Article by Christopher Capewell, Jon Fowler, Tim Frawley, Martin Livingston, Alasdair Robertson and Richard Grasby

Maples and Calder

The Cayman Islands Tax Information Authority (“Cayman TIA”) issued the second official version of the Cayman Islands FATCA Guidance Notes (the “Guidance Notes”) on 15 December 2014. A copy of the Industry Advisory and the Guidance Notes can be found through the following links:

Industry Advisory

Guidance Notes on the International Tax Compliance Requirements of the Intergovernmental Agreements between the Cayman Islands and the United States of America and the United Kingdom, Version 2.0. at: http://www.maplesandcalder.com/fileadmin/uploads/maples/Documents/PDFs/Cayman_Guidance_Notes_V2.0_Dec2014.pdf

Defined terms and abbreviations not otherwise described herein have the same meaning given to them in our prior updates.

The Guidance Notes replace the previous version issued on 22 July 2014 and provide additional commentary on a number of areas, including:

(a) the operation of the Investment Adviser and Investment Manager exemption contained within Annex II of the US and UK IGAs;

(b) the meaning of the term “controlling person” as may be relevant for obtaining self-certification from a Passive NFFE;

(c) the treatment of “Limited Capacity Exempt Beneficial Owners” under the UK IGA;

(d) the classification of dormant and liquidating investment entities;

(e) clarification of how private trust companies can be classified; and

(f) a new category of Passive NFFE known as the “Direct Reporting NFFE”.

The Guidance Notes are considered to be a dynamic document which has been under review over the past several months by the Working Group which comprises members of the private and public sector in Cayman. As the implementation of FATCA continues and with the pending introduction of the OECD Common Reporting Standards, it is expected that additional or updated versions of the Guidance Notes can be expected in 2015.

In addition to announcing the formal release of the Guidance Notes, the Industry Advisory also mentions that the Ministry of Financial Services, Commerce and Environment is proposing to change from 31 March to 30 April the date by which a Reporting Financial Institution is required by the Cayman Regulations to make certain information notifications to the Cayman TIA.

For further information or advice on the application of the Guidance Notes, please speak with your usual Maples and Calder contact. For further information on FATCA services and solutions, please speak with your usual MaplesFS contact. Additionally, you may speak with any one of the above members of our dedicated FATCA team.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Related story:

Cayman releases V2 FATCA Guidance Notes

From Dawn Howe, Partner, Walkers

Just days away from the 22 December deadline for many financial institutions to register with the US tax authorities to obtain their Global Intermediary Identification Number (GIIN) by 1 January 2015, the Cayman Islands Tax Information Authority has issued Version 2 of the FATCA Guidance Notes, which clarified some of the issues raised by the industry following the release of the first draft version in May.

The US Foreign Account Tax Compliance Act (FATCA) targets non-compliance by US taxpayers using foreign accounts and requires financial institutions outside the US to supply the IRS with information about financial accounts held by US taxpayers.

The new Guidance Notes (see below) are intended to support the implementation of the regulations and legislation necessary to implement the intergovernmental agreements (IGAs) that the Cayman Islands has signed with both the United States and United Kingdom to comply with FATCA and the UK’s tax information sharing law.

Version 2 has fixed some of the anomalies in the first version, according to Dawn Howe, Partner at Walkers’ Cayman office.

“Local service providers providing registered office, company secretarial or non-executive independent director type services, and Cayman entities engaging local service providers for the same, will be pleased that the Guidance Notes clarify that neither party will generally be treated as a Financial Institution as a result of supplying or utilising these types of administrative services – with all the reporting and compliance headaches that would go along with that,” Howe noted.

The new Guidance Notes have also clarified that any investment entity in liquidation prior to 30 June 2014 will not need to register or report at all. Investment entities that close or enter into liquidation post 30 June 2014 will just have to make a single final return and then all further ongoing reporting obligations will fall away.

“This is very helpful as it means that funds that are still stuck in the midst of protracted winding up procedures following the financial crisis know they do not need to go through the hassle of registering to comply with FATCA and implementing a full FATCA compliance programme,” she said, noting that Version 2 also included certain useful additional guidance on the treatment of inter-affiliate holding companies and treasury centres.

Howe stressed that in order to remain compliant with Cayman law, all Cayman Islands entities that qualify as a Reporting Financial Institutions must apply for a GIIN by no later than Monday 22 December 2014.

“It’s fair to say that most Cayman Financial Institutions are ready,” she said. “The local industry has done a fantastic job of informing and educating people. A number of service providers, for example DMS Offshore, have been really instrumental in reaching out to Cayman institutions operating outside of the Cayman Islands and spreading the FATCA message in some fairly innovative and eye-catching ways. Local service providers generally, both legal and administrative, have also been issuing bulletins to get the industry up to speed and to encourage clients to embrace the new laws.”

A reflection of the success of this effort was revealed in an analysis of global registrations with the IRS for GIINs in late summer, where Cayman Islands institutions accounted for almost 20% of all those registered at that time.

“This shows how well we’ve done as a jurisdiction,” Howe noted.

The Ministry of Financial Services has also announced it is currently making proposals for Cabinet approval for further amendments and said an industry advisory would be issued following Cabinet’s consideration.

END

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