Revised Forms W-8

The IRS has recently published new revisions of Forms W-8BEN, W-8BEN-E, W-8IMY and W-8ECI (Rev. October 2021). QIs and FFIs (“requesters”) will have to request the new Forms W-8BEN, W-8BEN-E, W-8IMY and W-8ECI starting May 1, 2022 the latest. Most of the changes are related to the new 1446(f) regulations which have been published last year. We will inform in detail about these regulations at a later time.

The IRS has not announced a potential revision of the Form W-8EXP so far.

The instructions to the forms W-8BEN, W-8BEN-E, W-8IMY and W-8ECI were also updated. Of note is that the instructions to the forms were harmonized with the regulation to allow requesters to accept forms signed electronically. According to the updated instructions, requesters are permitted to accept electronic signatures if the person signing the form indicates that they are authorized to do so (e.g. with a time and date stamp and a statement that the form has been electronically signed). A requester may also seek information or documentation that the form was signed by an authorized person.

Below we have summarized the most important changes for each form.

W-8BEN

• New Line 6b, FTIN: Account holders of financial accounts maintained at a U.S. office, or a U.S. branch of a QI (or with a U.S. withholding agent) are required to provide their foreign TIN (FTIN) in line 6a. For account holders resident in jurisdictions which do not issue FTINs, a new line 6b has been added to enable them to indicate that the FTIN is not legally required. For requesters not having a U.S. office or a U.S. branch, there is no need for action as the FTIN field must not be filled if you are a non-U.S. requester.

• Part II, Claim for Treaty Benefits: The instructions to Part II of the Form W-8BEN were updated with guidance for beneficial owners making representations to claim treaty benefits for income taxable under Section 1446(f). The instructions for this part were also updated to cover the case when individuals claim treaty benefits under an income tax treaty that provides for treaty benefits related to a remittance-based tax system.

• New checkbox confirming capacity to sign: As already known from the Form W-8BEN-E, the new revision of the Form W-8BEN now also includes a checkbox which requires the person signing the form to confirm that they are authorized to do so. This mainly applies when the Form W-8BEN is completed by an agent acting under a power of attorney. Requesters should adjust their formal review process for the Form W-8BEN to ensure that this checkbox has been ticked if necessary.

W-8BEN-E

• Modified Line 4, Chapter 3 Status (Entity Type): In a revised Line 4, the previous Chapter 3 status “Government” was replaced by the two possible statuses for a foreign government “Foreign Government – Controlled Entity” and “Foreign Government – Integral Part”.

• New Line 9c, FTIN not Legally Required: Same as with the Form W-8BEN, a new checkbox has been added for account holders resident in jurisdictions which do not issue FTINs to indicate that the FTIN is not legally required.

• Modified Line 14b, Limitation on Benefits (“LOB”) Provisions: Since 2017, all entities claiming treaty benefits must indicate which limitation on benefits (“LOB”) provision in the applicable double tax treaty they fulfil. Since there are double tax treaties without a respective provision, a new checkbox “No LOB article in treaty” was added in Line 14b of Part III of the form. Account holders that are resident in countries with a tax treaty that does not contain a LOB article can check this box to claim treaty benefits. We recommend requesters to include in their plausibility check a review of the double tax treaty to verify if no LOB clause is present.

• Line 15, Special Rates and Conditions: The instructions for the Line 15 were updated with guidance for beneficial owners making representations to claim treaty benefits for income taxable under Section 1446(f).

• Checkbox confirming capacity to sign: In the new revision of the Form W-8BEN-E, the checkbox at the end of the form which requires the signatory to confirm that they are authorized to sign was moved above the signature line to improve its visibility. This is a very welcome change as the checkbox has been regularly left unnoticed by signatories thereby making the form invalid.

W-8IMY

• Modified Parts III, IV, V, VI and VIII: The additional sections of the Form W-8IMY where QIs, Territory FIs, Certain U.S. Branches, Nonqualified Intermediaries and Nonwithholding Foreign Partnerships and Trusts provide specific certifications have been (sometimes substantially) modified to include certifications made under section 1446(f). We recommend requesters to especially consider Part VIII which has been significantly extended and update the plausibility checks required to review the form.

• QSL status still in effect: Due to the extension of the transition rules allowing withholding agents acting as QSLs to continue applying this status, the respective certifications in Part III of the form are still available in this revision.

• New Lines 9a, GIIN (if applicable) and 9b, Foreign taxpayer identification number, if required: The previous line 9 “GIIN (if applicable)” was divided into a line 9a to enter a potential GIIN and a new line 9b to note a Foreign TIN. In this line 9b, among others, QDDs which are account holders of financial accounts maintained at a U.S. office or a U.S. branch of a QI are required to provide their foreign TIN.

• New Lines 17e in Part IV, Nonqualified Intermediary (NQI) and 21f in Part VIII Nonwithholding Foreign Partnership, Simple Trust, or Grantor Trust: A new Line 17e was added to allow NQIs providing alternative withholding statements (i.e. withholding statements relying on accompanying Forms W-8 received by indirect account holders) to certify that the information on the withholding certificates has been verified for inconsistencies with any other account information the NQI has for the indirect account holders. This Line 17e is only mandatory if the QI uses an alternative withholding statement which does not include the respective certification. The same was added to Line 21f to allow nonwithholding foreign partnerships and trusts to make the same representation.

W-8ECI

• Modified Line 4, Chapter 3 Status (entity type): In a revised Line 4, the previous Chapter 3 status “Government” was replaced by the two possible statuses for a foreign government “Foreign Government – Controlled Entity” and “Foreign Government – Integral Part”.

• New Lines 8a and 8b, FTIN: Same as with the Form W-8BEN and W-8BEN-E, a new checkbox has been added for account holders resident in jurisdictions which do not issue FTINs to indicate that the FTIN is not legally required.

• New Line 12, Section 1446(f) Checkbox for Dealers: A new checkbox has been added to require a dealer claiming an exemption from withholding under section 1446(f) and transferring an interest in a publicly traded partnership (PTP) to certify such exemption.

• Certification Regarding the Capacity to Sign the Form W-8ECI: In the new revision of the Form W-8ECI, the checkbox which requires a signatory to confirm that they are authorized to do so was moved above the signature line to improve its visibility.