Revenue publish updated FATCA TDMs

1.1 Guidance Notes on the Implentation of Foreign Account Tax Compliance Act (FATCA) in Ireland (Part 38-03-22)

The Irish Revenue Commissioners published an updated version of the Guidance Notes on the Implementation of Foreign Account Tax Compliance Act (FATCA) in Ireland (Part 38-03-22) on 27 February 2023.

Section 4.3 Taxpayer Identification Numbers (TINs) was updated to reflect the latest US guidance issued by the IRS via Notice 2023-11 and IRS FAQ6 Reporting detailing the temporary relief available for the 2022, 2023 and 2024 reporting periods where US TINs are missing for certain Pre-Existing Accounts.

The guidance indicates that the IRS will not determine there is significant non-compliance for FATCA purposes by a Reporting FI in relation to reporting US TINs for Pre-Existing Accounts solely because of a failure to obtain and report each required US TIN, provided certain conditions are met.

For each reportable account, the Irish FI must:

1. Obtain and report the date of birth of each account holder that is an individual or Controlling Person whose US TIN is not reported;
2. Annually request from each Account Holder any US TIN that is not reported (per IRS Notice 2023-11, starting in calendar year 2023). This annual request may be made in the format that the FI deems most likely to reach the Account Holder. This communication must also include either:
   1.   The web address of the US State Department’s Joint FATCA FAQs (https://travel.state.gov/content/travel/en/internationaltravel/while-abroad/Joint-Foreign-Account-Tax-Compliance-FATCAFAQ.html), or
   2.  A copy of the US State Department’s Joint FATCA FAQs and either;
      1. A copy of the relief procedures provided by the IRS for certain former citizens, or
      2.  The web address for such procedures (https://www.irs.gov/individuals/international-taxpayers/reliefprocedures-for-certain-former-citizens);
   3. Retain records until 31 December 2028 of the policies and procedures adopted to satisfy the foregoing requirement to annually request the missing TINs, and documentation that those policies and procedures were followed to establish its compliance with the requirements;
   4. From reporting period 2023, annually search electronically searchable data maintained by the FI for missing TINs; and
   5. Report an accurate TIN Placeholder Code for each account that is missing a US TIN as follows:
      1.  For the reporting period 2022, the FI may use the TIN Placeholder Codes published in May 2021 or the updated codes published in February 2023. These are both set out in 7.6 of TDM 38-03-25
      2.  For the reporting periods 2023 and 2024, the updated TIN Placeholder Codes which were published at 7.6 of TDM 38-03-25 in February 2023 must be used.

A new paragraph K “Certain Investment Entities that do not maintain Financial Accounts (Regulation 1.147-5(f)(2)(v)) – Investment Managers and Investment Advisers” was also expressly added to Section 3 “Self-Certified Deemed Compliance Financial Institutions” of Appendix 1. This exemption was previously available, but has simply been added as a type of Non-Reporting Financial Institution in Appendix 1 of the FATCA Guidance Notes.

1.2   Filing Guidelines for Foreign Account Tax Compliance Act (FATCA)

The Irish Revenue Commissioners published an updated version of the Filing Guidelines for Foreign Account Tax Compliance Act (FATCA) (Part 38-03-25) on 27 February 2023.

Section 7.6 “XML Schema Element Reference – TIN” was updated to reflect the latest US guidance issued by the IRS via Notice 2023-11 and IRS FAQ6 Reporting detailing the temporary relief available for the 2022, 2023 and 2024 reporting periods where US TINs are missing for certain Pre-Existing Accounts.

The guidance indicates that the US TIN Placeholder Codes published in May 2021 may be used for the 2022 reporting period for all accounts that are missing a US TIN or alternatively, the US TIN Placeholder Codes published in February 2023 may be used. However, for the 2023 and 2024 reporting periods, the US TIN Placeholder Codes published in February 2023 must be used.

The new US TIN Placeholder Codes published in February 2023 are as follows:

• 222222222 – Pre-existing individual account with only US indicia being a US place of birth, other than an account reported under code 000222111.
  This code takes precedence if any other code (other than 000222111) could also be  applicable. 
• 000222111 - Pre-existing depository individual account with only US indicia being a US place of birth.
  Additionally, FFI must determine that the account holder is a resident of the jurisdiction where the account is maintained for AML and tax purposes. For reference, “depository account” has the meaning defined in the applicable Model 1 Intergovernmental Agreement (Model 1 IGA). This code takes precedence if any other code could also be applicable.
• 333333333 - New individual account that:
  • Has indicia of a US place of birth, and
  • Either:
    • Has a change in circumstances causing the self-certification originally obtained at account opening to be incorrect or unreliable, and a new self-certification has not been obtained, or
    • Was below the threshold for documenting and reporting the account at the time of account opening and subsequently exceeded the threshold, and a self-certification has not been obtained.
• 444444444 – Pre-existing individual or entity account that: 
  • Has US indicia other than a US place of birth, and
  • Either:
    • Has a change in circumstances that either results in one or more US indicia being associated with the account or causes a self-certification or other documentation originally obtained to be incorrect or unreliable, and a valid self-certification or other documentation has not been obtained subsequent to the change in circumstances, or
    • Was below the threshold for documenting and reporting the account on the determination date provided in the applicable Model 1 IGA and subsequently exceeded the threshold, and a self-certification or other documentation has not been obtained.
• 555555555 - New individual or entity account that: 
  • Has a US indicia other than a US place of birth, and
  • Either:
    • Has a change in circumstances causing the self-certification or other documentation originally obtained to be incorrect or unreliable, and a new self-certification or other documentation has not been obtained, or
    • Was below the threshold for documenting and reporting the account at the time of account opening and subsequently exceeded the threshold, and a self-certification or other documentation has not been obtained.
• 666666666 – Pre-existing entity account held by a passive NFFE with one or more controlling persons with respect to which self-certifications have not been obtained, and no US indicia have been identified in relation to any controlling persons. 
• 777777777 - Dormant Accounts
  For pre-existing accounts where there is no TIN available and the account has been dormant or inactive, but remains above the reporting threshold, also known as a “dormant account.” A “dormant account” is one that meets the definition set out in US Treasury Regulations §1.1471-4(d)(6)(ii) and had had no financial activity for three years, except for the posting of interest. If an account could be classified into multiple TIN codes, the other code takes precedence.
• 999999999 - Any account for which the FFI cannot obtain a TIN and none of the other TIN codes would be applicable. The use of this code indicates that an FFI has completed its review of accounts without US TINs and has in good faith applied TIN codes to records when applicable.

The new code above using nine “9s” was created as a “catch-all” code where no other US TIN Placeholder Codes are applicable. Additionally, a new code was also created for Pre-Existing Depository Individual Accounts (e.g. 000222111) where the only US indicia is a US place of birth. The guidance indicates that this code should take precedence if any other code could also be applicable.

The updated guidelines advise that Revenue Online Service (“ROS”) is not currently accepting the new February 2023 US TIN Placeholder Codes for validation purposes, but that these codes will be accepted in time for the 30 June 2023 filing deadline. Therefore, any early FATCA filing for the 2022 reporting period should use the May 2021 US TIN Placeholder Codes set out in the FATCA Filing Guidelines.

For completeness, the FATCA Filing Guidelines also note that even where the US TIN Placeholder Codes (whether that be the May 2021 or February 2023 versions) are used for FATCA reporting purposes, an error message containing record level errors will still be received by the Reporting FFI.

2.1 AEOI Status of Commitments

On 17 February 2023, the OECD published a revised Automatic Exchange of Information (AEOI) Status of Commitments table, bringing the total number of jurisdictions committed to exchanging information under CRS to 122.