General information regarding 2021 revisions
- Section 1446(f): Several updates to Forms W-8 reflect the new Section 1446(f) regime and the new reporting and withholding requirements in connection with certain transfers of interests in partnerships thereunder introduced by the Tax Cuts and Jobs Act of 2017.
KPMG comment: IRS and Treasury plan to update the Qualified Intermediary (“QI”) agreement to allow QIs to assume primary withholding obligations under Section 1446(f) as well as on distributions by publicly traded partnerships under Section 1446(a). The current QI agreement is in effect through 2022. The Final Regulations provide guidance on the changes expected with the new QI agreement in 2023.
- FTIN: Forms W-8BEN, W-8BEN-E and W-8ECI include a new line and checkbox to certify that a foreign tax identifying number (“FTIN”) is not legally required. Form W-8IMY now also includes a line to provide a FTIN, if required.
KPMG comment: The requirement to collect an account holder’s FTIN should not be relevant for Swiss FI in practice. An FTIN is required only for financial accounts maintained in the U.S. and entities without a U.S. TIN claiming treaty benefits for specific types of income (other than dividends and interest from stocks and debt obligations).
- Electronic signature: The instructions to all forms provide updated guidance regarding the possibility to sign electronically.
KPMG comment: The electronic signature must indicate that the form was electronically signed by a person authorized to do so (for example, with a time and date stamp and statement that the form has been electronically signed).
- Sunset period: FIs may accept prior versions of the form until the later of six full months after the revision date shown on the form or the end of the calendar year the updated form is issued.
KPMG comment: With the current forms (excl. Form W-8IMY) being issued in October 2021, this means that it is admissible to accept the prior forms until 30 April 2022.
Form W-8BEN revision
- Signature: The form includes a new checkbox above the signature line for authorized individuals signing the form to certify that they have the capacity to sign.
KPMG comment: This box must only be ticked if the form is signed by a person different from the beneficial owner identified on Line 1. It replaces the previous “capacity in which acting” line below the signature/ date, which has been removed.
Form W-8BEN-E revision
- No LOB article: Part III, Line 14b includes a new “No LOB article in treaty” checkbox.
KPMG comment: For income tax treaties that do not include limitation on benefit articles on prior versions of the form “N/A” had to be put on the “Other” line. The new checkbox simplifies this requirement.
- Entity type: The entity type field (Line 4) is separated into two boxes: Integral parts of foreign governments and controlled entities of foreign governments.
KPMG comment: See Temporary Regulations §1.892-2T for distinction between the two boxes.
- Signature: The capacity-to-sign checkbox has been moved directly above the signature block.
KPMG comment: The checkbox was regularly overlooked and not ticked rendering the form invalid. The new placement is intended to address this issue.
Form W-8IMY revision (draft)
- Part III: Qualified Intermediary ("QI") Certifications:
- Line 14a: Contains the general certification of QI status, updated for Sections 1446(a) and 1446(f).
- Added Line 15b: Allows a QI to certify that it is assuming all withholding responsibilities for transfers of partnership interests for Section 1446(f) purposes.
- Added Line 15c: Allows a QI to certify that it is acting as a nominee for Section 1446 purposes with respect to a distribution by a publicly traded partnership.
- Moved Line 15f to 15d: Former Line 15f, addressing a QSL that is assuming primary withholding and reporting for substitute dividend payments.
- Moved Line 15g to 15e: Former Line 15g, which addresses the assumption of withholding and reporting for substitute interest, was moved to Line 15e.
KPMG comment: A QI certifying its status under Lines 15a, 15b, 15c, 15d, or 15g should include a statement identifying the accounts for which it intends to assume primary withholding and reporting. Otherwise the form will apply to all accounts.
- Part IV and VIII: New checkbox for Nonqualified Intermediary ("NQI") and Nonwithholding Foreign Partnership, Simple Trust, or Grantor Trust Certifications:
- The draft form includes a checkbox to make the required certification when providing an alternative withholding statement (i.e., a certification that the NQI, partnership or trust does not have information in its files that conflicts with the information provided on the withholding certificates).
KPMG comment: Many intermediaries and flow-through entities continue to provide withholding statements that do not contain all fields required for a complete withholding statement and do not have the certification necessary for an alternative withholding statement. Therefore, this new line should improve compliance.