Luxembourg

Details

  • Service: Tax, Financial Services
  • Industry: Financial Services
  • Type: Newsletters
  • Date: 7/29/2014

Contact

Gérard Laures

Partner

+352 22 51 51 - 5549

gerard.laures@kpmg.lu

 

Frank Stoltz

Partner

+352 22 51 51 - 5520

frank.stoltz@kpmg.lu

FATCA e-alert issue 2014-27 

July 2014

IRS Releases Updated Form W-8IMY and Instructions

 

The IRS released a final version of Form W-8IMY, Certification of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting, that modifies the previous form and drafts. In addition, it released updated Instructions for Form W-8IMY. Highlights of changes are discussed below.

 

Form W-8IMY

 

As was provided in the 2012 and 2013 drafts, the revised Form W-8IMY is intended to collect an intermediary’s Chapter 4 status while continuing to request the entity’s Chapter 3 information as well. It has expanded from its former 2-page version to its revised 8-page version. Similar to Form W-8BEN-E, the form incorporates the former Chapter 3 certifications, but now includes the certifications relating to the 25 FATCA entity statuses for the intermediary completing the form to identify, as appropriate, for its business. Pages 3 through 8 cover specific certifications for the FATCA statuses and are completed according to the FATCA status indicated in Part I, Line 5.

 

Instructions have been added to the top of the form indicating that persons documenting themselves for payment cards under section 6050W should not use Form W-8IMY, but to use the appropriate Form W-8BEN, W-8BEN-E, or W-8ECI instead.

 

Part I, Identification of Entity

 

  • Line 3, Name of disregarded entity, has been added
  • Line 4, Chapter 3 status: Territory financial institution has been added
  • Line 5, Chapter 4 Status: All new section to prior form

• The following chapter 4 statuses have been added to line 5 from its last draft:

• Direct reporting NFFE

• Sponsored direct reporting NFFE

• The following chapter 4 statuses have been removed from the last draft:

• Other status

  • Line 6, Permanent Resident Address: (formerly Line 4) This new version of Form W-8IMY includes a parenthetical instruction providing that a permanent residence address does not include an in-care-of address, as well as post office box (other than a registered address). The prior draft Form W-8IMY removed this instruction relating to the in care of and post office box address from an even earlier iteration of Form W-8IMY. The permission to include such an address if it is the intermediary’s registered address is new.
  • Line 8, U.S. taxpayer identification number: expanded to include 5 potential numbers from the intermediary – now including WP-EIN and WT-EIN
  • Line 9, GIIN – the new FATCA Global Intermediary Identification Number that must be obtained for an entity that is a FATCA status (as indicated on Line 5) of:
    • Participating FFI 
    • Reporting Model 1 FFI
    • Reporting Model 2 FF
    • Registered Deemed-Compliant FFI
    • Direct Reporting NFFE
    • Trustee of a Trustee-documented FFI

 

A 90-day “applied for” status is acceptable for those entities in the process of registering. The requestor of the form must obtain the GIIN within 90 days and verify it on the IRS FFI List to confirm validity and that the intermediary is not subject to withholding.

 

Part II, Disregarded Entity or Branch Receiving Payment

 

As provided in the 2013 draft form, Part II has been added to capture the chapter 4 status, address, and GIIN for a branch or disregarded entity of an FFI if the branch or disregarded entity is located in a different country than the FFI’s country of residence.

 

Parts III and IV, Qualified Intermediary (QI) and Nonqualified Intermediary (NQI) Certifications

 

  • Certifications in Part III are substantively unchanged from the prior form
  • One change noted in Part IV: QIs can certify that they are not acting in the capacity of QI for the current withholding certificate.

 

Part V, Territory Financial Institution

 

The certification for a territory financial institution clarifies that this classification does not include an investment entity that is not also a depository institution, a custodial institution or a specified insurance company.

 

KPMG Observation

 

The change in the certification to Part V of the form relating to territory financial institutions now clarifies that it applies only to FFIs that are depository institutions, custodial institutions, insurance companies, and holding companies or treasury centers but does not apply to such entities if they only qualify as investment entities. Since the excepted territory NFFE category continues to apply only to entities that are solely investment entities, this territory classification applies to FFIs that are both investment entities and other types of FFIs. This remedies what was interpreted in the last draft as a drafting error that contradicted the definition of a territory financial institution as provided in the final FATCA regulations.

 

Part VI, Certain U.S. Branches Certification

 

Certification now expanded to indicate that a U.S. branch may not only be a branch of a Participating FFI but also a Model 2 FFI, Registered-Deemed-Compliant FFI (including a reporting Model 1 FFI) or an NFFE that is using Form W-8IMY as evidence of its agreement with the withholding agent to be treated as a U.S. person.

 

Part XI, Owner-Documented FFI Certification

 

In addition to the auditor’s letter, certification “c” requires the Owner-Documented FFI to certify that it is providing an FFI owner reporting statement and Form W-9, with waivers, if applicable.

 

KPMG Observation

 

This seems to indicate that now an Owner-Documented FFI must always provide an FFI owner reporting statement, which may have been intended but omitted in the previous draft.

 

Part XIV, Certified Deemed-Compliant Sponsored, Closely Held Investment Vehicle Certification

 

  • The final form removes the certification: “does not hold itself out as an investment vehicle for unrelated parties.”
  • The certification regarding twenty or fewer individual owners was clarified to exclude from the count of owners debt interests owned by U.S. financial institutions, participating FFIs, registered deemed-compliant FFIs, certified deemed-compliant FFIs and 100% owners of the entity that are sponsored FFIs.

 

KPMG Observation

 

The change regarding unrelated parties reflects the adjustment to the definition of a Certified Deemed-Compliant Sponsored, Closely-Held Investment Vehicle reflected in the temporary correction regulations, released February 2014. The clarification regarding how the 20 individual owners are counted was a requirement of the final regulations.

 

Part XV, Certified Deemed-Compliant Limited Life Debt Investment Company Certification

 

Certifications for this FATCA status have significantly changed:

 

  • The entity must certify it was in existence as of 1 January 2013
  • The entity must have issued all classes of its debt or equity to investors on or before 1 January 2013

 

KPMG Observation

 

The changes to these certifications reflect a significant change in the definition of Limited Life Debt Investment Companies. Most significantly, the status is no longer a transitional status. Originally, the status was to apply only to payments made prior to 1 January 2017.

 

Part XVII, Foreign Central Bank of Issue Certification

 

  • Part XVII no longer includes foreign governments or governments of U.S. possessions
  • Certification no longer includes restriction on commercial activities

 

KPMG Observation

 

This change likely reflects the reality that governments are unlikely to act as intermediaries and would likely submit Form W-8EXP for certification purposes.

 

Part XVIII, Nonreporting IGA FFI Certification

 

  • Certification removes the requirement for an explanation on how IGA terms are applicable to the intermediary.
  • Certification adds a requirement that Model 2 Registered Deemed-Compliant FFIs submit their GIIN.

 

KPMG Observation

 

While the GIIN requirement for Model 2 Registered Deemed-Compliant FFI in this certification may seem redundant, it actually is not. The instructions to the form indicate that only a reporting Model 2 FFI provides its GIIN on Line 9.

 

Part XXIII, Publicly Traded NFFE or NFFE Affiliate of a Publicly Traded Corporation Certification

 

  • Section title was changed from “Publicly Traded NFFE or Affiliate” to the current title above.
  • Certification that entity be an affiliate of a publicly traded entity is changed to a certification that the entity is in the same expanded affiliated group as the publicly traded entity.

 

KPMG Observation

 

Both changes reflect that an affiliate need not be an affiliate of a Publicly Traded NFFE, but may also be an affiliate of a U.S. Publicly Traded Corporation.

 

Part XXV, Active NFFE Certification

 

The third certification removes the language “at any time during the preceding calendar year” and includes the method for asset testing.

 

KPMG Observation

 

These changes are consistent with definition of Active NFFEs in the final regulations.

 

Instructions for Form W-8IMY

 

A significant amount of verbiage has been added to the Instructions to the Form, considering the significant impact of FATCA to intermediaries. Definitions have been added or substantially modified to mirror the final FATCA regulations for most of the terminology on the form. Highlights:

 

Form W-8IMY is revised to be used by an intermediary or flow-through entity to certify as to its status under both chapters 3 and 4, and to address special provisions for FFIs. An intermediary or flow-through entity receiving a withholdable payment will 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. Form W-8IMY must be provided by the following:

 

  • QI and NQI
  • U.S. branch acting as an intermediary and that it either is using the form to indicate it is acting as a U.S. person, or to certify its Chapter 4 status. As required, it will also use Form W-8IMY to transmit documentation for underlying owners along with a withholding statement.
  • Territory FI providing its election to be treated as a USWA or instead, to elect to pass documentation to the payor with respect to owners of income payments.
  • Withholding foreign partnership, grantor or simple trust
  • Nonwithholding foreign partnership, grantor or simple trust
  • Foreign partnership or grantor trust to establish that it is an upper-tier partnership or trust under section 1446
  • Flow-through entity using Form W-8IMY to provide a withholding statement and/or documentation to claim treaty benefits for underlying owners, certify chapter 4 status
  • NPFFI acting as an intermediary or that is a flow-through entity using Form W-8IMY to provide a withholding statement and/or certificates for EBOs
  • QSL certifying that it is acting as a QSL with respect to substitute dividends received from the withholding agent under a securities lender transaction
  • Foreign intermediary or flow-through entity not receiving amounts under Chapters 3 or 4 but that is holding an account with a PFFI or RDCFFI and providing the form to document its status.

 

Alternative Certifications

 

Special instructions have been provided for Form W-8IMY for entities providing:

 

  • Certifications under an IGA: An FFI covered by an IGA may provide an alternative chapter 4 status which meets the requirements of its IGA
  • Alternative certifications under the FATCA regulations: An entity completing Form W-8IMY, that qualifies for a chapter 4 status not provided on Line 5, may provide its FATCA status and certifications for such status other than those provided on Form W-8IMY from any other Form W-8.

 

For Your Reference

 

The final Form W-8IMY can be accessed by clicking here:

http://www.irs.gov/pub/irs-pdf/fw8imy.pdf

 

The Instructions for Form W-8IMY can be accessed by clicking here:

http://www.irs.gov/pub/irs-pdf/iw8imy.pdf

 

For further information, please do not hesitate to contact us.

 

 

Any tax advice in this communication is not intended or written by KPMG to be used, and cannot be used, by a client or any other person or entity for the purpose of (i) avoiding penalties that may be imposed on any taxpayer or (ii) promoting, marketing, or recommending to another party any matters addressed herein.

The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation.

 

 

Share this

Get in touch with KPMG