The countdown is on, with just a month to go before the United States’ Foreign Account Tax Compliance Act (FATCA) goes live on July 1. Aimed at curbing tax evasion by American citizens, an estimated 26,000 foreign financial institutions (FFIs) around the world will have to be FATCA compliant or be shut out of the US financial system. As a result, FFIs — primarily banks — are scrambling to be ready to report to central banks or directly to the US’s International Revenue Service (IRS), depending on governmental agreements.
In the MENA region, Lebanon is considered by local bankers to be ahead of the pack, followed by Jordan, Saudi Arabia and other Gulf countries. “We’re really well prepared to meet FATCA, and I think with all modesty, the most prepared in the MENA today, because we started at the beginning — some three years ago — and have carried out intensive training,” said Makram Sader, secretary general of the Association of Banks in Lebanon (ABL). “But very few FFIs will be on time in MENA.”
The Lebanese banking sector has been preparing for FATCA like the teacher’s pet not because it is a major advocate of reining in tax havens — Lebanese law explicitly allows companies set up with offshore tax status — or greater taxation transparency and new tax laws in the country. Rather, the sector is exceedingly wary of international regulators, specifically of falling foul of the US Treasury. This is due to Lebanon’s immense exposure to American leverage: some 70 percent of local deposits are held in US dollars; banks need to keep good relations with correspondent banks in the US and elsewhere; and no one wants a repeat of the 2011 Lebanese Canadian Bank fiasco, when the bank was accused by the US of money laundering and subsequently closed its doors.
“Banks want to avoid the danger of having another [Lebanese Canadian Bank] right now, as it would affect the sector as a whole, so all banks are being careful that FATCA will be properly applied,” said Malek Costa, head of compliance at BLOM Bank. “In substance, the threat is to be cut off from the US financial system.”
Compliance has become a major concern for the sector, pushed by the central bank, Banque du Liban (BDL), which issued two circulars — 126 and 128 — in 2012 and 2013 for banks to abide by international regulations and establish compliance departments, respectively. Indeed, compliance with anti-money laundering and counterterrorism financing regulations — with FATCA the latest such addition — is being taken so seriously that Sader conceded that he has spent about 20 percent of his time over the past two years on compliance issues alone.
That said, Sader claimed Lebanon is well positioned to capitalize on providing financial services related to FATCA. “Maybe we can prepare other MENA countries to implement FATCA by exporting that skill. For example, we are supporting the Association of Iraqi Banks, as there are 11 Lebanese banks there, by educating our bank partners and supporting the Central Bank of Iraq,” he said.
However, that the banking sector has prepared for FATCA so early can be read as a further indication of the country’s inability to defy US demands. Indeed, as one compliance officer put it off the record, “It is ridiculous that it takes a foreigner to come here and say you have to apply regulations, and we do it, but not because we are afraid of the Lebanese regulator.”
FATCA has been a problematic law to apply globally, with governments having to amend domestic legislation — in Lebanon’s case to allow for US clients to waive banking secrecy. Moreover, the act was met with political resistance and a lackluster uptake by many jurisdictions, so much so that the IRS had to delay FATCA’s rollout multiple times. Adding to the law’s problems, none of the rising BRICs (Brazil, Russia, India or China) have signed up yet. However, there has been a flurry of jurisdictions signing intergovernmental agreements (IGAs) with the US just in the past few months as the IRS went on a global push, fearing that FATCA’s effectiveness could be undermined before it even started.
Another potential reason for the push was to end the current period in which Americans can renounce their citizenship without paying back taxes. “There are around 3,000 renunciations a year of US citizenship and there is growing interest, but they don’t say if it’s because of FATCA or a travel risk element, but certainly FATCA has an impact because of the complexity of banking in this world,” claimed Armand Arton, president and CEO of global financial advisory business Arton Capital.
Loss of business?
BDL opted to not go for an IGA with Washington but rather for banks to report directly to the IRS, concerned that if it signed an IGA there would be the remote possibility of the US freezing BDL money in the event of non-compliance. “It was a political reason, to not be an agent of the IRS,” said a senior source at BDL speaking on the condition of anonymity.
Yet while many jurisdictions have not yet signed up to FATCA, and some are unlikely to at all — Russia is a prime example — and certain MENA countries lag behind, the Lebanese banks are more than ready. “We are working as if FATCA already exists,” said Abdul Razzak Achour, chair and general manager of Fenicia Bank. “We are contacting all FFIs that we do business with and checking if [they are] FATCA compliant; if not, we will act accordingly.”
But herein lies the primary problem with the law. How will FATCA compliant Lebanese banks deal with what the IRS calls “recalcitrant” FFIs? And does the sector stand to lose business by not dealing with non-participating FFIs in say West Africa, Algeria or China? No one interviewed by Executive could give a clear answer.
“I’m not sure if we’ll lose business. Even the worst country in Africa has clean businesses and wants to do business with good banks,” said Sader. “Yet in terms of business, [Lebanese banks are] in 30 different countries, and maybe five, six or seven countries will not comply [with FATCA].”
Practical short game, long term worries
Joseph El Fadl, a managing partner at Deloitte, which was contracted to draw up a FATCA implementation manual for the ABL, believes the IRS will initially be pragmatic once FATCA goes live. “The IRS acknowledges it’s not going to be a piece of cake and indicates it is not going to be difficult with FFIs in the early stages,” he said. “We’ve seen that international banks want compliant FFIs, but what will be the reaction? We may have two layers, big banks refraining from doing business with non-participating FFIs, and medium banks applying withholding tax, but we don’t know yet.”
Initially, FATCA will be implemented in two phases. “The first is to screen all existing accounts with a threshold of over $1 million, so not a big task [in Lebanon] as that’s not more than 2 to 4 percent of customer deposits. Then it will move to thresholds of $50,000 and above, and about documentation and questions, with a short list of who could fall under FATCA,” said El Fadl.
This second stage will prove the most trying, as banks will have to sift through all bank accounts for possible US indicia — citizenship, residency, addresses, etc. — with Sader estimating there could be as many as three million accounts to go through.
Elsewhere in the region this may be more challenging. For example, Syria is requiring banks to be FATCA compliant, including Lebanese banks operating in the country. “There’s a large number of displaced Syrians, so it will be a challenge as a number of clients are outside the country, and there may be a mismatch between addresses on record and current addresses because of the security situation,” said Chahdan Jebeyli, who wears several hats as chief legal and compliance officer at Bank Audi, chairman of the ABL’s anti-money laundering committee, and the Union of Arab Banks’ head of compliance.
If clients are not cooperative, banks will have to decide whether to close an account or withhold 30 percent of interest returns in tax, as stipulated by FATCA. “The main issue banks will face is confronting pre-existing customers to make them fill out the necessary documents,” said Costa. “For example, if a client having US indicia showing in the core banking system or customer file says, ‘No, I am not a US citizen,’ we’ll say, ‘Prove it within 90 days or we’ll close the account, or withhold.’”
What is expected is that the financial sector will essentially police itself by dealing with only compliant FFIs. “You will see banks across the world asking other banks if [they are] FATCA compliant, asking about the Global Intermediary Identification Number [GIIN — to be registered with the IRS] and it will be a main factor in evaluating the continuing relationship,” said Jebeyli. “I don’t believe any Lebanese bank will not be compliant, and if there are mistakes, it will be in the details not the general direction.”