FATCA

Foreign Account Tax Compliance Act
What is affected by FATCA?
 

FATCA will affect anyone, whether an individual or a legal entity, inside or outside the US.

Foreign Financial Institutions ("FFIs") will be most affected because they will have to comply with FATCA or pay a 30% penalty that applies to certain sources of U.S. income.
BRD, like other banks in Romania, has implemented the regulations required by FATCA. As a result, customers identified as U.S. Persons will be reported to the IRS beginning in 2015.

What is US, USA or United States of America?
- United States
- The US territories of Guam,
- Puerto Rico,
- Northern Mariana Islands, 
- US Virgin Islands,
- American Samoa.

What is a FATCA undocumented customer?
BRD must treat the account holder as a "specific US person, undocumented". if:
- The account holder shows U.S. indicia and has not submitted the required documentation (self-certification and Form W-9, including a U.S. TIN, if applicable, or obtain the appropriate Form W-8 to substantiate non-U.S. person status) within 90 days of detecting a change in circumstances OR
- The client has not responded to the request for information, does not provide adequate evidence to delete the detected U.S. indicia, and the deadline has been exceeded OR
- it is impossible to confirm or deny the status of the Account Holder after one or more US indicia(s) have been identified.

BRD will not enter into a business relationship with a customer who refuses to respond to a customer's request for information regarding the determination of the customer's FATCA status.
Beginning in 2022, the ANAF will no longer accept the reporting of customers with undocumented FATCA status.

 
Deadline for FATCA provisions to apply: July 01, 2014.

FATCA notification
 

Transposition of FATCA into Romanian law

The main obligations established by FATCA were taken over in the Agreement between Romania and the United States of America to improve international tax compliance and to implement FATCA (FATCA Agreement), which was concluded in May 2015 and published in the Official Monitor on October 30, 2015 (Law no. 233/2015).

Also, additional clarifications for the implementation of FATCA in the Romanian legislation are provided by OUG No. 102/2022 of June 29, 2022 amending and supplementing Law no. 207/2015 regarding the establishment of financial institutions subject to the reporting obligation, the categories of information regarding the identification of taxpayers, as well as information of a financial nature relating to accounts opened and/or closed by them with financial institutions, non-reporting financial institutions in Romania and accounts excluded from the reporting obligation, the compliance rules applicable by these institutions in order to identify the accounts reportable by them, as well as the procedure for reporting this information and the administrative rules and procedures aimed at ensuring the implementation and compliance with the reporting and due diligence procedures provided for in the legal instruments of international law to which Romania has committed itself.

Application of FATCA by BRD Groupe Societe Generale S.A..

The Société Générale SA Group complies with FATCA regulations. Société Générale SA is registered in France, one of the "partner" countries that have agreed to adopt an intergovernmental approach with the US authorities for FATCA enforcement.

BRD - Groupe Société Générale SA complies with FATCA requirements and is registered on the IRS website with FATCA Reporting Model 1 status, assigned GIIN code QQA6ZW.00076.ME.642.
 

On the basis of FATCA provisions, as transposed into Romanian law, financial institutions have the obligation:
became effective);
- to obtain from them information and documents on account holders showing FATCA indicia (specific US persons), including specific US beneficial owners of Passive Non-Financial Entities, in accordance with Art.62 para. (3) of Law 207/2015 (Tax Procedure Code) with subsequent amendments and additions on Taxpayer Identification Number ("TIN=tax identification number", "EIN= Employer identification number" , etc);
- to document account holders with US indicia by collecting a self-certificate by which they certify their FATCA status, respectively requesting specific US tax forms: W9 / W8 / W8-BEN.
- to report annually to the National Tax Administration Agency (ANAF), as the designated competent authority for reporting to the Internal Revenue Service (IRS), financial information on US index taxpayers.
The processing and reporting of financial information by BRD - Groupe Société Générale SA takes place in compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC ("GDPR"), applicable as of May 25, 2018.

Please note that BRD - Groupe Société Générale SA only processes the data that it is required to report by law. Refusal by customers to have their personal data processed by BRD - Groupe Société Générale SA for FATCA purposes may lead to the termination of the contractual relationship with the bank.

You have the right at any time to request confirmation that their personal data is being processed for FATCA purposes. Detailed information on your rights in relation to the processing of your personal data and how to exercise them can be found in the Information on the processing of personal data, available free of charge on the BRD website, section https://www.brd.ro/prelucrarea-datelor-cu-caracter-personal and in any BRD establishment.
 

Useful Information

What information will be reported to ANAF?
According to OUG 102 of June 29, 2022 amending and supplementing Law No. 207/2015 on the Code of Fiscal Procedure, if you are a FATCA reportable person or legal entity, certain information regarding financial accounts held directly or indirectly by foreign tax residents will be reported annually to local tax authorities by May 15. 

The information communicated will be: 
- name, address, jurisdiction/jurisdictions of residence, tax identification number(s) and date and place of birth ,in the case of an individual who is a reporting person and who is the account holder of the said account;
- name, address, jurisdiction/jurisdictions of residence and tax identification number(s) in the case of an entity that is an account holder and a reporting person:
- Account number or its functional equivalent in the absence of an account number;
- the balance or value of the account, and in the case of an investment account, the redemption value, valid at the end of the relevant calendar year.

What are US Indicia?
 The US Indicia is information about an individual or a legal entity on the basis of which it is determined whether it can be considered a US Person.

The US Indicia for Natural Persons are as follows:
- U.S. Citizenship or U.S. Residency (this includes possession of a Green Card allowing residence in the U.S. as an immigrant);
- U.S. Place of Birth;
- Current address (mailing, home, residence, P.O. Box, or Attention) is in the USA;
- A U.S. "on the account holder's account" or "hold mail" (post-resident) address that is the only address available on file for the account holder;
- A U.S. telephone number with a U.S. area code* (even if this U.S. number is not the only number associated with the account holder);
- A power of attorney or signature authorization has been granted to a person with a U.S. address (mailing, home, residence, P.O. Box, or Attention);
- Standing order (standing order) for transfer of funds from a BRD - Groupe Société Générale SA account to a U.S. account (at least 3 transactions, with the same amount to the same beneficiary/ same U.S. account, made within one year);
- Green Card; 
- Tax Identification Number - TIN

The US Indicia for Legal Entities are as follows:
- US location (place of registration/ incorporation) or residence is the United States of America;
- US address.
- U.S. individuals who have control of an entity, Non-U.S. "passive" legal entity customer.

What is a Taxpayer Identification Number ("TIN/SSN")?
The Taxpayer Identification Number (TIN) is the tax identification number assigned to a person that is used by the IRS in administering tax laws. It is issued either by the Social Security Administration (and in this case is called a Social Security Number SSN) or by the IRS.

What is an Employer Identification Number (EIN)?
The Employer Identification Number (EIN) is the tax identification number of an individual or other person (whether or not they are an employer). The terms Employer Identification Number and EIN refer to the same number.


What is a Non-Financial Foreign Entity ("NFFE")?
An NFFE is a non-US legal entity that is not a financial institution. There are two categories of NFFE:
- "Active NFFE"  are entities engaged in active transactions or businesses (manufacturing, industry, non-financial services, etc.) where less than 50% of the gross income from the preceding calendar year is passive. This is a FATCA status;
- „Passive NFFE”, have more than 50% of gross income (such as dividends, interest, rents, royalties, annuities) as passive income. This is a FATCA status.


What does "Passive NFFE (U.S.-owned)" mean?
This is a FATCA status. A "Passive NFFE" (U.S.-owned) is a Non-Financial Foreign Entity that has one or more controlling persons who are considered U.S. Persons. A Control Person is an individual who exercises control over an entity.


What is an Exempt Beneficial Owner?
- This is a FATCA status. The term Exempt Beneficial Owner means any of the following persons:
- Any Foreign Government, any political subdivision of a Foreign Government, or any wholly-owned agency or governmental agency of one or more of the above; OR
- Any International Organization or any wholly-owned agency or government agency thereof; OR
- Any Foreign Central Bank concerned; OR
- Any Government of a U.S. Territory, OR
- Certain Pension Funds; OR
- Entities wholly-owned by one or more Exempt Beneficial Owners; OR
- In addition, an Exempt Beneficial Owner includes any person deemed to be an Exempt Beneficial Owner under Model 1 IGA or Model 2 IGA.

Note: IGA Models refer to Non-Reporting IGA Financial Institutions, the definition encompassing this status.


Forms used:
Form W-9: Its purpose is to request the taxpayer's Taxpayer Identification Number (TIN). It is used exclusively by U.S. Persons, individuals or corporations. See instructions for completing Form W-9 on the IRS website: http://www.irs.gov/pub/irs-pdf/iw9.pdf.

Form W-8BEN: Its purpose is to identify non-US beneficial owners of accounts and transactions. It is used by individuals only. Legal entities must use Form W-8BEN-E. See the instructions for completing Form W-8BEN on the IRS website: http://www.irs.gov/pub/irs-pdf/iw8ben.pdf.

Form W-BEN-E: Form W-8BEN-E is intended to identify non-U.S. legal entities or Foreign Financial Institutions (FFIs) that are the beneficial owners of accounts or transactions. It is used exclusively by legal entities or FFIs. Individuals must use Form W-8BEN.

What is FDAP Income (Fixed or Determinable Annual or Periodic Income)?
FDAP Income for FATCA purposes is fixed or determinable annual or periodic income, excluding gains from the sale of real or personal property (including market discount and option gains, but not including original issue discount). For example: compensation for personal services, dividends, interest, pensions and annuities, alimony, rents, other than gains from the sale of real estate, royalties, etc. US Source FDAP means any income from a US source and that meets the definition of FDAP Income.

Learn more about CRS CRS.