U.S. withholding agent frequently asked questions

Question 1: Under what circumstances would a company become subject to U.S. NRA reporting or withholding requirements?

Answer 1: When a company makes a payment of U.S. sourced fixed or determinable annual or periodic (FDAP) income to a foreign person not associated with such person’s U.S. trade or business that company may have an NRA reporting or withholding responsibility. There are some exceptions to these requirements even for U.S. sourced payments. Treas. Reg. Sec. 1.1441-2 should be referenced for this purpose.

Question 2: Who is considered a foreign person for U.S. tax purposes?

Answer 2: 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 qualified intermediary. In most cases, the U.S. branch of a foreign corporation or partnership is treated as a foreign person.

For example, a foreign corporation is a corporation that was created or organized outside of the United States or under the law of a country other than the United States. In general, a non-resident alien is an individual whose permanent residence is outside of the United States and who is not a U.S. citizen. The U.S. or foreign status should be documented for those payees who are paid FDAP income. You should see Treas. Reg. Sec. 1.1441-1(b) (3) (ii) (E), concerning certain payments for services performed by individuals that are presumed made to foreign persons. Refer to FAQ section 5 for more information on documentation requirements.

Question 3: Please define FDAP income and include some specific examples.

Answer 3: In general, in order for a payment to be subject to NRA withholding, it must be a payment of FDAP income. FDAP is an acronym for Fixed or Determinable, Annual or Periodic. Some of the more common expenses paid by US withholding agents which would result in FDAP income to their vendors and other service providers are interest, royalties, compensation for personal services, rents, pensions or annuities and gains from the sale or exchange of the patents, copyrights and similar intangibles that are described in I.R.C. Sec. 865(d). See also Q&A 4 directly below.

Question 4: What is U.S. sourced income?

Answer 4: For FDAP income paid to a foreign person to be subject to NRA reporting and withholding, the payment must be U.S. sourced.

Following are some basic rules for sourcing of certain types of FDAP payments by withholding agents and multinationals:

1. Interest – If the debtor is a U.S. resident, the interest is generally U.S. sourced.
2. Royalties – If the subject property is used in the U.S., the royalty payment is U.S. sourced. Payments made in connection with the sale of certain intangible assets, including copyrights and patents, are generally sourced similar to royalties when the payments are contingent on the productivity, use or disposition of the intangible See I.R.C. Sec. 865(d).
3. Rents – If the rental property is located in the U.S., the rental payment is U.S. sourced.
4. Personal Services – If the services are performed in the U.S., the payment for those services is generally U.S. sourced.

The Internal Revenue Code sourcing rules are contained in Sections 861 through 865. Income tax treaties can sometimes modify these rules.

Question 5: What is a withholding agent for NRA withholding purposes?

Answer 5: For purposes of NRA withholding, a withholding agent is any person, U.S. or foreign, that has control, receipt, custody, disposal, or payment of any item of income of a foreign person that is subject to NRA withholding. A withholding agent includes but is not limited to individuals, U.S. corporations, foreign intermediaries and certain U.S. branches. See Treas. Reg. Sec. 1.1441-7(a).

A withholding agent is responsible to withhold tax on payments of U.S. sourced, FDAP income to foreign persons and to make deposits of such tax to the U.S. Treasury absent an applicable exclusion provided by the Code or an applicable income tax treaty. If the withholding agent does not withhold and the foreign person does not satisfy its withholding tax obligation, the withholding agent and the foreign person will be held liable for the tax and any associated interest and penalties. See Internal Revenue Code Sec. 1461 and Treas. Reg. Sec. 1.1461-2(b).

The withholding agent is also responsible for correctly reporting on Form 1042-S the income paid and the withholding applied. See FAQ section 6 for more information about reporting.

Question 6: What are the primary sections of the U.S. tax code and Regulations’ that govern NRA reporting and withholding?

Answer 6: The primary Internal Revenue Code sections that govern NRA withholding are Sections 1.1441, 1.1442.

Question 7: Where can I find additional information about NRA reporting and withholding?

Answer 7: Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities, provides information about NRA reporting and withholding responsibilities.

Question 8: Why should we be concerned about withholding on these payments? Isn’t the payment of withholding tax ultimately the responsibility of the payee?

Answer 8: Both the foreign person receiving the payment and the withholding agent making the payment are personally responsible for the tax on U.S. sourced, FDAP income paid to the foreign persons. If the withholding agent (multinational) fails to withhold, and the foreign person does not satisfy its tax obligation, the IRS will approach the U.S. withholding agent (multinational) for any related tax liability, including any interest and penalties to which the liability is subject and other penalties for reporting failures.

Question 9: What are the benefits to my company in ensuring compliance with these regulations?

Answer 9: Though the NRA regulations hold the withholding agent (multinational) personally responsible for withholding tax, such tax need not become your company’s liability. If you ensure that your company’s withholding and reporting practices are in compliance with these regulations and therefore withhold accordingly from payments made to foreign persons, you will never need to pay any of this tax out of your company’s funds. Rather, the withholding tax will be withheld from the payment to the foreign vendor before it is paid.

In addition, by reporting and withholding properly, you will avoid costly interest and penalties for failure to withhold, failure to deposit funds, failure to file returns and failure to file information returns.

Question 10: What is the potential cost to my company if we do not ensure compliance with these regulations?

Answer 10: If you are not in compliance with the NRA regulations, your US Withholding company or multinational will be exposed to a liability for withholding tax. Withholding tax that could have been withheld from the payment now will become the liability of your company. As the withholding agent, you will be required to remit the proper withholding tax to the IRS.

In addition, you may be required to pay interest and penalties with regard to underwithholding, or incorrect reporting of amounts paid.

Question 11: How can we review our books and records to determine if there were any reporting and/or withholding responsibilities?

Answer 11: A detailed analysis of the accounts payable or similar systems should be undertaken to identify payments made to vendors that may be subject to NRA withholding and/or reporting. The review should include determining three amounts:

1. Total amounts paid to foreign persons (foreign vendors).
2. Of the total amounts determined in step 1, determine what portions qualify as Fixed or Determinable, Annual or Periodic (FDAP) income to the foreign vendor.
3. Of the total amount determined in step 2, determine any amounts that are U.S. sourced.

Question 12: How can payments to foreign vendors be determined?

Answer 12: A computer analysis of all payments to all vendors should be made. Any record of a payment to a vendor that has any of the following might be considered for review as potentially foreign:

1. Address fields

• Country = not USA, or blank
• State = not a U.S. state, or blank
• City = foreign city
• ZIP Code = not xxxxx-xxxx pattern for U.S. address

2. Foreign employee identification number – EIN issued to foreign entity usually starts with 98 (98-xxxxxxx), also may start with 33 (33- xxxxxxx).

3. Foreign individual taxpayer identification number – ITIN issued to foreign persons is a nine-digit number beginning with the number “9”, has a range of numbers from "50" to "65", "70" to "88", “90” to “92” and “94” to “99” for the fourth and fifth digits and is formatted like a SSN (i.e. 9XX-7X-XXXX).

4. Foreign vendor number – if your internal accounting system has vendor numbers or other identifiers to distinguish foreign and U.S. vendors.

5. Any other indicator your system may have already incorporated that serves this purpose.

Question 13: How can payments to foreign vendors be determined as FDAP?

Answer 13: Once all payments to foreign vendors have been determined, those which are FDAP must be selected. Common items of FDAP income applicable to vendors are listed in Q&A 3 above.

Note: Review of the methodology that was used to characterize your expenses should be a part of the process.

Question 14: How can payments to foreign vendors, which have been determined to be FDAP, be sourced as U.S. or as foreign?

Answer 14: Each type of FDAP income has specific source rule as described briefly in Q&A-4 above. For these sourcing determinations all applicable documentation should be reviewed, bearing in mind the type of income paid. For example, in connection with payments for services, invoices and related documentation such as engagement letters and contracts should be reviewed to determine whether any services are performed in the U.S. (Note that if the source of an amount cannot be determined at the time of payment, the payment will be treated as U.S. sourced. Treas. Reg. 1.1441-2(a)).

Question 15: How can we review our books and records to determine if there are any reporting and/or withholding responsibilities for current years?

Answer 15: All vendors should be classified as U.S or as foreign.

All existing vendors should be required to submit appropriate documentation (withholding certificates (i.e., Form W-8BEN/BEN-E/etc., or Form W-9) as soon as possible. If a valid documentation is not received, the Treasury regulations contain presumption rules for withholding agents to apply in determining the status of payees for withholding purpose. (See FAQ section 5 regarding documentation required and Treas. Reg. Sec. 1.1441-1(b) (3) concerning the presumption rules).

For newly used foreign vendors, a valid Form W-8 should be required before any payment is made to them to avoid application of the presumption rules or the need to obtain the documentation later. See Q&A 31.

Question 16: If a payment to a foreign person (foreign vendor) is determined to be FDAP and U.S. sourced, how much should be withheld?

Answer 16: The statutory withholding rate is generally 30%. This rate should be generally applied to the gross amount of the payment. See Q&A 19 below concerning this rate.

Question 17: When should the tax is withheld?

Answer 17: Withholding is required at the time that the payment is made. A payment is considered to be made when the beneficial owner of the payment realizes income. There does not need to be a transfer of cash or other property.

Question 18: When should the tax withheld be deposited?

Answer 18: The amount of tax that the US withholding agent and is required to withhold determines the frequency of the deposits. The frequency could be annual, monthly, or quarter-monthly. Publication 515 details the specific rules for making deposits including the deposit due dates, which forms to use, electronic deposit requirements and penalties for failure to make deposits timely.

Question 19: Can the statutory rate (30%) be reduced?

Answer 19: If the foreign vendor is a resident in a country that has a tax treaty with the United States, the rate may be reduced. Each treaty has specific provisions which determine the reduced withholding rate. These provisions reduce the withholding rate based on the type of income and the status of the recipient.

Question 20: Is there a listing of treaties and rates to be applied?

Answer 20: Publication 515, Withholding of Tax on Nonresident Aliens and Foreign Entities, provides a listing of tax treaties and the withholding tax rates to be applied to various types of income under each treaty.

Question 21: How can a foreign vendor certify its foreign status?

Answer 21: The foreign vendor must provide the withholding agent with form a properly completed W-8 or Form 8233 (see FAQ section 5 for further information).

Question 22: Must we obtain documentation from a foreign person to support its claim of foreign status or treaty eligibility?

Answer 22: In order to reduce the amount that is required to be withheld on a payment of U.S. sourced FDAP income to a foreign person (foreign vendor), or to exempt such a payment from withholding tax, the withholding agent must have documentation from the foreign vendor to certify its non-U.S. status and, if applicable, its eligibility for the treaty benefits claimed. Such documentation must be submitted by the foreign vendor in the form of a Form W8-IMY Form W-8 or Form 8233.

Question 23: Which forms would be most commonly used by foreign vendors?

Answer 23: Form W-8BEN (Beneficial Owner – Individual), Form W-8BEN-E (Beneficial Owner – Entity), Form W-8IMY (Intermediary), Form W-8ECI (Effectively Connected Income) and Form 8233.

Question 24: When should Form W-8BEN (W-8BEN-E) be used by foreign vendors?

Answer 24: Form W-8BEN (W-8BEN-E) should be used by the foreign vendor to certify that it has non-U.S. status. If a treaty claim is made by the vendor Part II of the W-8BEN must be completed to be eligible for the treaty benefits.

Question 25: When should Form W-8ECI be used by our foreign vendors?

Answer 25: Form W-8ECI should be used by a foreign vendor to certify that the payment is income that is effectively connected with a U.S. trade or business. No withholding is required on such income. Payments of effectively connected income to a U.S. branch of a foreign bank or insurance company can avoid U.S. withholding if the U.S. branch’s U.S. EIN or a W-8ECI of its foreign parent is provided.

Question 26: When should Form 8233 be completed by a foreign vendor?

Answer 26: If you make a payment to a non-resident alien individual as compensation for personal services performed for you in the United States, that individual may have to provide you with Form 8233 instead of Form W-8. See Form 8233 and its instructions for further information.

Question 27: Are we responsible for the validity of the documentation presented to us by the foreign vendor?

Answer 27: In order to rely on the documentation, it must be valid. In order to be valid, the documentation must meet the requirements of Treasury Regulation 1.1441 and must be completed in accordance with the applicable form instructions (see Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP and W-8IMY).

In addition, in order for the documentation to be valid, the US withholding agent or multinational must not know, or have reason to know, that the information provided on the documentation is unreliable or incorrect. If the US withholding agent (multinational) has such knowledge, or if the documentation is invalid for any reason, the withholding agent must apply the presumption rules set forth in Treasury Regulation Section 1.1441, 1.

Question 28: When should the Form W-8 or Form 8233 be obtained from the foreign vendor?

Answer 28: In general, the documentation must be in the possession of the withholding agent at the time of payment.

Question 29: What forms should we use to report payments to foreign persons (foreign vendors) of FDAP income that is U.S. sourced and any amounts withheld on such payments?

Answer 29: Forms 1042, 1042-S and 1042-T are the forms that a withholding agent (multinational) must use to report payments to foreign persons of FDAP income that is U.S. sourced and any amounts withheld on such payments.

Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, should be submitted to the IRS in order to report the total aggregate NRA payments, withholdings and deposits made by the withholding agent during the applicable year.

Form 1042-S, Foreign Person’s U.S. Source Income subject to Withholding, is an information return. The withholding agent should submit these information returns to the IRS and the payee in order to report the payments and withholdings made during the year that are specific to the payee, the type of income paid and the withholding rate. Form 1042-T, Annual Summary and Transmittal of Forms 1042-S, should be used to transmit paper Forms 1042-S to the IRS.

Question 30: If upon audit, it is determined that there has been under reporting and underwithholding, will the IRS assess penalties and interest in addition to the underwithholding amounts due?

Answer 30: If deficiencies in reporting, withholding and depositing with regard to NRA payments are found on audit, the IRS will consider all applicable penalties, including, but not limited to the following:

• Failure to file (IRC Section 6651)
• Failure to pay (IRC Section 6651)
• Failure to deposit (IRC Section 6656)
• Failure to file information returns (IRC Sections 6721-6723)
• Negligence (IRC Section 6662)

In addition, interest will be assessed on the underwithholding.

Question 31: If upon audit, it is determined that there has been underwithholding, on account of a failure to document any vendors, as described above what recourse does the withholding agent have in order to reduce the underwithholding?

Answer 31: The withholding agent can obtain certification of foreign status and the treaty claim from the foreign vendor. This is accomplished by the vendor completing a valid Form W-8. A valid Form W-8 will allow a reduction in the underwithholding from the 30% statutory rate for the type of income paid.

Since the documentation is being obtained after the payment is made, the foreign vendor should provide an additional statement indicating that all facts and elections made on the Form W-8 were true, correct and complete at the time of the payment. Documentation other than this statement might be considered based on the facts of the particular case.

Question 32: If the underwithholding has been “cured” by obtaining a Form W-8 or other applicable documentation after a payment, according to Q&A 31 above and such documentation is found sufficient is there any remaining liability to the withholding agent?

Answer 32: In general, there is no remaining liability for tax, interest and penalties. Exceptions to this apply in case in which the withholding agent is relieved from the tax liability by showing that the underwithholding tax was paid by the payee. In those cases, the withholding agent may still be liable for interest and applicable penalties. In other cases, reporting-related penalties might still apply where no underwithholding results on account of the cure, but the filed Form 1042-S reflected incorrect information.