June 6, 2012: IRS Releases Draft Forms
On June 19, 2012, the IRS released two modified Forms W-8BEN for individuals and entities. The “unofficial” drafts of forms will replace the current Form W-8BEN once FATCA goes into effect. The “unofficial” draft forms have been published on the IRS website (www.irs.gov/FATCA). The IRS has split the Form W-8BEN into two forms: one for individuals (Form W-8BEN) and another for non-individuals (Form W-8BEN-E).
The W-8BEN for individuals has not drastically changed but a notable change has been the long expected requirement for collecting the foreign tax identification number. The IRS also stated that the requirement is from the perspective of the individual completing the form (which includes the possibility that the individual may not have a foreign TIN) and that the service will limit the responsibility of the withholding agent to validate the information. Additional changes were also made to the certifications.
In contrast, the W-8BEN for non-individuals includes over twenty new FATCA entity classification types with corresponding FATCA certifications for each type. The form itself is now six pages long, but entities will generally only need to focus on the particular section that corresponds to their FATCA classification type. The foreign TIN requirement has also been added here along with additional changes to the certification language.
The IRS commented that the Forms W-8IMY should be in a similar draft form by the end of the month and should generally follow the format laid out in the Form W-BEN –E. Additionally, they indicated that the Forms W-8ECI and W-8EXP should not significantly change but are welcoming any comments as to whether changes should be made.