August 28, 2013: Updated Draft of Form W-8IMY for Foreign Intermediaries
Foreign Account Tax Compliance Act (FATCA)
The IRS has released another draft of Form W-8IMY for foreign intermediaries, foreign flow-through entities, or certain U.S. branches for United States tax withholding. This is the first revision of the original draft Form W-8IMY following the release of the FATCA final regulations. Changes to the updated form include the following:
- The addition of line 3 to enter the name of a disregarded entity that is receiving a payment (if applicable) and a new Part II to capture the Chapter 4 status (Limited Branch, Participating FFI, Reporting Model 1 FFI, Reporting Model 2 FFI, U.S. Branch), address,and Global Intermediary Identification Number (“GIIN”) (if any) of a disregarded entity or branch of an FFI that is located in a country outside the FFI’s country of residence. As with the updated draft Form W-8BEN-E, this may indicate that the IRS intends for FFIs to classify disregarded entities or branches separately because the IRS may require FFIs to obtain separate GIINs for each disregarded entity or branch;
- A revised line 5 in Part I containing Chapter 4 Status, which includes substantially similar categories to the updated draft Form W-8BEN-E with the exception of international organization, entity wholly owned by exempt benficial owners, 501(c) organization, and nonprofit organization. One terminology change in line 5 is the change from “Participating FFI in a Model 2 IGA jurisdiction” to “Reporting Model 2 FFI,” which is not a defined term in the regulations;
- The addition of several certifications applicable to Chapter 3 Status in Parts III to VIII;
- As with the updated draft Form W-8BEN-E, each FATCA status type has its own certification that must be completed, which lengthens the form by an additional two pages,
to nine pages;
- The addition of a separate line 9 for GIIN (if applicable); and
- A required certification from the signor to submit a new form within 30 days if any
certification made on the form becomes incorrect.
Instructions to the forms W-8
Instructions for all the newly released draft Forms W-8 have not been released. The IRS has stated that it will issue draft instructions in the near future, and after a commentary period will publish final versions of the instructions along with the final versions of the Forms W-8.
The Form W-8IMY is the sixth updated withholding certificate published in draft form in the past few months, following the release of the Forms W-9, W-8BEN for individuals, W-8BEN-E for entities, W-8EXP for exempt beneficial owners and W-9ECI for for income effectively connected with a U.S. trade or business.
Industry has been pushing for finalization of new forms given the amount time left before FATCA becomes effective and the amount of work necessary to update systems, processes, and procedures to accommodate the new forms. In the interim, hopefully the draft forms will help to jump start compliance efforts, despite the lack of final forms and instructions.
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