Department of the Treasury

Internal Revenue Service

Publication 515

Cat. No. 15019L

Withholding of Tax on Nonresident Aliens and Foreign Entities

For use in 2025

Feb 5, 2025

Future Developments

For the latest information about developments related to Pub. 515, such as legislation enacted after it was published, go to IRS.gov/Pub515.

What's New

Partial Suspension of Income Tax Convention with USSR as it Relates to Belarus. On December 17, 2024, the United States provided formal notice to the Republic of Belarus of the partial suspension of its tax treaty with the USSR as it relates to Belarus. The United States has suspended the operation of paragraph 1, subparagraph (g), of Article 3 of the Convention. The rest of the treaty articles will remain in place. The suspension went into effect December 17, 2024, and will continue until December 31, 2026, or earlier if mutually determined by the two governments.

Partial Suspension of Income Tax Convention with Russia. On June 17, 2024, the United States provided formal notice to the Russian Federation of the partial suspension of its treaty with Russia. The United States has suspended the operation of paragraph 4 of Article 1, Articles 5 through 21, and Article 23 of the Convention, as well as the Protocol. The suspension went into effect both for taxes withheld at source and in respect of other taxes on August 16, 2024, and will continue until otherwise decided by the two governments.

Beginning on or after August 16, 2024, withholding agents are required to withhold at the statutory 30% withholding tax rate on payments of U.S. source income made to recipients who may have previously qualified for treaty benefits under the U.S.–Russia income tax treaty.

E-filing returns. The Taxpayer First Act of 2019 authorized the Department of the Treasury and the IRS to issue regulations that reduce the 250-return e-file threshold. T.D. 9972, published February 23, 2023, lowered the e-file threshold to 10 (calculated by aggregating all information returns), effective for information returns required to be filed on or after January 1, 2024. Go to IRS.gov/InfoReturn for e-file options.

These final regulations also include requirements for withholding agents to e-file Form 1042, Annual Withholding Tax Returns for U.S. Source Income of Foreign Persons, effective for Form 1042 returns required to be filed on or after January 1, 2024. For more information, see the Instructions for Form 1042.

Also, see Pub. 1187, Specifications for Electronic Filing of Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding and Filing Information Returns Electronically (FIRE).

Termination of 1979 Tax Convention with Hungary. On July 15, 2022, the U.S. Treasury Department (Treasury) announced that Hungary was notified on July 8, 2022, that the United States would terminate its tax treaty with Hungary. In accordance with the treaty’s provisions on termination, termination of the treaty is effective on January 8, 2023. With respect to taxes withheld at source, the treaty ceases to have effect on January 1, 2024. Therefore, as of January 1, 2024, withholding agents are required to withhold at the statutory 30% withholding rate on payments of U.S. source income made to recipients who may have previously qualified for treaty benefits under the U.S.-Hungary income tax treaty. In respect of other taxes, the treaty ceases to have effect with respect to taxable periods beginning on or after January 1, 2024.

Reminders

Withholding and reporting under sections 1446(a) and (f) starting in 2023. T.D. 9926 (85 FR 76910), published on November 30, 2020 (as corrected at 86 FR 13191), contains final regulations (section 1446(f) regulations) relating to the withholding and reporting required under section 1446(f) on transfers of interests in certain partnership interests, which include withholding requirements that apply to brokers effecting transfers of interests in publicly traded partnerships (PTPs). While section 1446(f) withholding generally applies to transfers occurring on or after January 1, 2018, certain provisions of the section 1446(f) regulations apply to transfers on or after January 1, 2023, including:

The requirements for withholding on transfers of interests in PTPs under section 1446(f)(1);

Certain changes to the withholding requirements under Regulations section 1.1446﻿-﻿4 for distributions made by PTPs (PTP distributions), which include an allowance for Qualified Intermediaries (QIs) and U.S. branches to act as withholding agents for the distributions; and

Partnership withholding under section 1446(f)(4) on distributions to transferees of non-PTP interests that failed to properly withhold under section 1446(f)(1).

For further information regarding the effective date of these provisions, see Notice 2021﻿-﻿51, 2021﻿-﻿36 I.R.B. 361, available at IRS.gov/irb/2021﻿-﻿36_IRB#NOT-2021﻿-﻿51. For additional guidance on certain issues related to the section 1446(f) regulations, see Notice 2023﻿-﻿8, 2023﻿-﻿2 I.R.B. 344, available at IRS.gov/irb/2023﻿-﻿2_IRB#NOT-2021﻿-﻿51.

Photographs of missing children. The IRS is a proud partner with the National Center for Missing & Exploited Children® (NCMEC). Photographs of missing children selected by the Center may appear in this publication on pages that would otherwise be blank. You can help bring these children home by looking at the photographs and calling 1﻿-﻿800-THE-LOST (1﻿-﻿800﻿-﻿843﻿-﻿5678) if you recognize a child.

Introduction

This publication is for withholding agents who pay income to foreign persons, including nonresident aliens, foreign corporations, foreign partnerships, foreign trusts, foreign estates, foreign governments, and international organizations. Specifically, it describes the persons responsible for withholding (withholding agents), the types of income subject to withholding, and the information return and tax return filing obligations of withholding agents. In addition to discussing the rules that apply generally to payments of U.S. source income to foreign persons, it also contains sections on the withholding that applies to the disposition of U.S. real property interests (USRPIs) and the withholding by partnerships on income effectively connected with the active conduct of a U.S. trade or business.

Comments and suggestions.

We welcome your comments about this publication and suggestions for future editions.

You can send us comments through IRS.gov/FormComments. Or, you can write to the Internal Revenue Service, Tax Forms and Publications, 1111 Constitution Ave. NW, IR-6526, Washington, DC 20224.

Although we can’t respond individually to each comment received, we do appreciate your feedback and will consider your comments and suggestions as we revise our tax forms, instructions, and publications. Don’t send tax questions, tax returns, or payments to the above address.

Getting answers to your tax questions.

If you have a tax question not answered by this publication or the How To Get Tax Help section at the end of this publication, go to the IRS Interactive Tax Assistant page at IRS.gov/Help/ITA where you can find topics by using the search feature or viewing the categories listed.

Getting tax forms, instructions, and publications.

Go to IRS.gov/Forms to download current and prior-year forms, instructions, and publications.

Ordering tax forms, instructions, and publications.

Go to IRS.gov/OrderForms to order current forms, instructions, and publications; call 800﻿-﻿829﻿-﻿3676 to order prior-year forms and instructions. The IRS will process your order for forms and publications as soon as possible. Don’t resubmit requests you’ve already sent us. You can get forms and publications faster online.

Useful Items

You may want to see:

Publication

﻿ ﻿15﻿ ﻿(Circular E), Employer's Tax Guide

﻿ ﻿15-A﻿ ﻿Employer's Supplemental Tax Guide

﻿ ﻿15-B﻿ ﻿Employer's Tax Guide to Fringe Benefits

﻿ ﻿15-T﻿ ﻿Federal Income Tax Withholding Methods

﻿ ﻿505﻿ ﻿ Tax Withholding and Estimated Tax

﻿ ﻿519﻿ ﻿ U.S. Tax Guide for Aliens

﻿ ﻿901﻿ ﻿ U.S. Tax Treaties

﻿ ﻿1179﻿ ﻿ General Rules and Specifications for Substitute Forms 1096, 1098, 1099, 5498, and Certain Other Information Returns

﻿ ﻿1187﻿ ﻿ Specifications for Electronic Filing of Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding

﻿ ﻿5124﻿ ﻿ FATCA XML User Guide

Form (and Instructions)

﻿ ﻿SS-4﻿ ﻿ Application for Employer Identification Number

﻿ ﻿W-2﻿ ﻿ Wage and Tax Statement

﻿ ﻿W-4﻿ ﻿ Employee's Withholding Certificate

﻿ ﻿W-4P﻿ ﻿ Withholding Certificate for Periodic Pension or Annuity Payments

﻿ ﻿W-7﻿ ﻿ Application for IRS Individual Taxpayer Identification Number

﻿ ﻿W-8BEN﻿ ﻿ Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)

﻿ ﻿W-8BEN-E﻿ ﻿ Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)

﻿ ﻿W-8ECI﻿ ﻿ Certificate of Foreign Person's Claim That Income Is Effectively Connected With the Conduct of a Trade or Business in the United States

﻿ ﻿W-8EXP﻿ ﻿ Certificate of Foreign Government or Other Foreign Organization for United States Tax Withholding and Reporting

﻿ ﻿W-8IMY﻿ ﻿ Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting

﻿ ﻿W-8 Inst.﻿ ﻿ Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY

﻿ ﻿W-9﻿ ﻿ Request for Taxpayer Identification Number and Certification

﻿ ﻿W-9 Inst.﻿ ﻿Instructions for the Requester of Form W-9

﻿ ﻿941﻿ ﻿ Employer's QUARTERLY Federal Tax Return

﻿ ﻿945﻿ ﻿ Annual Return of Withheld Federal Income Tax

﻿ ﻿1042﻿ ﻿ Annual Withholding Tax Return for U.S. Source Income of Foreign Persons

﻿ ﻿1042-S﻿ ﻿ Foreign Person's U.S. Source Income Subject to Withholding

﻿ ﻿1042-T﻿ ﻿ Annual Summary and Transmittal of Forms 1042-S

﻿ ﻿13930﻿ ﻿ Instructions on how to apply for a Central Withholding Agreement

﻿ ﻿13930-A﻿ ﻿ Simplified Central Withholding Agreement Application

﻿ ﻿8233﻿ ﻿ Exemption From Withholding on Compensation for Independent (and Certain Dependent) Personal Services of a Nonresident Alien Individual

﻿ ﻿8288﻿ ﻿ U.S. Withholding Tax Return for Certain Dispositions by Foreign Persons

﻿ ﻿8288-A﻿ ﻿ Statement of Withholding on Certain Dispositions by Foreign Persons

﻿ ﻿8288-B﻿ ﻿Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests

﻿ ﻿8288-C﻿ ﻿Statement of Withholding Under Section 1446(f)(4) on Disposition by Foreign Persons of Partnership Interests

﻿ ﻿8966﻿ ﻿ FATCA Report

See How To Get Tax Help at the end of this publication for information about getting publications and forms.

Withholding of Tax

In most cases, a foreign person is subject to U.S. tax on its U.S. source income. Most types of U.S. source income received by a foreign person are subject to U.S. tax of 30%. A reduced rate, including exemption, may apply if there is a tax treaty between the foreign person's country of residence and the United States. The tax is generally withheld (chapter﻿ ﻿3 withholding) from the payment made to the foreign person.

The term “chapter﻿ ﻿3 withholding” is used in this publication descriptively to refer to withholding required under sections 1441, 1442, and 1443. In most cases, chapter﻿ ﻿3 withholding describes the withholding regime that requires withholding on a payment of U.S. source income. Payments to foreign persons, including nonresident alien individuals, foreign entities, and governments, may be subject to chapter﻿ ﻿3 withholding.

Withholding may also be required on a payment to the extent required under chapter﻿ ﻿4. “Chapter 4” refers to chapter﻿ ﻿4 of Subtitle A (sections 1471 through 1474). See Chapter 4 Withholding Requirements, later.

Chapter 3 withholding, when referenced in (and not provided otherwise) in this publication, does not include withholding under section 1445 (see U.S. Real Property Interest, later) or under section 1446 (see Partnership Withholding on Effectively Connected Taxable Income (ECTI) and Section 1446(f) Withholding, later).

A withholding agent (defined next) is the person responsible for withholding on payments made to a foreign person. However, a withholding agent that can reliably associate the payment with valid documentation (discussed later) from a U.S. person is not required to withhold. In addition, a withholding agent may apply a reduced rate of withholding (including an exemption from withholding) if it can reliably associate the payment with documentation from a beneficial owner that is a foreign person entitled to a reduced rate of withholding.

If an amount subject to chapter﻿ ﻿3 withholding is also a withholdable payment and chapter﻿ ﻿4 withholding is applied to the payment, no withholding is required under chapter﻿ ﻿3. See Chapter 4 Withholding Requirements, later.

Withholding Agent

Chapter 3 Withholding Requirements

You are a withholding agent if you are a U.S. or foreign person, in whatever capacity acting, that has control, receipt, custody, disposal, or payment of an amount subject to chapter﻿ ﻿3 withholding. A withholding agent may be an individual, corporation, partnership, trust, association, nominee (under section 1446), or any other entity, including any foreign intermediary, foreign partnership, or U.S. branch of certain foreign banks and insurance companies. You may be a withholding agent even if there is no requirement to withhold from a payment or even if another person has withheld the required amount from the payment.

Although several persons may be withholding agents for a single payment, the full tax is required to be withheld only once. In most cases, the U.S. person who pays an amount subject to chapter﻿ ﻿3 withholding is the person responsible for withholding. However, other persons may be required to withhold. For example, a payment made by a flow-through entity or nonqualified intermediary (NQI) that knows, or has reason to know, that the full amount of chapter﻿ ﻿3 withholding was not done by the person from which it receives a payment is required to do the appropriate withholding since it also falls within the definition of a withholding agent. In addition, withholding must be done by any qualified intermediary (QI), withholding foreign partnership, or withholding foreign trust in accordance with the terms of its withholding agreement, discussed later.

Liability for tax.

As a withholding agent, you are personally liable for any tax required to be withheld. This liability is independent of the tax liability of the foreign person to whom the payment is made. If you fail to withhold and the foreign payee fails to satisfy its U.S. tax liability, then both you and the foreign person are liable for tax, as well as interest and any applicable penalties.

The applicable tax will be collected only once. If the foreign person satisfies its U.S. tax liability, you are not liable for the tax but remain liable for any interest and penalties for failure to withhold.

Determination of amount to withhold.

You must withhold on the gross amount subject to chapter﻿ ﻿3 withholding. You cannot reduce the gross amount by any deductions.

If the determination of the source of the income or the amount subject to tax depends on facts that are not known at the time of payment, you must withhold an amount sufficient to ensure that at least 30% of the amount subsequently determined to be subject to withholding is withheld. In no case, however, should you withhold more than 30% of the total amount paid. You may elect to hold 30% of the payment in escrow until the earlier of the date that the amount of income from U.S. sources or the taxable amount can be determined or 1 year from the date the amount is placed in escrow, at which time the withholding becomes due, or, to the extent that withholding is not required, the escrowed amount must be paid to the payee.

When to withhold.

Withholding is required at the time you make a payment of an amount subject to withholding. A payment is made to a person if that person realizes income, whether or not there is an actual transfer of cash or other property. A payment is considered made to a person if it is paid for that person's benefit. For example, a payment made to a creditor of a person in satisfaction of that person's debt to the creditor is considered made to the person. A payment is also considered made to a person if it is made to that person's agent.

A U.S. partnership should withhold when any distributions that include amounts subject to withholding are made. However, if a foreign partner's distributive share of income subject to withholding is not actually distributed, the U.S. partnership must withhold on the foreign partner's distributive share of the income on the earlier of the date that a Schedule﻿ ﻿K-1 (Form 1065) is furnished or mailed to the partner or the due date for furnishing that schedule.

Note. If the foreign distributable share of income includes effectively connected income (ECI), see Partnership Withholding on ECTI, later.

A U.S. trust is required to withhold on the amount includible in the gross income of a foreign beneficiary to the extent the trust's distributable net income consists of an amount subject to withholding. To the extent a U.S. trust is required to distribute an amount subject to withholding but does not actually distribute the amount, it must withhold on the foreign beneficiary's allocable share at the time the income is required to be reported on Form 1042-S.

Note.  Proposed regulations issued on December 18, 2018 (83 FR 64757) would allow partnerships or trusts that are permitted to withhold in a subsequent year, with respect to a foreign partner’s or beneficiary’s share of income for the prior year, to designate the deposit of the withholding as attributable to the preceding year. In such a case, the partnership or trust will be required to report the associated amount and tax withheld on Forms 1042 and 1042-S for the preceding year. See the Instructions for Form 1042 and the Instructions for Form 1042-S for additional information.

Chapter 4 Withholding Requirements

You are a withholding agent for purposes of chapter﻿ ﻿4 if you are a U.S. or foreign person, in whatever capacity you are acting, that has control, receipt, custody, disposal, or payment of a withholdable payment. Similar rules for determining who is a withholding agent as those described in Chapter 3 Withholding Requirements, earlier, also apply for chapter﻿ ﻿4. For purposes of chapter﻿ ﻿4, a withholding agent includes a participating foreign financial institution (FFI) (including a reporting Model 2 FFI) or registered deemed-compliant FFI to the extent such FFI makes a withholdable payment.

Under chapter﻿ ﻿4, a withholding agent that makes a withholdable payment to a payee that is an FFI must withhold 30% on the payment unless the withholding agent is able to treat the FFI as a participating FFI, deemed-compliant FFI, or exempt beneficial owner. A withholding agent must also withhold 30% on a withholdable payment made to a payee that is a foreign entity other than an FFI (that is, a nonfinancial foreign entity, or NFFE) that fails to identify its substantial U.S. owners (or certify that it does not have any substantial U.S. owners) unless the payment is excepted from withholding under the regulations to section 1472. A participating FFI is a withholding agent under chapter﻿ ﻿4 and is required to withhold on a withholdable payment to the extent required under the FFI agreement, including on a payment made to an account holder that the FFI is required to treat as a recalcitrant account holder. A reporting Model 1 FFI is required to withhold under chapter﻿ ﻿4 to the extent required in the applicable Intergovernmental Agreement (IGA). A registered deemed-compliant FFI (other than a reporting Model 1 FFI) is required to withhold under chapter﻿ ﻿4 to the extent required under the conditions applicable to its registered deemed-compliant FFI status. See Regulations section 1.1471﻿-﻿5(f)(1) for a description of the types of registered deemed-compliant FFIs that may have withholding requirements.

Generally, a withholdable payment is a payment of U.S. source fixed or determinable annual or periodical (FDAP) income. Specific exceptions to withholdable payments apply instead of the exemptions from withholding or taxation provided under chapter﻿ ﻿3. See Income Subject to Withholding, later, for more information on payments of U.S. source FDAP income that are excepted from the definition of withholdable payment.

If a withholding agent makes a payment subject to both chapter﻿ ﻿4 withholding and chapter﻿ ﻿3 withholding, the withholding agent must apply the withholding provisions of chapter﻿ ﻿4, and need not withhold on the payment under chapter﻿ ﻿3 to the extent that it has withheld under chapter﻿ ﻿4.

Similar rules for withholding agent liability for tax, determination of amount to withhold, and when to withhold as those described in Chapter 3 Withholding Requirements, earlier, also apply for chapter﻿ ﻿4.

Forms 1042 and 1042-S Reporting Obligations

You are required to report payments subject to chapter﻿ ﻿3 withholding on Form 1042-S and to file a tax return on Form 1042. (See Returns Required, later.) You are also required to report withholdable payments to which chapter﻿ ﻿4 withholding was (or should have been) applied on Form 1042-S and to file a tax return on Form 1042 to report the payments. An exception from reporting may apply for chapter﻿ ﻿3 purposes to individuals who are not required to withhold from a payment and who do not make the payment in the course of their trade or business. A similar exception from reporting for chapter﻿ ﻿4 purposes may apply to an individual making a withholdable payment outside the course of the individual’s trade or business (including as an agent with respect to making or receiving such payment).

Withholding and Reporting Obligations (Other Than Forms 1042 and 1042-S Reporting for Chapter 3 or 4 Purposes)

Form 1099 reporting and backup withholding.

You may also be responsible as a payer for reporting payments to a U.S. person, generally on Form 1099. You must withhold 24% (backup withholding rate) from certain reportable payments made to a U.S. person that is subject to Form 1099 reporting if any of the following apply.

The U.S. person has not provided its taxpayer identification number (TIN) in the manner required.

The IRS notifies you that the TIN furnished by the payee is incorrect.

There has been a notified payee underreporting.

There has been a payee certification failure.

 In most cases, a TIN must be provided by a U.S. nonexempt recipient (a U.S. person subject to Form 1099 reporting) on Form W-9.

 A payer files a tax return on Form 945 to report backup withholding.

You may be required to file Form 1099 and, if appropriate, backup withhold, even if you do not make the payments directly to that U.S. person. For example, you are required to report income paid to a foreign intermediary or flow-through entity that collects for a U.S. person subject to Form 1099 reporting. However, you may not be required to report on Form 1099 if you make a payment to a participating FFI or registered deemed-compliant FFI that provides a withholding statement allocating the payment to a chapter﻿ ﻿4 withholding rate pool of U.S. payees. See Identifying the Payee, later, for more information. Also see Section S. Special Rules for Reporting Payments Made Through Foreign Intermediaries and Foreign Flow-Through Entities on Form 1099 in the General Instructions for Certain Information Returns.

TipForeign persons who provide a valid Form W-8 (or applicable documentary evidence when permitted in lieu of a Form W-8) are exempt from backup withholding and Form 1099 reporting.

Form 8966 reporting.

For chapter﻿ ﻿4 purposes, you may be required to report on Form 8966, FATCA Report, if you make a withholdable payment to an entity you agree to treat as an owner-documented FFI or to a passive NFFE. See Returns Required, later.

Wages paid to employees.

If you are the employer of a nonresident alien, you must generally withhold taxes at graduated rates. See Pay for Personal Services Performed, later.

Effectively connected income by partnerships.

A withholding agent that is a partnership (whether U.S. or foreign) is also responsible for withholding on its income effectively connected with a U.S. trade or business that is allocable to foreign partners. In the case of a publicly traded partnership, however, either the partnership or a nominee may be responsible for this withholding, as applied to distributions by the partnership (PTP distributions). See Partnership Withholding on ECTI, later, for more information.

Transfers of interests in partnerships engaged in the conduct of a U.S. trade or business.

A withholding agent is also responsible for withholding on the amount realized on the transfer by a foreign partner of an interest in a partnership (domestic or foreign) engaged in the conduct of a U.S. trade or business. See Section 1446(f) Withholding, later, for more information, including withholding requirements applicable to brokers effecting transfers of PTP interests.

USRPI.

A withholding agent may also be responsible for withholding if a foreign person transfers a USRPI to the agent, or if it is a corporation, partnership, trust, or estate that distributes a USRPI to a shareholder, partner, or beneficiary that is a foreign person. See U.S. Real Property Interest, later.

Persons Subject to Chapter 3 or Chapter 4 Withholding

Chapter 3 withholding applies only to payments made to a payee that is a foreign person. It does not apply to payments made to U.S. persons.

Usually, you determine the payee's status as a U.S. or foreign person or, if you are making a withholdable payment to an entity (or are an FFI making a payment to an account holder), the payee's chapter﻿ ﻿4 status, based on the documentation that person provides. See Documentation, discussed later. However, if you have received no documentation or you cannot reliably associate all or a part of a payment with documentation upon which you can rely, then you must apply certain presumption rules, discussed later.

Chapter 4 withholding applies to withholdable payments made to an entity payee that is an FFI unless the withholding agent is able to treat the FFI as a participating FFI, deemed-compliant FFI, or exempt beneficial owner. Chapter 4 withholding also applies to withholdable payments made to a passive NFFE that fails to identify its substantial U.S. owners (or certify that it does not have any substantial U.S. owners). You must establish the payee’s chapter﻿ ﻿4 status to determine if withholding applies by applying the documentation requirements of chapter﻿ ﻿4, generally by obtaining a Form W-8 (or, under an applicable IGA, a similar agreed form) associated with the payment, or other documentation for payments made outside of the United States on offshore obligations. See Regulations section 1.1471﻿-﻿3(d) for details on these documentation requirements. Withholding under chapter﻿ ﻿4 also applies to account holders of a participating FFI or registered deemed-compliant FFI that the FFI is required to treat as recalcitrant account holders.

This section applies to both chapters 3 and 4 except where otherwise indicated and except where the text clearly applies to one or the other (for example, reduced rates and exemptions under income tax treaties).

Identifying the Payee

In most cases, the payee is the person to whom you make the payment, regardless of whether that person is the beneficial owner of the income. However, there are situations in which the payee is a person other than the one to whom you actually make a payment.

U.S. agent of foreign person.

For purposes of chapter﻿ ﻿3, if you make a payment to a U.S. person and you have actual knowledge that the U.S. person is receiving the payment as an agent of a foreign person, you must treat the payment as made to the foreign person. However, if the U.S. person is a financial institution, you may treat the institution as the payee provided you have no reason to believe that the institution will not comply with its own obligation to withhold under chapter﻿ ﻿3.

For chapter﻿ ﻿4 purposes, if you make a withholdable payment to a U.S. person and you have actual knowledge that the U.S. person is receiving the payment as an intermediary or agent of a foreign person, you must treat the foreign person as the payee. However, if you make a withholdable payment to a U.S. financial institution or a U.S. insurance broker (to the extent the withholdable payment is a payment of an insurance premium) that is receiving the payment as an intermediary or agent, you may treat the financial institution or insurance broker as the payee if you do not have reason to know that the financial institution or insurance broker will not comply with its obligations to withhold under chapter﻿ ﻿4. See Definitions, later, for the definition of financial institution.

If the payment is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment, you must treat the payment as made to a U.S. person and not as a payment to a foreign person. You may be required to report the payment on Form 1099 and, if applicable, backup withhold.

Disregarded entities.

In general, a business entity that is not a corporation and that has a single owner may be disregarded as an entity separate from its owner (a disregarded entity) for federal tax purposes. The payee of a payment made to a disregarded entity is the owner of the entity.

If the owner of the entity is a foreign person, you must apply chapter﻿ ﻿3 withholding unless you can treat the foreign owner as a beneficial owner entitled to a reduced rate of withholding.

If the owner is a U.S. person, you do not apply chapter﻿ ﻿3 withholding. However, you may be required to report the payment on Form 1099 and, if applicable, backup withhold. You may assume that a foreign entity is not a disregarded entity unless you can reliably associate the payment with documentation provided by the owner or you have actual knowledge or reason to know that the foreign entity is a disregarded entity.

Special chapter﻿ ﻿4 rules.

If you make a withholdable payment to a disregarded entity owned by an FFI, for chapter﻿ ﻿4 purposes you must determine whether you must treat the payment as made to a payee that is a nonparticipating FFI (to which chapter﻿ ﻿4 withholding applies) or a payee that is an FFI with another chapter﻿ ﻿4 status (such as a participating FFI). If you make a withholdable payment to a disregarded entity that is treated as a disregarded entity that is a branch of an FFI that cannot comply with the requirements of an applicable IGA or the regulations under chapter﻿ ﻿4, you must treat the payment as made to a nonparticipating FFI and withhold 30% of the payment. See the Instructions for Form W-8BEN-E for more information on payments to disregarded entities.

Flow-Through Entities

Chapter 3 payees.

The payees of payments (other than income effectively connected with a U.S. trade or business and dispositions of interests in partnerships engaged in a trade or business within the United States) made to a foreign flow-through entity are the owners or beneficiaries of the flow-through entity. This rule applies for purposes of chapter﻿ ﻿3 withholding and for Form 1099 reporting and backup withholding. Income that is, or is deemed to be, effectively connected with the conduct of a U.S. trade or business of a flow-through entity is treated as paid to the entity.

The following are flow-through entities.

A foreign partnership (other than a withholding foreign partnership).

A foreign simple or foreign grantor trust (other than a withholding foreign trust).

If the chapter﻿ ﻿3 payee is a disregarded entity or flow-through entity for U.S. tax purposes, but the payee is claiming treaty benefits, see Fiscally transparent entities claiming treaty benefits, later.

Chapter 4 payees.

For purposes of chapter﻿ ﻿4, however, a foreign entity that is a flow-through entity is a payee with respect to a payment (other than income effectively connected with the conduct of a U.S. trade or business) if the flow-through entity is:

An FFI that is not a participating FFI or deemed-compliant FFI, or restricted distributor (an entity that operates as a distributor that holds debt or equity interests in a restricted fund as a nominee and meets the requirements described in Regulations section 1.1471﻿-﻿5(f)(4)) receiving the payment on behalf of its owners (in such a case, the entity is a nonparticipating FFI subject to withholding under chapter﻿ ﻿4); or

An excepted NFFE that is not acting as an agent or intermediary with respect to the payment.

If you make a withholdable payment to a flow-through entity that is not one of the types described above, you must treat the partner, beneficiary, or owner (as applicable) of the flow-through entity as the payee for chapter﻿ ﻿4 purposes (similar to the determination of the payee for chapter﻿ ﻿3 purposes) (looking through partners, beneficiaries, and owners that are themselves flow-through entities that are not one of the types described above).

In most cases, you treat a payee as a flow-through entity if it provides you with a Form W-8IMY (see Documentation, later) on which it claims such status. You may also be required to treat the entity as a flow-through entity under the presumption rules, discussed later.

For purposes of chapter﻿ ﻿3, you must determine whether the owners or beneficiaries of a flow-through entity are U.S. or foreign persons, how much of the payment relates to each owner or beneficiary, and, if the owner or beneficiary is foreign, whether a reduced rate of chapter﻿ ﻿3 withholding applies. For purposes of chapter﻿ ﻿4, you must determine the chapter﻿ ﻿4 status of the owners or beneficiaries of a flow-through entity (subject to the exceptions described above), how much of the payment relates to each owner or beneficiary, and whether withholding under chapter﻿ ﻿4 applies. You make these determinations based on the documentation and other information (contained in a withholding statement) that is associated with the flow-through entity's Form W-8IMY. If you do not have all of the information that is required to reliably associate a payment with a specific payee, you must apply the presumption rules. See Documentation and Presumption Rules, later.

Withholding foreign partnerships and withholding foreign trusts are not flow-through entities.

Foreign partnerships.

A foreign partnership is any partnership (including an entity classified as a partnership) that is not organized under the laws of any state of the United States or the District of Columbia or any partnership that is treated as foreign under the income tax regulations. If a foreign partnership is not a withholding foreign partnership, the payees of income are the partners of the partnership, provided the partners are not themselves flow-through entities or foreign intermediaries. However, the payee is the partnership itself if the partnership is claiming treaty benefits on the basis that it is not treated as fiscally transparent in the treaty jurisdiction and that it meets all the other requirements for claiming treaty benefits. If a partner is a foreign flow-through entity or a foreign intermediary, you apply the payee determination rules to that partner to determine the payees.

For purposes of chapter﻿ ﻿4, a foreign partnership is a payee of a withholdable payment if the partnership is a withholding foreign partnership that is not acting as an agent or intermediary with respect to the payment. If the partnership is not a withholding foreign partnership, the payees are the partners (looking through any partners that are flow-through entities that are not treated as payees under the chapter﻿ ﻿4 regulations).

Example 1. A nonwithholding foreign partnership has three partners: a nonresident alien individual, a foreign corporation, and a U.S. citizen. You make a payment of U.S. source interest to the partnership. Assume that the payment is subject to chapter﻿ ﻿3 withholding but is not a withholdable payment. The partnership gives you a Form W-8IMY with which it associates Form W-8BEN from the nonresident alien, Form W-8BEN-E from the foreign corporation, and Form W-9 from the U.S. citizen. The partnership also gives you a complete withholding statement that enables you to associate a part of the interest payment to each partner.

You must treat all three partners as the payees of their part of the interest payment as if the payment were made directly to them. Report the payments to the nonresident alien and the foreign corporation on Forms 1042-S. Report the payment to the U.S. citizen on Form 1099-INT. You do not need to determine the chapter﻿ ﻿4 status of the partnership because the payment is not a withholdable payment.

Example 2. A nonwithholding foreign partnership has two partners: a foreign corporation and a nonwithholding foreign partnership. The second partnership has two partners, both nonresident alien individuals. You make a payment of U.S. source interest to the first partnership. Assume that the payment is subject to chapter﻿ ﻿3 withholding but is not a withholdable payment. The partnership gives you a valid Form W-8IMY with which it associates a Form W-8BEN-E from the foreign corporation and a Form W-8IMY from the second partnership. In addition, Forms W-8BEN from the partners are associated with the Form W-8IMY from the second partnership. The Forms W-8IMY from the partnerships have complete withholding statements associated with them. Because you can reliably associate a part of the interest payment with the Form W-8BEN-E provided by the foreign corporation and the Forms W-8BEN provided by the nonresident alien individual partners as a result of the withholding statements, you must treat them as the payees of the interest. You do not need to determine the chapter﻿ ﻿4 status of the partnership because the payment is not a withholdable payment.

Example 3. You make a payment of U.S. source dividends to a withholding foreign partnership. Assume that the payment is subject to chapter﻿ ﻿3 withholding and is not a withholdable payment. The partnership has two partners, both foreign corporations. You can reliably associate the payment with a valid Form W-8IMY from the partnership on which it represents that it is a withholding foreign partnership. You must treat the partnership as the payee of the dividends for purposes of both chapter﻿ ﻿3 and chapter﻿ ﻿4, and you must determine the chapter﻿ ﻿4 status of the partnership.

Foreign simple and grantor trust.

A trust is foreign unless it meets both of the following tests.

A court within the United States is able to exercise primary supervision over the administration of the trust.

One or more U.S. persons have the authority to control all substantial decisions of the trust.

In most cases, a foreign simple trust is a foreign trust that is required to distribute all of its income annually. A foreign grantor trust is a foreign trust that is treated as a grantor trust under sections 671 through 679.

The payees of a payment made to a foreign simple trust are the beneficiaries of the trust. The payees of a payment made to a foreign grantor trust are the owners of the trust. However, the payee is the foreign simple or grantor trust itself if the trust is claiming treaty benefits on the basis that it is not fiscally transparent and that it meets all the other requirements for claiming treaty benefits. If the beneficiaries or owners are themselves flow-through entities or foreign intermediaries, you apply the payee determination rules to that beneficiary or owner to determine the payees.

Example. A foreign simple trust has three beneficiaries: two nonresident alien individuals and a U.S. citizen. You make a payment of U.S. source interest to the foreign trust. Assume that the payment is subject to chapter﻿ ﻿3 withholding but is not a withholdable payment. The foreign trust gives you a Form W-8IMY with which it associates Forms W-8BEN from the nonresident aliens and a Form W-9 from the U.S. citizen. The trust also gives you a complete withholding statement that enables you to associate the interest payment with the forms provided by each beneficiary. You must treat all three beneficiaries as the payees of their part of the interest payment as if the payment were made directly to them. Report the payment to the nonresident aliens on Forms 1042-S. Report the payment to the U.S. citizen on Form 1099-INT. You do not need to establish the chapter﻿ ﻿4 status of the trust because the payment is not a withholdable payment.

Fiscally transparent entities claiming treaty benefits.

For purposes of claiming treaty benefits, if an entity is fiscally transparent for U.S. tax purposes (for example, a disregarded entity or flow-through entity for U.S. tax purposes) and the entity is or is treated as a resident of a treaty country, it will derive the item of income and may be eligible for treaty benefits. In such case, the entity is the payee for chapter﻿ ﻿3 purposes. It does not need to be taxed by the treaty country on such item, but the item must be accounted for as the entity's income, not the interest holders' income, under the law of the treaty country whose treaty it is invoking. It must also meet any other requirements for claiming benefits, including the provisions of the limitation on benefits article, if any, in the treaty. The entity should provide a Form W-8BEN-E to the U.S. withholding agent in such circumstances. If, for chapter﻿ ﻿3 purposes, the payee is a foreign corporation or other non-flow-through entity for U.S. tax purposes, it is nonetheless not entitled to claim treaty benefits if the entity is fiscally transparent in its country of residence (that is, a foreign reverse hybrid). Instead, any interest holder resident in that country will derive its allocable share of the items of income paid to the foreign reverse hybrid and may be eligible for benefits. If an interest holder is a resident of a third country, the interest holder may claim treaty benefits under the third country’s treaty with the United States, if any, only if the foreign reverse hybrid is fiscally transparent under the laws of the third country. If an interest holder is entitled to treaty benefits under a treaty between the United States and its country of residence, the payee may provide a Form W-8IMY and attach Form W-8BEN or W-8BEN-E from any interest holder that claims treaty benefits on such income.

The determination of whether an entity is fiscally transparent is made on an item of income basis (that is, the determination is made separately for interest, dividends, royalties, etc.). An interest holder in an entity makes the determination by applying the laws of the jurisdiction where the interest holder is organized, incorporated, or otherwise considered a resident. An entity is considered to be fiscally transparent with respect to the income to the extent the laws of that jurisdiction require the interest holder to separately take into account on a current basis the interest holder's share of the income, whether or not distributed to the interest holder, and the character and source of the income to the interest holder are determined as if the income was realized directly from the source that paid it to the entity. Subject to the Standards of Knowledge for Purposes of Chapter 3 and Standards of Knowledge for Purposes of Chapter 4, discussed later, you generally make the determination that an entity is fiscally transparent based on a Form W-8IMY provided by the entity.

For chapter﻿ ﻿3 purposes, the payees of a payment made to a fiscally transparent entity are the interest holders of the entity if the interest holders are claiming treaty benefits with respect to the payment.

For chapter﻿ ﻿4 purposes, if you are making a withholdable payment to a fiscally transparent entity, you must apply the rules of chapter﻿ ﻿4 to determine the payee (applying the rules described earlier) and whether chapter﻿ ﻿4 withholding applies to the payment based on the payee’s chapter﻿ ﻿4 status. Thus, chapter﻿ ﻿4 withholding may apply to a withholdable payment made to a fiscally transparent entity based on the chapter﻿ ﻿4 status of the entity even when the interest holders in the entity would be eligible for reduced withholding under an income tax treaty with respect to the payment. Treaty benefits may be granted to the interest holder when the payment made is not subject to chapter﻿ ﻿4 withholding based on the chapter﻿ ﻿4 status of both the entity and the interest holder.

Example. Entity A is a business organization organized under the laws of country X that has an income tax treaty in force with the United States. A has two interest holders, B and C. B is a corporation organized under the laws of country Y. C is a corporation organized under the laws of country Z. Both countries Y and Z have an income tax treaty in force with the United States.

A receives royalty income from U.S. sources that is not effectively connected with the conduct of a trade or business in the United States and that is not a withholdable payment. The chapter﻿ ﻿4 status of A does not need to be determined because the payment is not a withholdable payment.

For U.S. income tax purposes, A is treated as a partnership. Country X treats A as a partnership and requires the interest holders in A to separately take into account on a current basis their respective shares of the income paid to A even if the income is not distributed. The laws of country X provide that the character and source of the income to A's interest holders are determined as if the income were realized directly from the source that paid it to A. Accordingly, A is fiscally transparent in its jurisdiction, country X.

B and C are not fiscally transparent under the laws of their respective countries of incorporation. Country Y requires B to separately take into account on a current basis B's share of the income paid to A, and the character and source of the income to B is determined as if the income were realized directly from the source that paid it to A. Accordingly, A is fiscally transparent for that income under the laws of country Y, and B is treated as deriving its share of the U.S. source royalty income for purposes of the U.S.–Y income tax treaty. Country Z, on the other hand, treats A as a corporation and does not require C to take into account its share of A's income on a current basis whether or not distributed. Therefore, A is not treated as fiscally transparent under the laws of country Z. Accordingly, C is not treated as deriving its share of the U.S. source royalty income for purposes of the U.S.–Z income tax treaty.

Foreign Intermediaries

In most cases, if you make payments to a foreign intermediary, the payees are the persons for whom the foreign intermediary collects the payment, such as account holders or customers, not the intermediary itself. This rule applies for purposes of chapter﻿ ﻿3 withholding and for Form 1099 reporting and backup withholding and chapter﻿ ﻿4 withholding, provided the intermediary is not a nonparticipating FFI to which you make a withholdable payment to which chapter﻿ ﻿4 withholding applies. You may, however, treat a QI that has assumed primary withholding responsibility for a payment as the payee, and you are not required to withhold.

An intermediary is a custodian, broker, nominee, or any other person that acts as an agent for another person. A foreign intermediary is either a QI or an NQI. In most cases, you determine whether an entity is a QI or an NQI based on the representations the intermediary makes on Form W-8IMY.

For purposes of chapter﻿ ﻿3, you must determine whether the customers or account holders of a foreign intermediary are U.S. or foreign persons and, if the account holder or customer is foreign, whether a reduced rate of, or exemption from, chapter﻿ ﻿3 withholding applies. For purposes of chapter﻿ ﻿4, you must generally determine the chapter﻿ ﻿4 status of the account holders of a foreign intermediary if the payment is a withholdable payment. The determination for chapter﻿ ﻿3 purposes is not required when withholding applies under chapter﻿ ﻿4 (that is, when the chapter﻿ ﻿4 status of the foreign intermediary is a nonparticipating FFI or an entity or branch treated as a nonparticipating FFI under an applicable IGA). You make these determinations based on the foreign intermediary's Form W-8IMY and associated information and documentation. If you do not have all of the information or documentation that is required to reliably associate a payment with a payee, you must apply the presumption rules of chapter﻿ ﻿3, and must apply the presumption rules of chapter﻿ ﻿4 to the foreign intermediary if the chapter﻿ ﻿4 status of the entity (when required) cannot be determined. See Documentation and Presumption Rules, later.

Special rule for chapter﻿ ﻿4.

For purposes of chapter﻿ ﻿4, a foreign person acting as an intermediary is generally not the payee if the foreign person is:

An NFFE, unless the NFFE is a QI that has assumed primary chapters 3 and 4 withholding responsibility; or

A participating FFI, deemed-compliant FFI, or restricted distributor, unless such entity is a QI that has assumed primary chapters 3 and 4 withholding responsibility.

 If you make a withholdable payment to one of the types of entities described above, the payee is the person for whom the agent or intermediary collects the payment.

Nonqualified intermediary (NQI).

An NQI is any intermediary that is a foreign person and that is not a QI. The payees of a payment made to an NQI for both chapter﻿ ﻿3 and chapter﻿ ﻿4 purposes are the customers or account holders on whose behalf the NQI is acting.

Example. You make a payment of interest to a foreign bank that is an NQI. Assume the payment is subject to chapter﻿ ﻿3 withholding but is not a withholdable payment. The bank gives you a Form W-8IMY, the Forms W-8BEN of two foreign persons, and a Form W-9 from a U.S. person for whom the bank is collecting the payments. The bank also associates with its Form W-8IMY a withholding statement on which it allocates the interest payment and provides all other information required to be on the withholding statement. The account holders are the payees of the interest payment. You should report the part of the interest paid to the two foreign persons on Forms 1042-S and the part paid to the U.S. person on Form 1099-INT. You do not need to establish the chapter﻿ ﻿4 status of the NQI because the payment is not a withholdable payment.

Qualified intermediary (QI).

A QI is generally a foreign intermediary (or foreign branch of a U.S. intermediary) that has entered into a QI agreement (discussed later) with the IRS. Certain entities may also act as QIs even when they are not intermediaries. You may treat a QI as a payee to the extent it assumes primary chapters 3 and 4 withholding responsibility or primary Form 1099 reporting and backup withholding responsibility for a payment. In this situation, the QI is required to withhold the tax. You can determine whether a QI has assumed responsibility from the Form W-8IMY provided by the QI.

A payment to a QI to the extent it does not assume primary chapters 3 and 4 withholding responsibility is considered made to the person on whose behalf the QI acts. If a QI does not assume Form 1099 reporting and backup withholding responsibility, you must report on Form 1099 and, if applicable, backup withhold as if you were making the payment directly to the U.S. person. See Qualified Intermediary (QI), later, for a discussion of withholding rate pools and when a QI may include a U.S. nonexempt recipient in a U.S. payee pool.

Additionally, starting January 1, 2023, a QI may also assume primary withholding responsibilities with respect to PTP distributions (including withholding under section 1446(a)) and transfers of PTP interests for section 1446(f) purposes. For discussion of those provisions, see Publicly Traded Partnership Distributions (PTP Distributions) and Section 1446(f): PTP Interests, later.

Qualified derivatives dealers (QDDs).

For the definition of QDD, see Qualified derivatives dealer (QDD), later. For QDD liability, see Amounts paid to QDDs, later.

Branches of financial institutions.

Branches of financial institutions are not permitted to operate as QIs if they are located outside of countries having approved “know-your-customer” (KYC) rules. The countries with approved KYC rules are listed at IRS.gov/Businesses/International-Businesses/List-of-Approved-KYC-Rules.

QI agreement.

FFIs, foreign clearing organizations, and foreign branches of U.S. financial institutions or clearing organizations can enter into an agreement with the IRS to become a QI. An eligible entity (as defined in Regulations section 1.1441﻿-﻿1(e)(6)(ii)) may also enter into a QI agreement for purposes of becoming a QDD. To enter into a QI agreement, an FFI must have a chapter﻿ ﻿4 status as:

A participating FFI (including a reporting Model 2 FFI);

A registered deemed-compliant FFI (including a reporting Model 1 FFI and a nonreporting Model 2 FFI treated as registered deemed-compliant); or

An FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and reporting requirements with respect to U.S. accounts as those applicable to a registered deemed-compliant FFI (a “registered deemed-compliant Model 1 IGA FFI”).

Certain foreign corporations that are NFFEs acting on behalf of persons other than shareholders or foreign central banks of issue may also apply to the IRS to become QIs.

See Revenue Procedure 2022﻿-﻿43, 2022﻿-﻿52 I.R.B. 570, available at IRS.gov/irb/2022﻿-﻿43_IRB#RP-2022﻿-﻿52, for more information on becoming a QI.

An entity may apply for QI status at IRS.gov/Businesses/Corporations/Qualified-Intermediary-System.

Note. A QI (other than an NFFE acting on behalf of persons other than shareholders and certain central banks) must also register at IRS.gov/FATCA to obtain its applicable chapter﻿ ﻿4 status and global intermediary identification number (GIIN).

Documentation requirements.

For documentation requirements applicable to payments made to QIs, for chapters 3 and 4 purposes, see Responsibilities and Documentation, discussed later under Qualified Intermediary (QI).

Reporting requirements.

For the reporting requirements of QIs, see Form 1042-S reporting and Collective refund procedures, discussed later under Qualified Intermediary (QI).

U.S. branches of foreign banks and foreign insurance companies.

Special rules apply to a U.S. branch of a foreign bank subject to Federal Reserve Board supervision or a foreign insurance company subject to state regulatory supervision. If you make a payment of an amount subject to chapter﻿ ﻿3 withholding or a withholdable payment to a U.S. branch of a foreign bank or insurance company that agrees to be treated as a U.S. person, you may treat the U.S. branch as a payee that is a U.S. person, provided you receive a Form W-8IMY from the U.S. branch that you can reliably associate with the payment. If you treat the branch as a U.S. person, you are not required to withhold on an amount subject to chapter﻿ ﻿3 withholding or a withholdable payment. Even though you agree to treat the branch as a U.S. person, you must report the payments made to the branch on Form 1042-S.

A territory financial institution is a financial institution as defined for chapter﻿ ﻿4 purposes (except when it is an investment entity that is not also a depository institution, custodial institution, or specified insurance company) incorporated or organized under the laws of a territory of the United States. A territory financial institution that is an intermediary or flow-through entity is treated as a U.S. branch that agrees to be treated as a U.S. person. The special rules described in this section apply to a territory financial institution.

If you are paying a U.S. branch an amount that is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment, treat the payment as made to a foreign person, irrespective of any agreement to treat the branch as a U.S. person for such amounts. Consequently, amounts not subject to chapter﻿ ﻿3 withholding and that are not withholdable payments that are paid to a U.S. branch are not subject to Form 1099 reporting or backup withholding.

Alternatively, a U.S. branch may provide you with a Form W-8IMY with which it associates the documentation of the persons on whose behalf it acts. In this situation, the U.S. branch is not treated as a U.S. person, and the payees are the persons on whose behalf the branch acts provided you can reliably associate the payment with valid documentation from those persons. See Nonqualified Intermediary (NQI) under Documentation, later.

If you cannot reliably associate the payment with a Form W-8IMY from the U.S. branch but you have obtained an employer identification number (EIN) for the branch, you should treat the payment as a payment to a foreign person of income that is effectively connected with the conduct of a trade or business in the United States. If you cannot reliably associate the payment with a Form W-8IMY from the U.S. branch and you have not obtained an EIN for the branch, you should treat the payment as a payment to a foreign person of income that is not effectively connected with the conduct of a trade or business in the United States.

Withholding foreign partnership and withholding foreign trust.

A withholding foreign partnership (WP) is any foreign partnership that has entered into a WP agreement with the IRS and is acting in that capacity with respect to its partners. A withholding foreign trust (WT) is a foreign simple or grantor trust that has entered into a WT agreement with the IRS and is acting in that capacity with respect to its owners and beneficiaries. In order to enter into a WP or WT agreement with the IRS, a WP or WT that is an FFI must have chapter﻿ ﻿4 status as a:

Participating FFI (including a reporting Model 2 FFI),

Registered-deemed compliant FFI (including a reporting Model 1 FFI and a nonreporting Model 2 FFI treated as registered deemed compliant),

Registered deemed-compliant Model 1 IGA FFI, or

Retirement fund.

A WP or WT that is an NFFE may also enter into a WP or WT agreement with the IRS. An FFI that is a foreign reverse hybrid entity may apply to enter into a WP agreement, provided that the FFI is a participating FFI, a registered deemed-compliant FFI, or a registered deemed-compliant Model 1 IGA FFI.

A WP or WT must act in that capacity for reportable amounts that are distributed to, or included in the distributive share of, its direct partners, beneficiaries, or owners. A WP or WT may act in that capacity for reportable amounts that are distributed to, or included in the distributive share of, its indirect partners, beneficiaries, or owners that are not U.S. nonexempt recipients (except for a U.S. nonexempt recipient that is included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees). A WP or WT acting in that capacity must assume primary chapters 3 and 4 withholding responsibility for payments subject to withholding and must assume certain reporting requirements with respect to its U.S. partners, beneficiaries, and owners. You may treat a WP or WT as a payee if it has provided you with documentation (discussed later) that represents that it is acting as a WP or WT for such amounts.

See Revenue Procedure 2017﻿-﻿21, 2017﻿-﻿6 I.R.B. 791, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21, for more information on becoming a WP or WT.

WP agreement and WT agreement.

The WP agreement and WT agreement and the application procedures for the agreements are in Revenue Procedure 2017﻿-﻿21, earlier. An entity applies for WP or WT status at IRS.gov/Businesses/Corporations/Qualified-Intermediary-System. The WP or WT will be assigned a WP-EIN or WT-EIN to be used only when acting in that capacity.

 A WP or WT that is an FFI (other than a retirement fund) must also register with the IRS at IRS.gov/Businesses/Corporations/FATCA-Foreign-Financial-Institution-Registration-System to obtain its applicable chapter﻿ ﻿4 status and GIIN.

Documentation.

A WP or WT must provide you with a Form W-8IMY that certifies that the WP or WT is acting in that capacity and provides all other information and certifications required by the form, including its WP-EIN or WT-EIN. When you make a withholdable payment to a WP or WT, the WP or WT generally may also provide a certificate of a chapter﻿ ﻿4 status permitted of a WP or WT (and GIIN, if applicable). The WP or WT, when acting in such capacity, is not required to provide a withholding statement and is not required to disclose any information regarding its direct partners, beneficiaries, or owners, or any indirect partner, beneficiary, or owner for which it acts as a WP or WT that is not a U.S. nonexempt recipient (except for a U.S. nonexempt recipient included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees). A chapter﻿ ﻿4 withholding rate pool also means a payment of a single type of income that is allocated to U.S. payees when the WP provides the certification required on Form W-8IMY for allocating payments to this pool. When a WP or WT is not acting as a WP or WT with respect to an amount distributed to, or included in the distributive share of, an indirect partner, beneficiary, or owner, it must provide you with a nonwithholding foreign partnership or nonwithholding foreign trust withholding certificate on a Form W-8IMY and documentation for its indirect partners, beneficiaries, and owners that are not included in a chapter﻿ ﻿4 withholding rate pool.

Foreign Persons

Rules relevant to chapters 3 and 4.

A payee is subject to withholding only if it is a foreign person. A foreign person includes a nonresident alien individual, foreign corporation, foreign partnership, foreign trust, foreign estate, and any other person that is not a U.S. person. It also includes a foreign branch of a U.S. financial institution if the foreign branch is a QI. In most cases, the U.S. branch of a foreign corporation or partnership is treated as a foreign person. The determination of whether a foreign person is treated as an entity (that is, as opposed to being disregarded as separate from its owner), or as a foreign corporation, foreign partnership, or foreign trust is made under U.S. tax rules.

If an amount is both a withholdable payment and an amount subject to chapter﻿ ﻿3 withholding and the withholding agent withholds under chapter﻿ ﻿4, it may credit this amount against any tax due under chapter﻿ ﻿3.

Nonresident alien.

A nonresident alien is an individual who is not a U.S. citizen or a resident alien. A resident of a foreign country under the residence article of an income tax treaty is a nonresident alien individual for purposes of withholding.

Married to U.S. citizen or resident alien.

Nonresident alien individuals married to U.S. citizens or resident aliens may choose to be treated as resident aliens for certain income tax purposes. However, these individuals are still subject to the chapter﻿ ﻿3 withholding rules that apply to nonresident aliens for all income except wages. Wages paid to these individuals are subject to graduated withholding. See Wages Paid to Employees—Graduated Withholding, later.

Resident alien.

A resident alien is an individual who is not a citizen or national of the United States and who meets either the green card test or the substantial presence test for the calendar year.

Green card test.  An alien is a resident alien if the individual was a lawful permanent resident of the United States at any time during the calendar year. This is known as the green card test because these aliens hold immigrant visas (also known as green cards).

Substantial presence test.  An alien is considered a resident alien if the individual meets the substantial presence test for the calendar year. Under this test, the individual must be physically present in the United States on at least:

31 days during the current calendar year; and

183 days during the current year and the 2 preceding years, counting all the days of physical presence in the current year, but only ﻿ ﻿1﻿/﻿3 the number of days of presence in the first preceding year, and only ﻿ ﻿1﻿/﻿6 the number of days in the second preceding year.

In most cases, the days the alien is in the United States as a teacher, student, or trainee on an “F,” “J,” “M,” or “Q” visa are not counted. This exception is for a limited period of time.

For more information on resident and nonresident status, the tests for residence, and the exceptions to them, see Pub. 519.

Note.

If your employee is late in notifying you that their status changed from nonresident alien to resident alien, you may have to make an adjustment to Form 941 if that employee was exempt from withholding of social security and Medicare taxes as a nonresident alien. For more information on making adjustments, see chapter﻿ ﻿13 of Pub. 15 (Circular E) .

Resident of a U.S. territory.

A bona fide resident of Puerto Rico, the U.S. Virgin Islands (USVI), Guam, the Commonwealth of the Northern Mariana Islands (CNMI), or American Samoa who is not a U.S. citizen or a U.S. national is treated as a nonresident alien for the withholding rules explained here. A bona fide resident of a territory is someone who:

Meets the presence test,

Does not have a tax home outside the territory, and

Does not have a closer connection to the United States or to a foreign country than to the territory.

For more information, see Pub. 570.

Foreign corporations.

A foreign corporation is one that does not fit the definition of a domestic corporation. A domestic corporation is one that was created or organized in the United States or under the laws of the United States, any of its states, or the District of Columbia.

Guam or CNMI corporations.

A corporation created or organized in, or under the laws of, Guam or the CNMI is not considered a foreign corporation for the purpose of withholding tax for the tax year if:

At all times during the tax year less than 25% in value of the corporation's stock is owned, directly or indirectly, by foreign persons; and

At least 20% of the corporation's gross income is derived from sources within Guam or the CNMI for the 3-year period ending with the close of the preceding tax year of the corporation (or the period the corporation has been in existence, if less).

Note.

The provisions discussed below under USVI and American Samoa corporations will apply to Guam or CNMI corporations when an implementing agreement is in effect between the United States and that territory.

USVI and American Samoa corporations.

A corporation created or organized in, or under the laws of, the USVI or American Samoa is not considered a foreign corporation for the purposes of withholding tax for the tax year if:

At all times during the tax year less than 25% in value of the corporation's stock is owned, directly or indirectly, by foreign persons;

At least 65% of the corporation's gross income is effectively connected with the conduct of a trade or business in the USVI, American Samoa, Guam, the CNMI, or the United States for the 3-year period ending with the close of the tax year of the corporation (or the period the corporation or any predecessor has been in existence, if less); and

No substantial part of the income of the corporation is used, directly or indirectly, to satisfy obligations to a person who is not a bona fide resident of the USVI, American Samoa, Guam, the CNMI, or the United States.

Foreign private foundations.

A private foundation that was created or organized under the laws of a foreign country is a foreign private foundation. Gross investment income from sources within the United States paid to a qualified foreign private foundation is subject to withholding at a 4% rate (unless exempted by a treaty) rather than the ordinary statutory 30% rate.

Other foreign organizations, associations, and charitable institutions.

An organization may be exempt from income tax under section 501(a) and chapter﻿ ﻿4 withholding tax even if it was formed under foreign law. In most cases, you do not have to withhold tax on payments of income to these foreign tax-exempt organizations unless the IRS has determined that they are foreign private foundations.

Payments to these organizations, however, must be reported on Form 1042-S if the payment is subject to chapter﻿ ﻿3 withholding, even though no tax is withheld.

You must withhold tax on the unrelated business income (as described in Pub. 598) of foreign tax-exempt organizations in the same way that you would withhold tax on similar income of nonexempt organizations when the organization does not provide you a Form W-8ECI to certify that the income is effectively connected with a U.S. trade or business of the organization.

U.S. branches of foreign persons.

In most cases, a payment to a U.S. branch of a foreign person is a payment made to the foreign person. However, you may treat payments to U.S. branches of foreign banks and foreign insurance companies (discussed earlier) that are subject to U.S. regulatory supervision as payments made to a U.S. person, if you and the U.S. branch have agreed to do so, and if their agreement is evidenced by a withholding certificate, Form W-8IMY. For this purpose, a territory financial institution acting as an intermediary or that is a flow-through entity is treated as a U.S. branch.

Additional Rules Specific to Chapter 4

A payee may be subject to chapter﻿ ﻿4 withholding only if it is a foreign entity. A foreign entity for chapter﻿ ﻿4 purposes means any entity that is not a U.S. person and includes a territory entity as defined in Regulations section 1.1471﻿-﻿1(b)(129).

A foreign entity is subject to chapter﻿ ﻿4 withholding if it is a nonparticipating FFI or a passive NFFE that does not provide the appropriate certification regarding its substantial U.S. owners. A nonparticipating FFI is an FFI other than a participating FFI, deemed-compliant FFI, or exempt beneficial owner. See Definitions, later, for the definitions of these terms.

A passive NFFE is:

 An NFFE other than a publicly traded corporation,

Certain affiliated entities related to a publicly traded corporation,

Certain territory entities,

Active NFFEs, or

Excluded FFIs.

For chapter﻿ ﻿4 purposes, a U.S. person does not include a foreign insurance company that has made an election under section 953(d) if it is a specified insurance company and is not licensed to do business in any state. Notwithstanding the foregoing, a withholding agent should treat such entity as a U.S. person for purposes of documenting the entity’s status for purposes of chapters 3 and 4.

Documentation

Documentation for Chapter 3

For purposes of chapter﻿ ﻿3, in most cases, you must withhold 30% from the gross amount paid to a foreign payee unless you can reliably associate the payment with valid documentation that establishes either of the following.

The payee is a U.S. person.

The payee is a foreign person that is the beneficial owner of the income and is entitled to a reduced rate of withholding under the Internal Revenue Code, or an applicable income tax treaty.

For rules related to when a withholding agent may rely on an otherwise valid withholding certificate received electronically from a third-party repository, see Regulations section 1.1441﻿-﻿1(e)(4)(iv)(E).

 If withholding is applied under chapter﻿ ﻿4 on a payment, no withholding will be required on such payment under chapter﻿ ﻿3.

Documentation for Chapter 4

If you make a withholdable payment, you must determine the chapter﻿ ﻿4 status of payees, beneficial owners, intermediaries, and flow-through entities receiving the payment to the extent required for chapter﻿ ﻿4 purposes. You must also determine the chapter﻿ ﻿4 status of persons that own an interest in an entity receiving a withholdable payment that you treat as an owner-documented FFI, provided you are either a U.S. financial institution, participating FFI, or reporting Model 1 FFI. To establish chapter﻿ ﻿4 status, you must generally obtain a valid withholding certificate or documentary evidence that you can reliably associate with the payment. If you make a payment to a passive NFFE, you must obtain either a certification that the NFFE does not have any substantial U.S. owners, or the name, address, and TIN of each substantial U.S. owner of the NFFE (or, under an applicable IGA, each controlling person that is a specified U.S. person).

You can reliably associate a payment with a Form W-8 for purposes of establishing a payee’s chapter﻿ ﻿4 status in most cases if, prior to the payment, you:

Obtain a valid form that contains the information required for chapter﻿ ﻿4 purposes,

Can reliably determine how much of the payment relates to the form, and

Have no actual knowledge or reason to know that any of the information, certifications, or statements in, or associated with, the form is unreliable or incorrect for chapter﻿ ﻿4 purposes.

 See Standards of Knowledge for Purposes of Chapter 4, later, for the reason to know standards that apply for chapter﻿ ﻿4 purposes.

 For the requirements for documenting specific chapter﻿ ﻿4 statuses of persons receiving withholdable payments, see Regulations section 1.1471﻿-﻿3(d). For rules related to when a withholding agent may rely on an otherwise valid withholding certificate received electronically from a third-party repository, see Regulations section 1.1441﻿-﻿1(e)(4)(iv)(E). Also see Regulations section 1.1471﻿-﻿3(d) for the extent to which a withholding agent may rely on documentary evidence (other than a Form W-8) to establish the chapter﻿ ﻿4 status of an entity payee, including the forms of documentary evidence permitted for each specific chapter﻿ ﻿4 status. For the requirements for documentary evidence, see Regulations section 1.1471﻿-﻿3(c)(5). If you make a withholdable payment to an entity payee and cannot reliably associate the payment with a valid withholding certificate or valid documentary evidence, you must apply the chapter﻿ ﻿4 presumption rules described in Presumption Rules for Chapter 4, later.

You may rely on the same documentation for purposes of both chapters 3 and 4 provided the documentation is sufficient to meet the requirements of each chapter. For example, you may use a Form W-8BEN-E to obtain both the chapter﻿ ﻿3 and chapter﻿ ﻿4 statuses of an entity providing the form.

Additional Documentation Rules Applicable to Chapters 3 and 4

In most cases, you must reliably associate the payment with valid documentation to apply reduced withholding and must get the documentation before you make the payment. The documentation is not valid if you know, or have reason to know, that it is unreliable or incorrect. See Standards of Knowledge for Purposes of Chapter 3 and Standards of Knowledge for Purposes of Chapter 4, later.

If you cannot reliably associate a payment with valid documentation, you must use the presumption rules discussed later to determine the rate of withholding. For example, if you do not have documentation or you cannot determine the part of a payment that is allocable to specific documentation, you must use the presumption rules of section 1441.

The specific types of documentation are discussed in this section. However, see Withholding on Specific Income, later, as well as the instructions to the particular forms. As the withholding agent, you may also want to see the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY.

Sections 1446(a) and (f) withholding.

Under section 1446(a), a partnership must withhold tax on its ECTI allocable to a foreign partner or, for a partnership that is a PTP, the PTP or a nominee for a PTP distribution must withhold on the amount of the distribution subject to section 1446(a) withholding made to a foreign partner. In most cases, a partnership (or nominee when applicable) determines if a partner is a foreign partner and the partner's tax classification based on the withholding certificate provided by the partner. This is the same documentation that is provided for chapter﻿ ﻿3 withholding, but may require additional information, as discussed under each of the forms in this section.

For information on section 1446(f) withholding, go to Section 1446(f) Withholding, later.

Documentation rule for joint payees.

If you make a payment to joint payees (such as holders of a joint account), you need to get documentation from each payee. If you make a payment to joint payees and cannot reliably associate the payment with documentation from all of the payees, you must generally presume the payment is made to an unidentified U.S. person. If the payment is a withholdable payment and any of the payees do not appear, by name or other information in the account file, to be an individual, you must treat the entire amount as a payment made to an undocumented foreign person. However, if one of the joint payees has provided you with a Form W-9, you must treat the payment as made to that payee.

Form W-9.

In most cases, you can treat the payee as a U.S. person if the payee gives you a Form W-9. The Form W-9 can be used only by a U.S. person and must contain the payee's TIN. U.S. persons are not subject to chapter﻿ ﻿3 withholding (or withholding under section 1446(a) or (f)), but may be subject to:

Form 1099 reporting and backup withholding under section 3406,

Reporting as a U.S. account holder of a participating FFI or registered deemed-compliant FFI, and

Classification as a recalcitrant account holder of a participating FFI or registered deemed-compliant FFI for chapter﻿ ﻿4 purposes (including chapter﻿ ﻿4 withholding) when the FFI is unable to report the information required with respect to the account holder.

Forms W-8.

In most cases, a foreign payee of the income should give you a form in the Form W-8 series.

If certain requirements are met, the foreign person can give you documentary evidence, rather than a Form W-8 for chapter﻿ ﻿3 or 4 purposes. You can rely on documentary evidence in lieu of a Form W-8 for an amount paid outside the United States with respect to an offshore obligation. Refer to Offshore obligations, later, to determine whether a payment qualifies as such a payment.

Other documentation.

Other documentation may be required to claim an exemption from, or a reduced rate of, chapter﻿ ﻿3 withholding on pay for personal services. The nonresident alien individual may have to give you a Form W-4 or a Form 8233. These forms are discussed in Pay for Personal Services Performed under Withholding on Specific Income, later.

Beneficial Owners

If all the appropriate requirements have been established on a Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, or, if applicable, on documentary evidence, you can treat the payee as a foreign beneficial owner.

Claiming treaty benefits for purposes of chapter﻿ ﻿3.

You may apply a reduced rate of withholding under chapter﻿ ﻿3 to a foreign person that provides a Form W-8 claiming a reduced rate of withholding under an income tax treaty only if the person provides a U.S. or foreign TIN and certifies that:

It is a resident of a treaty country;

It is the beneficial owner of the income;

If it is an entity, it derives the income within the meaning of section 894 (it is not fiscally transparent); and

It meets any of the applicable limitation on benefits tests contained in the treaty and specifies the test under which it qualifies for benefits.

If the payment you make is a withholdable payment to an entity, a requirement to withhold under chapter﻿ ﻿4 may apply based on the chapter﻿ ﻿4 status of the payee regardless of whether a claim of treaty benefits may apply to such payee or other person receiving the income.

An entity derives income for which it is claiming treaty benefits only if the entity is not treated as fiscally transparent for that income. See Fiscally transparent entities claiming treaty benefits, discussed earlier under Flow-Through Entities.

Limitations on benefits (LOB) provisions in income tax treaties generally prevent third-country residents (unless the treaty contains a derivative benefits rule) and others that do not have a substantial nexus to the treaty country from obtaining treaty benefits. For example, a foreign corporation may not be entitled to a reduced rate of withholding unless a minimum percentage of its owners are citizens or residents of the United States or the treaty country. Foreign entities that are residents of a country whose income tax treaty with the United States contains an LOB article are eligible for treaty benefits only if they satisfy one of the objective tests under the LOB article or obtain a favorable discretionary determination from the U.S. competent authority.

The exemptions from, or reduced rates of, U.S. tax vary under each treaty. You must check the provisions of the tax treaty that apply. See Tax Treaties, later, for information on how to access tax treaties.

If you know, or have reason to know, that an owner of income is not eligible for treaty benefits claimed or if the United States does not have an income tax treaty in force with that country, you may not reduce the rate of withholding. You are not, however, responsible for misstatements on a Form W-8, documentary evidence, or statements accompanying documentary evidence for which you did not have actual knowledge, or reason to know, that the statements were incorrect. Certain withholding agents, such as financial institutions, have limited reason to know requirements for this purpose. See Regulations section 1.1441﻿-﻿7(b) for these requirements.

Exceptions to TIN requirement.

A foreign person does not have to provide a U.S. or foreign TIN to claim a reduced rate of withholding under a treaty for chapter﻿ ﻿3 purposes if the requirements for the following exceptions are met.

Income from marketable securities (discussed next).

Unexpected payments to an individual (discussed under U.S. or Foreign TINs, later).

The allowance to provide a foreign TIN (rather than a U.S. TIN) does not apply to a payment to compensate an individual for personal services.

See U.S. or Foreign TINs, later, for when a foreign person is required to provide a foreign TIN for purposes other than making a treaty claim.

Marketable securities.

A Form W-8 provided to claim treaty benefits does not need a U.S. or foreign TIN if the foreign beneficial owner is claiming the benefits on income from marketable securities for chapter﻿ ﻿3 purposes. For this purpose, income from a marketable security consists of the following items.

Dividends and interest from stocks and debt obligations that are actively traded.

Dividends from any redeemable security issued by an investment company registered under the Investment Company Act of 1940 (mutual fund).

Dividends, interest, or royalties from units of beneficial interest in a unit investment trust that are (or were upon issuance) publicly offered and are registered with the SEC under the Securities Act of 1933.

Income related to loans of any of the above securities.

Offshore obligations.

An offshore obligation is an account maintained at an office or branch of a bank or other financial institution located outside the United States or an obligation, contract, or other instrument with respect to which the payer of the payment is either engaged in business as a broker or dealer in securities or a financial institution that engages in significant activities at an office or branch located outside the United States.

A payment is made outside the United States if you complete the acts necessary to effect the payment outside the United States. However, an amount paid by a bank or other financial institution on a deposit or account will usually be treated as paid at the branch or office where the amount is credited unless the other requirements of Regulations section 1.6049﻿-﻿5(e)(2) are met with respect to the branch or office, unless the amount is collected by the financial institution as an agent of the payee.

 If a payment is made outside the United States with respect to an offshore obligation, a payee may give you documentary evidence, rather than a Form W-8, to establish that the payee is a foreign person. See Regulations section 1.6049﻿-﻿5(c)(1) for the requirements for documentary evidence for offshore obligations. For accounts opened on or after July 1, 2014, through December 31, 2014, you may use the rules regarding the use of documentary evidence under Regulations sections 1.6049﻿-﻿5(c)(1) and (c)(4) as in effect prior to the issuance of the temporary regulations.

You may rely on documentary evidence given to you by an NQI or a flow-through entity with its Form W-8IMY. This rule applies even though you make the payment to an NQI or flow-through entity in the United States. In most cases, the NQI or flow-through entity that gives you documentary evidence will also have to give you a withholding statement, discussed later.

Documentary evidence.

You may apply a reduced rate of withholding to income from marketable securities (discussed earlier) paid outside the United States for chapter﻿ ﻿3 purposes with respect to an offshore obligation if the beneficial owner gives you documentary evidence in place of a Form W-8. To claim treaty benefits, the documentary evidence must be one of the following.

A certificate of residence that:

Is issued by a tax official of the treaty country of which the foreign beneficial owner claims to be a resident,

States that the person has filed its most recent income tax return as a resident of that country, and

Is issued within 3 years before it is presented to you.

Documentation for an individual that:

Includes the individual's name, address, and photograph;

Is an official document issued by an authorized governmental body; and

Is issued no more than 3 years prior to being presented to you.

Documentation for an entity that:

Includes the name of the entity,

Includes the address of its principal office in the treaty country, and

Is an official document issued by an authorized governmental body.

In addition to the documentary evidence, a foreign beneficial owner that is an entity must provide a statement that it derives the income for which it claims treaty benefits and that it meets one or more of the tests set forth in a limitation on benefits article, if any (or similar provision), contained in the applicable treaty and must identify the specific test in the limitation on benefits article under which it qualifies for benefits. In the case of a withholdable payment made to an entity, you must also obtain the applicable documentation to establish that withholding does not apply under chapter﻿ ﻿4.

Form W-8BEN.

This form is used by a foreign individual to:

Establish foreign status;

Claim that such individual is the beneficial owner of the income for which the form is being furnished or a partner in a partnership subject to withholding under section 1446(a) or a transferee of an interest in a partnership under section 1446(f); and

If applicable, claim a reduced rate of, or exemption from, withholding under an income tax treaty.

A withholding agent, in some cases, may substitute its own form for a Form W-8BEN for individuals.

Form W-8BEN may also be used to claim that the foreign individual is exempt from Form 1099 reporting and backup withholding for income that is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment. For example, a foreign person may provide a Form W-8BEN to a broker to establish that the gross proceeds from the sale of securities are not subject to Form 1099 reporting or backup withholding.

Date of birth requirement for certain account holders.

If you are a U.S. office or branch of a depository institution, custodial institution, investment entity, or specified insurance company (each as defined in Regulations section 1.1471﻿-﻿5(e)) documenting an individual account holder (as defined in Regulations section 1.1471﻿-﻿5(a)(3)) of an account that is a financial account (as defined in Regulations section 1.1471﻿-﻿5(b)), you must obtain the individual account holder’s date of birth on the Form W-8BEN in order for the form to not be invalid for a payment of U.S. source income reportable on Form 1042-S. If the individual’s date of birth is not provided on the Form W-8BEN, the form is still valid if you otherwise have the date of birth in your account files for the account holder or you obtain the date of birth on a written statement (including a written statement transmitted by email) from the account holder and associate the written statement with the Form W-8BEN. See the related foreign TIN requirement discussed under Foreign TIN requirement for account holders, later, which also generally applies with respect to accounts described in this paragraph.

Form W-8BEN-E.

This form is used by a foreign entity to:

Establish foreign status;

Establish an entity's chapter﻿ ﻿4 status to the extent required for chapter﻿ ﻿4 purposes;

Claim that such entity is the beneficial owner of the income for which the form is being furnished or a partner in a partnership subject to withholding under section 1446(a) or (f) (excluding a partnership or grantor trust); and

If applicable, claim a reduced rate of, or exemption from, chapter﻿ ﻿3 withholding under an income tax treaty.

Form W-8BEN-E may also be used to claim that the foreign entity is exempt from Form 1099 reporting and backup withholding for income that is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment. For example, a foreign entity may provide a Form W-8BEN-E to a broker to establish that the gross proceeds from the sale of securities are not subject to Form 1099 reporting or backup withholding.

An entity payee may also provide a Form W-8BEN-E to establish that certain income from notional principal contracts is not effectively connected with the conduct of a U.S. trade or business. In addition, a foreign hybrid entity claiming treaty benefits on its own behalf should provide you with a Form W-8BEN-E with respect to the income for which treaty benefits are being claimed. In certain cases, a similar agreed form may be associated with the payment instead of a Form W-8BEN-E.

Form W-8ECI.

This form is used by a foreign person to:

Establish foreign status,

Claim that such person is the beneficial owner of the income for which the form is being furnished, and

Claim that the income is effectively connected with the conduct of a trade or business in the United States. (See Effectively Connected Income, later.)

Claim that the person is a dealer in securities for the exception to withholding under Regulations section 1.1446(f)-4(b)(6). See Section 1446(f): PTP Interests, later.

ECI for which a valid Form W-8ECI has been provided is generally not subject to chapter﻿ ﻿3 or chapter﻿ ﻿4 withholding.

If a partner submits this form to a partnership, the income claimed to be effectively connected with the conduct of a U.S. trade or business is subject to withholding under section 1446. If the partner has made, or will make, an election under section 871(d) or 882(d), the partner must submit Form W-8ECI, and attach a copy of the election, or a statement of intent to elect, to the form.

cautionIf the partner's only ECI is the income allocated from the partnership and the partner is not making the election under section 871(d) or 882(d), the partner should provide Form W-8BEN or W-8BEN-E to the partnership.

Form W-8EXP.

This form is used by a foreign government, international organization, foreign central bank of issue, foreign tax-exempt organization, foreign private foundation, or government of a U.S. territory to:

Establish foreign status,

Establish the entity's chapter﻿ ﻿4 status to the extent required for chapter﻿ ﻿4 purposes,

Claim that such person is the beneficial owner of the income for which the form is being furnished, and

Claim an exemption from withholding under both chapter﻿ ﻿3 and chapter﻿ ﻿4 for such entity or that the entity is a foreign private foundation subject to the 4% tax. See section 1443 for the withholding required for a payment made to such an entity.

If the government or organization named on the form is a partner in a partnership carrying on a trade or business in the United States, the ECTI allocable to the partner is subject to withholding under section 1446.

See also Foreign Governments and Certain Other Foreign Organizations, later.

Foreign Intermediaries and Foreign Flow-Through Entities

Payments made to a foreign intermediary or foreign flow-through entity that is not a QI that assumes primary chapters 3 and 4 withholding responsibility, a WP, a WT, or a branch treated as a U.S. person (see U.S. branches of foreign banks and foreign insurance companies, earlier) are treated as made to the payees on whose behalf the intermediary or entity acts except when the intermediary or flow-through entity is subject to chapter﻿ ﻿4 withholding. See Flow-Through Entities and Foreign intermediaries, earlier. The Form W-8IMY provided by a foreign intermediary or flow-through entity must be accompanied by additional information for you to be able to reliably associate the payment with a payee. The additional information required depends on the type of intermediary or flow-through entity and the extent of the withholding responsibilities it assumes.

Form W-8IMY.

This form is used by foreign intermediaries and foreign flow-through entities, as well as certain U.S. branches for chapter﻿ ﻿3 or 4 purposes, or when applicable, for section 1446(a) or (f) purposes, to:

Represent that a foreign person is a QI or NQI;

Establish the entity’s chapter﻿ ﻿4 status when required for chapter﻿ ﻿4 purposes;

When applicable, certify that the entity is a participating FFI, a registered deemed-compliant FFI, or a QI that may provide a withholding statement allocating a payment to a chapter﻿ ﻿4 withholding rate pool of U.S. payees;

Represent, if applicable, that the QI is assuming primary chapters 3 and 4 withholding responsibility and/or primary Form 1099 reporting and backup withholding responsibility;

Represent that a foreign partnership or a foreign simple or grantor trust is a withholding foreign partnership or a withholding foreign trust;

Represent that a foreign flow-through entity is a nonwithholding foreign partnership, or a nonwithholding foreign trust;

Represent that the provider is a U.S. branch of a foreign bank or insurance company and either is agreeing to be treated as a U.S. person or is transmitting documentation of the persons on whose behalf it is acting for the payments;

Represent its status as a qualified securities lender with respect to payments of U.S. source substitute dividends;

Represent its status as a QI acting as a QDD for certain payments; and

Represent that, for purposes of section 1446, it is an upper-tier foreign partnership or a foreign grantor trust and that the form is being used to transmit the required documentation. For information on qualifying as an upper-tier foreign partnership, see Regulations section 1.1446﻿-﻿5.

 For purposes of chapter﻿ ﻿4, an intermediary or flow-through entity that is a participating FFI or registered deemed-compliant FFI receiving a withholdable payment may, instead of providing documentation for each payee, provide pooled allocation information, as described under FFI withholding statement, next.

FFI withholding statement.

An FFI withholding statement must be provided by a participating FFI or registered deemed-compliant FFI (including a U.S. branch of a participating FFI that is not treated as a U.S. person) that is an NQI, nonwithholding foreign partnership, nonwithholding foreign trust, or a QI that makes an election to be withheld on for chapter﻿ ﻿4 purposes (that is, a QI that does not assume chapter﻿ ﻿3 or 4 withholding responsibility), as described under Qualified Intermediary (QI), later.

An FFI withholding statement may include either payee-specific information or pooled information. If the withholding statement includes pooled information, the withholding statement must indicate the portion of the payment allocable to:

A chapter﻿ ﻿4 withholding rate pool of U.S. payees,

Each class of recalcitrant account holders under Regulations section 1.1471﻿-﻿4(d)(6) or a single pool for a QI, or

A class of nonparticipating FFIs.

If the withholding statement includes payee-specific information, it must indicate both the portion of the payment allocated to each payee and each payee’s chapter﻿ ﻿4 status.

Any withholding statement provided by an FFI other than an FFI acting as a WP, WT, or QI with respect to the account must also identify each intermediary or flow-through entity that receives the payment and such entity’s chapter﻿ ﻿4 status and GIIN, when applicable.

For additional information on the requirements for FFI withholding statements, see Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B)(2).

Chapter 4 withholding statement.

A chapter﻿ ﻿4 withholding statement must be provided by the following.

A territory financial institution that does not agree to be treated as a U.S. person.

A U.S. branch that is not a U.S. branch of a participating FFI.

An NFFE or certified deemed-compliant FFI that is an NQI, nonwithholding foreign partnership, or nonwithholding foreign trust and is not the payee.

A chapter﻿ ﻿4 withholding statement must contain the following.

The name, address, TIN (if any), entity type, and chapter﻿ ﻿4 status of each payee.

The amount allocated to each payee.

A valid withholding certificate or other appropriate documentation sufficient to establish the chapter﻿ ﻿4 status of each payee, and each intermediary or flow-through entity that receives the payment on behalf of the payee.

Any other information the withholding agent reasonably requests in order to fulfill its obligations under chapter﻿ ﻿4.

A chapter﻿ ﻿4 withholding statement is permitted to provide pooled allocation information with respect to payees that are treated as nonparticipating FFIs.

CautionA Form W-8 must include a U.S. TIN for a partner to be valid for purposes of a claim of exemption or reduced withholding under section 1446(a) or (f). See the instructions to the applicable Form W-8.

Qualified Intermediary (QI)

In most cases, a QI is any foreign intermediary that has entered into a QI agreement (discussed earlier) with the IRS with respect to the withholding and reporting required under chapters 3 and 4 and for purposes of Form 1099 reporting and backup withholding under section 3406. Additionally, starting January 1, 2023, a QI may also assume certain withholding responsibilities with respect to PTP distributions (including withholding under section 1446(a)) and certain transfers of PTP interests for section 1446(f) purposes when acting as an intermediary. For discussion of those provisions, see Publicly Traded Partnership Distributions (PTP Distributions) and Section 1446(f): PTP Interests, later. A foreign entity that is a QI acting as a QDD or that is acting with respect to payments of substitute interest (as permitted by the QI agreement) can act as a QI even though it is not receiving payments as an intermediary. A foreign entity that has received a QI employer identification number (QI-EIN) may represent on Form W-8IMY that it is a QI. The QI can claim that it is a QI until the IRS revokes its QI-EIN.

A QI can be either an FFI or an NFFE. An FFI that is a QI must be a participating FFI (including a reporting Model 2 FFI), a registered deemed-compliant FFI (including a reporting Model 1 FFI and a nonreporting Model 2 FFI treated as a registered deemed-compliant FFI), or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and reporting requirements with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI (including the requirement to register with the IRS) (defined in the QI agreement as a “registered deemed-compliant Model 1 IGA FFI”). Thus, you must identify the chapter﻿ ﻿4 status of an FFI, certifying its status as a QI as one of the chapter﻿ ﻿4 statuses referenced in the preceding sentence on a Form W-8IMY when a chapter﻿ ﻿4 status is required for chapter﻿ ﻿4 purposes.

Responsibilities and documentation for chapters 3 and 4.

Payments made to a QI that does not assume primary chapters 3 and 4 withholding responsibilities are treated as paid to its account holders. However, a QI is not required to provide you with documentation it obtains from its foreign account holders or from U.S. exempt recipients (U.S. persons exempt from Form 1099 reporting). Instead, it provides you with a withholding statement that contains either chapter﻿ ﻿3 or chapter﻿ ﻿4 withholding rate pool information. A chapter﻿ ﻿4 withholding rate pool is a payment of a single type of income that is a withholdable payment that is allocated to payees that are nonparticipating FFIs or recalcitrant account holders (in a single pool). A chapter﻿ ﻿4 withholding rate pool also means a payment of a single type of income that is allocated to U.S. payees when the QI provides the certification required on Form W-8IMY for allocating payments to this pool and a withholding statement. A QI may include in its chapter﻿ ﻿4 withholding rate pools its direct account holders as well as account holders of another QI or a participating FFI or registered deemed-compliant FFI. With respect to a payment to a foreign person for which no chapter﻿ ﻿4 withholding is required, a chapter﻿ ﻿3 withholding rate pool is a payment of a single type of income that is subject to a single rate of withholding and that is reported on Form 1042-S under a single chapter﻿ ﻿4 exemption code. Payments made to U.S. exempt recipients may also be included in a chapter﻿ ﻿3 withholding rate pool to which withholding does not apply.

A QI is required to provide you with information regarding U.S. nonexempt recipients (U.S. persons subject to Form 1099 information reporting) and to provide you withholding rate pool information separately for each such U.S. person unless it has assumed primary Form 1099 reporting and backup withholding responsibility and meets the requirements to include these recipients in a U.S. payee pool. For the alternative procedure for providing withholding rate pool information for U.S. nonexempt persons not included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees, see the Instructions for Form W-8IMY.

The withholding statement must:

Designate those accounts for which it acts as a QI;

Designate those accounts for which it assumes primary chapters 3 and 4 withholding responsibility and/or primary Form 1099 reporting and backup withholding responsibility;

If applicable, designate the accounts for which it acts as a qualified securities lender with respect to any U.S. source substitute dividend payments;

If applicable, designate those accounts for which it acts as a QDD;

Provide sufficient information for you to allocate the payment, as applicable, to chapter﻿ ﻿3 withholding rate pools and, for payments that are withholdable payments, chapter﻿ ﻿4 withholding rate pools of nonparticipating FFIs and recalcitrant account holders when the QI has not assumed primary chapter﻿ ﻿3 or 4 withholding responsibility; and

Provide sufficient information for you to allocate payments to each U.S. nonexempt recipient or to a pool of U.S. payees to the extent described earlier under this heading.

The extent to which you must have withholding rate pool information depends on the withholding and reporting obligations assumed by the QI.

If a QI that is permitted to do so by the QI agreement obtains documentary evidence under the “KYC” rules that apply to the QI under local law, and the documentary evidence is of a type specified in an attachment to the QI agreement, the documentary evidence remains valid until there is a change in circumstances or the QI knows the information is incorrect. A QI may rely on a Form W-8 until its validity expires under Regulations section 1.1441﻿-﻿1(e)(4)(ii) and may rely on documentary evidence not obtained pursuant to “KYC” rules until its validity expires under Regulations section 1.6049﻿-﻿5(c).

Primary chapters 3 and 4 withholding responsibilities not assumed.

If a QI does not assume primary chapters 3 and 4 withholding responsibility or primary Form 1099 reporting and backup withholding responsibility for the payment, you can reliably associate the payment with valid documentation only to the extent you can reliably determine the part of the payment that relates to each withholding rate pool for foreign and U.S. payees. Unless the alternative procedure applies and the QI is permitted to include U.S. nonexempt recipients in a chapter﻿ ﻿4 withholding rate pool of U.S. payees, the QI must provide you with a separate withholding rate pool for each U.S. nonexempt recipient that must be reported on Form 1099. If you and the QI agree, the QI may apply the alternative procedures for U.S. nonexempt recipients by establishing a single withholding rate pool (not subject to backup withholding) for all U.S. nonexempt recipient account holders for whom the QI is required to report on Form 1099 and has provided you with Forms W-9 prior to you making the reportable payment, or, if applicable, designated broker proceeds to which backup withholding does not apply. The QI must provide a Form W-9 or, in the absence of the form, the name, address, and TIN, if available, for each U.S. nonexempt recipient.

Primary chapters 3 and 4 withholding responsibilities assumed.

If you make a payment to a QI that assumes primary chapters 3 and 4 withholding responsibilities (but not primary Form 1099 reporting and backup withholding responsibility), you can reliably associate the payment with valid documentation only to the extent you can reliably determine the part of the payment that relates to the chapter﻿ ﻿4 withholding rate pools and chapter﻿ ﻿3 withholding rate pools, as applicable, and the part of the payment attributable to withholding rate pools for each U.S. nonexempt recipient, unless the alternative procedure applies for Form 1099 reporting and/or backup withholding purposes. The QI must provide a Form W-9 or, in the absence of the form, the name, address, and TIN, if available, for such person.

Primary chapters 3 and 4 withholding responsibilities and Form 1099 reporting and backup withholding responsibilities assumed.

If you make a payment to a QI that assumes primary chapters 3 and 4 withholding responsibilities and primary Form 1099 reporting and backup withholding responsibility, you can reliably associate the payment with valid documentation provided that you receive a valid Form W-8IMY. It is not necessary to associate the payment with any chapter﻿ ﻿3 or chapter﻿ ﻿4 withholding rate pools.

If you make a payment to a QI that is also a QDD, the QI must provide a withholding statement designating the accounts for which it acts as a QDD even if it assumes primary withholding responsibility for all payments, unless it is acting as a QDD for all payments it receives.

Example. You make a payment of U.S. source dividends to a QI. It has five customers: two are foreign persons who have provided documentation entitling them to a 15% rate of withholding on dividends; two are foreign persons subject to a 30% rate of withholding on dividends; and one is a U.S. individual who provides it with a Form W-9. Each customer is entitled to 20% of the dividend payment. The QI does not assume any primary withholding responsibility. The QI gives you a Form W-8IMY with which it associates the Form W-9 and a withholding statement that allocates 40% of the dividend to a 15% withholding rate pool, 40% to a 30% withholding rate pool, and 20% to the U.S. individual. You should report on Forms 1042-S, 40% of the payment as made to a 15% rate dividend pool and 40% of the payment as made to a 30% rate dividend pool. The part of the payment allocable to the U.S. individual (20%) is reportable on Form 1099-DIV.

Joint account treatment for chapters 3 and 4.

A QI may apply joint account treatment to a partnership or trust if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI), an owner-documented FFI with respect to the QI, an exempt beneficial owner, an NFFE, or is covered as an account that is excluded from the definition of financial account under Annex II of an applicable IGA or under Regulations section 1.1471﻿-﻿5(a) and has provided the QI with a certification that it has maintained such chapter﻿ ﻿4 status during each certification period.

It is a direct account holder of the QI.

None of its partners, beneficiaries, or owners is a flow-through entity or is acting as an intermediary for a payment made by the QI to the partnership or trust, and none of its partners, beneficiaries, or owners is a U.S. person.

None of its foreign partners, beneficiaries, or owners is subject to withholding or reporting under chapter﻿ ﻿4.

It agrees to make available upon request to the QI (or QI’s reviewer) records that establish it has provided the QI with documentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or owners.

For information on these rules, see section 4.05 of the QI agreement in Revenue Procedure 2022﻿-﻿43, available at IRS.gov/irb/2022﻿-﻿52_IRB#RP-2022﻿-﻿43.

Agency option.

A QI may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the QI and to apply the provisions of the QI agreement to its partners, beneficiaries, or owners. A QI and a partnership or trust may only apply the agency option if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct account holder of the QI or an indirect account holder of the QI that is a direct partner, beneficiary, or owner of a partnership or trust to which the QI also applies the agency option.

It is an FFI that is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI), an owner-documented FFI with respect to the QI, an NFFE, an exempt beneficial owner, or is covered as an account that is excluded from the definition of financial account under Annex II of an applicable IGA or under Regulations section 1.1471﻿-﻿5(a) and has provided the QI with a certification that it has maintained such chapter﻿ ﻿4 status during each certification period.

None of its partners, beneficiaries, or owners is a withholding foreign trust, withholding foreign partnership, participating FFI, registered deemed-compliant FFI, registered deemed-compliant Model 1 IGA FFI, or another QI acting as an intermediary for a payment made by the QI to the partnership or trust.

It agrees to permit the QI to treat its direct and indirect partners, beneficiaries, or owners as direct and indirect account holders, respectively, of the QI under the QI agreement.

It agrees to comply with the compliance procedures of the QI agreement.

 For information on these rules, see section 4.06 of the QI agreement in Revenue Procedure 2022﻿-﻿43, available at IRS.gov/irb/2022﻿-﻿52_IRB#RP-2022﻿-﻿43.

Form 1042-S reporting.

A QI is generally permitted to report payments made to its foreign account holders on a pooled basis rather than reporting payments to each account holder specifically. Pooled basis reporting is not available for payments to certain account holders, such as nonqualified intermediaries, flow-through entities (discussed earlier) and certain of their account holders and owners, private arrangement intermediaries, and, in certain circumstances, qualified intermediaries, withholding foreign partnerships, and withholding foreign trusts. Notwithstanding these requirements, separate Forms 1042-S are not issued to account holders that the QI is permitted to include in a chapter﻿ ﻿4 withholding rate pool.

Collective refund procedures.

A QI may seek a refund of tax withheld under chapters 3 and 4 on behalf of its account holders when the QI has not issued a Form 1042-S to the account holders that received the payment that was subject to overwithholding. The account holders, therefore, are not required to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the QI. A QI may obtain a refund of tax withheld under chapter﻿ ﻿4, however, to the extent permitted under the QI agreement.

Nonqualified Intermediary (NQI)

If you are making a payment to an NQI or U.S. branch that is using Form W-8IMY to transmit information about the branch's account holders or customers for chapter﻿ ﻿3 or 4 purposes, you can treat the payment (or a part of the payment) as reliably associated with valid documentation from a specific payee only if, before making the payment:

You can allocate the payment to a valid Form W-8IMY;

You can reliably determine how much of the payment relates to valid documentation provided by a payee (a person that is not itself a foreign intermediary, flow-through entity, or U.S. branch with a chapter﻿ ﻿4 withholding rate pool) (see Pooled withholding information, later); and

You have sufficient information to report the payment on Form 1042-S or Form 1099, if reporting is required.

Withholding statement.

The NQI or U.S. branch must give you certain information on a withholding statement that is associated with the Form W-8IMY for chapter﻿ ﻿3 or 4 purposes. A withholding statement must be updated to keep the information accurate prior to each payment. See, however, Regulations section 1.1441﻿-﻿3(e)(4)(iv)(C) for when a withholding agent may instead accept an alternative withholding statement.

For chapter﻿ ﻿4 purposes.

An NQI receiving a withholdable payment must provide a withholding statement that satisfies the requirements of an FFI withholding statement or, if the NQI is not a participating FFI or registered deemed-compliant FFI, a chapter﻿ ﻿4 withholding statement.

An FFI withholding statement may allocate the payment to chapter﻿ ﻿4 reporting rate pools (as appropriate), including a chapter﻿ ﻿4 withholding rate pool for nonparticipating FFIs, recalcitrant account holders (in each class of account holders, as described in the chapter﻿ ﻿4 regulations), and, for an NQI that is a participating FFI (including a reporting Model 2 FFI) or a registered deemed-compliant FFI (including a reporting Model 1 FFI), U.S. payees. However, an NQI may allocate a payment of a reportable amount (regardless of whether the payment is a withholdable payment) to a chapter﻿ ﻿4 withholding rate pool of U.S. payees when the NQI satisfies the requirements for providing such a pool, including the requirement to certify to its status as a participating FFI, including a reporting Model 2 FFI, or registered deemed-compliant FFI, including a reporting Model 1 FFI.

 If the FFI withholding statement instead includes payee-specific information for purposes of chapter﻿ ﻿4, it must indicate both the portion of the payment allocated to each payee and each payee’s chapter﻿ ﻿4 status. The withholding statement must also identify each intermediary or flow-through entity that is receiving a payment (excluding any intermediary or flow-through entity that is an account holder or interest holder in another QI, WP, or WT), each such entity’s chapter﻿ ﻿4 status and GIIN (if applicable) when required for chapter﻿ ﻿4 purposes, and the chapter﻿ ﻿4 withholding rate pools associated with each such entity.

A chapter﻿ ﻿4 withholding statement must contain the name, address, TIN (if any), entity type, chapter﻿ ﻿4 status of each payee, the amount allocated to each payee, and a valid withholding certificate or other documentation sufficient to establish each payee’s chapter﻿ ﻿4 status for payees that are not included in a chapter﻿ ﻿4 withholding rate pool of nonparticipating FFIs. The withholding statement must also identify each intermediary or flow-through entity that is receiving a payment (excluding any intermediary or flow-through entity that is an account holder or interest holder in another QI, WP, or WT), each such entity’s chapter﻿ ﻿4 status and GIIN (if applicable), and the chapter﻿ ﻿4 withholding rate pools associated with each such entity. An allocation of a payment to an NQI, nonwithholding foreign partnership, or nonwithholding foreign trust of an amount subject to chapter﻿ ﻿3 withholding to a chapter﻿ ﻿4 withholding rate pool of U.S. payees must identify the payees consistent with the description in Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B)(2)(iii).

For chapter﻿ ﻿3 purposes.

The withholding statement should allocate for chapter﻿ ﻿3 purposes only the portion of the payment that was not allocated to a chapter﻿ ﻿4 withholding rate pool or to a payee identified on a withholding statement to whom withholding was applied under chapter﻿ ﻿4. For chapter﻿ ﻿3 purposes, a withholding statement must include the information described below for a reportable amount.

The name, address, and TIN (if any, or if required) of each person for whom documentation is provided.

The type of documentation (documentary evidence, Form W-8, or Form W-9) for every person for whom documentation has been provided, and, for a withholdable payment, that the documentation establishes the payee’s chapter﻿ ﻿4 status to the extent required for chapter﻿ ﻿4 purposes.

The status of the person for whom the documentation has been provided, such as whether the person is a U.S. exempt recipient, U.S. nonexempt recipient, or a foreign person. For a foreign person, the statement must indicate whether the person is the beneficial owner or a foreign intermediary, flow-through entity, or a U.S. branch that is not included in a chapter﻿ ﻿4 withholding rate pool or in a pool of payees under the alternative procedures (see Alternative procedure, later).

The type of recipient the person is, based on the recipient codes used on Form 1042-S.

Information allocating each payment, by income type, to each payee (including U.S. exempt and nonexempt recipients) for whom documentation has been provided that is not included in a chapter﻿ ﻿4 withholding rate pool or in a pool of payees under the alternative procedures (see Alternative procedure, later).

The rate of withholding that applies to each foreign person to whom a payment is allocated.

A foreign payee's country of residence.

If a reduced rate of withholding is claimed under chapter﻿ ﻿3, the basis for a reduced rate of withholding (for example, portfolio interest, treaty benefit, etc.).

In the case of treaty benefits claimed by entities, whether the applicable limitation on benefits statement and the statement that the foreign person derives the income for which treaty benefits are claimed, have been made.

The name, address, and TIN (if any) and, for a withholdable payment, the chapter﻿ ﻿4 status (if required) and GIIN (if applicable) of any other NQI, flow-through entity, or U.S. branch from which the payee will directly receive a payment.

Any other information a withholding agent requests to fulfill its reporting and withholding obligations.

Alternative procedure.

Under this alternative procedure, the NQI can give you the information that allocates each payment to each foreign and U.S. exempt recipient or chapter﻿ ﻿4 withholding rate pool by January 31 following the calendar year of payment, rather than before the payment is made, as otherwise required. To take advantage of this procedure, the NQI must (a) inform you, on its withholding statement, that it is using the alternative procedure; and (b) obtain your consent. You must receive the withholding statement with all the required information (other than item 5) before the NQI makes the payment.

CautionThe alternative procedure cannot, however, be used for payments to U.S. nonexempt recipients other than those recipients included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees. See Chapter 4, later. Therefore, an NQI must provide you with allocation information for any U.S. nonexempt recipients not included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees before the NQI makes a payment.

Pooled withholding information for chapters 3 and 4.

If an NQI uses the alternative procedure, it must provide you with withholding rate pool information, as opposed to individual allocation information, before the payment of a reportable amount. The NQI must provide you with the payee specific allocation information (information allocating each payment to each payee) by January 31 following the calendar year of payment, except as otherwise permitted for chapter﻿ ﻿4 purposes, when using this procedure.

Chapter 4.

In the case of a reportable amount that is also a withholdable payment, an NQI may include amounts allocable to a chapter﻿ ﻿4 withholding rate pool (other than a chapter﻿ ﻿4 withholding rate pool of U.S. payees) and payees subject to chapter﻿ ﻿4 withholding for whom the NQI will provide payee-specific information in a 30% rate pool together with payees subject to chapter﻿ ﻿3 withholding at the 30% rate. For the amount of the payment allocable to a chapter﻿ ﻿4 withholding rate pool of U.S. payees, an NQI may include amounts allocable to the pool with other amounts exempt from withholding (and an NQI may allocate payments to this pool regardless of whether the payment is a withholdable payment) and may not otherwise apply these provisions for payments made to U.S. nonexempt recipients. The NQI must identify prior to the payment each chapter﻿ ﻿4 withholding rate pool to be allocated a portion of the payment, in addition to each payee to be allocated the payments that is not included in such a pool. The NQI must then also allocate, by January 31 following the calendar year of the payment, the portion of the payment to each such pool in addition to allocating the payment to each payee that is not included in the pool.

Failure to provide allocation information.

If an NQI fails to provide you with the payee specific allocation information for a withholding rate pool or chapter﻿ ﻿4 withholding rate pool by January 31, you must not apply the alternative procedure to any of the NQI's withholding rate pools from that date forward. You must treat the payees as undocumented and apply the presumption rules, discussed later in Presumption Rules. An NQI is deemed to have failed to provide specific allocation information if it does not give you such information for more than 10% of any one withholding rate pool.

However, if you receive such information by February 14, you may make the appropriate adjustments to repay any excess withholding incurred between February 1 and on or before February 14.

If the NQI fails to allocate more than 10% of the payment to a withholding rate pool by February 14 following the calendar year of payment, you must file a Form 1042-S for each account holder in the pool on a pro-rata basis (treating a chapter﻿ ﻿4 withholding rate pool as an account holder for this purpose and excluding U.S. exempt recipients). For example, if there are four account holders in a withholding rate pool that receive a $100 payment and the NQI fails to allocate more than $10 of the payment, you must file four Forms 1042-S, one for each account holder in the pool, showing $25 of income to each. You must also check the “Pro-rata Basis Reporting” box at the top of each form. If, however, the NQI provides allocation information for 90% or more of the payment to a withholding rate pool, the pro-rata reporting method is not required. Instead, you must file a Form 1042-S for each account holder for whom you have allocation information and report the unallocated part of the payment on a Form 1042-S issued to “unknown recipient.”

Withholding Foreign Partnerships (WPs)

If you are making payments to a WP for chapter﻿ ﻿3 or 4 purposes, you do not have to withhold if the WP is acting in that capacity. The WP must assume primary chapters 3 and 4 withholding responsibility for amounts that are distributed to, or included in the distributive share of, any direct partner and may assume chapters 3 and 4 withholding responsibilities for certain of its indirect partners. The WP must withhold the amount required to be withheld. A WP must provide you with a Form W-8IMY that certifies that the WP is acting in that capacity and provides all other information and certifications required by the form. The Form W-8IMY must contain the WP-EIN and GIIN (if applicable).

A WP can be either an FFI or an NFFE. An FFI (other than a retirement fund) that is a WP must be a participating FFI, a registered deemed-compliant FFI, or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and reporting requirements with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI under Regulations section 1.1471﻿-﻿5(f)(1) (including the requirement to register with the IRS) (defined in the WP agreement as a “registered deemed-compliant Model 1 IGA FFI”). Thus, an FFI certifying its status as a WP must provide you a Form W-8IMY that certifies to one of the chapter﻿ ﻿4 statuses referenced in the preceding sentence when a chapter﻿ ﻿4 status is required.

Responsibilities of the WP.

The WP must withhold under chapter﻿ ﻿3 or 4 on the date it makes a distribution of a withholdable payment or an amount subject to chapter﻿ ﻿3 withholding to a direct foreign partner based on the Form W-8 or W-9 it receives from its partners. If the partner's distributive share has not been distributed, the WP must withhold on the partner's distributive share on the earlier of the date that the partnership must mail or otherwise provide to the partner a Schedule﻿ ﻿K-1 (Form 1065) or the due date for furnishing the statement (whether or not the WP is required to furnish the statement).

The WP may determine the amount of withholding based on a reasonable estimate of the partner's distributive share of income subject to withholding for the year. The WP must correct the estimated withholding to reflect the actual distributive share on the earlier of the dates mentioned in the preceding paragraph. If that date is after the earlier of the due date (including extensions) for filing the WP's Form 1042-S or the date the WP actually issues Form 1042-S for the calendar year, the WP may withhold and report any adjustments required by correcting the information for the following calendar year.

Form 1042 filing.

The WP must file Form 1042 even if no amount was withheld. In addition to the information that is required for the Form 1042, the WP must attach a statement showing the amounts of any over- or under-withholding adjustments and an explanation of those adjustments.

Form 1042-S reporting.

The WP can elect to report payments made to its foreign direct partners on a pooled basis for chapter﻿ ﻿3 purposes rather than reporting payments to each direct partner in addition to reporting payments in a chapter﻿ ﻿4 withholding rate pool to the extent the WP is permitted to do so based on its chapter﻿ ﻿4 status. A WP can treat as its direct partners those indirect partners of the WP for which it applies joint account treatment or the agency option (described later). A WP must otherwise issue a Form 1042-S to each partner to the extent it is required to do so under the WP agreement. You may issue a single Form 1042-S for all payments you make to a WP other than payments for which the entity does not act as a WP. You may, however, have Form 1099 requirements for certain indirect partners of a WP that are U.S. nonexempt recipients.

Collective refund procedures.

A WP may seek a refund of tax withheld under chapters 3 and 4 on behalf of its partners when the WP has not issued a Form 1042-S to the partners that received the payment that was subject to overwithholding. The partners, therefore, are not required to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the WP. A WP may obtain a refund of tax withheld under chapter﻿ ﻿4 to the extent permitted under the WP agreement.

Reporting of U.S. partners.

A WP must report its U.S. partners on Schedule﻿ ﻿K-1 to the extent required under the WP agreement. If the WP is an FFI, it is also required to report each of its U.S. accounts (or U.S. reportable accounts if a reporting Model 1 FFI) on Form 8966 consistent with its chapter﻿ ﻿4 requirements or the requirements of an IGA. If the WP is an NFFE, the WP must file Form 8966 to report any partner that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) if the NFFE is the beneficial owner of a withholdable payment received by the WP. The WP must also file a Form 8966 to report withholdable payments made to a pass-through partner for which the WP acts under the WP agreement that provides information on an account holder (or interest holder) that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) and that is the beneficial owner of the withholdable payment received by the WP, unless the pass-through partner certifies to the WP that it is reporting on the account holder (or interest holder) pursuant to its U.S. account reporting requirements. The preceding sentence applies with respect to a pass-through partner to which the WP applies the agency option or which has partners, beneficiaries, or owners that are indirect partners of the WP.

Joint account treatment.

Under special procedures provided in the WP agreement, a WP may apply joint account treatment to a partnership or trust that is a direct partner of the WP. A WP that applies the joint account option must elect to perform pool reporting for amounts subject to chapter﻿ ﻿3 withholding that either are not withholdable payments or are withholdable payments for which no chapter﻿ ﻿4 withholding is required and that the WP distributes to, or includes in the distributive share of, a foreign direct partner. These rules only apply to a partnership or trust that meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WP agreement), an owner-documented FFI, an exempt beneficial owner, or an NFFE (other than a WP or WT).

It is a direct partner of the WP.

None of its partners, beneficiaries, or owners is a flow-through entity or intermediary.

None of the partnership’s or trust’s partners, beneficiaries, or owners is a U.S. person or is subject to withholding or reporting under chapter﻿ ﻿4.

It agrees to make available upon request to the WP (or the WP’s auditor) records that establish it has provided the WP with documentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or owners.

For more information on applying these rules, see section 9.01 of the WP agreement in section 6 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

Agency option.

A WP may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the WP and to apply the provisions of the WP agreement to its partners, beneficiaries, or owners. A WP that applies the agency option must elect to perform pool reporting for amounts subject to chapter﻿ ﻿3 withholding that either are not withholdable payments or are withholdable payments for which no chapter﻿ ﻿4 withholding is required and that the WP distributes to, or includes in the distributive share of, a foreign direct partner. A WP and a partnership or trust may only apply the agency option if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct partner of the WP or an indirect partner of the WP that is a direct partner, beneficiary, or owner of a partnership or trust to which the WP also applies the agency option.

It is an FFI that is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WP agreement), an owner-documented FFI, an NFFE, or an exempt beneficial owner.

None of its partners, beneficiaries, or owners is a WT, WP, participating FFI, registered deemed-compliant FFI, registered deemed-compliant Model 1 IGA FFI (as defined in the WP agreement), or QI acting as an intermediary for a payment made by the WP to the partnership or trust.

The WP may not act as a withholding foreign partnership with respect to any direct or indirect partner of the partnership or trust that is a U.S. nonexempt recipient, unless the U.S. nonexempt recipient is a partner of an owner-documented FFI or passive NFFE to which the WP applies the agency option and is included in the WP’s U.S. payee pool.

It agrees to comply with the compliance procedures described in section 8.05 of the WP agreement by providing the WP with the certification described in section 8.03 of the WP agreement and providing the WP with documentation or other information for review.

It agrees to comply with the documentation requirements of a WP in the WP agreement.

For more information on applying these rules, see section 9.02 of the WP agreement in section 6 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

WP acting for indirect partners.

A WP may act as a WP with respect to an indirect partner of the WP that is not a U.S. nonexempt recipient. However, a WP may act as a WP for an indirect partner that is a U.S. nonexempt recipient if the indirect partner is included in a pass-through partner’s chapter﻿ ﻿4 withholding rate pool of recalcitrant account holders or U.S. payees. A WP acting as a WP for an indirect partner is not required to forward to its withholding agent the documentation and the withholding statement of the pass-through partner and indirect partner that the WP would have otherwise been required to provide under the requirements of a nonwithholding foreign partnership. See Not acting as a WP, later. However, a WP must provide the withholding agent with documentation and any other information from any pass-through partner whose direct or indirect partner, beneficiary, or owner is a U.S. nonexempt recipient unless the recipient is included in the pass-through partner’s chapter﻿ ﻿4 withholding rate pool of recalcitrant account holders or U.S. payees.

If a WP is making a payment that is a withholdable payment, the pass-through partner’s withholding statement must meet the requirements of Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B). The pass-through partner’s withholding statement must include the account holders or interest holders of the pass-through partner in chapter﻿ ﻿4 withholding rate pools (to the extent permitted), and, for an amount subject to chapter﻿ ﻿3 withholding that is not a withholdable payment or is a withholdable payment for which chapter﻿ ﻿4 withholding is not required, valid documentation provided by the account holders or interest holders of the pass-through partner that are not themselves QIs or flow-through entities.

For more information on applying these rules, see section 9.03 of the WP agreement in section 6 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

Not acting as a WP.

A foreign partnership that is not acting as a WP is a nonwithholding foreign partnership. This occurs if a WP is not acting in that capacity for some or all of the amounts it receives from you.

 You must treat payments made to a nonwithholding foreign partnership as made to the partners of the partnership. The partnership must provide you with a Form W-8IMY (with Part VIII completed), a withholding statement identifying the amounts, the withholding certificates or documentary evidence of the partners, and the information shown earlier under Withholding statement under Nonqualified Intermediary (NQI).

Withholding Foreign Trusts (WTs)

If you are making payments to a WT for chapter﻿ ﻿3 or 4 purposes, you do not have to withhold if the WT is acting in that capacity. The WT must assume primary chapters 3 and 4 withholding responsibility for amounts that are distributed to, or included in the distributive share of, any direct beneficiary or owner and may assume primary chapters 3 and 4 withholding responsibility for certain of its indirect beneficiaries or owners. The WT must withhold the amount required to be withheld. A WT must provide you with a Form W-8IMY that certifies that the WT is acting in that capacity and provides all other information and certifications required by the form. The Form W-8IMY must contain the WT-EIN and GIIN (if applicable).

A WT can be either an FFI or an NFFE. An FFI (other than a retirement fund) that is a WT must be a participating FFI, a registered deemed-compliant FFI, or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and reporting requirements with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI under Regulations section 1.1471﻿-﻿5(f)(1) (including the requirement to register with the IRS) (defined in the WT agreement as a “registered deemed-compliant Model 1 IGA FFI”). Thus, you must identify the chapter﻿ ﻿4 status of an FFI certifying its status as a WT as one of the chapter﻿ ﻿4 statuses referenced in the preceding sentence on a Form W-8IMY when a chapter﻿ ﻿4 status is required for chapter﻿ ﻿4 purposes.

Responsibilities of a WT.

The WT must withhold on the date it makes a distribution of a withholdable payment or an amount subject to chapter﻿ ﻿3 withholding to a direct foreign beneficiary or owner. If the beneficiary's or owner's distributive share has not been distributed, the WT must withhold on the beneficiary's or owner's distributive share on the earlier of the date that the trust must mail or otherwise provide to the beneficiary or owner the statement required under section 6048(b) or the due date for furnishing the statement (whether or not the WT is required to furnish the statement).

The WT may determine the amount of withholding based on a reasonable estimate of the beneficiary's or owner's distributive share of income subject to withholding for the year. The WT must correct the estimated withholding to reflect the actual distributive share on the earlier of the dates mentioned in the preceding paragraph. If that date is after the earlier of the due date (including extensions) for filing the WT's Form 1042-S or the date the WT actually issues Form 1042-S for the calendar year, the WT may withhold and report any adjustments required by correcting the information for the following calendar year.

Form 1042 filing.

The WT must file Form 1042 even if no amount was withheld. In addition to the information that is required for the Form 1042, the WT must attach a statement showing the amounts of any over- or under-withholding adjustments and an explanation of those adjustments.

Form 1042-S reporting.

The WT can elect to report payments made to its foreign direct beneficiaries or owners on a pooled basis for chapter﻿ ﻿3 purposes rather than reporting payments made to each foreign direct beneficiary or owner in addition to reporting payments in a chapter﻿ ﻿4 withholding rate pool to the extent the WT is permitted to do so based on its chapter﻿ ﻿4 status. A WT can treat as its direct beneficiaries or owners those indirect beneficiaries or owners of the WT for which it applies joint account treatment or the agency option (described later). A WT must otherwise issue a Form 1042-S to each beneficiary or owner to the extent it is required to do so under the WT agreement. You may issue a single Form 1042-S for all payments you make to a WT other than payments for which the entity does not act as a WT. You may, however, have Form 1099 requirements for certain indirect beneficiaries or owners of a WT that are U.S. nonexempt recipients.

Collective refund procedures.

A WT may seek a refund of tax withheld under chapters 3 and 4 on behalf of its beneficiaries or owners when the WT has not issued a Form 1042-S to the beneficiaries or owners that received the payment that was subject to overwithholding. The beneficiaries or owners, therefore, are not required to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the WT. A WT may obtain a refund of tax withheld under chapter﻿ ﻿4 to the extent permitted under the WT agreement.

Reporting of U.S. beneficiaries or owners.

If the WT is a grantor trust with U.S. owners, the WT is required to file Form 3520-A, and to provide statements to a U.S. owner, as well as each U.S. beneficiary who is not an owner and receives a distribution. If the WT is an FFI, it is required to report each of its U.S. accounts (or U.S. reportable accounts if a reporting Model 1 FFI) on Form 8966 consistent with its FATCA requirements or the requirements of an IGA. If the WT is an NFFE, the WT must file Form 8966 to report any beneficiary or owner that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) if the NFFE is the beneficial owner of a withholdable payment received by the WT.

The WT must also file a Form 8966 to report withholdable payments made to a pass-through beneficiary or owner for which the WT acts under the WT agreement that provides information on an account holder (or interest holder) that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) and that is the beneficial owner of the withholdable payment received by the WT, unless the pass-through beneficiary or owner certifies to the WT that it is reporting on the account holder (or interest holder) pursuant to its U.S. account reporting requirements. The preceding sentence applies with respect to a pass-through beneficiary or owner to which the WT applies the agency option or which has partners, beneficiaries, or owners that are indirect beneficiaries or owners of the WT. In addition, if the WT is not a participating FFI, a registered deemed-compliant FFI, or a registered deemed-compliant Model 1 IGA FFI and is not required to report with respect to a U.S. beneficiary of the WT on Form 3520-A, then the WT must report with respect to such beneficiary on Form 8966, as required in the WT agreement. A beneficiary for this purpose means a beneficiary that receives a distribution from the WT during the year or that is required to include an amount in gross income with respect to the WT under sections 652(a) or 662(a).

Joint account treatment.

Under special procedures provided in the WT agreement, a WT may apply joint account treatment to a partnership or trust that is a direct beneficiary or owner of the WT. A WT that applies the joint account option must elect to perform pool reporting for amounts subject to chapter﻿ ﻿3 withholding that either are not withholdable payments or are withholdable payments for which no chapter﻿ ﻿4 withholding is required and that the WT distributes to, or includes in the distributive share of, a foreign direct beneficiary or owner. These rules only apply to a partnership or trust that meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WT agreement), an owner-documented FFI, an exempt beneficial owner, or an NFFE (other than a WP or WT).

It is a direct beneficiary or owner of the WT.

None of its partners, beneficiaries, or owners is a flow-through entity or intermediary.

None of the partnership’s or trust’s partners, beneficiaries, or owners is a U.S. person or is subject to withholding or reporting under chapter﻿ ﻿4.

It agrees to make available upon request to the WT (or the WT’s auditor) records that establish it has provided the WT with documentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or owners.

For more information on applying these rules, see section 9.01 of the WT agreement found in section 7 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

Agency option.

A WT may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the WT and to apply the provisions of the WT agreement to its partners, beneficiaries, or owners. A WT that applies the agency option must elect to perform pool reporting for amounts subject to chapter﻿ ﻿3 withholding that either are not withholdable payments or are withholdable payments for which no chapter﻿ ﻿4 withholding is required and that the WT distributes to, or includes in the distributive share of, a foreign direct beneficiary or owner. A WT and a partnership or trust may only apply the agency option if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct beneficiary or owner of the WT or an indirect beneficiary or owner of the WT that is a direct partner, beneficiary, or owner of a partnership or trust to which the WT also applies the agency option.

It is an FFI that is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WT agreement), an owner-documented FFI, an NFFE, or an exempt beneficial owner.

None of its partners, beneficiaries, or owners is a WT, WP, participating FFI, registered deemed-compliant FFI, registered deemed-compliant Model 1 IGA FFI (as defined in the WT agreement), or a QI acting as an intermediary for a payment made by the WT to the partnership or trust.

The WT may not act as a withholding foreign trust with respect to any direct or indirect beneficiary or owner of the partnership or trust that is a U.S. nonexempt recipient, unless the U.S. nonexempt recipient is a beneficiary or owner of an owner-documented FFI or passive NFFE to which the WT applies the agency option and is included in the WT’s U.S. payee pool.

It agrees to comply with the compliance procedures described in section 8.05 of the WT agreement by providing the WT with the certification described in section 8.03 of the WT agreement and providing the WT with documentation or other information for review.

It agrees to comply with the documentation requirements of a WT in the WT agreement.

 For more information on applying these rules, see section 9.02 of the WT agreement in section 7 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

WT acting for indirect beneficiaries or owners.

A WT may act as a WT with respect to an indirect beneficiary or owner of the WT that is not a U.S. nonexempt recipient. However, a WT may act as a WT for an indirect beneficiary or owner that is a U.S. nonexempt recipient if the indirect beneficiary or owner is included in a pass-through beneficiary’s or owner’s chapter﻿ ﻿4 withholding rate pool of recalcitrant account holders or U.S. payees. A WT acting as a WT for an indirect beneficiary or owner is not required to forward to its withholding agent the documentation and the withholding statement of the pass-through beneficiary or owner and indirect beneficiary or owner that the WT would have otherwise been required to provide under the requirements of a nonwithholding foreign trust. See Not acting as a WT, later. However, a WT must provide the withholding agent with documentation and any other information from any pass-through beneficiary or owner whose direct or indirect partner, beneficiary, or owner is a U.S. nonexempt recipient unless the recipient is included in the pass-through beneficiary’s or owner’s chapter﻿ ﻿4 withholding rate pool of recalcitrant account holders or U.S. payees. If a WT is making a payment that is a withholdable payment, the pass-through beneficiary’s or owner’s withholding statement must meet the requirements of Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B). The pass-through beneficiary’s or owner’s withholding statement must include the account holders or interest holders of the pass-through beneficiary or owner in chapter﻿ ﻿4 withholding rate pools (to the extent permitted), and, for an amount subject to chapter﻿ ﻿3 withholding that is not a withholdable payment or is a withholdable payment for which chapter﻿ ﻿4 withholding is not required, valid documentation provided by the account holders or interest holders of the pass-through beneficiary or owner that are not themselves QIs or flow-through entities.

For more information on applying these rules, see section 9.03 of the WT agreement in section 7 of Revenue Procedure 2017﻿-﻿21, available at IRS.gov/irb/2017﻿-﻿06_IRB#RP-2017﻿-﻿21.

Not acting as a WT.

A foreign trust that is not acting as a WT is a nonwithholding foreign trust. This occurs if a WT is not acting in that capacity for some or all of the amounts it receives from you.

In most cases, you must treat payments made to a nonwithholding foreign trust as made to the beneficiaries of a simple trust or the owners of a grantor trust. The trust must provide you with a Form W-8IMY (with Part VIII completed), a withholding statement identifying the amounts, the withholding certificates or documentary evidence of the beneficiaries or owners, and the information shown earlier under Withholding statement under Nonqualified Intermediary (NQI).

Standards of Knowledge for Purposes of Chapter 3

You must withhold in accordance with the presumption rules (discussed later) if you know or have reason to know that a withholding certificate or documentary evidence provided by a payee is unreliable or incorrect to establish the payee's status for chapter﻿ ﻿3 purposes. If you rely on an agent to obtain documentation, you are considered to know, or have reason to know, the facts that are within the knowledge of your agent for this purpose. If you receive notification from the IRS that a payee's claim of status for chapter﻿ ﻿3 purposes is incorrect or unreliable, you may not rely upon the claim except to the extent indicated by the IRS.

Reason To Know

In general, you are considered to have reason to know that a claim of U.S. status or of a reduced rate of withholding is incorrect if statements contained in the withholding certificate or other documentation, or other relevant facts of which you have knowledge, would cause a reasonably prudent person in your position to question the claims made.

For an obligation that is not a preexisting obligation (that is, an obligation, including an account, held by an individual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, executed, or issued before January 1, 2015), you have reason to know that an account holder’s chapter﻿ ﻿3 claim is unreliable or incorrect if any information contained in your account opening files or other account information conflicts with the account holder’s claim. For an obligation other than a preexisting obligation, you will not be considered to have reason to know that a person’s chapter﻿ ﻿3 claim is unreliable or incorrect based on documentation collected for anti-money laundering (AML) purposes until 30 days after the obligation is executed, or 30 days after the account is opened for such person, whichever is applicable.

Financial institutions, insurance companies, or brokers or dealers in securities have reason to know that documentation provided by a direct account holder is unreliable or incorrect only in the circumstances discussed next. If the documentation is considered unreliable or incorrect, you must get new documentation to support the payee’s claimed status or may rely on the original documentation if you receive the additional statements and/or documentation discussed later and are a withholding agent described above with respect to a direct account holder (defined in Regulations section 1.1441﻿-﻿7(b)(3)(i)). Such documentation is described in Regulations section 1.1471﻿-﻿3(c)(5)(i).

The circumstances, discussed next, also apply to other withholding agents. However, these withholding agents are not limited to these circumstances in determining if they have reason to know that documentation is unreliable or incorrect. These withholding agents cannot base their determination on the receipt of additional statements or documents. They need to get new documentation.

Withholding Certificates

You have reason to know that a Form W-8 provided by a direct account holder that is a foreign person is unreliable or incorrect if:

The Form W-8 is incomplete with respect to any item on the form that is relevant to the claims made by the account holder;

The Form W-8 contains any information that is inconsistent with the account holder's claim;

The Form W-8 lacks information necessary to establish entitlement to a reduced rate of withholding, if a reduced rate is claimed; or

You have information not contained on the form that is inconsistent with the claims made on the form.

The rules below apply to withholding agents that are financial institutions, insurance companies, or brokers or dealers in securities.

Limits on reason to know for preexisting obligations.

With respect to a preexisting obligation (that is, an obligation, including an account, held by an individual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, executed, or issued before January 1, 2015), if you have documented the foreign status of an account holder for purposes of chapter﻿ ﻿3 or 61 prior to July 1, 2014, you may continue to rely on that documentation. In addition, if you make a payment to a new entity account holder that you treat as a preexisting entity account under Notice 2014﻿-﻿33, 2014﻿-﻿20 I.R.B. 1006, available at IRS.gov/irb/2014﻿-﻿21_IRB#NOT-2014﻿-﻿33, you may apply the standards of knowledge in Regulations sections 1.1441﻿-﻿7(b)(5) and (b)(8), that were applicable prior to the issuance of the temporary regulations. See Notice 2014﻿-﻿59, 2014﻿-﻿44 I.R.B. 747, available at IRS.gov/irb/2014﻿-﻿44_IRB#NOT-2014﻿-﻿59.

However, if you review documentation for an individual account holder claiming foreign status that contains a U.S. place of birth or if you are notified of a change in circumstances, the obligation will be treated as having a change in circumstances as of the date you review the documentation or receive the notification, and you will then have reason to know that the documentation is unreliable or incorrect. However, if you are reviewing documentation provided by an entity before January 1, 2015, you will not be required to treat the additional U.S. indicia added to Regulations section 1.1441﻿-﻿7(b) by the temporary regulations as a change in circumstances. See Notice 2014﻿-﻿59, for more information.

Establishment of foreign status by certain withholding agents.

You have reason to know that a Form W-8BEN or W-8BEN-E is unreliable or incorrect to establish a direct account holder's status as a foreign person if:

The Form W-8 has a current permanent residence address in the United States,

The Form W-8 has a current mailing address in the United States,

You have a current residence or current mailing address as part of your account information that is an address in the United States,

The account holder notifies you of a new residence or mailing address in the United States,

You have classified the account holder as a U.S. person in your account information, or

You have a current telephone number for the account holder in the United States and no telephone number for the account holder outside the United States (only to the extent described in Regulations section 1.1441﻿-﻿7(b)(5)).

You may, however, rely on a Form W-8 as establishing the account holder's foreign status if any of the following apply.

You receive the Form W-8BEN from an individual and:

You possess or obtain documentary evidence (that does not contain a U.S. address) that supports the claim of foreign status, and the individual provides you with a reasonable explanation, in writing, supporting the claim of foreign status;

If you make a payment outside the United States with respect to an offshore obligation and you possess or obtain documentary evidence establishing foreign status that does not contain a U.S. address;

With respect to an offshore obligation, if you classify the individual as a resident of the country where the obligation is maintained and you are required to report payments to the individual annually to the tax authority of the country where the obligation is maintained and that country has a tax treaty or information exchange agreement in effect with the United States; or

You have classified the account holder as a U.S person in your account information and you possess or obtain documentary evidence evidencing citizenship in a country other than the United States.

You receive the Form W-8BEN-E from an entity that is not a flow-through entity and:

You have in your possession or obtain documentation establishing foreign status that substantiates that the entity is organized or created under foreign law; or

With respect to an offshore obligation, if you classify the entity as a resident of the country where the obligation is maintained and you are required to report payments to the entity annually to the tax authority of the country where the obligation is maintained and that country has a tax treaty or information exchange agreement in effect with the United States.

The account holder (whether an individual or an entity) has provided standing instructions to make payments with respect to an offshore obligation to an address in, or an account maintained in, the United States, unless the account holder provides a reasonable explanation, in writing, that supports its foreign status or provides documentary evidence supporting its foreign status.

If an individual account holder provides a Form W-8BEN to establish the individual’s foreign status, and you have, either an accompanying documentation or as part of your account information, an unambiguous indication of a place of birth for the individual in the United States, you may not rely on the Form W-8BEN unless you possess or obtain documentary evidence evidencing citizenship in a country other than the United States, and either (i) a copy of the individual’s Certificate of Loss of Nationality of the United States, or (ii) a reasonable written explanation for the individual’s renunciation of U.S. citizenship (or, under an applicable IGA, the reason the individual does not have a Certificate of Loss of Nationality of the United States despite relinquishing its U.S. citizenship), or the reason the individual did not obtain U.S. citizenship at birth.

Claim of reduced rate of withholding under treaty by certain withholding agents.

You have reason to know that a Form W-8BEN or W-8BEN-E provided by a direct account holder to claim a reduced rate of withholding under a treaty is unreliable or incorrect for purposes of establishing the account holder's residency in a treaty country if:

The permanent residence address on the Form W-8 is not in the treaty country or the beneficial owner notifies you of a new permanent residence address that is not in the treaty country,

The permanent residence address on the Form W-8 is in the treaty country but the withholding certificate (or your account information) contains a mailing address that is not in the treaty country,

You have a current mailing address in your account information outside the treaty country, or

The account holder has standing instructions for you to pay amounts from its account to an address or an account not in the treaty country.

You may, however, rely on a Form W-8 as establishing an account holder's claim of a reduced rate of withholding under a treaty if any of the following apply.

The permanent residence address is not in the treaty country and:

The account holder provides a reasonable explanation for the permanent residence address outside the treaty country, or

You possess or obtain documentary evidence described in Regulations section 1.1471﻿-﻿3(c)(5)(i) that establishes residency in a treaty country.

The mailing address is not in the treaty country and:

You possess or obtain documentary evidence described in Regulations section 1.1471﻿-﻿3(c)(5)(i) (that does not contain an address outside the treaty country) supporting the beneficial owner's claim of residence in the treaty country,

You possess or obtain documentation that establishes that the beneficial owner is an entity organized in a treaty country,

You know that the address outside the treaty country is a branch of the account holder that is a resident of the treaty country, or

You obtain a written statement from the beneficial owner that reasonably establishes its entitlement to treaty benefits.

You have instructions to pay amounts outside the treaty country and the account holder gives you a reasonable explanation, in writing, establishing residence in the applicable treaty country or you possess or obtain documentary evidence described in Regulations section 1.1471﻿-﻿3(c)(5)(i) establishing the account holder’s residence in the treaty country.

Hold mail instruction.

An address that is provided subject to an instruction to hold all mail to that address is not a permanent residence address such that you may not rely upon the Form W-8. However, the address can be used as a permanent residence address if the person has provided you with the documentary evidence that is permitted under Regulations section 1.1441﻿-﻿1(c)(38)(ii). If, after a Form W-8 is provided, a person’s permanent residence address is subsequently subject to a hold mail instruction, this is a change in circumstances requiring the person to provide the documentary evidence described in the preceding sentence in order to use the address as a permanent residence address.

Documentary Evidence

You have reason to know that documentary evidence provided by a direct account holder to support a claim of foreign status is unreliable or incorrect if:

The documentary evidence does not reasonably establish the identity of the person presenting the documentary evidence;

The documentary evidence contains information that is inconsistent with the account holder's claim of a reduced rate of withholding; or

You have account information that is inconsistent with the account holder's claim of a reduced rate of withholding, or the documentary evidence lacks information necessary to establish a reduced rate of withholding. For example, the documentary evidence does not contain, or is not supplemented by, statements regarding the derivation of the income or compliance with limitations on benefits provisions in the case of an entity claiming treaty benefits.

Establishment of foreign status.

You have reason to know that documentary evidence is unreliable or incorrect to establish a direct account holder's status as a foreign person if any of the following apply.

For documentary evidence received prior to January 1, 2001, if you have actual knowledge that the account holder is a U.S. person or if you have a mailing or residence address for the account holder in the United States.

For documentary evidence received after December 31, 2000, if you do not have a permanent residence address for the account holder, if you have classified the account holder as a U.S. person in your account information, if you have a current mailing or current permanent residence address (whether or not on the documentation) for the account holder in the United States, if the account holder notifies you of a new residence or mailing address in the United States, or if you have a current telephone number for the account holder in the United States and no telephone number for the account holder outside the United States.

If the account holder is an individual and you have, either on the documentary evidence or as part of your account information, an unambiguous place of birth for the individual in the United States.

With respect to an offshore obligation, the account holder has standing instructions directing you to pay amounts from the account to an address or account maintained in the United States.

You may, however, rely on documentary evidence as establishing an account holder's foreign status if any of the following apply.

The mailing or residence address or sole telephone number is in the United States, you receive the documentary evidence from an individual, and:

You possess or obtain additional documentary evidence (that does not contain a U.S. address) supporting the claim of foreign status and a reasonable explanation, in writing, supporting the account holder's foreign status;

You obtain a Form W-8 that contains a permanent residence address and mailing address outside the United States (or, if a mailing address is inside the United States, the account holder provides a reasonable explanation, in writing, supporting the account holder’s foreign status); or

For a payment made with respect to an offshore obligation, if you classify the individual as a resident of the country where the obligation is maintained, you are required to report a payment made to the individual annually on a tax information statement filed with that country’s tax authority as part of the resident reporting requirements, and that country has a tax information exchange agreement or income tax treaty in effect with the United States.

The mailing or residence address or sole telephone number is in the United States, you receive the documentary evidence from an entity (other than a flow-through entity), and:

You possess or obtain documentation to substantiate that the entity is actually organized or created under the laws of a foreign country;

You obtain a valid Form W-8 that contains a permanent residence address and mailing address outside the United States (or, if a mailing address is inside the United States, the account holder provides a reasonable explanation, in writing, supporting the account holder’s foreign status); or

For a payment made with respect to an offshore obligation, if you classify the entity as a resident of the country where the obligation is maintained and you are required to report a payment made to the entity annually on a tax information statement filed with that country’s tax authority as part of the resident reporting requirements, and that country has a tax information exchange agreement or income tax treaty in effect with the United States.

You have instructions to pay amounts to an address or an account in the United States and the account holder provides you with a reasonable explanation, in writing, that supports the account holder's foreign status or a valid beneficial owner withholding certificate claiming foreign status.

You have an unambiguous place of birth in the United States for an individual account holder and you possess or obtain documentary evidence demonstrating the individual’s citizenship in a country other than the United States and a copy of the individual’s Certificate of Loss of Nationality of the United States. Alternatively, you may treat such an individual as a foreign person if you obtain a valid beneficial owner withholding certificate that establishes the individual’s foreign status, documentary evidence evidencing citizenship in a country other than the United States, and a reasonable explanation, in writing, of the individual’s renunciation of U.S. citizenship (or, under an applicable IGA, the reason the individual does not have a Certificate of Loss of Nationality of the United States despite relinquishing U.S. citizenship) or the reason the individual did not obtain U.S. citizenship at birth.

Claim of reduced rate of withholding under treaty.

You have reason to know that documentary evidence provided by a direct account holder to claim a reduced rate of withholding under a treaty is unreliable or incorrect for purposes of establishing the account holder's residency in a treaty country if:

You have a mailing or residence address for the account holder that is outside the applicable treaty country,

You have no permanent residence for the account holder, or

The account holder has standing instructions for you to pay amounts from its account to an address or account not in the treaty country.

You may, however, rely on documentary evidence as establishing an account holder's claim of a reduced rate of withholding under a treaty if any of the following apply.

The mailing or residence address is outside the treaty country and:

You possess or obtain additional documentary evidence supporting the account holder's claim of residence in the treaty country (and the documentary evidence does not contain an address outside the treaty country, a P.O. box, an in-care-of address, or the address of a financial institution),

You possess or obtain documentary evidence that establishes that the account holder is an entity organized in a treaty country, or

You obtain a valid Form W-8 that contains a permanent residence address and a mailing address in the applicable treaty country.

You have instructions to pay amounts outside the treaty country and the account holder gives you a reasonable explanation, in writing, establishing residence in the applicable treaty country or a valid beneficial owner withholding certificate that contains a permanent residence address and a mailing address in the applicable treaty country.

Indirect Account Holders' Chapter 3 Status

A withholding agent that receives documentation from a payee through an NQI, a flow-through entity, or a U.S. branch of a foreign bank or insurance company subject to U.S. or state regulatory supervision or a territory financial institution (other than a U.S. branch treated as a U.S. person) has reason to know that the documentary evidence is unreliable or incorrect for purposes of a claim of foreign status or a treaty claim if a reasonably prudent person in the withholding agent's position would question the claims made. This standard requires, but is not limited to, compliance with the following rules.

Withholding statement.

You must review the withholding statement provided with Form W-8IMY and may not rely on information in the statement to the extent the information does not support the claims made for a payee. You may not treat a payee as a foreign person if a U.S. address is provided for the payee. You may not treat a person as a resident of a country with which the United States has an income tax treaty if the address for the person is outside the treaty country.

You may, however, treat a payee as a foreign person and may treat a foreign person as a resident of a treaty country if the withholding statement is accompanied by a valid withholding certificate and documentary evidence or a reasonable explanation is provided, by the NQI, flow-through entity, or U.S. branch supporting the payee’s foreign status or residency in a treaty country.

Withholding certificate.

If you receive a Form W-8 for a payee in association with a Form W-8IMY, you must review each Form W-8 and verify that the information is consistent with the information on the withholding statement. If there is a discrepancy, you may rely on the Form W-8, if valid, and instruct the NQI, flow-through entity, or U.S. branch to correct the withholding statement, or, alternatively, you may apply the presumption rules, discussed later in Presumption Rules, to the payee.

If you choose to rely on the withholding certificate, you must, in addition to instructing the NQI, flow-through entity, or U.S. branch to correct the withholding statement, instruct the NQI, flow-through entity, or U.S. branch to confirm that it does not know or have reason to know that the withholding certificate is unreliable or inaccurate.

Documentary evidence.

If you receive documentary evidence for a payee in association with a Form W-8IMY, you must review the documentary evidence provided by the NQI, flow-through entity, or U.S. branch to determine that there is no obvious indication that the payee is a U.S. person subject to Form 1099 reporting or that the documentary evidence does not establish the identity of the person who provided the documentation (for example, the documentary evidence does not appear to be an identification document).

Standards of Knowledge for Purposes of Chapter 4

If you make a withholdable payment, you must withhold in accordance with the presumption rules (discussed later) if you know or have reason to know that a withholding certificate or documentary evidence provided by the payee is unreliable or incorrect to establish a payee’s chapter﻿ ﻿4 status. If you rely on an agent to obtain documentation, you are considered to know, or have reason to know, the facts that are within the knowledge of your agent for this purpose.

Notification by the IRS

If you receive notification from the IRS that a claim of status as a U.S. person, a participating FFI, a deemed-compliant FFI, or other entity entitled to a reduced rate of withholding under chapter﻿ ﻿4 is incorrect, you are considered to have knowledge that such a claim is incorrect beginning 30 days after you receive the notice.

GIIN Verification

If you have received a Form W-8BEN-E or Form W-8IMY from an entity payee that is claiming certain chapter﻿ ﻿4 statuses, you must obtain and verify the entity’s GIIN against the published IRS FFI list. The IRS FFI list can be found at IRS.gov/Businesses/Corporations/FFI-List-Resources-Page. You must obtain and verify against the published IRS FFI list a GIIN for the following chapter﻿ ﻿4 statuses.

Participating FFIs (including reporting Model 2 FFIs).

Registered deemed-compliant FFIs (including reporting Model 1 FFIs).

Sponsored FFIs.

Direct reporting NFFEs.

Sponsored direct reporting NFFEs.

Certain nonreporting IGA FFIs (as described below).

If you receive a Form W-8BEN-E or Form W-8IMY from a nonreporting IGA FFI that is a trustee-documented trust with a foreign trustee, you must obtain the GIIN of a foreign trustee, but you are not required to verify the GIIN. The GIIN that the trustee must provide is the GIIN that it received when it registered as a participating FFI or reporting Model 1 FFI, not the GIIN that it received when it registered as a trustee of a trustee-documented trust.

If you receive a Form W-8BEN-E or Form W-8IMY from a nonreporting IGA FFI that checks Model 2 IGA in Part XII of Form W-8BEN-E or Part XIX of Form W-8IMY (as applicable) and identifies a category of entity that is a registered deemed-compliant FFI under Annex II of an applicable Model 2 IGA, you must obtain and verify the GIIN of the nonreporting IGA FFI. Additionally, if you receive a Form W-8BEN-E or Form W-8IMY from a nonreporting IGA FFI that provides a citation to a section of the regulations for its registered deemed-compliant status in Part XII of Form W-8BEN-E or Part XIX of Form W-8IMY (as applicable), you must obtain and verify the GIIN of the nonreporting IGA FFI. You will have reason to know that such payee is not such a financial institution if the payee's name (including a name reasonably similar to the name the withholding agent has on file for the payee) and GIIN do not appear on the most recently published IRS FFI list within 90 days of the date that the claim is made.

If you receive a Form W-8BEN-E or Form W-8IMY from an entity payee and the form contains “Applied for” in the box for the GIIN, the payee must provide you its GIIN within 90 days of providing the form. A Form W-8BEN-E or Form W-8IMY from such payee that does not include a GIIN, or includes a GIIN that does not appear on the published IRS FFI list, will be invalid for chapter﻿ ﻿4 purposes 90 days after the date the form is provided.

The GIIN that you must confirm is the GIIN assigned to the FFI identifying its country of residence for tax purposes (or place of organization if the FFI has no country of residence), except as otherwise provided.

Branches and disregarded entities.

If you make a withholdable payment to a branch of, or an entity that is disregarded as an entity separate from, a participating FFI or registered deemed-compliant FFI located outside of the FFI's country of residence or organization, the GIIN you must verify is the GIIN of the branch or disregarded entity receiving the payment. You must identify a GIIN associated with a disregarded entity to the extent provided in the Instructions for Form W-8BEN-E or the Instructions for Form W-8IMY.

You will have reason to know that a withholdable payment is made to a branch (including a disregarded entity) of a participating FFI or registered deemed-compliant FFI that is not itself a participating FFI or registered deemed-compliant FFI when you are directed to make the payment to an address in a jurisdiction other than that of the participating FFI or registered deemed-compliant FFI (or branch of, or disregarded entity wholly owned by, such FFI) that is identified as the FFI (or branch of, or disregarded entity wholly owned by, such FFI) that is supposed to receive the payment and for which the FFI's GIIN is not confirmed, as described in the preceding paragraphs.

The preceding sentence does not apply to an FFI that is an investment entity. If an FFI (other than an investment entity) directs you to make the payment to an account held by the FFI and maintained by another financial institution, the FFI must provide to you a statement, in writing, that the FFI is not directing the payment to any branch of such FFI that is not a participating FFI or a registered deemed-compliant FFI.

Sponsored, closely held investment vehicles.

If you make a withholdable payment to a certified deemed-compliant FFI that is a sponsored, closely held investment vehicle, you must obtain a GIIN for the sponsoring entity and verify it against the published IRS FFI list.

Reason To Know

In general, you have reason to know that a claim of chapter﻿ ﻿4 status is unreliable or incorrect if your knowledge of relevant facts or statements contained in the withholding certificate or other documentation is such that a reasonably prudent person would question the claim being made. For an obligation other than a preexisting obligation (that is, an obligation other than an obligation, including an account, held by an individual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, executed, or issued before January 1, 2015), you have reason to know that a claim of chapter﻿ ﻿4 status is unreliable or incorrect if any information contained in the account opening files or other customer account files, including documentation collected for AML due diligence purposes, conflicts with the chapter﻿ ﻿4 status being claimed. You will not have reason to know that a claim of chapter﻿ ﻿4 status is unreliable or incorrect based on documentation collected for AML due diligence purposes until the date that is 30 days after the obligation is created.

If you have classified an entity as engaged in a particular type of business based on your records, such as through the use of a standardized industry coding system, you have reason to know that the chapter﻿ ﻿4 status claimed by the entity is unreliable or incorrect only if the entity’s claim conflicts with the withholding agent’s classification of the entity’s business type.

Withholding Certificates

In general, you have reason to know that a withholding certificate from a person is unreliable or incorrect with respect to a claim of chapter﻿ ﻿4 status if:

The withholding certificate is incomplete with respect to any item on the certificate that is relevant to the claim made by the person;

The withholding certificate contains any information that is inconsistent with the person’s claim;

You have other account information that is inconsistent with the person’s claim;

The withholding certificate lacks information necessary to establish entitlement to an exemption from withholding for chapter﻿ ﻿4 purposes; or

With respect to an alternative certification under an applicable IGA included with a withholding certificate, if you know or have reason to know the certification is incorrect.

If you obtain a withholding certificate associated with a withholdable payment to a participating FFI, a registered deemed-compliant FFI, a sponsoring entity, or a sponsored FFI, you do not need to apply the standards of knowledge described earlier with respect to an account holder’s claim of foreign status if you have confirmed the FFI’s GIIN on the current published IRS FFI list within 90 days of receipt of the withholding certificate.

A withholding certificate used for chapter﻿ ﻿4 purposes must also include the information required for chapter﻿ ﻿3 purposes (that is, the entity’s tax classification) with regard to a payment that is a reportable amount under Regulations section 1.1441﻿-﻿1(e)(3)(vi).

Documentary Evidence

You have reason to know that documentary evidence provided by a person is unreliable or incorrect with respect to a claim of chapter﻿ ﻿4 status if:

The documentary evidence does not reasonably establish the identity of the person presenting the documentary evidence,

The documentary evidence contains information that is inconsistent with the person’s claim as to its chapter﻿ ﻿4 status,

You have other account information that is inconsistent with the person’s chapter﻿ ﻿4 status, or

The documentary evidence lacks information necessary to establish the person’s chapter﻿ ﻿4 status.

 For standards of knowledge applicable to specific types of documentary evidence, see Regulations section 1.1471﻿-﻿3.

Payee Documentation From Intermediaries or Flow-Through Entities

In general.

If you receive documentation for a payee of a withholdable payment through one or more intermediaries or flow-through entities, you must, in addition to determining each such entity’s chapter﻿ ﻿4 status when required for chapter﻿ ﻿4 purposes, review all documentation obtained with respect to the payee. Under certain circumstances, you may rely on a withholding certificate with an electronic signature provided by an account holder that is an NQI, when you are permitted to do so under Regulations section 1.1441﻿-﻿1(e)(4)(i)(B). When withholding under chapter﻿ ﻿4 is not applied based on the chapter﻿ ﻿4 status of an intermediary or flow-through entity, you are not required to obtain documentation for a payee through an intermediary or flow-through entity that is a QI, WP, or WT, or a payee that is included in a chapter﻿ ﻿4 withholding rate pool of U.S. payees.

Withholding statement.

You must review the withholding statement provided and may not rely on information in the statement to the extent the information does not support the claims made regarding the chapter﻿ ﻿4 status of the payee. You may not treat a person as a foreign person if a U.S. address is provided, unless the withholding statement is accompanied by a valid withholding certificate and documentary evidence establishing foreign status.

Withholding certificate.

You must review each withholding certificate, written statement (as permitted for chapter﻿ ﻿4 purposes with respect to certain payments to entities), or documentary evidence, and must verify that the information is consistent with the information on the withholding statement. If there is a discrepancy, you may rely on the documentation provided such documentation is valid and the intermediary or flow-through entity does not indicate that the documentation is unreliable or incorrect, or, alternatively, you may apply the presumption rules. If you choose to rely on the documentation, you must instruct the intermediary or flow-through entity to correct the withholding statement and confirm that the intermediary or flow-through entity does not know or have reason to know that the documentation is unreliable or incorrect. See Regulations section 1.1471﻿-﻿3(d) for when a written statement is permitted for chapter﻿ ﻿4 purposes.

Documentation from participating FFIs and registered deemed-compliant FFIs.

If you receive documentation for a payee of a withholdable payment through a participating FFI or registered deemed-compliant FFI that is an intermediary or flow-through entity receiving the payment, you may rely on the chapter﻿ ﻿4 status provided in the withholding statement, including a chapter﻿ ﻿4 status determined under the requirements of (and documentation or information that is publicly available that determines the chapter﻿ ﻿4 status of the payee permitted under) an applicable IGA, provided that you have the information necessary to report on Form 1042-S, unless you have information that conflicts with the chapter﻿ ﻿4 status provided. If underlying documentation is provided for the payee and information in the documentation or in your records conflicts with the chapter﻿ ﻿4 status claimed, you have reason to know that the chapter﻿ ﻿4 status claimed is unreliable or incorrect. However, you are not required to verify the information contained in the documentation that is not factually incorrect, and you are generally not required to obtain supporting documentation for the payee. You may determine the recipient code of a payee for chapter﻿ ﻿4 purposes (for filing Form 1042-S) that is not identified on a withholding statement when you are able to do so based on other information included on or with the withholding statement or in your records with respect to the payee.

Preexisting obligation of entities.

If you make a withholdable payment with respect to a preexisting obligation to an entity, the scope of review is limited with respect to the time in which you must determine the entity’s chapter﻿ ﻿4 status. For more information, see Regulations section 1.1471﻿-﻿3(e)(4)(vii) or, if you are a reporting Model 1 FFI or a reporting Model 2 FFI, the requirements of the applicable IGA.

Presumption Rules

If you cannot reliably associate a payment with valid documentation, you must apply certain presumption rules or you may be liable for tax, interest, and penalties. If you comply with the presumption rules, you are not liable for tax, interest, and penalties even if the rate of withholding that should have been applied based on the payee's actual status is different from that presumed.

The presumption rules apply to determine the status of the person you pay as a U.S. or foreign person and other relevant characteristics, such as whether the payee is a beneficial owner or intermediary, and whether the payee is an individual, corporation, partnership, or trust. In the case of a withholdable payment you make to an entity, you must apply the presumption rules for chapter﻿ ﻿4 purposes to treat the entity as a nonparticipating FFI when you cannot reliably associate the payment with documentation permitted for chapter﻿ ﻿4 purposes. You are not permitted to apply a reduced rate of chapter﻿ ﻿3 withholding based on a payee's presumed status if documentation is required to establish a reduced rate of withholding. For example, if the payee of interest is presumed to be a foreign person, you may not apply the portfolio interest exception or a reduced rate of withholding under a tax treaty since both exceptions require documentation.

If you rely on your actual knowledge about a payee's status and withhold an amount less than that required under the presumption rules or do not report a payment that is subject to reporting under the presumption rules, you may be liable for tax, interest, and penalties. You should, however, rely on your actual knowledge if doing so results in withholding an amount greater than would apply under the presumption rules or in reporting an amount that would not be subject to reporting under the presumption rules.

In the case of a participating FFI or registered deemed-compliant FFI that cannot report with respect to an individual account holder, the FFI must classify the account holder under the requirements (as applicable) of the FFI agreement, Regulations section 1.1471﻿-﻿5(f), or an applicable IGA. Whether withholding applies to payments made to such account holders classified as recalcitrant account holders (including payments to intermediaries or flow-through entities allocating payments to such account holders on an applicable withholding statement) differs under these requirements.

The presumption rules, in the absence of documentation, for the subject matter are discussed in the regulations section indicated in Chart A.

Chart A. Presumption Rules in the Absence of Documentation

For the presumption rules related to:

See Regulations section:

Payee's status

1.1441﻿-﻿1(b)(3); 1.6049﻿-﻿5(d); 1.1471﻿-﻿3(f) (chapter﻿ ﻿4 payees)

Effectively connected income

1.1441﻿-﻿4(a)(2)

Partnership and its partners

1.1441﻿-﻿5(d); 1.1446﻿-﻿1(c)(3)

Estate or trust and its beneficiaries or owner

1.1441﻿-﻿5(e)(6)

Foreign tax-exempt organizations (including private foundations)

1.1441﻿-﻿9(b)(3)

Presumption Rules for Chapter 4

If you determine that you are making a withholdable payment to an entity and cannot reliably associate the payment with a valid Form W-8 or other documentation that you are permitted to rely upon and that is sufficient to determine the chapter﻿ ﻿4 status of the entity, you are required to treat the entity payee as a nonparticipating FFI such that withholding applies. For purposes of determining whether the payment is made to an individual or an entity, or to a U.S. person or a foreign person, if you cannot reliably associate a payment with a valid Form W-8 or other documentation that you are permitted to rely upon and from which you are able to determine the payee’s status as an individual or entity, or U.S. or foreign status, you must apply the presumption rules of Regulations section 1.1441﻿-﻿1(b)(3)(ii) to determine the payee’s status as an individual or entity and Regulations section 1.1441﻿-﻿1(b)(3)(iii) to determine the payee’s U.S. or foreign status.

If you are making a withholdable payment to joint payees and cannot reliably associate the payment with valid documentation from each payee and each of the payees appears to be an individual, the payment is presumed made to an unidentified U.S. person. If any of the joint payees does not appear, by its name or other information in its account file, to be an individual, then the entire payment is treated as made to a nonparticipating FFI. However, if you receive from one of the joint payees a Form W-9, the payment shall be treated as made to that payee.

Income Subject to Withholding

This section explains how to determine if a payment is subject to chapter﻿ ﻿3 withholding or is a withholdable payment.

Amounts Subject to Chapter 3 Withholding

A payment is subject to chapter﻿ ﻿3 withholding if it is from sources within the United States, and it is fixed or determinable annual or periodical (FDAP) income. Generally, excluding gains but including certain gains from the disposal of timber, coal, and iron ore, or from the sale or exchange of patents, copyrights, and similar intangible property.

In addition, a payment is subject to chapter﻿ ﻿3 withholding if withholding is specifically required, even though it may not constitute U.S. source income or FDAP income. For example, corporate distributions may be subject to chapter﻿ ﻿3 withholding even though a part of the distribution may be a return of capital or capital gain that is not FDAP income.

Amounts not subject to chapter﻿ ﻿3 withholding.

The following amounts are not subject to chapter﻿ ﻿3 withholding.

Portfolio interest paid on obligations that meet certain requirements. See Interest, later.

Bank deposit interest that is not effectively connected with the conduct of a U.S. trade or business. See Interest, later.

Original issue discount on certain short- term obligations. See Original issue discount, later.

Nonbusiness gambling income of a nonresident alien playing blackjack, baccarat, craps, roulette, or big-6 wheel in the United States. See Gambling winnings, later.

Amounts paid as part of the purchase price of an obligation sold between interest payment dates. See Interest, later.

Original issue discount paid on the sale of an obligation other than a redemption. See Original issue discount, later.

Insurance premiums paid on a contract issued by a foreign insurer subject to the excise tax under section 4371.

U.S. source transportation income subject to a 4% tax on gross income.

Amounts Subject to Chapter 4 Withholding

U.S. source FDAP income for purposes of chapter﻿ ﻿4 is similar to U.S. source FDAP income for purposes of chapter﻿ ﻿3, subject to certain modifications such as the exclusion of certain types of non-financial payments and the inclusion (as U.S. source interest) of deposit interest paid by a foreign branch of a U. S. corporation or partnership. Also, see Fixed or Determinable Annual or Periodical Income (FDAP), later.

A withholding agent must withhold on a payment of U.S. source FDAP income that is a withholdable payment to which an exception does not apply under chapter﻿ ﻿4.

Amounts not subject to withholding under chapter﻿ ﻿4.

The following amounts are not subject to withholding under chapter﻿ ﻿4.

Interest or original issue discount from a short-term obligation.

Payments made under a grandfathered obligation (for example, obligations outstanding on July 1, 2014).

Source of Income

In most cases, income is from U.S. sources if it is paid by domestic corporations, U.S. citizens or resident aliens, or entities formed under the laws of the United States or a state. Income is also from U.S. sources if the property that produces the income is located in the United States or the services for which the income is paid were performed in the United States or the income is a dividend equivalent. A payment is treated as being from sources within the United States if the source of the payment cannot be determined at the time of payment, such as fees for personal services paid before the services have been performed. Other source rules are summarized in Chart B and explained in detail in the separate discussions under Withholding on Specific Income, later.

In most cases, interest on an obligation of a foreign corporation or foreign partnership is foreign-source income. If the entity is engaged in a trade or business in the United States during its tax year, interest paid by such entity is treated as from U.S. sources only if the interest is paid by a U.S. trade or business conducted by the entity or is allocable to income that is treated as effectively connected with the conduct of a U.S. trade or business. This applies to a foreign partnership only if it is predominantly engaged in the active conduct of a trade or business outside the United States.

Guarantee income.

Certain amounts paid, directly or indirectly, for the provision of a guarantee of indebtedness issued after September 27, 2010, are from U.S. sources. The amounts must be paid by one of the following.

A noncorporate U.S. resident or a U.S. corporation for the provision of a guarantee of the resident or corporation.

Any foreign person for the provision of a guarantee if the payment of income is effectively connected, or treated as effectively connected, with the conduct of a U.S. trade or business.

Personal service income (for purposes of chapter﻿ ﻿3 withholding).

If the income is for personal services performed in the United States, it is from U.S. sources. The place where the services are performed determines the source of the income, regardless of where the contract was made, the place of payment, or the residence of the payer.

However, under certain circumstances, payment for personal services performed in the United States is not considered income from sources within the United States. For information on this exception, see Pay for Personal Services Performed, later.

If the income is for personal services performed partly in the United States and partly outside the United States, you must make an accurate allocation of income for services performed in the United States based on the facts and circumstances. In most cases, you make this allocation on a time basis. That is, U.S. source income is the amount that results from multiplying the total amount of pay by the following fraction.

Number of days services are performed in the United States

Total number of days of service for which compensation is paid

Multiyear compensation.

Generally, the source of multiyear compensation is determined on a time basis over the period to which the compensation is attributable. Multiyear compensation is compensation that is included in the taxable income of a recipient in 1 tax year but that is attributable to a period that includes 2 or more tax years. The determination of the period to which the compensation is attributable, for purposes of determining its source, is based on the facts and circumstances of each case. For example, an amount of compensation that specifically relates to a period of time that includes several calendar years is attributable to the entire multiyear period. Where determining the source of multiyear compensation on a time basis is appropriate, the amount of compensation treated as from U.S. sources is figured by multiplying the total multiyear compensation by a fraction. The numerator of the fraction is the number of days (or unit of time less than a day, if appropriate) that labor or personal services were performed in the United States in connection with the project. The denominator of the fraction is the total number of days (or unit of time less than a day, if appropriate) that labor or personal services were performed in connection with the project.

Employees.

If the services are performed partly in the United States and partly outside the United States by an employee, the allocation of pay, other than certain fringe benefits, is determined on a time basis. The following fringe benefits are sourced on a geographical basis as shown in the following list.

Housing—employee's main job location.

Education—employee's main job location.

Local transportation—employee's main job location.

Tax reimbursement—jurisdiction imposing tax.

Hazardous or hardship duty pay—location of pay zone.

Moving expense reimbursement—employee's new main job location.

 For information on what is included in these benefits, see Regulations section 1.861﻿-﻿4(b)(2)(ii)(D).

An employee's main job location (principal place of work) is usually the place where the employee spends most of their working time. If there is no one place where most of the work time is spent, the main job location is the place where the work is centered, such as where the employee reports for work or is otherwise required to base their work.

An employee can use an alternative basis based on facts and circumstances, rather than the time or geographical basis. The employee, not the employer, must demonstrate that the alternative basis more properly determines the source of the pay or fringe benefits.

Territorial limits.

Wages received for services rendered inside the territorial limits of the United States and wages of an alien seaman earned on a voyage along the coast of the United States are regarded as from sources in the United States. Wages or salaries for personal services performed in a mine or on an oil or gas well located or being developed on the continental shelf of the United States are treated as from sources in the United States.

Income from the performance of services directly related to the use of a vessel or aircraft is treated as derived entirely from sources in the United States if the use begins and ends in the United States. This income is subject to withholding if it is not effectively connected with a U.S. trade or business. If the use either begins or ends in the United States, see Transportation income, later.

Crew members.

Income from the performance of services by a nonresident alien in connection with the individual's temporary presence in the United States as a regular member of the crew of a foreign vessel engaged in transportation between the United States and a foreign country or a U.S. territory is not income from U.S. sources.

Multilevel marketing.

Certain companies sell products through a multilevel marketing arrangement, such that an upper-tier distributor, who has sponsored a lower-tier distributor, is entitled to a payment from the company based on certain activities of that lower-tier distributor. Generally, depending on the facts, payments from such multilevel marketing companies to independent (nonemployee) distributors (upper-tier distributors) that are based on the sales or purchases of persons whom they have sponsored (lower-tier distributors) constitute income for the performance of personal services in recruiting, training, and supporting the lower-tier distributors. The source of such income is generally based on where the services of the upper-tier distributor are performed, and may, depending on the facts, be considered multiyear compensation, with the source of income determined over the period to which such compensation is attributable.

Scholarships, fellowships, and grants.

Scholarships, fellowships, and grants are sourced according to the residence of the payer. Those made by entities created or domiciled in the United States are generally treated as income from sources within the United States. However, see Activities outside the United States next. Those made by entities created or domiciled in a foreign country are treated as income from foreign sources.

Activities outside the United States.

A scholarship, fellowship, grant, targeted grant, or an achievement award received by a nonresident alien for activities conducted outside the United States is treated as foreign source income.

Pension payments.

The source of pension payments is determined by the part of the distribution that constitutes the compensation element (employer contributions) and the part that constitutes the earnings element (the investment income).

The compensation element is sourced the same as compensation from the performance of personal services. The part attributable to services performed in the United States is U.S. source income, and the part attributable to services performed outside the United States is foreign source income.

Employer contributions to a defined benefit plan covering more than one individual are not made for the benefit of a specific participant, but are made based on the total liabilities to all participants. All funds held under the plan are available to provide benefits to any participant. If the payment is from such a plan, you can use the method in Revenue Procedure 2004﻿-﻿37, 2004﻿-﻿26 I.R.B. 1099, available at IRS.gov/irb/2004﻿-﻿26_IRB#RP-2004﻿-﻿37, to allocate the payment to sources within and without the United States.

The earnings part of a pension payment is U.S. source income if the trust is a U.S. trust.

Chart B. Summary of Source Rules for FDAP Income

IF you have...

THEN the source of that income is determined by...

pay for personal services

where the services are performed.

dividends

the type of corporation (U.S. or foreign).

interest

the residence of the payer.

rents

where the property is located.

royalties—patents, copyrights, etc.

where the property is used.

royalties—natural resources

where the property is located.

pensions—distributions attributable to contributions

where the services were performed.

pensions—investment earnings on contributions

the location of pension trust.

scholarships and fellowship grants

in most cases, the residence of the payer.

guarantee of indebtedness

the residence of the debtor or whether the payment is effectively connected with a U.S. trade or business.

Fixed or Determinable Annual or Periodical (FDAP) Income

FDAP income is all income except:

Gains from the sale of property (not including original issue discount and certain gains that are referred to in Amounts Subject to Chapter 3 Withholding, earlier); and

Items of income excluded from gross income without regard to U.S. or foreign status of the owner of the income, such as tax-exempt municipal bond interest and qualified scholarship income.

The following items are examples of FDAP income.

Compensation for personal services paid to an individual or a sole proprietorship.

Dividends and dividend equivalent payments.

Interest.

Original issue discount.

Real estate mortgage investment conduit (REMIC) excess inclusion income.

Pensions and annuities.

Alimony (no longer income if the divorce or separation agreement is executed after December 31, 2018, or if executed before January 1, 2019, but modified after December 31, 2018, the modification must state that section 11051 of P.L. 115﻿-﻿97 (TCJA) applies to the modification).

Real property income, such as rents, other than gains from the sale of real property.

Royalties.

Taxable scholarships and fellowship grants.

Other taxable grants, prizes, and awards.

A sales commission paid or credited monthly.

A commission paid for a single transaction.

The distributable net income of an estate or trust that is FDAP income and must be distributed currently, or has been paid or credited during the tax year.

FDAP income distributed by a partnership that, or such an amount that, although not actually distributed, is includible in the gross income of a foreign partner.

Taxes, mortgage interest, or insurance premiums paid to, or for the account of, a nonresident alien landlord by a tenant under the terms of a lease.

Publication rights.

Prizes awarded to nonresident alien artists for pictures exhibited in the United States.

Purses paid to nonresident alien boxers for prize fights in the United States.

Prizes awarded to nonresident alien professional golfers in golfing tournaments in the United States.

Payments for the following purposes are examples of payments that are not withholdable payments.

Services (including wages and other forms of employee compensation (such as stock options)).

The use of property.

Office and equipment leases.

Software licenses.

Transportation.

Freight.

Gambling winnings.

Awards, prizes, and scholarships.

Interest on outstanding accounts payable arising from the acquisition of goods or services.

Periodic or lump-sum payments.

Income can be FDAP income whether it is paid in a series of repeated payments or in a single lump sum. For example, $5,000 in royalty income would be FDAP income whether paid in 10 payments of $500 each or in one payment of $5,000.

Insurance proceeds.

Income derived by an insured nonresident alien from U.S. sources upon the surrender of, or at the maturity of, a life insurance policy, is FDAP income and is subject to chapter﻿ ﻿3 withholding and is a withholdable payment. This includes income derived under a life insurance contract issued by a foreign branch of a U.S. life insurance company. The proceeds are income to the extent they exceed the cost of the policy.

However, certain payments received under a life insurance contract on the life of a terminally or chronically ill individual before death (accelerated death benefits) may not be subject to tax. This also applies to certain payments received for the sale or assignment of any part of the death benefit under contract to a viatical settlement provider. For more information, see Pub. 525.

Racing purses (for purposes of chapter﻿ ﻿3 withholding).

Racing purses are FDAP income and racetrack operators must withhold 30% on any purse paid to a nonresident alien racehorse owner in the absence of definite information contained in a statement filed together with a Form W-8 that the owner has not raced, or does not intend to enter, a horse in another race in the United States during the tax year. If available information indicates that the racehorse owner has raced a horse in another race in the United States during the tax year, then the statement and Form W-8 filed for that year are ineffective. The owner may be exempt from withholding of tax at 30% on the purses if the owner gives you Form W-8ECI, which provides that the income is effectively connected with the conduct of a U.S. trade or business and that the income is includible in the owner's gross income.

Covenant not to compete.

Payment received for a promise not to compete is generally FDAP income. Its source is the place where the promisor forfeited their right to act. Amounts paid to a nonresident alien for their promise not to compete in the United States are subject to chapter﻿ ﻿3 withholding and are withholdable payments.

Withholding on Specific Income

Different kinds of income are subject to different withholding requirements.

Effectively Connected Income

In most cases, when a foreign person engages in a trade or business in the United States, all income from sources in the United States connected with the conduct of that trade or business is considered effectively connected with a U.S. business. FDAP income may or may not be effectively connected with a U.S. business. For example, effectively connected income (ECI) includes rents from real property if the alien chooses to treat that income as effectively connected with a U.S. trade or business.

The factors to be considered in establishing whether FDAP income and similar amounts are effectively connected with a U.S. trade or business include:

Whether the income is from assets used in, or held for use in, the conduct of that trade or business; or

Whether the activities of that trade or business were a material factor in the realization of the income.

Income from securities.

There is a special rule determining whether income from securities is effectively connected with the active conduct of a U.S. banking, financing, or similar business.

If the foreign person's U.S. office actively and materially participates in soliciting, negotiating, or performing other activities required to arrange the acquisition of securities, the U.S. source interest or dividend income from the securities, gain or loss from their sale or exchange, income or gain economically equivalent to such amounts, or amounts received for providing a guarantee of indebtedness, is attributable to the U.S. office and is ECI.

Withholding exemption.

In most cases, you do not need to withhold tax on income for purposes of chapter﻿ ﻿3 or 4 if you receive a Form W-8ECI on which a foreign payee represents that:

The foreign payee is the beneficial owner of the income;

The income is effectively connected with the conduct of a trade or business in the United States; and

For purposes of chapter﻿ ﻿3 withholding, the income is includible in the payee's gross income.

This withholding exemption applies to income for services performed by a foreign partnership or foreign corporation (unless item (4) below applies to the corporation). The exemption does not apply, however, to:

Pay for personal services performed by an individual for purposes of chapter﻿ ﻿3 (see Pay for Personal Services Performed, later),

Effectively connected taxable income of a partnership that is allocable to its foreign partners (see Partnership Withholding on ECTI, later),

Income from the disposition of a USRPI (see U.S. Real Property Interest, later), or

Payments to a foreign corporation for personal services if all of the following apply.

The foreign corporation otherwise qualifies as a personal holding company for income tax purposes;

The foreign corporation receives amounts under a contract for personal services of an individual whom the corporation has no right to designate;

25% or more in value of the outstanding stock of the foreign corporation at some time during the tax year is owned, directly or indirectly, by or for an individual who has performed, is to perform, or may be designated as the one to perform, the services called for under the contract.

Withholding exemption for purposes of chapter﻿ ﻿4.

Income effectively connected with the conduct of a trade or business in the United States is not a withholdable payment under chapter﻿ ﻿4 and thus is not subject to withholding for chapter﻿ ﻿4 purposes. You do not need to withhold tax under chapter﻿ ﻿4 if you receive a Form W-8ECI on which a foreign payee makes the representations described in Withholding exemptions, earlier.

Notional principal contract income.

Certain payments attributable to a notional principal contract are not subject to withholding regardless of whether a Form W-8ECI is provided. However, payments of dividend equivalents that are not effectively connected with the conduct of a trade or business in the United States, pursuant to a specified notional principal contract (described later under Dividend equivalent payments) are subject to withholding.

Income from a notional principal contract is subject to reporting on Form 1042-S if it is effectively connected with the conduct of a trade or business in the United States. You must treat the income as effectively connected with a U.S. trade or business if you pay the income to, or to the account of, a qualified business unit (a branch) of a foreign person located in the United States or a qualified business unit located outside the United States and you know, or have reason to know, the income is effectively connected with the conduct of a U.S. trade or business. You do not need to treat notional principal contract income as effectively connected if you receive a Form W-8BEN-E that represents that the income is not effectively connected with the conduct of a U.S. trade or business or if the payee provides a representation in a master agreement or in the confirmation on the particular notional principal contract transaction that the payee is a U.S. person or a non-U.S. branch of a foreign person.

Income paid to U.S. branch of foreign bank or insurance company.

A payment to a U.S. branch of a foreign bank or a foreign insurance company that is subject to U.S. regulation by the Federal Reserve or state insurance authorities is presumed to be effectively connected with the conduct of a trade or business in the United States if you have an EIN for the branch, unless the branch provides a Form W-8BEN-E or Form W-8IMY for the income. If a U.S. branch of a foreign bank or insurance company receives income that the payer did not withhold upon because of the presumption that the income was effectively connected with the U.S. branch's trade or business, the U.S. branch is required to withhold on the income if it is in fact not effectively connected with the conduct of its trade or business in the United States. Withholding is required whether the payment was collected on behalf of other persons or on behalf of another branch of the same entity.

Income Not Effectively Connected

This section discusses the specific types of income that are subject to chapter﻿ ﻿3 withholding and where withholding under chapter﻿ ﻿4 is required. The income codes contained in this section correspond to the income codes used in the current-year revision of Form 1042-S (discussed later).

For purposes of chapter﻿ ﻿3, you must withhold tax at the statutory rates shown in Chart C unless a reduced rate or exemption under a tax treaty applies. For U.S. source gross income that is not effectively connected with a U.S. trade or business, the rate is usually 30%. In most cases, you must withhold the tax at the time you pay the income to the foreign person. See When to withhold, earlier.

Interest

Interest from U.S. sources paid to foreign payees is subject to chapter﻿ ﻿3 withholding and is a withholdable payment (except when the interest is paid with respect to a grandfathered obligation or another exemption under chapter﻿ ﻿4 applies). When making a payment on an interest-bearing obligation, you must withhold on the gross amount of stated interest payable on the interest payment date, even if the payment or a part of the payment may be a return of capital rather than interest.

A substitute interest payment made to the transferor of a security in a securities lending transaction or a sale-repurchase transaction is treated the same as the interest on the transferred security. Use Income Code 33 to report these substitute payments.

Interest paid by U.S. obligors—general (Income Code 1).

With specific exceptions, such as portfolio interest (for purposes of chapter﻿ ﻿3), you must withhold on interest paid or credited on bonds, debentures, notes, open account indebtedness, governmental obligations, certain deferred payment arrangements (as provided in section 483), or other evidences of indebtedness of U.S. obligors. U.S. obligors include the U.S. Government or its agencies or instrumentalities, any U.S. citizen or resident, any U.S. corporation, and any U.S. partnership.

If, in a sale of a corporation's property, payment of the bonds or other obligations of the corporation is assumed by the buyer, that buyer, whether an individual, partnership, or corporation, must deduct and withhold the taxes that would be required to be withheld by the selling corporation as if there had been no sale or transfer. Also, if interest coupons are in default, the tax must be withheld on the gross amount of interest whether or not the payment is a return of capital or the payment of income.

A resident alien paying interest on a margin account maintained with a foreign brokerage firm must withhold from the interest whether the interest is paid directly or constructively.

Interest on bonds of a U.S. corporation paid to a foreign corporation not engaged in a trade or business in the United States is subject to withholding even if the interest is guaranteed by a foreign corporation.

Domestic corporations must withhold on interest credited to foreign subsidiaries or foreign parents.

For withholding under chapter﻿ ﻿4 on the interest payments described in this section, see the definition of withholdable payments in Regulations section 1.1473﻿-﻿1(a).

Original issue discount (Income Code 30).

Original issue discount paid on the redemption of an obligation is subject to chapter﻿ ﻿3 withholding and is a withholdable payment (except when paid with respect to a grandfathered obligation). Original issue discount paid as part of the purchase price of an obligation sold or exchanged, other than in a redemption, is not subject to chapter﻿ ﻿3 withholding unless the purchase is part of a plan the principal purpose of which is to avoid tax and the withholding agent has actual knowledge or reason to know of the plan. However, such original issue discount is a withholdable payment (except when paid with respect to a grandfathered obligation). Withholding is required by a person other than the issuer of an obligation (or the issuer's agent).

The original issue discount that is subject to chapter﻿ ﻿3 withholding and is a withholdable payment (except when paid with respect to a grandfathered obligation) is the taxable amount of original issue discount. The taxable amount for both chapters 3 and 4 withholding purposes is the original issue discount that accrued while the obligation was held by the foreign beneficial owner up to the time the obligation was sold or exchanged or a payment was made, reduced by any original issue discount that was previously taxed. If a payment was made, the tax due on the original issue discount may not exceed the payment reduced by the tax imposed on the part of the payment that is qualified stated interest.

If you cannot determine the taxable amount, you must withhold on the entire amount of original issue discount accrued from the date of issue until the date of redemption (or sale or exchange, if subject to chapter﻿ ﻿3 withholding or a withholdable payment) determined on the basis of the most recently published Pub. 1212.

For more information on original issue discount, see Pub. 550.

Chart C. Withholding Tax Rates for Purposes of Chapter 3

Note. You must withhold tax at the following rates on payments of income unless a reduced rate or exemption is authorized under a tax treaty. The President may apply higher tax rates on income paid to residents or corporations of foreign countries that impose burdensome or discriminatory taxes on U.S. persons.

IF you paid the following type of income...

THEN you must generally withhold at the following rate...

Taxable part of U.S. scholarship or fellowship grant paid to holder of “F,” “J,” “M,” or “Q” visa (see Scholarships and Fellowship Grants, later)

14%

Gross investment income from interest, dividends, rents, and royalties paid to a foreign private foundation

4%

Pensions—part paid for personal services (see Pensions, Annuities, and Alimony, later)

Graduated rates in Circular A or Circular E

Wages paid to a nonresident alien employee (see Pay for Personal Services Performed, later)

Graduated rates in Circular A or Circular E

Each foreign partner's allocable share of the partnership’s ECTI (see Partnership Withholding on ECTI, later)

37% for noncorporate partners; 21% for corporate partners

Distributions of ECTI to foreign partners by publicly traded partnerships (see Publicly Traded Partnerships, later)

37% for noncorporate partners; 21% for corporate partners

Dispositions of USRPI (see U.S. Real Property Interest, later)

15%*

Dispositions of partnership interests under section 1446(f)

10%

Dividends paid to Puerto Rican corporation

10%

All other income subject to withholding

30%

*21% in the case of certain distributions by corporations, partnerships, trusts, or estates.

Reduced Rates of Withholding on Interest

Notwithstanding the exception from withholding under chapter﻿ ﻿3 on interest described under this heading, withholding may still apply under chapter﻿ ﻿4 when the payment is a withholdable payment and an exception from withholding under chapter﻿ ﻿4 does not apply.

Certain interest is subject to a reduced rate of, or exemption from, withholding.

Portfolio interest exempt from chapter﻿ ﻿3 withholding.

Interest and original issue discount that qualifies as portfolio interest is exempt from chapter﻿ ﻿3 withholding. However, these amounts are not exempt from withholding under chapter﻿ ﻿4 when the interest is a withholdable payment, unless an exception from chapter﻿ ﻿4 withholding applies. To qualify as portfolio interest, the interest must be paid on obligations issued after July 18, 1984, and otherwise subject to chapter﻿ ﻿3 withholding.

Note. The rules for determining whether interest is portfolio interest changed for obligations issued after March 18, 2012. Before March 19, 2012, portfolio interest included interest on certain registered and nonregistered (bearer) bonds if the obligations meet the requirements described below.

For obligations issued after March 18, 2012, portfolio interest does not include interest paid on debt that is not in registered form, except for interest paid on foreign-targeted registered obligations issued before January 1, 2016, as described in Foreign-targeted registered obligations, later.

Obligations in registered form.

Portfolio interest includes interest paid on an obligation that is in registered form, and for which you have received documentation that the beneficial owner of the obligation is not a U.S. person.

Generally, an obligation is in registered form if (i) the obligation is registered as to both principal and any stated interest with the issuer (or its agent) and any transfer of the obligation may be effected only by surrender of the old obligation and reissuance to the new holder, (ii) the right to principal and stated interest with respect to the obligation may be transferred only through a book entry system maintained by the issuer or its agent, or (iii) the obligation is registered as to both principal and stated interest with the issuer or its agent and can be transferred both by surrender and reissuance and through a book entry system.

An obligation that would otherwise be considered to be in registered form is not considered to be in registered form as of a particular time if it can be converted at any time in the future into an obligation that is not in registered form, except as otherwise provided in Notice 2012﻿-﻿20, 2012﻿-﻿13 I.R.B. 574, available at IRS.gov/irb/2012﻿-﻿13_IRB#NOT-2012﻿-﻿20, as described in the following section.

Dematerialized book-entry systems and effectively immobilized obligations.

An obligation will be considered to be in registered form if it is issued through either a dematerialized book entry system maintained by a clearing organization (or agent thereof) or a clearing system in which the obligation (including a global obligation in bearer form) is effectively immobilized. See Notice 2012﻿-﻿20, amplified by Notice 2013﻿-﻿43, 2013﻿-﻿31 I.R.B. 113, available at IRS.gov/irb/2013﻿-﻿31_IRB#NOT-2013﻿-﻿43.

Under dematerialized book-entry systems, bonds are required to be represented only by book entries, and no physical certificates are issued or transferred. The bonds are transferred only by book entries.

An obligation will be considered to be effectively immobilized if (1) it is represented by one or more global securities in physical form that are issued to and held by a clearing organization (or by a custodian or depository acting as an agent of the clearing organization) for the benefit of purchasers and under arrangements that prohibit transfer except to a successor clearing organization subject to the same terms, and (2) beneficial interest in the underlying obligation is transferable only through a book-entry system maintained by the clearing organization or its agent.

These bonds are considered to be in registered form if the holder may only obtain a physical certificate in bearer form when (1) the clearing organization that maintains the book-entry system goes out of business without a successor, (2) the issuer defaults, or (3) definitive securities are issued at the issuer’s request upon a change in tax law adverse to the issuer. See Notice 2012﻿-﻿20 and proposed regulations in 82 FR 43720, for more information on registered form requirements.

Foreign-targeted registered obligations.

A registered bond issued after March 18, 2012, and before January 1, 2016, will also be considered to be in registered form if it is targeted to foreign markets, and portfolio interest treatment may apply even when you do not receive documentation regarding the beneficial owner of the bond.

If the registered obligation is not targeted to foreign markets, you must receive documentation on which you may rely to treat the payee as a foreign person that is the beneficial owner of the interest. A registered obligation is targeted to foreign markets if it is sold (or resold in connection with its original issuance) only to foreign persons or to foreign branches of U.S. financial institutions in accordance with procedures similar to those provided in Regulations section 1.163﻿-﻿5(c)(2)(i). However, the procedure that requires the obligation to be offered for sale (or resale) only outside the United States does not apply if the registered obligation is offered for sale through a public auction. Also, the procedure that requires the obligation to be delivered outside the United States does not apply if the obligation is considered registered because it may be transferred only through a book-entry system and the obligation is offered for sale through a public auction. The documentation needed depends on whether the interest is paid to a financial institution, a member of a clearing organization, or to some other foreign person. See Notice 2012﻿-﻿20 and Regulations section 1.871﻿-﻿14(e) for more information on foreign-targeted registered obligations.

Obligations not in registered form and obligations issued before March 19, 2012.

For obligations issued before March 19, 2012, interest on an obligation that is not in registered form (bearer obligation) is portfolio interest if the obligation is foreign targeted. A bearer obligation is foreign targeted if:

There are arrangements to ensure that the obligation will be sold, or resold in connection with the original issue, only to a person who is not a U.S. person;

Interest on the obligation is payable only outside the United States and its territories; and

The face of the obligation contains a statement that any U.S. person who holds the obligation will be subject to limits under the U.S. income tax laws.

Documentation is not required for interest on bearer obligations to qualify as portfolio interest. In some cases, however, you may need documentation for purposes of Form 1099 reporting and backup withholding.

Interest on such obligations is not a withholdable payment under chapter﻿ ﻿4, except when the instrument is materially modified after March 18, 2012.

Interest that does not qualify as portfolio interest.

Payments to certain persons and payments of contingent interest do not qualify as portfolio interest. You must withhold at the statutory rate on such payments unless some other exception, such as a treaty provision, applies and withholding under chapter﻿ ﻿4 does not apply.

Contingent interest.

Portfolio interest generally does not include contingent interest. Contingent interest is interest that is determined by reference to any of the following.

Any receipts, sales, or other cash flow of the debtor or a related person.

Income or profits of the debtor or a related person.

Any change in value of any property of the debtor or a related person.

Any dividend, partnership distributions, or similar payments made by the debtor or a related person.

Any amount that is a dividend equivalent.

 The term “related person” is defined in section 871(h)(4)(B) .

The contingent interest rule does not apply to any interest paid or accrued on any indebtedness with a fixed term that was issued:

On or before April 7, 1993; or

After April 7, 1993, pursuant to a written binding contract in effect on that date and at all times thereafter before that indebtedness was issued.

10% owners.

Interest paid to a foreign person that owns 10% or more of the total combined voting power of all classes of stock of a corporation, or 10% or more of the capital or profits interest in a partnership, that issued the obligation on which the interest is paid is not portfolio interest. To determine 10% ownership, see Regulations section 1.871﻿-﻿14(g).

Banks.

Except in the case of interest paid on an obligation of the United States, interest paid to a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of the bank's trade or business does not qualify as portfolio interest.

Controlled foreign corporations.

Interest paid to a controlled foreign corporation from a person related to the controlled foreign corporation is not portfolio interest.

Reduced rate or exemption from chapter﻿ ﻿3 withholding for interest on real property mortgages (Income Code 2).

Certain treaties permit a reduced rate or exemption for interest paid or credited on real property mortgages. This is interest paid on any type of debt instrument that is secured by a mortgage or deed of trust on real property located in the United States, regardless of whether the mortgagor (or grantor) is a U.S. citizen or a U.S. business entity.

REMIC excess inclusions.

A domestic partnership must separately state a partner's allocable share of REMIC taxable income or net loss and the excess inclusion amount on Schedule﻿ ﻿K-1 (Form 1065). If the partnership allocates all or some part of its allocable share of REMIC taxable income to a foreign partner, the partner must include the partner's allocated amount in income as if that amount was received on the earlier of the following dates.

The date of distribution by the partnership.

The date the foreign partner disposed of its indirect interest in the REMIC residual interest.

The last day of the partnership's tax year.

 For purposes of item (2), the disposition may occur as a result of:

A termination of the REMIC,

A disposition of the partnership's residual interest in the REMIC,

A disposition of the foreign partner's interest in the partnership, or

Any other reduction in the foreign partner's allocable share of the partnership's part of the REMIC net income or deduction.

 The partnership must withhold tax on the part of the REMIC amount that is an excess inclusion. Excess inclusion income is treated as income from sources in the United States and is not eligible for any reduction in withholding tax (by treaty or otherwise). It is also a withholdable payment for chapter﻿ ﻿4 purposes.

An excess inclusion allocated to the following foreign persons must be included in that person's income at the same time as other income from the entity is included in income.

Shareholder of a real estate investment trust (REIT).

Shareholder of a regulated investment company (RIC).

Participant in a common trust fund.

Patron of a subchapter T cooperative organization.

The entity must withhold on the excess inclusion.

 For information on the taxation and reporting of excess inclusion income by REITs, RICs, and other pass-through entities, see Notice 2006﻿-﻿97, 2006﻿-﻿46 I.R.B. 904, available at IRS.gov/irb/2006﻿-﻿46_IRB#NOT-2006﻿-﻿97.

Reduced rate or exemption from chapter﻿ ﻿3 withholding for interest paid to controlling foreign corporations (Income Code 3).

A treaty may permit a reduced rate or exemption for interest paid by a domestic corporation to a controlling foreign corporation. The interest may be on any type of debt, including open or unsecured accounts payable, notes, certificates, bonds, or other evidences of indebtedness.

Reduced rate or exemption from chapter﻿ ﻿3 withholding for interest paid by foreign corporations (Income Code 4).

If a foreign corporation is engaged in a U.S. trade or business, any interest paid by the foreign corporation's trade or business in the United States (branch interest) is subject to chapter﻿ ﻿3 withholding as if paid by a domestic corporation (without considering the “payer having income from abroad” exception) and is a withholdable payment. As a result, the interest paid to foreign payees is generally subject to chapter﻿ ﻿3 withholding and withholding may apply under chapter﻿ ﻿4 absent an applicable withholding exception. In addition, if “allocable interest” exceeds the branch interest paid, the excess interest is also subject to tax and reported on the foreign corporation's income tax return, Form 1120-F. See the Instructions for Form 1120-F for more information.

If there is no treaty provision that reduces the rate of withholding on branch interest, you must withhold tax under chapter﻿ ﻿3 at the statutory rate of 30% on the interest paid by a foreign corporation's U.S. trade or business and you must withhold under chapter﻿ ﻿4 when otherwise applicable and without regard to a treaty provision.

In general, payees of interest from a U.S. trade or business of a foreign corporation are entitled to reduced rates of, or exemption from, tax under a treaty in the same manner and subject to the same conditions as if they had received the interest from a domestic corporation. However, a foreign corporation that receives interest paid by a U.S. trade or business of a foreign corporation must also be a qualified resident of its country of residence to be entitled to benefits under that country's tax treaty. If the payee foreign corporation is a resident of a country that has entered into an income tax treaty since 1987 that contains a limitation on benefits article, the foreign corporation need only satisfy the limitation on benefits article in that treaty to qualify for a reduced rate of tax.

Alternatively, a payee may be entitled to treaty benefits under the payer's treaty if there is a provision in that treaty that applies specifically to interest paid by the payer foreign corporation. This provision may exempt all or a part of this interest. Some treaties provide for an exemption regardless of the payee's residence or citizenship, while others provide for an exemption according to the payee's status as a resident or citizen of the payer's country.

A foreign corporation that pays interest must be a qualified resident (under section 884) of its country of residence for the payer's treaty to exempt payments from tax by the foreign corporation. However, if the foreign corporation is a resident of a country that has entered into an income tax treaty since 1987 that contains a limitation on benefits article, the foreign corporation need only satisfy the limitation on benefits article in that treaty to qualify for the exemption.

Interest on deposits (Income Code 29).

Foreign persons are not subject to chapter﻿ ﻿3 withholding on interest that is not connected with a U.S. trade or business if it is from:

Deposits with persons carrying on the banking business;

Deposits or withdrawable accounts with savings institutions chartered and supervised under federal or state law as savings and loan or similar associations, such as credit unions, if the interest is or would be deductible by the institutions; or

Amounts left with an insurance company under an agreement to pay interest on them.

Deposits include certificates of deposit, open account time deposits, Eurodollar certificates of deposit, and other deposit arrangements.

You may have to file Form 1042-S to report certain payments of interest on deposits. See Deposit interest paid to certain nonresident alien individuals under Returns Required, later. You may also have to file Form 1042-S when the deposit interest is a withholdable payment to which withholding applies (or was applied) to chapter﻿ ﻿4.

Obligations issued before August 10, 2010.

Interest received from a resident alien individual or a domestic corporation is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment if the interest meets all of the following requirements.

At least 80% of the payer’s gross income from all sources has been from active foreign business for the 3 tax years of the payer before the year in which the interest is paid, or for the applicable part of those 3 years.

The recipient is not a related person. Use rules similar to those in section 954(d)(3) to determine if the recipient is a related person.

The interest is paid on an obligation issued before August 10, 2010.

The obligation has not been significantly modified since August 10, 2010.

Interest from foreign business arrangements.

In certain cases, interest received from a domestic payer, most of whose gross income is active foreign business income, is not subject to chapter﻿ ﻿3 withholding and is not a withholdable payment.

Active foreign business income is gross income that is:

Derived from sources outside the United States, and

Attributable to the active conduct of a trade or business in a foreign country or territory of the United States by the domestic payer.

Corporations existing on January 1, 2011.

Certain interest received from a domestic corporation that is an existing 80/20 company is not subject to withholding. An existing 80/20 company must meet all of the following requirements.

It was in existence on January 1, 2011.

For the 3 tax years beginning before January 1, 2011 (or for its years of existence if the corporation was in existence for less than 3 tax years), at least 80% of its gross income from all sources was active foreign business income.

It continues to meet the 80% test for every tax year beginning after December 31, 2010.

It has not added a substantial line of business after August 10, 2010.

Transitional rule for active foreign business income.

In most cases, the domestic corporation determines its active foreign business income by combining its income and the income of any subsidiary in which it owns, directly or indirectly, 50% or more of the stock. However, if the testing period includes 1 or more tax years beginning before January 1, 2011, the corporation can use only its gross income for any tax year beginning before January 1, 2011, and will meet the 80% test if the weighted average percentage of active foreign business income is more than 80%.

A foreign beneficial owner does not need to provide a Form W-8 or documentary evidence for this exception. However, documentation may be required for purposes of Form 1099 reporting and backup withholding.

Sales of bonds between interest dates.

Amounts paid as part of the purchase price of an obligation sold or exchanged between interest payment dates is not subject to chapter﻿ ﻿3 withholding. In addition, such a payment is not a withholdable payment. This does not apply if the sale or exchange is part of a plan the principal purpose of which is to avoid tax and you have actual knowledge or reason to know of the plan. The exemption from chapter﻿ ﻿3 withholding and from withholdable payments applies even if you do not have any documentation from the payee. However, documentation may be required for purposes of Form 1099 reporting and backup withholding.

Short-term obligations.

Interest and original issue discount paid on an obligation that is payable 183 days or less from the date of its original issue (without regard to the period held by the taxpayer) that satisfy other requirements intended to ensure that the debt is not held by a U.S. nonexempt person are not subject to chapter﻿ ﻿3 withholding. In addition, such a payment is not a withholdable payment. These exemptions apply even if you do not have any documentation from the payee. However, documentation may be required for purposes of Form 1099 reporting and backup withholding.

Income from U.S. Savings Bonds of residents of the Ryukyu Islands or the Trust Territory of the Pacific Islands.

Interest from a Series E, Series EE, Series H, or Series HH U.S. Savings Bond is not subject to chapter﻿ ﻿3 withholding if the nonresident alien individual acquired the bond while a resident of the Ryukyu Islands or the Trust Territory of the Pacific Islands.

Dividends

The following types of dividends paid to foreign payees are generally subject to chapter﻿ ﻿3 withholding and are generally withholdable payments such that withholding chapter﻿ ﻿4 applies absent an exception available under chapter﻿ ﻿4.

Dividends paid by U.S. corporations—general (Income Code 6).

This category includes all distributions of domestic corporations (other than dividends qualifying for direct dividend rate—Income Code 7).

A corporation making a distribution with respect to its stock, or any intermediary making a payment of such a distribution, is required to withhold on the entire amount of the distribution at the rate applicable under chapter﻿ ﻿3 when withholding under chapter﻿ ﻿4 does not apply. However, a distributing corporation or intermediary may elect to not withhold on the part of the distribution that:

Represents a nontaxable distribution payable in stock or stock rights;

Represents a distribution in part or full payment in exchange for stock;

Is not paid out of current or accumulated earnings and profits, based on a reasonable estimate of the anticipated amount of earnings and profits for the tax year of the distribution made at a time reasonably close to the date of the distribution;

Represents a capital gain dividend (use Income Code 36) or an exempt interest dividend by a RIC; or

Is subject to withholding under section 1445 (withholding of tax on dispositions of USRPIs) and the distributing corporation is a U.S. real property holding corporation or a qualified investment entity (QIE).

The election is made by actually reducing the amount of withholding at the time the distribution is paid.

Dividends paid by a QIE (Income Code 24).

A QIE is:

Any REIT, or

Any RIC that is a U.S. real property holding corporation.

 A distribution by a QIE to a nonresident alien or a foreign corporation is treated as a dividend and is not subject to withholding under section 1445 as a gain from the sale or exchange of a USRPI if:

The distribution is on stock regularly traded on a securities market in the United States, and

The individual or corporation did not own more than 10% of such stock in the case of a REIT or 5% of such stock in the case of a RIC at any time during the 1-year period ending on the date of distribution.

 Certain distributions by a REIT may be treated as a dividend and are not subject to withholding under section 1445 as a gain from the sale or exchange of a USRPI. See Qualified investment entities (QIEs) under U.S. Real Property Interest, later.

Dividends paid by a domestic corporation (an existing “80/20” company).

The active foreign business percentage of any dividend paid by a domestic corporation that is an existing 80/20 company is not subject to withholding. A domestic corporation is an existing 80/20 company if it satisfies all of the following.

It was in existence on January 1, 2011.

For the 3 tax years beginning before January 1, 2011 (or for all years of existence if it was in existence for less than 3 tax years), at least 80% of its gross income from all sources was active foreign business income. Active foreign business income is gross income that is:

Derived from sources outside the United States, and

Attributable to the active conduct of a trade or business in a foreign country or territory of the United States by the corporation.

It continues to meet the 80% test for every tax year beginning after December 31, 2010.

It has not added a substantial line of business after August 10, 2010.

Transitional rule for item (2).

In most cases, the domestic corporation determines its active foreign business income by combining its income and the income of any subsidiary in which it owns, directly or indirectly, 50% or more of the stock. However, if the testing period includes 1 or more tax years beginning before January 1, 2011, the corporation can use only its gross income for any tax year beginning before January 1, 2011, and will meet the 80% test if the weighted average percentage of active foreign business income is more than 80%.

The active foreign business percentage is found by dividing the corporation’s active foreign business income for the testing period by the corporation’s total gross income for that period. The testing period is the 3 tax years before the year in which the dividends are declared (or shorter period if the corporation was not in existence for 3 years). If the corporation has no gross income for that 3-year period, the testing period is the tax year in which the dividend is paid.

Consent dividends.

If you receive a Form 972, Consent of Shareholder To Include Specific Amount in Gross Income, from a nonresident alien individual or other foreign shareholder who agrees to treat the amount as a taxable dividend, you must pay and report on Form 1042 and Form 1042-S any withholding tax you would have withheld if the dividend actually had been paid.

Interest-related dividends and short-term capital gain dividends received from mutual funds.

Certain interest-related dividends and short-term capital gain dividends paid by a mutual fund or other RIC are exempt from chapter﻿ ﻿3 withholding.

Dividends qualifying for direct dividend rate (Income Code 7).

A treaty may reduce the rate of withholding on dividends from that which generally applies under the treaty if the shareholder owns a certain percentage of the voting stock of the corporation when withholding under chapter﻿ ﻿4 does not apply. In most cases, this preferential rate applies only if the shareholder directly owns the required percentage, although some treaties permit the percentage to be met by direct or indirect ownership. The preferential rate may apply to the payment of a deemed dividend under section 304(a)(1). Under some treaties, the preferential rate for dividends qualifying for the direct dividend rate applies only if no more than a certain percentage of the paying corporation's gross income for a certain period consists of dividends and interest other than dividends and interest from subsidiaries or from the active conduct of a banking, financing, or insurance business. A foreign person should claim the direct dividend rate by filing the appropriate Form W-8.

Consent dividends.

If you receive a Form 972 from a foreign shareholder qualifying for the direct dividend rate, you must pay and report on Form 1042 and Form 1042-S any withholding tax you would have withheld if the dividend actually had been paid.

Dividends paid by foreign corporations (Income Code 8).

Dividends paid by a foreign corporation are generally not subject to chapter﻿ ﻿3 withholding and are not withholdable payments. This exception does not require a Form W-8. However, a Form W-8 may be required for purposes of Form 1099 reporting and backup withholding.

The payment to a foreign corporation by a foreign corporation of a deemed dividend under section 304(a)(1) is subject to chapter﻿ ﻿3 withholding and may be a withholdable payment except to the extent it can be clearly determined to be from foreign sources.

Corporation subject to branch profits tax.

If a foreign corporation is subject to branch profits tax for any tax year, withholding is not required on any dividends paid by the corporation out of its earnings and profits for that tax year. Dividends may be subject to withholding if they are attributable to any earnings and profits when the branch profits tax is prohibited by a tax treaty.

A foreign person may claim a treaty benefit on dividends paid by a foreign corporation to the extent the dividends are paid out of earnings and profits in a year in which the foreign corporation was not subject to the branch profits tax. However, you may apply a reduced rate of withholding under an income tax treaty only under rules similar to the rules that apply to treaty benefits claimed on branch interest paid by a foreign corporation. You should check the specific treaty provision.

Dividends paid to Puerto Rican corporation.

For chapter﻿ ﻿3 purposes, the tax rate on dividends paid to a corporation created or organized in, or under the law of, the Commonwealth of Puerto Rico is 10%, rather than 30%, if:

At all times during the tax year less than 25% in value of the Puerto Rican corporation's stock is owned, directly or indirectly, by foreign persons;

At least 65% of the Puerto Rican corporation's gross income is effectively connected with the conduct of a trade or business in Puerto Rico or the United States for the 3-year period ending with the close of the tax year of that corporation (or the period the corporation or any predecessor has been in existence, if less); and

No substantial part of the income of the Puerto Rican corporation is used, directly or indirectly, to satisfy obligations to a person who is not a bona fide resident of Puerto Rico or the United States.

No special rules apply to Puerto Rican corporations for chapter﻿ ﻿4 purposes, but special withholding rules do apply for withholdable payments made to territory financial institutions and nonfinancial entities. See the chapter﻿ ﻿4 regulations for information on these special requirements.

Dividend Equivalents

Dividend equivalent payments.

Dividend equivalent payments are treated as U.S. source dividends such that withholding under chapter﻿ ﻿3 may apply. Use Income Code 34 or 40 to report dividend equivalent payments. Dividend equivalent payments are withholdable payments except when an exception applies for chapter﻿ ﻿4 purposes.

 A dividend equivalent is a payment (as defined in Regulations section 1.871﻿-﻿15(c)) that, directly or indirectly, is contingent on, or determined by reference to, the payment of a dividend from U.S. sources. Dividend equivalent payments include the following payments.

A substitute dividend made under a securities lending or sale-repurchase transaction involving a U.S. stock.

A payment that references the payment of a dividend from an underlying security made under a specified notional principal contract.

A payment that references the payment of a dividend from an underlying security made to a specified equity-linked instrument.

Substitute dividend (Income Code 34).

A substitute dividend is any payment made under a securities lending or sale-repurchase transaction that (directly or indirectly) is contingent upon, or determined by reference to, the payment of a dividend from sources in the United States.

Specified notional principal contracts (SNPCs) and specified equity-linked instruments (SELIs) (Income Code 40).

Transactions entered into on or after January 1, 2017.

For transactions entered into on or after January 1, 2017 (including as a result of a deemed exchange pursuant to section 1001), an SNPC or SELI is a notional principal contract (NPC), or equity-linked instrument, respectively, with a delta of 0.8 or greater if it is a simple contract under Regulations section 1.871﻿-﻿15(a)(14)(i), or it meets the substantial equivalence test if it is a complex contract under Regulations section 1.871﻿-﻿15(a)(14)(ii). See Regulations section 1.871﻿-﻿15(g) for the delta test and Regulations section 1.871﻿-﻿15(h) for the substantial equivalence test.

Notwithstanding the preceding paragraph, for transactions entered into prior to January 1, 2025, transition relief provides that, subject to an anti-abuse rule, only delta-one transactions will be treated as SNPCs and SELIs. See Notice 2022﻿-﻿37, 2022﻿-﻿37 I.R.B. 234, available at IRS.gov/irb/2022﻿-﻿37_IRB#NOT-2022﻿-﻿37.

NPCs entered into before January 1, 2017.

 For transactions entered into before January 1, 2017, an SNPC is any NPC if:

In connection with entering into the contract, any long party to the contract transfers the underlying security to any short party to the contract;

In connection with the termination of the contract, any short party to the contract transfers the underlying security to any long party to the contract;

The underlying security is not readily tradeable on an established securities market; or

In connection with entering into the contract, the underlying security is posted as collateral by any short party to the contract with any long party to the contract.

For more information regarding dividend equivalents, see Regulations section 1.871﻿-﻿15 and Notice 2022﻿-﻿37.

Amounts paid to qualified securities lenders (QSLs).

A withholding agent that makes substitute dividend payments to a QSL may apply the transition rules described in Notice 2010﻿-﻿46, Part III, for payments made before January 1, 2025. See Notice 2022﻿-﻿37.

Amounts paid to QDDs.

Only an eligible entity that has entered into a QI agreement can be a QDD. An eligible entity is a home office or branch that is a QI and that is:

A dealer in equity derivatives that is subject to regulatory supervision as a dealer by a governmental authority in the jurisdiction in which it was organized or operates;

A bank or bank holding company that is subject to regulatory supervision as a bank or bank holding company (as applicable) by a governmental authority in the jurisdiction in which it was organized or operates;

An entity that is wholly owned (directly or indirectly) by a bank or bank holding company subject to regulatory supervision as a bank or bank holding company (as applicable) by a governmental authority in the jurisdiction in which the bank or bank holding company (as applicable) was organized or operates and that entity, in its capacity as a dealer in equity derivatives:

Issues potential section 871(m) transactions to customers; and

Receives dividends with respect to stock or dividend equivalent payments pursuant to potential section 871(m) transactions that hedge potential section 871(m) transactions that it issued;

A foreign branch of a U.S. financial institution if the foreign branch would be described in (1), (2), or (3) had it been a separate entity; or

Any person otherwise acceptable to the IRS.

A QDD is liable for tax under section 881 on its section 871(m) amount for each dividend on each underlying security. The section 871(m) amount is described in Regulations section 1.871﻿-﻿15(q)(3).

For more information on amounts paid to QDDs, see the chapter﻿ ﻿3 regulations issued with the section 871(m) regulations. You can view the regulations at IRS.gov/irb/2017﻿-﻿09_IRB#TD-9815.

Gains

You generally do not need to withhold under chapter﻿ ﻿3 or 4 on any gain from the sale of real or personal property because it is not FDAP income. However, see U.S. Real Property Interest, later.

Capital gains (Income Code 9).

You must withhold at 30%, or if applicable, a reduced treaty rate, on the gross amount of the following items.

Gains on the disposal of timber, coal, or domestic iron ore with a retained economic interest, unless an election is made to treat those gains as income effectively connected with a U.S. trade or business.

Gains on contingent payments received from the sale or exchange after October 4, 1966, of patents, copyrights, secret processes and formulas, goodwill, trademarks, trade brands, franchises, and other like property.

Gains on certain transfers of all substantial rights to, or an undivided interest in, patents if the transfers were made before October 5, 1966.

Certain gains from the sale or exchange of original issue discount obligations issued after March 31, 1972. For more on withholding on original issue discount obligations, see Interest, earlier.

If you do not know the amount of the gain, you must withhold an amount necessary to ensure that the tax withheld will not be less than 30% of the recognized gain. The amount to be withheld, however, must not be more than 30% of the amount payable because of the transaction.

Unless you have reason to believe otherwise, you may rely upon the written statement of the person entitled to the income as to the amount of gain. The Form W-8 or documentary evidence must show the beneficial owner's basis in the property giving rise to the gain.

Tax treaties.

Many tax treaties exempt certain types of gains from U.S. income tax. Be sure to carefully check the provision of the treaty that applies before allowing an exemption from withholding.

Royalties

In general, you must withhold tax under chapter﻿ ﻿3 on the payment of royalties from sources in the United States. However, certain types of royalties are given reduced rates or exemptions under some tax treaties. Accordingly, these different types of royalties are treated as separate categories for withholding purposes. For chapter﻿ ﻿4 purposes, royalties are nonfinancial payments and are therefore excluded as withholdable payments.

Most treaties have more than one withholding rate on royalties, which varies by the classification of the payment in that treaty. Be sure to check your particular treaty for the specific rate that applies to you.

Industrial royalties (Income Code 10).

This category of income includes royalties for the use of, or the right to use, patents, trademarks, secret processes and formulas, goodwill, franchises, “know-how,” and similar rights. It may also include payments for the use of, or right to use, industrial, commercial, and scientific equipment, when this is included in the treaty definition of royalties.

Motion picture or television copyright royalties (Income Code 11).

This category refers to royalties paid for the use of motion picture and television copyrights.

Other royalties (for example, copyright, software, broadcasting, endorsement payments) (Income Code 12).

This category refers to the royalties paid for the use of copyrights on books, periodicals, articles, etc., except motion picture and television copyrights.

Real Property Income and Natural Resources Royalties (Income Code 14)

You must withhold tax under chapter﻿ ﻿3 on income (such as rents and royalties) from real property located in the United States and held for the production of income, unless the foreign payee elects to treat this income as effectively connected with a U.S. trade or business. If the foreign payee chooses to treat this income as effectively connected, the payee must give you Form W-8ECI (discussed earlier). This real property income includes royalties from mines, wells, or other natural deposits, as well as ordinary rents for the use of real property. For chapter﻿ ﻿4 purposes, income from real property is either a nonfinancial payment (and therefore not a withholdable payment) or is excluded as a withholdable payment because it is ECI. For withholding that applies to the disposition of USRPI, see U.S. Real Property Interest, later.

Pensions, Annuities, and Alimony (Income Code 15)

The following rules apply to withholding on pensions, annuities, and alimony of foreign payees.

Pensions and annuities.

In most cases, you must withhold tax on the gross amount of pensions and annuities that you pay that are from sources within the United States. This includes amounts paid under an annuity contract issued by a foreign branch of a U.S. life insurance company.

Most tax treaties provide an exemption from tax on non-government pensions and annuities. See the specific treaty rules for government pensions. The exemption may not apply to lump-sum payments. See, for example, Article 17(2) of the United States–United Kingdom income tax treaty. In addition, it does not apply to payments treated as deferred compensation, which is often treated as income from employment.

For purposes of chapter﻿ ﻿3 withholding, in the absence of a treaty exemption, you must withhold at the statutory rate of 30% on the entire distribution that is from sources within the United States. You may, however, apply withholding at graduated rates to the part of a distribution that arises from the performance of services in the United States after December 31, 1986.

Employer contributions to a defined benefit plan covering more than one individual are not made for the benefit of a specific participant, but are made based on the total liabilities to all participants. All funds held under the plan are available to provide benefits to any participant. If the distribution is from such a plan, you can use the method in Revenue Procedure 2004﻿-﻿37 to allocate the distribution to sources in the United States.

The withholding rules that apply to payments to foreign persons generally take precedence over any other withholding rules that would apply to distributions from qualified plans and other qualified retirement arrangements.

Foreign pension plans are exempt from applying withholding under chapter﻿ ﻿4 when they are exempt beneficial owners under Regulations section 1.1471﻿-﻿6(f). A payment from a U.S. pension plan to a foreign individual beneficiary in the plan is not subject to withholding under chapter﻿ ﻿4.

No withholding.

Do not withhold tax on an annuity payment to a nonresident alien if at the time of the first payment from the plan, 90% or more of the employees eligible for benefits under the plan are citizens or residents of the United States and the payment is:

For the nonresident's personal services performed outside the United States; or

For personal services by a nonresident individual present in the United States for 90 days or less during each tax year, whose pay for those services did not exceed $3,000, and the personal services were performed for:

A nonresident alien individual, foreign partnership, or foreign corporation not engaged in a trade or business in the United States; or

An office or place of business of a U.S. resident or citizen that was maintained outside the United States.

If the payment otherwise qualifies under these rules, but less than 90% of the employees eligible for benefits are citizens or residents of the United States, you still need not withhold tax on the payment if:

The recipient is a resident of a country that gives a substantially equal exclusion to U.S. citizens and residents, or

The recipient is a resident of a beneficiary developing country under the Trade Act of 1974.

The foreign person entitled to the payments must provide you with a Form W-8BEN that contains the TIN of the foreign person.

Alimony payments.

In most cases, alimony payments made by U.S. resident aliens to nonresident aliens are taxable and subject to chapter﻿ ﻿3 withholding whether the recipients are residing abroad or are temporarily present in the United States.

Many tax treaties, however, provide for an exemption from withholding for alimony payments. See Tax Treaties, later, for information about treaty benefits.

Alimony payments made to a nonresident alien by a U.S. ancillary administrator of a nonresident alien estate are from foreign sources and are not subject to withholding. Alimony payments are not subject to chapter﻿ ﻿4 withholding.

Note.  Under section 11051 of P.L. 115﻿-﻿97 (TCJA), alimony is no longer considered income if the divorce or separation agreement is executed after December 31, 2018, or if executed before January 1, 2019, but modified after December 31, 2018, the modification must state that section 11051 of P.L. 115﻿-﻿97 applies to the modification.

Scholarships and Fellowship Grants Subject to Chapter 3 Withholding (Income Code 16)

A scholarship or fellowship grant is an amount given to an individual for study, training, or research, and which does not constitute compensation for personal services. For information about withholding on scholarship and fellowship grants that is treated as compensation for services, see Pay for services rendered, later. Whether a fellowship grant from U.S. sources is subject to chapter﻿ ﻿3 withholding depends on the nature of the payments and whether the recipient is a candidate for a degree. These amounts are not subject to chapter﻿ ﻿4 withholding. See Scholarships, fellowships, and grants under Source of Income, earlier.

Candidate for a degree.

Do not withhold on a qualified scholarship from U.S. sources granted and paid to a candidate for a degree. A qualified scholarship means any amount paid to an individual as a scholarship or fellowship grant to the extent that, in accordance with the conditions of the grant, the amount is to be used for the following expenses.

Tuition and fees required for enrollment or attendance at an educational organization.

Fees, books, supplies, and equipment required for courses of instruction at the educational organization.

The payment of a qualified scholarship to a nonresident alien is not reportable and is not subject to withholding. However, the part of a scholarship or fellowship paid to a nonresident alien that does not constitute a qualified scholarship is reportable on Form 1042-S and is subject to withholding. For example, those parts of a scholarship devoted to travel, room, and board are subject to withholding and are reported on Form 1042-S. The withholding rate is 14% on taxable scholarship and fellowship grants paid to nonresident aliens temporarily present in the United States in “F,” “J,” “M,” or “Q” nonimmigrant status. Payments made to nonresident alien individuals in any other immigration status are subject to 30% withholding.

Nondegree candidate.

If the person receiving the scholarship or fellowship grant is not a candidate for a degree, and is present in the United States in “F,” “J,” “M,” or “Q” nonimmigrant status, you must withhold tax at 14% on the total amount of the grant that is from U.S. sources if the following requirements are met.

The grant must be for study, training, or research in the United States.

The grant must be made by:

A tax-exempt organization operated for charitable, religious, educational, etc. purposes;

A foreign government;

A federal, state, or local government agency; or

An international organization, or a binational or multinational educational or cultural organization created or continued by the Mutual Educational and Cultural Exchange Act of 1961 (known as the Fulbright-Hays Act).

If the grant does not meet both (1) and (2) above, you must withhold at 30% on the amount of the grant that is from U.S. sources.

Alternate withholding procedure.

You may choose to treat the taxable part of a U.S. source grant or scholarship as wages. The student or grantee must have been admitted into the United States on an “F,” “J,” “M,” or “Q” visa. The student or grantee will know that you are using this alternate withholding procedure when you ask for a Form W-4.

The student or grantee must complete Form W-4 annually following the instructions given here and forward it to you, the payer of the scholarship, or your designated withholding agent. You may rely on the information on Form W-4 unless you know or have reason to know it is incorrect. You must file a Form 1042-S (discussed later) for each student or grantee who gives you, or your withholding agent, a Form W-4.

Each student or grantee who files a Form W-4 must file an annual U.S. income tax return to take the deductions claimed on that form. If the individual is in the United States during more than 1 tax year, they must attach a statement to the annual Form W-4 indicating that the individual has filed a U.S. income tax return for the previous year. If they have not been in the United States long enough to have to file a return, the individual must attach a statement to the Form W-4 saying that a timely U.S. income tax return will be filed.

The payer of the grant or scholarship must review the Form W-4 to make sure all the necessary and required information is provided. If the withholding agent knows or has reason to know that the amounts shown on the Form W-4 may be false, the withholding agent must reject the Form W-4 and withhold at the appropriate statutory rate (14% or 30%).

After receipt and acceptance of the Form W-4, the payer must withhold at the graduated rates in Pub. 15-T as if the grant or scholarship income were wages. The gross amount of the income is reduced by the total amount of any deductions on the Form W-4 and the withholding tax is figured on the rest.

Pay for services rendered.

Pay for services rendered as an employee by an alien who is also the recipient of a scholarship or fellowship grant is usually subject to graduated withholding under chapter﻿ ﻿3 according to the rules discussed later in Wages Paid to Employees— Graduated Withholding. This includes taxable amounts an individual who is a candidate for a degree receives for teaching, doing research, and carrying out other part-time employment required as a condition for receiving the scholarship or fellowship grant (that is, compensatory scholarship or fellowship income).

Grants given to students, trainees, or researchers that require the performance of personal services as a necessary condition for disbursing the grant do not qualify as scholarship or fellowship grants. Instead, they are compensation for personal services considered to be wages. It does not matter what term is used to describe the grant (for example, stipend, scholarship, fellowship, etc.).

CautionWithholding agents who pay grants that are in fact wages must report such grants on Forms 941 and W-2 and withhold income tax on them at the graduated rates. Withholding agents may not allow tax treaty exemptions that apply to scholarships and fellowships to be applied to grants that are really wages. It is the responsibility of the withholding agent to determine whether a grant is “wages” or a “scholarship or fellowship,” and to report and withhold on the grant accordingly. An alien student, trainee, or researcher may not claim a scholarship or fellowship treaty exemption against income that has been reported to them on Form W-2 as wages.

Per diem paid by the U.S. Government.

Per diem for subsistence paid by the U.S. Government (directly or by contract) to a nonresident alien engaged in a training program in the United States funded by the U.S. Agency for International Development are not subject to 14% or 30% withholding. This is true even if the alien is subject to income tax on those amounts.

Tax treaties.

Many treaties contain exemptions from U.S. taxation for scholarships and fellowships. Although usually found in the student articles of the tax treaties, many of these exemptions also apply to research grants received by researchers who are not students. See Tax Treaties, later, for information about treaty benefits. The treaty provision usually exempts the entire scholarship or fellowship amount, regardless of whether the grant is a “qualified scholarship” under U.S. law.

An alien student, trainee, or researcher may claim a treaty exemption for a scholarship or fellowship by submitting Form W-8BEN to the payer of the grant. However, a scholarship or fellowship recipient who receives both wages and a scholarship or fellowship from the same institution can claim treaty exemptions on both kinds of income on Form 8233.

The scholarship or fellowship recipient who is claiming a treaty exemption must provide you with a foreign TIN on Form W-8BEN or, in the case of a recipient who also received wages from the same institution, a U.S. TIN on Form 8233, or you cannot allow the treaty exemption. A copy of a completed Form W-7, showing that a TIN has been applied for, can be given to you with a Form 8233. See Form 8233, later, under Pay for Personal Services Performed.

Nonresident alien who becomes a resident alien.

In most cases, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on income from a scholarship or fellowship grant. A student (including a trainee or business apprentice) or researcher who has become a resident alien for U.S. tax purposes may not use the terms of a tax treaty due to a provision known as a “saving clause.” However, an exception to the saving clause may permit an exemption from tax to continue for scholarship or fellowship grant income even after the recipient has otherwise become a U.S. resident alien for tax purposes. In this situation, the individual must give you a Form W-9 and an attachment that includes all the following information.

The treaty country.

The treaty article addressing the income.

The article number (or location) in the tax treaty that contains the saving clause and its exceptions.

The type and amount of income that qualifies for the exemption from tax.

Sufficient facts to justify the exemption from tax under the terms of the treaty article.

Example. Article 20 of the U.S.–China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under the Internal Revenue Code, a student may become a resident alien for tax purposes if their stay in the United States exceeds 5 calendar years. However, the treaty allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States.

Other Grants, Prizes, and Awards Subject to Chapter 3 Withholding

Other grants, prizes, and awards made by grantors that reside in the United States are treated as income from sources within the United States. Those made for activities conducted outside the United States by a foreign person or by grantors that reside outside the United States are treated as income from foreign sources. These provisions do not apply to salaries or other pay for services.

Grant.

The purpose of a grant must be to achieve a specific objective, produce a report or other similar product, or improve or enhance a literary, artistic, musical, scientific, teaching, or other similar capacity, skill, or talent of the grantee. A grant must also be an amount that does not qualify as a scholarship or fellowship. The grantor must not intend the amount to be given to the grantee for the purpose of aiding the grantee to perform study, training, or research.

Prizes and awards.

Prizes and awards are amounts received primarily in recognition of religious, charitable, scientific, educational, artistic, literary, or civic achievement, or are received as the result of entering a contest. A prize or award is taxable to the recipient unless all of the following conditions are met.

The recipient was selected without any action on their part to enter the contest or proceeding.

The recipient is not required to render substantial future services as a condition to receive the prize or award.

The prize or award is transferred by the payer to a governmental unit or tax-exempt charitable organization as designated by the recipient.

Targeted grants and achievement awards.

Targeted grants and achievement awards received by nonresident aliens for activities conducted outside the United States are treated as income from foreign sources. Targeted grants and achievement awards are issued by exempt organizations or by the United States (or one of its instruments or agencies), a state (or a political subdivision of a state), or the District of Columbia for an activity (or past activity in the case of an achievement award) undertaken in the public interest.

Pay for Personal Services Performed

This section explains the rules for withholding tax from pay for personal services. You must generally withhold tax at the 30% rate on compensation you pay to a nonresident alien individual for labor or personal services performed in the United States, unless that pay is specifically exempted from withholding or subject to graduated withholding. This rule applies regardless of your place of residence, the place where the contract for service was made, or the place of payment.

Payments for personal services are not withholdable payments under chapter﻿ ﻿4 when they are nonfinancial payments. See Regulations section 1.1473﻿-﻿1(a)(4)(iii) for a description of these payments and their exclusion as withholdable payments.

Illegal aliens.

Foreign workers who are illegal aliens are subject to U.S. taxes in spite of their illegal status. U.S. employers or payers who hire illegal aliens may be subject to various fines, penalties, and sanctions imposed by U.S. Immigration and Customs Enforcement. If such employers or payers choose to hire illegal aliens, the payments made to those aliens are subject to the same tax withholding and reporting obligations that apply to other classes of aliens. Illegal aliens who are nonresident aliens and who receive income from performing independent personal services are subject to 30% withholding unless exempt under some provision of law or a tax treaty. Illegal aliens who are resident aliens and who receive income from performing dependent personal services are subject to the same reporting and withholding obligations that apply to U.S. citizens who receive the same kind of income.

Form 8233.

This form is used by a nonresident alien individual to claim a tax treaty exemption from withholding on some or all compensation paid for:

Independent personal services (self-employment),

Dependent personal services, or

Personal services income and noncompensatory scholarship or fellowship income from the same withholding agent.

A withholding agent that receives Form 8233 from a nonresident alien individual claiming a tax treaty exemption must review the form, sign to indicate its acceptance, and forward the form to the IRS within 5 days of its acceptance.

COVID-19 medical condition travel exception.

For tax years after December 31, 2021, individuals cannot claim the COVID-19 medical condition travel exception to exclude any days of presence in the United States for the purpose of the “substantial presence test.” This was solely available for the 2020 tax year. However, days of presence in the United States in 2020 that were excluded for tax year 2020 may impact the application of the “substantial presence test” for tax year 2021. For more information, including guidance for withholding agents, see the Instructions for Form 8233.

Form W-4.

This form is used by a person providing dependent personal services to claim withholding allowances, but not a tax treaty exemption. Nonresident alien individuals are subject to special instructions for completing the Form W-4. See the discussion under Wages Paid to Employees—Graduated Withholding, later.

Compensation for independent personal services (Income Code 17).

Independent personal services (a term commonly used in tax treaties) are personal services performed by an independent nonresident alien contractor as contrasted with those performed by an employee. This category of pay includes payments for professional services, such as fees of an attorney, physician, or accountant made directly to the person performing the services. It also includes honoraria paid by colleges and universities to visiting teachers, lecturers, and researchers.

Pay for independent personal services is subject to chapter﻿ ﻿3 withholding and reporting as follows.

30% rate.

You must withhold at the statutory rate of 30% on all payments unless the alien enters into a withholding agreement or receives a final payment exemption (discussed later).

Withholding agreements.

Pay for personal services of a nonresident alien who is engaged during the tax year in the conduct of a U.S. trade or business may be wholly or partially exempted from withholding at the statutory rate if an agreement has been reached between the Commissioner or his delegate and the alien as to the amount of withholding required. This agreement will be effective for payments covered by the agreement that are made after the agreement is executed by all parties. The alien must agree to timely file an income tax return for the current tax year.

Final payment exemption.

The final payment of compensation for independent personal services may be wholly or partially exempt from withholding at the statutory rate. This exemption applies to the last payment of compensation, other than wages, for personal services rendered in the United States that the alien expects to receive from any withholding agent during the tax year.

To obtain the final payment exemption, the alien, or the alien's agent, must file the forms and provide the information required by the Commissioner or his delegate. This information includes, but is not limited to, the following items.

A statement by each withholding agent from whom amounts of gross income effectively connected with the conduct of a U.S. trade or business have been received by the alien during the tax year. It must show the amount of income paid and the amount of tax withheld. The withholding agent must sign the statement and include a declaration that it is made under penalties of perjury.

A statement by the withholding agent from whom the final payment of compensation for personal services will be received showing the amount of final payment and the amount that would be withheld if a final payment exemption is not granted. The withholding agent must sign the statement and include a declaration that it is made under penalties of perjury.

A statement by the alien that they do not intend to receive any other amounts of gross income effectively connected with the conduct of a U.S. trade or business during the current tax year.

The amount of tax that has been withheld (or paid) under any other provision of the Internal Revenue Code or regulations for any income effectively connected with the conduct of a U.S. trade or business during the current tax year.

The amount of any outstanding tax liabilities, including any interest and penalties, from the current tax year or prior tax periods.

The provision of any income tax treaty under which a partial or complete exemption from withholding may be claimed, the country of the alien's residence, and a statement of sufficient facts to justify an exemption under that treaty.

The alien must give a statement, signed and verified by a declaration that it is made under penalties of perjury, that all the information provided is true, and that to their knowledge no relevant information has been omitted.

If satisfied with the information provided, the Commissioner or his delegate will determine the amount of the alien's tentative income tax for the tax year on gross income effectively connected with the conduct of a U.S. trade or business. Ordinary and necessary business expenses may be taken into account if proved to the satisfaction of the Commissioner or his delegate.

The Commissioner or his delegate will provide the alien with a letter to you, the withholding agent, stating the amount of the final payment of compensation for personal services that is exempt from withholding, and the amount that would otherwise be withheld that may be paid to the alien due to the exemption. The amount of pay exempt from withholding cannot be more than $5,000. The alien must give two copies of the letter to you and must also attach a copy of the letter to their income tax return for the tax year for which the exemption is effective.

Travel expenses.

If you pay or reimburse the travel expenses of a nonresident alien, the payments are not reportable to the IRS and are not subject to chapter﻿ ﻿3 withholding if the payments are made under an accountable plan, as described in Regulations section 1.62﻿-﻿2. This treatment applies only to that part of a payment that represents the payment of travel and lodging expenses and not to that part that represents compensation for independent personal services.

Tax treaties.

Under some tax treaties, pay for independent personal services performed in the United States is treated as business income and taxed according to the treaty provisions for business profits.

Under other tax treaties, pay for independent personal services performed in the United States is exempt from U.S. income tax only if the independent nonresident alien contractor performs the services during a period of temporary presence in the United States (usually not more than 183 days) and is a resident of the treaty country.

Independent nonresident alien contractors use Form 8233 to claim an exemption from withholding under a tax treaty. For more information, see Form 8233, earlier.

TipForm 8233 should be used to claim a treaty benefit based on a business profits provision or an independent personal services provision.

Often, you must withhold under the statutory rules on payments made to a treaty country resident contractor for services performed in the United States. This is because the factors on which the treaty exemption is based may not be determinable until after the close of the tax year. The contractor must then file a U.S. income tax return (Form 1040-NR) to recover any overwithheld tax by providing the IRS with proof that they are entitled to a treaty exemption.

Wages Paid to Employees—Graduated Withholding

Salaries, wages, bonuses, or any other pay for personal services (referred to collectively as wages) paid to nonresident alien employees are subject to graduated withholding in the same way as for U.S. citizens and residents if the wages are effectively connected with the conduct of a U.S. trade or business.

Note.

Any wages paid to a nonresident alien for personal services performed as an employee for an employer are generally not subject to the 30% withholding if the wages are subject to graduated withholding.

Also, the 30% withholding does not apply to pay for personal services performed as an employee for an employer if it is effectively connected with the conduct of a U.S. trade or business and is specifically exempted from the definition of wages. Chapter 4 withholding does not apply to these payments. See Pay that is not wages, later.

Special rule for certain agricultural workers.

The 30% withholding does not apply to pay for personal services performed by a foreign agricultural worker in the United States on an H-2A visa. However, if the total wages are $600 or more and the worker does not give you a TIN, you may need to backup withhold. You may withhold at graduated rates if the employee asks you to by giving you a completed Form W-4.

Pay for personal services that is not subject to withholding is not subject to reporting on Form 1042-S. If the compensation is more than $600, report it on Form W-2 (if the employee gave you a TIN) or on Form 1099-NEC, Nonemployee Compensation (if the employee did not give you a TIN). See the Instructions for Forms 1099-MISC and 1099-NEC for more information.

For more information on withholding on foreign agricultural workers, go to IRS.gov and enter “agricultural workers” in the search box.

Employer–employee relationship.

For pay for personal services to qualify as wages, there must be an employer–employee relationship.

Under the common law rules, every individual who performs services subject to the will and control of an employer, both as to what shall be done and how it shall be done, is an employee. It does not matter that the employer allows the employee considerable discretion and freedom of action, as long as the employer has the legal right to control both the method and the result of the services.

If an employer–employee relationship exists, it does not matter what the parties call the relationship. It does not matter if the employee is called a partner, coadventurer, agent, or independent contractor. It does not matter how the pay is measured, how the individual is paid, or what the payments are called. Nor does it matter whether the individual works full time or part time.

The existence of the employer–employee relationship under the usual common law rules will be determined, in doubtful cases, by an examination of the facts of each case.

Employee.

An employee generally includes any individual who performs services if the relationship between the individual and the person for whom the services are performed is the legal relationship of employer and employee. This includes an individual who receives a supplemental unemployment pay benefit that is treated as wages.

No distinction is made between classes of employees.

Superintendents, managers, and other supervisory personnel are employees. In most cases, an officer of a corporation is an employee, but a director acting in this capacity is not. An officer who does not perform any services, or only minor services, and neither receives nor is entitled to receive any pay is not considered an employee.

Employer.

An employer is any person or organization for whom an individual performs or has performed any service, of whatever nature, as an employee. The term “employer” includes not only individuals and organizations in a trade or business, but organizations exempt from income tax, such as religious and charitable organizations, educational institutions, clubs, social organizations, and societies. It also includes the governments of the United States, Puerto Rico, and the District of Columbia, as well as their agencies, instrumentalities, and political subdivisions.

Two special definitions of employer that may have considerable application to nonresident aliens are:

An employer includes any person paying wages for a nonresident alien individual, foreign partnership, or foreign corporation not engaged in trade or business in the United States (including Puerto Rico as if a part of the United States), and

An employer includes any person who has control of the payment of wages for services that are performed for another person who does not have that control.

For example, if a trust pays wages, such as certain types of pensions, supplemental unemployment pay, or retired pay, and the person for whom the services were performed has no legal control over the payment of the wages, the trust is the employer.

These special definitions have no effect upon the relationship between an alien employee and the actual employer when determining whether the pay received is considered to be wages.

If an employer–employee relationship exists, the employer ordinarily must withhold the income tax from wage payments by using the percentage method or wage bracket tables as shown in Pub. 15-T.

Pay that is not wages.

Employment for which the pay is not considered wages (for graduated income tax withholding) includes, but is not limited to, the following items.

Agricultural labor if the total cash wages paid to an individual worker during the year is less than $150 and the total paid to all workers during the year is less than $2,500. But even if the total amount paid to all workers is $2,500 or more, wages of less than $150 per year paid to a worker are not subject to income tax withholding if certain conditions are met. For these conditions, see Pub. 15, (Circular E), Employer's Tax Guide.

Services of a household nature performed in or about the private home of an employer, or in or about the clubrooms or house of a local college club, fraternity, or sorority. A local college club, fraternity, or sorority does not include an alumni club or chapter and may not be operated primarily as a business enterprise. Examples of these services include those performed as a cook, janitor, housekeeper, governess, gardener, or houseparent.

Certain services performed outside the course of the employer's trade or business for which cash payment is less than $50 for the calendar quarter.

Services performed as an employee of a foreign government, without regard to citizenship, residence, or where services are performed. These include services performed by ambassadors, other diplomatic and consular officers and employees, and nondiplomatic representatives. They do not include services for a U.S. or Puerto Rican corporation owned by a foreign government.

Services performed within or outside the United States by an employee or officer (regardless of citizenship or residence) of an international organization designated under the International Organizations Immunities Act.

Services performed by a duly ordained, commissioned, or licensed minister of a church, but only if performed in the exercise of the ministry and not as an employee of the United States, a U.S. territory, or a foreign government, or any of their political subdivisions. These also include services performed by a member of a religious order in carrying out duties required by that order.

Tips paid to an employee if they are paid in any medium other than cash or, if in cash, they amount to less than $20 in any calendar month in the course of employment.

Services performed outside the United States.

Compensation paid to a nonresident alien (other than a resident of Puerto Rico, discussed later) for services performed outside the United States is not considered wages and is not subject to withholding.

Special instructions for Form W-4.

A nonresident alien subject to wage withholding must give the employer a completed Form W-4 to enable the employer to figure how much income tax to withhold.

cautionA nonresident alien cannot claim exemption from withholding on Form W-4. Use Form 8233 to claim a tax treaty exemption from withholding. See Form 8233, earlier.

In completing Form W-4, nonresident aliens should use the following instructions instead of the instructions on Form W-4.

Check “Single or Married filing separately” on Step﻿ ﻿1(c) (regardless of actual marital status).

Write “Nonresident Alien” or “NRA” in the space below Step﻿ ﻿4(c).

For more information, see Notice 1392.

TipNonresident alien employees are not required to request an additional withholding amount, but they can choose to have an additional amount withheld.

Determining amount to withhold.

Employers are required to add an amount to the wages of a nonresident alien employee solely for the purpose of calculating income tax withholding. The specific amounts depend on the payroll period. These amounts can be found in Withholding Adjustment for Nonresident Alien Employees in the Introduction of Pub. 15-T. This adjustment does not apply to students and business apprentices from India.

CautionDo not include the additional amount on the employee's Form W-2, Wage and Tax Statement.

Reporting requirements for wages and withheld taxes paid to nonresident aliens.

The employer must report the amount of wages and deposits of withheld income and social security and Medicare taxes by filing Form 941, Employer’s Quarterly Federal Return. Household employers should see Pub. 926 for information on reporting and paying employment taxes on wages paid to household employees.

Form W-2.

The employer must also report on Form W-2 the wages subject to chapter﻿ ﻿3 withholding and the withheld taxes. You must give copies of this form to the employee. If the employee submits Form 8233 to claim exemption from withholding under a tax treaty, the wages are reported on Form 1042-S and not in box 1 of Form W-2. Wages exempt under a tax treaty may still be reported in the state and local wages boxes of Form W-2 if such wages are subject to state and local taxation. For more information, see the instructions for these forms.

Trust fund recovery penalty.

If you are a person responsible for withholding, accounting for, or depositing or paying employment taxes, and willfully fail to do so, you can be held liable for a penalty equal to the full amount of the unpaid trust fund tax, plus interest. A responsible person for this purpose can be an officer of a corporation, a partner, a sole proprietor, or an employee of any form of business. A trustee or agent with authority over the funds of the business can also be held responsible for the penalty.

“Willfully” in this case means voluntarily, consciously, and intentionally. You are acting willfully if you pay other expenses of the business instead of the withholding taxes.

Social security and Medicare tax.

In most cases, the employer must also withhold Federal Insurance Contributions Act (FICA) tax and file Form 941. In certain cases, wages paid to students and railroad and agricultural workers are exempt from FICA tax. Wages paid to nonresident alien students, teachers, researchers, trainees, and other nonresident aliens in “F-1,” “J-1,”“ M-1,” or “Q” nonimmigrant status are not subject to FICA. See Pub. 15-T for the rules on withholding.

In addition to withholding Medicare tax at 1.45%, you must withhold a 0.9% Additional Medicare Tax from wages you pay in excess of $200,000 in a calendar year. See Pub.15 for more information.

Federal unemployment tax (FUTA).

The employer must pay FUTA tax and file Form 940. Only the employer pays this tax; it is not deducted from the employee's wages. In certain cases, wages paid to students and railroad and agricultural workers are exempt from FUTA tax. For more information, see the Instructions for Form 940.

Wages paid to nonresident alien students, teachers, researchers, trainees, and other nonresident aliens in “F-1,” “J-1,” “M-1,” or “Q” nonimmigrant status are not subject to FUTA tax.

Compensation for dependent personal services (Income Code 18).

Dependent personal services are personal services performed in the United States by a nonresident alien individual as an employee rather than as an independent contractor.

Pay for dependent personal services is subject to chapter﻿ ﻿3 withholding and reporting as follows.

Graduated rates.

Ordinarily, you must withhold on pay (wages) for dependent personal services using graduated rates. The nonresident alien must complete Form W-4, as discussed earlier under Special instructions for Form W-4, and you must report wages and income tax withheld on Form W-2. However, you do not have to withhold if any of the following four exceptions applies.

Exception 1.

Compensation paid for labor or personal services performed in the United States is deemed not to be income from sources within the United States and is exempt from U.S. income tax if:

The labor or services are performed by a nonresident alien temporarily present in the United States for a period or periods not exceeding a total of 90 days during the tax year;

The total pay does not exceed $3,000; and

The pay is for labor or services performed as an employee of, or under a contract with:

A nonresident alien individual, foreign partnership, or foreign corporation that is not engaged in a trade or business in the United States; or

A U.S. citizen or resident alien individual, a domestic partnership, or a domestic corporation, if the labor or services are performed for an office or place of business maintained in a foreign country or in a territory of the United States by this individual, partnership, or corporation.

If the total pay is more than $3,000, the entire amount is income from sources in the United States and is subject to U.S. tax.

Also, compensation paid for labor or services performed in the United States by a nonresident alien in connection with the individual's temporary presence in the United States as a regular member of the crew of a foreign vessel engaged in transportation between the United States and a foreign country or a U.S. territory is not income from sources within the United States.

Exception 2.

Compensation paid by a foreign employer to a nonresident alien for the period the alien is temporarily present in the United States on an “F,” “J,” or “Q” visa is exempt from U.S. income tax. For this purpose, a foreign employer means:

A nonresident alien individual, foreign partnership, or foreign corporation; or

An office or place of business maintained in a foreign country or in a U.S. territory by a domestic corporation, a domestic partnership, or an individual U.S. citizen or resident.

You can exempt the payment from withholding if you can reliably associate the payment with a Form W-8BEN containing the TIN of the payee.

Exception 3.

Compensation paid to certain residents of Canada or Mexico who enter or leave the United States at frequent intervals is not subject to withholding. These aliens must either:

Perform duties in transportation services (such as a railroad, bus, truck, ferry, steamboat, aircraft, or other type) between the United States and Canada or Mexico; or

Perform duties connected with an international project, relating to the construction, maintenance, or operation of a waterway, viaduct, dam, or bridge crossed by, or crossing, the boundary between the United States and Canada or the boundary between the United States and Mexico.

To qualify for the exemption from withholding during a tax year, a Canadian or Mexican resident must give the employer a statement with the employee's name, address, and identification number, and certifying that the resident:

Is not a U.S. citizen or resident;

Is a resident of Canada or Mexico, whichever applies; and

Expects to perform the described duties during the tax year in question.

The statement can be in any form, but it must be dated and signed by the employee and must include a written declaration that it is made under penalties of perjury.

Canadian and Mexican residents employed entirely within the United States.

Neither the transportation service exception nor the international projects exception applies to the pay of a resident of Canada or Mexico who is employed entirely within the United States and who commutes from a home in Canada or Mexico to work in the United States. If an individual works at a fixed point or points in the United States (such as a factory, store, office, or designated area or areas), the wages for services performed as an employee for an employer are subject to graduated withholding.

Exception 4.

Compensation paid for services performed in Puerto Rico by a nonresident alien who is a resident of Puerto Rico for an employer (other than the United States or one of its agencies) is not subject to withholding.

Compensation paid for either of the following types of services is not subject to withholding if the alien does not expect to be a resident of Puerto Rico during the entire tax year.

Services performed outside the United States but not in Puerto Rico by a nonresident alien who is a resident of Puerto Rico for an employer other than the United States or one of its agencies.

Services performed outside the United States by a nonresident alien who is a resident of Puerto Rico, as an employee of the United States or any of its agencies.

To qualify for the exemption from withholding for any tax year, the employee must give the employer a statement showing the employee's name and address and certifying that the employee:

Is not a citizen or resident of the United States, and

Is a resident of Puerto Rico who does not expect to be a resident for that entire tax year.

 The statement must be signed and dated by the employee and contain a written declaration that it is made under penalties of perjury.

Tax treaties.

Pay for dependent personal services under some tax treaties is exempt from U.S. income tax only if both the employer and the employee are treaty country residents and the nonresident alien employee performs the services while temporarily living in the United States (usually for not more than 183 days). Other treaties provide for exemption from U.S. tax on pay for dependent personal services if the employer is any foreign resident and the employee is a treaty country resident and the nonresident alien employee performs the services while temporarily in the United States. See Tax Treaties, later, for information about treaty benefits.

Compensation for teaching (Income Code 19).

This category is given a separate income code number because some tax treaties exempt a teacher from tax for a limited number of years. Pay for teaching means payments to a nonresident alien professor, teacher, or researcher by a U.S. university or other accredited educational institution for teaching or research work at the institution.

Graduated rates.

Graduated withholding of income tax usually applies to all wages, salaries, and other pay for teaching and research paid by a U.S. educational institution during the period the nonresident alien is teaching or performing research at the institution.

Social security and Medicare tax.

A nonresident alien temporarily in the United States on an “F-1,” “J-1,” “M-1,” or “Q-1” visa is not subject to social security and Medicare taxes on pay for services performed to carry out the purpose for which the alien was admitted to the United States. Social security and Medicare taxes should not be withheld or paid on this amount.

Example. A nonresident alien is issued a visa to teach for a university. While in the United States, they take a part-time job working for a chemical company. The wages earned while teaching at the university are exempt from social security and Medicare taxes. The wages earned at the chemical company are subject to social security and Medicare taxes.

If an alien is considered a resident alien, as discussed earlier, that pay is subject to social security and Medicare taxes even though the alien is still in one of the nonimmigrant statuses mentioned above. This rule also applies to FUTA (unemployment) taxes paid by the employer. Teachers, researchers, and other employees temporarily present in the United States on other nonimmigrant visas or in refugee or asylee immigration statuses are fully liable for social security and Medicare taxes unless an exemption applies from one of the totalization agreements in force between the United States and several other nations.

Access by computerThe Social Security Administration (SSA) publishes the complete texts and explanatory pamphlets of the totalization agreements, which are available by calling 410﻿-﻿965﻿-﻿7306 or by going to SSA.gov/international/totalization_agreements.html.

Tax treaties.

Under most tax treaties, pay for teaching or research is exempt from U.S. income tax and from withholding for a specified period of time when paid to a professor, teacher, or researcher who was a resident of the treaty country immediately prior to entry into the United States and who is not a citizen of the United States. The U.S. educational institution paying the compensation must report the amount of compensation paid each year that is exempt from tax under a tax treaty on Form 1042-S. See Tax Treaties, later, for information about treaty benefits. The employer should also report the compensation in the state and local wages boxes of Form W-2 if the wages are subject to state and local taxes, or in the social security and Medicare wages boxes of Form W-2 if the wages are subject to social security and Medicare taxes.

Claimants must give you either Form W-8BEN or Form 8233, as applicable, to obtain these treaty benefits.

Compensation during studying and training (Income Code 20).

This category refers to pay (as contrasted with remittances, allowances, or other forms of scholarships or fellowship grants—see Scholarships and Fellowship Grants Subject to Chapter 3 Withholding, earlier) for personal services performed while a nonresident alien is temporarily in the United States as a student, trainee, or apprentice, or while acquiring technical, professional, or business experience.

Graduated rates.

Wages, salaries, or other compensation paid to a nonresident alien student, trainee, or apprentice for labor or personal services performed in the United States are subject to graduated withholding.

Social security and Medicare tax.

A nonresident alien temporarily in the United States on an “F-1,” “J-1,” “M-1,” or “Q-1” visa is not subject to social security and Medicare taxes on pay for services performed to carry out the purpose for which the alien was admitted to the United States. Social security and Medicare taxes should not be withheld or paid on this amount. This exemption from social security and Medicare taxes also applies to employment performed under Curricular Practical Training (CPT) and Optional Practical Training (OPT), on or off campus, by foreign students in “F-1,” “J-1,” “M-1,” or “Q” status as long as the employment is authorized by the U.S. Citizenship and Immigration Services.

Example. A nonresident alien is admitted to the United States to study surveying. As part of the course, they apprentice to a surveyor. The nonresident also works part-time at a restaurant to supplement their income. The wages earned as an apprentice are not subject to social security and Medicare taxes. The wages and tips earned at the restaurant are subject to social security and Medicare taxes.

If an alien is considered a resident alien, as discussed earlier, that pay is subject to social security and Medicare taxes even though the alien is still in one of the nonimmigrant statuses mentioned above. This rule also applies to FUTA (unemployment) taxes paid by the employer.

Any student who is enrolled and regularly attending classes at a school may be exempt from social security, Medicare, and FUTA taxes on pay for services performed for that school. See Pub.15.

Tax treaties.

Certain tax treaties provide a limited exemption from U.S. income tax and from withholding on compensation paid to nonresident alien students or trainees during training in the United States for a limited period. In addition, some treaties provide an exemption from tax and withholding for compensation paid by the U.S. Government or its contractor to a nonresident alien student or trainee who is temporarily present in the United States as a participant in a program sponsored by the U.S. Government. See Tax Treaties, later, for information about treaty benefits. However, a withholding agent who is a U.S. resident, a U.S. Government agency, or its contractor must report the amount of pay on Form 1042-S.

Claimants must give you either Form W-8BEN or Form 8233, as applicable, to obtain these treaty benefits.

Artists and Athletes (Income Codes 42 and 43)

Because many tax treaties contain a provision for pay to artists and athletes, a separate category is assigned these payments for chapter﻿ ﻿3 withholding purposes. This category includes payments made for performances by public entertainers (such as theater, motion picture, radio, or television artists, or musicians) or athletes.

Use Income Code 42 to report payments to nonresident alien athletes and entertainers (NRAAEs) who have not signed a central withholding agreement (CWA), discussed later. Use Income Code 43 to report payments to artists and athletes who have signed a CWA.

Income Code 42, Earnings as an artist or athlete—no central withholding agreement.

You must withhold tax at a 30% rate on payments to artists and athletes for services performed as independent contractors. See Pay for independent personal services, earlier, for more information. You must withhold tax at graduated rates on payments to artists and athletes for services performed as employees. See Pay for dependent personal services, earlier, for more information. However, in any situation where the nature of the relationship between the payer of the income and the artist or athlete is not ascertainable, you should withhold at a rate of 30%.

Income Code 43, Earnings as an artist or athlete—central withholding agreement.

NRAAEs who perform or participate in events in the United States can request a CWA for a lower rate of withholding. A CWA is an agreement entered into by the athlete or entertainer, a designated withholding agent, and the IRS. Under no circumstances will a CWA reduce taxes withheld to less than the anticipated amount of income tax liability.

We’ve temporarily waived the income requirement for which form to use when applying for a CWA. Form 13930-A is currently unavailable. While the waiver is in effect, individuals with income below $10,000 can apply for a CWA using Form 13930, Application for Central Withholding. For more information on how to apply for a CWA, see Form 13930.

 For more information on the CWA program, go to IRS.gov/Individuals/International-Taxpayers/Central-Withholding-Agreements.

Tax treaties.

Under many tax treaties, compensation paid to public entertainers or athletes for services performed in the United States is exempt from U.S. income tax if the artist or athlete derives receipts for the tax year concerned, including expenses reimbursed to them or borne on their behalf, not in excess of $10,000, or in more recent treaties, $20,000. See Tax Treaties, later, for information about treaty benefits.

Employees and independent contractors may claim an exemption from withholding under a tax treaty by filing Form 8233. Often, however, you will have to withhold at the statutory rates on the total payments to the entertainer or athlete. This is because the exemption may be based upon factors that cannot be determined until after the end of the year.

Other Income

For the discussion of Income Codes 24, 25, and 26, see U.S. Real Property Interest, later. For the discussion of Income Code 27, see Publicly Traded Partnerships, later.

Gambling winnings (Income Code 28).

In general, nonresident aliens are subject to chapter﻿ ﻿3 withholding at 30% on the gross proceeds from gambling won in the United States if that income is not effectively connected with a U.S. trade or business and is not exempted by treaty. The tax withheld and winnings are reportable on Forms 1042 and 1042-S. Chapter 4 withholding does not apply to these proceeds.

No tax is imposed on nonbusiness gambling income a nonresident alien wins playing blackjack, baccarat, craps, roulette, or big-6 wheel in the United States. A Form W-8BEN is not required to obtain the exemption from withholding, but a Form W-8BEN may be required for purposes of Form 1099 reporting and backup withholding. Gambling income that is not subject to chapter﻿ ﻿3 withholding is not subject to reporting on Form 1042-S.

Nonresident aliens are taxed at graduated rates on net gambling income won in the United States that is effectively connected with a U.S. trade or business.

Tax treaties.

Gambling income of residents (as defined by treaty) of the following foreign countries is not taxable by the United States: Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Netherlands, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Tunisia, Turkey, Ukraine, and the United Kingdom.

Gambling income of residents of Malta is taxed at 10%.

Claimants must give you a Form W-8BEN (with a U.S. or foreign TIN) to claim treaty benefits on gambling income that is not effectively connected with a U.S. trade or business. See U.S. or Foreign TINs, later, for when you can accept a Form W-8BEN without a TIN.

The provisions of the Hungary and Russia treaties exempting taxation on gambling winnings in the United States are no longer in operation. As a result gambling winnings are taxable and subject to 30% withholding as of August 16, 2024, for Russia and January 1, 2024, for Hungary.

Transportation income.

U.S. source gross transportation income (USSGTI), as defined in section 887, is not subject to 30% gross withholding tax, and chapter﻿ ﻿4 withholding does not apply to this income. Transportation income is income from the use of a vessel or aircraft, whether owned, hired, or leased, or from the performance of services directly related to the use of a vessel or aircraft. U.S. source gross transportation income includes 50% of all transportation income from transportation that either begins or ends in the United States. USSGTI does not include transportation income of a foreign corporation taxable in a U.S. territory. The recipient of USSGTI must pay tax on it annually at the rate of 4% on Section I of Form 1120-F, unless the income is effectively connected with the conduct of a U.S. trade or business and is reportable on Section II of Form 1120-F. Special rules apply to determine if a foreign corporation's USSGTI is effectively connected with a U.S. trade or business.

Canadian truck and rail income.

Under Article VIII (Transportation) of the U.S.–Canada treaty, any U.S. source income derived by a Canadian company engaged in the operation of trucks or a railway as a common carrier or contract carrier, and attributable to the transportation of property between Canada and the United States, is exempt from tax in the United States, provided the company is otherwise eligible for treaty benefits. Payments for the use of trucks (including trailers) or railway rolling stock, or from the use, maintenance, or rental of containers (including trailers and related equipment for the transport of containers) used to transport property between Canada and the United States are also exempt from U.S. tax, provided the company is otherwise eligible for treaty benefits. Canadian companies must file Form 1120-F and Form 8833 to claim an exemption from tax for profits from their operating income. Canadian corporations are subject to chapter﻿ ﻿3 withholding on rental payments for the use of such equipment in the United States and may claim an exemption on Form W8-BEN-E.

Foreign freight charges or rental of equipment used outside the United States.

Payments for transportation of property, whether by ship, air, or truck, solely between points outside the United States or rental of tangible property in connection with transportation solely for use between points outside the United States is not U.S. source income and not subject to chapter﻿ ﻿3 withholding.

Payments to certain expatriates.

Certain payments to nonresident aliens who are covered expatriates under section 877A(g)(1) are subject to withholding at 30%. In general, nonresident aliens are covered expatriates if they were U.S. citizens or long-term residents who renounced their citizenship or ceased to be long-term residents for U.S. tax purposes after June 16, 2008, and satisfied other tests for average annual net income tax or net worth. For more information on the definition of covered expatriates, see the Instructions for Form 8854.

A covered expatriate should have provided you with Form W-8CE notifying you of their covered expatriate status and the fact that they may be subject to special tax rules with respect to certain items. For more information, see the Instructions for Form W-8CE.

Eligible deferred compensation items (Income Code 38).

In general, you must withhold tax at a 30% rate on any payment of an eligible deferred compensation item paid to a covered expatriate. The amount subject to tax is the amount of the payment that would have been included in the nonresident alien's U.S. gross income if they had continued to be taxed as a U.S. citizen or resident.

Distributions from a nongrantor trust (Income Code 39).

In general, you must withhold tax at a 30% rate on any direct or indirect distribution from a nongrantor trust. The amount subject to tax is the part of the distribution that would have been included in the nonresident alien's U.S. gross income if they had continued to be taxed as a U.S. citizen or resident. If the nonresident alien was not a beneficiary of the nongrantor trust on the day before they gave up their U.S. citizenship or long-term residence, you do not have to withhold tax. See section 7 of Notice 2009﻿-﻿85, 2009﻿-﻿45 I.R.B. 598, available at IRS.gov/irb/2009﻿-﻿45_IRB#NOT-2009﻿-﻿85.

Guarantee of indebtedness (Income Code 41).

An amount paid to a foreign payee for the provision of a guarantee of indebtedness issued after September 27, 2010, may be subject to chapter﻿ ﻿3 withholding. The amounts must be paid by one of the following.

A noncorporate U.S. resident.

A domestic corporation.

Any foreign person if the amount paid is connected with income that is effectively connected, or treated as effectively connected, with a U.S. trade or business.

An indirect payment includes a payment by a foreign bank to a foreign corporation for the foreign corporation's guarantee of indebtedness owed to the foreign bank by the foreign corporation's domestic subsidiary, where the cost of the guarantee fee is passed on to the domestic subsidiary through additional interest charged on the indebtedness.

The amounts described above for a guarantee of indebtedness are withholdable payments, such that chapter﻿ ﻿4 withholding may apply absent an exclusion from withholding under chapter﻿ ﻿4.

Other income (Income Code 23).

Use this category to report U.S. source FDAP income that is not reportable under any of the other income categories. Examples of income that may be reportable under this category are commissions, insurance proceeds, patronage distributions, prizes, and racing purses.

As discussed earlier under Amounts Subject to Chapter 3 Withholding, every kind of FDAP income from U.S. sources that is not effectively connected with a U.S. trade or business is subject to chapter﻿ ﻿3 withholding unless the income is specifically exempt under the Internal Revenue Code or a tax treaty. You must generally withhold at the 30% rate on this income. As a payment of U.S. source FDAP is generally a withholdable payment, you should review Regulations section 1.1473﻿-﻿1(a) (definition of withholdable payment) to determine if the payment is excluded from the definition of a withholdable payment.

Foreign Governments and Certain Other Foreign Organizations

Investment income earned by a foreign government is not included in the gross income of the foreign government and is not subject to chapter﻿ ﻿3 withholding. The term “foreign government” means an integral part of a foreign government or an entity that is controlled by a foreign government. See Temporary Regulations section 1.892﻿-﻿2T. “Investment income” means income from investments in the United States in stocks, bonds, or other domestic securities, financial instruments held in the execution of governmental financial or monetary policy, and interest on money deposited by a foreign government in banks in the United States. A foreign government must provide a Form W-8EXP or, in the case of a payment made outside the United States to an offshore account, documentary evidence to obtain this exemption. Investment income paid to a foreign government is subject to reporting on Form 1042-S.

The following types of income received by a foreign government are subject to chapter﻿ ﻿3 withholding.

Income (including investment income) received from the conduct of a commercial activity or from sources other than those stated above.

Income received from a controlled commercial entity (including gain from the disposition of any interest in a controlled commercial entity) and income received by a controlled commercial entity.

If the foreign government is a partner in a partnership carrying on a trade or business in the United States, the ECTI allocable to the foreign government is considered derived from a controlled commercial activity and is subject to withholding under section 1446.

Gain derived from the disposition of a USRPI. Withholding on these gains is discussed later under U.S. Real Property Interest.

For chapter﻿ ﻿4 purposes, payments to a foreign government (other than earnings inuring to the benefit of a private person) are not payments to which chapter﻿ ﻿4 withholding applies unless the payment is made to a controlled entity of the foreign government that is engaged in a commercial financial activity. See Regulations section 1.1471﻿-﻿6(h) for a description of a commercial financial activity. See Regulations section 1.1471﻿-﻿3(d)(9) for the documentation required to establish an entity’s chapter﻿ ﻿4 status as a foreign government. Similar rules apply for chapter﻿ ﻿4 purposes to a payment to a foreign central bank of issue.

A government of a U.S. territory is exempt from U.S. tax on all U.S. source income. This income is not subject to chapter﻿ ﻿3 withholding, and chapter﻿ ﻿4 withholding does not apply to income paid to a government of a U.S. territory. See Regulations section 1.1471﻿-﻿3(d)(9) for the documentation required to establish an entity’s chapter﻿ ﻿4 status as a government of a U.S. territory. These governments should use Form W-8EXP to claim this exemption for both chapters 3 and 4 purposes (as required).

International organizations.

International organizations are exempt from U.S. tax on all U.S. source income. Income paid to an international organization (within the meaning of section 7701(a)(18)) is not subject to chapter﻿ ﻿3 withholding. International organizations are not required to provide a Form W-8 or documentary evidence to receive the exemption if the name of the payee is one that is designated as an international organization by executive order.

Payments made to an international organization, as defined for chapter﻿ ﻿4 purposes, are not payments to which chapter﻿ ﻿4 withholding applies. An “international organization” for purposes of chapter﻿ ﻿4 means any entity described in section 7701(a)(18). The term also includes any intergovernmental or supranational organization that is comprised primarily of foreign governments, that is recognized as an intergovernmental or supranational organization under certain foreign laws, or that has in effect a headquarters agreement with a foreign government, and whose income does not inure to the benefit of private persons. See Regulations section 1.1471﻿-﻿3(d)(9) for the documentation required to establish an entity’s chapter﻿ ﻿4 status as an international organization.

Foreign tax-exempt organizations.

A foreign organization that is a tax-exempt organization under section 501(c) is not subject to a withholding tax on amounts that are not income includible under section 512 as unrelated business taxable income. In addition, withholdable payments made to a tax-exempt organization under section 501(c) are not payments to which chapter﻿ ﻿4 withholding applies.

However, if a foreign organization is a foreign private foundation, it is subject to a 4% withholding tax on all U.S. source investment income. For a foreign tax-exempt organization to claim an exemption from withholding under chapter﻿ ﻿3 or 4 because of its tax-exempt status under section 501(c), or to claim withholding at a 4% rate, it must provide you with a Form W-8EXP. However, if a foreign organization is claiming an exemption from withholding under an income tax treaty, or the income is unrelated business taxable income, the organization must provide a Form W-8BEN-E or W-8ECI. Income paid to foreign tax-exempt organizations is subject to reporting on Form 1042-S. If the organization is a partner in a partnership carrying on a trade or business in the United States, the ECI allocable to the organization is subject to withholding under section 1446.

Foreign financial institutions.

For payments made to a reporting Model 1 FFI or reporting Model 2 FFI, see the applicable IGA for definitions of entities described under this heading. You may generally rely on documentation provided by such an FFI to treat an entity as described under this heading (included under the class of a nonreporting IGA FFI). See the Instructions for Form W-8BEN-E.

U.S. or Foreign TINs

As the withholding agent, in many cases you must request that the payee provide you with its U.S. TIN. You must in such a case include the payee's TIN on forms, statements, and other tax documents. The payee's TIN may be any of the following.

An individual may have a social security number (SSN). If the individual does not have and is eligible for an SSN, go to SSA.gov/ssnumber/ for more information. The SSA will tell the individual if they are eligible to get an SSN.

An individual may have an IRS individual taxpayer identification number (ITIN). If the individual does not have and is not eligible for an SSN, they must apply for an ITIN by using Form W-7.

Any person other than an individual, and any individual who is an employer or who is engaged in a U.S. trade or business as a sole proprietor, must have an employer identification number (EIN). Use Form SS-4 to get an EIN.

Under certain circumstances, a financial institution may be required to get a GIIN for purposes of chapter﻿ ﻿4. See Global Intermediary Identification Numbers, later. See the Instructions for Form 8957 for information on whether a GIIN is needed.

A U.S. or foreign TIN (as applicable) must generally be on a withholding certificate if the beneficial owner is claiming any of the following.

Tax treaty benefits (see Exceptions to TIN requirement, later).

Income is effectively connected with a U.S. trade or business.

Exemption for certain annuities (see Pensions, Annuities, and Alimony, earlier).

Exemption based on exempt organization or private foundation status.

 A foreign TIN may also be required for certain account holders (see Foreign TIN requirement for account holders, later). In addition, a U.S. TIN must be on a withholding certificate from a person claiming to be any of the following.

QI.

QSL.

Withholding foreign partnership.

Withholding foreign trust.

An organization claiming an exemption or reduced rate of withholding based solely on a claim of tax-exempt status under section 501(c) or private foundation status (unless only the 4% tax under section 4948(a) applies to the private foundation).

U.S. branch of a foreign person treated as a U.S. person (see Regulations section 1.1441﻿-﻿1(b)(2)(iv)), and a U.S. branch of an FFI acting as an intermediary that is not treated as a U.S person.

U.S. person.

Exceptions to U.S. TIN requirement.

A foreign person does not have to provide a U.S. TIN to claim a reduced rate of withholding under a tax treaty if the requirements for the following exceptions are met. Instead of requesting a U.S. TIN from a foreign payee, you may request a foreign TIN issued by the payee’s country of residence except when the payee is a nonresident alien individual claiming an exemption from withholding on Form 8233.

Income from marketable securities (discussed earlier under Beneficial Owners).

Unexpected payment to an individual in the case of a payment made by a U.S. financial institution to an account maintained at a U.S. office (discussed next).

Unexpected payment.

A Form W-8BEN or a Form 8233 provided by a nonresident alien to get treaty benefits does not need a U.S. TIN if you, the withholding agent, meet all the following requirements.

You are an acceptance agent.

You can request an ITIN for a payee on an expedited basis.

You are required to make an unexpected payment to the nonresident alien.

You cannot get the ITIN because the IRS is not issuing ITINs at the time you make the payment or at any earlier time after you know you have to make the payment.

You cannot reasonably delay making the unexpected payment.

You submit a completed Form W-7 for the payee, with a certification that you have reviewed the required documentation and have no actual knowledge or reason to know that the documentation is not complete or accurate, to the IRS during the first business day after you made the payment.

An acceptance agent  is a person who, under a written agreement with the IRS, is authorized to help alien individuals and other foreign persons get ITINs or EINs. For information on the application procedures for becoming an acceptance agent, go to IRS.gov/Individuals/New-ITIN-Acceptance-Agent-Program-Changes.

Note. All acceptance agents will be required to adhere to new quality standards established and monitored by the IRS.

A payment is unexpected if you or the beneficial owner could not have reasonably anticipated the payment during a time when an ITIN could be obtained. This could be due to the nature of the payment or the circumstances in which the payment is made. A payment is not considered unexpected solely because the amount of the payment is not fixed.

Example. Mary, a citizen and resident of Ireland, visits the United States and wins $5,000 playing a slot machine in a casino. Under the treaty with Ireland, the winnings are not subject to U.S. tax. Mary claims the treaty benefits by providing a Form W-8BEN to the casino upon winning at the slot machine. However, she does not have an ITIN or foreign TIN. The casino is an acceptance agent that can request an ITIN on an expedited basis.

Situation 1. Assume that Mary won the money on Sunday. Since the IRS does not issue ITINs on Sunday, the casino can pay $5,000 to Mary without withholding U.S. tax. The casino must, on the following Monday, fax a completed Form W-7 for Mary, including the required certification, to the IRS for an expedited ITIN.

Situation 2. Assume that Mary won the money on Monday. To pay the winnings without withholding U.S. tax, the casino must apply for and get an ITIN for Mary because an expedited ITIN is available from the IRS at the time of the payment.

Foreign TIN requirement for account holders.

If you are a U.S. office or branch of a depository institution, custodial institution, investment entity, or specified insurance company (each as defined in Regulations section 1.1471﻿-﻿5(e)) documenting an account holder (as defined in Regulations section 1.1471﻿-﻿5(a)(3)) of an account that is a financial account (as defined in Regulations section 1.1471﻿-﻿5(b)), you must obtain the account holder’s TIN for its jurisdiction of tax residence (foreign TIN) on a Form W-8 that is a beneficial owner withholding certificate in order for the form to not be invalid for a payment of U.S. source income reportable on Form 1042-S, unless:

The account holder is a resident of a jurisdiction that is not listed in section 3 of Revenue Procedure 2021﻿-﻿32, 2021﻿-﻿42 I.R.B. 465, available at IRS.gov/irb/2021﻿-﻿42_IRB#REV-PROC-2021﻿-﻿32, which may be further updated in future published guidance;

The account holder is a resident in a jurisdiction that has been identified by the IRS on a list of jurisdictions that do not issue foreign TINs. See IRS.gov/Businesses/Corporations/List-of-Jurisdictions-That-Do-Not-Issue-Foreign-TINs;

The account holder is a government, international organization, foreign central bank of issue, or resident of a U.S. territory; or

The account holder obtains a reasonable explanation for why the account holder has not been issued a foreign TIN, including by checking the applicable box on the applicable Form W-8 indicating that the account holder is not legally required to obtain an FTIN from the account holder’s jurisdiction of residence (including if the jurisdiction does not issue TINs).

A reasonable explanation that an account holder does not have a foreign TIN must address why the account holder was not issued a foreign TIN to the extent provided in the instructions for the applicable Form W-8. If an account holder provides an explanation other than the one described in the instructions for the applicable Form W-8, you must determine whether the explanation is reasonable.

Global Intermediary Identification Numbers (GIINs)

If you make a withholdable payment to an entity claiming certain chapter﻿ ﻿4 statuses, you may be required to obtain and verify the entity’s GIIN against the published IRS FFI list within 90 days to rely on such a claim. See GIIN Verification under Standards of Knowledge for Purposes of Chapter 4, earlier, for which chapter﻿ ﻿4 statuses require a GIIN.

Depositing Withheld Taxes

This section discusses the rules for depositing income tax withheld on FDAP income, including tax withheld pursuant to chapter﻿ ﻿4. The deposit rules discussed here do not apply to the following items.

Taxes on pay subject to graduated withholding, as discussed earlier. (See Form 941 for the deposit rules.)

Tax withheld on pensions and annuities subject to graduated withholding or the 10% tax on nonperiodic distributions. (See Form 945 for the deposit rules.)

Tax withheld on a foreign partner's allocable share of ECTI of a partnership, other than a publicly traded partnership. See Partnership Withholding on ECTI, later.

Tax withheld on dispositions of USRPI by foreign persons. See U.S. Real Property Interest, later.

Taxes on household employees. See Schedule﻿ ﻿H (Form 1040) to report social security and Medicare taxes, and any income tax withheld, on wages paid to a nonresident alien household employee.

When Deposits Are Required

A deposit required for any period occurring in 1 calendar year must be made separately from a deposit for any period occurring in another calendar year. A deposit of this tax must be made separately from a deposit of any other type of tax, but you need not identify whether the deposit is of tax withheld under chapter﻿ ﻿3 or 4.

The amount of tax you are required to withhold determines the frequency of your deposits. For more information, see Deposit Requirements in the Instructions for Form 1042.

Escrow in lieu of deposit.

Under certain circumstances, a withholding agent may be permitted to set aside a withheld amount in escrow rather than depositing the tax. A participating FFI that withholds tax on a withholdable payment not otherwise subject to chapter﻿ ﻿3 withholding or backup withholding under section 3406 made to a recalcitrant account holder of a dormant account may, in lieu of depositing the tax withheld, set aside the amount withheld in escrow until the date that the account ceases to be a dormant account. In such case, the tax withheld becomes due 90 days following the date that the account ceases to be a dormant account if the account holder does not provide the required documentation, or becomes refundable to the account holder if the account holder provides documentation establishing that withholding does not apply.

A withholding agent that withholds tax under chapter﻿ ﻿3 on certain payments that include an undetermined amount of income may retain 30% of the payment to hold in escrow in accordance with Regulations section 1.1441﻿-﻿3(d). Similarly, if a withholding agent is unable to determine whether the payment is a withholdable payment because the source or character of the payment is unknown, the withholding agent may retain 30% of the payment to hold in escrow for chapter﻿ ﻿4 purposes in accordance with Regulations section 1.1471﻿-﻿2(a)(5).

Electronic deposit requirement.

You must deposit all withheld taxes under chapter﻿ ﻿3 or 4 by electronic funds transfer. In most cases, electronic funds transfers are made using the Electronic Federal Tax Payment System (EFTPS). If you do not want to use EFTPS, you can arrange for your tax professional, financial institution, or other trusted third party to make deposits on your behalf. You may also arrange for your financial institution to initiate a same-day wire payment on your behalf. EFTPS is a free service provided by the Department of Treasury. Services provided by your tax professional, financial institution, or other third party may have a fee. For more information about EFTPS or to enroll in EFTPS, visit EFTPS.gov or call 800﻿-﻿555﻿-﻿4477. For additional information about EFTPS, see Pub. 966, Electronic Federal Tax Payment System, A Guide To Getting Started.

Qualified business taxpayers that request an EIN will automatically be enrolled in EFTPS. They will receive information on how to activate their account.

Note. All payments should be stated in U.S. dollars and should be made in U.S. dollars.

Penalty for failure to make deposits on time.

If you fail to make a required deposit within the time prescribed, a penalty is imposed on the underpayment (the excess of the required deposit over any actual timely deposit for a period). You can avoid the penalty if you can show that the failure to deposit was for reasonable cause and not because of willful neglect. Also, the IRS may waive the penalty if certain requirements are met.

Depositing on time.

For deposits made by EFTPS to be on time, you must initiate the deposit by 8 p.m. Eastern time the day before the date the deposit is due. If you use a third party to make deposits on your behalf, they may have different cutoff times.

Penalty rate.

If the deposit is:

1 to 5 days late, the penalty is 2% of the underpayment;

6 to 15 days late, the penalty is 5%; or

16 or more days late, the penalty is 10%.

 However, if the deposit is not made within 10 days after the IRS issues the first notice demanding payment, the penalty is 15%.

If you owe a penalty for failing to deposit tax for more than one deposit period, and you make a deposit, your deposit is applied to the most recent period to which the deposit relates unless you designate the deposit period or periods to which your deposit is to be applied. You can make this designation only during a 90-day period that begins on the date of the penalty notice. The notice contains instructions on how to make this designation.

Adjustment for Overwithholding

What to do if you overwithheld tax depends on when you discover the overwithholding.

Overwithholding discovered by March 15 of the following calendar year.

If you discover that you overwithheld tax under chapter﻿ ﻿3 or 4 by March 15 of the following calendar year, you may use the undeposited amount of tax to make any necessary adjustments between you and the recipient of the income. However, if the undeposited amount is not enough to make any adjustments, or if you discover the overwithholding after the entire amount of tax has been deposited, you can use either the reimbursement procedure or the set-off procedure to adjust the overwithholding.

TipIf March 15 is a Saturday, Sunday, or legal holiday, the next business day is the final date for these actions.

For more information on the reimbursement procedure and set-off procedure, and what to do if you discover the overwithholding after March 15 of the following calendar year, see Adjustment for Overwithholding in the Instructions for Form 1042.

Returns Required

Every withholding agent, whether U.S. or foreign, must file Forms 1042 and 1042-S to report:

Amounts subject to chapter﻿ ﻿3 withholding paid to foreign persons (including persons presumed to be foreign), even if no amount is deducted and withheld from the payment under chapter﻿ ﻿3; and

Payments to which chapter﻿ ﻿4 withholding is applied or which are allocated on an applicable withholding statement provided by a participating FFI or registered deemed-compliant FFI to a chapter﻿ ﻿4 withholding rate pool of U.S. payees (chapter﻿ ﻿4 reportable amounts).

 Do not use Forms 1042 and 1042-S to report tax withheld on the following.

Wages, salaries, or other compensation reported on Form W-2 (see Wages Paid to Employees—Graduated Withholding, earlier, under Pay for Personal Services Performed).

Any part of a U.S. or foreign partnership's (other than a publicly traded partnership) ECTI allocable to a foreign partner (see Partnership Withholding on ECTI, later).

Dispositions of USRPIs by foreign persons (see U.S. Real Property Interest, later).

Pensions, annuities, and certain other deferred income reported on Form 1099.

Income, social security, and Medicare taxes on wages paid to a household employee reported on Schedule﻿ ﻿H (Form 1040).

Amounts subject to backup withholding under section 3406, including withholdable payments that are reportable payments and that are paid to a recalcitrant account holder of a participating FFI or registered deemed-compliant FFI that has elected on its withholding statement for withholding under section 3406 to apply instead of withholding under chapter﻿ ﻿4.

Forms 1042 and 1042-S must be filed by March 15 of the year following the calendar year in which the income subject to reporting was paid. If March 15 falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.

Form 1042.

Every U.S. and foreign withholding agent that is required to file a Form 1042-S must also file an annual return on Form 1042. You must file Form 1042 even if you were not required to withhold any income tax under chapter﻿ ﻿3 on the payment, or if the payment is a chapter﻿ ﻿4 reportable amount.

E-filing of Form 1042 is required for a withholding agent that is a financial institution, a withholding agent that must file 10 or more information returns in a calendar, as described in Regulations section 301.6011﻿-﻿2, or a partnership with more than 100 partners. However, Notice 2024﻿-﻿26, 2024﻿-﻿12 I.R.B. 713, provides withholding agents that are foreign persons (including foreign financial institutions) an administrative exemption from the requirement to e-file Forms 1042 for the calendar year 2025 (tax year 2024). See the Instructions for Form 1042 for more information. For general information about e-filing, see Pub. 4163, Modernized e-File (MeF) Information for Authorized IRS e-File Providers for Business Returns.

You are encouraged to e-file Form 1042. However, you may file a paper Form 1042 with the:

Ogden Service Center
P.O. Box 409101
Ogden, UT 84409

Form 1042-S.

Every U.S. and foreign withholding agent must file a Form 1042-S for amounts subject to chapter﻿ ﻿3 withholding and chapter﻿ ﻿4 reportable amounts unless an exception applies. You may be required to e-file Form 1042-S. Go to IRS.gov/InfoReturn for e-file options.

A separate Form 1042-S is required for each recipient of income to whom you made payments during the preceding calendar year regardless of whether you withheld or were required to withhold tax. However, if you make a withholdable payment to an NQI or a flow-through entity that is allocable to a chapter﻿ ﻿4 withholding rate pool, as indicated on a withholding statement upon which you may rely with respect to the payment allocable to such a pool, you should complete a separate Form 1042-S for each chapter﻿ ﻿4 withholding rate pool (that is, pool of recalcitrant account holders, pool of nonparticipating FFIs, pool of payees that are U.S. persons), treating the intermediary or flow-through entity as the recipient (and the applicable pool as the chapter﻿ ﻿4 status of the recipient). You need not issue a Form 1042-S to each recipient included in such pool. You must use a separate Form 1042-S for each type of income that you paid to the same recipient. See Statements to recipients, later.

You must furnish a Form 1042-S for each recipient even if you did not withhold tax because you repaid the tax withheld to the recipient or because the income payment was exempt from tax under the Internal Revenue Code or under a U.S. income tax treaty (except for a withholdable payment that is not a chapter﻿ ﻿4 reportable amount).

You can use a substitute Form 1042-S if it meets the requirements listed in Pub. 1179. Paper substitutes that totally conform to the format and size of the official form may be used without prior approval from the IRS. See Pub. 1179 for more information.

If you are reporting amounts withheld by another withholding agent, Form 1042-S requests the name and EIN of the withholding agent that withheld the tax to the extent required in the Instructions for Form 1042-S.

cautionIf you file a substitute for Copy A with the IRS that does not conform to the specifications in Pub. 1179, you may be subject to a penalty for failing to file a correct return. See Penalties, later.

Joint owners.

If there are joint owners of the withholdable payment, see Payments directly to beneficial owners under Payments to Recipients in the Instructions for Form 1042-S.

E-filing.

For information about Form 1042-S e-filing requirements for withholding agents or their agents, and partnerships with a Form 1042-S filing requirement, including the threshold return limits, see Electronic Reporting in the Instructions for Form 1042-S.

For additional information and instructions on e-filing Forms 1042-S, get Pub. 1187 or go to IRS.gov/InfoReturn for e-file options.

Form 1042-T.

If you are not required to e-file and Form 1042-S is filed on paper, it must be filed with Form 1042-T. You may need to file more than one Form 1042-T. See the instructions for Form 1042-T for more information.

Deposit interest paid to certain nonresident alien individuals.

Interest earned by residents of certain foreign countries is subject to information reporting. Deposit interest of $10 or more paid to any nonresident alien individual who is a resident of a foreign country with which the United States has agreed to exchange tax information pursuant to an income tax treaty or other convention or bilateral agreement, must be reported on Form 1042-S.

Revenue Procedure 2021﻿-﻿32 identifies those countries for which reporting of deposit interest is required with respect to a resident of any such country.

Note. You may elect to report interest paid to any nonresident alien.

Statements to recipients.

You must furnish a statement to each recipient for whom you are filing a Form 1042-S by the due date for filing Forms 1042 and 1042-S with the IRS. You may use a copy of the official Form 1042-S for this purpose. Any substitute forms must comply with the rules set out in Pub. 1179. You must furnish a separate substitute Form 1042-S for each type of income or payment. The withholding agent must ensure that any substitute Form 1042-S copies B, C, and D, which are furnished to the recipient, conforms in format and size to the official Form 1042-S and contains the exact same information as the copy filed with the IRS or e-filed. However, the size of a substitute Form 1042-S, copies B, C, and D, may be adjusted if the substitute form is presented on a landscape-oriented page instead of portrait. Only one Form 1042-S may be submitted per page, regardless of orientation.

Form 8966

A withholding agent that makes a withholdable payment to a passive NFFE with one or more substantial U.S. owners (or, in the case of a reporting Model 2 FFI, controlling persons of such an entity) or an owner-documented FFI with a specified U.S. person owning certain equity or debt interests in the FFI must report the payment and each such substantial U.S. owner (or controlling person, as applicable) or specified U.S. person owner of the passive NFFE or owner-documented FFI, respectively, on Form 8966 (in addition to reporting the payment and tax (if any) on Forms 1042 and 1042-S when the payment is an amount subject to chapter﻿ ﻿3 withholding). An exception to the requirement to report on Form 8966 applies when the payment is made to an account reported by an FFI as a U.S. account under the FFI’s applicable chapter﻿ ﻿4 requirements or the requirements of an applicable IGA.

 Form 8966 must be filed by March 31 of the year following the calendar year in which the payment is made. An automatic 90-day extension of time to file Form 8966 may be requested. To request an automatic 90-day extension of time to file Form 8966, file Form 8809-I. See the Instructions for Form 8809-I for where to file that form. You should request an extension as soon as you are aware that an extension is necessary, but no later than the due date for filing Form 8966. Under certain hardship conditions, the IRS may grant an additional 90-day extension to file Form 8966. To request an additional 90-day extension of time to file Form 8966, file a second Form 8809-I before the end of the initial extended due date.

E-filing requirement for Form 8966.

For information about the Form 8966 e-filing requirements, including the threshold return limits, for financial institutions and all other entities with a Form 8966 filing requirement, see Electronic filing requirement and How to file electronically in the Instructions for Form 8966.

Extensions of Time To File

You can request extensions of time to file Forms 1042 and 1042-S with the IRS and additional extensions to furnish Forms 1042-S to recipients.

Extension to file Form 1042.

You can get an automatic 6-month extension of time to file Form 1042 by filing Form 7004. File Form 7004 on or before the due date of Form 1042. Form 7004 does not extend the time for payment of tax.

CautionForm 7004 extends only the due date for filing the returns with the IRS. It does not extend the due date for furnishing statements to recipients.

Extension to file Form 1042-S with the IRS.

You can get an automatic 30-day extension of time to file Form 1042-S by filing Form 8809. You should request an extension as soon as you are aware that an extension is necessary, but no later than the due date for filing Form 1042-S.

You may request one additional extension of 30 days by submitting a second Form 8809 before the end of the first extension period. Requests for an additional extension are not automatically granted. When requesting the additional extension, include a copy of the filed Form 8809. The IRS will send you a letter of explanation approving or denying your request for an additional extension. See the instructions for Form 8809 for more information.

Note. If you have questions about Form 8809, call the Technical Services Operations (TSO) toll free at 866﻿-﻿455﻿-﻿7438 or 304﻿-﻿263﻿-﻿8700 (not toll free). Persons with a hearing or speech disability with access to TTY/TDD equipment can call 304﻿-﻿579﻿-﻿4827 (not toll free).

cautionIf you are requesting extensions of time to file for more than one withholding agent or payer, you must submit the extension request electronically.

Extension to furnish statements to recipients.

You may request a one-time 30–day extension to furnish copies of Form 1042–S. See Instructions for Form 1042–S for more information.

Penalties

If you do not file a correct and complete Form 1042 or Form 1042-S with the IRS on time or if you do not provide a correct and complete Form 1042-S to the recipient on time, you may be subject to a penalty.

Failure to file Form 1042.

The penalty for not filing Form 1042 when due (including extensions) is usually 5% of the unpaid tax for each month or part of a month the return is late, but not more than 25% of the unpaid tax.

Failure to file correct Form 1042-S.

A penalty may be imposed for failure to file a complete and correct Form 1042-S when due (including extensions).

For more information on the penalty for failure to timely file a correct Form 1042-S with the IRS, see Penalties in the current-year revision of the Instructions for Form 1042-S .

Failure to furnish Form 1042-S to recipient.

For more information on the penalty for failure to timely furnish Form 1042-S to a recipient, see Penalties in the current-year revision of the Instructions for Form 1042-S.

Penalty for intentional disregard of requirements to file or furnish returns.

If you intentionally disregard the requirement to file Form 1042-S when due, to furnish Form 1042-S to the recipient when due, or to report correct information, the penalty is the greater of $680 or 10% of the total amount of the items that must be reported, with no maximum penalty.

Failure to e-file.

If you are required to e-file Form 1042-S but you fail to do so, and you do not have an approved waiver, penalties may apply unless you establish reasonable cause for your failure.

For more information on failure to e-file, see Penalties in the current-year revision of the Instructions for Form 1042-S.

Partnership Withholding on ECTI

Under section 1446(a), a partnership (foreign or domestic) that has income effectively connected with a U.S. trade or business (or income treated as effectively connected) must pay a withholding tax on the ECTI that is allocable to its foreign partners. A publicly traded partnership or nominee for a publicly traded partnership distribution must withhold tax on actual distributions of ECI. See Publicly Traded Partnership Distributions (PTP Distributions), later. Chapter 4 withholding does not apply to this income.

This withholding tax does not apply to income that is not effectively connected with the partnership's U.S. trade or business. That income may be subject to chapter﻿ ﻿3 withholding tax, as discussed earlier.

Who Must Withhold

The partnership, or a withholding agent for the partnership, must pay the withholding tax. A partnership that must pay the withholding tax but fails to do so may be liable for the payment of the tax and any penalties and interest.

The partnership must determine whether a partner is a foreign partner. A foreign partner can be a nonresident alien individual, foreign corporation, foreign partnership, foreign estate or trust, foreign tax-exempt organization, or foreign government.

U.S. partner.

A partner that is a U.S. person should provide Form W-9 to the partnership.

A partnership may rely on a partner's certification of nonforeign status and assume that a partner is not a foreign partner unless the form:

Does not give the partner's name, U.S. TIN, and address; or

Is not signed under penalties of perjury and dated.

The partnership must keep the certification for as long as it may be relevant to the partnership's liability for tax under section 1446.

The partnership may not rely on the certification if it has actual knowledge or has reason to know that any information on the form is incorrect or unreliable.

If a partnership does not receive a Form W-9 (or similar documentation), the partnership must presume that the partner is a foreign person.

Foreign Partner

A partner that is a foreign person should provide the appropriate Form W-8 (as shown in Chart D) to the partnership.

Partners who have otherwise provided Form W-8 to a partnership for purposes of section 1441 or 1442, as discussed earlier, can use the same form for purposes of section 1446(a) if they meet the requirements discussed earlier under Documentation. However, a foreign simple trust that has provided documentation for its beneficiaries for purposes of section 1441 must provide a Form W-8 on its own behalf for purposes of section 1446.

The partnership may not rely on the certification if it has actual knowledge or has reason to know that any information on the form is incorrect or unreliable.

The partnership must keep the certification for as long as it may be relevant to the partnership's liability for section 1446 tax.

Chart D. Documentation for Foreign Partners*

IF you are a...

THEN provide to the partnership Form...

nonresident alien

W-8BEN.

foreign corporation

W-8BEN-E.

foreign partnership

W-8IMY.

foreign government

W-8EXP.

foreign grantor trust**

W-8IMY.

certain foreign trust or foreign estate

W-8BEN.

foreign tax-exempt organization (including a private foundation)

W-8EXP.

nominee

W-8 used by beneficial owner.

* A partnership may substitute its own form for the official version of Form W-8 to ascertain the identity of its partners.

** A domestic grantor trust must provide a statement as shown in Regulations section 1.1446﻿-﻿1(c)(2)(ii)(E), and documentation for its grantor.

Amount of Withholding Tax

The amount a partnership must withhold is based on its effectively connected taxable income that is allocable to its foreign partners for the partnership's tax year. However, see Publicly Traded Partnerships, later.

Reduction of withholding.

The foreign partner's share of the partnership's gross ECI is reduced by the following.

The partner's share of partnership deductions connected to that income for the year.

The partner's tax treaty benefits related to that income (see Chart D. Documentation for Foreign Partners for documentation).

The partnership may reduce the foreign partner's share of partnership gross ECI by the following.

State and local income taxes the partnership withholds and pays on behalf of the partner on current-year effectively connected taxable income allocated to the partner.

The foreign partner's partner-level deductions and losses that the partner certifies to the partnership as:

Carried forward from a prior year,

Properly allocated to gross ECI of the partner's trade or business in the United States, and

Reasonably expected to be available and claimed on the partner's U.S. income tax return.

To certify the deductions and losses, a partner must submit to the partnership Form 8804-C.

If the partner's investment in the partnership is the only activity producing ECI and the section 1446 tax is less than $1,000, no withholding is required. The partner must provide Form 8804-C to the partnership to receive the exemption from withholding.

A foreign partner may submit a Form 8804-C to a partnership at any time during the partnership's year and prior to the partnership's filing of its Form 8804. An updated certificate is required when the facts or representations made in the original certificate have changed or a status report is required.

For more information, see the Instructions for Form 8804-C.

Tax rate.

The withholding tax rate on a partner's share of ECTI is 37% for noncorporate partners and 21% for corporate partners. However, the partnership may withhold at the highest rate applicable to a particular type of income allocated to a partner provided the partnership received the appropriate documentation. See Regulations section 1.1446﻿-﻿3(a)(2)(ii).

Installment payments.

A partnership must make installment payments of withholding tax on its foreign partners' share of effectively connected taxable income whether or not distributions are made during the partnership's tax year. The amount of a partnership's installment payment is the sum of the installment payments for each of its foreign partners. The amount of each installment payment can be figured by using Form 8804-W.

Date payments are due.Payments of withholding tax must be made during the partnership's tax year in which the ECTI is derived. A partnership must pay the IRS a part of the annual withholding tax for its foreign partners by the 15th day of the 4th, 6th, 9th, and 12th months of its tax year for U.S. income tax purposes. Any additional amounts due are to be paid with Form 8804, the annual partnership withholding tax return, discussed later.

A foreign partner's share of withholding tax paid by a partnership is treated as distributed to the partner on the earliest of:

The day on which the tax was paid by the partnership,

The last day of the partnership's tax year for which the tax was paid, or

The last day on which the partner owned an interest in the partnership during that year.

The amount treated as distributed to the partner resulting from an installment payment is generally treated as an advance or draw under Regulations section 1.731﻿-﻿1(a)(1)(ii) to the extent of the partner's share of income for the partnership year.

Notification to partners.

In most cases, a partnership must notify each foreign partner of the tax withheld on its behalf within 10 days of the installment payment date. No particular form is required for this notification. For more information on the substance of the notification and exceptions, see Regulations section 1.1446﻿-﻿3(d)(1)(i).

Real property transfers.

If a domestic partnership disposes of a USRPI, gain or loss from the sale allocable to a foreign partner is treated as effectively connected to the conduct of a U.S. trade or business and is included in ECTI. The partnership or withholding agent must withhold following the rules discussed here for section 1446(a) withholding. A domestic partnership's compliance with these rules satisfies the requirements for withholding on the disposition of U.S. real property interests (discussed later).

If a foreign partnership disposes of a U.S. property interest, the transferee must withhold under section 1445(a), although gain or loss from the sale is also treated as effectively connected to the conduct of a U.S. trade or business and is included in ECTI. The foreign partnership may credit the amount withheld under section 1445(a) that is allocable to foreign partners against its tax liability under section 1446.

Transfers of interests in partnerships engaged in the conduct of a U.S. trade or business.

If a domestic partnership transfers a direct or indirect interest in another partnership engaged in the conduct of a U.S. trade or business, gain or loss from the sale allocable to a foreign partner that is treated under section 864(c)(8) as effectively connected to the conduct of a U.S. trade or business is included in ECTI.

If a foreign partnership transfers an interest in another partnership for a gain and section 864(c)(8) treats any portion of that gain as effectively connected with the conduct of a trade or business in the United States, then the partnership will be withheld upon under section 1446(f)(1). The foreign partnership may credit the amount withheld under section 1446(f)(1) that is allocable to foreign partners against its tax liability under section 1446(a).

Reporting and Paying the Tax

Three forms are required for reporting and paying over tax withheld on ECTI allocable to foreign partners. This does not apply to publicly traded partnerships, discussed later.

Form 8804.

The withholding tax liability of the partnership for its tax year is reported on Form 8804. Form 8804 is also a transmittal form for Forms 8805.

Any additional withholding tax owed for the partnership's tax year is paid (in U.S. currency) with Form 8804.

Due dateFile Form 8804 by the 15th day of the 3rd month after the close of the partnership's tax year. If you need more time to file Form 8804, file Form 7004 to request an extension of time to file. Form 7004 does not extend the time to pay the tax.

Form 8805.

This form is used to show the amount of ECTI and any withholding tax payments allocable to a foreign partner for the partnership's tax year. At the end of the partnership's tax year, Form 8805 must be sent to each foreign partner on whose behalf tax under section 1446 was withheld or whose Form 8804-C the partnership considered, whether or not any withholding tax is paid. It must be delivered to the foreign partner by the due date of the partnership return (including extensions). A copy of Form 8805 for each foreign partner must also be attached to Form 8804 when it is filed. Also attach the most recent Form 8804-C, discussed earlier, to the Form 8805 filed for the partnership's tax year in which the Form 8804-C was considered.

A copy of Form 8805 must be attached to the foreign partner's U.S. income tax return to take a credit on its Form 1040-NR or Form 1120-F.

Form 8813.

This form is used to make payments of withheld tax to the U.S. Treasury. Payments must be made in U.S. currency by the payment dates (see Date payments are due, earlier). See the Instructions for Form 8804-C for when you must attach a copy of that form to Form 8813.

Penalties.

A penalty may be imposed for failure to file Form 8804 when due (including extensions). It is generally the same as the penalty for not filing Form 1042, discussed earlier under Failure to file Form 1042.

A penalty may be imposed for failure to file Form 8805 when due (including extensions) or for failure to provide complete and correct information. The amount of the penalty depends on when you file a correct Form 8805. The penalty for each Form 8805 is generally the same as the penalty for not filing Form 1042-S. For more information, see Penalties in the current-year revision of the Instructions for Form 1042-S.

If you fail to provide a complete and correct Form 8805 to each partner when due (including extensions), a penalty may be imposed. The amount of the penalty depends on when you provide the correct Form 8805. The penalty for each Form 8805 is generally the same as the penalty for not providing a correct and complete Form 1042-S. For more information, see Penalties in the current-year revision of the Instructions for Form 1042-S.

Exception.

No penalty is imposed if you meet certain requirements. The rules are the same as for Form 1042-S. However, if a filer intentionally disregards the requirement to file Form 8805 when due, to furnish Form 8805 to the recipient when due, or to report correct information, the penalty for each Form 8805 (or statement to recipient) may be higher.

For more information, see Penalties in the current-year revision of the Instructions for Form 1042-S.

Identification numbers.

A partnership that has not been assigned a U.S. EIN must obtain one. If a number has not been assigned by the due date of the first withholding tax payment, the partnership should enter the date the number was applied for on Form 8813 when making its payment. As soon as the partnership receives its EIN, it must immediately provide that number to the IRS.

To ensure proper crediting of the withholding tax when reporting to the IRS, the partnership must include each partner's U.S. TIN on Form 8805. If there are partners in the partnership without identification numbers, the partnership should inform them of the need to get a number. See U.S. or Foreign TINs, earlier.

Publicly Traded Partnership Distributions (PTP Distributions)

A PTP that has ECTI must pay withholding tax under section 1446(a) on any distributions of that income made to its foreign partners. A PTP must use Forms 1042 and 1042-S (Income Code 27) to report withholding from PTP distributions. The rate of withholding is 37% for noncorporate partners and 21% for corporate partners under section 1446(a).

A publicly traded partnership (PTP) is any partnership an interest in which is regularly traded on an established securities market or is readily tradable on a secondary market. These rules do not apply to a PTP treated as a corporation under section 7704.

Foreign partner.

The partnership determines whether a partner is a foreign partner using the rules discussed earlier under Foreign Partner.

Nominee.

The withholding agent under section 1446(a) can be the PTP or a nominee. Starting in 2023, a nominee for section 1446(a) purposes is a person receiving a PTP distribution on behalf of a foreign person and that is a domestic person, a U.S. branch of a foreign corporation that is treated as a U.S. person, or a QI that assumes primary withholding responsibility for the distribution. See Regulations section 1.1446﻿-﻿4(b)(3) (describing nominees and their withholding requirements). For purposes of section 1446(a) withholding, a nominee generally determines whether a partner is a foreign partner under the same requirements applicable to a PTP. See Foreign partner directly above. A nominee for a PTP distribution must, in addition to withholding on the distribution to the extent required under section 1446(a), withhold on amounts attributable to the distribution that are subject to withholding under chapters 3 and 4, in addition to withholding under section 1446(f) on an amount realized on the distribution. See Ordering rules and Section 1446(f): PTP Interests, later. A nominee determines each amount subject to withholding on a PTP distribution based on a qualified notice issued by the PTP making the distribution or, in the absence of a qualified notice (or when a qualified notice does not specify each amount attributable to the distribution), based on the withholding default rule in section 1.1446﻿-﻿4(d).

A PTP or a nominee for a PTP distribution is not generally required to withhold on the distribution, however, when it pays the distribution to a nominee for the distribution. In such a case, the PTP or nominee is required to report the nominee to which it pays the distribution as the recipient for Form 1042-S reporting. If a PTP or nominee pays a PTP distribution to an NQI, however, the PTP or nominee must generally determine its withholding based on a withholding statement and partner documentation provided by the NQI with respect to the distribution. An NQI for this purpose includes a U.S. branch that is not acting as a U.S. person for a PTP distribution. See the Instructions for Form W-8IMY for additional information on payments of PTP distributions made to NQIs. If a PTP or nominee for a PTP distribution pays the distribution to a QI not acting as a nominee for the distribution, the PTP or nominee can determine its withholding based on withholding rate pool information provided by the QI or partner information provided by a QI that acts as a disclosing QI. See Revenue Procedure 2022﻿-﻿43 for information on the withholding and other requirements of QIs acting as nominees or as disclosing QIs for PTP distributions (starting January 1, 2023). See the Instructions for Form 1042-S for the reporting of a PTP distribution paid to an account holder of a disclosing QI and when a nominee for a PTP distribution is required to report information about the PTP making a distribution on a Form 1042-S.

Distributions subject to withholding.

The partnership or nominee must withhold tax on any actual distributions of money or property to foreign partners. The amount of the distribution includes the amount of any tax under section 1446(a) required to be withheld. In the case of a partnership that receives a partnership distribution from another partnership (a tiered partnership), the distribution also includes the tax withheld from that distribution.

If the distribution is in property other than money, the partnership cannot release the property until it has enough funds to pay over the withholding tax.

A PTP or nominee that complies with these withholding requirements satisfies the requirements discussed later under U.S. Real Property Interest. Distributions subject to withholding include:

Amounts subject to withholding under section 1445(e)(1) on distributions pursuant to an election under Regulations section 1.1445﻿-﻿5(c)(3), and

Amounts not subject to withholding under section 1445 because the distributee is a partnership or is a foreign corporation that has made an election to be treated as a domestic corporation.

Ordering rules.

Partnership distributions are considered to be paid out of the following types of income in the order listed.

Amounts attributable to income described in section 1441 or 1442 that are not effectively connected with the conduct of a trade or business in the United States and are subject to withholding under Regulations section 1.1441﻿-﻿2(a).

Amounts attributable to income described in section 1441 or 1442 that are not effectively connected with the conduct of a trade or business in the United States and are not subject to withholding under Regulations section 1.1441﻿-﻿2(a).

Amounts attributable to income effectively connected with the conduct of a trade or business in the United States and not subject to withholding under Regulations section 1.1446﻿-﻿1 through 1.1446﻿-﻿6.

Amounts subject to withholding under Regulations section 1.1446﻿-﻿1 through 1.1446﻿-﻿6.

Other amounts not listed above.

Depositing taxes a PTP withholds under section 1446.

The general rules for making payments of taxes withheld under section 1446(a) do not apply to PTP distributions. Instead, apply the rules discussed earlier, under Depositing Withheld Taxes.

Section 1446(f) Withholding

Section 13501 of the TCJA added section 1446(f) effective for transfers of partnership interests occurring on or after January 1, 2018. Section 1446(f) generally requires that a transferee of an interest in a partnership withhold 10% of the amount realized on the disposition if any portion of the gain, if any, would be treated under section 864(c)(8) as effectively connected with the conduct of a trade or business within the United States. A transfer can occur when a partnership distribution results in gain under section 731. Under section 1446(f)(4), if the transferee fails to withhold any required amount, the partnership must deduct and withhold from distributions to the transferee the amount that the transferee failed to withhold (plus interest).

Notice 2018﻿-﻿08, 2018﻿-﻿07 I.R.B. 352, available at IRS.gov/irb/2018﻿-﻿07_IRB#NOT-2018﻿-﻿08, temporarily suspended the application of section 1446(f) to the disposition of certain PTP interests.

Notice 2018﻿-﻿29, 2018﻿-﻿16 I.R.B. 495, available at IRS.gov/irb/2018﻿-﻿16_IRB#NOT-2018﻿-﻿29, provides interim guidance regarding withholding of U.S. tax related to transfers of interests in partnerships, other than PTPs, under section 1446(f). It also temporarily suspended withholding under section 1446(f)(4).

On May 7, 2019, the Department of Treasury and the IRS issued proposed regulations under section 1446(f) (84 FR 21198) for transfers of both non-PTP and PTP interests. During the period that Notice 2018﻿-﻿29 applies, instead of applying the rules described in the Notice, taxpayers and other affected persons may choose to apply Regulations sections 1.1446(f)-1, 1.1446(f)-2, and 1.1446(f)-5 of the proposed regulations in their entirety to all transfers as if they were final regulations.

On November 30, 2020, the Department of Treasury and the IRS issued final regulations under section 1446(f) in T.D. 9926 (85 FR 76910) for transfers of both non-PTP and PTP interests. The final regulations require any transferee to withhold 10% of the amount realized on any transfer of a partnership interest (other than certain PTP interests) under section 1446(f)(1), unless an exception to withholding applies. These regulations generally apply to transfers that occur on or after January 29, 2021. However, in accordance with Notice 2021﻿-﻿51, 2021﻿-﻿36 I.R.B. 361, the rules related to withholding under section 1446(f)(4) and to transfers of PTP interests apply to transfers occurring on or after January 1, 2023. Additionally, the final regulations revised certain provisions in Regulations section 1.1446﻿-﻿4 for withholding under section 1446(a) on PTP distributions. Also in accordance with Notice 2021﻿-﻿51, these revisions apply to PTP distributions made on or after January 1, 2023. Notices 2018﻿-﻿8 and 2018﻿-﻿29 apply to transfers that occur before the effective date of the final regulations or, as previously described, taxpayers may apply the proposed regulations to transfers of non-PTP interests during this time. For additional guidance to brokers required to withhold on transfers of PTP interests, see Notice 2023﻿-﻿08, available at IRS.gov/irb/2023﻿-﻿02_IRB#NOT-2023﻿-﻿8.

Section 1446(f): Non-PTP Interests

 Exceptions to withholding on transfers of non-PTP interests.

A transferee, including a partnership when the partner is a distributee, is not required to withhold on the transfer of a non-PTP interest if it properly relies on one of the following six certifications, the requirements of which are more fully described in the referenced regulations. A transferee may not rely on a certification if it has actual knowledge that the certification is incorrect or unreliable. A partnership that is a transferee because it makes a distribution may not rely on its books and records if it knows, or has reason to know, that the information is incorrect or unreliable. A certification must provide the name and address of the person providing it, be signed under penalties of perjury, and generally include the taxpayer identification number of the transferor. See Regulations sections 1.1446(f)-1(c)(2)(i) and 1.1446(f)-2(b)(1). Also, separate rules apply if the transfer results from a partnership distribution. Only the certification in exception six must be submitted to the IRS.

The certifications in several of the exceptions are based on a determination date. The determination date must be one of the following: (a) the date of the transfer; (b) any date no more than 60 days before the date of the transfer; or (c) if the transferor is not a controlling partner, as defined in Regulations section 1.1446(f)-1(b)(2), the later of (i) the first day of the partnership’s taxable year in which the transfer occurs, or (ii) the date before the transfer of the partnership’s most recent capital account revaluation event. See Regulations section 1.1446(f)-1(c)(4).

Certification of non-foreign status.The transferor provides a certification of non-foreign status signed under penalties of perjury that states that the transferor is not a foreign person, and provides the transferor’s name, TIN, and address. A certificate of non-foreign status includes a Form W-9. See Regulations section 1.1446(f)-2(b)(2).

Certification of no realized gain. The transferor provides a certification that there was no realized gain on the transfer of the partnership interest (including no ordinary income arising from the application of section 751 and Regulations section 1.751﻿-﻿1) as of the determination date. See Regulations section 1.1446(f)-2(b)(3).

Certification of less than 10% effectively connected gain. The partnership provides a certification stating that:

On the deemed sale of the partnership assets in the manner described in Regulations section 1.864(c)(8)-1(c) as of the determination date either: the partnership would have no effectively connected gain (or the net amount of its effectively connected gain would be less than 10% of the total net gain) on all its assets; or the transferor’s distributive share of net effectively connected gain resulting from the deemed sale would be less than 10% of the transferor’s distributive share of the total net gain; or

The partnership was not engaged in a trade or business within the United States at any time during the taxable year of the partnership until the date of transfer. See Regulations section 1.1446(f)-2(b)(4).

Certification of less than 10% effectively connected income. The transferor provides a certification that:

The transferor was a partner in the partnership for the transferor’s immediately prior tax year (for which it has already received a Schedule﻿ ﻿K-1) and the 2 preceding tax years (the look-back period) and had a distributive share of gross income from the partnership in each of these years;

The transferor’s distributive share of gross ECI from the partnership, and any persons related to the transferor, as reported on a Schedule﻿ ﻿K-1 (Form 1065) or other statement required by the partnership, was less than $1 million for each of the tax years during the look-back period;

The transferor’s distributive share of partnership gross ECI, as reported on a Schedule﻿ ﻿K-1 or K-3 (Form 1065) or other statement required by the partnership, for each year during the look-back period, was less than 10% of its total distributive share of partnership gross income; and

For each year during the look-back period, the transferor’s distributive share of partnership ECI or gain (or losses properly allocated and apportioned to that income) has been timely reported on a federal income tax return of the transferor (or if the transferor was a partnership, its direct or indirect nonresident alien and foreign corporate partners) and any tax due with respect to such amounts have been timely paid, provided the return was required to be filed when the transferor furnishes the certification. See Regulations section 1.1446(f)-2(b)(5).

Certification of nonrecognition. The transferor provides a certification that it is not required to recognize any gain or loss with respect to the transfer by reason of the operation of a nonrecognition provision of the Internal Revenue Code. The certification must briefly describe the transfer and provide the relevant law and facts relating to the certification. This exception does not apply if only a portion of the gain is not recognized. See Regulations section 1.1446(f)-2(b)(6).

Certification that an income tax treaty applies.The transferor provides a certification using Form W-8BEN or W-8BEN-E, as applicable, or applicable substitute form that meets the requirements under Regulations section 1.1446﻿-﻿1(c)(5) that the transferor is not subject to tax on any gain from the transfer pursuant to an income tax treaty. The transferor may not provide this certification if any portion of the gain is subject to tax. The form should contain the information necessary to support the claim for treaty benefits. Within 30 days after the date of the transfer, the transferee must mail certain information, plus a copy of the certificate, to the IRS, at the address in the Instructions for Form 8288. See Regulations section 1.1446(f)-2(b)(7).

TIPSee the discussion, later, regarding certification of maximum tax lability if a nonrecognition provision applies to only a portion of the gain realized on the transfer or only a portion of the gain on the transfer is not subject to tax pursuant to an income tax treaty.

A non-PTP making a distribution to a partner may generally rely on any of the above exceptions, with certain additional considerations:

In Exception 2, the no realized gain exception, a distributing partnership generally may rely on its books and records or on a certification from the distributee partner.

In Exception 4, the less than 10% ECI exception, a distributing partnership may generally rely on its books and records but must also obtain a representation from the distributee partner stating that the distributee partner satisfies the reporting and tax payment requirements with respect to the partnership’s ECI for the look-back period.

Determining the amount to withhold.

In general, the transferee must withhold 10% of the amount realized. The amount realized includes the cash paid, the fair market value of property transferred, plus the assumption of and relief from liabilities, and liabilities to which the partnership interest is subject. See Regulations section 1.1446(f)-2(c)(2)(i). If certain requirements are met, the transferee may rely on a certification of the amount of the transferor's share of partnership liabilities reported on the most recent Schedule﻿ ﻿K-1 (Form 1065) issued by the partnership or a certification from a partnership that provides the amount of the transferor's share of partnership liabilities as of the determination date. See Regulations section 1.1446(f)-2(c)(2)(ii) and (iii).

Modified amount realized.

If a foreign partnership is the transferor, separate rules may apply to determine a modified amount realized. The modified amount realized is determined by multiplying the amount realized by the aggregate percentage computed as of the determination date. The aggregate percentage is the percentage of the gain (if any) arising from the transfer that would be allocated to any presumed foreign taxable persons. For this purpose, a presumed foreign taxable person is any person that has not provided a certificate of non-foreign status, as previously described in the Exception 1 to withholding, or a certification that pursuant to a tax treaty no portion of the foreign taxable person’s gain is subject to tax. The certification the transferor foreign partnership provides does not need to be submitted to the IRS. See Regulations section 1.1446(f)-2(c)(2)(iv).

Lack of money or property or lack of knowledge regarding liabilities.

Under certain circumstances, the amount the transferee must withhold equals the entire amount realized, rather than 10% of the amount realized, but the amount realized is determined without regard to any decrease in the transferor’s share of partnership liabilities. These circumstances are if:

The amount otherwise required to be withheld would exceed the amount realized determined without regard to the decrease in the transferor’s share of partnership liabilities; or

The transferee is unable to determine the amount realized because it does not have actual knowledge of the transferor’s share of partnership liabilities (and has not received or cannot rely on a certification of the transferor’s share of partnership liabilities received from the transferor (including the most recent Schedule﻿ ﻿K-1) or a certification of the transferor’s share of liabilities received from the partnership). See Regulations section 1.1446(f)-2(c)(3)(ii).

Certification of maximum tax liability.

A transferor that meets certain requirements can certify its maximum tax liability to the transferee. The maximum tax liability is the amount of the transferor’s effectively connected gain multiplied by the applicable percentage under Regulations section 1.1446﻿-﻿3(a)(2). The applicable percentage for foreign corporations is the highest rate of tax under section 11(b) and for non-corporations is the highest rate of tax under section 1. See Regulations section 1.1446(f)-2(c)(4) for further information. The certificate does not need to and should not be submitted to the IRS for approval.

Effect of withholding on transferor.

A transferee’s withholding of tax under section 1446(f)(1) does not relieve a foreign person from filing a U.S. tax return with respect to the transfer. Further, it does not relieve a nonresident alien individual or foreign corporation subject to tax on gain by reason of section 864(c)(8) from paying with the return any tax due that has not been fully satisfied through withholding.

Transfers of partnership interests subject to withholding under sections 1445(e)(5) and 1446(f)(1).

The transfer of a partnership interest may be subject to withholding under section 1445(e)(5) or Regulations section 1.1445﻿-﻿11T(d)(1) if 50% or more of the value of the partnership’s gross assets consist of USRPI, and 90% or more of the value of its gross assets consist of USRPI plus any cash or cash equivalents. The transfer of a partnership interest may also be subject to withholding under section 1446(f)(1) and Regulations section 1.1446(f)-2 if the partnership also holds other property used in the conduct of a trade or business within the United States. If both sections 1445(e)(5) and 1446(f)(1) could apply to the same transfer, generally the transfer is subject to the payment and reporting requirements of section 1445 only, and not section 1446(f)(1). However, if the transferor has applied for a withholding certificate under the last sentence of Regulations section 1.1445﻿-﻿11T(d)(1), the transferee must withhold the greater of the amounts required under section 1445(e)(5) or 1446(f)(1). A transferee that has complied with the withholding requirements under either section 1445(e)(5) or 1446(f)(1), as described under this paragraph, will be deemed to satisfy its withholding requirement.

Forms for paying and reporting section 1446(f)(1) withholding.

To meet the withholding, payment, and reporting requirements under section 1446(f)(1) for transfers of interests in partnerships other than PTPs, taxpayers must use Forms 8288 and 8288-A and follow the instructions for those forms.

The time for filing Forms 8288 and 8288-A to report section 1446(f)(1) withholding is the same as for section 1445 withholding. The same rules for filing Forms 8288 and 8288-A by transferees withholding tax under section 1445 apply to transferees withholding tax under section 1446(f)(1). The same rules for claiming a credit for withholding of tax under section 1445 apply to transferors receiving Form 8288-A claiming credit for withholding under section 1446(f)(1). The rules relating to Forms 8288 and 8288-A discussed in this paragraph are described, later, under U.S. Real Property Interest, Reporting and Paying the Tax and in the Instructions for Form 8288.

Transferee reporting to partnership.

No later than 10 days after the transfer, a transferee (other than a partnership that is a transferee because it made a distribution) must certify to the partnership the extent to which it has satisfied its withholding obligation. See Regulations section 1.1446(f)-2(d)(2) for the documentation required for making this certification.

Partnership’s requirement to withhold under section 1446(f)(4) on distributions to transferee.

Section 1446(f)(4) requires a partnership to withhold on distributions to a transferee on any amount that the transferee failed to properly withhold under section 1446(f)(1), plus any interest on this amount. See Regulations section 1.1446(f)-3. These rules apply to transfers occurring on or after January 1, 2023. See Notice 2021﻿-﻿51, 2021﻿-﻿36 I.R.B. 361, available at IRS.gov/irb/2021﻿-﻿36_IRB#NOT-2021﻿-﻿51.

Requirement to withhold.

If a transferee fails to withhold any amount required by Regulations section 1.1446(f)-2 in connection with the transfer of a partnership interest, the partnership must withhold from the distributions it makes to the transferee. Generally, a partnership may rely on the certification described in Regulations section 1.1446(f)-2(d)(2) that it receives from the transferee to determine whether a transferee has withheld the amount required by Regulations section 1.1446(f)-2, unless it knows, or has reason to know, that the certification is incorrect or unreliable. See Regulations section 1.1446(f)-3(a)(1).

If the partnership receives, within 10 days from the transfer, a certification from the transferee stating that an exception to withholding applies or establishing that the transferee has withheld the amount required to be withheld under Regulations section 1.1446(f)-2, then the partnership generally is not required to withhold under Regulations section 1.1446(f)-3(a)(1). See Regulations section 1.1446(f)-3(b)(1). However, a partnership is required to withhold under section 1446(f)(4) if it receives notification from the IRS that the transferee has provided incorrect information on the certification. This may occur when the IRS determines that the transferee has provided incorrect information on the certification regarding the amount realized or the amount withheld, or that the transferee failed to pay the amounts reported as withheld to the IRS. See Regulations section 1.1446(f)-3(a)(2).

A partnership that is a transferee because it makes a distribution subject to section 1446(f)(1) is not required to withhold under section 1446(f)(4). However, the partnership remains liable for its failure to withhold in its capacity as a transferee. A publicly traded partnership is not required to withhold on distributions made to a transferee under section 1446(f)(4). See Regulations sections 1.1446(f)-3(b)(2) and (3).

Withholding rules.

A partnership that does not receive, or cannot rely on, a timely certification from a transferee stating that an exception to withholding applies or that the proper amount has been withheld must begin withholding on distributions made to the transferee on the later of the date that is 30 days after the transfer or the date that is 15 days after the partnership acquires actual knowledge of the transfer. See Regulations section 1.1446(f)-3(c)(1)(i).

The partnership must withhold on the entire amount of each distribution made to the transferee until it may rely on a certification from the transferee that states that an exception to withholding applies or that provides the information necessary to determine the amount required to be withheld. See Regulations section 1.1446(f)-3(c)(1)(ii). The partnership may rely on this certification to determine its withholding obligation regardless of whether it is provided within the time prescribed in Regulations section 1.1446(f)-2(d)(2). Once the partnership receives a certification from the transferee, the partnership must withhold 10% of the amount realized on the transfer, reduced by any amount already withheld by the transferee, plus any computed interest. See Regulations section 1.1446(f)-3(c)(2)(i).

A partnership that is required to withhold under Regulations section 1.1446(f)-3(a)(1) may not take into account any adjustment procedures that would otherwise affect the amount required to be withheld under Regulations section 1.1446(f)-2(c)(2)(i). See Regulations section 1.1446(f)-3(c)(2)(i)(A). Thus, for example, a partnership may not reduce the amount that it is required to withhold under the procedures described in Regulations section 1.1446(f)-2(c)(4) (adjusting the amount subject to withholding based on a transferor’s maximum tax liability). For example, if a partnership is required to withhold $30 under section 1441 on a $100 distribution, the maximum amount required to be withheld on that distribution under section 1446(f)(4) is $70.

A partnership that does not receive or cannot rely on a certification from the transferee must withhold the full amount of each distribution made to the transferee until the partnership receives a certification that it can rely on. However, any amount required to be withheld on a distribution under any other withholding provision in the Code is not required to be withheld under section 1446(f)(4). See Regulations section 1.1446(f)-3(c)(3). Nevertheless, the partnership may stop withholding if the transferee disposes of all of its interest in the partnership, unless the partnership has actual knowledge that any successor to the transferee is related to the transferee or the transferor from which the transferee acquired the interest.

Computation of interest.

The amount of interest required to be withheld is the amount of interest that would be required to be paid under section 6601 and Regulations section 301.6601﻿-﻿1 if the amount that should have been withheld by the transferee was considered an underpayment of tax. Interest is payable between the date that is 20 days after the date of the transfer and the date on which the transferee’s withholding tax liability due under section 1446(f)(1) is satisfied. See Regulations section 1.1446(f)-3(c)(2)(ii).

Forms and filing dates.

A partnership required to withhold under section 1446(f)(4) must report and pay the tax withheld using Forms 8288 and 8288-C. See Regulations section 1.1446(f)-3(d). To report section 1446(f)(4) withholding, see the Instructions for Form 8288 for the deadline to file Forms 8288 and 8288-C.

Buyer/transferee claiming refund of section 1446(f)(4) withholding.

A transferee may claim a refund for an excess amount if it has been overwithheld upon under section 1446(f)(4). An excess amount is the amount of tax and interest withheld that exceeds the transferee's withholding tax liability plus any interest owed by the transferee with respect to such liability. See Regulations section 1.1446(f)-3(e). The transferee may also be liable for any applicable penalties or additions to tax. A transferee must complete Part V of Form 8288 and attach Form(s) 8288-C it received from the partnership when making a claim for refund of section 1446(f)(4) withholding. If a transferee that has not yet completed and filed Part III of Form 8288 with respect to a transfer and is now claiming a refund for amounts withheld under section 1446(f)(4), the transferee must complete Part III when filing Part V of Form 8288.

Section 1446(f): PTP Interests

For purposes of section 1446(f), a broker is generally required to withhold at a 10% rate on an amount realized from the transfer of a PTP interest that it effects for the transferor of the interest. However, certain exceptions to withholding may apply under Regulations section 1.1446(f)-4(b), which include exceptions for a transferor providing a certification of non-foreign status, a certification from a transferor claiming an exemption from tax on any gain from the transfer under an income tax treaty, or a certification of the transferor’s status as a dealer in securities stating that any gain from the transfer is effectively connected with a trade or business in the U.S. without regard to section 864(c)(8). Additionally, for an the amount realized paid to a transferor that is a foreign partnership, a broker may rely on a claim for a modified amount realized made by the partnership on a valid Form W-8IMY and determine its withholding taking into account a certification of non-foreign status or claim for treaty benefits provided for a partner in the partnership that meets the requirements of Regulations section 1.1446(f)-4(b)(2) or (5). See Regulations section 1.1446(f)-4(c)(2)(ii) for further information on a modified amount realized. For an amount realized paid to a transferor that is a grantor trust, a broker may similarly determine its withholding taking into account any withholding exception applicable to a grantor or owner in the trust.

A broker is also required to withhold under section 1446(f) an amount realized from the transfer of a PTP interest that it pays to a broker that is an NQI, a QI (other than a QI assuming primary withholding responsibility for the amount realized), or U.S. branch or territory financial institution that is not treated as a U.S. person for the amount realized. In the case of an amount realized paid to an NQI (including a U.S. branch or territory financial institution not treated as a U.S. person), a broker is required to withhold at the 10% rate under section 1446(f). See the Instructions for Form W-8IMY for additional information on the amount realized paid to NQIs. In the case of an amount realized paid to a QI not assuming primary withholding responsibility for the amount, a broker may withhold based on either withholding rate pool information provided by the QI or information on the transferors of the PTP interest when the QI acts as a disclosing QI.

Regardless of whether an amount realized is paid to a transferor of a PTP interest through a broker, a broker is not required to withhold under section 1446(f) when it may rely on a qualified notice from the PTP that states the applicability of the “10% exception” to withholding. See Regulations section 1.1446(f)-4(b)(3) for further information on this exception, which applies to a PTP with less than 10% effectively connected gain (or that is otherwise not engaged in a trade or business in the United States).

An amount realized from the sale of a PTP interest is the amount of gross proceeds paid or credited from the sale. In the case of a PTP distribution, an amount realized on the distribution is limited to an amount described in Regulations section 1.1446(f)-4(c)(2)(iii).

For when an amount realized is reportable on Form 1042-S and other requirements for reporting amounts realized on Form 1042-S, see Regulations section 1.1461﻿-﻿1(c)(2)(i) and the Instructions for Form 1042-S. Also see the Instructions for Form 1042-S for the reporting of an amount realized paid to an NQI, or to a QI (including when the QI acts as a disclosing QI for the amount realized). See Revenue Procedure 2022﻿-﻿43 for the withholding and reporting requirements of QIs with respect to amounts realized paid to their account holders (including QIs acting as disclosing QIs), effective starting January 1, 2023.

U.S. Real Property Interest

The disposition of a USRPI by a foreign person (the transferor) is subject to income tax withholding under section 1445. If you are the transferee, you must find out if the transferor is a foreign person. If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax.

Foreign person.

A foreign person is a nonresident alien individual, or a foreign corporation that has not made an election under section 897(i) to be treated as a domestic corporation, foreign partnership, foreign trust, or foreign estate. It does not include a resident alien individual or, in certain cases, a qualified foreign pension fund. See Retirement and pension funds, later.

Transferor.

A transferor is any foreign person that disposes of a USRPI by sale, exchange, gift, or any other transfer. A transfer includes distributions to shareholders of a corporation and beneficiaries of a trust or estate.

The owner of a disregarded entity, not the entity, is treated as the transferor of the property transferred by the disregarded entity.

Transferee.

A transferee is any person, foreign or domestic, that acquires a USRPI by purchase, exchange, gift, or any other transfer.

USRPI defined.

A USRPI is an interest, other than as a creditor, in real property (including an interest in a mine, well, or other natural deposit) located in the United States or the USVI, as well as certain personal property that is associated with the use of real property (such as farming machinery). It also means any interest, other than as a creditor, in any domestic corporation unless it is established that the corporation was at no time a U.S. real property holding corporation during the shorter of the period during which the interest was held, or the 5-year period ending on the date of disposition (applicable periods).

 An interest in a corporation is not a USRPI if:

Such corporation did not hold any USRPI on the date of disposition,

All the USRPI held by such corporation at any time during the shorter of the applicable periods were disposed of in transactions in which the full amount of any gain was recognized, and

Such corporation and any predecessor of such corporation was not a RIC or a REIT during the shorter of the applicable periods during which the interest was held.

Exception for publicly traded stock.

If, at any time during the calendar year, any class of stock of a domestic corporation is regularly traded on an established securities market, an interest in such corporation will not be treated as a USRPI if the beneficial owner did not own more than 5% of the total fair market value of that class of interests, or 10% of the total fair market value of that class of interests in the case of a REIT, at any time during the shorter of the applicable periods. Certain constructive ownership rules apply for purposes of determining whether any person meets the above ownership threshold of any class of stock. See section 897(c)(6)(C) for more information on the constructive ownership rules.

Amount to withhold.

The transferee must deduct and withhold a tax on the total amount realized by the foreign person on the disposition. The rate of withholding is generally 15%.

The amount realized is the sum of:

The cash paid, or to be paid (principal only);

The fair market value of other property transferred, or to be transferred; and

The amount of any liability assumed by the transferee or to which the property is subject immediately before and after the transfer.

If the property transferred was owned jointly by U.S. and foreign persons, the amount realized is allocated between the transferors based on the capital contribution of each transferor.

Residences.

This rule applies when the property disposed of is acquired by the transferee for use by the transferee as a residence. If the amount realized on such disposition does not exceed $300,000, no withholding is required. Otherwise, the transferee must generally withhold 10% of the amount realized by a foreign person. The rate of withholding is 15% when the amount realized is in excess of $1,000,000.

Foreign corporations.

A foreign corporation that distributes a USRPI must withhold a tax equal to 21% of the gain it recognizes on the distribution to its shareholders.

Domestic corporations.

A domestic corporation must withhold tax on the fair market value of the property distributed to a foreign shareholder if:

The shareholder's interest in the corporation is a USRPI, and

The property distributed is either in redemption of stock or in liquidation of the corporation.

The corporation must generally withhold 15% of the amount realized by a foreign person.

U.S. real property holding corporations.

A distribution from a domestic corporation that is a U.S. real property holding corporation (USRPHC) is generally subject to chapter﻿ ﻿3 withholding and withholding under the USRPI provisions. This also applies to a corporation that was a USRPHC at any time during the shorter of the period during which the USRPI was held, or the 5-year period ending on the date of disposition. A USRPHC can satisfy both withholding provisions if it withholds under one of the following procedures.

Apply chapter﻿ ﻿3 withholding on the full amount of the distribution, whether or not any part of the distribution represents a return of basis or capital gain. If a reduced tax rate applies under an income tax treaty, see Regulations section 1.1441﻿-﻿3T(c)(4)(i)(A) for the minimum withholding rate that may be applicable.

Apply chapter﻿ ﻿3 withholding to the part of the distribution that the USRPHC estimates is a dividend. Then, withhold 15% on the remainder of the distribution (or on a smaller amount if a withholding certificate is obtained and the amount of the distribution that is a return of capital is established).

The same procedure must be used for all distributions made during the year. A different procedure may be used each year.

Partnerships.

If a domestic or foreign partnership with any foreign partners disposes of a USRPI at a gain, the gain is treated as ECI and is generally subject to the rules explained earlier under Partnership Withholding on ECTI. A foreign partnership that disposes of a USRPI may credit the taxes withheld by the transferee against the tax liability determined under the partnership withholding on ECTI rules.

If a foreign person disposes of an interest in a partnership in which 50% or more of the value of the gross assets consist of USRPI and 90% or more of the value of the gross assets consist of USRPI plus any cash or cash equivalents, the transferee of the partnership interest must deduct and withhold 15% of the amount realized on the disposition.

Trusts and estates.

You are a withholding agent if you are a trustee, fiduciary, or executor of a trust or estate having one or more foreign beneficiaries. You must establish a USRPI account. You enter in the account all gains and losses realized during the tax year of the trust or estate from dispositions of USRPI. You must withhold 21% on any distribution to a foreign beneficiary that is attributable to the balance in the real property interest account on the day of the distribution. A distribution from a trust or estate to a beneficiary (foreign or domestic) will be treated as attributable first to any balance in the USRPI account and then to other amounts.

A trust with more than 100 beneficiaries may elect to withhold from each distribution 21% of the amount attributable to the foreign beneficiary's proportionate share of the current balance of the trust's real property interest account. This election does not apply to publicly traded trusts or REITs. For more information about this election, see Regulations section 1.1445﻿-﻿5(c).

Publicly traded partnership and trust interests.

If any class of interest in a partnership or a trust is regularly traded on an established securities market, any interest in such a partnership or trust will be treated as an interest in a publicly traded corporation and will be subject to the rules applicable to those interests.

Qualified investment entities (QIEs).

Special rules apply to QIEs. A QIE is:

A REIT, or

A RIC that is a U.S. real property holding corporation.

Look-through rule for QIEs.

In most cases, any distribution from a QIE to a nonresident alien, foreign corporation, or other QIE that is attributable to the QIE's gain from the sale or exchange of a USRPI is treated as gain recognized by the nonresident alien, foreign corporation, or other QIE from the sale or exchange of a USRPI.

A distribution by a QIE to a nonresident alien or foreign corporation that is treated as gain from the sale or exchange of a USRPI by the shareholder is subject to withholding at 21%.

Certain exceptions apply to the look-through rule for distributions by QIEs. Any distribution by a QIE with respect to stock regularly traded on an established securities market in the United States is not treated as gain from the sale or exchange of a USRPI if the shareholder did not own more than 5% of that stock (or more than 10% of that stock in the case of REITs) at any time during the 1-year period ending on the date of the distribution. A distribution by a REIT generally is not treated as gain from the sale or exchange of a USRPI if the shareholder is a qualified shareholder (as described in section 897(k)(3)). These distributions may be included in the shareholder's gross income as a dividend from the QIE, not as long-term capital gain.

Disposition of REIT stock.

Disposition of stock in a REIT that is held directly (or indirectly through one or more partnerships) by a qualified shareholder may not be subject to withholding. See section 897(k)(2) for more information.

Domestically controlled QIE.

The sale of an interest in a domestically controlled QIE is not the sale of a USRPI. The entity is domestically controlled if at all times during the testing period less than 50% in value of its stock was held, directly or indirectly, by foreign persons. The testing period is the shorter of (a) the 5-year period ending on the date of disposition, or (b) the period during which the entity was in existence.

For the purpose of determining whether a QIE is domestically controlled, the following rules apply.

A person holding less than 5% of any class of stock of a QIE that is regularly traded on an established securities market in the United States at all times during the testing period will be treated as a U.S. person unless the QIE has actual knowledge that such person is not a U.S. person.

Any stock in a QIE that is held by another QIE will be treated as held by a foreign person if:

Any class of stock of such other QIE is regularly traded on an established securities market, or

Such other QIE is a RIC that issues certain redeemable securities.

Notwithstanding the above, the stock of the QIE will be treated as held by a U.S. person if such other QIE is domestically controlled.

Stock in a QIE that is held by any other QIE not described above will be treated as held by a U.S. person in proportion to the stock ownership of such other QIE that is (or is treated as) held by a U.S. person.

If a foreign shareholder in a domestically controlled QIE disposes of an interest in the QIE in an applicable wash sale transaction, special rules apply. See section 897 for more information.

Retirement and pension funds.

A qualified foreign pension fund or any entity wholly owned by such qualified foreign pension fund will not be treated as a foreign person for dispositions of USRPI or distributions received from a REIT or certain RICs described in section 897(h)(4)(A)(ii). Qualified foreign pension funds are described in section 897(l)(2).

Additional information.

For additional information on the withholding rules that apply to corporations, trusts, estates, and qualified investment entities, see section 1445 and the related regulations. For additional information on the withholding rules that apply to partnerships, see the previous discussion.

Exceptions.

You do not have to withhold if any of the following apply.

You (the transferee) acquire the property for use as a residence and the amount realized (sales price) is not more than $300,000. You or a member of your family must have definite plans to reside at the property for at least 50% of the number of days the property is used by any person during each of the first two 12-month periods following the date of transfer. When counting the number of days the property is used, do not count the days the property will be vacant. For this exception, the transferee must be an individual.

The property disposed of is an interest in a domestic corporation and any class of stock of the corporation is regularly traded on an established securities market. However, this exception does not apply to certain dispositions of substantial amounts of non-publicly traded interests in publicly traded corporations.

The disposition is of an interest in a domestic corporation and that corporation furnishes you a certification stating, under penalties of perjury, that the interest is not a USRPI. In most cases, the corporation can make this certification only if either of the following is true.

During the previous 5 years (or, if shorter, the period the interest was held by its present owner), the corporation was not a USRPHC.

As of the date of disposition, the interest in the corporation is not a USRPI by reason of section 897(c)(1)(B). The certification must be dated not more than 30 days before the date of transfer.

The transferor gives you a certification stating, under penalties of perjury, that the transferor is not a foreign person and containing the transferor's name, U.S. TIN, and home address (or office address, in the case of an entity). A certificate of non-foreign status includes a Form W-9 and for qualified foreign pension funds, or entities wholly owned by qualified foreign pension funds, Form W-8EXP.The transferor can give the certification to a qualified substitute. The qualified substitute gives you a statement, under penalties of perjury, that the certification is in the possession of the qualified substitute. For this purpose, a qualified substitute is (a) the person (including any attorney or title company) responsible for closing the transaction, other than the transferor's agent, and (b) the transferee's agent.

You receive a withholding certificate from the IRS that excuses withholding. See Withholding Certificates, later.

The transferor gives you written notice that no recognition of any gain or loss on the transfer is required because of a nonrecognition provision in the Internal Revenue Code or a provision in a U.S. tax treaty. You must file a copy of the notice by the 20th day after the date of transfer with:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409

The amount the transferor realizes on the transfer of a USRPI is zero.

The property is acquired by the United States, a U.S. state or territory, a political subdivision, or the District of Columbia.

The grantor realizes an amount on the grant or lapse of an option to acquire a USRPI. However, you must withhold on the sale, exchange, or exercise of that option.

The disposition is of an interest in a publicly traded partnership or trust. However, this exception does not apply to certain dispositions of substantial amounts of non-publicly traded interests in publicly traded partnerships or trusts.

Late filing of certifications or notices.

If you become aware that you have failed to timely file certain certifications or notices, you still may be able to file them. See Revenue Procedure 2008﻿-﻿27, 2008﻿-﻿21 I.R.B. 1014 available at IRS.gov/irb/2008﻿-﻿21_IRB#RP-2008﻿-﻿27.

Complete the required certification or notice and file it with the appropriate person or the IRS. Also include the following.

A statement at the top of the document(s) that it is “FILED PURSUANT TO Revenue Procedure 2008﻿-﻿27.”

An explanation describing why the failure was due to reasonable cause. Within the explanation, provide that you filed with, or obtained from, an appropriate person the required certification or notice.

envelopeThe completed certification or notice attached to the explanation must be sent to:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409

Certifications.

The certifications in items (3) and (4) are not effective if you (or the qualified substitute) have actual knowledge, or receive a notice from an agent (or substitute), that they are false. This also applies to the qualified substitute's statement under item (4).

If you (or the substitute) are required by regulations to furnish a copy of the certification (or statement) to the IRS and you (or the substitute) fail to do so in the time and manner prescribed, the certification (or statement) is not effective.

Liability of agent or qualified substitute.

If you (or the substitute) receive a certification discussed in item (3) or (4) or a statement in item (4), and the agent, or substitute, has actual knowledge that the certification (or statement) is false, or in the case of (3), that the corporation is a foreign corporation, the agent (or substitute) must notify you, or the agent (or substitute) will be held liable for the tax. The agent's (or substitute's) liability is limited to the compensation the agent (or substitute) gets from the transaction.

An agent is any person who represents the transferor or transferee in any negotiation with another person (or another person's agent) relating to the transaction, or in settling the transaction. A person is not treated as an agent if the person only performs one or more of the following acts related to the transaction.

Receipt and disbursement of any part of the consideration.

Recording of any document.

Typing, copying, and other clerical tasks.

Obtaining title insurance reports and reports concerning the condition of the property.

Transmitting documents between the parties.

Reporting and Paying the Tax

Transferees must use Forms 8288 and 8288-A to report and pay over any tax withheld on the acquisition of a USRPI. These forms must also be used by corporations, estates, and QIEs that must withhold tax on distributions and other transactions involving a USRPI. You must include the U.S. TIN of both the transferor and the transferee on the forms.

For partnerships disposing of a USRPI, the manner of reporting and paying over the tax withheld is the same as discussed earlier under Partnership Withholding on ECTI.

Publicly traded trusts must use Forms 1042 and 1042-S to report and pay over tax withheld on distributions from dispositions of a USRPI.

QIEs must use Forms 1042 and 1042-S for a distribution to a nonresident alien or foreign corporation that is treated as a dividend, as discussed earlier under Qualified investment entities (QIEs).

Form 8288.

The tax withheld on the acquisition of a USRPI from a foreign person is reported and paid over using Form 8288. Form 8288 also serves as the transmittal form for copies A and B of Form 8288-A.

Due dateIn most cases, you must file Form 8288 by the 20th day after the date of the transfer.

If an application for a withholding certificates (discussed later) is submitted to the IRS before or on the date of a transfer and the application is still pending with the IRS on the date of transfer, the correct withholding tax must be withheld, but does not have to be reported and paid over immediately. The amount withheld (or lesser amount, as determined by the IRS) must be reported and paid over within 20 days following the day on which a copy of the withholding certificate or notice of denial is mailed by the IRS.

If the principal purpose of applying for a withholding certificate is to delay paying over the withheld tax, the transferee will be subject to interest and penalties. The interest and penalties will be assessed for the period beginning on the 21st day after the date of transfer and ending on the day the payment is made.

Form 8288-A.

The withholding agent must prepare a Form 8288-A for each person from whom tax has been withheld. Attach copies A and B of Form 8288-A to Form 8288. Keep copy C for your records.

The IRS will stamp copy B and send it to the person subject to withholding. That person must file a U.S. income tax return and attach the stamped Form 8288-A to receive credit for any tax withheld.

A stamped copy of Form 8288-A will not be provided to the transferor if the transferor's TIN is not included on that form. The IRS will send a letter to the transferor requesting the TIN and providing instructions for how to get a TIN. When the transferor provides the IRS with a TIN, the IRS will provide the transferor with a stamped copy B of Form 8288-A.

Form 1099-S.

In most cases, the real estate broker or other person responsible for closing the transaction must report the sale of the property to the IRS using Form 1099-S. For more information about Form 1099-S, see the Instructions for Form 1099-S and the General Instructions for Certain Information Returns.

Withholding Certificates

The amount that must be withheld from the disposition of a USRPI can be adjusted by a withholding certificate issued by the IRS. The transferee, the transferee's agent, or the transferor may request a withholding certificate. The IRS will generally act on these requests within 90 days after receipt of a complete application including the TINs of all the parties to the transaction. A transferor that applies for a withholding certificate must notify the transferee, in writing, that the certificate has been applied for on the day of or the day before the transfer.

A withholding certificate may be issued due to:

A determination by the IRS that reduced withholding is appropriate because either:

The amount that must be withheld would be more than the transferor's maximum tax liability, or

Withholding of the reduced amount would not jeopardize collection of the tax;

The exemption from U.S. tax of all gain realized by the transferor; or

An agreement for the payment of tax providing security for the tax liability, entered into by the transferee or transferor.

Applications for withholding certificates are divided into six basic categories. This categorizing provides for specific information that is needed to process the applications. The six categories are:

Applications based on a claim that the transferor is entitled to nonrecognition treatment or is exempt from tax,

Applications based solely on a calculation of the transferor's maximum tax liability,

Applications under special installment sales rules,

Applications based on an agreement for the payment of tax with conforming security,

Applications for blanket withholding certificates, and

Applications on any other basis.

The applicant must make available to the IRS, within the time prescribed, all information required to verify that representations relied upon in accepting the agreement are accurate, and that the obligations assumed by the applicant will be performed pursuant to the agreement. Failure to provide requested information promptly will usually result in rejection of the application, unless the IRS grants an extension of the target date.

Categories (1), (2), and (3).

Use Form 8288-B to apply for a withholding certificate. Follow the instructions for the form.

Categories (4), (5), and (6).

Do not use Form 8288-B for applications under categories (4), (5), and (6). For these categories, follow the instructions given here and under the specific category.

All applications for withholding certificates must use the following format. The information must be provided in paragraphs labeled to correspond with the numbers and letters set forth below. If the information requested does not apply, place “N/A” in the relevant space.

Information on the application category:

State which category (4, 5, or 6) describes the application,

If a category (4) application:

State whether the proposed agreement secures (A) the transferor's maximum tax liability, or (B) the amount that would otherwise have to be withheld; and

State whether the proposed agreement and security instrument conform to the standard formats.

Information on the transferee or transferor:

State the name, address, and TIN of the person applying for the withholding certificate (if this person does not have a TIN and is eligible for an ITIN, they can apply for the ITIN by attaching the application to a completed Form W-7 and forwarding the package to the address given in the Form W-7 instructions);

State whether that person is the transferee or transferor; and

State the name, address, and TIN of all other transferees and transferors of the USRPI for which the withholding certificate is sought.

Information on the USRPI for which the withholding certificate is sought. State the:

Type of interest (such as interest in real property, in associated personal property, or in a domestic U.S. real property holding corporation);

Contract price;

Date of transfer;

Location and general description (if an interest in real property);

Class or type and amount of the interest in a U.S. real property holding corporation; and

Whether in the 3 preceding tax years (1) U.S. income tax returns were filed relating to the USRPI and, if so, when and where those returns were filed and, if not, why returns were not filed, and (2) U.S. income taxes were paid relating to the USRPI and, if so, the amount of tax paid.

Provide full information concerning the basis for the issuance of the withholding certificate. Although the information to be included in this section of the application will vary from case to case, the rules shown under the specific category provide general guidelines for the inclusion of appropriate information for that category.

The application must be signed by the individual, a responsible officer in the case of a corporation, a general partner in the case of a partnership, or a trustee, executor, or equivalent fiduciary in the case of a trust or estate, or a duly authorized agent (with a copy of the power of attorney, such as Form 2848, attached). The person signing the application must verify under penalties of perjury that all representations are true, correct, and complete to that person's knowledge and belief. If the application is based in whole or in part on information provided by another party to the transaction, that information must be supported by a written verification signed under penalties of perjury by that party and attached to the application.

Send applications to the:

Ogden Service Center
P.O. Box 409101
Ogden, UT 84409

Category (4) applications.

If the application is based on an agreement for the payment of tax, the application must include:

Information establishing the transferor's maximum tax liability, or the amount that otherwise has to be withheld;

A signed copy of the agreement proposed by the applicant; and

A copy of the security instrument proposed by the applicant.

Either the transferee or the transferor may enter into an agreement for the payment of tax. The agreement is a contract between the IRS and any other person and consists of two necessary elements. Those elements are:

A detailed description of the rights and obligations of each, and

A security instrument or other form of security acceptable to the Commissioner or his delegate.

For more information on the agreement for the payment of tax, including a sample agreement, see section 5 of Revenue Procedure 2000﻿-﻿35, 2000﻿-﻿35 I.R.B. 211, available at IRS.gov/pub/irs-irbs/irb00﻿-﻿35.pdf.

There are four major types of security acceptable to the IRS. They are:

Bond with surety or guarantor,

Bond with collateral,

Letter of credit, and

Guarantee (corporate transferors).

The IRS may, in unusual circumstances and at its discretion, accept any additional form of security that it finds to be adequate.

For more information on acceptable security instruments, including sample forms of these instruments, see section 6 of Revenue Procedure 2000﻿-﻿35.

Category (5) applications.

A blanket withholding certificate may be issued if the transferor holding the USRPI provides an irrevocable letter of credit or a guarantee and enters into a tax payment and security agreement with the IRS. A blanket withholding certificate excuses withholding concerning multiple dispositions of those property interests by the transferor or the transferor's legal representative during a period of no more than 12 months.

For more information, see section 9 of Revenue Procedure 2000﻿-﻿35.

Category (6) applications.

These are nonstandard applications and may be of the following types.

Agreement for payment of tax with nonconforming security.

An applicant seeking to enter into an agreement for the payment of tax but wanting to provide a nonconforming type of security must include the following in the application.

The information required for category (4) applications, discussed earlier.

A description of the nonconforming security proposed by the applicant.

A memorandum of law and facts establishing that the proposed security is valid and enforceable and that it adequately protects the government's interest.

Other nonstandard applications.

An application for a withholding certificate not previously described must explain in detail the proposed basis for the issuance of the certificate and set forth the reasons justifying the issuance of a certificate on that basis.

Amendments to Applications

An applicant for a withholding certificate may amend an otherwise complete application by sending an amending statement to the address shown earlier in Withholding Certificates. There is no particular form required, but the amending statement must provide the following information.

The name, address, and TIN of the person providing the amending statement specifying whether that person is the transferee or transferor.

The date of the original application for a withholding certificate that is being amended.

A brief description of the real property interest for which the original application for a withholding certificate was provided.

The basis for the amendment including any change in the facts supporting the original application for a withholding certificate and any change in the terms of the withholding certificate.

The statement must be signed and accompanied by a penalties of perjury statement.

If an amending statement is provided, the time in which the IRS must act upon the application is extended by 30 days. If the amending statement substantially changes the original application, the time for acting upon the application is extended by 60 days. If an amending statement is received after the withholding certificate has been signed, but before it has been mailed to the applicant, the IRS will have a 90-day extension of time in which to act.

Definitions

Chapter 4 withholding rate pool.

A “chapter﻿ ﻿4 withholding rate pool” means a pool of payees that are nonparticipating FFIs provided on a chapter﻿ ﻿4 withholding statement (as described in Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B)(3)) to which a withholdable payment is allocated. The term also means a pool of payees provided on an FFI withholding statement (as described in Regulations section 1.1471﻿-﻿3(c)(iii)(B)(2)) to which a withholdable payment is allocated to (a) a pool of payees consisting of each class of recalcitrant account holders described in Regulations section 1.1471﻿-﻿4(d)(6) (or with respect to an FFI that is a QI, a single pool of recalcitrant account holders), including a separate pool of account holders to which the escrow procedures for dormant accounts apply; or (b) a pool of payees that are U.S. persons as described in Regulations section 1.1471﻿-﻿3(c)(3)(iii)(B)(2) (including such a pool allocated to a reportable amount on a withholding statement provided solely for chapter﻿ ﻿3 purposes).

Deemed-compliant FFI.

A “deemed-compliant FFI” means an FFI that is treated, pursuant to section 1471(b)(2) and Regulations section 1.1471﻿-﻿5(f), as meeting the requirements of section 1471(b). The term “deemed-compliant FFI” includes a nonreporting IGA FFI (as defined in Regulations section 1.1471﻿-﻿1(b)(83)).

Dividend equivalents.

Generally, a “dividend equivalent” is any payment that references the payment of a dividend from an underlying security pursuant to a securities lending or sale-repurchase transaction, SNPC, or specified ELI. This applies without regard to whether there is an actual distribution of cash or property.

Exempt beneficial owner.

An “exempt beneficial owner” is any person described in Regulations sections 1.1471﻿-﻿6(b) through (g) and includes any person treated as an exempt beneficial owner under an applicable Model 1 IGA or Model 2 IGA.

Financial institution (FI).

A “financial institution” (FI) is any institution that is a depository institution, custodial institution, investment entity, insurance company (or holding company of an insurance company) that issues cash value insurance or annuity contracts, or a holding company or treasury center that is part of an expanded affiliated group of certain FFIs, and includes a financial institution, as defined under an applicable Model 1 IGA or Model 2 IGA. See Regulations section 1.1471﻿-﻿5(e)(1).

Foreign financial institution (FFI).

Except as otherwise provided for certain foreign branches of a U.S. financial institution or territory financial institutions, a “foreign financial institution” (FFI) means a financial institution that is a foreign entity. The term “FFI” also includes a foreign branch of a U.S. financial institution with a QI agreement in effect.

Model 1 IGA.

A “Model 1 IGA” means an agreement between the United States or the Treasury Department and a foreign government or one or more foreign agencies to implement FATCA through reporting by financial institutions to such foreign government or agency thereof, followed by automatic exchange of the reported information with the IRS. For a list of jurisdictions treated as having an IGA in effect, go to Treasury.gov/Resource-Center/Tax-Policy/Treaties/Pages/FATCA.aspx.

Model 2 IGA.

A “Model 2 IGA” means an agreement or arrangement between the United States or the Treasury Department and a foreign government or one or more foreign agencies to implement FATCA through reporting by financial institutions directly to the IRS in accordance with the requirements of the FFI agreement, as modified by an applicable Model 2 IGA, supplemented by the exchange of information between such foreign government or agency thereof and the IRS. For a list of jurisdictions treated as having an IGA in effect, go to Treasury.gov/Resource-Center/Tax-Policy/Treaties/Pages/FATCA.aspx.

Non-financial foreign entity (NFFE).

A “non-financial foreign entity” (NFFE) is a foreign entity that is not a financial institution. An NFFE includes a territory NFFE, as defined in Regulations section 1.1471﻿-﻿1(b)(132), and a foreign entity treated as an NFFE pursuant to a Model 1 IGA or Model 2 IGA.

Nonparticipating FFI.

A “nonparticipating FFI” is an FFI other than a participating FFI, a deemed-compliant FFI, or an exempt beneficial owner.

Participating FFI.

A “participating FFI” is an FFI that has agreed to comply with the requirements of an FFI agreement with respect to all branches of the FFI, other than a branch that is a reporting Model 1 FFI or a U.S. branch. The term "participating FFI" also includes a reporting Model 2 FFI and a QI branch of a U.S. financial institution, unless such branch is a reporting Model 1 FFI.

Passive NFFE.

A “passive NFFE” is an NFFE that is not an excepted NFFE. With respect to a reporting Model 2 FFI filing a Form 8966 to report its accounts and payees, a passive NFFE is an NFFE that is not an active NFFE (as described in the applicable IGA).

Qualified derivatives dealer (QDD).

A “qualified derivatives dealer” (QDD) is a QI that is an eligible entity (as defined in Regulations section 1.1441﻿-﻿1(e)(6)(ii)) that agrees to meet the requirements of Regulations section 1.1441﻿-﻿1(e)(6)(i) and the QI agreement.

Recalcitrant account holder.

A “recalcitrant account holder” is an account holder (other than an account holder that is an FFI or is presumed to be an FFI) of a participating FFI or registered deemed-compliant FFI that has failed to provide the FFI maintaining its account with the information required under Regulations section 1.1471﻿-﻿5(g).

Registered deemed-compliant FFI.

A “registered deemed-compliant FFI” is an FFI described in Regulations section 1.1471﻿-﻿5(f)(1) and includes a reporting Model 1 FFI and a QI branch of a U.S. financial institution that is a reporting Model 1 FFI.

Reporting Model 1 FFI.

A “reporting Model 1 FFI” is an FI, including a foreign branch of a U.S. financial institution, treated as a reporting financial institution under a Model 1 IGA.

Reporting Model 2 FFI.

A “reporting Model 2 FFI” is an FFI described in a Model 2 IGA that has agreed to comply with the requirements of an FFI agreement with respect to a branch.

Territory financial institution.

A “territory financial institution” is a financial institution that is incorporated or organized under the laws of any U.S. territory, excluding a territory entity that is a financial institution only because it is an investment entity, as defined in Regulations section 1.1471﻿-﻿5(e)(4).

Withholdable payment.

A “withholdable payment” is a payment described in Regulations section 1.1473﻿-﻿1(a). See Income Subject to Withholding, earlier, for a discussion of which payments qualify as withholdable payments.

Tax Treaties

The United States has bilateral income tax treaties, also known as “conventions,” with a number of foreign countries under which residents (sometimes limited to citizens) of those countries are taxed at a reduced rate or are exempt from U.S. income taxes on certain income received from within the United States.

Withholding at source under the statutory rules discussed in this publication may not be required, or may be required at a reduced rate, for income that is subject to a reduced rate or exempt under a tax treaty, so long as the taxpayer claiming such exemption satisfies all of the relevant requirements, including providing to its withholding agent any applicable withholding certificates (or documentary evidence, when permitted) supporting the treaty claim.

Obtaining treaty information.

You can obtain the full text of these treaties, and accompanying technical explanations, at IRS.gov/Businesses/International-Businesses/United-States-Income-Tax-Treaties-A-to-Z.

Detailed information about treaty provisions can be found at IRS.gov/Individuals/International-Taxpayers/Tax-Treaties.

Tax treaty tables.

The tax treaty tables previously contained in this publication have been updated and moved to IRS.gov/Individuals/International-Taxpayers/Tax-Treaty-Tables.

How To Get Tax Help

If you have questions about a tax issue; need help preparing your tax return; or want to download free publications, forms, or instructions, go to IRS.gov to find resources that can help you right away.

Preparing and filing your tax return.

After receiving all your wage and earnings statements (Forms W-2, W-2G, 1099-R, 1099-MISC, 1099-NEC, etc.); unemployment compensation statements (by mail or in a digital format) or other government payment statements (Form 1099-G); and interest, dividend, and retirement statements from banks and investment firms (Forms 1099), you have several options to choose from to prepare and file your tax return. You can prepare the tax return yourself, see if you qualify for free tax preparation, or hire a tax professional to prepare your return.

Free options for tax preparation.

Your options for preparing and filing your return online or in your local community, if you qualify, include the following.

Direct File. Direct File is a permanent option to file individual federal tax returns online—for free—directly and securely with the IRS. Direct File is an option for taxpayers in participating states who have relatively simple tax returns reporting certain types of income and claiming certain credits and deductions. While Direct File doesn't prepare state returns, if you live in a participating state, Direct File guides you to a state-supported tool you can use to prepare and file your state tax return for free. Go to IRS.gov/DirectFile for more information, program updates, and frequently asked questions.

Free File. This program lets you prepare and file your federal individual income tax return for free using software or Free File Fillable Forms. However, state tax preparation may not be available through Free File. Go to IRS.gov/FreeFile to see if you qualify for free online federal tax preparation, e-filing, and direct deposit or payment options.

VITA. The Volunteer Income Tax Assistance (VITA) program offers free tax help to people with low-to-moderate incomes, persons with disabilities, and limited-English-speaking taxpayers who need help preparing their own tax returns. Go to IRS.gov/VITA, download the free IRS2Go app, or call 800﻿-﻿906﻿-﻿9887 for information on free tax return preparation.

TCE. The Tax Counseling for the Elderly (TCE) program offers free tax help for all taxpayers, particularly those who are 60 years of age and older. TCE volunteers specialize in answering questions about pensions and retirement-related issues unique to seniors. Go to IRS.gov/TCE or download the free IRS2Go app for information on free tax return preparation.

MilTax. Members of the U.S. Armed Forces and qualified veterans may use MilTax, a free tax service offered by the Department of Defense through Military OneSource. For more information, go to MilitaryOneSource (MilitaryOneSource.mil/MilTax).Also, the IRS offers Free Fillable Forms, which can be completed online and then e-filed regardless of income.

Using online tools to help prepare your return.

Go to IRS.gov/Tools for the following.

IRS.gov/DirectFile offers an Eligibility Checker to help you determine if Direct File is the right choice for your tax filing needs.

The Earned Income Tax Credit Assistant (IRS.gov/EITCAssistant) determines if you’re eligible for the earned income credit (EIC).

The Online EIN Application (IRS.gov/EIN) helps you get an employer identification number (EIN) at no cost.

The Tax Withholding Estimator (IRS.gov/W4App) makes it easier for you to estimate the federal income tax you want your employer to withhold from your paycheck. This is tax withholding. See how your withholding affects your refund, take-home pay, or tax due.

The First-Time Homebuyer Credit Account Look-up (IRS.gov/HomeBuyer) tool provides information on your repayments and account balance.

The Sales Tax Deduction Calculator (IRS.gov/SalesTax) figures the amount you can claim if you itemize deductions on Schedule﻿ ﻿A (Form 1040).

Getting answers to your tax questions.On IRS.gov, you can get up-to-date information on current events and changes in tax law.

IRS.gov/Help: A variety of tools to help you get answers to some of the most common tax questions.

IRS.gov/ITA: The Interactive Tax Assistant, a tool that will ask you questions and, based on your input, provide answers on a number of tax topics.

IRS.gov/Forms: Find forms, instructions, and publications. You will find details on the most recent tax changes and interactive links to help you find answers to your questions.

You may also be able to access tax information in your e-filing software.

Need someone to prepare your tax return?

There are various types of tax return preparers, including enrolled agents, certified public accountants (CPAs), accountants, and many others who don’t have professional credentials. If you choose to have someone prepare your tax return, choose that preparer wisely. A paid tax preparer is:

Primarily responsible for the overall substantive accuracy of your return,

Required to sign the return, and

Required to include their preparer tax identification number (PTIN).

Although the tax preparer always signs the return, you're ultimately responsible for providing all the information required for the preparer to accurately prepare your return and for the accuracy of every item reported on the return. Anyone paid to prepare tax returns for others should have a thorough understanding of tax matters. For more information on how to choose a tax preparer, go to Tips for Choosing a Tax Preparer on IRS.gov.

Employers can register to use Business Services Online.

The Social Security Administration (SSA) offers online service at SSA.gov/employer for fast, free, and secure W-2 filing options to CPAs, accountants, enrolled agents, and individuals who process Form W-2, Wage and Tax Statement; and Form W-2c, Corrected Wage and Tax Statement.

Business tax account.

If you are a sole proprietor, a partnership, or an S corporation, you can view your tax information on record with the IRS and do more with a business tax account. Go to IRS.gov/BusinessAccount for more information.

IRS social media.

Go to IRS.gov/SocialMedia to see the various social media tools the IRS uses to share the latest information on tax changes, scam alerts, initiatives, products, and services. At the IRS, privacy and security are our highest priority. We use these tools to share public information with you. Don’t post your social security number (SSN) or other confidential information on social media sites. Always protect your identity when using any social networking site.

The following IRS YouTube channels provide short, informative videos on various tax-related topics in English, Spanish, and ASL.

Youtube.com/irsvideos.

Youtube.com/irsvideosmultilingua.

Youtube.com/irsvideosASL.

Online tax information in other languages.

You can find information on IRS.gov/MyLanguage if English isn’t your native language.

Free Over-the-Phone Interpreter (OPI) Service.

The IRS is committed to serving taxpayers with limited-English proficiency (LEP) by offering OPI services. The OPI Service is a federally funded program and is available at Taxpayer Assistance Centers (TACs), most IRS offices, and every VITA/TCE tax return site. The OPI Service is accessible in more than 350 languages.

Accessibility Helpline available for taxpayers with disabilities.

Taxpayers who need information about accessibility services can call 833﻿-﻿690﻿-﻿0598. The Accessibility Helpline can answer questions related to current and future accessibility products and services available in alternative media formats (for example, braille, large print, audio, etc.). The Accessibility Helpline does not have access to your IRS account. For help with tax law, refunds, or account-related issues, go to IRS.gov/LetUsHelp.

Alternative media preference.

Form 9000, Alternative Media Preference, or Form 9000(SP) allows you to elect to receive certain types of written correspondence in the following formats.

Standard Print.

Large Print.

Braille.

Audio (MP3).

Plain Text File (TXT).

Braille Ready File (BRF).

Disasters.

Go to IRS.gov/DisasterRelief to review the available disaster tax relief.

Getting tax forms and publications.

Go to IRS.gov/Forms to view, download, or print all the forms, instructions, and publications you may need. Or, you can go to IRS.gov/OrderForms to place an order.

Mobile-friendly forms.

You'll need an IRS Online Account (OLA) to complete mobile-friendly forms that require signatures. You'll have the option to submit your form(s) online or download a copy for mailing. You'll need scans of your documents to support your submission. Go to IRS.gov/MobileFriendlyForms for more information.

Getting tax publications and instructions in eBook format.

Download and view most tax publications and instructions (including the Instructions for Form 1040) on mobile devices as eBooks at IRS.gov/eBooks.

IRS eBooks have been tested using Apple's iBooks for iPad. Our eBooks haven’t been tested on other dedicated eBook readers, and eBook functionality may not operate as intended.

Access your online account (individual taxpayers only).

Go to IRS.gov/Account to securely access information about your federal tax account.

View the amount you owe and a breakdown by tax year.

See payment plan details or apply for a new payment plan.

Make a payment or view 5 years of payment history and any pending or scheduled payments.

Access your tax records, including key data from your most recent tax return, and transcripts.

View digital copies of select notices from the IRS.

Approve or reject authorization requests from tax professionals.

View your address on file or manage your communication preferences.

Get a transcript of your return.

With an online account, you can access a variety of information to help you during the filing season. You can get a transcript, review your most recently filed tax return, and get your adjusted gross income. Create or access your online account at IRS.gov/Account.

Tax Pro Account.

This tool lets your tax professional submit an authorization request to access your individual taxpayer IRS OLA. For more information, go to IRS.gov/TaxProAccount.

Using direct deposit.

The safest and easiest way to receive a tax refund is to e-file and choose direct deposit, which securely and electronically transfers your refund directly into your financial account. Direct deposit also avoids the possibility that your check could be lost, stolen, destroyed, or returned undeliverable to the IRS. Eight in 10 taxpayers use direct deposit to receive their refunds. If you don’t have a bank account, go to IRS.gov/DirectDeposit for more information on where to find a bank or credit union that can open an account online.

Reporting and resolving your tax-related identity theft issues.

Tax-related identity theft happens when someone steals your personal information to commit tax fraud. Your taxes can be affected if your SSN is used to file a fraudulent return or to claim a refund or credit.

The IRS doesn’t initiate contact with taxpayers by email, text messages (including shortened links), telephone calls, or social media channels to request or verify personal or financial information. This includes requests for personal identification numbers (PINs), passwords, or similar information for credit cards, banks, or other financial accounts.

Go to IRS.gov/IdentityTheft, the IRS Identity Theft Central webpage, for information on identity theft and data security protection for taxpayers, tax professionals, and businesses. If your SSN has been lost or stolen or you suspect you’re a victim of tax-related identity theft, you can learn what steps you should take.

Get an Identity Protection PIN (IP PIN). IP PINs are six-digit numbers assigned to taxpayers to help prevent the misuse of their SSNs on fraudulent federal income tax returns. When you have an IP PIN, it prevents someone else from filing a tax return with your SSN. To learn more, go to IRS.gov/IPPIN.

Ways to check on the status of your refund.

Go to IRS.gov/Refunds.

Download the official IRS2Go app to your mobile device to check your refund status.

Call the automated refund hotline at 800﻿-﻿829﻿-﻿1954.

The IRS can’t issue refunds before mid-February for returns that claimed the EIC or the additional child tax credit (ACTC). This applies to the entire refund, not just the portion associated with these credits.

Making a tax payment.

Payments of U.S. tax must be remitted to the IRS in U.S. dollars. Digital assets are not accepted. Go to IRS.gov/Payments for information on how to make a payment using any of the following options.

IRS Direct Pay: Pay your individual tax bill or estimated tax payment directly from your checking or savings account at no cost to you.

Debit Card, Credit Card, or Digital Wallet: Choose an approved payment processor to pay online or by phone.

Electronic Funds Withdrawal: Schedule a payment when filing your federal taxes using tax return preparation software or through a tax professional.

Electronic Federal Tax Payment System: This is the best option for businesses. Enrollment is required.

Check or Money Order: Mail your payment to the address listed on the notice or instructions.

Cash: You may be able to pay your taxes with cash at a participating retail store.

Same-Day Wire: You may be able to do same-day wire from your financial institution. Contact your financial institution for availability, cost, and time frames.

Note. The IRS uses the latest encryption technology to ensure that the electronic payments you make online, by phone, or from a mobile device using the IRS2Go app are safe and secure. Paying electronically is quick, easy, and faster than mailing in a check or money order.

What if I can’t pay now?

Go to IRS.gov/Payments for more information about your options.

Apply for an online payment agreement (IRS.gov/OPA) to meet your tax obligation in monthly installments if you can’t pay your taxes in full today. Once you complete the online process, you will receive immediate notification of whether your agreement has been approved.

Use the Offer in Compromise Pre-Qualifier to see if you can settle your tax debt for less than the full amount you owe. For more information on the Offer in Compromise program, go to IRS.gov/OIC.

Filing an amended return.

Go to IRS.gov/Form1040X for information and updates.

Checking the status of your amended return.

Go to IRS.gov/WMAR to track the status of Form 1040-X amended returns.

It can take up to 3 weeks from the date you filed your amended return for it to show up in our system, and processing it can take up to 16 weeks.

Understanding an IRS notice or letter you’ve received.

Go to IRS.gov/Notices to find additional information about responding to an IRS notice or letter.

IRS Document Upload Tool.

You may be able use the Document Upload Tool to respond digitally to eligible IRS notices and letters by securely uploading required documents online through IRS.gov. For more information, go to IRS.gov/DUT.

Schedule﻿ ﻿LEP.

You can use Schedule﻿ ﻿LEP (Form 1040), Request for Change in Language Preference, to state a preference to receive notices, letters, or other written communications from the IRS in an alternative language. You may not immediately receive written communications in the requested language. The IRS’s commitment to LEP taxpayers is part of a multi-year timeline that began providing translations in 2023. You will continue to receive communications, including notices and letters, in English until they are translated to your preferred language.

Contacting your local TAC.

Keep in mind, many questions can be answered on IRS.gov without visiting a TAC. Go to IRS.gov/LetUsHelp for the topics people ask about most. If you still need help, TACs provide tax help when a tax issue can’t be handled online or by phone. All TACs now provide service by appointment, so you’ll know in advance that you can get the service you need without long wait times. Before you visit, go to IRS.gov/TACLocator to find the nearest TAC and to check hours, available services, and appointment options. Or, on the IRS2Go app, under the Stay Connected tab, choose the Contact Us option and click on “Local Offices.”

————————————————————————

Below is a message to you from the Taxpayer Advocate Service, an independent organization established by Congress.

The Taxpayer Advocate Service (TAS) Is Here To Help You

What Is the Taxpayer Advocate Service?

The Taxpayer Advocate Service (TAS) is an independent organization within the Internal Revenue Service (IRS). TAS helps taxpayers resolve problems with the IRS, makes administrative and legislative recommendations to prevent or correct the problems, and protects taxpayer rights. We work to ensure that every taxpayer is treated fairly and that you know and understand your rights under the Taxpayer Bill of Rights. We are Your Voice at the IRS.

How Can TAS Help Me?

TAS can help you resolve problems that you haven’t been able to resolve with the IRS on your own. Always try to resolve your problem with the IRS first, but if you can’t, then come to TAS. Our services are free.

TAS helps all taxpayers (and their representatives), including individuals, businesses, and exempt organizations. You may be eligible for TAS help if your IRS problem is causing financial difficulty, if you’ve tried and been unable to resolve your issue with the IRS, or if you believe an IRS system, process, or procedure just isn't working as it should.

To get help any time with general tax topics, visit www.TaxpayerAdvocate.IRS.gov. The site can help you with common tax issues and situations, such as what to do if you make a mistake on your return or if you get a notice from the IRS.

TAS works to resolve large-scale (systemic) problems that affect many taxpayers. You can report systemic issues at www.IRS.gov/SAMS. (Be sure not to include any personal identifiable information.)

How Do I Contact TAS?

TAS has offices in every state, the District of Columbia, and Puerto Rico. To find your local advocate’s number:

Go to www.TaxpayerAdvocate.IRS.gov/Contact-Us,

Check your local directory, or

Call TAS toll free at 877﻿-﻿777﻿-﻿4778.

What Are My Rights as a Taxpayer?

The Taxpayer Bill of Rights describes ten basic rights that all taxpayers have when dealing with the IRS. Go to www.TaxpayerAdvocate.IRS.gov/Taxpayer-Rights for more information about the rights, what they mean to you, and how they apply to specific situations you may encounter with the IRS. TAS strives to protect taxpayer rights and ensure the IRS is administering the tax law in a fair and equitable way.

Index

Numbers | A | B | C | D | E | F | G | I | K | L | M | N | O | P | Q | R | S | T | U | W

Numbers

10% owners 10% owners.

501(c) organizations Foreign Governments﻿…

80/20 company Dividends paid by a﻿…

A

Acceptance agent Unexpected payment.

Accounts, offshore Offshore obligations

Alien:

Defined Nonresident alien.

Illegal Illegal aliens.

Nonresident alien Nonresident alien.

Resident alien Resident alien.

Alimony Pensions, Annuities﻿…, Alimony payments.

American Samoa USVI and American Samoa﻿…

Amount to withhold Determination of amount﻿…

Amount to withhold Determining the Determining the amount﻿…

Annuities Pensions, Annuities﻿…, Pensions and annuities

Artists and athletes:

Earnings of Artists and Athletes﻿…

Special events and promotions Artists and Athletes﻿…

Assistance (See Tax help)

Awards Other Grants, Prizes﻿…

B

Backup withholding Forms 1042 and 1042-S﻿…

Banks, interest received by Banks.

Beneficial owner Beneficial Owners

Beneficiary of foreign trust Reporting of U.S. beneficiaries﻿…

Bonds sold between interest dates Sales of bonds between﻿…

Branch profits tax Corporation subject﻿…

C

Canada Exception 3., Deposit interest paid﻿…

Capital gains Capital gains (Income﻿…

Central withholding agreements Income Code 43, Earnings﻿…

Chapter 3 withholding Chapter 3 Withholding﻿…, Additional Rules Specific﻿…

Income subject to Income Subject to Withholding

Payees Chapter 3 payees.

Persons subject to Persons Subject to Chapter﻿…

Chapter 4 withholding Chapter 4 Withholding﻿…, Additional Rules Specific﻿…

Payees Chapter 4 payees.

Persons subject to Persons Subject to Chapter﻿…

Withholding rate pool Chapter 4 withholding﻿…

Withholding statement Chapter 4 withholding﻿…

Charitable organizations Other foreign organizations﻿…

Commonwealth of the Northern Mariana Islands (CNMI) Guam or CNMI corporations

Consent dividends Consent dividends.

Contingent interest Contingent interest.

Controlled foreign corporations:

Interest paid to Controlled foreign corporations, Reduced rate or exemption﻿…

Covenant not to compete Covenant not to compete

Crew members Crew members.

D

Deemed-compliant FFI Deemed-compliant FFI

Dependent personal services Compensation for dependent﻿…

Defined Compensation for dependent﻿…

Exempt from withholding Graduated rates.

Depositing taxes:

How to Depositing Withheld﻿…

When to When Deposits Are Required

Deposits Interest on deposits﻿…

Determining the amount to withhold Determining the amount﻿…

Disregarded entities Disregarded entities

Dividend Equivalents Dividend Equivalents

Dividend equivalent payments Dividend equivalent﻿…

Dividends:

Direct dividend rate Dividends qualifying﻿…

Domestic corporation Dividends paid by a﻿…

Foreign corporations Dividends paid by foreign﻿…

In general Dividends

Documentary evidence Documentary evidence, Documentary Evidence

Documentation Documentation, Presumption Rules for﻿…

For chapter 3 Documentation for Chapter﻿…

For chapter 4 Documentation for Chapter﻿…

From foreign beneficial owners and U.S. payees Documentation for Chapter﻿…, Documentation for Chapter﻿…

From foreign intermediaries and foreign flow-through entities Foreign Intermediaries﻿…

Presumptions in the absence of Presumption Rules

E

EFTPS Electronic deposit requirement

Effectively connected income:

Defined Effectively Connected﻿…

Foreign partners Partnership Withholding﻿…

Partnerships Effectively connected﻿…

Electronic deposit rules Electronic deposit requirement

Employees Employees., Employee.

Employer Employer.

Exceptions to withholding on transfers of non-PTP interests. Exceptions to withholding﻿…

Exempt beneficial owner Exempt beneficial owner

F

FATCA report Form 8966 reporting.

FIRPTA withholding USRPI., U.S. Real Property Interest

FUTA Federal unemployment﻿…

Federal unemployment tax Federal unemployment﻿…

Fellowship grants Scholarships and Fellowship﻿…

Fellowships Scholarships, fellowships﻿…

Financial institution (FI) Financial institution﻿…

Financial institutions Branches of financial﻿…

Fiscally transparent entity Fiscally transparent﻿…

Fixed or determinable annual or periodic income Fixed or Determinable﻿…

Flow-through entities Flow-Through Entities

Foreign:

501(c) organizations Foreign Governments﻿…

Bank U.S. branches of foreign﻿…, Income paid to U.S.﻿…

Charitable organizations Other foreign organizations﻿…

Corporations Foreign corporations

Governments Foreign Governments﻿…

Insurance company U.S. branches of foreign﻿…, Income paid to U.S.﻿…

Intermediary, payee Foreign Intermediaries

Organizations and associations Other foreign organizations﻿…

Partner Who Must Withhold

Partnerships, payee Foreign partnerships

Private foundation Foreign private foundations, Foreign Governments﻿…

Status Establishment of foreign﻿…

Trusts, payee Foreign simple and grantor﻿…

Foreign financial institution (FFI) Foreign financial institution﻿…

Foreign person Foreign Persons

Form:

1042 Forms 1042 and 1042-S﻿…, Form 1042 filing. , Responsibilities of﻿…, Form 1042.

1042-S Forms 1042 and 1042-S﻿…, Form 1042-S reporting﻿…, Form 1042 filing. , Form 1042-S.

1099 Withholding and Reporting﻿…

1099-S Form 1099-S.

4419 E-filing.

7004 Extension to file Form﻿…

8233 Form 8233.

8288 Reporting and Paying﻿…, Form 8288.

8288-A Reporting and Paying﻿…, Form 8288-A.

8288-B Categories (1), (2)﻿…

8288-C Forms and filing dates﻿…

8804 Form 8804.

8805 Form 8805.

8813 Form 8813.

8833 Claiming treaty benefits﻿…

8966 Form 8966 reporting.

940 Federal unemployment﻿…

941 Reporting requirements﻿…

972 Consent dividends.

SS-4 U.S. or Foreign TINs

SS-5 U.S. or Foreign TINs

W-2 Reporting requirements﻿…, Form W-2.

W-4 Alternate withholding﻿…, Form W-4., Special instructions﻿…

W-7 U.S. or Foreign TINs

W-8 series Forms W-8.

W-8BEN Beneficial Owners, Form W-8BEN.

W-8BEN-E Form W-8BEN-E.

W-8ECI Documentary evidence, Form W-8ECI.

W-8EXP Form W-8EXP.

W-8IMY Form W-8IMY.

W-9 Form W-9., U.S. or Foreign TINs

Forms for paying and reporting section 1446(f) withholding. Forms for paying and﻿…

G

Gambling winnings Gambling winnings (Income﻿…

Global intermediary identification number (GIIN) GIIN Verification, Global Intermediary﻿…

Graduated rates Graduated rates.

Graduated withholding Wages Paid to Employees—Graduated﻿…

Grants Scholarships, fellowships﻿…, Scholarships and Fellowship﻿…, Other Grants, Prizes﻿…

Green card test Resident alien.

Guam Guam or CNMI corporations

I

ITIN U.S. or Foreign TINs

Identification number, taxpayer U.S. or Foreign TINs, Identification numbers

Important reminders Reminders

Income:

Fixed or determinable annual or periodical Fixed or Determinable﻿…

Interest Interest

Notional principal contract Notional principal contract﻿…

Other than effectively connected Income Not Effectively﻿…

Pensions Pension payments.

Personal service Personal service income﻿…

Source of Source of Income

Transportation Transportation income

Income code:

01 Interest paid by U.S. obligors—general Interest paid by U.S﻿…

02 Interest paid on real property mortgages Reduced rate or exemption﻿…

03 Interest paid to controlling foreign corporations Reduced rate or exemption﻿…

04 Interest paid by foreign corporations Reduced rate or exemption﻿…

06 Dividends paid by U.S. corporations—general Dividends paid by U﻿…

07 Dividends qualifying for direct dividend rate Dividends qualifying﻿…

08 Dividends paid by foreign corporations Dividends paid by foreign﻿…

09 Capital gains Capital gains (Income﻿…

10 Industrial royalties Industrial royalties﻿…

11 Motion picture or television copyright royalties Motion picture or television﻿…

12 Other royalties (for example, copyright, software, broadcasting, endorsement payments) Other royalties (for﻿…

14 Real property income and natural resources royalties Real Property Income﻿…

15 Pensions, annuities, alimony Pensions, Annuities﻿…

16 Scholarship or fellowship grants Scholarships and Fellowship﻿…

17 Compensation for independent personal services Compensation for independent﻿…

18 Compensation for dependent personal services Compensation for dependent﻿…

19 Compensation for teaching Compensation for teaching﻿…

20 Compensation during studying and training Compensation during﻿…, Artists and Athletes﻿…

23 Other Income Other income (Income﻿…

24 Qualified investment entity (QIE) distributions of capital gains Reporting and Paying﻿…

25 Trust distributions subject to IRC section 1445 Reporting and Paying﻿…

26 Unsevered growing crops and timber distributions by a trust subject to IRC section 1445 Reporting and Paying﻿…

27 Publicly traded partnership distributions subject to IRC section 1446(a) Publicly Traded Partnership﻿…

28 Gambling winnings Gambling winnings (Income﻿…

29 Deposit Interest Interest on deposits﻿…

30 Original issue discount (OID) Original issue discount﻿…

42 Earnings as an artist or athlete—no central withholding agreement Artists and Athletes﻿…

43 Earnings as an artist or athlete—central withholding agreement Artists and Athletes﻿…

Independent personal services:

Defined Compensation for independent﻿…

Exempt from withholding Compensation for independent﻿…, 30% rate.

Indirect account holders Indirect Account Holders'﻿…

Installment payment Periodic or lump-sum﻿…, Installment payments

Insurance proceeds Insurance proceeds.

Interest:

Contingent Contingent interest.

Controlled foreign corporations Reduced rate or exemption﻿…

Deposits Interest on deposits﻿…

Foreign business arrangements Interest from foreign﻿…

Foreign corporations Reduced rate or exemption﻿…

Income Interest

Portfolio Portfolio interest exempt﻿…, Interest that does not﻿…

Real property mortgages Reduced rate or exemption﻿…

Intermediary:

Foreign Foreign Intermediaries

Nonqualified Nonqualified intermediary﻿…

Qualified Foreign Intermediaries, Qualified intermediary﻿…, Qualified Intermediary﻿…

International organizations Foreign Governments﻿…

K

Knowledge, standards of Standards of Knowledge﻿…

L

Liability of withholding agent Liability for tax.

M

Magnetic media reporting E-filing.

Marketable securities Marketable securities﻿…

Mexico Exception 3.

Model 1 IGA Model 1 IGA.

Model 2 IGA Model 2 IGA.

Mortgages Reduced rate or exemption﻿…

Multi-level marketing Multilevel marketing﻿…

N

Non-financial foreign entity (NFFE) Non-financial foreign﻿…

Non-registered obligations Obligations not in registered﻿…

Nonparticipating FFI Nonparticipating FFI

Nonqualified intermediary:

Alternative withholding procedure Alternative procedure

Chapter 4 withholding rate pool Chapter 4.

Defined Nonqualified intermediary﻿…

For chapter 3 purposes For chapter 3 purposes

For chapter 4 purposes For chapter 4 purposes

For chapter 61 purposes For chapter 3 purposes

Pooled withholding Pooled withholding information﻿…

Withholding statement Withholding statement﻿…

Nonresident alien:

Defined Nonresident alien.

Married to U.S. citizen or resident Married to U.S. citizen﻿…

Who becomes a resident alien Nonresident alien who﻿…

Nonwage pay Pay that is not wages

Notional principal contract income Notional principal contract﻿…

O

Obligations:

Not in registered form Obligations not in registered﻿…

Registered Obligations in registered﻿…

Offshore accounts Offshore obligations

Original issue discount Original issue discount﻿…

Overwithholding, adjustment for Adjustment for Overwithholding

P

Participating FFI Form W-8IMY., Participating FFI.

Partner, foreign Who Must Withhold, Foreign partner.

Partnerships:

Effectively connected income of foreign partners Partnership Withholding﻿…

Foreign payee Foreign partnerships

Publicly traded Publicly Traded Partnership﻿…

Withholding foreign Withholding foreign﻿…, Withholding Foreign﻿…

Passive NFFE Passive NFFE.

Pay for personal services:

Artists and athletes Artists and Athletes﻿…

Dependent personal services Compensation for dependent﻿…

Employees Wages Paid to Employees—Graduated﻿…

Exempt from withholding Pay for Personal Services﻿…

Independent personal services Compensation for independent﻿…

Salaries and wages Wages Paid to Employees—Graduated﻿…

Scholarship or fellowship recipient Pay for services rendered

Studying Compensation during﻿…

Teaching Compensation for teaching﻿…

Training Compensation during﻿…

Payee:

Charitable organizations Other foreign organizations﻿…

Fiscally transparent entity Fiscally transparent﻿…

Foreign flow-through entities Foreign Intermediaries﻿…

Foreign intermediaries Foreign Intermediaries﻿…

Foreign partnerships Foreign partnerships

Foreign trusts Foreign simple and grantor﻿…

Identifying Identifying the Payee

Nonqualified intermediary Nonqualified intermediary﻿…

Organizations and associations Other foreign organizations﻿…

Private foundations Foreign private foundations

Qualified intermediary Qualified intermediary﻿…

U.S branches of foreign persons U.S. branches of foreign﻿…

Penalties:

Deposit Penalty for failure﻿…

Form 1042 Penalties

Form 8804 Penalties.

Form 8805 Penalties.

Magnetic media Failure to e-file.

Trust fund recovery Trust fund recovery﻿…

Pensions Pension payments., Pensions, Annuities﻿…, Pensions and annuities

Per diem Per diem paid by the﻿…

Personal service income Personal service income﻿…

Pooled withholding information Pooled withholding information﻿…, Failure to provide allocation﻿…

Portfolio interest Portfolio interest exempt﻿…, Interest that does not﻿…

Presumption rules:

Corporation Presumption Rules

Individual Presumption Rules

Partnership Presumption Rules

Trust Presumption Rules

Private foundation, foreign Foreign private foundations

Prizes Other Grants, Prizes﻿…

Publications (See Tax help)

Puerto Rico Resident of a U.S. territory, Exception 4.

Q

QI agreement QI agreement.

Qualified derivatives dealer (QDD) Qualified derivatives﻿…

Qualified intermediary:

Agency option Agency option.

Collective refund procedures Collective refund procedures

Defined Qualified Intermediary﻿…

Joint account treatment Joint account treatment﻿…

Payee Qualified intermediary﻿…

Reporting on Form 1042-S Form 1042-S reporting

Responsibilities and documentation Responsibilities and﻿…

Qualified investment entity (QIE):

Distributions paid by Qualified investment﻿…

Dividends paid by Dividends paid by a﻿…

R

Racing purses Racing purses (for purposes﻿…

Real property interest:

Disposition of U.S. Real Property Interest

Withholding certificates Withholding Certificates

Withholding obligation USRPI.

Reason to know Reason To Know

Recalcitrant account holder Recalcitrant account﻿…

Registered deemed-compliant FFI Form W-8IMY., Registered deemed-compliant﻿…

Registered obligations Obligations in registered﻿…

Reporting Model 1 FFI Reporting Model 1 FFI

Reporting Model 2 FFI Reporting Model 2 FFI

Reporting and paying the tax Reporting and Paying﻿…

Researchers Tax treaties.

Resident alien, defined Resident alien.

Returns required Returns Required

Royalties Royalties, Real Property Income﻿…

Ryukyu Islands Income from U.S. Savings﻿…

S

Salaries Wages Paid to Employees—Graduated﻿…

Saving clause Nonresident alien who﻿…

Scholarships Scholarships, fellowships﻿…, Scholarships and Fellowship﻿…

Section 1446(f) Withholding Section 1446(f) Withholding

Section 1446(f) withholding.Forms for paying and reporting Forms for paying and﻿…

Sections 1446(a) and (f) withholding Sections 1446(a) and﻿…

Securities Income from securities

Securities, marketable Marketable securities﻿…

Services performed outside the U.S. Services performed outside﻿…

Short-term obligation Short-term obligations

Social security Social security and﻿…

Source of income Source of Income

Standards of knowledge:

For chapter 3 Standards of Knowledge﻿…

For chapter 4 Standards of Knowledge﻿…

Substantial presence test Resident alien.

T

Tax help How To Get Tax Help

Tax treaties (See Treaties)

Tax-exempt entities Foreign Governments﻿…

Taxpayer identification number (TIN) U.S. or Foreign TINs, Identification numbers

Exceptions Exceptions to U.S. TIN﻿…

Teachers Compensation for teaching﻿…

Ten-percent owners 10% owners.

Territorial limits Territorial limits.

Territory financial institution Territory financial﻿…

Totalization agreements Social security and﻿…

Transfers of partnership interests subject to withholding under sections 1445(e)(5) and 1446(f) . Transfers of partnership﻿…

Transportation income Transportation income

Travel expenses Travel expenses.

Treaties:

Claiming benefits for chapter 3 Claiming treaty benefits﻿…

Dependent personal services Tax treaties.

Entertainers and athletes Tax treaties.

Gains Tax treaties.

Independent personal services Tax treaties.

Rate tables Tax Treaties

Students Tax treaties.

Teaching Tax treaties.

Trainees Tax treaties.

Trust Territory of the Pacific Islands Income from U.S. Savings﻿…

Trusts:

Foreign payee Foreign simple and grantor﻿…

Withholding foreign Withholding foreign﻿…, Withholding Foreign﻿…

U

U.S. Virgin Islands (USVI) USVI and American Samoa﻿…

U.S. agent of foreign person U.S. agent of foreign﻿…

U.S. branch:

Foreign bank U.S. branches of foreign﻿…, Income paid to U.S.﻿…

Foreign insurance company U.S. branches of foreign﻿…, Income paid to U.S.﻿…

Foreign person U.S. branches of foreign﻿…

U.S. real property interest (See Real property interest)

U.S. savings bonds Income from U.S. Savings﻿…

U.S. territorial limits Territorial limits.

U.S. territory, resident of Resident of a U.S. territory

Unexpected payment Unexpected payment.

W

Wages:

Paid to employees Wages Paid to Employees—Graduated﻿…

Pay that is not Pay that is not wages

What's New:

E-filing returns E-filing returns.

What’s New:

Partial Suspension of Income Tax Convention with Russia Partial Suspension of﻿…

Partial Suspension of Income Tax Convention with USSR as it Relates to Belarus Partial Suspension of﻿…

Termination of 1979 Tax Convention with Hungary Termination of 1979﻿…

When to withhold When to withhold.

Withhold, amount to Determination of amount﻿…

Withhold, when to When to withhold.

Withholdable payment Chapter 4 Withholding﻿…, Persons Subject to Chapter﻿…, Special chapter 4 rules, Withholdable payment

Withholding:

Agreements Withholding agreements, Income Code 43, Earnings﻿…

Certificate Withholding Certificates, Withholding certificate

Chapter 3 Chapter 3 Withholding﻿…

Chapter 4 Chapter 4 Withholding﻿…

In general Withholding of Tax

On specific income Withholding on Specific﻿…

Rate pool Pooled withholding information﻿…, Chapter 4 withholding﻿…

Real property U.S. Real Property Interest

Reporting and paying Reporting and Paying﻿…

Withholding agent Withholding Agent

Liability Liability for tax.

Returns required Returns Required

Tax deposit requirements Depositing Withheld﻿…

Withholding exemptions and reductions:

Dependent personal services Graduated rates.

Exemption Withholding exemption

Final payment exemption Final payment exemption

Foreign governments Foreign Governments﻿…

International organizations Foreign Governments﻿…

Real property interest Withholding Certificates

Researchers Tax treaties.

Scholarships and fellowship grants Alternate withholding﻿…

Students Tax treaties.

Withholding agreements Withholding agreements, Income Code 43, Earnings﻿…

Withholding foreign partnership (WP):

Agency option Agency option.

Collective refund procedures Collective refund procedures

Joint account treatment Joint account treatment

Not acting as WP Not acting as a WP.

Withholding foreign trust (WT):

Agency option Agency option.

Collective refund procedures Collective refund procedures﻿…

Joint account treatment Joint account treatment

Not acting as WT Not acting as a WT.

Reporting U.S. beneficiaries Reporting of U.S. beneficiaries﻿…

Responsibilities of Responsibilities of﻿…

Withholding on transfers of non-PTP interests. Exceptions to Exceptions to withholding﻿…

Withholding under sections 1445(e)(5) and 1446(f) .Transfers of partnership interests subject to Transfers of partnership﻿…