ISDA published on August 15, 2012, the ISDA 2012 Protocol (the Protocol) that enables market participants to amend the tax provisions of their existing or future ISDA Master Agreements. The Protocol places the FATCA withholding tax burden on the recipient of payment, based on the rationale that the recipient is the sole party that has the ability to avoid the withholding tax by complying with the FATCA rules. Concurrent with the Protocol, ISDA published a revised version of the ISDA FATCA Provision, which was previously published on May 4, 2012, to conform to the Protocol. There is no cut-off date for adherence to the Protocol, but ISDA reserves the right to close the adherence period by giving 30 days' notice on the ISDA website.
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