FATCA Withholding Tax - ISDA Provision

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2002 ISDA Master Agreement
A Jolly Contrarian owner’s manual

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Events of Default: 5(a)(i) Failure to Pay or Deliver5(a)(ii) Breach of Agreement5(a)(iii) Credit Support Default5(a)(iv) Misrepresentation5(a)(v) Default Under Specified Transaction5(a)(vi) Cross Default5(a)(vii) Bankruptcy5(a)(viii) Merger without Assumption
Termination Events: 5(b)(i) Illegality5(b)(ii) Force Majeure Event5(b)(iii) Tax Event5(b)(iv) Tax Event Upon Merger5(b)(v) Credit Event Upon Merger5(b)(vi) Additional Termination Event

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Section FATCA Amendment in a Nutshell
Use at your own risk, campers!

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Full text of Section FATCA Amendment

FATCA Withholding Tax:
The following is added at the end of Section 2(d) as new section 2(d)(iv):

2(d)(iv) Foreign Account Tax Compliance Act. The words “any tax from any payment” in any Payer Tax Representation and the definition of “Indemnifiable Tax” each excludes any tax imposed under Sections 1471 and 1472 of the Internal Revenue Code of 1986, as amended, (or the United States Treasury Regulations or other guidance issued thereunder) (“FATCA Withholding Tax”).

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Related agreements and comparisons

Related Agreements
Click here for the text of Section FATCA Amendment in the 1992 ISDA
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Content and comparisons

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You will see the attached added as a result of FATCA, so that a withholding imposed as a result of FATCA is excluded from the definition of Indemnifiable Tax — a definition which is already a quintuple negative, so this truly propels it into the stratosphere of convoluted drafting.

General discussion

The Foreign Account Tax Compliance Act — it its amigos, FATCA — is a US federal law requiring all non-U.S. foreign financial institutions identify those of their customers with “indicia” of a connection to the U.S., including being born there or having lived there, and report them and their assets to the U.S. Department of the Treasury.

See also

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