U.S.A.: FATCA : Use of old W-8 Forms
On 7 July 2014, the U.S. Internal Revenue Service (IRS) published guidance notes for the new IRS forms on their website:
- Form W-8IMY - Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting;
- Form W-8EXP - Certificate of Foreign Government or Other Foreign Organization for United States Tax Withholding and Reporting;
- Form W-8ECI - Certificate of Foreign Person’s Claim That Income Is Effectively Connected With the Conduct of a Trade or Business in the United States;
- Form W-8BEN-E - Certificate of Entities Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities).
The guidance notes, now included on the first page of the new versions of the forms, provide clarification regarding the acceptance and validity of the old versions of the forms for the purpose of Chapter 3 and 4.
According to regulation, old 2006 versions of the forms can only be submitted to withholding agents for a period of six months after the revision and publication date of the new forms, which would be until:
- 30 August 2014 for the Forms W-8BEN and W-8ECI; and
- 31 October 2014 for the Forms W-8IMY and W-8EXP.
However, the guidance notes state that withholding agents can accept 2006 versions of the above forms until the end of 2014.
Furthermore, the notes clarify that the validity of the old versions will be the normal validity for Chapter 3 and until the end of the transition period for the purpose of Chapter 4.
Impact on customers
Customers of Clearstream Banking1 may still submit the old 2006 versions of the above IRS forms for the purpose of obtaining relief at source or standard refunds on payments from U.S. sourced income subject to Chapter 3. However, Clearstream Banking will accept the old versions of the forms and apply them for the purpose of Chapter 3 (QI regime) and Chapter 4 (FATCA) according to the guidance received from the IRS, as follows:
Chapter 3
| Old Forms (2006 versions) | May be submitted to CBL until | Validity for Chapter 3 |
| W-8IMY | 31 December 2014 | QIs: Valid until revoked; NQI’s: Until the end of the year in which it was signed plus 3 years. |
| W-8BEN (individuals) | 30 August 2014 | Until the end of the year in which it was signed plus 3 years. |
| W-8BEN (entities) | 31 December 2014 | Until the end of the year in which it was signed plus 3 years. |
| W-8EXP | 31 December 2014 | Until the end of the year in which it was signed plus 3 yearsa. |
| W-8ECI | 31 December 2014 | Until the end of the year in which it was signed plus 3 years. |
a. Exceptions to this deadline may apply in certain cases.
Chapter 4
Clearstream Banking, in compliance with IGA Model I Rules, is under no obligation to apply FATCA withholding for accounts that are undocumented for the purpose of Chapter 4 prior to 1 July 2016.
As a consequence, until 30 June 2016 (unless indicated otherwise), no FATCA withholding tax will be applied on your account, unless you:
- Instruct us to apply it on your behalf on declared FATCA non-compliant holders for which you do not endorse primary withholding responsibilities; or
- Declare yourself as FATCA non-compliant.
We continue to monitor the implementation of FATCA and will provide more information as it becomes available.
1. Clearstream Banking refers collectively to Clearstream Banking AG, registered office at 61, Mergenthalerallee, 65760 Eschborn, Germany and registered in Register B of the Amtsgericht Frankfurt am Main, Germany under number HRB 7500 (CBF) and Clearstream Banking S.A., registered office at 42, avenue John F. Kennedy, L-1855 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies under number B-9248 (CBL).