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New Standards in Reviewing W-8 Forms; Monitoring Red Flags;
Curing
Defects; and Applying Presumption Standards1
Our business today is a global one and everyone involved in
making withholdable payments to others needs to be well acquainted
with the new withholding regulations that start with how to
determine whether your payee holds U.S. or foreign status through
the use of one of the new W-8 and W-9 forms. These forms have been
recently redesigned to add the requirements under new Chapter 4 of
the Internal Revenue Code (the FATCA provisions) and to address the
universal rules now found in the harmonization regulations written
to conform the older Chapter 3 requirements to the new FATCA ones.
The new forms are designed to sort payees into the proper
withholding regimes and where missing new presumption standards
will apply to determine U.S. or foreign status and the withholding
required.
Pointer: Take care in what you read. The IRS has confused us a
bit in the instructions to the new forms and in new IRS Publication
515, by using a new terminology and changing the meanings of old
terminology, making it hard for even the most experienced advisers
to glean accountabilities. For example, generalizing in favor of
FATCA, when the IRS now speaks of a “withholdable payment” without
modifiers, they only mean a FATCA withholdable payment. When giving
instructions for Chapter 3 withholding, the type of withholding
mostly addressed by AP, the instructions will say “payment subject
to chapter 3 withholding.” A good place to start will be reading
the section on definitions found at the beginning of each set of
instructions to the forms discussed in this article.
The steps you need to take include:
• First, distinguish the types of withholdable income you might
be paying. • Second, make a clear determination as to your
beneficial owner. • Third, make sure you are making the proper form
solicitation from your vendor. • Fourth, keep up with required due
diligence for the duration of the vendor relationship and
timely
cure the conflicts. • Fifth, apply the presumption standards if
no W-8 or W-9 is on file before payment.
1 This Memorandum looks for authority to Treasury and the IRS
published temporary regulations under chapter 4
of the Internal Revenue Code (known as the FATCA regulations –
TD 9657) and temporary regulations under chapter 3, chapter 61, and
section 3406 of the Internal Revenue Code (known as the temporary
harmonization regulations – TD 9658) first published and for the
most part made effective on March 6, 2014, but later corrected with
an effective date for the most part of July 1, 2014. The
harmonization regulations were intended to coordinate the older
compliance obligations for withholding of tax on U.S. source income
paid to foreign persons under chapter 3, and for information
reporting and backup withholding on payments to U.S. persons with
the new positions in the FATCA regulations related to withholding
on certain payments to FFIs and other foreign entities.
This Memorandum also considers Treasury and IRS Notice 2014-59
(released October 10, 2014) that modified effective dates of
certain of the temporary regulations in line with FATCA
modifications promised on May 19, 2014, in Notice 2014-33 as well
as the terms contained in recently revised Instructions for the
Requester of Forms W–8BEN, W–8BEN–E, W–8ECI,W–8EXP, and W–8IMY
(Rev. July 2014) (referred to as “Requestor Instructions”), the
current official instructions to forms in the W-8 series and to
Forms 1042, Annual Withholding Tax Return for U.S. Source Income of
Foreign Persons, as well as Form 1042-S, Foreign Person's U.S.
Source Income Subject to Withholding, in effect as of the date of
this Memorandum.
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Under the harmonization regulations, a new order of
accountability has been established, requiring of
U.S. withholding agents:
Timely solicitation of the right certifications (Form W-9 from a
U.S. vendor or one of the W-8
forms from a foreign vendor);
Performance of due diligence on account documentation and in
business records, including
searching for the red flags that give reason to void a provided
certification on an ongoing basis
(a checklist for reviewing certifications is included in
“REVIEWING W-8 FORMS” and a list of red
flags are included in “RED FLAGS GIVE REASON TO DOUBT THE
VALIDITY OF FOREIGN STATUS
ON W-8 FORMS” below);
Curing of deficient certifications (requirements are found below
in “CURING STANDARDS”);
Application of the required regulatory presumptions when forms
are missing or voided and
uncured (outlined below in “PRESUMPTION STANDARDS FOR
DETERMINING STATUS”); and
Identification of U.S. source taxable income subject to 30
percent withholding that allows
distinguishing a subset of FATCA withholdable income requiring
special treatment when paying
entities.
The last matter covered addresses identification of undocumented
“prima facie FFIs” in pre-existing
payee obligations (prior to 2015) that become subject to FATCA
withholding in 2015 and the related
documentation requirements that need to be met to avoid
withholding.
Reviewing W-8 Forms
This section addresses the new versions of Forms W-8 released in
2014. Where review of the older 2006 version of Form W-8 is
necessary, much of what is covered for the new forms will apply to
the older versions of the forms, but line translation will be
required.
IRS regulations require payers to perform ongoing due diligence
on the tax certifications that they receive from payees, and
regulations list the requisites for this task. Each form must be
reviewed for sufficiency and then compared on an ongoing basis to
other information that a payer has about the payee. The following
checklist for reviewing Forms W-8BEN, W-8BEN-E, and W-8ECI should
help you in this process.
If you receive a Form 8233 (the only form that allows a
reduction of withholding on fees for a contracted nonresident
alien’s personal services) from an individual claiming reduced, or
elimination of, withholding on fees for personal services, or a
Form W-8EXP from a foreign government, international organization
or foreign non-profit, note that such forms require legal
sufficiency reviews and a checklist is not available from Cokala;
please contact us for further information on how to handle.
Information on reviewing Form W-8IMY is available from Cokala in a
separate memo.
General checklist for W-8BEN for individuals, W-8BEN-E for
entities, and W-8ECI:
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Payee must indicate a name on the form and it needs to equate to
your master or other file records. You need to compare this entry
to what is currently in your payee master file to assure it is the
same as the legal name you are carrying for this payee. Take care
that all payee records for this payee carry the same name as
indicated on the form. Where the name varies, you will need to
explore your records and contracts, and contact the payee to
resolve.
─ If your master files are wrong, you will need to change them.
If there is no name on the W-8 then the form is invalid and should
be rejected. When you carry multiple names, which can happen in
some enterprise platforms where multiple address screens can be
carried for the master payee, you may have more than one legal
payee and you will need to receive documentation from each separate
payee. Make sure you know who your contract is with and who has
earned the right to be paid. Many foreign companies invoice through
their U.S. affiliates to ease currency and other difficulties;
however, you are still subject to compliance responsibilities as to
the party in your contract and not to the party invoicing for
them.
─ Tax requirements look to a single legal entity as the
beneficial owner and do not accept carrying multiple subsidiaries
as the same payee under the same parent payee account. Remember
that each subsidiary is a separate legal entity and as such is a
separate payee. You are required to set up separate payees for tax
purposes where you have contractual payment responsibilities to
different legal entities even if you have been instructed to pay
only one of them and even if the payees are all affiliated. You
may, however, carry multiple divisions or branches of the same
legal entity as a single payee, but you will need to tax report
under the correct legal name for the entity and receive the correct
certification under the name you carry for reporting purposes.
Make sure you have received the right form for the business
relationship.
─ If the contractor is an individual, he or she should provide a
W-8BEN.
─ If an entity, a W-8BEN-E form should be provided.
─ Other acceptable forms include a W-8ECI if the entity has a
U.S. EIN and files and pays taxes in the U.S.
─ If the entity acts as an agent or intermediary, or is a
foreign partnership or Limited Liability Company or other
flow-through entity, then a W-8IMY is required.
If the name you hold on an account is a financial institution
and you receive a W-8BEN-E, the IRS may question why there is no
Form W-8IMY since there is a presumption that foreign financial
institutions (FFIs) act as intermediaries for other beneficial
owners. Form W-8BEN-E is allowed where the FFI enters into a
proprietary business agreement, for example to directly lend your
organization funds. But a W-8IMY is required where, for example,
the FFI services a syndicate of several different lenders that lend
you funds. New chapter 4 (FATCA) withholding provisions will
require special certifications from foreign financial
institutions.
Form W-8BEN-E instructs that if chapter 3 status indicates a
disregarded entity (DE), partnership, simple trust, or grantor
trust, the W-8BEN-E is the correct form if the entity is
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a hybrid and a treaty claim involved. Otherwise for DEs, the
owner must submit the form, and for the other entities in this
list, a W-8IMY is required.
For reviewing Form W-8BEN-E provided by entities:
Alert: For purposes of Chapter 3 withholding, a Form W-8BEN
(revision date February 2006) may be provided to a withholding
agent by an entity through December 31, 2014, and will remain valid
until it expires. Starting in 2015, provision of a Form W-8BEN-E is
mandatory from beneficial owners of new accounts and in addressing
expired older forms or for handling changes in circumstances. A
2006 version will not suffice to document FATCA status when needed
in 2015, such when paying FATCA withholdable income to a prima
facie FFI that is a pre-existing account. You will need to
supplement the 2006 form with documentary evidence and the account
holder’s GIIN. Where FATCA status becomes important, Cokala
suggests you use the newer W-8BEN-E form.
For an entity, in all cases the W-8BEN-E needs to indicate
country of incorporation or organization, fully written out and not
abbreviated. If the name of the country is omitted, the form is
considered invalid. If abbreviated, you will need other documentary
evidence that supports place of incorporation or organization.
The entity’s foreign tax ID may be required if you are a
financial institution.
Every entity needs to indicate its type of chapter 3 status
(check one box only). The form is considered invalid if a box is
not checked. See Requestor Instructions. Review to ensure the
status is correct based on what you know about the payee. For
example, if partnership is checked, W-8BEN-E may not be the correct
form unless the partnership is a hybrid entity, and the form has a
treaty claim.
If a disregarded entity (DE), partnership, simple trust, or
grantor trust, the entity must be a hybrid and a treaty claim
involved if the entity provides a W-8BEN-E. Usually the DE owner
must submit the form in the owner’s name. If so, be sure to
remember to set up the DE owner as the tax payee so your 1042-S is
completed correctly. For the other flow-through entities, a W-8IMY
may be required.
Review the box that is checked in line 3 to ensure that the
status is correct based on what you know about the owner. For
example, if a partnership is checked, the form may not be the
correct form unless the partnership is a hybrid entity, and a
treaty claim is made and then you will need to explore whether the
type of entity is in fact respected as a taxpayer in that country.
You are not required to obtain a legal determination from the payee
of specific application to the entity unless there is reason to
doubt the form in this regard.
If paying FATCA withholdable income in 2015 and later, make sure
the FATCA status is provided by a checkmark in a single box in line
5 and where another part of the form is designated to be completed,
check to see that it is completed and all supplemental information
required for that section has been provided. See the section below
on FATCA claims for additional items. A failure to establish an
FATCA type or make a required certification is not inconsequential.
For example, if an entity beneficial owner receiving a FATCA
withholdable payment selects a certified deemed-compliant FFI
status on line 5 of Form W-8BEN-E but does not complete the
corresponding required certifications in Part V, the form is
invalid for chapter 4 purposes.
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Every payee in all cases needs to provide their permanent
address in the country in which resident. “In-care-of” or “hold
mail” addresses are not permanent addresses. Missing a permanent
address in a foreign country is a fatal flaw to relying on any W-8
form.
For payees claiming treaty benefits, their address should be in
the same country as entered in the treaty claim portion of the
form. This is the address you should use to complete the Form
1042-S. Addresses in the United States (50 U.S. states and DC) are
disallowed in these lines. See the sections below about red flags
and curing as to actions that are necessary to rebut a reason to
doubt the validity of the form where U.S. addresses or conflicting
treaty addresses are entered. See the treaty section below for
discussion of the additional items needed to be checked for treaty
claims.
Mailing address may be blank if the mailing address is also the
permanent address, but where a separate address is entered and
treaty benefits are claimed the address should be in the same
country through which the benefits are claimed in the treaty
section of the form. U.S. addresses are also disallowed in this
line. See below for actions that are necessary to rebut a reason to
doubt the validity of the form where a U.S. address or conflicting
treaty address is entered.
Make sure the form is signed and the status-to-sign box is
checked. The box on Form W-8BEN-E must be checked to indicate that
the signer has the capacity to sign for an entity. Absent the check
in the box, the form is invalid. Proper signing parties are the
same as apply for Form W-9. Forms W-8BEN and W-8BEN-E must be
signed and dated by the beneficial owner of the income, or if the
beneficial owner is not an individual, by an authorized
representative or officer of the beneficial owner: ─ For an
individual, the individual who beneficially owns the income you are
paying. ─ For a sole proprietorship—The individual who owns the
business. ─ For a corporation—The president, vice president, or
other principal officer. ─ For a partnership (including an LLC
treated as partnership) or unincorporated organization—A
responsible and duly authorized partner, member, or officer
having knowledge of its affairs. ─ For a single member limited
liability company (SMLLC) treated as a disregarded entity—The
owner (parent) of the LLC. ─ For a trust or estate—The
fiduciary.
With the new check box on status you are not required to make a
determination of whether the signer had proper status, but if you
know the signer is not one of the above-listed persons, this must
be addressed to obtain a properly signed form. If an agent signed,
see the instructions below for Form W-8BEN as to the need for power
of attorney.
A Form W-8 is still valid even if the person providing the form
has not dated the form. You may date the form from the day you
receive it and measure the validity period from that date. See
Requestor Instructions.
For additional items, see the section below about reviewing all
W-8 forms.
For reviewing Form W-8BEN (Rev. Feb. 2014) provided by
individuals:
Alert: Provision of new Form W-8BEN, Certificate of Foreign
Status of Beneficial Owner for United States Tax Withholding and
Reporting (Individuals) (Rev. Feb., 2104) became mandatory on Sept
3, 2014, the end of the 6-month waiting period provided in the
FATCA regulations. After September 2, 2014, the older 2006 version
may no longer be provided by individuals.
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For individuals, Form W-8BEN now carries a box for entering
country of citizenship and instructions say do not abbreviate. If
the country is abbreviated, you must have other documentary
evidence on file that supports country of citizenship.
The individual’s foreign tax ID may be required, and/or in
certain cases the individual’s date of birth, but final
instructions to Form W-8BEN need to be consulted to validate
whether these requirements attach to your organization as a
financial institution.
Make sure the signer both prints his or her name and signs the
form and if she or he is not the
beneficial owner, provides the capacity in which acting. If the
individual signing the form fails to
also print their name, the withholding agent need not treat the
form as void if the withholding
agent has documentation or information supporting the identity
of the person signing the form,
such as foreign passport or foreign driver’s license. The IRS
considers the failure to print a name
an inconsequential error where there is supporting evidence of
the identity of the person.
Forms W-8 may also be signed by a duly authorized agent of the
taxpayer if the agent holds
a valid power of attorney (IRS Form 2848, Power of Attorney and
Declaration of Representative).
Form 2848 is required to be filed with the IRS and a copy should
be attached to the executed
Form. For signers of Form W-8BEN for individuals, if they are
not the individual listed as the
beneficial owner in Part I, they must disclose capacity in which
acting in the line provided.
In all cases, every payee needs to provide their permanent
address in the country in which
resident. “In-care-of” or “hold mail” addresses are not
permanent addresses. Missing a
permanent address in a foreign country is a fatal flaw to
relying on any W-8 form.
For payees claiming treaty benefits, their address should be in
the same country as entered in
the treaty claim portion of the form. This is the address you
should use to complete the Form
1042-S. Addresses in the United States (50 U.S. states and DC)
are disallowed in these lines. See
the section below on red flags and curing as to actions that are
necessary to rebut a reason to
doubt the validity of the form where U.S. addresses or
conflicting treaty addresses are entered.
See the section on treaty claims below for information on
validations for treaty claims.
Mailing address may be blank if the mailing address is also the
permanent address, but where a
separate address is entered and treaty benefits are claimed the
address should be in the same
country through which the benefits are claimed in the treaty
section of the form. U.S. addresses
are also disallowed in this line. See below for actions that are
necessary to rebut a reason to
doubt the validity of the form where U.S. addresses or
conflicting treaty addresses are entered.
A Form W-8 is still valid even if the person providing the form
has not dated the form. You may
date the form from the day you receive it and measure the
validity period from that date. See
Requestor Instructions.
For reviewing Forms W-8BEN-E and W-8BEN:
Track the validity period to make sure the form has not expired.
The validity period for most W-8 forms is three calendar years
after the year acquired. But there is a transitional rule extending
forms that would have expired at the end of 2013 to the end of
2014. Effective July 1, 2014, all
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forms that were allowed an indefinite period of validity because
they contained a U.S. TIN under the older version of the
regulations are now void and must be re-solicited unless they would
still be valid looking at the three year rule because that period
has not expired or was extended under the transitional rule to the
end of 2014.
Make sure the form is signed under penalties of perjury by the
beneficial owner. Signatures are necessary. If the signature is
absent, then the form is invalid for all purposes and the payee is
presumed a noncertified person subject to the presumption standards
discussed below.
The signature must be an original and made by the beneficial
owner, but under Reg. § 1.1441-1T(e)(4)(iv)(C) on and after March
6, 2014, the payer may now rely on forms electronically transmitted
by fax or by being scanned and imbedded in an email or attached to
an email, unless the withholding agent knows that the person
transmitting the form or documentary evidence is not authorized to
do so. (This new rule covers “electronic transmittal” of W-8 forms.
The older rule permitting an “electronic W-8” created in an
electronic system for which the IRS has issued a Memorandum of
Understanding also remains in effect.) ─ The IRS is holding tight
on the March 6, 2014, effective date for allowing faxes or emails
with
scanned attachments so if you have a curing issue for
retroactive application on payments made before March 6, 2014, even
if acquiring the W-8 form, affidavit and other documentation after
March 6, 2014, it is recommended that originals be obtained. Reg. §
1.1441-1T(e)(4)(iv)(C) expressly says: “Notwithstanding the
effective date of this section [July 1, 2014], the provisions of
this paragraph apply for payments made on or after March 6,
2014.”
For checking treaty claims:
A U.S. TIN, or starting on March 6, 2014, a foreign tax ID, will
be necessary if treaty benefits are requested. Whether the U.S. TIN
supplied is an ITIN or SSN makes no difference for individuals if
claims are not related to personal services where Form 8233 is
required, but if an entity is designated as payee and a U.S. TIN is
provided, it must be an EIN.
─ In general, for AP payments, treaty claims are invalid if no
U.S. TIN, or beginning on March 6, 2014, no foreign tax ID, has
been provided. TINs are not required on Forms W-8BEN for treaty
benefits only if relating to earnings on actively traded
securities.
─ The new regulations affecting tax treaty benefit claims,
including the allowance of a foreign tax ID instead of a U.S. TIN,
were made effective for payments made on or after March 6, 2014.
Reg. § 1.1441-6T(c)(1) expressly says: “Notwithstanding the
effective date of this section [July 1, 2014], the provisions of
this paragraph apply for payments made on or after March 6,
2014.”
Also required for sufficiency of an accounts payable treaty
claim:
─ For entities, W-8BEN-E Part III lines 14a and b and 15 checked
and include the resident country, the tax treaty article,
percentage of withholding, type of income, articulation of the
reason the beneficial owner meets the terms of the tax treaty
article, including representation of no permanent establishment,
and checked the representation that the beneficial owner qualifies
under the treaty article dealing with limitation on benefits.
─ For individuals, W-8BEN, Part II, lines 9 and 10, as
instructed for the same information described above for entities.
W-8BEN may not be used for a treaty claim relating to personal
services where a Form 8233 is required.
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─ For most AP payments and for all qualified retirement plan
distributions, specific treaty information is required on the W-8
form for the form to be effective. Where completed, the form needs
to be reviewed and confirmed that the treaty rate claimed is
correct and treaty terms are satisfied to the best of the payer’s
knowledge. Payers are considered to know details that are public
knowledge and that include the terms of the specific treaty. Payers
are also considered to know the facts and circumstances of their
payments, such as the type of payment and its source, and any
specific corporate knowledge of the payee.
─ The disclosures in line 15 of Form W-8BEN-E and in line 10 of
Form W-8BEN need to speak to the unique qualifications outlined in
the particular article being claimed in the treaty. For example
where a business profits clause is claimed, since most treaties
restrict application of this clause if income is earned through a
permanent establishment (PE) in the United States, then the line
should include a statement that there is no PE.
IRS Publication 515, available in Forms and Publications on the
IRS website, has tables at the end of the publication that present
tax treaty information by country and income type. These tables are
a great resource for meeting your requirements for this line. IRS
Publication 515 is revised every year usually early in the Spring,
but treaties come into play midyear missing the publication date so
you will also need to keep abreast of any changes that occur
throughout the year. Pub. 515 for TY 2014 has not yet been
released.
─ Permanent and mailing addresses should be in the treaty
country and country of incorporation or organization, or if the
claim is for an individual, country of citizenship should be the
same as the treaty country; otherwise you will have reason to doubt
the treaty claim and it must be cured.
In the July IRS corrections to the regulations, a list was
provided of just what is necessary to lock in treaty benefits:
─ Unless the income is related to a publicly traded security or
mutual fund, the beneficial owner is to provide its U.S. TIN or its
foreign tax ID issued by its country of residence if such country
has with the United States an income tax treaty or information
exchange agreement in effect.
─ Representations need to be made that the beneficial owner
derives the income under IRC §894 and related regulations, if
required, and meets the limitation on benefits provisions of the
treaty, if any (now included in Form W-8BEN-E and Form W-8BEN
through checkboxes and certifications).
─ The withholding certificate must also contain any other
representations required in the regulation or by the form or
accompanying instructions.
─ Caution when paying foreign partnerships, certain non-public
limited liability companies, disregarded entities, or grantor or
simple trusts as they may not be beneficial owners of the income
for treaty claim purposes and may not submit a W-8BEN-E. See line 4
of W-8BEN-E that says “If you entered disregarded entity,
partnership, simple trust, or grantor trust above, is the entity a
hybrid making a treaty claim? If "Yes" complete Part III
[supporting a treaty claim].” If not, then the partners, members or
owners of the entity will need to qualify for treaty benefits.
These entities are considered to be “fiscally transparent” where
the owners of
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the entity reside in a jurisdiction that taxes the owners and
not the entity on the item of income you are paying. These entities
as flow-through entities require a W-8IMY with the W-8BEN or W-9 of
each owner of the entity attached as well as a withholding
statement so that you can allocate the portion of the payment to
each partner, member, or owner. Withhold based on the owner’s
status and report the owners on Forms 1042-S. Where this
information is missing, withhold 30% and report following
requirements for unknown recipients.
─ If payments are jointly owned by more than one person, a Form
W-8BEN or W-8BEN-E that
properly claims the treaty benefit must be provided by each of
the owners before a
reduction in withholding is allowed. 1042-S reporting may be
required for each owner.
─
For checking FATCA claims:
FATCA status must be indicated for entities if paying FATCA
withholdable income, and the appropriate section of the W-8BEN-E
completed for the type of FATCA status checked. Beginning in 2015,
if paying FATCA withholdable income to newly on boarded accounts,
FATCA status is required on the W-8BEN-E form.
─ A reporting IGA FFI resident in, or established under the laws
of, a jurisdiction covered by a Model 1 IGA should check “Reporting
Model 1 FFI.” A reporting FFI resident in, or established under the
laws of, a jurisdiction covered by a Model 2 IGA should check
“Reporting Model 2 FFI.” If the payee is treated as a registered
deemed-compliant FFI under an applicable IGA, it should check
“Nonreporting IGA FFI” rather than “registered deemed-compliant
FFI” and provide its GIIN in Part XII, line 26.
─ FATCA withholding is only required:
Where new W-8BEN-E or W-8IMY form has been provided by a
non-participating FFI (box marked), or
For undocumented FATCA payment relationships on-boarded starting
in 2015 where
presumption standards when applied result in a withholdable
category, or
For new accounts starting in 2015 with a participating FFI,
registered deemed compliant FFI, reporting or sponsored passive
non-financial foreign entity (NFFE) that require a GIIN for their
status and the entity fails to provide the GIIN, or the GIIN has
been provided but does not match in IRS list within 90 days.
Special GIIN rules apply to reporting or sponsored NFFEs.
For new accounts starting in 2015 with passive non-financial
foreign entities that have failed to provide their U.S. ownership
information or a certification that there are no U.S. owners; these
will be subject to FATCA withholding on FATCA withholdable
income.
For a registered participating FFI, registered deemed compliant
FFI, and IGA Model 1 Reporting FFI, the GIIN must be provided on
the form and validated on the IRS website within 90 days of
receipt. If the payee is a reporting Model 1 FFI, the GIIN is not
required to be provided for matching until 2015, but the address of
the payee must be in an IGA Model 1 country.
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Note: For pre-existing payees (those on your books through
December 31, 2014) FATCA withholding begins in 2015 for
undocumented Prima Facie FFIs without GIINs or with GIINS unmatched
in the IRS list after 90 days, and for all others withholding does
not begin until July 1, 2016. New FATCA versions of the W-8 forms
must be on file for all accounts by 2017. See how to identify prima
facie FFIs below and related curing requirements.
• Instructions to the W-8BEN-E on pre-existing accounts limit
completion of line 5 in FATCA status. Payees are told that they are
not required to provide a chapter 4 status if:
─ Providing the form with respect to a preexisting entity
account prior to July 1, 2016 (or, if they are an entity that is
treated as a prima facie FFI prior to January 1, 2015), or
─ Providing W-8BEN-E in the context of receiving a FATCA
withholdable payment.
• By checking a box in line 5, the payee is representing that
they qualify for this classification their country of
residence.
Regarding what to look for to be assured that a beneficial owner
has signed the form, it is critical that the name on the W-8 be
your contract party who has earned the right to the payment, and
the signatory on the W-8 be an authorized representative of that
contract party. Where this is otherwise, consider whether the
designated payee is acting as an agent or in another capacity. This
conflict needs to be resolved in your process to assure correct
withholding and reporting and to avoid risk.
The July 1, 2014, IRS corrections to the regulations added a
listing of validity checks for Forms W-8BEN and W-8BEN-E, all of
which are covered in detail above, but more importantly the
regulations clarified that missing data unless considered an
inconsequential omission meant the form was invalid and that an
expired form is also invalid. Included in the express listing for a
form to be valid are:
Validity period has not expired,
Signed under penalties of perjury by the beneficial owner,
Contains all of the following information required on the form:
─ Beneficial owner's name, ─ Permanent residence address, ─ TIN (if
required), ─ A certification that the person is not a U.S. citizen
(if the person is an individual) or a
certification of the country under the laws of which the
beneficial owner is created, incorporated, or governed (if a person
other than an individual),
─ Classification of the entity, ─ When required a foreign TIN, ─
When required an individual's date of birth, ─ Chapter 4 status of
a beneficial owner when required for chapter 4 purposes, and ─ Such
other information as may be required by the regulations under
section 1441 or by the
form or accompanying instructions.
[Reg. §1.1441-1T(e)(2)(ii)]
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For checking Form W-8ECI.
Form W-8ECI requires review of the items listed above, apart
from FATCA since ECI is exempt from FATCA withholding, and apart
from treaty claims that cannot be made on the Form W-8ECI. The
W-8ECI also requires review of the following items:
─ Form W-8ECI does not apply to personal services and may not be
used to eliminate withholding on fees for personal services paid to
an individual who is a nonresident alien (NRA) whether as an
independent contractor or as an employee. Only a Form 8233 treaty
claim may reduce withholding on an individual’s personal
services.
─ Form W-8ECI also may not be used to eliminate withholding on
pay for services to a personal holding company. W-8ECI does not
apply to personal holding companies with income from personal
service contracts. Foreign corporations that are personal holding
companies receiving compensation from “personal service contracts”
are precluded from claiming “effectively connected income” and
cannot provide a W-8ECI with respect to that income.
Explained in a different way, “personal service contracts”
prohibited from this benefit are contracts for personal services
where some person other than the corporation has the right to
designate (by name or by description) the individual who is to
perform the services, or if the individual who is to perform the
services is designated (by name or by description) in the contract;
and at some time during the tax year, 25% or more in value of the
outstanding stock of the corporation is owned, directly or
indirectly, by or for the individual who has performed, is to
perform, or may be designated (by name or by description) to
perform the services. Traditionally, the personal service contracts
subject to these rules provide for artists, actors, engineers,
salespersons, or other highly paid specialists for whom the
corporation has been organized.
See your tax counsel should questions about this restriction
arise.
─ A partnership can execute W-8ECI even though not technically a
beneficial owner and otherwise required to execute a W-8IMY. Since
withholding is required under I.R.C. § 1446 on a foreign partner’s
share of ECI to the partnership, an exception to the beneficial
owner rule allows a flow-through foreign partnership in a U.S.
trade or business to execute the W-8ECI as an entity.
─ Payees need to specify each item of income that is effectively
connected with the conduct of their trade or business in the U.S.
with enough details that a reader can identify the income. Make
sure that the payee accounts for every item of income with enough
detail that you can identify it and if any item is missing or
unclear be sure to follow up with the payee. Withholdable items not
clearly covered will be subject to 30% Form 1042 withholding.
─ A U.S. TIN must also be provided in the appropriate line. A
foreign tax ID will not suffice for this purpose. The form is
invalid if the payee does not provide a U.S. TIN (probably an EIN
beginning with “98”). Make sure that the payee’s U.S. TIN is
included and that the payee indicates whether the TIN is an SSN or
ITIN or EIN. The TIN is also to be reported on Form 1042-S. The IRS
matches each item reported as ECI on Form 1042-S to the payee’s tax
return using the payee name and TIN provided on the 1042-S.
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Form W-8ECI requires payees to be registered as U.S. taxpayers,
and to certify that they are meeting U.S. tax obligations on their
own U.S. tax returns as to the income received.
On receipt of a valid W-8ECI, payers are not required to
withhold but will still need to report the ECI on Form 1042-S so
the IRS can match reported ECI against the payee’s U.S. tax return
to verify tax obligations are being met.
Red Flags Give Reason to Doubt the Validity of Foreign Status on
W-8
Forms. Forms Must be Monitored for Red Flags and, if Found,
Cured.
Within the harmonization regulations published March 6, 2014,
are requirements for maintaining ongoing due diligence of a payee’s
withholding status for purposes of chapter 3 and FATCA as well as
1099 reporting and backup withholding under chapter 61. The review
for inconsistencies with tax certifications requires integration of
all knowledge within your organization about a payee, not just the
items acquired for tax purposes and on tax certifications, and
includes review of non-tax regulatory knowledge learned in, for
example, an OFAC search, and other business information such as
found in credit reports and in marketing information.
If you classify business type for other regulatory purposes (not
a tax purpose) and you are required to monitor that classification,
a reason to know of conflict with the tax status arises only if
what you record is inconsistent with the status claimed. For
information gathered for regulatory purposes, you have 30 days from
account opening (loosely, this might mean your contract date or
date your master file first indicates a viable vendor if no
contract). Regulations give the following example: You have reason
to know that a claim of excepted FATCA status based on a claim of
not being a financial institution is unreliable if you have a
financial statement or credit report indicating the payee is
engaged in business as a foreign financial institution. A W-8 is
deemed unreliable on date of discovery of a red flag. Although
there are references to a 90-day grace period to obtain the cure,
withholding is required if a payment is made in the meantime.
There are specific curing requirements that are covered in the
next section. If not cured pursuant to the requirements, you are
required to apply prescribed presumptions established in the tax
regulations (outlined further below) that apply if you have no
document or an uncured voided certification, to determine type of
payee (individual, trust, estate, corporation, other exempt
recipient, or intermediary or flow-through entity), U.S. or foreign
status, and withholding consequences under chapter 3, FATCA, or
backup withholding rules.
Under these regulations (and the prior versions) you generally
ignore a U.S. intermediary (an agent) if you know the payee is
acting for a foreign person unless that agent is a U.S. financial
institution (or U.S. insurance broker if paying a premium) and you
have no reason to know that the institution will not comply with
its withholding responsibilities.
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IRS corrections made to the final regulations on July 1, 2014,
added new instructions on due diligence and use of “red flag”
reasons to doubt certification validity, including:
─ For accounts on-boarded after 2014, a withholding agent will
have reason to know that a chapter 3 claim is unreliable or
incorrect if any information contained in its account opening files
or other files pertaining to the account information, including
documentation collected for purposes of AML due diligence,
conflicts with the account holder's claim.
─ A withholding agent will not, however, be considered to have
reason to know that a person's chapter 3 claim is unreliable or
incorrect based on documentation collected for AML due diligence
until the date that is 30 days after the obligation is executed (or
the account is opened for an obligation that is an account with a
financial institution).
Red Flags for U.S. or Foreign Status. Regulations require
looking for the following red flags on an ongoing basis from the
beginning of the payee relationship forward to the very last
payment you make, and sometimes beyond that point if filings are
still to be made. You are to catch any changes whenever they occur
in account information that would raise any of the listed red
flags. The following red flags must be identified on any submitted
W-8 form or whenever conflicts arise between information on the
submitted form and information in your business files. Red flags in
this listing require curing with additional documentation and often
also certified written statements before you may continue to honor
the claim on the W-8 form (see the discussion of curing below).
Although the regulations make reacquiring certifications on a new
W-8 form optional, Cokala advises that getting new W-8 forms as
part of the curing process is the best strategy to apply.
Reg. §1.1441-1T(e)(4)(ii)(D) considers a change in
circumstances. Under this regulation, a certificate or
documentation becomes invalid from the date of a change in
circumstances affecting the correctness of the certificate or
documentation. Thus, for example, a change of address is not a
change in circumstances with respect to a claim of only foreign
status if the change is to another address outside the U.S., but is
a change in circumstances if the change is to an address in the
U.S.
Red flags that will give reason to consider the W-8 unreliable
include:
A current U.S. permanent or mailing address exists on the W-8
certification or in your records even if the U.S. address becomes
known after the account is opened and the W-8 has been
received.
“In-care-of” or “hold mail” addresses are not permanent
addresses. Missing a permanent address in a foreign country is a
fatal flaw to relying on any W-8 form.
The payee is classified as a U.S. person in any of your customer
files.
Under Notice 2014-59, the customer file classification red flag
must be applied to all accounts with entities opened after 2014
(prior effective date was July 1, 2014); but continues to apply to
individual accounts held in the U.S. if opened on and after July 1,
2014. For pre-existing entity accounts opened prior to 2015, a
withholding agent is not required to take into account this U.S.
indicia unless the withholding agent is notified of a “change in
circumstances” (see explanation above) with respect to the account
or payment obligation. For pre-existing individual accounts opened
prior to July 1, 2014, a withholding agent is not required to take
into account this U.S. indicia unless the withholding agent is
notified of a change in circumstances. Notice 2014-59
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appears to have only pushed out the time frame for accounts held
in the U.S. by entities, and not to have changed the July 1, 2014,
effective date for individual accounts.
You have a U.S. telephone number on file anywhere if it is the
only phone number you have and you have no other phone number
outside of the U.S.
Under Notice 2014-59, the U.S. telephone number red flag must be
applied to all accounts with entities opened after 2014 (prior
effective date was July 1, 2014); but continues to apply to
individual accounts held in the U.S. if opened on and after July 1,
2014. For pre-existing entity accounts opened prior to 2015, a
withholding agent is not required to take into account this U.S.
indicia unless the withholding agent is notified of a “change in
circumstances” (see explanation above) with respect to the account
or payment obligation. For pre-existing individual accounts opened
prior to July 1, 2014, a withholding agent is not required to take
into account this U.S. indicia unless the withholding agent is
notified of a change in circumstances. Notice 2014-59 appears to
have only pushed out the time frame for accounts held in the U.S.
by entities, and not to have changed the July 1, 2014, effective
date for individual accounts.
There is a known U.S. place of birth of an individual payee that
is an unambiguous indication of the U.S. as place of birth, such as
seen on a reviewed passport.
Under Notice 2014-59, the U.S. place of birth red flag continues
to apply to individual accounts opened on and after July 1, 2014,
unless related to an offshore obligation. However, for pre-existing
accounts opened prior to July 1, 2014, Reg. §1.1441-7T(b)(3)(ii)
does not require a withholding agent to take into account this U.S.
indicia unless the withholding agent is notified of a “change in
circumstances” (see explanation above) with respect to the account
or payment obligation or reviews documentation that contains a U.S.
place of birth. Notice 2014-59 appears to have only pushed out the
time frame for accounts held in the U.S. by entities, and not to
have changed the July 1, 2014, effective date for individual
accounts.
Incomplete forms that are missing signatures, dates, permanent
foreign address, incomplete treaty claims. These are all fatal
flaws in forms. See review instructions above.
Although the IRS does not considered an expired form a red flag,
expiration dates need to be monitored. A Form W-8 will generally
remain valid until the earlier of the last day of the third
calendar year following the year in which the withholding
certificate is signed or the day that a change in circumstances
occurs that makes any information on the certificate incorrect.
─ Effective July 1, 2014, W-8 forms with TINs are no longer
considered valid indefinitely even if you file a 1042-S each year.
It is unclear whether extended validity to 2015 will cover older
forms that would have expired in previous years but for this
provision.
─ New rules apply indefinite validity periods for individuals if
you also have documentary evidence of foreign status, such as a
copy of a passport on file, as long as there is no current U.S.
residence or mailing address or other U.S. indicia; but, if a
treaty claim is involved, the form will expire for treaty
purposes.
Red flags for treaty status: All of the above red flags apply
and in addition, the following red flags in this listing require
curing before you may continue to honor the treaty claim on the W-8
form (see the discussion of curing below):
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The permanent residence address is not in the treaty country
As a withholding agent, you are notified of a new permanent
residence address that is not in the treaty country.
The mailing address is not in the treaty country or the
withholding agent has a mailing address that is not in the treaty
country as part of its account information.
The account holder has standing instructions for the withholding
agent to pay amounts from its account to an address outside, or an
account maintained outside, the treaty country.
Critical parts of the treaty claim are missing in the treaty
sections of Form W-8BEN (Individual) or W-8BEN-E (entity), such as
a missing TIN (U.S. or foreign) where one is required for the type
of treaty claim. For an entity’s claim, completion of lines 14a,
14b and where required details in line 15 of the W-8BEN-E. For an
individual’s claim, line 9 and details in line 10 where required
for the type of treaty claim
Red flags for FATCA. Almost every FATCA status has other unique
red flags that could cause challenge to the FATCA status and are
required items to look for. Specific requirements also attach to
documentary evidence when required as part of the status claim and
this covers a very broad range of information. Once you have
identified payees receiving FATCA withholdable income from your
organization, Cokala can assist you in identifying relevant red
flags. GIINs, however, pose numerous red flag concerns worth
raising in this paper since every traditional foreign bank or
brokerage firm will be assigned a GIIN.
A critical red flag for FFIs and registered deemed compliant
FFIs is a missing GIIN, or where you fail to match the GIIN with
the entity on the IRS website within 90 days of receipt of the
GIIN. New categories for non-financial foreign entities (NFFEs)
will also be issued GIINs and require matching within 90 days.
Direct Reporting and Sponsored Passive NFFEs will be given GIINs
and will report their U.S. owners directly to the IRS. See comments
on when GIINs are required above.
Matching is now mandated for GIINs. Begin FATCA withholding in
2015 for new payment relationships and pre-existing Prima Facie
FFIs (see further below) if the GIIN is not validated on the IRS
GIIN website by the 91st day. If later the GIIN shows up on the IRS
website, then you can use reimbursement or set-off procedures to
refund. If you are presented with GIINs in 2014, please contact
Cokala for assistance. ─ However, if the payee is a reporting Model
1 FFI, GIINs are not required to be provided for
matching until 2015, but until then the address of payee must be
in an IGA Model 1 country.
Due diligence points to watch for when matching GIINs:
─ Branches outside FFI country of residence must have separate
GIIN (even if a disregarded entity).
─ Must consider whether it is a withholdable “limited branch” or
“limited FFI” if directed to make payment to an address other than
the address for the Participating FFI or registered
deemed-compliant FFI on the IRS website.
─ Need to check to see if later removed from the IRS list. You
are deemed to know one year from date removed.
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No longer required to look for U.S. address as a red flag once
the FFI’s GIIN is confirmed on the current published IRS FFI list
within 90 days of receipt of the withholding certificate.
Application of red flags to multiple obligations of single
payee: if you have reason to know there is a red flag on one
account, it has application to other accounts and payment
relationships with the same payee to the extent that you have
computerized systems linking those accounts by reference to a data
element or where the withholding agent is treating the obligations
as “consolidated obligations.”
The term “consolidated obligations” means multiple obligations
that a withholding agent has chosen to treat as a single obligation
in order to treat the obligations as pre-existing obligations
(accounts) to allow sharing of documentation between the accounts.
Where the withholding agent opts to treat multiple obligations as
consolidated accounts the withholding agent must also treat the
obligations as a single obligation for purposes of satisfying the
standards of knowledge (“reasons to doubt” due diligence
requirements). For example, with respect to consolidated
obligations, if a withholding agent has reason to know that the
FATCA status assigned to the account holder is inaccurate, then it
has reason to know that the FATCA status assigned for all other
consolidated accounts of the account holder is inaccurate.
Curing Standards
New regulations allow inconsequential errors on forms if you
have evidence in your files, e.g., a copy of a government-issued ID
that clarifies country of residence for the form fault of
abbreviating the country on the W-8, or an individual’s failure to
print out their name on the W-8BEN (Individuals). But, the
regulations make clear that missing mandated information is not
inconsequential so if the form fails to provide the country of
incorporation or forgets to sign the form, for example, these would
be a fatal flaws.
W-8 forms may be received after you make payment and fail to
withhold. However, to cure the failure, you will need to acquire a
signed affidavit stating that certifications on the newly provided
form were accurate as of the first payment unless the W-8 was
received within 30 days of the first payment. If more than a year
has passed, you will need both the affidavit and documentary
evidence of foreign and FATCA statuses to accompany the new W-8 to
honor it retroactively.
IRS corrections made to the final regulations on July 1, 2014,
added new instructions for the curing mandates. In the new
instructions it was clarified that if a direct account holder has
provided documentation that is unreliable or incorrect, the
withholding agent may either require new documentation or rely on
the documentation originally provided if the rules for curing the
specific red flag permit reliance based on obtaining additional
statements and documentation from the beneficial owner.
For curing foreign status claims.
For curing U.S. addresses. Under Temp. Reg. §1.1441-7T(b)(5), a
withholding agent may treat a direct account holder as a foreign
person if the certificate has been provided by an individual or
entity and the withholding agent has in its possession or obtains
documentary evidence
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establishing foreign status (as described in Reg. sec.
1.1471-3(c)(5)(i)) that does not contain a U.S. address.
For entities, if there is no knowledge or reason to know the
entity is a flow-through entity (partnerships, some LLCs, and
simple or grantor trusts), curing merely requires that you obtain
documentary evidence establishing foreign status that substantiates
that the entity is actually organized or created under the laws of
a foreign country. Special very complex curing standards apply if
the entity is an FFI that acts as intermediary or when it is a
flow-through entity that looks to establishing status of beneficial
owners, where a W-8IMY is required.
Documentary evidence must establish the identity of person; have
a permanent foreign residence address unless that is already in
your files in other documentation; and for individuals, contain the
individual’s country of residence or citizenship, or if an entity,
contain an entity’s country of permanent residence or place of
incorporation or organization.
For entities and individuals, it must also be a certificate of
residence from a tax official in their resident country or an
individual’s government-issued identification or an entity’s
government-issued documentation. A driver's license or passport
might meet this requirement for an individual. However, a copy of
an entity’s articles of incorporation or representation on a credit
report will no longer suffice since these are not evidence issued
by the entity’s government.
An individual must also provide the withholding agent with a
reasonable explanation, in writing, supporting the claim of foreign
status. To meet this requirement you can use a check list that
outlines acceptable explanations.
Written explanation: Temp. Reg. §1. 1441-7T(b)(12) outlines the
terms for a reasonable explanation supporting an individual's claim
of foreign status, but note that IRS Notice 2014-33 says the IRS
will not limit the explanations to just the list in this
regulation. Under this regulation, a reasonable explanation
supporting an individual's claim of foreign status means a written
statement prepared by the individual or the individual's completion
of a checklist provided by the withholding agent that is certified
by the individual, stating that the individual meets the
requirements of one of the following:
1. The individual certifies that he or she—
is a student at a U.S. educational institution and holds the
appropriate visa;
is a teacher, trainee, or intern at a U.S. educational
institution or a participant in an educational or cultural exchange
visitor program, and holds the appropriate visa;
is a foreign individual assigned to a diplomatic post or a
position in a consulate, embassy, or international organization in
the United States; or
is a spouse or unmarried child under the age of 21 years of one
of the persons described above.
2. The individual provides information demonstrating that he or
she has not met the substantial presence test set forth in Reg. §
301.7701(b)-1(c) ( e.g., a written statement indicating the number
of days present in the United States during the three-year period
that includes the current year).
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3. The individual certifies that he or she meets the closer
connection exception described in Reg. § 301.7701(b)-2, states the
country to which the individual has a closer connection, and
demonstrates how that closer connection has been established;
or
4. With respect a payment entitled to a reduced rate of tax
under a U.S. income tax treaty, the individual certifies that he or
she is treated as a resident of a country other than the United
States and is not treated as a U.S. resident or U.S. citizen for
purposes of that income tax treaty.
To meet these standards, you will need both the passport or
driver's license and the written statement. A check list that
included these acceptable standards, with the appropriate item
checked and the document signed under penalty of perjury, would
strengthen your process and meet the regulations as long as you
also have a copy of a passport or driver's license issued by the
resident country.
For curing U.S. place of birth. If the red flag involves a U.S.
place of birth, you will need to also obtain a copy of the
individual’s Certificate of Loss of Nationality or a reasonable
written explanation of his or her renunciation of U.S. citizenship
or of the reason he or she did not obtain U.S. citizenship at
birth.
For curing account information classification. If the red flag
is only triggered by classification of the individual as a U.S.
person in your account information, you only need to obtain
documentary evidence evidencing an individual’s citizenship in
foreign country. See the rules for documentary evidence above.
For curing treaty claims. A beneficial owner may be treated as a
resident of the treaty country if the beneficial owner provides a
reasonable explanation for the permanent residence address outside
the treaty country or the withholding agent has in its possession,
or obtains, documentary evidence described above that establishes
residency in the treaty country.
However, where the mailing address is not in the treaty country
or the withholding agent has a mailing address that is not in the
treaty country as part of its account information, the beneficial
owner may be treated as a resident of the treaty country if:
─ The withholding agent has in its possession, or obtains,
documentary evidence supporting the claim of residence in the
treaty country and the additional documentation does not contain an
address outside the treaty country,
─ The withholding agent has in its possession, or obtains,
documentation that establishes that the beneficial owner is an
entity organized in a treaty country (or an entity managed and
controlled in a treaty country, if required by the applicable
treaty),
─ The withholding agent knows that the address outside the
treaty country (other than a P.O. box or in-care-of address) is a
branch of the account holder that is a resident of the treaty
country, or
─ The beneficial owner provides a written statement that
reasonably establishes entitlement to treaty benefits.
For curing standing instructions for the withholding agent to
pay amounts from its account to an address outside a treaty
country, the account holder needs to provide a reasonable
explanation, in writing, establishing the account holder's
residency in the applicable treaty country or the withholding
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agent must have in its possession documentary evidence
(described above) establishing the account holder’s residence in
the applicable treaty country.
Where critical parts of the treaty claim are missing on the
form, a new form that is correctly completed must be obtained.
See Requester Instructions for more details.
Presumption Standards for Determining Status
Temporary FATCA, NRA and chapter 61 regulations [TD 9657 and TD
9658] have modified the presumption standards for determining U.S.
or foreign status for purposes of chapter 3 NRA withholding to be
in line with the FATCA presumptions issued in 2013. These
regulations are considered to harmonize presumption rules for all
purposes.
Corrections to Treasury regulations made on July 1, 2014, added
the following clarification:
“… A withholding agent paying U.S. source interest to a person
that is an exempt recipient [for 1099 and backup withholding
purposes] … is not required to obtain documentation from that
person in order to determine whether an amount paid to that person
is reportable under an applicable information reporting provision
[1099 report] under chapter 61 of the Internal Revenue Code. The
withholding agent must, however, treat the payment as if made to an
undocumented person for purposes of chapter 3 of the Internal
Revenue Code.”
As the new example in the regulations demonstrates, a
withholding agent that is not required to obtain documentation with
respect to a 1099 reportable payment (for example, a payer that
uses the eyeball test to determine corporate status to avoid 1099
reporting rather than seek a W-9 form certifying exempt recipient
status) is considered to lack documentation for purposes of
determining whether there is withholding under chapter 3. To
resolve the concerns that arise when missing documentation for
chapter 3 purposes, the payer must apply the presumption standards
to make the determination whether the person is presumed a U.S.
person (in which case, no withholding is required under chapter 3),
or whether the person is presumed to be a foreign person (in which
case 30% withholding is required under chapter 3). [New Reg.
§1.1441-1T(b)(2)(vii)]
The presumption that treated a corporation or financial
institution with no foreign indicia such as a foreign address, but
no W-9 on file to claim U.S. status, when making a FATCA
withholdable payment, as a non-participating FFI subject to FATCA
withholding, has been preserved, but limited to only payments that
fall under the definition of FATCA withholdable payments made to
new accounts opened on or after July 1, 2014. An entity that was
previously “eyeballed” as a U.S. corporation or financial
institution and considered an “exempt recipient” for purposes of
1099 reporting and backup withholding prior to July 1, 2014, will
continue to be treated as a U.S. exempt entity. There is still a
great deal of confusion on application of the July 1, 2014 date for
purposes of the need to acquire a W-9 after Notice 2014-33, which
extended the date used to establish a pre-existing account from
July 1, 2014 to year end 2014 and thus extended withholding
obligations on undocumented accounts opened after June 30 through
December 31, 2014, to July 1, 2016 unless the account is a Prima
Facie FFI where withholding starts in 2015. With this
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confusion, Cokala recommends you obtain W-9 forms from new
corporate and financial institution payees as soon as practical
after July 1, 2014.
Temp Reg. §1.1441-1T(b)(3)(x) contains the following example 3
to be aware of: “A withholding agent, W, makes a payment of U.S.
source dividends to X, Inc. with respect to an account that X, Inc.
opened with W after June 30, 2014. W cannot reliably associate the
payment to X, Inc. with documentation but may treat X, Inc. as an
exempt recipient for purposes of this section applying the rules of
§1.6042-3(b)(1)(vii). However, because the dividend payment is a
[FATCA] withholdable payment and W did not determine the chapter 3
status of X, Inc. before July 1, 2014, W may treat X, Inc. as a
U.S. person that is an exempt recipient only if W obtains [a W-9
or] documentary evidence supporting X, Inc.’s status as a U.S.
person.”
New IRS corrections have now clarified the sorting between
domestic and foreign undocumented partnerships that will bring
widely different results than a literal reading of the February
version of the regulations. The following application is structured
pursuant to new Reg. §1.1441-5T(d)(2). Presumption standards
operate as follows for payees with no documentation on file or
where the document on file presents a red flag that has not been
cured:
• Ask if the payee is an individual, trust or estate. Presume
based on whether the account name or information in payee file
indicates the status.
• If indications are that the payee is a trust (that is if the
entity appears to be a trust by name or
information in your files) it is presumed to be a foreign
complex trust respected at the entity level unless you have
documentary evidence that establishes that the entity is a foreign
trust, but you cannot determine from the evidence whether the
foreign trust is a complex trust, a simple trust, or foreign
grantor trust. Where this is the case, you are to presume that the
trust is a foreign complex trust respected at the entity level
unless the foreign trust has a settlor that is a U.S. person for
which you have both a U.S. address and TIN, where you are to
presume the trust is a grantor trust and as such is treated as a
flow-through entity requiring the settlor to be subject to 1099
reporting.
• In the absence of reliable indications that the payee is an
individual, trust or estate, or where the
result is to presume as a complex trust, you must next consider
if the payee is one of the exempt recipients listed in Reg.
§1.6049-4(c)(1)(ii)(B) through (Q) by applying those rules. Exempt
recipients also include corporations, and the related rules include
the corporate eyeball test which is where the title of the payee
includes one of the following: Inc., Corp, Incorporated,
Corporation, Insurance, Reinsurance, but not Co or Company.
• If the entity falls in the list of exempt recipients for 1099
purposes (the list of exempt recipients can be
found in the current instructions to Form W-9):
─ If paying FATCA withholdable income, presume the payee is
foreign even if there are no foreign indications for the following
exempt recipients: any corporation, foreign government,
international organization, foreign central bank of issue, any
financial institution, any nominee or custodian, or broker or swap
dealer (“listed exempt recipients”). [Under
Reg.§1.6049-4(c)(1)(ii)]
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If under the provisions for exempt recipients, the entity is
presumed foreign, also presume it
is a non-participating FFI subject to 30% FATCA withholding.
This rule does not apply to a pre-existing account determined
prior to July 1, 2014, determined to be a U.S. exempt recipient
under the eyeball test. These entities will remain U.S. persons
even without a W-9 form. However, a read of Notice 2014-59 does not
support delay of the effective date of this provision to 2015 that
would follow the FATCA pre-existing account time frame as is the
case for the new red flags discussed above. So for accounts opened
on or after July 1, 2014 through December 31, 2014, they will be
exempt from FATCA withholding under the transition rules, but
possible subject to 30% chapter 3 withholding and 1042-S reporting
in 2014 since the presumption standard still appears to apply.
Treatment of exempt recipients in this list that are
pre-existing accounts for FATCA purposes,
but opened on or after July 1, 2014 through the end of 2014,
after the effective date of the provisions in the new harmonization
regulations: it is possible that they will be considered foreign
for purposes of chapter 3 and subject to 30% withholding and 1042-S
reporting since this presumption also applies for chapter 3
purposes. A read of Notice 2014-59 does not support delay of the
effective date of this provision to 2015 for purposes of chapter 3
withholding. If the payee is still not documented by the time the
transitional withholding date for FATCA begins, the amounts will be
subject to FATCA withholding since the income for this test only
applies to FATCA withholdable income. It is hopeful a further IRS
clarification will be provided on the conflict caused by the
variance between the date establishing pre-existing accounts for
FATCA purposes (January 1, 2015) and the date that this presumption
rule applies (July 1, 2014).
─ If not paying FATCA withholdable income to any of the above
listed exempt recipients, or if paying an exempt recipient that is
not in the list above, classify the payee as foreign only if there
is an EIN beginning with “98”, communications mailed to foreign
address, a name that indicates an entity on the per se list of
foreign corporations in Reg. §301.7701-2(b)(8)(i) (other than a
name which contains the designation “corporation” or “company”), or
after June 30, 2014 (or now maybe after 2014 depending upon the
unclear impact of Notice 2014-59), if the only telephone number
provided is outside of the U.S.
• Where you cannot treat a payee as an exempt recipient, then
the payee is presumed to be a partnership or if applicable under
the trust rules above, a complex trust.
• You are now instructed to apply the presumptions found in Reg.
§ 1.1441-1(b)(3)(iii)(A)(1) (the same ones discussed above for
exempt recipients), except you are to substitute the term
“partnership” or “trust” for the term “exempt recipient” to
determine whether to treat the partnership or trust as a U.S. or
foreign person. This is a new step in the equation and under it, if
you cannot reliably associate a payment with documentation from the
payee and the payee is treated as a partnership or trust, the payee
is presumed to be a foreign person and not a U.S. person if one or
more of the following indicia are present: ─ If the withholding
agent has actual knowledge of the payee's employer identification
number
and that number begins with the two digits “98”;
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─ If the withholding agent's communications with the payee are
mailed to an address in a foreign country;
─ If the name of the payee indicates that the entity is the type
of entity that is on the per se list of foreign corporations
contained in §301.7701-2(b)(8)(i) (other than a name which contains
the designation “corporation” or “company”);
─ If the payment is made with respect to an offshore obligation;
or
─ Only with respect to an account opened after July 1, 2014 (or
now maybe after 2014 depending upon the unclear impact of Notice
2014-59), if the only telephone number for the person that a
withholding agent has is outside of the United States.
• If the entity is presumed foreign, it will be subject to 30%
withholding under chapter 3 and 1042-S
reporting; if paying FATCA withholdable income, presume it is a
non-participating FFI subject to 30% FATCA withholding and 1042-S
reporting.
• Effectively connected income (ECI) presumption of exemption
arises if paying a U.S. branch of certain
foreign banks and insurance companies only if an EIN is provided
for the U.S. branch that enables the withholding agent to properly
1042-S report the payment. New FATCA regulations also provide that
the payment must be credited to an account maintained in the United
States in the name of a U.S. branch of the foreign person, or the
payment be made to an address in the United States where the U.S.
branch is and the name of the U.S. branch appears on documents (in
written or electronic form) associated with the payment (for
example, the check mailed or letter addressed to the branch). For
payments to which this presumption does not apply because no EIN is
provided, the temporary regulations require that the withholding
agent treat the payment as not effectively connected and the rules
immediately above apply.