If we are looking at significant trends in 2013 affecting equity compensation programs, then the rise of foreign asset and account reporting obligations will have to be one of them. And Switzerland is to blame for it, sort of.
For many years, wealthy individuals all around the globe, including in the US, have deposited millions of dollars in Swiss bank accounts, where local bank secrecy laws were thought to keep them hidden from the tax authorities. The IRS finally got fed up with this practice and started to aggressively pursue these hidden assets. Part of this strategy included introducing new reporting obligations (through the adoption of the Foreign Account Tax Compliance Act, or FATCA) as well as stricter enforcement of existing reporting obligations (by introducing harsher penalties for failure to comply with the Foreign Bank Account Reporting Act, or FBAR).
Under both FATCA and FBAR, US taxpayers are required to report (as part of their annual tax return) foreign bank accounts and other foreign assets, thereby ensuring that the IRS can get its share of taxes due on such assets. Many countries are now following suit and are adopting similar reporting requirements for their tax residents (Korea, Japan, Argentina) or beefing up and imposing stricter penalties for existing reporting requirements (Canada, Spain, Italy).
Getting people to pay their fair share of taxes is great but why should you care as an equity plan professional?
Well, if you are an issuer, then you most likely work with a broker/plan administrator that allows your plan participants to open brokerage accounts to hold their shares acquired under the plan as well as any proceeds from such shares. If these accounts are maintained outside the US, your US plan participants will need to comply with FBAR and FATCA. If the accounts are maintained in the US, many of your non-US plan participants (depending on their country of tax residency) will now also have to report such accounts.
Is this really your problem as an issuer?
No, technically, the obligation to complete the reports lies with your plan participant, and the company (or the plan administrator) has no liability if the plan participant does not report (or not correctly reports) the accounts or assets in the account. That said, I think it is fair to assume that many plan participants (especially if you are offering your plans not just to high level executives) are not aware of foreign account or asset reporting obligations, and it may not occur to many of them that, by participating in your equity plan and setting up a foreign brokerage account, they are now subject to these reporting obligations.
Given the stiff penalties that apply in many countries if accounts and assets are not correctly reported, I think it is good practice to notify your plan participants of these obligations and advise them to talk to their personal tax advisor about whether they need to complete a report. This notification (which usually does not have to be more than a paragraph) can be included either in the grant agreement/notice (or in a country-specific appendix to the agreement) or in a tax supplement (if your company provides such information to participants).
We will probably see more countries introduce foreign asset and account reporting requirements over the next few years, so make sure to review the requirements on a regular basis. Your plan participants will thank you for letting them know about these requirements and (hopefully) keeping them out of trouble.
Blame it on Switzerland
by Barbara Klementz 3 Mins Read
Author Barbara Klementz