Potential requirement to withhold re a recalcitrant account holder (p. 485)
...FATCA generally requires an FFI to withhold 30% on payments from the FFI to "recalcitrant account holders." [fn 6: §1471(b)(1)(D).] A "recalcitrant account holder" is defined as any account holder which: (1) fails to comply with reasonable requests for the information required by the FFI for the FFI to determine if the account holder is a U.S. person; or (2) fails to provide a waiver of any foreign law that would prevent the FFI from the required reporting. [fn 7: §1471(c)(6).] Subparagraph 2of Article 4 of the IGA provides that Reporting Canadian Financial Institutions are not required to withhold tax with respect to an account held by a recalcitrant account holder or to close such account, if the required information under subparagraph 2(a) of Article 2 of the IGA is received. One of the most critical pieces of information to be received from the account holder is the U.S. TIN….
Ability to open account for recalcitrant holder who fails to provide certification (p. 485)
[A]lthough the issue is not entirely clear, a Reporting Canadian Financial Institution should be able to open an account for a recalcitrant account holder who fails to provide a self-certification or a U.S. TIN. If the Reporting Canadian Financial Institution has not obtained the U.S. TIN, then withholding tax I would be imposed on U.S.-source withholdable payments.
Opening of 2nd account by holder of pre-existing account (p. 486)
The use of the Treasury Regulation definition of "preexisting obligation" is not specifically addressed, in the IGA, the implementing legislation, or the official explanatory notes to the implementing legislation (the "explanatory notes"). However, the CRA Guidance provides that where a holder of a pre-existing individual account opens a new account with the same financial institution, there is no need to re-document the account so long as the due diligence requirements have been or are in the process of being carried out and, where a threshold has been applied in connection with the pre-existing account, the financial institution's computerized systems are able to link the new account to the pre-existing account. [fn 10: Reg. §1.1471-1(b)(98)(ii).] In effect, this would incorporate the expanded definition in the Treasury Regulations without the requirement that the two, accounts be treated as "consolidated obligations."…