W-8 and W-9 Forms for Private Funds
Wednesday, February 21, 2018 |
The Foreign Account Tax Compliance Act (FATCA) has effectively extended the need to complete US tax forms to any financial institution that opens a bank account, holds investments in the US or deals with a US-based supplier or customer. These W Series forms come in different formats. Which one applies to your entity and how do you know which fields to complete?
The point of W Forms
W Series forms have two main purposes:
- To certify the legal structure and tax status of the entity under Chapter 3 of the US tax code; and/or
- To certify the FATCA classification of the entity under Chapter 4 of the US tax code.
Many banks and firms who process these forms use software to check that they have been completed correctly and so will often reject forms that are incorrectly completed for Chapter 3 purposes even though the W Form is often simply being used as a certification for FATCA and the firm has nothing to do with the US tax system. The Inter-Governmental Agreements implementing FATCA in the UK and Channel Islands require entities to declare their status, but do not require the submission of W Series forms. Banks are thus legally permitted to accept FATCA certifications in any form and firms who are asked to complete excessive forms are legally within their rights to certify their FATCA status in any format and if in doubt should seek independent tax advice.
Which form to use
If you are under an obligation to complete a W Series form, which form should you use? Before considering the flow diagram below, remember that if you are completing the W Series form to certify your FATCA status and you do not have any US-sourced income, you will not necessarily need to complete a W-8IMY and Withholding Statement. This is set out in the instructions that the IRS publishes to explain these forms, normally on Page 2. When certifying only your status under FATCA you need only complete the name, address and Chapter 4 (FATCA) Status of your entity – then don’t forget to sign and date. The forms are fillable PDFs and it often helps the recipient if they are completed digitally.
The W-8IMY is in many ways the most complicated form and should only be used if you are a flow-through entity like a limited partnership, or an intermediary like a custodian. A flow-through entity passes income straight through to its beneficial owners. It is generally not taxable in its own right and the beneficial owners are taxed instead. Similarly, an intermediary is an entity that acts as an agent for another person, for example a custodian, broker or nominee. Many vehicles in a private fund structure may therefore complete a W-8IMY. However, unless they have US-source income, they are not required to complete their Chapter 3 status nor are they required to submit a withholding statement which is requested in the later parts of the form.
If the entity does have US-source income, it will be subject to withholding tax and should seek specialist US tax advice. It will also have to submit a withholding statement which states to the IRS how much it has paid to each of its beneficial owners and the US tax that it has retained or ‘withheld’ for payment to the IRS. Withholding tax is levied on the basis of both the type of income paid to the beneficial owners and the country where they are tax resident. There is no set format for a withholding statement but the IRS publishes some pointers and your tax adviser should be able to assist. You should not be completing a withholding statement unless you have US-source income that is paid to your beneficial owners.
If you are a US tax resident individual or entity then you should complete a form W-9. The only complicated parts of this form are whether you are a C or S corporation (a C Corporation is taxed separately from its owners and an S-Corp is not). In Section 4, Corporations and Financial Institutions are exempt from backup withholding (a kind of emergency withholding tax that is levied when investment income is earned rather than when it is paid to the account holder). You will normally also be exempt from FATCA reporting unless you maintain an account or an investment outside of the United States. If you are completing this form as a legal entity don’t forget to complete the exemption codes for these questions that you will find on page 3 and 4 of the form.
Non US Individuals (natural persons) should complete form W-8BEN. If you are completing this just to certify your FATCA status then you need to complete the name, address, tax ID in Part I and sign the certification. You should only complete Part II if you have US source income and are tax domiciled in a country that has a tax treaty with the IRS: www.IRS.gov/Individuals/International-Taxpayers/Tax-Treaties . Your tax adviser should help you to complete this section in light of your personal circumstances and the provisions of the specific tax treaty with the IRS.
Entities which do not fall into the above circumstances (for example a hybrid entity) should complete a W8-BEN-E form. If you have no US source income and are simply certifying for FATCA purposes you may skip question 4. A hybrid entity is an entity considered ‘fiscally transparent’ for US tax purposes (like a partnership) but is not transparent in its country of domicile. Limited partnerships are tax transparent in the US, UK, Channel Islands and many other countries so if you are completing this form on behalf of a private fund, chances are that you will tick "No" for question 4. The FATCA status of an entity should be established by an experienced tax advisor but some rules of thumb to remember for private fund structures are:
- Many main fund vehicles and carry vehicles will be Reporting Financial Institutions. Most countries are covered by a Model 1 IGA and the list can be found here: https://www.treasury.gov/resource-center/tax-policy/treaties/Pages/FATCA.aspx
- General Partners will only be exempted as Certified Deemed Compliant if they manage multiple unrelated fund structures. Typically a General Partner will classify as a Reporting Financial Institution under FATCA and CRS as it will only handle one or two related structures.
- A common mistake is to classify investment holding vehicles in a fund structure as Passive Non-Financial Foreign Entities (Passive NFFEs). In reality many Private Equity holdcos receive income and proceeds from companies that make and do things, generating active income. The nature of the income does not change as it flows up the structure to the fund and its investors, even if the holdco is simply holding assets and receiving proceeds. Classifying entities as Active NFFEs therefore mitigates the need to declare information on the owners and controllers of the vehicle. If in doubt, you will need to consult your independent tax adviser.
Finally, don’t forget to tick the box in the part indicated by your answer to Question 5 then sign and date the form.
W forms have become universal in the financial services sector since the introduction of FATCA in 2014 and they are one way, but not the only way, of certifying your status under FATCA to a bank or US-connected counterparty. The ID Register offers a complete FATCA support service and we can help you select and complete your W form so, if unsure, please contact us at email@example.com for further support.