CRS – Coming soon to a bank near you…

From 1 July 2017, Australian financial institutions will be required to report account information of anyone with a tax residence outside of Australia to the ATO under the OECD’s Common Reporting Standard (CRS). Once the United States rolled out FATCA, countries in the OECD decided that cross-border reporting of financial accounts might be a good way to rein in use of tax havens for tax evasion. However, while the two are similar, there are some differences.  The key features of CRS are a common standard for: the scope of reporting (type of information, which account holders and which institutions), the due diligence required, format of the data to be exchanged.

With the current push for FATCA repeal, and the recent Hearing on The Unintended Consequences of FATCA, CRS is mentioned by some as a possible substitute for FATCA. Unfortunately, there seem to be a few misconceptions about the differences between the two Automated Exchange of Information (AEOI) schemes. As implemented in Australia, CRS is perfectly compatible with Citizenship Based Taxation.

While it is exceedingly unlikely that the U.S. Congress will ever sign on to CRS, it is important for those who advocate CRS as a more “benign” alternative to be clear on exactly what CRS entails.

This article covers:

  1. How is CRS being implemented in Australia?
  2. Who must report?
  3. Who and what must be reported?
  4. Reciprocity – FATCA vs CRS
  5. Penalties – FATCA vs CRS
  6. Implications for US Persons

Implementation

Australia has passed implementing legislation that requires all financial institutions to implement the OECD’s Common Reporting Standard (CRS) and report all reportable accounts to the ATO. Thus, in Australia, the authority for CRS implementation comes from domestic legislation, not from the OECD itself. The legislation incorporates the OECD standard by reference and relies on bilateral treaties or the Multilateral Competent Authority Agreement on Automatic Exchange of Financial Account Information (MCAA) for authority to exchange information with other jurisdictions.

CRS is being implemented in Australia using the “wider approach”. This means that reporting financial institutions will collect tax residence from all account holders and report all who have a tax residence outside of Australia to the ATO. The ATO will only forward this information to a foreign government if that government has adopted CRS and has either signed the MCAA, or a bilateral agreement for exchange of tax information. This means that financial institutions don’t need to keep up with which countries have joined the CRS bandwagon, and will streamline the compliance requirements for FIs. For U.S. citizens, this means that account data will be sent to the ATO twice – once under FATCA and once under CRS.

Who must report?

Both FATCA and CRS require financial institutions to report account information to the ATO. CRS has a broader definition for reporting Financial Institutions than FATCA. The AEOI Guidance lists several types of institutions that are exempt from FATCA reporting but not exempt from CRS. These include financial institutions with a local client base and those with only low-value accounts.

Who and what gets reported?

For accounts opened after 1 July 2017, financial institutions will be asking clients about tax residence. It appears that the ATO is not specifying the precise method or form for collecting this information (unlike Canada). For new accounts, tax residence declarations must be obtained before opening the account.[1] For pre-existing accounts an electronic search for a foreign address may be sufficient. Citizenship and place of birth are not listed as indicia in the official OECD guidelines, though the Australian AEOI Guidance states that “The Account Holder is regarded as a resident of a foreign jurisdiction” if, among other indicia, “the Account Holder is identified as resident of a foreign jurisdiction or as a U.S. citizen.” Furthermore, with regard to U.S. citizens, the ATO’s AEOI Guidance states:

In special cases where an individual has ties to more than one jurisdiction, they may be ‘dual resident’ – a tax resident of more than one country or jurisdiction.  For example, the U.S always treats their citizens as tax resident, regardless of where they live.  This means that a U.S. citizen is always a U.S. tax resident, even if they live and work in Australia. Where an individual is tax resident in more than one jurisdiction, any Financial Accounts held by that person or held by an Entity which has the individual as a Controlling Person are Reportable Accounts for each jurisdiction where they are tax resident.

Generally, CRS excludes the same types of accounts as FATCA (superannuation, escrow accounts, term life insurance, First Home Saver Account, funeral policy, scholarship plan). However, CRS has no de minimis lower value threshold on individual accounts while FATCA allows FIs to exclude accounts below US$50,000.

Individual accounts are fairly easy for FIs to classify. One of the big compliance nightmares of both FATCA and CRS is the need to determine who controls business, trust and other entity accounts. For Passive NonFinancial Entites (NFEs)[2], the controlling person’s tax residency must be reported. The FI must generally follow the chain of ownership until a natural person is identified as the ultimate controlling person of the NFE.

The scope of data to be reported under CRS closely mirrors the data reported under FATCA. The minor differences are:

  • For accounts that are closed during the year FATCA requires the balance immediately before closure, while CRS only requires notification of closure.
  • CRS requires jurisdiction(s) of tax residence
  • CRS requires taxpayer ID numbers issued by jurisdiction(s) of residence. FATCA requires a U.S. Tax ID number only if held by the institution.
  • CRS requires date of birth for all individuals; FATCA only requires date of birth if U.S. Tax ID number is not reported AND the institution has date of birth in their records.

Reciprocity

CRS has been developed based on multi-lateral agreement between countries, spearheaded by the OECD. Each country has voluntarily joined in and will both send and receive information. Participating jurisdictions will exchange on a multilateral basis with other participating jurisdictions. Each participant will receive the same scope of information that they provide – and the scope and format of information has been standardised across all participating jurisdictions. FATCA, on the other hand, is mostly a one-way street. The raw FATCA legislation (before application of the IGAs) mandated that FFIs send information to the IRS, but did not offer for the IRS to reciprocate in any fashion. Some of the Model 1 IGAs were developed with a promise of asymmetrical reciprocity. The U.S. receives much more information than it promises – and the promise is only to attempt to pass legislation to allow the IRS to pass on the limited information promised. Interestingly, the reciprocal IGAs contained a clause to allow a revisiting of the reciprocity part of the agreement by 31 December 2016; it appears that no IGA partner invoked that particular clause.

Penalties

One obvious difference between FATCA and CRS, at least from the point of view of the reporting financial institution, is that FATCA (as originally enacted by Congress) threatens non-compliant institutions with 30% withholding on all U.S. transactions. For most large banks being subject to this level of withholding would be catastrophic. No wonder the banks were so vocal in lobbying governments around the world to sign Intergovernmental Agreements (IGAs) with the U.S. Treasury. Under the U.S.-Australia IGA, Australian financial institutions no longer risk the 30% withholding sanction. Instead, they now have Australian legislation that requires them to report U.S. account holders to the ATO so that the ATO can send this data to the IRS.  

So, as both CRS and FATCA are currently implemented in Australia, enforcement on Australian FIs and their customers is by the ATO in the form of Administrative Penalties for failure to follow Australian law and regulations.

Implications

So, what does the introduction of CRS mean for U.S. Persons living in Australia or Australians living in the U.S.? As mentioned above, one immediate implication is that data on U.S. tax residents will be sent to the ATO twice. This includes data that the ATO doesn’t normally collect automatically (or didn’t before FATCA), such as account number and balance. Furthermore, since CRS does not have a lower value threshold for reporting an account that has been identified as belonging to an account holder with a foreign tax residence, we can expect many FIs to report all accounts for FATCA as well, even those below US$50,000.

With the subtle differences between FATCA and CRS, FIs would be able to avoid costly duplication if FATCA were to be repealed. For this reason, we can expect FIs and governments to lobby the U.S. government to scrap FATCA and join on to CRS instead. CRS is not incompatible with the U.S. practice of citizenship based taxation. As implemented in Australia, it is very clear that CRS will respect the U.S. claim that it has the right to tax non-resident citizens. However, in my opinion, it is highly unlikely that the U.S. will ever join CRS for several reasons:

  • As long as FATCA is in place, the U.S. has no need to join the CRS; the U.S. already gets all the data it needs and CRS provides no benefits, but many costs.
  • As we’ve seen with the attempts at limited FATCA reciprocity, it is not easy for the IRS to obtain the authority needed to collect (and share) the same data that FATCA requires foreign banks to report. While the IRS attempted to get most of the limited information promised under the FATCA reciprocal Model 1 IGAs via regulation, it is likely that these regulations will be rescinded by the current administration. Furthermore, given corporate secrecy laws in some states, actually obtaining beneficial ownership data may prove to be impossible under current U.S. law.
  • Complying with CRS will require more information from U.S. FIs than the limited FATCA reciprocity. Forcing FIs to comply will require legislation in the U.S. (much like every other country in the world was required to change privacy laws and force local banks to comply with FATCA). It is highly unlikely that any such legislation would pass under the current Republican Congress.
  • With Fourth Amendment rights against warrantless searches forming a major part of the basis for FATCA repeal, it would be hypocritical to repeal FATCA then turn around and argue that the U.S. should join CRS, which forces foreign FIs to provide almost exactly the same information.

If FATCA is repealed and CRS is not adopted in the U.S., then the U.S. will have truly earned its reputation as one of the world’s biggest tax havens.

(If you’ve gotten this far… there’s a technical appendix for this post on the wiki.)


[1] There is an exception for Low Value individual accounts where the individual already has a pre-existing account with the FI, and aggregate balances of all of that individual’s accounts with the FI are under $1m.

[2] Essentially, entities that derive more than 50% of their income from investments and are NOT traded on a stock exchange are classified as passive rather than active.

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