July 1st FATCA FFI List Analysis by Country and by IGA

Haydon Perryman, FATCA Compliance expert of Strevus, and I are undertaking an analysis of this July 1^st FATCA FFI list release by country and by IGA.  Haydon has put together the below hard work of the list based upon the excel formulae he created.  (Updated with comments as of 19:00 Washington, D.C. time).  Check out Haydon Perryman's blog at http://haydonperryman.wordpress.com/

What I find surprising thus far is that I thought (as did many large firm attorneys) many, many more registrations would have pushed themselves through the keyhole.  I was thinking in the range of 100,000 to 110,000 would be registered for the July 1 FFI list.  Only 10,000 additional registrations was not even in my lowest estimates.  I wouldn't call 88,000 FFI registrations a great success at this stage, considering that nearly 150 countries do not have an IGA and thus FATCA 30% withholding starts today.  While the IRS suggested a 500,000 potential FFI registration figure, many industry stakeholders suggest that 800,000 - 900,000 firms fall under the expansive definition of financial institution.

The 82,994 FFIs (approx. 95%) from the 98 IGA countries registration is due by December 31.  Only 4,318 FFI (5%) registered from the remaining 152 countries.  We do not know what FFIs may have registered between June 3rd and now because that will fall into the August list).  Still, based on the current July 1st figures, FATCA registration (indicative of compliance) in a best case scenario is running at less than 20%.   It may be as low as 10% FFI registration thus far based on the what industry stakeholders think is more likely the range.

Why is the Range for Potential FFI Registration so Expansive?

Given the broad definition of financial institution (explained below) that requires a FATCA GIIN for the W-8BEN-E or other appropriate W-8, such as W-8IMY,  the UK HMRC estimated that, even with its IGA and accompanying local regulations, 75,000 UK entities are impacted by FATCA.  Probably, though not clearly stated by the HMRC, these entities and firms need to register for a GIIN.  But only 6,994 have registered from the UK, and only 730 additional since the June 2nd list (of 6,264).  Granted the UK FFI has until October 25th pursuant to HMRC announcement (albeit January 1st under the FATCA regulations).  If the UK has 75,000 or even just half that entities requiring FFI registration, then extrapolated among other large and sophisticated financial service economies like Japan, China, Germany etc - clearly, more than 500,000 entities will need to inevitably register.   The question is: how many more?

What is the Definition of Financial Institution?

The definition of 'financial institution' is very broad.  Thus, entities and firms that may not traditionally (such as a banking enterprise or investment fund) be considered a financial institution are subject to FATCA registration and reporting - such as trust companies, certain insurance companies, holding companies, treasury centers.  Moreover, the industry, especially the trust industry, is experiencing some confusion over which entities must register as an FFI, and which do not need to register, or are instead an NFFE.

FFIs are primarily banking and financial institutions, as well as certain investment entities, which are defined by FATCA and separated into three broad categories:  (i) primarily traditional banks that accept deposits and perform related banking services in their ordinary course of business, (ii) entities  a substantial part of the business of which  involves  holding financial assets for others, and (iii) entities engaged in the business of investing, reinvesting, and trading in securities, partnership interests, commodities, derivatives, and other passive financial assets.

The first category of FFI describes traditional banks. This FFI is defined as a financial institution that accepts deposits in the ordinary course of a banking or similar business. An entity is engaged in a “banking or similar business” if the entity:

1. accepts deposits or similar investments of funds;
2. makes personal, mortgage, industrial, or other loans;
3. provides credit extension;
4. purchases, sells, discounts, or negotiates account receivables, installment obligations, notes, drafts, checks, bills of exchange, acceptances, or other evidences of indebtedness;
5. issues letters of credit and negotiates drafts drawn on accounts;
6. provides trust or fiduciary services;
7. finances foreign exchange transactions; or
8. enters into, purchases, or disposes of finance leases or leased assets.

The second category of FFI captures "asset holding" companies. This type of FFI holds financial assets for the account of others as a “substantial” portion of its business.  An entity is an asset holding company if more than 20 percent of its gross income is from holding financial assets and related financial services during a three-year period ending on December 31 of the year preceding that in which the determination is made (or the period of the entity’s existence, if shorter).

The final category of FFI captures "investment funds", and is broadly defined.  Thus, this category includes certain securitization vehicles, certain pension funds, and can potentially include certain other private structures that hold investments such as trusts and underlying holding companies.  This category of FFI is primarily engaged in the business of investing, reinvesting, or trading in securities, partnership interests, commodities, or any interest (including futures or forward contracts or options).  An investment entity is primarily engaged in one or more of the following activities:

1. trading in money market instruments, foreign currency, foreign exchange, interest rates, index instruments, transferable securities, or commodity futures;
2. managing individual or collective portfolios;
3. investing, administering or managing funds, money, or financial assets on behalf of others; or
4. functioning as a collective investment vehicle, mutual fund, exchange traded fund, private equity fund, hedge fund, venture capital fund, leveraged buyout fund, or any similar investment vehicle.

An entity is primarily engaged in these activities if more than 50% of its gross income is from such activities during a three-year period.

Example of an Investment Advisor.  A Fund Manager is an investment entity that organizes and manages various types of funds including Fund A. Fund A invests primarily in equities. An Investment Advisor (a foreign entity) is hired by the Fund Manager to advise and provide discretionary management of a portion of the financial assets held by Fund A. More than 50% of the Investment Advisor’s gross income was earned for the last three years from providing similar services. The Investment Advisor is an investment entity as described in this section and an FFI as well since it primarily conducts a business of managing financial assets on behalf of clients.

Example of a Trust managed by a Trust Company. On January 1, 2013, a Trust (a nongrantor foreign trust) was formed by X (an individual) for the benefit of his or her children. The Trustee (a Trust Company) was appointed by X to act as the Trustee.  A Trust Company is an FFI.  Under the terms of the Trust Instrument, the Trust Company manages the assets of the Trust as Trustee for the benefit of X’s children.  Because the Trust is managed by a FFI (the Trust Company), the Trust is an investment entity, and an FFI.

Trust compliance and FATCA expert Peter Cotorceanu (and Lexis author) has raised four interesting issues with the last example, being:

• Is the "Managed By" test met if some but not all a trust managers are depository institutions, custodial institutions, specified insurance companies, or Type A IEs, e.g., a trust with a commercial trust company serving a co-trustee with an individual?
• Is the "Managed By" test met if some but not all of a trust’s investments are managed by depository institutions, custodial institutions, specified insurance companies, or IEs, e.g.,  a trust with one account managed by a bank and other accounts managed by an individual?
• How is a trust classified if it meets the "Managed By" test for only part of a year, e.g., because a commercial trust company is replaced by an individual as trustee, or a bank is replaced by an individual as asset manager?
• Does a trust holding, its only asset the share of an underlying company ("UC"), meet the "Managed By" test if the UC’s assets are professionally managed but the trust is not (i.e., the trustee is an individual)?

FATCA FAST FACTS (a tongue twister) 

IRS Registered FFI List (Sum of Registrations)	July ’14#	County #
Model 1A IGA	48,265	85
Model 1B IGA	19,580	2
Model 2 IGA	15,239	13
US	620	1
US Territory	61	5
No IGA	4,228	144
Total	87,993	250
Non IGA	4,228	143
Non IGA%	5%
IGA	83,084	101
IGA%	94%
US and US Territories	681	6

Registered:  87,993 (July 1st) (an increase of approximately 10,000 from 77,353 of June 2nd) FFI/branches from 250 countries/jurisdictions

Jurisdiction	July FFI #	IGA Scenario	Signed/Substance	Date
Afghanistan	8	No IGA
Albania	16	No IGA
Algeria	9	Model 1A IGA	Substance	June 30, 2014
Andorra	35	No IGA
Angola	10	No IGA
Anguilla	120	No IGA
Antigua and Barbuda	39	Model 1A IGA	Substance	June 03, 2014
Argentina	401	No IGA
Armenia	34	Model 2 IGA	Substance	May 08, 2014
Aruba	16	No IGA
Australia	2,073	Model 1A IGA	Signed	April 28, 2014
Austria	3,010	Model 2 IGA	Signed	April 29, 2014
Azerbaijan	34	Model 1A IGA	Substance	May 16, 2014
Bahamas	646	Model 1A IGA	Substance	April 17, 2014
Bahrain	165	Model 1A IGA	Substance	June 30, 2014
Bangladesh	81	No IGA
Barbados	146	Model 1A IGA	Substance	May 27, 2014
Belarus	68	Model 1A IGA	Substance	June 06, 2014
Belgium	256	Model 1A IGA	Signed	April 23, 2014
Belize	135	No IGA
Benin	8	No IGA
Bermuda	1,579	Model 2 IGA	Signed	December 19, 2013
Bhutan	1	No IGA
Bosnia and Herzegovina	23	No IGA
Botswana	20	No IGA
Brazil	2,362	Model 1A IGA	Substance	April 02, 2014
British Indian Ocean Territory	1	No IGA
Brunei Darussalam	21	No IGA
Bulgaria	96	Model 1A IGA	Substance	April 23, 2013
Burkina Faso	6	No IGA
Burundi	3	No IGA
Cambodia	82	No IGA
Cameroon	10	No IGA
Canada	2,566	Model 1A IGA	Signed	February 05, 2014
Cape Verde	6	Model 1A IGA	Substance	June 30, 2014
Cayman Islands	17,207	Model 1B IGA	Signed	November 29, 2013
Central African Republic	2	No IGA
Chad	4	No IGA
Chile	342	Model 2 IGA	Signed	March 05, 2014
China	213	Model 1A IGA	Substance	June 26, 2014
Christmas Island	1	No IGA
Colombia	184	Model 1A IGA	Substance	April 23, 2014
Comoros	1	No IGA
Congo	5	No IGA
Cook Islands	87	No IGA
Costa Rica	116	Model 1A IGA	Signed	November 26, 2013
Cote d'Ivoire	18	No IGA
Croatia	67	Model 1A IGA	Substance	April 02, 2014
Curacao	189	Model 1A IGA	Substance	April 30, 2014
Cyprus	330	Model 1A IGA	Substance	April 22, 2014
Czech Republic	115	Model 1A IGA	Substance	April 02, 2014
Denmark	204	Model 1A IGA	Signed	November 19, 2012
Djibouti	2	No IGA
Dominica	18	Model 1A IGA	Substance	June 19, 2014
Dominican Republic	75	Model 1A IGA	Substance	June 30, 2014
Ecuador	27	No IGA
Egypt	109	No IGA
El Salvador	41	No IGA
Equatorial Guinea	1	No IGA
Estonia	33	Model 1A IGA	Signed	April 11, 2014
Falkland Islands (Malvinas)	1	No IGA
Fiji	5	No IGA
Finland	482	Model 1A IGA	Signed	March 05, 2014
France	2,422	Model 1A IGA	Signed	November 14, 2013
French Polynesia	3	No IGA
French Southern Territories	1	No IGA
Gabon	4	No IGA
Gambia	11	No IGA
Georgia	26	Model 1A IGA	Substance	June 12, 2014
Germany	2,894	Model 1A IGA	Signed	May 31, 2013
Ghana	51	No IGA
Gibraltar	116	Model 1A IGA	Signed	May 08, 2014
Greece	103	No IGA
Greenland	1	Model 1A IGA	Substance	June 30, 2014
Grenada	33	Model 1A IGA	Substance	June 16, 2014
Guadeloupe	1	No IGA
Guam	4	US Territory
Guatemala	81	No IGA
Guernsey	2,585	Model 1A IGA	Signed	December 13, 2013
Guinea	7	No IGA
Guyana	7	Model 1A IGA	Substance	June 24, 2014
Haiti	13	Model 1A IGA	Substance	June 30, 2014
Honduras	50	Model 1A IGA	Signed	March 31, 2014
Hong Kong	2,008	Model 2 IGA	Substance	May 09, 2014
Hungary	115	Model 1A IGA	Signed	February 04, 2014
Iceland	12	No IGA
India	321	Model 1A IGA	Substance	April 11, 2014
Indonesia	351	Model 1A IGA	Substance	May 04, 2014
Iraq	49	Model 2 IGA	Substance	June 30, 2014
Ireland	2,007	Model 1A IGA	Signed	January 23, 2013
Isle of Man	355	Model 1A IGA	Signed	December 13, 2013
Israel	352	Model 1A IGA	Substance	June 30, 2014
Italy	587	Model 1A IGA	Signed	January 10, 2014
Jamaica	42	Model 1A IGA	Signed	May 01, 2014
Japan	3,390	Model 2 IGA	Signed	June 11, 2013
Jersey	1,974	Model 1A IGA	Signed	December 13, 2013
Jordan	48	No IGA
Kazakhstan	96	No IGA
Kenya	54	No IGA
Kuwait	84	Model 1A IGA	Substance	May 01, 2014
Kyrgyzstan	29	No IGA
Lao People's Democratic Republic	13	No IGA
Latvia	50	Model 1A IGA	Signed	June 27, 2014
Lebanon	122	No IGA
Lesotho	2	No IGA
Liberia	29	No IGA
Liechtenstein	291	Model 1A IGA	Signed	May 19, 2014
Lithuania	29	Model 1A IGA	Substance	April 02, 2014
Luxembourg	4,061	Model 1A IGA	Signed	March 28, 2014
Macao	64	No IGA
Madagascar	7	No IGA
Malawi	10	No IGA
Malaysia	437	Model 1A IGA	Substance	June 30, 2014
Maldives	6	No IGA
Mali	5	No IGA
Malta	348	Model 1A IGA	Signed	December 16, 2013
Marshall Islands	80	No IGA
Martinique	1	No IGA
Mauritania	6	No IGA
Mauritius	872	Model 1A IGA	Signed	December 27, 2013
Mexico	410	Model 1A IGA	Signed	April 09, 2014
Monaco	105	No IGA
Mongolia	15	No IGA
Montenegro	7	Model 1A IGA	Substance	June 30, 2014
Montserrat	12	No IGA
Morocco	133	No IGA
Mozambique	15	No IGA
Myanmar	6	No IGA
Namibia	26	No IGA
Nepal	33	No IGA
Netherlands	2,280	Model 1A IGA	Signed	December 18, 2013
New Caledonia	5	No IGA
New Zealand	396	Model 1A IGA	Signed	June 12, 2014
Nicaragua	15	Model 2 IGA	Substance	June 30, 2014
Niger	4	No IGA
Nigeria	76	No IGA
Norway	349	Model 1A IGA	Signed	April 15, 2013
Oman	25	No IGA
Pakistan	89	No IGA
Panama	484	Model 1A IGA	Substance	May 01, 2014
Papua New Guinea	4	No IGA
Paraguay	17	Model 2 IGA	Substance	June 06, 2014
Peru	172	Model 1A IGA	Substance	May 01, 2014
Philippines	178	No IGA
Poland	180	Model 1A IGA	Substance	April 02, 2013
Portugal	287	Model 1A IGA	Substance	April 02, 2014
Puerto Rico	4	US Territory
Qatar	52	Model 1A IGA	Substance	April 02, 2014
Reunion	1	No IGA
Romania	114	Model 1A IGA	Substance	April 02, 2014
Russian Federation	729	No IGA
Rwanda	9	No IGA
Saint Kitts and Nevis	106	Model 1A IGA	Substance	June 04, 2014
Saint Lucia	66	Model 1A IGA	Substance	June 12, 2014
Saint Martin (French part)	3	No IGA
Saint Pierre and Miquelon	1	No IGA
Saint Vincent and The Grenadines	124	Model 1A IGA	Substance	June 02, 2014
Samoa	51	US Territory
San Marino	15	Model 2 IGA	Substance	June 30, 2014
Saudi Arabia	21	Model 1A IGA	Substance	June 24, 2014
Senegal	10	No IGA
Serbia	32	Model 1A IGA	Substance	June 30, 2014
Seychelles	43	Model 1A IGA	Substance	May 28, 2014
Sierra Leone	9	No IGA
Singapore	1,072	Model 1A IGA	Substance	May 05, 2014
Sint Maarten (Dutch part)	17	No IGA
Slovakia	63	Model 1A IGA	Substance	April 11, 2014
Slovenia	32	Model 1A IGA	Signed	June 02, 2014
Solomon Islands	3	No IGA
South Africa	395	Model 1A IGA	Signed	June 09, 2014
South Sudan	5	No IGA
Spain	1,227	Model 1A IGA	Signed	May 14, 2013
Sri Lanka	42	No IGA
Suriname	9	No IGA
Swaziland	5	No IGA
Sweden	414	Model 1A IGA	Substance	April 24, 2014
Switzerland	4,279	Model 2 IGA	Signed	February 14, 2013
Taiwan	481	Model 2 IGA	Substance	June 23, 2014
Tajikistan	19	No IGA
Thailand	823	Model 1A IGA	Substance	June 24, 2014
Timor-Leste	2	No IGA
Togo	6	No IGA
Tonga	2	No IGA
Trinidad and Tobago	59	No IGA
Tunisia	10	No IGA
Turkey	210	Model 1A IGA	Substance	June 03, 2014
Turkmenistan	1	Model 1A IGA	Substance	June 03, 2014
Turks and Caicos Islands	35	Model 1A IGA	Substance	May 12, 2014
Uganda	19	No IGA
Ukraine	187	Model 1A IGA	Substance	June 28, 2014
United Arab Emirates	204	Model 1A IGA	Substance	May 21, 2014
United Kingdom	6,994	Model 1A IGA	Signed	September 12, 2012
United States	620	US
Uruguay	142	No IGA
Uzbekistan	2	No IGA
Vanuatu	5	No IGA
Viet Nam	129	No IGA
Virgin Islands (British)	2,373	Model 1B IGA	Signed	June 30, 2014
Wallis and Futuna	1	No IGA
Yemen	18	No IGA
Zambia	13	No IGA
Zimbabwe	6	No IGA
Other	32	No IGA		January 01, 1904
Korea, Republic of	448	Model 1A IGA	Substance	April 02, 2014
Bolivia, Plurinational State Of	31	No IGA
Congo, Democratic Republic Of The	9	No IGA
Macedonia, The Former Yugoslav Republic Of	18	No IGA
Moldova, Republic Of	20	Model 2 IGA	Substance	June 30, 2014
Venezuela, Bolivarian Republic Of	49	No IGA
Tanzania, United Republic Of	16	No IGA
Libya	7	No IGA
Bonaire, Sint Eustatius And Saba	12	No IGA
Korea, Democratic People's Republic Of	1	No IGA
Virgin Islands (U.S.)	2	US Territory
Guinea-Bissau	1	No IGA
Kiribati	1	No IGA
Sao Tome and Principe	1	No IGA
WEST BANK AND GAZA	23	No IGA
Grand Total	87,993
IRS Registered FFI List (Sum of Registrations)	July '14#	County #
Model 1A IGA	48,175	85
Model 1B IGA	19,580	2
Model 2 IGA	15,239	13
US	620	1
US Territory	61	5	Note 1
No IGA	4,318	144	Note 2
Total	87,993	250	Notes 1, 2 & 3
Non IGA	4,318	144
Non IGA%	5%	58%
IGA	82,994	98
IGA%	94%	39%
US and US Territories	681	6
1%	2%
There is only 1 jurisdiction with an IGA that has zero registrations: Kosovo, implying that registration is a lead indicator of an IGA being signed
Note 1
This does not include:
Baker Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef, Midway Islands, Navassa Island, Palmyra Atoll, Wake Island
Note 2
This does not include:
Akrotiri, Ashmore and Cartier Islands, Clipperton Island, Coral Sea Islands, Dhekelia, Jan Mayen, Paracel Islands, Spratly Islands, Svalbard
Note 3
WEST BANK AND GAZA is not on the ISO list provided by the IRS. However, the IRS have allowed use of ISO 3166-1 Code "275" for this territory on their list of approved FFIs.
FYI: The US Department of State does not recognize Palestine, much less Gaza and the West Bank.  But since the IRS does for purposes of FATCA, these are included for completeness.

Complying with FATCA?

The LexisNexis® Guide to FATCA Compliance (2^nd Edition) comprises 34 Chapters by 50 industry experts grouped in three parts: compliance program (Chapters 1–4), analysis of FATCA regulations (Chapters 5–16) and analysis of Intergovernmental Agreements (IGAs) and local law compliance challenges (Chapters 17–34), including intergovernmental agreements as well as the OECD’s TRACE initiative for global automatic information exchange protocols and systems.   A free download of the first of the 34 chapters is available at http://www.lexisnexis.com/store/images/samples/9780769853734.pdf