This update supplements the Form W-8BEN-E, Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Rev. April 2016) and provides additional information for foreign persons providing the form. Those foreign persons should rely on this update for the below items, which will be incorporated in the next issuance of the form and instructions, as well as the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY.
In January 2017, the IRS issued final and temporary regulations under chapters 3 and 4 of the Internal Revenue Code (TDs 9808 and 9809). The information below highlights some of the modifications in the regulations and incorporates into the instructions elements of the regulations that users of the form should be aware of.
A foreign person that is an account holder (as defined in §1.1471-5(a)(3)) of a financial account (as defined in §1.1471-5(b)) held at a U.S. office of a financial institution (including a U.S. branch of an FFI) that receives U.S. source income reportable on Form 1042-S associated with the W-8BEN-E must provide the taxpayer identification number (TIN) issued to it by its jurisdiction of tax residence on line 9b of the form unless: (a) it has not been issued a TIN, (b) the jurisdiction does not issue TINs, or (c) the foreign person is a government, central bank of issue, international organization, or resident of a U.S. possession. If a foreign person (other than a government, central bank of issue, international organization, or resident of a U.S. possession) described in the preceding sentence does not provide its TIN on line 9b, it must provide the withholding agent with an explanation of why it has not been issued a TIN. The explanation may be provided on a separate attached sheet associated with the Form W-8BEN-E or written in the margins of the form.
Sponsored FFI, Sponsored Direct Reporting NFFE, and Nonreporting IGA FFI GIINs
Beginning January 1, 2017, a sponsored FFI that is a registered deemed-compliant FFI and a sponsored direct reporting NFFE is required to have obtained its own GIIN. The GIIN of the sponsored entity is reported on line 9a of Form W-8BEN-E, and the GIIN of the sponsoring entity is no longer required to be entered on line 16 or 42 (as applicable). Additionally, a nonreporting IGA FFI that is a sponsored investment entity or controlled foreign corporation described in Annex II of an applicable IGA or in §1.1471-5(f)(1)(i)(F) is no longer required to provide the GIIN of its sponsoring entity. A nonreporting IGA FFI that is a trustee-documented trust with a U.S. financial institution as the trustee does not need to provide the GIIN of the trustee.
Expiration of limited FFI and limited branch statuses
Because limited FFI and limited branch statuses expired on December 31, 2016, users of Form W-8BEN-E should complete the form by disregarding the reference to limited FFIs in line 5 and substitute “branch treated as nonparticipating FFI” for “limited branch” in line 11.
Certain investment entities that do not maintain financial accounts
Under the final regulations under chapter 4, the status “certified deemed-compliant investment advisors and investment managers” was renamed as “certain investment entities that do not maintain financial accounts,” but the substantive requirements for qualification for this status did not change. As a result, in line 5 and Part IX, the name of this status will be changed.
The temporary regulations under chapter 3 included an allowance for electronically signed withholding certificates. Withholding agents and users of Form W-8BEN-E should see §1.1441-1T(e)(4)(i)(B) for the requirements for electronic signatures.