William Byrnes' Tax, Wealth, and Risk Intelligence

This update supplements the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY (Rev. July 2014) and provides additional information for withholding agents and foreign financial institutions (FFIs) requesting such forms.  This update makes certain corrections and provides additional clarifying information not included in the instructions.  A requester of a Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, or W-8IMY may rely on this update, which will be incorporated in the next issuance of the instructions.

• On page 3, the instructions state that if the requester receives a Form W-9, it must generally make an information return on a Form 1099 unless the payee has provided a valid exempt recipient code.  This instruction does not modify the existing requirements for a valid Form W-9 or impose additional information reporting requirements with respect to payments reportable on Form 1099 on the requester of a Form W-9.  For those requirements, see the Instructions for the Requester of Form W-9.
• On page 5, the instructions for the requester of a Form W-8BEN-E state that a “foreign reverse hybrid entity” making a claim for treaty benefits on its own behalf should provide a Form W-8BEN-E.  The correct reference is to a “foreign hybrid entity” rather than “foreign reverse hybrid entity.”
• On page 6, the instructions state that for a requester receiving a Form W-8BEN-E, a valid chapter 4 status is not required for a payment that is subject to chapter 3 withholding and is not a withholdable payment when the payment is made with respect to a preexisting obligation before January 1, 2016.  The correct date for this purpose is before July 1, 2016.
• On page 7, the instructions provide notes for a requester in validating a Form W-8BEN-E, including for Part I, Line 4 “Chapter 3 Status,” which is used by the person providing the Form W-8BEN-E to indicate its chapter 3 status.  The instructions do not provide any exceptions for when this line is not required to be completed.  This cover sheet clarifies that if Form W-8BEN-E is requested by an FFI solely for purposes of documenting the chapter 4 status of its account holder and the form is also not associated with a withholdable payment or with a reportable amount (as defined in Treas. Reg. § 1.14411(e)(3)(vi)), then Part I, Line 4 “Chapter 3 Status” is not required to be completed
• On page 9, the instructions for the requester of Form W-8IMY state that when the Form W-8IMY is provided by a qualified securities lender (QSL), the payor may make payments of substitute dividends to the QSL without requiring a withholding statement when the QSL is a qualified intermediary (QI) or provides a written statement that it is not acting as an intermediary.  However, consistent with Notice 2010-46, because a QSL (whether or not it is a QI or acting as an intermediary) does not provide a withholding statement to a withholding agent for substitute dividend payments, it need not provide the written statement described in the instructions, and the requestor may treat an entity as a QSL even when it knows that it is not acting as an intermediary for such payments.
• On page 10, the instructions provide that the requester must obtain a Form W-8IMY from a QSL when the requester is required to determine the QSL’s chapter 4 status but may continue to rely on a written certification provided by the QSL pursuant to Notice 2010-46 when the QSL’s chapter 4 status is not required.  For clarification, when the requestor obtains a Form W-8IMY from a QSL, the transitional provisions of Section III.C of Notice 2010-46 remain applicable to the QSL with respect to the annual statement requirement, and the QSL must therefore also provide to the requestor a statement at least annually, whether on a Form W-8IMY or on the separate statement described in the Notice.
• On page 14, the instructions provide guidelines for the use of non-IRS forms for individuals.  For clarification, the non-IRS form is not to be used in association with a payment that is a reportable amount (as defined in Treas. Reg. § 1.1441-1(e)(3)(vi)).  Instead, the individual must provide a Form W-8BEN or an acceptable substitute (as defined in Treas. Reg. § 1.1441-1(e)(4)(vi)).

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