Last week, the IRS issued Notice 2023-11 providing relief procedures for foreign financial institutions (“FFIs”) in countries with Model 1 intergovernmental agreements (“IGAs”) that have failed to provide U.S. taxpayer identification numbers (“TINs”) for certain preexisting accounts.  Preexisting accounts are defined in Model 1 IGAs as a financial account maintained by a reporting financial institution as of June 30, 2014.  Those FFIs in eligible Model 1 IGA jurisdictions that comply with the procedures described in the notice will avoid being identified by the U.S. Competent Authority as being in significant non-compliance with the IGA. (A list of U.S. IGAs, including Model 1 IGAs, along with other useful information regarding the status of all IGAs may be found at the Treasury’s FATCA page.)

The notice details the history of the reporting requirements that applied to reporting Model 1 FFIs with respect to U.S. TINs of specified U.S. persons that are account holders and controlling persons of non-U.S. entities.  Before 2017, reporting Model 1 FFIs were not required to report U.S TINs for a reportable preexisting account if the TIN was not in the FFI’s records.  In lieu of reporting the U.S. TIN, the FFI was required to report the date of birth of the account holder if the FFI possessed it.  Subsequently, Treasury and the IRS issued Notice 2017-46, which provided relief and guidance for FFIs unable to obtain U.S. TINs for preexisting accounts if the FFI complied with the conditions of that notice. 

Although reporting Model 1 FFIs have had up to six years between the Model 1 IGAs and Notice 2017-46 to obtain the required U.S. TINs from account holders, the IRS continued to receive reports that did not include U.S. TINs for preexisting accounts.  Consequently, the IRS established voluntary TIN Codes for FFIs to identify the applicable reason that the FFI could not provide a U.S. TIN when the FFI reported 2020 data. The applicable codes and their meanings may be found under Reporting FAQ 6 on the IRS FATCA FAQs page

Notice 2023-11 explains that Treasury and the IRS learned that certain reporting Model 1 FFIs are either taking or considering taking adverse action against U.S. account holders, including closing accounts and providing less favorable terms for accounts, including without regard to whether the U.S. account holder has provided a U.S. TIN in certain cases.  This reaction from certain reporting Model 1 FFIs appears to be related to the concern that FFIs may be designated by the U.S. Competent Authority as non-compliant under the terms of applicable Model 1 IGAs. 

To address these concerns and to prevent negative actions against U.S. citizens, Treasury and the IRS have developed new procedures described in the new notice to limit the likelihood that reporting Model 1 FFIs will be identified as non-compliant while concurrently promoting greater reporting compliance for preexisting accounts.  In particular, for reporting years 2022, 2023, and 2024, Reporting Model 1 FFIs that follow the specified procedures in Notice 2023-11 will not be treated as non-compliant with their obligations under the Model 1 IGA solely due to the failure to report a required U.S. TIN for preexisting accounts. 

Section 3.02 of the notice provides that reporting Model 1 FFIs are eligible for relief with respect to certain preexisting accounts if the FFIs (1) obtain and report the date of birth of each individual or controlling person whose U.S. TIN is not reported; (2) beginning in 2023, annually request a missing U.S. TIN from each account holder; (3) beginning in 2023, annually search its electronically searchable data for any missing U.S. TINs; and (4) report the applicable TIN Code, as published and updated by the IRS, for each account missing a required U.S. TIN.  Further, for a reporting Model 1 FFI to be eligible for the relief with respect to a particular calendar year or appropriate reporting period, Section 3.05 of the notice requires the Model 1 IGA jurisdiction to make good faith efforts within nine months after the end of the calendar year to which the information relates to do the following:

  • Encourage U.S. citizens resident in the jurisdiction to provide U.S. TINs to FFIs when requested;
  • Enforce compliance by reporting Model 1 FFIs identified by the U.S. Competent Authority as potentially non-compliant;
  • Encourage FFIs within the Model 1 IGA jurisdiction not to discriminate against U.S. citizens that provide a U.S. TIN; and
  • If notified by the U.S. Competent Authority, take steps necessary to conclude Competent Authority Arrangements with the U.S. Competent Authority, implement an IGA, amend Annex II to an IGA, or exchange country-by-country information.

For purposes of establishing a transition period for the Model 1 IGA jurisdiction, the notice assumes the requirements of Section 3.05 are satisfied for calendar year 2022.  Accordingly, relief applies for reporting Model 1 FFIs for 2022 if the FFIs satisfy the requirements under Section 3.02 of the notice.  For 2023, the reporting Model 1 FFIs must satisfy the requirements of Section 3.02, and the IGA jurisdiction must satisfy the requirements of Section 3.05.

Photo of Michael M. Lloyd Michael M. Lloyd

Michael Lloyd practices in the areas of tax and employee benefits with a focus on information reporting and withholding on cross-border payments (e.g., Forms 1042 and 1042-S) and Foreign Account Tax Compliance Act (FATCA), backup withholding, employment taxation, the treatment of fringe benefits…

Michael Lloyd practices in the areas of tax and employee benefits with a focus on information reporting and withholding on cross-border payments (e.g., Forms 1042 and 1042-S) and Foreign Account Tax Compliance Act (FATCA), backup withholding, employment taxation, the treatment of fringe benefits, cross-border compensation, domestic information reporting (e.g., Forms W-2, 1099, 1095 series returns), penalty abatement, and general tax planning and controversy matters. Michael advises large U.S. and foreign multinationals regarding compliance with information reporting and withholding issues, as well as a range of other federal and state tax issues.

Michael completed a three-year term on the IRS Information Reporting Program Advisory Committee (IRPAC) in 2013, during which time he worked with the IRS on FATCA, the Affordable Care Act (ACA or Obamacare) reporting issues, tip reporting, Form 1099-K reporting issues, and civil penalty administration. He has testified before the U.S. Treasury Department and the IRS regarding proposed federal tax regulations.

Michael’s experience includes serving as Tax Manager for a publicly traded multinational, where he managed federal and state tax examinations and appeals, including matters involving foreign taxes. In addition, he performed domestic and international tax planning, including issues related to the repatriation of foreign earnings, U.S. export tax benefits, research credits, and planning for foreign expansion.

Michael has appeared as a guest speaker on IRS Live and at seminars hosted by Tax Executives Institute (TEI), Thomson Reuters OneSource, IRSCompliance, the American Payroll Association (APA), the Blue Cross and Blue Shield Association, the National Association of College and University Business Officers (NACUBO), and the National Restaurant Association.

Photo of S. Michael Chittenden S. Michael Chittenden

Michael Chittenden practices in the areas of tax and employee benefits with a focus on the Foreign Account Tax Compliance Act (FATCA), information reporting (e.g., Forms 1095, 1096, 1098, 1099, W-2, 1042, and 1042-S) and withholding, payroll taxes, and fringe benefits. Michael advises…

Michael Chittenden practices in the areas of tax and employee benefits with a focus on the Foreign Account Tax Compliance Act (FATCA), information reporting (e.g., Forms 1095, 1096, 1098, 1099, W-2, 1042, and 1042-S) and withholding, payroll taxes, and fringe benefits. Michael advises companies on their obligations under FATCA and assists in the development of comprehensive FATCA and Chapter 3 (nonresident alien reporting and withholding) compliance programs.

Michael advises large employers on their employment tax obligations, including the special FICA and FUTA rules for nonqualified deferred compensation, the successor employer rules, the voluntary correction of employment tax mistakes, and the abatement of late deposit and information reporting penalties. In addition, he has also advised large insurance companies and employers on the Affordable Care Act reporting requirements in Sections 6055 and 6056, and advised clients on the application of section 6050W (Form 1099-K reporting), including its application to third-party payment networks.

Michael counsels clients on mobile workforce issues including state income tax withholding for mobile employees and expatriate and inpatriate taxation and reporting.

Michael is a frequent commentator on information withholding, payroll taxes, and fringe benefits and regularly gives presentations on the compliance burdens for companies.