Written by Raymond McKenzie on October 29th, 2018
When reviewing a commercial lease on behalf of a business tenant client, my goal is twofold: to obtain the most favorable terms possible for my client in the short term, while also protecting the client’s long term interests by limiting risk and personal exposure in the event of an unforeseen event that hurts or derails the business.
These are some of the issues I look to in my review:
- Make sure all lease terms mirror the terms found in the Letter of Intent executed by my client and the landlord.
- Attempt to obtain an abatement of rent for a period of a minimum of 60 days, to as much as 180 days if possible. Regardless of the rent abatement, at minimum we also want to make sure that the rent commencement date, which is the first date rent is due, is pushed far enough out to make sure we are open and operating at that time.
- Attempt to obtain tenant improvement money, which is money paid by the landlord to my tenant client and which the tenant must use to build out and renovate the premises. The amount of any TI money can fluctuate dramatically depending on how much work the space needs, and the business of the tenant.
- Understand whether we are dealing with a gross (“all-in”) lease where the tenant makes one monthly payment including everything due, or a triple net lease (“NNN”) where rent and CAM fees and taxes and insurance are broken out separately, or a hybrid of the two? Oftentimes a client can be confused about what the monthly payments actually are and not understand terms like additional rent, operating costs, and CAM fees.
- What about the HVAC unit, which in many instances can be a costly repair or replacement in the event the tenant takes on the responsibility to maintain and replace the HVAC if it breaks down. I recommend an inspection of the HVAC prior to signing the lease, as well as some warranty period where the landlord guarantees the operation of the HVAC.
- Is the tenant free to sublease a portion of the premises without landlord interference?
- Is there a liquidated damages clause in the event the lease is terminated early? This would mean that the tenant is on the hook for the entire remaining term for rent and all other expenses due and owing in the event of default.
- If this is a retail establishment, does my client tenant have exclusivity? In other words, is the landlord prohibited from permitting the operation of another wings place in the same plaza that my client who sells wings is in?
- Finally, there is most likely a personal guaranty. Do spouses and even silent partners have to sign it? Is there a cap on it or is it unlimited? I normally try to negotiate some type of cap on the guaranty. Six months to one year’s worth of rent is oftentimes a manageable “out” for a tenant looking to get out from under a lease for a dying business.
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Tags: business formation, business law, business lawsuit, business litigation, business start up, Buy a Franchise, commercial lease, commercial tenant, corporate litigation, Franchise Disclosure Document, franchise dispute, franchise law, franchise lawyer, franchise your business, lease for franchised business, maryland breach of contract, maryland business, maryland business law, retail lease, reviewing a lease, sell your franchised business, selling a franchise, small business attorney, small business lawyer
Written by Raymond McKenzie on October 29th, 2018
A Benefit corporation/LLC is formed to create a public benefit, in addition to creating profit for its shareholders. In Maryland, a company can be recognized by the state as a benefit corporation/LLC by stating in its corporate charter that it is a benefit corporation/LLC, getting certified as providing a public benefit, taking into consideration more than just profit, and submitting an annual benefit report to each stockholder or member.
How to Form a Benefit Corporation/LLC with Maryland SDAT:
1. Draft or amend existing Articles of Incorporation/Organization by making reference to the election to be a benefits corporation/LLC at the top of the charter document, or the amendment to the charter document;
2. State in the Articles or the amendment to the Articles that the corporation/LLC is a benefit corporation/LLC and has the purpose to create a general public benefit, defined as a “material, positive impact on society and the environment, as measured by a third-party standard, through activities that promote a combination of specific public benefits.”
3. A business has the option of stating in the Articles or the amendment to the Articles a specific public benefit that the business seeks to provide, for example:
- providing individuals or communities with beneficial products or services;
- promoting economic opportunity for individuals or communities beyond the creation of jobs in the normal course of business;
- preserving the environment;
- improving human health;
- promoting the arts, sciences, or advancement of knowledge;
- increasing the flow of capital to entities with a public benefit purpose; or
- the accomplishment of any other particular benefit for society or the environment
4. A business may also change its name to “xyz, Benefit corporation/LLC” or “xyz, A Benefit corporation/LLC”.
5. Also, the company must deliver an annual benefit report to each stockholder/member, which must include:
- the ways the a general public benefit was pursued and to what extent one was created;
- the ways the any specific public benefit was pursued and to what extent one was created;
- any circumstances that hindered the creation of the public benefit; and
- an assessment of the societal and environmental performance of the benefit corporation prepared in accordance with a third-party standard applied consistently with the prior year’s benefit report or accompanied by an explanation of the reasons for any inconsistent application.
The report must be delivered by the company to each stockholder/member within 120 days of the end of each fiscal year, and must publish it on the company’s public website.
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Tags: benefit company, benefit corporation, benefit llc, business formation, business incorporation, business law, business litigation, corporate bylaws, corporate formation, corporate litigation, corporate start up, limited liablity company, maryland business, maryland business law, operating agreement, shareholder agreement, small business attorney, small business lawyer
Written by Raymond McKenzie on October 29th, 2018
When a franchisee client asks me to review a franchise agreement prior to signing, I review it with the mindset that if the franchisee’s business performs well, the franchisee will be happy with the franchise relationship and the agreement he or she signed, BUT if the franchised business ultimately fails, it is my job to protect the franchisee at the outset in the strongest way possible. Therefore I review a franchise agreement focusing on how best to protect my franchisee client’s personal assets in the event the franchised business fails. Here are some of the things I look for in the franchise agreement:
1. does the franchisee have an exclusive territory?
2. may the franchisor alter the franchisee’s territory during the term of the agreement?
3. may the franchisee advertise or market for clients outside the designated territory in areas that are not owned by other existing franchisees?
4. what are the franchisee’s renewal rights? Attempt to limit what terms of the agreement the franchisor may change on renewal.
5. what social media presence is the franchisee permitted to maintain?
6. while there is most likely a personal guaranty, who is required to sign it? ie. spouses and/or passive investors?
7. is there a cap on the personal guaranty of a reasonable amount that the franchisee and franchisor are comfortable with, or is it an unlimited guaranty? When negotiating on behalf of a franchisee, I attempt to limit the cap with the mindset that this amount is the franchisee’s buyout amount in the event the worst occurs and the franchisee has to stop operating.
8. is there a right of first refusal of the franchisor in the event the franchisee wishes to sell the business, and what are its terms?
9. is there a unilateral right of the franchisee to terminate the agreement? There are rare, but franchisee counsel should try to push for such a provision anyhow.
10. are any of the franchisor’s rights to terminate the agreement out of the ordinary or particularly onerous?
11. is there a liquidated damages clause in the event the franchise agreement is terminated?
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Tags: business law, business lawsuit, Buy a Franchise, buying a franchise, FDD, federal franchise law, franchise agreement, franchise agreement review, franchise arbitration, franchise attorney, franchise concept, Franchise Disclosure Document, franchise dispute, franchise future royalties, franchise law, franchise law firm, franchise lawyer, franchise litigation, franchise your business, FTC Franchise Rule, maryland business, maryland business law, Maryland franchise registration, sell your franchised business, small business attorney, small business lawyer
Written by Raymond McKenzie on October 26th, 2018
Below is a sample franchisee questionnaire that I recommend be included as an exhibit in each FDD I prepare. In the event of a problem with the franchisee in the future, it is a powerful document for a franchisor to have, where the franchisee essentially stated at the time of sale that everything told by the franchisor to the franchisee during the sales process was included in the FDD. In other words, no oral promises, representations or statements were made by the franchisor that did not mirror the FDD.
[SAMPLE]
FRANCHISEE DISCLOSURE QUESTIONNAIRE
As you know, _____________ “Franchisor” and you are preparing to enter into a Franchise Agreement for the operation of a Franchised Business. In this Franchisee Disclosure Questionnaire, Franchisor will be referred to as “we” or “us.” The purpose of this Questionnaire is to determine whether any statements or promises were made to you that we did not authorize and that may be untrue, inaccurate or misleading. Please review each of the following questions carefully and provide honest and complete responses to each question.
1. Have you received and personally reviewed the Franchisor’s Franchise Agreement and each exhibit, addendum and schedule attached to it?
Yes No
2. Do you understand all of the information contained in the Franchise Agreement and each exhibit and schedule attached to it?
Yes No
If “No”, what parts of the Franchise Agreement do you not understand? (Attach additional pages, if necessary.)
3. Have you received and personally reviewed our Franchise Disclosure Document we provided to you?
Yes No
4. Do you understand all of the information contained in the Franchise Disclosure Document?
Yes No
If “No”, what parts of the Franchise Disclosure Document do you not understand? (Attach additional pages, if necessary.)
5. Have you discussed the benefits and risks of operating a Franchised Business with an attorney, accountant or other professional advisor and do you understand those risks?
Yes No
6. Do you understand that the success or failure of your business will depend in large part upon your skills and abilities, competition from other businesses, interest rates, inflation, labor and supply costs, lease terms and other economic and business factors?
Yes No
7. Has any employee or other person speaking on our behalf made any statement or promise concerning the revenues, profits or operating costs of a Franchised Business that we or our franchisees operate?
Yes No
8. Has any employee or other person speaking on our behalf made any statement or promise concerning a Franchised Business that is contrary to, or different from, the information contained in the Franchise Disclosure Document?
Yes No
9. Has any employee or other person speaking on our behalf made any statement or promise concerning the likelihood of success that you should or might expect to achieve from operating a Franchised Business?
Yes No
10. Has any employee or other person speaking on our behalf made any statement, promise or agreement concerning the advertising, marketing, training, support service or assistance that we will furnish to you that is contrary to, or different from, the information contained in the Franchise Disclosure Document?
Yes No
11. If you have answered “Yes” to any of questions seven (7) through ten (10), please provide a full explanation of your answer in the following blank lines. (Attach additional pages, if necessary, and refer to them below.) If you have answered “No” to each of such questions, please leave the following lines blank.
12. Do you understand that in all dealings with you, our officers, directors, employees and agents act only in a representative capacity and not in an individual capacity and such dealings are solely between you and us?
Yes No
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Tags: Buy a Franchise, buying a franchise, buying a franchised business, FDD, federal franchise law, franchise agreement, franchise arbitration, franchise attorney, Franchise Disclosure Document, franchise dispute, franchise fraud, franchise future royalties, franchise law, franchise law firm, franchise lawyer, franchise litigation, franchise your business, franchisor, franchisor dispute, FTC Franchise Rule, Maryland Franchise and Registration Law, Maryland franchise law, Maryland franchise registration, sell your franchised business, selling a franchise
Written by Raymond McKenzie on October 26th, 2018
Pursuant to the Maryland Franchise Registration and Disclosure Law, below are the mandatory amendments that must be made to a franchise agreement contained in a Franchise Disclosure Document attempting to be registered in the state of Maryland. There are additional changes that must also be made to the disclosure portion of the Franchise Disclosure Document.
Maryland Franchise Agreement Amendment
In recognition of the requirements of the Maryland Franchise Registration and Disclosure Law, the parties to the attached Franchise Agreement (the “Agreement”) agree as follows:
1. “execute a general release, in a form prescribed by Franchisor, of any and all claims against Franchisor and its subsidiaries and affiliates, and their respective officers, directors, agents, and employees. Notwithstanding the above, pursuant to COMAR 02.02.08.16L, the general release required as a condition of renewal, sale, and/or assignment/transfer shall not apply to any liability under the Maryland Franchise Registration and Disclosure Law.”
2. “the Franchisee’s execution of a general release of the Franchisor, in a form satisfactory to Franchisor, of any and all claims against Franchisor and its affiliates, successors, and assigns, and their respective directors, officers, shareholders, partners, agents, representatives, servants, and employees in their corporate and individual capacities, including, without limitation, claims arising under this Agreement, any other agreement between Franchisee and Franchisor or its affiliates, and federal, state, and local laws and rules. Notwithstanding the above, pursuant to COMAR 02.02.08.16L, the general release required as a condition of renewal, sale, and/or assignment/transfer shall not apply to any liability under the Maryland Franchise Registration and Disclosure Law.”
3. “Notwithstanding the above, the provision in the Franchise Agreement which provides for termination upon bankruptcy of the franchisee may not be enforceable under federal bankruptcy law (11 U.S.C. Section 101 et seq.).”
4. “Notwithstanding the above, the parties agree that only with respect to claims arising under the Maryland Franchise Registration and Disclosure Law, Franchisee may bring such claims in any federal or state court in the state of Maryland.”
5. “Limitations of Claims. ANY AND ALL CLAIMS AND ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE RELATIONSHIP OF FRANCHISEE AND FRANCHISOR, OR FRANCHISEE’S OPERATION OF THE FRANCHISED BUSINESS, INCLUDING ANY PROCEEDING, OR ANY CLAIM IN ANY PROCEEDING (INCLUDING ANY DEFENSES AND ANY CLAIMS OF SET-OFF OR RECOUPMENT), MUST BE BROUGHT OR ASSERTED BEFORE THE EXPIRATION OF THE EARLIER OF (A) THE TIME PERIOD FROM BRINGING AN ACTION UNDER ANY APPLICABLE STATE OR FEDERAL STATUTE OF LIMITATIONS; (B) ONE (1) YEAR FROM THE DATE UPON WHICH A PARTY DISCOVERED, OR SHOULD HAVE DISCOVERED, THE FACTS GIVING RISE TO AN ALLEGED CLAIM; OR (C) TWO (2) YEARS AFTER THE FIRST ACT OR OMISSION GIVING RISE TO AN ALLEGED CLAIM; OR IT IS EXPRESSLY ACKNOWLEDGED AND AGREED BY ALL PARTIES THAT SUCH CLAIMS OR ACTIONS SHALL BE IRREVOCABLY BARRED; EXCEPT THAT ANY AND ALL CLAIMS ARISING UNDER THE MARYLAND FRANCHISE REGISTRATION AND DISCLOSURE LAW (MD. CODE BUS. REG. §§ 14-201 THROUGH 14-233) SHALL BE COMMENCED WITHIN THREE (3) YEARS FROM THE GRANT OF THE FRANCHISE. CLAIMS OF FRANCHISOR ATTRIBUTABLE TO UNDERREPORTING OF SALES, AND CLAIMS OF THE PARTIES FOR FAILURE TO PAY MONIES OWED AND/OR INDEMNIFICATION SHALL BE SUBJECT ONLY TO THE APPLICABLE STATE OR FEDERAL STATUTE OF LIMITATIONS.”
6. “No Waiver. The foregoing acknowledgments are not intended to nor shall they act as a release, estoppel or waiver of any liability incurred under the Maryland Franchise Registration and Disclosure Law.”
7. Each provision of this amendment shall be effective only to the extent, with respect to such provision, that the jurisdictional requirements of the Maryland Franchise Registration and Disclosure Law are met independently without reference to this amendment.
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Tags: Buy a Franchise, buying a franchise, buying a franchised business, FDD, federal franchise law, franchise agreement, franchise arbitration, franchise attorney, Franchise Disclosure Document, franchise law, franchise lawyer, franchise litigation, franchise your business, franchisee, FTC Franchise Rule, Maryland Franchise and Registration Law, Maryland franchise law, Maryland franchise registration, new york franchise registration, Registering a franchise in Maryland, Selling Franchises in Maryland
Written by Raymond McKenzie on October 26th, 2018
This is the mandatory addendum that must be included in any Franchise Disclosure Document that a franchisor is attempting to register in the state of Washington. No edits/changes may be made:
Washington Franchise Agreement Addendum
The state of Washington has a statute, RCW 19.100.180 which may supersede the franchise agreement in your relationship with the franchisor including the areas of termination and renewal of your franchise. There may also be court decisions which may supersede the franchise agreement in your relationship with the franchisor including the areas of termination and renewal of your franchise.
In any arbitration involving a franchise purchased in Washington, the arbitration site shall be either in the state of Washington, or in a place mutually agreed upon at the time of the arbitration, or as determined by the arbitrator.
In the event of a conflict of laws, the provisions of the Washington Franchise Investment Protection Act, Chapter 19.100 RCW shall prevail.
A release or waiver of rights executed by a franchisee shall not include rights under the Washington Franchise Investment Protection Act except when executed pursuant to a negotiated settlement after the agreement is in effect and where the parties are represented by independent counsel. Provisions such as those which unreasonably restrict or limit the statute of limitations period for claims under the Act, rights or remedies under the Act such as a right to a jury trial may not be enforceable.
Transfer fees are collectable to the extent that they reflect the franchisor’s reasonable estimated or actual costs in effecting a transfer.
The undersigned does hereby acknowledge receipt of this addendum.
Dated this _____ day of __________________ 20______.
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Tags: buying a franchise, buying a franchised business, FDD, federal franchise law, franchise agreement, franchise attorney, franchise concept, Franchise Disclosure Document, franchise law, franchise law firm, franchise lawyer, franchise litigation, franchise renewal, franchise your business, franchisee, FTC Franchise Rule, selling a franchise, what is a franchise
Written by Raymond McKenzie on October 26th, 2018
How do business owners handle subcontracting agreements when the subcontractor may work on several different projects for several different clients of the Contractor, simultaneously or over a period of years? The answer is to tweak the standard Subcontractor Agreement to make it a “master” agreement, so that it covers not just the first project, but future projects as well. Here is some language I add:
WHEREAS, Contractor and Subcontractor (the “Parties”) agree that for mutually agreed upon Clients, Contractor may choose to utilize Subcontractor with respect to certain Services specifically set forth herein and in any Statement of Work attached to this Agreement;
WHEREAS, Contractor and Subcontractor desire to enter into a master agreement that sets forth the terms and conditions pursuant to which Contractor and Subcontractor shall, for mutually agreed upon Clients, provide certain Services to one or more of Contractor’s clients;
Statement of Work. The parties will memorialize the Subcontractor work in the attached Statement of Work (a “Statement of Work” or “SOW”) that is entered into between the parties and is incorporated into and made a part of this Agreement. Contractor may issue a purchase order (“Purchase Order”) with the mutually agreed upon and signed Statement of Work attached for all work to be performed by Subcontractor under this Agreement. A SOW, if and only to the extent then followed by a Purchase Order, constitutes the only authorization for Subcontractor to take any action that will result in any expense to Contractor. Any SOW shall be substantially in the form of the representative SOW attached as Exhibit A to this Agreement and shall reference this Agreement and shall specify: (a) the overall project description and Subcontractor’s requirements for the services; (b) the services to be performed, including materials to be provided, by Subcontractor; (c) the charges or billing rates and payment milestones for the services performed by Subcontractor; (d) the location(s) where the services are to be performed; (e) the acceptance criteria and warranty provisions for such work; (f) anticipated start and finish dates; and (g) any other information and/or associated terms and conditions that may be required by the circumstances of a particular Statement of Work.
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Tags: breach of contract case, breach of contract lawsuit, business contract review, business formation, business law, business litigation, business start up, corporate formation, corporate litigation, corporate start up, independent contractor, independent contractor agreement, limited liablity company, maryland breach of contract, maryland business, maryland business law, small business attorney, small business lawyer, subcontractor agreement
Written by Raymond McKenzie on October 26th, 2018
A common misconception that many business owners have about litigating a dispute is the belief that just because a party wins at trial, the money won in the judgment automatically is transferred to the winner. Usually, that is far from the case. While it is never easy to go to trial and win a money judgment against another party, sometimes winning is actually easier than collecting on the money judgment won. A judgment is simply a piece of paper from the Court stating who won and who lost. However, if the losing party is not financially ready and willing to pay you, a judgment holder has to be prepared to continue to work. Maryland law permits a judgment holder to take certain steps to collect. One of these steps is the use of post-judgment interrogatories, which are questions the winner may ask of the losing party, known as the debtor, about the amount and location of his/her/its wages, assets, bank accounts and property. Here is a sample of some of the questions I ask. Once the amount and location of the debtor’s assets are revealed, an experienced collections attorney will be able to pursue the amounts you are owed.
- Provide the address and fair market value of all real estate owned by Defendant either individually or jointly with another person or entity.
- Provide Defendant’s federal and state income tax returns for the years x, y and z, including any Schedules thereto, whether such returns were filed individually or jointly.
- Detail Defendant’s net worth, including all such assets owned jointly.
- Provide the year, make, model, mileage, blue book value, and VIN number of all vehicles owned by Defendant.
- Detail the name and address of each financial institution where Defendant has an account, including the routing number and the account number for each.
- Detail the balances for each account detailed in your response to Interrogatory #5.
- Provide Defendant’s bank statements for each account specified in your response to Interrogatories #5 from x through the present.
- Detail all other assets owned by Defendant not yet mentioned and the fair market value for each.
- Detail whether Defendant has disposed of or transferred any asset within the last 180 days. If yes, give the name and address of each person or entity who received any asset and describe each asset.
- Detail any ownership interest Defendant has in any corporation, partnership, or limited liability company. In so doing, identify the name of the corporation, partnership, or limited liability company, the state of incorporation or organization, the amount or percentage of the ownership interest, and the fair market value of the ownership interest.
- For any corporation, partnership or limited liability company named in your response to Interrogatory #10, provide any shareholder, partnership or operating agreement to which Defendant is a party.
- Detail all income, wages, or other compensation of any kind received by Defendant within the last 180 days.
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Tags: arbitration, breach of contract case, breach of contract lawsuit, business breach of contract, business law, business lawsuit, business litigation, corporate litigation, franchise arbitration, maryland breach of contract, maryland business, maryland business law, small business attorney, small business lawyer
Written by Raymond McKenzie on October 23rd, 2014
Service Disabled Veteran-Owner Business (“SDVOB”) Certification Requirements:
1. The service-disabled veteran must have a service-connected disability that has been determined by the Department of Veterans Affairs or Department of Defense
2. The service-disabled veteran-owned small business concern must be small under the North American Industrial Classification System (NAICS) code assigned to the procurement;
3.The service-disabled veteran-owned small business concern must also be at least 51% owned by one or more service-disabled veterans or, in the case of any publicly owned business, at least 51% of the stock of which is owned by one or more Service-Disabled Veterans.
4.Management and daily business operations of the service-disabled veteran-owned business concern must be controlled by one or more Service-Disabled Veterans or, in the case of a veteran with a permanent and severe disability, the spouse or permanent caregiver of such a veteran.
5. The service-disabled veteran must hold the highest officer position in the small business concern.
6.Further:
To be an eligible SDVOSBC the following must be met:
- The management and daily business operations of the concern must be controlled by one or more service-disabled veterans.
- Control by one or more service-disabled veterans means that both the long-term decision making and the day-to-day management and administration of the business operations must be conducted by one or more service-disabled veterans
- The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse of permanent caregiver of such veteran
- Service-disabled veteran means a veteran with a disability that is service-connected.
- Ownership must be direct. Ownership by one or more service disabled veterans must be direct ownership.
- A concern owned principally by another business entity that is in turn owned and controlled by one or more service-disabled veterans does not meet this requirement.
GSA Certification as SDVOB:
GSA does not require formal certification, instead they allow a business to self-certify. Go to www.sam.gov for more information.
SDVOSB program — bidding firm is responsible for self-certifying or representing to the contracting officer that it is a service disabled veteran owned small business concern.
-Self-certification can be achieved through SAM
-Under the SDVOSB program, the bidding firm is responsible for self-certifying or representing to the contracting officer that it is a service disabled veteran owned small business concern. A firm can do this by simply self-certifying through the government’s System for Award Management (SAM) – by declaring that it meets the definition of a service disabled veteran owned small business.
Dept. of Veterans Affairs (“VA”) Certification
Veterans First Contracting Program requires verification of veteran status and placement in VetBiz database. Agencies cannot require certification by the VA.
The Veterans First Contracting Program, which applies only to VA acquisitions and requires verification of veteran status through the VA in its Vendor Information Pages or VetBiz database. Agencies, other than VA, cannot require certification by the VA or placement in the VetBiz database.
Veterans First Contracting Program:
-Applies only to VA acquisitions
-Provides sole-source authority to the VA and permits restricted set-asides to both SDVOSBs and VOSBs
-Establishes contracting goals unique to the VA
-7% for veteran owned businesses; 10% for service disabled veteran owned businesses
-Requires veteran status to be verified by the VA
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Tags: business formation, business incorporation, business law, business start up, corporate bylaws, corporate formation, corporate start up, DBE certification, GSA disabled veteran certification, gsa schedule, maryland business, maryland business law, MBE certification, operating agreement, sdvob, sdvob certification, service disabled veteran owned business, shareholder agreement, small business attorney, small business lawyer, VA disabled veteran certification, veteran owned business, veteran owned LLC
Written by Raymond McKenzie on October 23rd, 2014
Does the Foreign Account Tax Compliance Act, 26 U.S.C. sec. 1471 et seq. (“FATCA”) apply to funds transferred from one non-U.S. foreign entity to a second non-U.S. foreign entity where such funds are transferred at least in part by a U.S. financial institution?
As a way or background, effective July 1, 2014, FATCA applies as a tax on income generated by all U.S. citizens, regardless of where such citizens reside.
26 U.S.C. sec. 1471(a) states: “In the case of any withholdable payment to a foreign financial institution which does not meet the requirements of subsection (b), the withholding agent with respect to such payment shall deduct and withhold from such payment a tax equal to 30 percent of the amount of such payment.”
In order for FATCA to apply, an account must constitute a financial account that is owned, directly or indirectly, by a U.S. person, defined as: 1) a U.S. citizen, 2) a U.S. resident, 3) a U.S. entity, or 4) a U.S. Owned Foreign entity.
Because definitions 1-3 above are usually clear, for example, a client is or is not a U.S. citizen or resident, and a client is or is not a U.S. entity, it is definition #4 where most complex analysis comes into play. A U.S. Owned Foreign entity is defined in 26 U.S.C. sec. 1471(d): “as any foreign entity which has one or more substantial United States owners.”
The analysis will then focus on whether the entity has owners, members, shareholders, or other ownership that are U.S. citizens or U.S. citizens that will determine the conclusion to most FATCA inquiries.
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Tags: business contract review, business incorporation, business law, corporate formation, FATCA, Foreign Account Tax Compliance Act, maryland breach of contract, maryland business, maryland business law, small business attorney, small business lawyer
Raymond McKenzie is a corporate and franchise attorney in the Washington, D.C. metropolitan area.
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