FAQs
Skip information indexGeneral information requirements
The regulation applicable to Spanish financial institutions is the Agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the implementation of the Foreign Account Tax Compliance Act-FATCA, henceforth the Agreement, published in the Official State Gazette of 1 of July 2014, which is directly binding and of obligatory compliance. As a complement to the same, Order HAP/1136/2014, of 30 June, hereinafter, the Order, has been approved, which regulates certain issues related to the obligations to provide information and due diligence established in the agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the application of American law on foreign account tax compliance and the annual financial accounts informative declaration for specific American individuals is approved, form 290.
Without prejudice to the foregoing, US Treasury regulations may be applicable in certain cases, for example in those referred to in Article 1.2.2 and Article 4 of the Order.
Likewise, article 37 bis has been incorporated recently in the General Regulation of the tax management and inspection actions and procedures and of the development of the common taxation procedure norms, approved by Royal Decree 1065/2007 of 27 July, which regulates financial institutions,' hereinafter FI, obligations to provide information on financial accounts.
Those set out in its article 4 and developed in article 3 of the Order. Therefore, if the financial institution (FI) is a Spanish FI obliged to communicate information and it determines that it does not have any American account subject to information communication after having applied the procedures of due diligence, it will not be obliged to submit form 290, however it is still subject to fulfilling the rest of duties and, particularly, that of being registered with the American Tax Administration.
The answer would be identical in the case of a Spanish FI obliged to communicate information that only had accounts considered to be exempt products according to the provisions of appendix II of the Agreement.
The registration referred to in section d) of article 3 of the Order will be carried out by electronic means on the website that the US Tax Administration Agency (IRS) has created for this purpose ( https:// sa.www4.irs.gov/fatca-rup/ ).
Registration, like the rest of the obligations of Article 4 of the Agreement, is generally mandatory for all those entities that are considered a Spanish financial institution obliged to communicate information. If such consideration is not taken, as for example in the case of real estate collective investment institutions, there is no obligation to register.
Registration is also mandatory for small Spanish financial institutions with local clientele in Annex II of the Agreement that have an obligation to communicate information, for sponsoring entities, sponsored investment entities, sponsored controlled foreign companies and, where applicable, instruments sponsored investment projects with a small number of investors, to which sections C and D of section II of Annex II of the Agreement refer and in the terms provided for in said annex, as well as for those entities that invoke their status or condition as an institution. foreign financial institution considered compliant, when required by the applicable regulations issued by the United States Treasury.
With the noted exceptions, entities identified in Annex II of the Agreement will not be required to register, for example, pension funds, as well as certain collective investment instruments that meet the requirements set forth therein.
Regarding the deadline to register and obtain the corresponding Global Intermediary Identification Number (GIIN), although in general the FIs must provide said GIIN to avoid withholding on payments made Since July 1, 2014, this deadline is extended until January 1, 2015 for FIs from a country with which the US. USA. has signed a FATCA Model 1 Agreement, as is the case of Spain.
Those pre-existing financial accounts that, in application of the aforementioned review procedures, are identified as US accounts subject to reporting must be included in form 290 corresponding to the year in which such identification occurred.
As indicated in Order HAP/1136/2014, in the event that the person submitting the declaration acts as sponsoring entity in accordance with the provisions of section 2 of article 1 of the same, the information referred to in sections 1 to 6 of the annex to said Order must be provided both with respect to the sponsored investment entity and the entity that acts as sponsoring entity.
No. The concept of sponsoring entity is defined in the regulations issued by the United States Treasury, and has been incorporated, with the pertinent modifications, in sections C and D of section II of Annex II of the Agreement, in relation to those entities that, complying with the requirements indicated in the aforementioned Annex II, assume compliance with the obligations derived from FATCA that correspond to a sponsored investment entity, controlled foreign corporation or to a sponsored, closely held investment vehicle (sponsored investment entity, sponsored foreign company or sponsored investment vehicle with a small number of investors), which retain the liability derived from possible non-compliance.
In any case, to submit an informative return on behalf of a third party, the necessary representation must be accredited in accordance with the general rules established in the General Tax Law and its implementing regulations.
Regarding the date of birth of the holder of the financial account (or, where applicable, of the persons who exercise control), if it is not completed leaving said field blank, A warning message will be displayed indicating this circumstance, so that you can take the appropriate actions to try to obtain said information. The aforementioned notice will be displayed regardless of whether or not the US TIN is completed.
Technically, the label may be optional (as it involves a choice between several possible options of one type or another of information), but if it is legally required that said information be recorded in Form 290, the financial institution must complete the Model with the information it has about that information field, in any case. That is, if you have it, you cannot choose whether to declare it or not.
Section 2.a) of Article 2 Agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the implementation of the Foreign Account Tax Compliance Act - FATCA (Law on tax compliance on foreign accounts), made in Madrid on May 14, 2013, establishes the information to be provided for each of the accounts subject to communication of information, being the Annex to Order HAP/1136/2014, of June 30, by which model 290 is approved, which details the content of the information that Model 290 must contain.
For example, the type of owner must be provided or whether a certain account is canceled must be indicated, even if this is information that in Form 290 corresponds to an optional label.
No. The amount of the “Inflow of funds” field of form 291 ( annual informative declaration of the Income Tax of non-residents. Accounts of non-residents without permanent establishment ) does not correspond to what must be declared in the "Interest" field of Form 290.
This is because the “Inflow of funds” field is defined in Form 291 as the total annual amount for the sum of notes to the credit of the account or sum of credits, which does not strictly correspond to the concept of interest. , being the total gross amount of interest paid or due on the account during the calendar year or other relevant reference period.
When entering or not recording this value in Form 290, it must be taken into account that:
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The account number is not limited to the codes IBAN or ISIN, but may be different depending on the category of financial account in question.
- Only in the event that the financial institution does not have any unique identifier, functional equivalent or numbering
that allows you to identify the declared financial account, you must enter the characters "NANUM".
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If “NANUM” was recorded because the information was aggregated by client in its databases, the financial institution must provide the identifying numbers of the accounts individually considered as this aggregation is not correct in accordance with the applicable regulations.
In short, the use of the value “NANUM” must be considered exceptional, being recorded only in those cases in which the financial institution does not have the identification code of the financial account in question.
The regulatory basis for the above is found in the following sections:
Article 2.2.(2) of the Agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the implementation of the Foreign Account Tax Compliance Act - FATCA (Foreign Account Tax Compliance Law), done in Madrid on May 14, 2013, when determining the information to be obtained and exchanged, it is indicated that this consists, among other things, of: " b) The account number." the account number (or equivalent functional element in the absence of an account number) ”
Similarly, the Annex to Order HAP/1136/2014, of June 30, which approves model 290, within the content of the annual informative declaration of financial accounts of certain US persons, establishes in its section 8 that the messages transmitted by financial institutions to the AEAT must contain:
“ Account number . It may consist of an IBAN code, ISIN, the reference number of a cash value insurance contract or an annuity contract or any other identifying code used by the financial institution obliged to communicate information
Therefore, the account number is not limited to the IBAN or ISIN codes, but can be different depending on the category of financial account, and only in the event that no unique identifier of the declared financial account is available. , you must enter the characters "NANUM" (no account number).
No. The NilReport element is optional.
However, in accordance with what is indicated in the Technical Manual for the presentation of Form 290, available at the Electronic Office, if a declaration is presented NilReport para un periodo, no podrá presentarse ninguna declaración con AccountReports para ese periodo hasta que el NilReport sea anulado (FATCA3). Del mismo modo si se han presentado AccountReports para un periodo no podrá presentarse una declaración NilReport para ese periodo hasta que todas las AccountReports sean anuladas (FATCA3). Por último, tampoco se acepta un segundo NilReport para una misma Institución Financiera (ReportingFI) y ejercicio, si ya se aceptó un NilReport.
In the case of joint accounts, both for the purposes of determining whether or not it exceeds the thresholds established in Annex I of the Agreement and for the purposes of declaring the balance of the account in form 290, the balance or total value will be attributed to each account holder. of each financial account. This rule is also applicable for the purposes of balance aggregation.
However, the existence of a joint account subject to communication of information does not imply that information must be included in form 290 regarding the other holders of the declared accounts with respect to whom information must not be reported in application of the Agreement and its Order of development.