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W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting)

On June 19, 2014 the IRS released the new Form W-8IMY instructions.

Form W-8IMY is submitted generally by a payment recipient (the “filer”) with non-beneficial owner status, i.e. an intermediary.  Such intermediary can be a U.S. branch, a qualified intermediary, a non-qualified intermediary, foreign partnership, foreign grantor or a foreign simple trust.  Form W-8IMY requires a tax identification number.

The new Form W-8IMY has 28 parts whereas the previous August 2013 FATCA draft W-8IMY only contained 26.  The new 2014 Form W-8IMY is vastly different from the seven-part 2006 predecessor form.

Filing Form W-8IMY with the withholding agent before payment.

The filer does not send Form W-8IMY to the IRS.  Instead, the filer gives it to the withholding agent who is requesting it. Generally, this withholding agent will be the one from whom the filer receives a payment, who credits the filer’s account, or a partnership that allocates income to the filer.  The filer should give Form W-8IMY to the withholding agent requesting it before income is paid, credited, or allocated to the filer account.

Form W-8IMY by Part

• Part I Identification of Entity
• Part II Disregarded Entity or Branch Receiving Payment.

Part I of the W8-IMY Form adds FATCA classification.   Part I of the form requires general information, the Chapter 3 QI status, and the Chapter 4 FATCA classification of the filer.

Question 4 of Part I requests the QI status:

• If the filer is a Qualified Intermediary, then the filer must complete Part III Qualified Intermediary.  If the filer is a Nonqualified Intermediary, then the filer must complete Part IV Nonqualified Intermediary.
• Territory Financial Institutions complete Part V. U.S. Branches complete Part VI.
• Withholding Foreign Partnership or Withholding Foreign Trusts complete Part VII.
• Nonwithholding Foreign Partnership, Nonwithholding Foreign Simple Trust, and Nonwithholding foreign grantor trusts must complete Part VIII.

Question 5 requests the FATCA classification of the filer of 25 potential classifications. The classification indicated determines which one of the further W-8IMY Parts IX through XXVII must be completed.

1. Nonparticipating FFI (including a limited FFI or limited branch). Complete Part IX (if applicable).
2. Participating FFI.
3. Reporting Model 1 FFI.
4. Reporting Model 2 FFI.
5. Registered deemed-compliant FFI (other than a reporting Model 1 FFI or sponsored FFI that has not obtained a GIIN).
6. Territory financial institution. Complete Part V. 
7. Sponsored FFI that has not obtained a GIIN (other than a certified deemed-compliant sponsored, closely held investment vehicle). Complete Part X.
8. Certified deemed-compliant nonregistering local bank. Complete Part XII. 
9. Certified deemed-compliant FFI with only low-value accounts. Complete Part XIII.
10. Certified deemed-compliant sponsored, closely held investment vehicle. Complete Part XIV. 
11. Certified deemed-compliant limited life debt investment entity. Complete Part XV. 
12. Owner-documented FFI. Complete Part XI.
13. Restricted distributor. Complete Part XVI.
14. Foreign central bank of issue. Complete Part XVII. 
15. Nonreporting IGA FFI. Complete Part XVIII. 
16. Exempt retirement plans. Complete Part XIX.
17. Excepted nonfinancial group entity. Complete Part XX.
18. Excepted nonfinancial start-up company. Complete Part XXI.
19. Excepted nonfinancial entity in liquidation or bankruptcy. Complete Part XXII.
20. Publicly traded NFFE or NFFE affiliate of a publicly traded corporation. Complete Part XXIII. 
21. Excepted territory NFFE. Complete Part XXIV.
22. Active NFFE. Complete Part XXV. 
23. Passive NFFE. Complete Part XXVI. 
24. Direct reporting NFFE.
25. Sponsored direct reporting NFFE. Complete Part XXVII.

Part II of the W-8IMY is to be completed if the entity is a disregarded entity or a branch receiving payment as an intermediary. Part II only applies to branches of an FFI outside the FFI’s country of residence.

Who Must File W-8IMY?

An entity should provide Form W-8IMY when receiving a reportable amount or withholdable payment on behalf of another person or as a flow-through entity.

•  A foreign person, or a foreign branch of a U.S. person, to establish that it is a qualified intermediary that is not acting for its own account, to represent that it has provided or will provide a withholding statement, as required, or, if applicable, to represent that it has assumed primary withholding responsibility under chapters 3 and 4 of the Code and/or primary Form 1099 reporting and backup withholding responsibility.
•  A foreign person to establish that it is a nonqualified intermediary that is not acting for its own account, to certify its chapter 4 status (if required), to certify whether it reports U.S. accounts under chapter 4 (if required), and to indicate, if applicable, that it is using the form to transmit withholding certificates and/or other documentary evidence and has provided, or will provide, a withholding statement, as required.  A U.S. person cannot be a nonqualified intermediary.
•  A U.S. branch that is acting as an intermediary to represent that the income it receives is not effectively connected with the conduct of a trade or business within the United States and either that it is using the form (a) to evidence it is treated as a U.S. person under Regulations section 1.1441-1(b)(2)(iv)(A) with respect to any payments associated with the Form W-8IMY, or (b) to certify to its chapter 4 status and to transmit the documentation of the persons for whom it receives a payment and has provided, or will provide, a withholding statement, as required.
•  A financial institution incorporated or organized under the laws of a U.S. territory that is acting as an intermediary or is a flow-through entity to represent that it is a financial institution (other than an investment entity that is not also a depository institution, custodial institution, or specified insurance company) and either that it is using the form (a) to evidence it is treated as a U.S. person under Regulations section 1.1441-1(b)(2)(iv)(A) with respect to any payments associated with the Form W-8IMY, or (b) to certify that it is transmitting documentation of the persons for whom it receives a payment and has provided, withholding statement, as required.
•  A foreign partnership or a foreign simple or grantor trust to establish that it is a withholding foreign partnership or withholding foreign trust under the regulations for sections 1441 and 1442 and to certify its chapter 4 status (if required).
•  A foreign partnership or a foreign simple or grantor trust to establish that it is a nonwithholding foreign partnership or nonwithholding foreign simple or grantor trust for purposes of sections 1441 and 1442, to certify to its chapter 4 status (if required), and to represent that the income is not effectively connected with a U.S. trade or business, that the form is being used to transmit withholding certificates and/or documentary evidence, and that it has provided or will provide a withholding statement as required.
•  A foreign partnership or foreign grantor trust to establish that it is an upper-tier foreign partnership or foreign grantor trust for purposes of section 1446 and to represent that the form is being used to transmit withholding certificates and/or documentary evidence and that it has provided, or will provide, a withholding statement, as required.
•  A flow-through entity (including a foreign reverse hybrid entity) transmitting withholding certificates and/or other documentary evidence to claim treaty benefits on behalf of its owners, to certify its chapter 4 status (if required), and to certify that it has provided, or will provide, a withholding statement, as required.
•  A nonparticipating FFI acting as an intermediary or that is a flow-through entity using this form to transmit a withholding statement and withholding certificates or other documentation for exempt beneficial owners described in Regulations section 1.1471-6.
•  A QSL certifying to a withholding agent that it is acting as a QSL with respect to U.S. source substitute dividends received from the withholding agent pursuant to a securities lending transaction (as described in Notice 2010-46).
•  A foreign intermediary or flow-through entity not receiving withholdable payments or reportable amounts that is holding an account with a participating FFI or registered deemed-compliant FFI providing this form for purposes of documenting the chapter 4 status of the account holder.  However, no withholding statement is required to be provided along with Form W-8IMY if it is being provided by an FFI solely to document such an account when no withholdable payments or reportable amounts are made to the account. Also note that the entity may instead provide Form W-8BEN-E when it is not receiving withholdable payments or reportable amounts to document its status as an account holder.

Partnership allocations

Form W-8IMY may be submitted and accepted to satisfy documentation requirements for purposes of withholding on certain partnership allocations to foreign partners under section 1446. Section 1446 generally requires withholding when a partnership is conducting a trade or business in the United States and allocates income effectively connected with that trade or business (ECI) to foreign persons that are partners in the partnership. Section 1446 can also apply when certain income is treated as effectively connected income of the partnership and is so allocated.

Chapter 3 and Chapter 4 status Certification by Filer required with Applicable Documentation 

In general, intermediaries and flow-through entities receiving reportable amounts will be required to provide both their chapter 3 status and the chapter 3 status of persons for whom they receive such payments.

An intermediary or flow-through entity receiving a withholdable payment will also be required to provide its chapter 4 status and the chapter 4 status of persons for whom it receives a withholdable payment when required for chapter 4 purposes.

Parts III – VIII: Chapter 3 Status Certifications

Parts III – VIII of this form address the QI Status of the entity.

• Part III Qualified Intermediary
• Part IV Nonqualified Intermediary
• Part V Territory Financial Institution
• Part VI Certain U.S. Branches
• Part VII Withholding Foreign Partnership (WP) or Withholding Foreign Trust (WT)
• Part VIII Nonwithholding Foreign Partnership, Simple Trust, or Grantor Trust

Part III is to be completed if the entity is a QI, and requires the entity to certify that it is a QI and has provided appropriate documentation.  Part IV is to be completed if the entity is a Nonqualified Intermediary (NQI), and requires the entity to certify that it is a NQI not acting for its own account.  Part V is to be completed if the entity is a Territory Financial Institution.  Part VI is to be completed by a U.S. branch only if the branch certifies on the form that it is the U.S. branch of a U.S. bank or insurance company, and that the payments made are not effectively connected to a U.S. trade or business.  Part VII is to be completed if the entity is a Foreign Withholding Partnership (WP) or a Withholding Foreign Trust (WT).  Part VIII is to be completed if the entity is either a Nonwithholding Foreign Partnership, Simple Trust, or Grantor Trust.

Parts IX – XXVI: Chapter 4 Status Certifications

Parts IX – XXVI of this form address the filer certifying the FATCA Status of the entity, beginning with a check the box selection of “I certify that …”, followed by the definition components of each classification.  These classifications include the new classification of a Restricted Distributor (Part XVI), but do not include the new classification of a Reporting NFFE.

• Part IX Nonparticipating FFI with Exempt Beneficial Owners
• Part X Sponsored FFI That Has Not Obtained a GIIN
• Part XI Owner-Documented FFI
• Part XII Certified Deemed-Compliant Nonregistering Local Bank
• Part XIII Certified Deemed-Compliant FFI with Only Low-Value Accounts
• Part XIV Certified Deemed-Compliant Sponsored, Closely Held Investment Vehicle
• Part XV Certified Deemed-Compliant Limited Life Debt Investment Entity
• Part XVI Restricted Distributor
• Part XVII Foreign Central Bank of Issue
• Part XVIII Nonreporting IGA FFI
• Part XIX Exempt Retirement Plans
• Part XX Excepted Nonfinancial Group Entity
• Part XXI Excepted Nonfinancial Start-Up Company
• Part XXII Excepted Nonfinancial Entity in Liquidation or Bankruptcy
• Part XXIII Publicly Traded NFFE or NFFE Affiliate of a Publicly Traded Corporation
• Part XXIV Excepted Territory NFFE
• Part XXV Active NFFE
• Part XXVI Passive NFFE
• Part XXVII Sponsored Direct Reporting NFFE

Part IX is not required to be completed unless the filer is a nonparticipating FFI providing documentation on behalf of an exempt beneficial owner (by example, a local qualifying retirement fund).

Part XI – An owner-documented FFI should only complete Form W-8IMY if it is a flow-through entity receiving income allocable to its partners, owners, or beneficiaries. An owner-documented FFI is not permitted to act as an intermediary with respect to a withholdable payment.

Part XVIII – A nonreporting FFI pursuant to an IGA must indicate that it is to be treated as such under an applicable IGA, including an entity treated as a registered deemed-compliant FFI under an applicable IGA.  The nonreporting IGA FFI must identify the applicable IGA by entering the name of the jurisdiction that has the applicable IGA in effect with the United States. It must also provide the withholding agent with the class of entity described in Annex II of the IGA applicable to its nonreporting FFI IGA status.  If the nonreporting FFI IGA is claimed pursuant to a Model 2 IGA, then the FFI treated as a registered deemed-compliant FFI under that applicable Model 2 IGA must provide a GIIN in the space provided.

If the filer is a sponsored FFI in a Model 1 IGA jurisdiction or other nonreporting FFI in a Model 1 IGA jurisdiction that is required to report an account, it is not currently required to provide a GIIN in this Part. However, a future version of this form may require it to provide a GIIN.

Entities Providing Certifications Under an Applicable IGA

A withholding agent that is an FFI may provide a chapter 4 status certification other than as shown in Parts IX through XXVII in order to satisfy its due diligence requirements under an applicable IGA. In such a case, attach the alternative certifications to this Form W-8IMY in lieu of completing a certification otherwise required in Parts IX through XXVII provided that the withholding agent:

1. determine that the certification accurately reflects the status for chapter 4 purposes or under an applicable IGA; and
2. the withholding agent provides a written statement that it has provided the certification to meet its due diligence requirements as a participating FFI or registered deemed-compliant FFI under an applicable IGA.

The filer may also provide with this form an applicable IGA certification if it determines its chapter 4 status under the definitions provided in an applicable IGA and that certification identifies the jurisdiction that is treated as having an IGA in effect and describes the filer status as an NFFE or FFI in accordance with the applicable IGA.  However, if the filer determines its status under an applicable IGA as an NFFE, it must still determine if it is an excepted NFFE under the regulations in order to complete this form.  Additionally, it is required to comply with the conditions of its chapter 4 status under the law of the IGA jurisdiction if it determines its status under an applicable IGA.

Entities Providing Alternate Certifications Under Regulations

If the filer qualifies for a chapter 4 status that is not shown in Part I, line 5, of this form, it may attach applicable certifications for such status from any other Form W-8 on which the relevant certifications appear.

For example, if the filer is a certified deemed-compliant investment advisor or investment manager described in Regulations section 1.1471-5(f)(2)(v)
that is a flow-through entity, it may instead attach the certifications found in Part IX of Form W-8BEN-E.

If the applicable certifications do not appear on any Form W-8 (if, for example, new regulations provide for an additional chapter 4 status and this form has not been updated) then the filer may provide an attachment certifying that it qualifies for the applicable status described in a particular Regulations section in lieu of checking a box in Part I, line 5. The filer must also include a citation to the applicable provision in the Regulations.

Final Statement of Certification

Part XXVIII requires certification, under penalty of perjury, by the payee or a person authorized to sign on the payee’s behalf. Finally, the form contains the following language: “I agree that I will submit a new form within 30 days if any certification made on this form becomes incorrect.”

Expiration of Form W-8IMY 

Generally, a Form W-8IMY remains valid until the status of the person whose name is on the certificate is changed in a way relevant to the certificate or there is a change in circumstances that makes the information on the certificate no longer correct. The indefinite validity period does not extend, however, to any other withholding certificates, documentary evidence, or withholding statements associated with the certificate.

Change in circumstances. 

If a change in circumstances makes any information on the Form W-8IMY (or any documentation or a withholding statement associated with the Form W-8IMY) have submitted incorrect for purposes of chapter 3 or chapter 4 (when relevant), the intermediary must notify the withholding agent within 30 days and file a new Form W-8IMY or provide new documentation or a new withholding statement (as applicable).

The information associated with Form W-8IMY must be updated as often as is necessary to enable the withholding agent to withhold at the appropriate rate on each payment and to report such income.

(See Regulations sections 1.1441-1(e)(4)(ii)(D) for the definition of a change in circumstances for purposes of chapter 3. See Regulations section 1.1471-3(c)(6)(ii)(E) for the definition of a change in circumstances for purposes of chapter 4.)

• Part XXVII Sponsored Direct Reporting NFFE

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• Chapter 1 Background and Current Status of FATCA
• Chapter 1A The International Financial System and FATCA
• Chapter 2 Practical Considerations for Developing a FATCA Compliance Program
• Chapter 2A FATCA Internal Policy
• Chapter 3 FATCA Compliance and Integration of Information Technology
• Chapter 4 Financial Institution Account Remediation
• Chapter 4A FATCA Customer Outreach
• Chapter 5 FBAR and Form 8938 Reporting and List of International Taxpayer IRS Forms
• Chapter 6 Determining U.S. Ownership of Foreign Entities
• Chapter 7 Foreign Financial Institutions
• Chapter 7A Account reporting under FATCA
• Chapter 8 Non-Financial Foreign Entities
• Chapter 9 FATCA and the Offshore Trust Industry
• Chapter 10 FATCA and the Insurance Industry
• Chapter 11 Withholding and Qualified Intermediary
• Chapter 12 FATCA Withholding Compliance
• Chapter 13 “Withholdable” Payments
• Chapter 13A Reporting Payments
• Chapter 14 Determining and Documenting the Payee
• Chapter 14A W8 Equivalents
• Chapter 15 Framework of Intergovernmental Agreements
• Chapter 16 Analysis of Current Intergovernmental Agreements
• Chapter 17 European Union Cross Border Information Reporting
• Chapter 18 The OECD Role in Exchange of Information: The Trace Project, FATCA, and Beyond
• Chapter 19 Germany
• Chapter 20 Ireland
• Chapter 21 Japan
• Chapter 22 Mexico
• Chapter 23 Switzerland
• Chapter 24 United Kingdom
• Chapter 25 Brazil
• Chapter 26 British Virgin Islands
• Chapter 27 Canada
• Chapter 28 Spain
• Chapter 29 China
• Chapter 30 Netherlands
• Chapter 31 Luxembourg
• Chapter 32 Russia
• Chapter 33 Turkey
• Chapter 34 India
• Chapter 35 Argentina
• Chapter 36 Aruba
• Chapter 37 Australia
• Chapter 38 Bermuda
• Chapter 39 Colombia
• Chapter 40 Cyprus
• Chapter 41 Hong Kong
• Chapter 42 Macau
• Chapter 43 Portugal
• Chapter 44 South Africa
• Chapter 45 France
• Chapter 46 Gibraltar
• Chapter 47 Guernsey
• Chapter 48 Italy