Taxation of US securities in Taiwan: It’s not as simple as it looks 美國證券稅收制度對台灣金融機構的影響-不像看起來的那麼簡單

Authors: Daniel Dominguez and Ross McGill

Translator: Amanda Hsu

 

歡迎閱讀此系列文章的第一篇,這系列文章有助於,台灣的金融機構了解交易美國證券或美國證券相關的衍生性商篇所產生的一些陷阱與機會。

Welcome to the first in a series of articles designed to help financial firms in Taiwan understand some of the pit-falls and opportunities that result from trading in US securities or derivative financial products that reference US securities.

 

當面對美國稅法遵循時,台灣金融機構與其他國家面臨一樣的議題。至少目前美國仍為全世界最大的證券市場。

Financial firms in Taiwan face the same issues as those in any other country when it comes to compliance with US tax laws. The US is still, at least for the moment, the largest securities market in the world.

 

許多投資人的投資組合有配置美國證券,所以對金融機構而言,幾乎無可避免提供美國證券或相關的衍生性金融商品交易,例如:CDV。

Many investors have US securities in their portfolio so it’s almost impossible for financial firms to avoid offering trading in US securities or derivative products that have underlying exposure to US securities such as CDVs, to their customers.

 

許多金融機構的困境在於,他們不了解當提供美國證券交易時,他們會面臨到哪些問題。除了上漲下跌與市場波動會刺激更多交易之外,長期持有美國證券的投資人也有可能收到配息,例如:股息、債息或票息。

The difficulty for many financial firms is that they do not necessarily understand what they are getting into when they offer trading in US securities. Apart from the highs and lows and market fluctuations that drive much trading, investors who hold US securities long enough may also receive payments such as dividends or coupon payments on equities or bonds respectively.

 

當配發美國證券(或衍生性金融商品)時,款項從原始發行人到最終受益人中間通常會經過多家金融機構。美國要求這種付款方式的稅率預設為30%,除非最終受益人有權享有較低的稅率。

When a US security (or derivative) is distributed, the payment often passes through a number of financial firms on its way from the original Issuer of the security to the ultimate beneficial owner. The US requires tax to be paid on such payments at a default tax rate of 30% unless the beneficial owner is entitled to a lower rate.

 

像台灣的情況,因為台灣與美國沒有雙重稅務協定,即便沒有減少此稅率,付款流程中的金融機構必須向IRS申報他們彼此每年的1042-S退稅款項,在一些情況下,必須提供這些申報資料副本給他們的客戶。這些申報的性質和數量依美國對金融機構的分類而定,即合格的中介機構(QIs)或非合格的中介機構(NQIs)會不同。

Even when there is no reduction from this rate, as is the case with Taiwan because there is no double tax treaty between Taiwan and the US, financial firms in the chain of payment must report the payments they make to each other to the IRS on Information Returns 1042-S each year and, in some cases, provide copies of those reports to their customers. The nature and number of these reports varies depending on the US classification of the financial institutions as either qualified intermediaries (QIs) or non qualified intermediaries (NQIs).

 

美國QI制度自2001年生效,2009年美國政府公告,認為任何NQI金融機構可能從事逃漏稅行為。在任何潛在QI能申請並簽署QI協議之前,任何機構獲得QI資格的先決條件是,該國家/地區的“了解您的客戶”(KYC)法規必須獲得IRS批准。現在,台灣的KYC法規已獲得批准,任何允許從事美國證券交易的金融機構都能成為QI。

While the US QI program has been in effect since 2001, as far back as 2009, the US government publicly stated that it will treat any financial institution that is a non qualified intermediary as if it is facilitating tax evasion. The pre-requisite for any firm to be eligible for QI status is that its country’s Know Your Customer (KYC) rules must be approved by the IRS before any prospective QI can apply and sign a QI agreement. Now that Taiwan’s KYC rules have been approved, the way is open for any financial firm that allows trading in US securities to become a QI.

 

不僅於此,一家機構無論是否為QI或NQI,接受美國來源付款的每一個動作會使該機構受到美國稅碼(又稱為”章”)的法令規範。主要的章節有第1、3、4、31和61章,這些章節分別處理美國證券(或衍生性金融商品)不同課稅方式,以及如何記錄/申報這些所得的收受者。

But it doesn’t end there. Whether a firm is a QI or NQI, the very act of receiving US sourced payments on behalf of someone else, exposes that firm to several sets of regulatory rules in the US tax Code (called ‘Chapters’). The main ones are Chapters 1, 3, 4, 31 and 61 which all deal with the different ways that US securities (or derivative products that reference US securities) should be taxed and how the recipients of such income should be documented and/or reported.

 

如此一來,可能是因為金融機構對法規的誤解、不了解法規或刻意試圖規避法規,而發生一些常見的問題。在上述任何情況下,美國不會原諒且IRS的罰款可能嚴重損害金融機構的商譽(和財務損益)。這裡有兩個議題:

As a result, there are some common problems that can occur perhaps because a financial institution has misunderstood the regulations, is not aware of the regulations or is deliberately trying to avoid them. In any of these cases, the US is not forgiving and a penalty from the IRS can substantially damage the reputation (and bottom line) of a financial institution. Here are just two issues.

 

客戶機密、資料保護對許多金融機構是個大議題。但你知道,如果你是一家NQI,每年你必須申報每一位收到美國來源所得的客戶給IRS。這代表你必須給美國政府,客戶的姓名、地址、稅編、與前一年度美國來源所得金額。避免所有上述事項的答案是,成為合格中介機構。如果你是QI,你已經與IRS簽訂合約,只要你履行合約義務,正確地紀錄客戶、及時並正確地預扣與存入美國稅款以及每年向IRS申報—你會獲得一些實質的好處,不只是不會有被歸類為NQI的缺點,你還不須要揭露你的客戶給美國政府。你可以在任何時間申請成為QI,但如果在3月31日之前申請,還可以獲得額外的好處。最大的問題是,儘管申請過程相當簡單,但是如果您沒有做好計劃或無法使用所需的工具,那麼成為QI可能會有些困難。

Client confidentiality, data protection is a big issue for all financial institutions. But did you know that if you’re an NQI, you must report every single customer that receives US sourced income to the US government each year. That means that you must send to the US government your customer’s names, addresses, tax ID numbers and amounts of US sourced income they received during the previous year.  The answer to avoid all that is to become a qualified intermediary. If you’re a QI, you have signed a contract with the IRS and, as long as you meet the obligations of that contract to document customers properly, withhold and deposit US tax in a timely way and report your payments annually to the IRS – you get some substantial benefits, not least of which are not being tarnished with the classification of NQI and you don’t have to disclose your direct customers to the US government. You can apply to be a QI at any time, although there is an additional operational benefit if you apply before March 31st. The biggest issue is that, while the application process is reasonably simple, the practical obligations of being a QI can be a bit daunting if you haven’t planned for them or you don’t have access to the tools you’ll need.

 

避免違規。根據美國稅法,支付流程中的每一家金融機構必須向上一層的機構提出自我聲明,因此每一家機構知道如何辨識它自己的客戶身分。通常採用美國稅務表單,所謂的W-8(有5種類型的表單)並在由機構代表人在「接受偽證處罰」前提下簽署。換句話說,提供錯誤表單或偽造錯誤聲明是違法的。然而,證券經紀商特別容易在這裡犯錯,因為他們通常將客戶資產的「所有權」當作開戶的一部份,並將持有這些證券在支付流程上一層金融機構的”street name”(亦即他們的名稱)下。他們錯誤地認為自己擁有這些證券的所有權,所以也是這些證券所得的最終受益人。因此他們用美國稅法W-8BEN-E表單認證自己是最終受益人。

Avoid jail time. Under US tax regulations, every financial institution in the chain of payment must certify itself to the firm immediately above it in the chain, so that each firm knows how to treat its customer for US tax purposes. This is usually done with a US tax form called a W-8 (of which there are five types) and which are signed ‘under penalties of perjury’ by a person authorised to represent the firm. In other words, it’s a criminal offence to provide the wrong form or make false statements on these forms. However, Brokers are particularly vulnerable to making mistakes here because they will often take what is called ‘Title’ to the assets of their customers as part of their account opening and hold those securities in ‘street name’ (i.e. their name) at a financial institution above them in the payment chain. They believe, incorrectly, that, by taking title to the securities, they are also therefore the beneficial owner of the income derived from those securities. So, they use the US tax form W-8BEN-E to certify that they are the beneficial owner.

 

有個簡單的測驗可以讓證券經紀商決定採用哪一種美國稅務聲明。如果你收到配息(例如:股息),你是否直接支付任何第三方? 如果答案為「是」,你不是美國稅務的最終受益人。當然,這案例說明證券經紀商客戶的帳戶收到相同的股息款項。在這案例中,雖然證券經紀商可能擁有證券的所有權,但從美國稅法角度來看,他們不是稅務目的最終受益人。證券經紀商使用W-8BEN-E表單並不正確,而W-8IMY表示證券經紀商代表中介機構,因此W-8IMY才是正確的表單。錯用表單是非常嚴重的問題,因為表單上有「偽證處罰」條款。如果沒有修正,則簽署表單者及所代表的公司皆承擔法律上的風險。

There is a simple test for those brokers to decide which US tax certification to make. If you receive a distribution (say a dividend), do you make a payment to any third party directly contingent on the receipt of that distribution? If the answer is yes, you’re not the beneficial owner for US tax purposes.  In the case described, of course, the broker’s customer receives a payment to their account of that same distribution. In that case, while the broker may have title to the securities, from a US tax view, they are NOT the ultimate beneficial owner for tax purposes. The form W-8BEN-E was incorrect and the form W-8IMY indicating that the broker acted as an intermediary, was the correct form. This is a very serious matter because of that ‘penalty of perjury’ clause on the form. If its not corrected, the person who signed the form and the firm they represent are both at legal risk.

 

做為活躍於17個國家的TConsult組織一員,我們有豐富的知識與實務經驗,可以幫助台灣金融機構了解並遵循複雜的法規,並避免這類代價高昂的潛在錯誤。如果你想了解更多,請與我們聯絡。

As an affiliate of the TConsult organisation, active in seventeen countries, we have access to a body of knowledge and practical experience that can help Taiwanese financial institutions understand and comply with these complex regulations and avoid these types of potentially costly mistakes. If you’d like to know more, get in touch.

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