19 Responses to US-India FATCA Agreement 1: What to Expect from Bilateral FATCA agreement between the US and India

  1. Rajib says:

    Hi Jigar
    I get CD (certificate deposit) interest $1000 per year in USA. I have moved to India for good last year but I want to continue my CD for another 3 years in USA. Every year bank share me the 1099 form and I pay tax on interest along with my salary income in USA. Since I have moved to India can I pay the taxable interest in India which I have earned in USA? If it is yes do I need to inform IRS for the same? Do I need to fill out a separate form during my India tax return?
    Thanks
    Rajib

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      1. As you have moved to India only last year, your residential status may be “Not Ordinary Resident”. Foreign interest income is not taxable for Not Ordinary Residents.
      2. You may be able to get foreign income exclusion deduction for your salary income in India for your US tax return.
      3. There is no double tax on the same income so if you have paid tax in USA, you would get a credit in your Indian tax return and vice versa. Thanks.

  2. Sanjay shah says:

    Dear Jigar
    Since last 5 years staying in USA and doing Job and get salary and paying tax in USA
    My father runing business in India ,having partnership firm in which I am one of the partner getting share of profit and also remuneration and paying tax for the same
    As per the new rule FATCA , shall I have to pay tax again in USA for my Indian income ?
    (Tax paid )

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      1. Multiple error are being occurred in your case. I would think your father would still be indicating you as a resident and filing your tax return as Indian resident. Technically, you are not allowed any remuneration as you are not working for the partnership firm. Also, as an NRI, TDS @ 30.9% will apply to any taxable payment to you i.e. partner interest as well as partner remuneration and reported separately to the Income Tax department. If you are an Indian resident, you are required to report your foreign income and assets while filing your tax return. If not, Black Money Act may apply as any income/asset outside India, not report to Indian government may be termed as black money subject to heavy tax/penalty.
      2. FATCA has not changed anything. As you are a US resident, you were supposed to pay tax on your Indian income since last 5 years. With FATCA, Indian government will report your Indian income to IRS.
      3. I would strongly recommend you start complying with rules and laws and seek professional help from your CA in India and CPA in USA. Thanks.

  3. PK says:

    Hi jigar,

    by now i think i have read all your blogs and even the comments . Kudos to your research and this initiative.

    Can you clarify, provide some reference articles about US sourced and foreign sourced incomes w.r.t FATCA. a person may be a NRI since last 3 years , however lets say he invested in MFs with his indian savings back in 2008 ! . if such a person wants to redeem his investment now , which is exempt from tax in india, why does he have to pay 30% tax to IRS . IRS accounts for income but isn’t it necessary to find out income source ? It would be fair if the person remitted $ to india , bought MFs in india and is enjoying income w/o reporting the same to IRS, US is losing out $ and revenue.

    another example, a person deputed to US or who quit and joined a new employer in US , might still have salary, ppf, gratuity incomes showing up in india. lets say after 5 yrs of employment in india a person received 5 Lakhs as gratuity during the year he moved to US and became an NRI. why should IRS be taxing this 5Lakh .

    a person owning a house/flat estate in india years before he became an NRI , through his indian income and renting this out now, he is well below indian tax slabs and so rental income is not taxable . then why should IRS tax 30% of this income ?

    to me it seems common sense but the general terms floating around FATCA, fbar etc are not clarifying this point. your inputs and research on this would help.

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      As per Indian tax laws, long term capital gain on equity investments is exempt from tax provided STT (Securities Transaction Tax) is paid. As per US laws, mutual fund investment is considered as investment in Passive Foreign Investment Company (PFIC) and is taxed accordingly.

      Similarly, the laws of both countries are different and as you are a US resident and having investments in India, you need to comply with both USA and Indian tax laws. I suggest you consult with your CPA. Thanks.

  4. Himanshu says:

    Hi Jigar,

    I had a query regarding extent of compliance on institutions towards disclosure under FATCA. My company, an infrastructure company, is working on a business solution where investments would be solicited form NRIs, NRE and NRO accounts. I have been reading up that FATCA would impact financial as well as non-financial institutions. So, given the context, would it be required for my firm to enter into some kind of agreement with US treasury for filings on investment information or would the bank where the accounts are held would fulfill this mandate?

    Thanks

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      Only Financial accounts attract FATCA requirement. As you would be issuing equity or raising debt directly, you may not be affected by FATCA. However, RBI rules, conditions, procedures and reporting requirements would apply to your raising funds from NRIs. Thanks.

  5. S. Singh says:

    I am US citizen. I opened an NRE account in india in 2009. in 2012 i deposited over 50.000 us dollars in my account earning some interest on my fixed deposit. so far i have not filed any fbar or 8938 forms. i am concerned the IRS will get all my information from indian govt thru IGA between US and India. i had no idea about this law all this time. i am planning to close my account in march 2015. my questions are,
    1] what should be my course of action going forward for this tax year 2015. should i file FBAR and 8938 forms.
    2] if i close my account next month in march. will it still be reported to the IRS.
    3] if i file for both FBAR and 8938 how do i prove them as to how much i have in my NRE account and how much interest i made.
    4] as per my understanding i have to pay tax on the interest.
    5] what about previous years of not reporting anything. what are the implications.

    please advice as to the best course of action. i really appreciate your advice

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      I would suggest you to consider either Streamlined Compliance or Overseas Voluntary disclosure and disclose all your assets/income. Please consult an experience CPA in USA for the same. Thanks.

  6. madhav says:

    Hi sir I am madhav and I did mba in finance from an ordinary college but nw I am looking for cfa could you please tell me is there any scope of us cfa in india .

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      There is a great scope but it may take time. Also, the most important consideration is what you want to do in future and why you think US CFA can help. Thanks.

  7. Rv says:

    Hi,
    I am on H1B visa for the past 2 years in US. My bank account in India is asking are you a US Person i.e. “Resident”? I am not sure what answer I have to give this, whether yes or no. If “yes”, it means will US tax all my investments in India? I have a housing loan, rental income, Securities, Mutual Funds and bonds. All of those have been bought with my Indian salary when I was in India. Now, I send some money from US to India for repaying loan and other investments like Mutual Funds.

    I am already paying the taxes in US. So, really don’t understand what I have to give as a response and what will be the implication if yes or no. Your inputs will be appreciated.

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      As you have moved to USA for employment and have been living in USA as well as filing 1040 (not 1040NR), you would be a “US Resident” and a Non-Resident Indian (NRI) for both Income tax and FEMA. As a US resident, you are supposed to show your worldwide income in USA i.e. your Indian rent, interest, capital gain MF and any other income and pay tax as per US laws. You would also be required to file the FBAR form to Dept of treasury and other compliance as if you are a “US Resident”. Thanks.

      • Abhishek says:

        Hi,

        I have the following queries on this:

        1. When Rv’s account was first opened assuming he had given all address proof, Indian passport details etc. So without updating that information if US Indicia check is done on his account it will come as Non US citizen? Will the bank ask for updated information while doing the seven Indicia rule check as mandated by IRS? If it does, only them would Rv be a US resident, right?

        2. If Rv’s house etc. was bought from his Indian salary in earlier FYs and he is getting rental income from that why would that come under the purview of FATCA? Isn’t FATCA only supposed to be about FDAP US sourced Income. In this case, the rental income, is not US origination income. Kindly clarify.

        3. Under Model 1 and Model 2 IGAs FFIs do not need to do any withholding for non compliant accounts. Then how will actual withholding happen for defaulter accounts and when?

        4. Is there clarity on deferred withholding? If at point in time the withholding agent does not know if the ultimate beneficiary is a non compliant account and withholds 30% amount but later it is clarified that withholding need not have been done for that account. Will the withheld amount be given to the beneficiary with interest?

        Sorry for the long list. Am confused as to how the actual FATCA rule will pan out.

        Thanks a lot.

        • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

          1. Yes. They will ask for updated KYC/information eventually. As per FEMA, once you become NRI, you need to inform your bank of your change in status with updated details and your bank would re-designate your resident account as NRO.
          2. FATCA is only reporting of financial account. Whether income or not or whether taxable or not is not important. For US resident, their worldwide income is taxable and have to report the income to IRS in 1040 and pay tax. If tax paid in foreign country, they may get the foreign tax deduction.
          3. This is just a start. Actual withholding will start in later years.
          4. Withholding is not refundable. So you would have to make sure that you do not transfer funds from compliant FFI to non-compliant FFI. Thanks.

  8. S K PATODIA says:

    pl mail me update about fatca implication for the NRI persons who are not working in U S , not u s citizen but have USD income

    • Jigar Patel, CFA (USA), MBA-Finance (USA), CPA (USA), CA (India) says:

      FATCA will apply to any US persons, which includes US Citizens, US Green Card Holders, US Residents (on H1 Visa); i.e. anyone filing 1040. If you file 1040NR, it may not apply to you. Please provide more detail about your situation and I will be guide you accordingly. Thanks.

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