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Every person required to deduct and withhold any tax under chapter 3 or chapter 4 is liable for such tax.

Who Must File?

Every withholding agent must file an information return on Form 1042-S to report amounts paid during the preceding calendar year.

However, withholding agents who are individuals are not required to report a payment on Form 1042-S if they are not making the payment as part of their trade or business and no withholding is required to be made on the payment.

For example, an individual making a payment of interest that qualifies for the portfolio interest exception from withholding is not required to report the payment if the portfolio interest is paid on a loan that is not connected to the individual’s trade or business. However, an individual who is a withholding agent paying an amount that actually has been subject to withholding is required to report the payment. Also, an individual paying an amount on which withholding is required must report the payment, whether or not the individual actually withholds.

Who is a Withholding agent?

A withholding agent is any person, U.S. or foreign, that has control, receipt, or custody of an amount subject to withholding under chapter 3, who can disburse or make payments of an amount subject to withholding, or who makes a withholdable payment under chapter 4.

The withholding agent may be an individual, corporation, partnership, trust, association, or any other entity. The term withholding agent also includes, but is not limited to, a qualified intermediary (QI), a nonqualified intermediary (NQI), a withholding foreign partnership (WP), a withholding foreign trust (WT), a flow-through entity, a U.S. branch, a territory FI, a nominee under section 1446, and an authorized agent. A person may be a withholding agent even if there is no requirement to withhold from a payment or if another person has already withheld the required amount from a payment.

In most cases, the U.S. person who pays (or causes to be paid) the item of U.S. source income to a foreign person (or to its agent) must withhold. However, other persons may be required to withhold. For example, if a payment is made by a QI (whether or not it assumes primary withholding responsibility) and the QI knows that withholding was not done by the person from which it received the payment, then that QI is required to do the appropriate withholding. In addition, withholding must be done by any QI that assumes primary withholding responsibility under chapters 3 and 4, a WP, a WT, a U.S. branch that agrees to be treated as a U.S. person, or an authorized agent.

Finally, if a payment is made by an NQI or a flow-through entity that knows, or has reason to know, that withholding was not done, that NQI or flow-through entity is required to withhold since it also falls within the definition of a withholding agent.

What’s New for the 2014 Form 1042-S?

The Form 1042-S for 2014 has been modified to accommodate reporting of payments and amounts withheld under FATCA (chapter 4) in addition to those amounts required to be reported under chapter 3.  Form 1042-S requires the reporting of an applicable exemption to the extent withholding under chapter 4 does not apply to a payment of U.S source fixed or determinable annual or periodical (FDAP) income (including deposit interest) that is reportable on Form 1042-S.

When a financial institution reports a payment made to its financial account, Form 1042-S also requires the reporting of additional information about a recipient of the payment, such as the recipient’s account number, date of birth, and foreign taxpayer identification number, if any.

For withholding agents, intermediaries, flow-through entities, and recipients, Form 1042-S requires that the chapter 3 status (or classification) and, when the payment reported is a FATCA withholdable payment, the chapter 4 status be reported on the form according to a code for each type of income.

For withholding agents that report amounts withheld by another withholding agent, Form 1042-S requests the name and EIN of the withholding agent that withheld the tax. This information is optional for 2014.

Electronic filing requirement for financial institutions. Beginning January 1, 2014, financial institutions that are required to report payments made under chapters 3 or 4 must electronically file Forms 1042-S (regardless of the number of forms to file).

Use Form 1042-S to:

• report income described under Amounts Subject to Reporting on Form 1042-S, later, and to report amounts withheld under chapter 3 or chapter 4.
• report specified Federal procurement payments paid to foreign persons that are subject to withholding.
• report distributions of effectively connected income by a publicly traded partnership or nominee.

Do not use Form 1042-S to report an item required to be reported on any of the following forms:

• Form W-2 (wages and other compensation made to employees (other than compensation for dependent personal services for which the beneficial owner is claiming treaty benefits), including wages in the form of group-term life insurance).
• Form 1099.
• FIRPTA: Dispositions by Foreign Persons of U.S. Real Property Interests, or Form 8805 Foreign Partner’s Information Statement of Section 1446 Withholding Tax.
• Form 8966, FATCA Report. Foreign financial institutions (FFIs) and withholding agents are required to report on Form 8966 certain account holders and payees.  However, an FFI or withholding agent may also be required to file Form 1042-S to report payments of U.S. source FDAP income made to such persons and to report tax deducted and withheld, if any.

Amounts Subject to Reporting on Form 1042-S

Amounts subject to reporting on Form 1042-S are amounts from U.S. sources paid to foreign persons (including persons presumed to be foreign) or included in a U.S. payee pool that are reportable under chapters 3 and 4, even if no amount is deducted and withheld from the payment because of a treaty or Code exception to taxation or if any amount withheld was repaid to the payee.  Amounts subject to reporting are amounts from sources within the United States that constitute:

(a) fixed or determinable annual or periodical (FDAP) income (including deposit interest);

(b) certain gains from the disposal of timber, coal, or domestic iron ore with a retained economic interest; and

(c) gains relating to contingent payments received from the sale or exchange of patents, copyrights, and similar intangible property.

A payment is also subject to reporting if withholding under chapter 4 is applied (or required to be applied) to the payment. Amounts subject to reporting on Form 1042-S include, but are not limited to, the following amounts to the extent from U.S. sources:

(a)     Interest on deposits paid to certain nonresident aliens. Interest described in section 871(i)(2)(A) aggregating $10 or more paid with respect to a deposit if such interest is paid to a nonresident alien individual who is a resident of a country identified, in Revenue Procedure 2012-24 (or a superseding Revenue Procedure) as of December 31, prior to the calendar year in which the interest is paid.

A payor may elect to report interest described above paid to any nonresident alien individual by reporting all such interest. See Revenue Procedure 2012-24 (or a superseding Revenue Procedure) for the current list of countries with which the United States has in effect an income tax or other convention or bilateral agreement relating to exchange information within the meaning of section 6103(k)(4).

(b)     Corporate distributions. The entire amount of a corporate distribution (whether actual or deemed) must be reported, regardless of any estimate of the part of the distribution that represents a taxable dividend. Any distribution, however, that is treated as gain from the redemption of stock is not an amount subject to withholding.

(c)     Interest. This includes the part of a notional principal contract payment that is characterized as interest.

(d)     Rents.

(e)     Royalties.

(f)      Compensation for independent personal services performed in the United States.

(g)     Compensation for personal services performed in the United States (but only if the beneficial owner is claiming treaty benefits).

(h)     Annuities.

(i)      Pension distributions and other deferred income.

(j)      Most gambling winnings.

(k)     Cancellation of indebtedness. Effectively connected income (ECI).

(l)      Notional principal contract income.

(m)   Insurance premiums.

(n)     REMIC excess inclusions.

(o)     Students, teachers, and researchers. However, amounts that are exempt from tax under section 117 are not subject to reporting.

(p)     Amounts paid to foreign governments, foreign controlled banks of issue, and international organizations.

(q)     Foreign targeted registered obligations.

(r)     Original Issue Discount (OID) from the redemption of an OID obligation.

(s)      Certain dispositions of U.S. real property interests.

(t)      Other U.S.-source dividend equivalent payments

(u)     Guarantee of indebtedness.

(v)     Specified Federal procurement payments.

Amounts That Are Not Subject to Reporting on Form 1042-S

• Interest and OID from short-term obligations.
• Registered obligations targeted to foreign markets. Reporting will be required on interest paid on any registered obligation (regardless of whether targeted to foreign markets) if the registered obligation is issued after December 31, 2015.
• Bearer obligations targeted to foreign markets. Withholding is required on interest paid on any bearer obligations targeted to foreign markets if the obligation is issued after March 18, 2012.
• Notional principal contract payments that are not ECI.
• Accrued interest and OID.
• Certain withholdable payments. Withholdable payments not subject to reporting for chapter 3 purposes (other than bank deposit interest paid to certain nonresident aliens) are not required to be reported if withholding is not applied (or required to be applied) under chapter 4.

How Are Disregarded Entities Reported?  

If a U.S. withholding agent makes a payment to a disregarded entity (other than a limited branch of an FFI) that is not a hybrid entity making a treaty claim, and receives a valid Form W-8BEN-E or W-8ECI from a foreign person that is the single owner of the disregarded entity, the withholding agent must file a Form 1042-S in the name of the foreign single owner. The taxpayer identifying number (TIN) on the Form 1042-S, if required, must be the foreign single owner’s TIN.

Example. WA, a withholding agent, makes a withholdable payment of interest to LLC, a foreign limited liability company that is not an FFI. LLC is wholly-owned by FC, a foreign corporation that is an excepted non-financial foreign entity. LLC is treated as a disregarded entity. WA has a Form W-8BEN-E from FC on which it states that it is the beneficial owner of the income paid to LLC. WA reports the interest payment on Form 1042-S showing FC as the recipient. The result would be the same if LLC was a domestic entity.

How Are Amounts paid to a NQI or Flow-Through Entity Reported? 

If a U.S. withholding agent makes a payment to an NQI or a flow-through entity (other than a nonparticipating FFI) with respect to a withholdable payment, it must complete a separate Form 1042-S for each recipient on whose behalf the NQI or flow-through entity acts as indicated by its withholding statement and the documentation associated with its Form W-8IMY.

Example. WA, a withholding agent, makes a withholdable payment of interest to FFI 1, a reporting model 1 FFI. FFI 1 provides WA with a valid Form W-8IMY with which it associates a withholding statement that allocates 80% of the payment to FFI 2, a participating FFI, and 20% of the payment to a pool of nonparticipating FFIs. FFI 1 also provides WA with FFI 2’s Form W-8IMY with which it associates a withholding statement that allocates 100% of the payment to recalcitrant pool-no U.S. indicia. WA must complete a Form 1042-S for the interest allocated to a pool of nonparticipating FFIs with FFI 1 as the recipient and must complete another Form 1042-S for the interest allocated to a pool of recalcitrant account holders-no U.S. indicia with FFI 2 as the recipient.

Lexis Guide to FATCA Compliance – 2015 Edition 

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A free download of the first of the 34 chapters is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2457671

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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