New Draft FATCA Forms: W8BEN, W8BEN-E and FFI Agreement details

The much anticipated new FATCA compliant W-8BEN forms have been released in draft version by the IRS:

http://www.irs.gov/pub/irs-utl/formw8benindividualexecirculation2.pdf.   The form W-8BEN, the Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding (Individual) and http://www.irs.gov/pub/irs-utl/formw8benentityexeccirculation2.pdf, The Form W-8BEN-E, Certificate of Status of Beneficial Owner for United States Tax Withholding (Entities).

With a new W9 and W-8IMY on the way and these forms still in draft form in it’s consultation stage, the IRS asks that the existing forms be used and not the new ones yet. 

The new withholding certificates effectively divide the information reporting requirements between two classes of payees: nonresident alien individuals and all foreign entities other than individuals.

New W-8BEN will simplify the declarations required to be made by foreign individuals. It will only require basic identifying information, declarations with respect to treaty status (as relevant), and a general certification as to foreign status.

New W-8BEN-E will require each foreign entity to make two distinct declarations:
The foreign entity’s status for purposes of the US outbound withholding tax regime (e.g., the 30 percent withholding tax generally imposed on US-source dividends paid to non-US persons unless reduced by an applicable income tax treaty). This will be the same as the declaration required in the current IRS Form W-8BEN, as last revised in 2006.
The FATCA-related declaration, which will require an entity to provide substantial detail by declaring its overall status for FATCA purposes from among twenty-four different categories (all described in detail in the Proposed Regulations).

In addition, new W-8BEN-E will require a foreign entity to provide its Foreign Financial Institution Employer Identification Number and FATCA ID, as applicable (both are discussed in the Proposed Regulations).

To learn more about the withholding of tax on nonresident aliens and foreign entities, see IRS Publication 515 (2012).

FFI Agreement details:

http://www.irs.gov/businesses/small/international/article/0,,id=258313,00.html

Details on the FATCA Registration Process for Foreign Financial Institutions (FFIs)*

 
In building an online system for foreign financial institutions (FFIs) to register as participating FFIs, the IRS has developed a flexible system that has the ability for the FFI  to create accounts, chose login and passwords, create challenge questions and maintain the account once formed. The automated system aims to make the registration process as quick and easy as possible, facilitates communication electronically and provides e-mail alerts to keep the registration process moving forward.

Key Points:

  • FFIs will register and enter an agreement (a certification, if a Registering Deemed-Compliant FFI) through an online registration system.
  • Each FFI must select a FATCA Responsible Officer (RO).
    • This individual will be identified in the FATCA registration system.
    • In a typical case, the RO will be the individual who will sign the FFI agreement.
  • The RO may select Points of Contact (POCs) to help complete all aspects of the registration process except signing.
    • Up to five POCs may be selected.
    • There must be at least one in-house POC (may be the RO).
    • It is anticipated POCs may include certain third-party individuals, both local and US (e.g., service provider).
  • It is anticipated that there will be power of attorney procedures allowing the RO to delegate full FATCA registration duties (including signing) to another in-house individual.
    • This in-house individual with the power of attorney from the RO will be identified in the registration system as the FFI’s Authorized Third Party (ATP).
  • If it proves unworkable for the Responsible Officer (RO) or another in-house individual to register the FFI, it is anticipated there will be power of attorney procedures allowing the RO to delegate full FATCA registration duties (including signing) to certain U.S.-licensed tax professionals that are subject to our regulatory jurisdiction.
    • The U.S.-licensed tax professional with the power of attorney from the RO l will be identified in the registration system as the FFI’s Authorized Third Party (ATP).
  • FATCA registration is a user maintained account – it can be edited or modified by the user.
  • The person signing the FFI agreement (or certification) must make an affirmative statement during the registration process that he or she has the authority to act for the FFI.
  • Positive ID verification will be required for the individual who signs the agreement/certification on behalf of the FFI.
  • Person who signs the agreement/certification will be issued a FATCA Individual identification Number (FIIN) following ID verification.
    • If this individual already has an SSN or ITIN, he/she may choose to use it to obtain his/her FIIN electronically through the registration system If this individual does not have an SSN or ITIN, or does not want to provide his/her SSN or ITIN electronically to obtain a FIIN, he/she must obtain his/her FIIN by filing a short paper form along with a copy of specified ID documentation.
    • The FIIN is the only identification number necessary for the individual to complete the registration process.
  • IRS will closely monitor the account creation and FATCA registration process
Advertisements

CRA releases New Forms for Treaty-Reduced Rates of Canadian Withholding Tax

The Canada Revenue Agency (CRA) recently released final versions of new forms, NR301, NR302 and NR303 which is to be provided by recipients of payments from Canadian residents to certify eligibility for treaty-reduced rates of Canadian withholding tax.

These Forms are not to be provided to the CRA, but rather to the Canadian resident payer of the withholdable amount or to certain intermediaries along a chain of payments subject to withholding.

Until recently, the CRA generally accepted reliance on the payee’s address for determining whether to apply a treaty rate. By releasing these forms, it signals that the CRA is requiring a greater level of diligence on the part of payers of withholdable amounts to be as sure as possible that the correct reduced treaty rate is applied.

Although the use of the Forms is not mandatory, and they will not guarantee avoidance of penalties, interest, or liabilities for underwithheld tax, many taxpayers will likely apply a 25% withholding rate on payments of withholdable amounts to recipients who do not complete the Forms.

The CRA is looking at the payor, to review the information provided by a non-resident on these forms, or in another format, and to make sure they have enough information to support that the non-resident is eligible for tax convention/treaty benefits on the income being paid.

In cases of inconstencies, the CRA is looking for intermediaries, prior to establishing a withholding tax rate, to question the information given and look at other information received from the non-resident, or known about the non-resident, if the payer knows or has reasonable cause to believe that the information on the form:
• is not correct or is misleading;
• contradicts information in the payer’s files; or
• is given without knowledge or consideration of the facts of a situation.

Forms are valid for the earlier of 2 years, or a change in the eligibility for convention benefits.

* Completing Form 301 is not mandatory. However, if a non-resident refuses to provide certification of beneficial ownership, residency, or eligibility for treaty benefits on request by a payer, the full statutory rate should be withheld.

One question that came up after the release of these forms was that they do not address holding global securities through CDS or DTC.

For some direction, you need to check the update to IC76-12, “Applicable Rate of Part XIII Tax on Amounts Paid or Credited to Persons in Countries with Which Canada Has a Tax Convention” related to Forms NR301, NR302, and NR303.

In this update, the CRA states that payments made to CDS on securities registered in the name of Cede & Co. (the nominee name for DTC) are made without tax. Tax will be withheld by CDS based on information received from DTC and collected by DTC’s participants.

I recommend you read the news release below to familiarize yourself with these forms.

The link to the release follows; http://www.cra-arc.gc.ca/formspubs/frms/nr301-2-3-eng.html

Here are the forms;

Form NR301, Declaration of eligibility for benefits under a tax treaty for a non-resident taxpayer; http://www.cra-arc.gc.ca/E/pbg/tf/nr301/nr301-10e.pdf

Form NR302, Declaration of eligibility for benefits under a tax treaty for a partnership with non-resident partners; http://www.cra-arc.gc.ca/E/pbg/tf/nr302/nr302-10e.pdf

Form NR303, Declaration of eligibility for benefits under a tax treaty for a hybrid entity; http://www.cra-arc.gc.ca/E/pbg/tf/nr303/nr303-10e.pdf

IRS Releases 2011 Tax Rates

Below is the IRS press release identifying the 2011 Adjusted tax rates, effective January 1, 2011.

SECTION 1. PURPOSE
This revenue procedure sets forth inflation adjusted items for 2011. Other inflation adjusted items for 2011 are in Rev. Proc. 2010-40, 2010-46 I.R.B. 663 (dated November 15, 2010).

SECTION 2. 2011 ADJUSTED ITEMS
Tax Rate Tables.

For taxable years beginning in 2011, the tax rate tables under § 1 are as follows:
TABLE 1 – Section 1(a) – Married Individuals Filing Joint Returns and Surviving Spouses
If Taxable Income Is: The Tax Is:
Not over $17,000 10% of the taxable income
Over $17,000 but $1,700 plus 15% of
not over $69,000 the excess over $17,000
Over $69,000 but $9,500 plus 25% of
not over $139,350 the excess over $69,000
Over $139,350 but $27,087.50 plus 28% of
not over $212,300 the excess over $139,350
Over $212,300 but $47,513.50 plus 33% of
not over $379,150 the excess over $212,300
Over $379,150 $102,574 plus 35% of
the excess over $379,150

TABLE 2 – Section 1(b) – Heads of Households
If Taxable Income Is: The Tax Is:
Not over $12,150 10% of the taxable income
Over $12,150 but $1,215 plus 15% of
not over $46,250 the excess over $12,150
Over $46,250 but $6,330 plus 25% of
not over $119,400 the excess over $46,250
Over $119,400 but $24,617.50 plus 28% of
not over $193,350 the excess over $119,400
Over $193,350 but $45,323.50 plus 33% of
not over $379,150 the excess over $193,350
Over $379,150 $106,637.50 plus 35% of
the excess over $379,150

TABLE 3 – Section 1(c) – Unmarried Individuals (other than Surviving Spouses and Heads of Households)

If Taxable Income Is: The Tax Is:
Not over $8,500 10% of the taxable income
Over $8,500 but $850 plus 15% of
not over $34,500 the excess over $8,500
Over $34,500 but $4,750 plus 25% of
not over $83,600 the excess over $34,500
Over $83,600 but $17,025 plus 28% of
not over $174,400 the excess over $83,600
Over $174,400 but $42,449 plus 33% of
not over $379,150 the excess over $174,400
Over $379,150 $110,016.50 plus 35% of
the excess over $379,150

TABLE 4 – Section 1(d) – Married Individuals Filing Separate Returns
If Taxable Income Is: The Tax Is:
Not over $8,500 10% of the taxable income
Over $8,500 but $850 plus 15% of
not over $34,500 the excess over $8,500
Over $34,500 but $4,750 plus 25% of
not over $69,675 the excess over $34,500
Over $69,675 but $13,543.75 plus 28% of
not over $106,150 the excess over $69,675
Over $106,150 but $23,756.75 plus 33% of
not over $189,575 the excess over $106,150
Over $189,575 $51,287 plus 35% of
the excess over $189,575

TABLE 5 – Section 1(e) – Estates and Trusts
If Taxable Income Is: The Tax Is:
Not over $2,300 15% of the taxable income
Over $2,300 but $345 plus 25% of
not over $5,450 the excess over $2,300
Over $5,450 but $1,132.50 plus 28% of
not over $8,300 the excess over $5,450
Over $8,300 but $1,930.50 plus 33% of
not over $11,350 the excess over $8,300
Over $11,350 $2,937 plus 35% of
the excess over $11,350

Child Tax Credit.

For taxable years beginning in 2011, the value used in § 24(d)(1)(B)(i) to determine the amount of credit under § 24 that may be refundable is $3,000.

Hope Scholarship, American Opportunity, and Lifetime Learning Credits.
(1) For taxable years beginning in 2011, the Hope Scholarship Credit under
§ 25A(b)(1), as increased under § 25A(i) (the American Opportunity Tax Credit), is an amount equal to 100 percent of qualified tuition and related expenses not in excess of $2,000 plus 25 percent of those expenses in excess of $2,000, but not in excess of $4,000. Accordingly, the maximum Hope Scholarship Credit allowable under § 25A(b)(1) for taxable years beginning in 2011 is $2,500.
(2) For taxable years beginning in 2011, a taxpayer’s modified adjusted gross income in excess of $80,000 ($160,000 for a joint return) is used to determine the reduction under § 25A(d)(2) in the amount of the Hope Scholarship Credit otherwise allowable under § 25A(a)(1). For taxable years beginning in 2011, a taxpayer’s modified adjusted gross income in excess of $51,000 ($102,000 for a joint return) is used to determine the reduction under § 25A(d)(2) in the amount of the Lifetime Learning Credit otherwise allowable under § 25A(a)(2).

Earned Income Credit.
(1) In general. For taxable years beginning in 2011, the following amounts are used to determine the earned income credit under § 32(b). The “earned income amount” is the amount of earned income at or above which the maximum amount of the earned income credit is allowed. The “threshold phaseout amount” is the amount of adjustedgross income (or, if greater, earned income) above which the maximum amount of the credit begins to phase out. The “completed phaseout amount” is the amount of adjusted gross income (or, if greater, earned income) at or above which no credit is allowed. The threshold phaseout amounts and the completed phaseout amounts shown in the table below for married taxpayers filing a joint return include the increase provided in § 32(b)(3)(B)(i), as adjusted for inflation for taxable years beginning in 2011.

Number of Qualifying Children
Item One Two Three or More None
Earned Income $9,100 $12,780 $12,780 $6,070
Amount
Maximum Amount of Credit $3,094 $5,112 $5,751 $464
Threshold Phaseout $16,690 $16,690 $16,690 $7,590
Amount (Single, Surviving Spouse, or Head of Household) Completed Phaseout $36,052 $40,964 $43,998 $13,660
Amount (Single, Surviving Spouse, or Head of Household) Threshold Phaseout $21,770 $21,770 $21,770 $12,670
Amount (Married Filing Jointly)Completed Phaseout $41,132 $46,044 $49,078 $18,740
Amount (Married Filing Jointly)
The instructions for the Form 1040 series provide tables showing the amount of the earned income credit for each type of taxpayer.
(2) Excessive investment income. For taxable years beginning in 2011, the earned income tax credit is not allowed under § 32(i) if the aggregate amount of certain investment income exceeds $3,150.

Standard Deduction.
(1) In general. For taxable years beginning in 2011, the standard deduction amounts under § 63(c)(2) are as follows:
Filing Status Standard Deduction
Married Individuals Filing Joint Returns $11,600
and Surviving Spouses (§ 1(a))
Heads of Households (§ 1(b)) $8,500
Unmarried Individuals (other than Surviving Spouses $5,800
and Heads of Households) (§ 1(c))
Married Individuals Filing Separate $5,800
Returns (§ 1(d))
(2) Dependent. For taxable years beginning in 2011, the standard deduction amount under § 63(c)(5) for an individual who may be claimed as a dependent by another taxpayer cannot exceed the greater of (1) $950, or (2) the sum of $300 and the individual’s earned income.
(3) Aged or blind. For taxable years beginning in 2011, the additional standard deduction amount under § 63(f) for the aged or the blind is $1,150. These amounts are increased to $1,450 if the individual is also unmarried and not a surviving spouse.

Qualified Transportation Fringe. For taxable years beginning in 2011, the monthly limitation under § 132(f)(2)(A), regarding the aggregate fringe benefit exclusion amount for transportation in a commuter highway vehicle and any transit pass, and under
§ 132(f)(2)(B), regarding the fringe benefit exclusion amount for qualified parking, is $230.

Personal Exemption.
(1) Exemption amount. For taxable years beginning in 2011, the personal exemption amount under § 151(d) is $3,700.

Interest on Education Loans. For taxable years beginning in 2011, the $2,500 maximum deduction for interest paid on qualified education loans under § 221 begins to phase out under § 221(b)(2)(B) for taxpayers with modified adjusted gross income in excess of $60,000 ($120,000 for joint returns), and is completely phased out for taxpayers with modified adjusted gross income of $75,000 or more ($150,000 or more for joint returns).

SECTION 3. EFFECTIVE DATE
This revenue procedure applies to taxable years beginning in 2011.