IRS W-8 Forms

CFEG reports that it recently obtained e-mails pursuant to an order entered by the U.S. District Court for the District of Columbia where the IRS is producing documents on a monthly basis in response to Freedom of Information Act (FOIA) requests submitted by CFEG. These FOIAs requested records reflecting how 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), and Form W-8BEN-E (Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting Entities), were created by the IRS or Treasury Department, among other documents. The IRS recently produced e-mails exchanged in 2013 and 2014 between the Treasury, IRS Counsel and the Business Exempt Organization and the Business Exempt Organization and International Forms and Publications Branch which discuss proposed changes to these forms and instructions to the forms.

The Form W-8BEN-E is used by beneficiary owners (businesses only) that claim to be tax residents outside of the United States. The W-8IMY form is for foreign individuals who act as intermediaries rather than acting as beneficiary owners and the W-8EXP form is for any international organization, foreign government, foreign tax-exempt organization, foreign central bank of issue, foreign private foundation or government of a U.S. possession that is simply claiming exemption from the Foreign Account Tax Compliance Act (FATCA).

FATCA is a federal law which requires United States citizens including those living outside the U.S. to file yearly reports on their non-U.S. financial accounts to the Financial Crimes Enforcement Network (FINCEN). Additionally, it requires all non-U.S. (foreign) financial institutions (FFIs) to search their records for indicia indicating U.S. person-status and to report the assets and identities of such persons to the U.S. Department of the Treasury.

This information may be helpful to taxpayers who may be required to file these forms with the IRS and the public in understanding how the IRS functions or operates in the creation of tax forms.