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    Foreign Account Tax Compliance Act (FATCA)

    Foreign Account Tax Compliance Act (FATCA)

    FATCA Overview

    Financial regulators, governments and banks across the world had made substantial changes to protect the long-term safety of both the financial system and your interests.

    One of these regulations is the Foreign Account Tax Compliance Act (FATCA), effective from 1 July 2014 that primarily aims to prevent tax evasion by US taxpayers using non-US financial institutions and offshore investment instruments.

    The degree to which you will be affected will vary, depending on the type of accounts or products you hold with us, our branches and subsidiaries ("Hang Seng").

    Impact to Hang Seng and our Customers

    We, as a member of the HSBC Group, are committed to being fully FATCA compliant in all countries and regions where we operate. Though other banks and financial organisations will also be affected by the adoption of FATCA, their approach may differ to that of us.

    To comply with the regulations, we may need to engage you from time to time to understand you better. To establish your FATCA status, we may need to obtain certain documents, including Hang Seng declarations and/or US tax forms (together with certain supplementary information, if any). If you have multiple relationships with us, you may be approached by different members or businesses of us. In light of laws or regulations in different countries and regions, we appreciate your response to all our requests to help us serve you better and capture your information accurately.

    Please send the completed documents to: PO Box 11280, Central Post Office, Hong Kong; or hand them in to the team at your local branch.

    Please read the information carefully and select the document that is appropriate to you. We cannot provide tax advice. If you are unsure, you should seek advice from a tax advisor.

    FAQs

    Popular questions

    FATCA stands for the Foreign Account Tax Compliance Act. It is a US legislation to prevent tax evasion by US taxpayers.

    Introduced by the US Department of Treasury (Treasury) and the US Internal Revenue Service (IRS), the purpose of FATCA is to encourage better tax compliance by preventing US Persons (see glossary) from using financial organisations such as banks to avoid US taxation on their income and assets.

    A significant number of countries and regions worldwide are expected to sign Inter-Governmental Agreements (IGAs) relating to FATCA compliance with the United States government. These IGAs will result in the FATCA legislation becoming part of these countries’ and territories' local laws (please refer to glossary for IGA definition).

    Banks and other financial organisations will be required to report information on financial accounts held directly or indirectly by US Persons annually.

    We have made a commitment to being fully FATCA-compliant in all countries and regions where we operate. Thus, we will be reviewing our customer base to confirm the FATCA status of our customers. Where necessary we may need to engage you from time to time to understand you better, such as requiring you to provide us with further information and documentation.

    FATCA legislation will affect both personal and business customers who are treated as a 'US Person' for US tax purposes. The FATCA legislation will also affect certain types of businesses with US owners.

    The term US Person includes the following (but is not limited to):

    • A citizen of the US, including an individual born in the US but resident in another country/territory (who has not given up their US citizenship)
    • A person residing in the US, including US green card holders
    • Certain persons who spend a significant number of days in the US each year
    • US Corporations, US Partnerships, US estates and US trusts

    For more information regarding FATCA, please visit the IRS website or contact your tax professional.

    The FATCA legislation became effective from 1 Jul 2014.

    We are committed to becoming fully FATCA-compliant in all countries and regions where we operate according to the legislative timeline.

    No. Other banks and financial organisations will also be affected. However their approach to ensuring compliance with FATCA may differ to that of us.

    To comply with FATCA, we will:

    • conduct a review of new and existing customers to establish their status as either a US Person or Non-US Person in accordance with FATCA. Business customers will be classified according to the FATCA legislation. (For example, as US Persons, Foreign Financial Institutions or Non-Financial Foreign Entities).
    • report information to the IRS or local tax authority on all accounts held directly or indirectly by US Persons. In addition, we may also need to report information about customers who do not provide the required documentation to us.

    In certain circumstances and where customers fail to provide the appropriate documentation or when doing business with non-compliant entities, we may be required to apply 30% US withholding tax on certain types of US income paid to such customers.

    Please refer to the glossary for the definitions of US Persons, Foreign Financial Institutions, Non-Financial Foreign Entities and Withholding tax.

    FATCA legislation will impact both personal customers/sole proprietorship and business customers who hold an account, policy or agreement with Hang Seng.

    • If you are a personal customer/sole proprietorship, please refer to "Personal customers/Sole proprietorship" questions
    • If you are a business customer, please refer to "Business customers" questions

    Personal customers/Sole proprietorship

    No. If you or your account hold any of the following criteria, we may engage you to establish your status as either a US Person or Non-US Person according to FATCA:

    • US citizenship or US residence
    • US place of birth
    • US address including US PO boxes
    • US telephone number
    • Repeating payment instructions to pay amounts to a US address or an account maintained in the US
    • Current Power of Attorney or signatory authority granted to a person with a US address
    • In care of or hold mail address which is your sole address

    If you are considered a US Person (see glossary), we may need to engage you from time to time to understand you better. You may also wish to visit the IRS website to determine if you need to complete and submit any additional IRS forms.

    If you are a specified US Person (see Glossary), we will be required to report information about you and your account to the local tax authority or the IRS on an annual basis.

    We will correspond with affected customers in due course. For any detailed queries on the FATCA legislation, and what it may mean for you, please consult a professional tax and/or legal adviser for specific tax and/or legal advice.

    For most customers, FATCA will have minimal impact, and there will be no action required. However, we may still engage you to establish your status as a non-US Person if we have reason to believe you are potentially a US Person for FATCA purposes.

    If a change in circumstances makes any information on a certificate or other documentation for FATCA incorrect, then the person named on the certificate / documentation must inform us within 30 days of the change and provide a new certificate or documentary evidence.

    FATCA does not replace the existing US tax regimes, it may however add additional requirements and complexity to the existing tax rules you may already follow. We recommend you contact a professional tax adviser to discuss your personal tax situation.

    We will advise you of the FATCA documentation requirement. It may include US tax forms (also referred to as withholding certificates or W forms) or self-declarations of FATCA status. For the full list of documents required, please also refer to the IRS website.

    A joint account which has one US Person is treated as a US account and therefore the entire account is subject to the FATCA legislation.

    FATCA is an ongoing process. If your account information changes, we may need to engage you from time to time to help us understand you better including requiring you to provide us with further information and documentation so that we are able to update your account status under FATCA.

    FATCA is an ongoing process. If any of your account information changes, e.g. change of telephone number, address or nationality etc., please inform Hang Seng within 30 days of the change and we may need to engage you in order to update your status under FATCA.

    The information reported to the IRS or to the local tax authority will depend on your FATCA status. This information will typically be of a personal nature (for example, Name, Address, US Taxpayer Identification Number), and of a financial nature (e.g. Account number, Account balance/Value).

    Business customers

    No. The impacts of FATCA are wider than just US companies. To identify customers which are reportable under FATCA, we will be reaching out to business customers globally to determine their status, and  communicate with customers who need to take further action. The following criteria will be considered (but not limited to) to determine if you are a US Person under FATCA:

    • US incorporated or registered
    • US address including business address, correspondence address etc.
    • US telephone number
    • Repeating payment instructions to pay amounts to a US address or an account maintained in the US
    • Current Power of Attorney or signatory authority granted to a person with a US address
    • In care of or hold mail address which your sole address 

    In order to establish your tax status under FATCA, we may need you to provide additional information/documentation. This documentation could be a Hang Seng declaration or a US tax form from the IRS. We will be communicating with affected customers the need to complete these documents, detailing when they will need to be completed by.

    FATCA does not replace the existing US tax regimes, it may however add additional requirements and complexity to the existing tax rules you may already follow. Should you need further advice on your tax status or FATCA classification/status, you should contact a professional tax and/or legal adviser.

    Banks and financial organisations may have different ways to collect customer information to confirm their tax status under FATCA. This may mean that in some instances we will collect documentation which is different than another bank. We cannot offer advice on your FATCA tax status or classification. If you need further support you should visit the IRS website or contact a professional tax adviser.

    FATCA is an ongoing process. If your account information changes, we may need to engage you from time to time to help us understand you better including requiring you to provide us with further information and documentation so that we are able to update your account status under FATCA.

    The purpose of FATCA is to prevent US Persons (see glossary) from using financial organisations such as banks to avoid US taxation on their global income and assets. We will therefore report information to the IRS or local tax authority on all accounts held directly or indirectly by US Persons. In addition, we may also need to report information about customers who do not provide the required documentation to us.

    The information reported to the IRS or the local tax authority will depend on your FATCA status. This information will typically be of a personal nature in relation to the substantial US owners of a business (for example, name, address, US Taxpayer Identification Number), and of a financial nature (e.g. account number, account balance / value).

    Your firm will be classified as a reportable legal entity under FATCA.

    What do I need to do?

    We will advise you of FATCA documentation requirement. It may include US tax forms (also referred to as withholding certificates or W forms) or self-declarations of FATCA status.

    Yes. We will either send you the relevant forms or direct you to a website where you can download them.

    If you are considered as a US Person, we may need to engage you from time to time to help us understand you better including requiring you to provide us with further information and documentation. Please visit the IRS website for further information.

    In general, please respond to the request for FATCA documentation by the date stated in the communication.

    We are committed to be fully compliant with FATCA.

    If you choose not to comply with our requests for documentation to establish your status under FATCA within the regulatory timeframe, we may:

    • stop opening new accounts or offer additional products and services to you
    • exit the relationship with you
    • report information about you
    • withhold tax on certain US-source payments coming into your account. (Please see the glossary for further information on Withholding tax).

    We will continue to review the impact of the legislation and will correspond with affected customers in due course. For more information regarding FATCA, please visit the IRS website, or contact your professional tax adviser for advice.

    If you have multiple relationships with us, you may be approached by different members or businesses of us. In light of laws or regulations in different countries and regions, we appreciate your response to all our requests to help us serve you better and capture your information accurately.

    Please note that we are unable to offer tax and legal advice. For tax and legal related questions please contact your professional tax and legal advisers and refer to the IRS website.

    Forms and other information

    Glossary of FATCA terminologies

    FFI is the abbreviation for Foreign Financial Institution. It refers to a non-US Financial Institution. The FATCA legislation contains an extensive definition of FFI and includes entities such as banks, custodian institutions, investment funds and certain types of insurance companies.

    Withholding certificates, also referred to as W-forms, are US IRS tax forms.

    Form W-9 is a Request for Taxpayer Identification Number and Certification. This US Tax Form is provided by an account holder to confirm and certify their US status. The W-8 series forms are currently used by non-US persons (including corporations) to certify their non-US status. The form establishes that one is a non-resident alien or non-US corporation, to avoid or reduce tax withholding from US source income. These forms will permit a non-US customer to self-certify their status under FATCA.

    An IGA is an agreement between the US and specific countries/territories to build FATCA compliance into latter’s legal framework so that they can implement FATCA. An IGA will require financial institutions to provide the information on US accounts which they hold either:

    • directly to the IRS
    • to the local tax authority of the resident country/territory

    The IRS is the United States government agency responsible for tax collection and tax law enforcement.

    A NFFE (Non-Financial Foreign Entity) is a non-US incorporated/established entity that does not meet the definition of an FFI and includes:

    • Listed or privately held operating or trading businesses
    • Professional service firms
    • Certain entities with a passive trade (i.e. not an operating/trading business)
    • Charitable organisations

    A US IRS specific term: Tax Identification Number.

    For an individual this would be their US social security number, for an entity their employer identification number. 

    The term "Specified United States Person" means any United States person other than:

    • a corporation the stock of which is regularly traded on one or more established securities markets for a calendar year;
    • any corporation which is a member of the same expanded affiliated group as a corporation the stock of which is regularly traded on one or more established securities markets for a calendar year;
    • any organisation exempt from taxation under US federal tax law or an individual retirement plan;
    • the United States or any wholly owned agency or instrumentality thereof;
    • any State, the District of Columbia, any US territory, any political subdivision of any of the foregoing, or any wholly owned agency or instrumentality of any one or more of the foregoing;
    • any bank incorporated and doing business under the laws of the United States (including laws relating to the District of Columbia) or of any state thereof;
    • any real estate investment trust;
    • any regulated investment company, or any entity registered with the Securities Exchange Commission under the Investment Company Act of 1940;
    • any common trust fund;
    • any trust that is exempt from tax or is deemed a charitable trust;
    • a dealer in securities, commodities, or derivative financial instruments that is registered as such under the laws of the United States or any State;
    • a broker; and
    • any tax exempt trust under a tax exempt or public school annuity plan or governmental plan.

    The term "United States Person" means:

    • A citizen or resident of the United States;
    • A partnership created or organized in the United States or under the law of the United States or of any State, or the District of Columbia;
    • A corporation created or organized in the United States or under the law of the United States or of any State, or the District of Columbia;
    • Any estate or trust other than a foreign estate or foreign trust. (See Internal Revenue Code section 7701(a) (31) for the definition of a foreign estate and a foreign trust.);
    • A person that meets the substantial presence test; or
    • Any other person that is not a non-US person.

    The term "United States Citizen" means:

    • An individual born in the United States;
    • An individual whose parent is a US citizen;
    • A former alien who has been naturalized as a US citizen;
    • An individual born in Puerto Rico;
    • An individual born in Guam; or
    • An individual born in the US Virgin Islands.

    A 30% withholding tax applies under FATCA on "withholdable payments" in respect of financial institutions that do not comply with the FATCA requirements and/or customers who do not provide the requisite FATCA documentation.

    The term withholdable payment means:

    • fixed or determinable, annual or periodical (FDAP) income, if such payment is from sources within the US – this will include any payment of interest and dividends. This was applied from 1 July 2014.

    Various exceptions apply, including income connected with a US business.

    Useful information

    Footnote

    Remark(s)

    1. This is a Hang Seng form, aimed at non-US trading businesses and companies, to sign in place of one of the US W-8 series tax forms. Please read the form carefully to ensure you meet the relevant conditions. If you think that you may not meet the relevant conditions, then please select an appropriate US tax forms (IRS W forms).
    2. This is a Hang Seng form, aimed at non-profit organisations, to sign in place of one of the US W-8 series tax forms. Please read the form carefully to ensure you meet the relevant conditions. If you think that you may not meet the relevant conditions, then please select an appropriate US tax forms (IRS W forms) provided.
    3. A range of withholding statements including QI Withholding Statement, NQI Withholding Statement and FFI Owner Reporting Statement have been provided, which can be used when providing a Form W-8IMY.