<![CDATA[MILLEN TAX & LEGAL GMBH - Blog]]>Sat, 18 May 2024 00:59:13 +0200Weebly<![CDATA[The Corporate Transparency Act Landscape: 20 Weeks In...]]>Wed, 15 May 2024 09:50:50 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-20-weeks-in
<![CDATA[The Corporate Transparency Act Landscape: 10 weeks in...]]>Mon, 04 Mar 2024 11:48:09 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-10-weeks-in
<![CDATA[The Corporate Transparency Act Landscape: 0 weeks to go...]]>Tue, 26 Dec 2023 14:14:01 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-0-weeks-to-go
<![CDATA[The Corporate Transparency Act Landscape: Six Weeks to Go...]]>Fri, 24 Nov 2023 08:38:10 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-six-weeks-to-go
<![CDATA[The Corporate Transparency Act Landscape: Three Months to Go...]]>Thu, 05 Oct 2023 08:40:35 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-three-months-to-go
<![CDATA[Ripples in Still Water: Crypto Regulation by Litigation]]>Tue, 22 Aug 2023 14:59:51 GMThttp://millentaxandlegal.ch/blog/ripples-in-still-water-crypto-regulation-by-litigation
<![CDATA[The Corporate Transparency Act Landscape: Five Months To Go...]]>Fri, 18 Aug 2023 12:31:33 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-five-months-to-go
<![CDATA[The Farhy Case: Not All Tax Penalties Are Created Assessable]]>Wed, 10 May 2023 08:24:34 GMThttp://millentaxandlegal.ch/blog/the-farhy-case-not-all-tax-penalties-are-created-assessable
<![CDATA[Revenue Ruling 2023-02: Ending the Cake Service for Grantor Trusts]]>Tue, 09 May 2023 12:45:49 GMThttp://millentaxandlegal.ch/blog/revenue-ruling-2023-02-ending-the-cake-service-for-grantor-trusts
<![CDATA[The Corporate Transparency Act Landscape: Nine Months To Go...]]>Tue, 04 Apr 2023 07:34:42 GMThttp://millentaxandlegal.ch/blog/the-corporate-transparency-act-landscape-nine-months-to-go
<![CDATA[Access Rules for New US Federal Beneficial Owner Registry Proposed]]>Tue, 27 Dec 2022 09:01:36 GMThttp://millentaxandlegal.ch/blog/access-rules-for-new-us-federal-beneficial-owner-registry-proposed
<![CDATA[US Federal Beneficial Owner Registry: Treasury Releases Final Regulations for the Corporate Transparency Act]]>Thu, 06 Oct 2022 13:08:24 GMThttp://millentaxandlegal.ch/blog/what-is-this-new-nominee-reporting-obligation-under-the-ptp-withholding-provisions-of-the-proposed-qi-agreement6811521
<![CDATA[What is this New Nominee Reporting Obligation under the PTP Withholding Provisions of the Proposed QI Agreement?]]>Wed, 07 Sep 2022 09:24:41 GMThttp://millentaxandlegal.ch/blog/what-is-this-new-nominee-reporting-obligation-under-the-ptp-withholding-provisions-of-the-proposed-qi-agreementAmongst the unexpected and peculiar features of the proposed Qualified Intermediary (QI) Agreement–as expanded to cover withholding on payments from publicly-traded partnerships (PTPs)–the new nominee reporting requirement per §6031 of the Internal Revenue Code (IRC) stands apart.
Background to the Revamped Sections of the Proposed QI Agreement
In May 2022, the US Treasury Department released IRS Notice 2022-23, a proposed revision to the QI Agreement. Under the new draft sections, QIs may assume withholding and reporting obligations under §§ 1446(a) and 1446(f) of the US Treasury Regulations for payments connected to PTPs. The new provisions for PTP withholding are needed because a Non-US Person who sells an interest in a partnership that could earn income effectively connected with a US trade or business is subject to US federal income taxation per §864(c)(8) of the 2017 tax legislation. In parallel to this substantive rule, Congress added a new withholding dimension under §1446, imposing on a buyer of an interest subject to §864(c)(8) the obligation to withhold 10% of the amount realized.
For further elaboration on these concepts, please refer the MTL blogs on §§ 864(c)(8) and 1446(a) and (f), here.
The §1446(f) statutory provision, however, did not explain how that ought to work for PTPs, where the buyer and seller are typically invisible to one another. As such, the US Treasury Department promptly suspended the withholding regime for PTPs via IRS Notice 2018-02 and, via a series of subsequent notifications and the publication of the withholding regulations in late 2020, eventually, pushed the activation date to 1 January 2023. With the revamped QI Agreement, the PTP withholding regime is moving into the implementation phase. As stated in the preamble to Notice 2022-23, the objective of the new PTP sections to the QI Agreement is straightforward: To align the treatment of PTP payments with those of payments traditionally processed by non-US custodial institutions. However, rather than ensuring frictionless continuity from dividend withholding to PTP payment withholding, the proposed QI Agreement introduces a few novel aspects to the QI Regime.
Nominee Reporting Requirements under the Proposed QI Agreement for PTP Withholding
Some novel aspects of the proposed QI Agreement for PTP Withholding, such as the new official QI status of the “Disclosing QI” and strict demands for US Taxpayer Identification Numbers (TINs) from non-US Persons, may be disruptive of existing QI operations. Only one new feature, however, obliges parties to set up and maintain a fresh tax reporting mechanism: Nominee reporting.
Nominee reporting per §6031(c) of the IRC is not a new provision and it serves an essential role outside the QI Regime. Anytime a nominee holds a partnerships interest (of any partnership, not just a PTP), the nominee is charged with ensuring that the partnership has sufficient information on the beneficial owner to provide an accurate Schedule K-1 to the partner and analogous return to the IRS. Prior to this year’s draft QI Agreement, the §6031(c) concept of a “nominee” was commonly understood to refer to a Person holding the reportable partnership interest during the partnership’s tax year in its own name on behalf of the beneficial owner of the interest (see e.g. Treas. Regs. §1.6031(c)-1T). For this reason and because PTP and other partnership interests were previously held in non-QI accounts, nominee reporting did not concern the QI system. That has now changed.
Proposed Section 2.92 of the new draft QI Agreement adds a series of new definitions to accommodate the jargon of PTP withholding and partnership taxation, one of which is a definition of a “Nominee,” which explicitly includes Withholding QIs. Furthermore, proposed Section 8.07 widens the nominee reporting requirement to the other types of QI statuses, as follows–
  • Withholding QIs may EITHER prepare the nominee reporting information set forth in Treas. Regs. §1.6031(c)-1T(a) and deliver it to the PTP or its designated agent OR prepare the nominee reporting information set forth in Treas. Regs. §1.6031(c)-1T(h) and provide it to the PTP interest’s account holder (i.e. the beneficial owner partner or to the next intermediary in the payment chain).
  • Non-withholding QIs must fulfill identical nominee reporting duties as Withholding QIs (despite not being explicitly named in the definition of a “Nominee” in Section 2.92).
  • Disclosing QIs must deliver the information described above for §1.6031(c)-1T(a) to the PTP or its designated agent or to its own nominee (i.e. the intermediary immediately upstream from it in the payment chain), which must formally operate as either an agent of the PTP or of the QI.
While the mechanics of nominee reporting under IRC §6031 are markedly less cumbersome than some of the other reporting required of QIs, it constitutes an additional reporting function that must be set up, tested and maintained. First, the QI must be certain it can collect all mandatory information (notably, US TINs) before it opts for a strategy, which may depend upon interchanges of information with third parties, which tend to slow down or complicate tax reporting. Second, PTP interests may need to be shifted across custodial accounts in order to avert duplicative reports to the IRS. Third, if the QI decides to adopt the option under§ 1.6031(c)-1T(h) to intermediate the K-1s from the PTP to the beneficial owner partner, it will need a grasp of US partnership taxation concepts to provide a meaningful review of the information for which it is responsible. Finally, any defect with respect to nominee reporting is a material failure (Section 10.03(B)(1)) which, if left uncorrected, would lead to an event of default and the termination of the entity’s QI status.
While any of the above challenges around nominee reporting under IRC §6031 and the new PTP Withholding provisions of the proposed QI Agreement may be softened in the final version of the QI Agreement (the IRS expressly requested comments on Section 8.07 in the preamble), It is a necessary evil. Thus, nominee reporting will likely remain a new and unexpected obligation for most QIs to fulfil.
If you wish to discuss the above analysis or any other aspects of the QI Regime in greater detail, please contact us at paul@millentaxandlegal.ch to arrange a conversation.]]>
<![CDATA[Delay to the ยง871(m) Dividend Equivalent Withholding Regime]]>Thu, 25 Aug 2022 14:05:04 GMThttp://millentaxandlegal.ch/blog/delay-to-the-871m-dividend-equivalent-withholding-regimeOn 23 August, the IRS released Notice 2022-37, extending the current lite version of the §871(m) regime, which has been in effect since the issuance of Notice 2016-76 (and was further prolonged via Notices 2018-72 and 2020-2). Per the terms of the new Notice, the “§871(m) Lite” regime shall remain in effect for at least another two years.
The lite version of §871(m) relaxes the following key elements of the §871(m) regime, each of which was prolonged per the new Notice–
  • Only derivative instruments with a delta equal to one at the time of issuance will be in-scope for §871(m) withholding. This limitation to delta one products has multiple material consequences, such as–
    • The exclusion of virtually any product with an optionality dimension
    • A reduction in the overall volume of in-scope derivative instruments
    • The sidelining of the Substantial Equivalent Test for complex contracts (as their deltas by definition cannot be measured and thus cannot equal one)
  • The simplification of the “combination transaction” anti-abuse rule so that only products that are deliberately packaged together must be treated as a single derivative instrument under §871(m) Lite
  • The extension of a “good faith” defense for Withholding Agents and taxpayers in cases of non-compliance
  • The allowance for Qualified Derivatives Dealers (QDDs) qua QDDs to continue to receive actual dividend payments gross (i.e. not just synthetic ones), thereby allowing QDDs to continue to hedge their exposures as derivative issuers with physical equites, rather than only with equity derivative instruments
  • The relief for QDDs until 2025 to satisfy the full set of compliance duties prescribed by the Qualified Intermediary Agreement, such as periodic reviews and the determination of their so-called “net delta”
Undoubtedly, the extension is welcome news. Few affected parties were ready to revamp their withholding mechanisms and other system’s requirements by 1 January 2023 in time to fulfill their duties under a new §871(m) regime or under a reversion to the 2015 §871(m) Treasury Regulations. Thanks to Notice 2022-37, all affected parties will enjoy another full two-year period to implement any changes to the §871(m) regime. The problem now is not knowing what those changes are.
The latest §871(m) extension provided scant indication of how or when the IRS intends to revise the regime as set out in the 2015 §871(m) Treasury Regulations. We can reasonably draw two conclusions about the future of §871(m): It will neither remain in its Lite form nor revert to the regime described in the 2015 Treasury Regulations. If either of those outcomes were its permanent destiny, then presumably the IRS would have said so by now. Instead, we must wait and wonder what regime change will come.]]>
<![CDATA[Section 871(m): The Sleeping Giant Awakens?]]>Tue, 05 Apr 2022 11:59:02 GMThttp://millentaxandlegal.ch/blog/section-871m-the-sleeping-giant-awakens