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What Is the Foreign Account Taxation Compliance (FATCA)?

June 23, 2023

Learn about FATCA, an agreement between the U.S. and 100+ countries to identify non-U.S. financial accounts held by U.S. citizens, to combat tax evasion.

FATCA stands for the Foreign Account Tax Compliance Act. FATCA is an information-sharing agreement, created via a 2010 U.S. federal law, between the United States and more than 100 foreign countries. The goal of FATCA is to identify non-U.S. financial accounts opened or controlled by U.S. citizens or businesses for the purpose of avoiding U.S. taxes—for instance, in tax havens, tax-free countries, or countries with lower corporate tax rates to avoid taxation.

FATCA does not require reporting related to non-U.S. citizens. So, if you are not a U.S. Citizen (or company) and have an account in one or more U.S. financial institutions, FATCA does NOT apply. However, foreign companies controlled by U.S. citizens are subject to FATCA reporting.

FATCA Objective

The objective of FATCA is to identify U.S. persons who may evade U.S. taxes by placing assets in foreign (non-U.S.) accounts -- either directly or indirectly through certain foreign entities such as corporations or trusts.

Who or What Is a U.S. Person for U.S. Tax Purposes?

  • A citizen of the U.S., including an individual who was born in the U.S. but resides in another country, who has not renounced U.S. citizenship
  • A lawful resident of the U.S., including a U.S. green card holder
  • A person residing in the U.S.
  • Certain persons who spend a significant number of days in the U.S. each year. (For example, some Canadian "snowbirds" may be considered U.S. persons. However, the Canada-U.S. tax treaty allows them to claim benefits to be treated as Canadian rather than U.S. taxpayers. Similar relief is provided under many other treaties with the U.S.)
  • U.S. corporations, U.S. estates, and U.S. trusts

FATCA Fundamentals and International Tax Compliance

For foreign (non-U.S.) financial institutions (FFIs) in countries that have not entered into an intergovernmental agreement with the U.S., FATCA requires FFIs to either:

  • Enter into agreements with the United States' Internal Revenue Service (IRS) and report information about financial accounts held by U.S. taxpayers -- or held by foreign entities in which U.S. taxpayers hold an ownership interest -- directly to the IRS, or
  • Face punitive U.S. withholding tax on U.S.-source payments

To address privacy and regulatory concerns related to FATCA, many countries negotiated intergovernmental agreements (IGAs) with the U.S. These IGA "partner countries" entered into one of two standard model agreements, and implemented laws to require financial institutions to collect and report information required by FATCA.

FFIs comply with FATCA in one of three ways:

  1. In countries with Model 1 IGA, FFIs comply under local legislation and report to their local tax authority; in turn, the local tax authority exchanges information with the IRS
  2. In countries with a Model 2 IGA, FFIs comply with local legislation to enter into agreements with, and report directly to, the IRS
  3. In countries without an IGA, FFIs enter into agreements with, and report directly to the IRS. (A 30% withholding tax will be deducted from U.S. source payments received by FFIs in non-IGA countries if they do not enter into agreements with the IRS.)

U.S. financial institutions are automatically required to comply with FATCA.

Note: the term U.S. Reportable Account is an account owned by a U.S. individual (person), U.S. entity, or a non-U.S. entity that has U.S. controlling persons -- regardless of the currency of the account itself. FATCA applies to all types of financial accounts, including insurance, investments, trust, assignment, escrow, and other business accounts.

EPTC complies with FATCA regulations in all jurisdictions in which it operates.

What Is the Difference Between a FATCA Model 1 Country and a Model 2 Country?

In general, the countries that are included in FATCA have entered into either a Model 1 or Model 2 agreement. In a Model 1 country, financial data about United States citizens is collected by the partner country's various financial institutions and sent to that country's governmental tax authority. That authority then passes the information on to the IRS, which uses it to ensure the person is paying the amount of tax they legally owe. A total of 94 countries fall under the Model 1 agreement.

In a Model 2 country, the partner government's tax authority is removed from the transfer chain and information is passed directly from the country's financial institutions to the IRS. 14 countries have entered into a Model 2 agreement. Both models also include variants in which the US would reciprocate by providing similar information about any of the partner country's citizens residing in the U.S.

What Countries Are FATCA Model 1 Countries?

Algeria Denmark Jersey Saint Lucia
Angola Dominca Kazakhstan Saint Vincent and the Grenadines
Anguilla Dominican Republic Kosovo Saudi Arabia
Antigua and Barbuda Estonia Kuwait Serbia
Australia Finland Latvia Seychelles**
Australia France Liechtenstein Singapore
Azerbaijan Georgia Lithuania Slovakia
Bahamas Germany Luxembourg Slovenia
Bahrain Gibraltar Malaysia** South Africa
Barbados Greece Malta South Korea
Balarus Greenland Mauritius Spain
Belgium Grenada Mexico Sweden
Brazil Guernsey Montenegro Thailand**
British Virgin Islands Guyana Montserrat Trinidad and Tobago
Bulgaria Haiti** Netherlands Tunisia
Cambodia Honduras New Zealand Turkey
Canada Hungary Norway Turkmenistan
Cape Verde** Iceland Panama Turks and Caicos Islands
Cayman Islands India Peru** Ukraine
China** Indonesia** Philippines** United Arab Emirates
Colombia Ireland Poland United Kingdom
Costa Rica Isle of Man Portugal Uzbekistan
Croatia Israel Qatar Vatican City/Holy See
Curacao Italy Romania Vietnam
Cyprus Jamaica Saint Kitts and Nevis
Czech Republic

Note: Countries marked with ** have a signed agreement or an agreement in substance, but the agreement has not yet entered into force.

What Countries Are FATCA Model 2 Countries?

Armenia Macao
Austria Moldova
Bermuda Nicaragua
Chile** Paraguay**
Hong Kong ** San Marino
Iraq** Switzerland
Japan Taiwan**

‍

Note: Countries marked with ** have a signed agreement or an agreement in substance, but the agreement has not yet entered into force.

‍

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Frequently Asked Questions

Under IRC § 61, all income from whatever source derived is taxable unless a specific exclusion applies. Lawsuit settlements are included in gross income by default. The key exceptions are physical injury and physical sickness recoveries under IRC § 104(a)(2), which are excluded from gross income when received as compensation for a physical injury or physical sickness claim.

IRC § 104(a)(2) excludes from gross income damages received on account of personal physical injuries or physical sickness. The exclusion applies to compensatory damages only. The injury or sickness must be physical — emotional distress damages, employment discrimination recoveries, breach of contract proceeds, and punitive damages do not qualify for the exclusion and are taxable.

Yes. Punitive damages are taxable as ordinary income regardless of whether the underlying claim involves a physical injury. IRC § 104(a)(2) does not exclude punitive damages. Even in a physical injury case where compensatory damages are excluded, any punitive damages awarded are included in the plaintiff's gross income and subject to federal income tax.

For most plaintiffs, no. The Tax Cuts and Jobs Act of 2017 suspended miscellaneous itemized deductions under IRC § 67(g) for tax years 2018 through 2025, eliminating the attorney fee deduction for most civil litigation recoveries. IRC § 62(a)(20) provides an above-the-line deduction only for qualifying discrimination and whistleblower cases. Plaintiffs in personal injury, breach of contract, and most tort cases cannot deduct attorney fees under current law.

A Qualified Settlement Fund (QSF) under IRC § 468B separates the timing of the defendant's payment from the plaintiff's taxable receipt of funds. The defendant transfers proceeds to the QSF and takes an immediate tax deduction. The plaintiff does not recognize taxable income until distribution from the QSF, preserving a planning window to implement structured settlements, Plaintiff Recovery Trusts, Special Needs Trusts, or other tax-minimization strategies before receiving taxable income.

A Plaintiff Recovery Trust (PRT), administered by Eastern Point Trust Company, addresses the attorney fee double tax created by Commissioner v. Banks, 543 U.S. 426 (2005), and worsened by TCJA 2017. The PRT separates the attorney fee portion of the settlement from the plaintiff's taxable recovery, allowing each party to recognize income only on their respective portion. Eastern Point Trust Company has saved plaintiffs $30 million or more through PRT structures. The PRT is implemented during the QSF administration window before taxable distributions occur.

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