/NFE then it must, on request, disclose details of US and other overseas controlling persons to the entity’s bank or investment advisor which then report to IRD. If however, less than 50% of your entity’s gross income for the preceding calendar year is from passive income (including rental from property) then it will be deemed an active NFFE and will have no reporting obligations, even if it is “controlled” by a US or other overseas resident person.
These are complex matters, but compliance is mandatory with not unsubstantial fines able to be imposed on those who breach their obligations under this legislation.
Should you have any queries regarding these matters and how they may affect your trust, company or partnership, then please consult with us because to ignore this legislation is not an option.
This article is not a substitute for legal advice and you should talk to a lawyer about your specific situation. Should you need any assistance, please contact us.
