Monthly Archives: June 2014

South Africa and U.S. Sign Agreement over Tax

Earlier this month, South African Finance Minister and the U.S. Ambassador to South Africa signed an inter-governmental agreement between the two nations that brought South Africa into the many jurisdictions that exchange information with the IRS under the Foreign Account Tax Compliance Act (hereinafter “FATCA”).

FATCA, enacted by the U.S. Congress in 2010, attempts to cast more transparency over the foreign accounts of U.S. citizens living in foreign countries. With this agreement made with South Africa, no longer will individual banking institutions have to make agreements for exchanging information with the U.S. government.

The impact for Americans living in South Africa will be that their banking information will be shared with the IRS and, as the agreement signed by the nations is reciprocal, the banking information of South Africans living in the U.S. will also be shared back with the South African Government and the Tax Office. The U.S. Ambassador noted upon signing: “The signing of these agreements is an important step forward in the collaboration between the United States and South Africa to combat tax evasion.”

If you are an American living or banking in South Africa or a South African living or banking the U.S. and require more information about the impact of the signing of this agreement, then please feel free to contact us for more information specific to your situation.

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China’s New Trademark Law

China revamped their Trademark Law and it has been in effect now since May of this year. With so many counterfeit and imitation goods coming out of China, many people across the world struggle with giving China creditability when it comes to respecting trademarking but their new trademarking laws will give them back some of the lost credibility. Not only will trademark infringement be taken more seriously, but misuses of the system will no longer be tolerated. The aim with the new law is to increase the protection against piracy, shorten the prosecution times, strength the well-known mark protection, increase fines, compensation and statutory damages for infringers. Additionally, the legal standing for oppositions and invalidations has been narrowed, sound marks and multiple class trademark applications have been made available and now challenged marks will proceed through the registration process more easily.

China has been a hotbed for trademark squatting for years. International businesses coming to China in the past would often have found that they’re mark had already been spoken for. With the revision of the trademark law, there has been a crack down on trademark privacy and registrations made in bad faith. Additionally, misuses of well-known mark status through fake litigation will come to an end. Moreover, opposition and invalidations will only be allowed to be brought by prior rights holders or interested parties thus reducing the arbitrary and bad faith oppositions to mark registration.

In terms of filing, e-filing is now allowed but is really only available domestically at the moment for standard goods items. It seems that the early hype about original powers of attorney and trademark applications being signed by the applicant have fallen away as the China Trademark Office has reverted back to the old filing requirements as set forth before the revised trademark laws.

If your business is considering registering their mark in China or already has a registered mark in China, it is best to review the new laws. We can help with any confusion and can assist in getting your trademark through the process of registration and recordal. Please don’t hesitate to contact us if you require more information.

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Post-Data Breach Notifications and Disclosures.

You are a business that holds the personal information of employees and customers and the worst has been released: there has been a data breach.

Depending on where your business, employees and customers are located, there are different requirements on how to handle such a breach.

For those jurisdictions that have laws governing this area, there will be notice and disclosure requirements.

But what happens if the breach goes unnoticed? How can your business be sure that they are keenly aware of all data breaches? Many data breaches aren’t even discovered for months. Are all data breaches created equally? What sort of breach must be reported? We hope this posting will clear up some of the questions that your business may have regarding data breaches and required action if not put your business on the right track to data security.

There are ways in which companies can monitor if breaches have happened or if any strange behaviours are happening that would suggest that they have been hacked. Still, sixty-two percent of breaches take months to be discovered.

Almost every state has requirements that in at least some cases, data breaches, once discovered, be subjected to a risk of harm analysis and parties and the Attorney General be notified. Some industries require that there be notifications made. Some suggest that all data breaches should be paired with a notification and some press about what the company is going to do in the future to prevent such events from happening.

It is important to know what the standards are for not only the jurisdiction your business is located in but the jurisdictions for every person’s data that you hold, as residency of the person’s data is the standard that must be followed to meet the standards of most state laws in addition to the industry standards.

If you have more questions about data breaches and notification and disclosure requirements more specific to your business or jurisdiction then please don’t hesitate to contact us for more personalised information. Even questions about how to get started are welcomed.

We also can suggest purchasing a copy of our e-book, Data Privacy: A Practical Guide, available at: http://intersticeconsulting.com/ibtt/tradeandtaxation/data-privacy/.

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Update: FATCA Compliance

The push by the IRS to persuade countries around the world to get onboard with the Foreign Account Tax Compliance Act (“FATCA”) has been quite successful. As part of the Hiring Incentives to Restore Employment Act of 2010, FATCA requires bank and financial institutions to disclose U.S. assets being held outside the U.S. on behalf of U.S. taxpayers. Currently, over 70 countries and 77,000 banks and financial institutions have now registered under FATCA. Banks and financial institutions that fail to comply may be frozen out of U.S. markets since a 30% withholding tax penalty will be imposed on payments of U.S. source income to these foreign institutions.

Foreign holding companies formed as an integral part of global structuring strategies may be declared a foreign financial institution, based on private equity investments, and therefore would be required to register and comply with disclosure requirements. Each foreign financial institution will be required to comply with FATCA even if it has no U.S. investors or invests in U.S. markets. FATCA Regulations obligates the foreign financial institution to identify its investors or account holders, and if any are “specified U.S. persons” defined as U.S. citizen, U.S. resident, domestic corporation, or trust. As a U.S. taxpayer with investments in foreign financial institutions, including possibly foreign holding companies, you will no doubt have received a request for completion of a declaration, whether from a foreign financial institution or from the holding company local registered agent.

The information required to be disclosed includes, account numbers, balances, and identification of the U.S. taxpayer. The U.S. taxpayer with a foreign bank account with a value of over $10,000 must also disclose the particulars of the account and any assets held each year.

U.S. taxpayers can still comply with FATCA regulations by participating in the Offshore Voluntary Disclosure Program and be willing to reopen up to 8 previous tax years, paying taxes, interest and penalties. Foreign banks, including Credit Suisse and UBS are still recovering from steep fines and penalties for failure to disclose assets held by U.S. taxpayers. Foreign banks and foreign registered agents will be expected to disclose to remain in compliance with FATCA or face increased scrutiny, fines and penalties, potentially closing off the market to U.S. customers. Moving forward foreign banks and foreign financial institutions will have more stringent due diligence requirements to open accounts, form companies and purchase assets.

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