Department

of the

Treasury

Internal

Revenue

Service

Jan 26, 2023

Publication 515

Cat. No. 15019L

Withholding of Tax on Nonresident Aliens and Foreign Entities

For use in 2023


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Contents

What's New. . . . . . . . . . . . . . . . . . 1

Reminders . . . . . . . . . . . . . . . . . . . 2

Introduction. . . . . . . . . . . . . . . . . . 2

Withholding of Tax . . . . . . . . . . . . . . 3 Persons Subject to Chapter 3 or

Chapter 4 Withholding . . . . . . . . . 4 Documentation . . . . . . . . . . . . . . . . 9 Income Subject to Withholding . . . . . 23 Withholding on Specific Income . . . . . 26

Foreign Governments and Certain

Other Foreign Organizations . . . . 39

U.S. or Foreign TINs . . . . . . . . . . . . 40

Depositing Withheld Taxes . . . . . . . . 41

Returns Required . . . . . . . . . . . . . . 42

Partnership Withholding on

Effectively Connected Income . . . 43

Section 1446(f) Withholding. . . . . . . 46

U.S. Real Property Interest . . . . . . . . 49

Definitions . . . . . . . . . . . . . . . . . . 53

Tax Treaties . . . . . . . . . . . . . . . . . 53

How To Get Tax Help. . . . . . . . . . . 54

Index. . . . . . . . . . . . . . . . . . . . . 57

Section references are to the Internal Revenue Code unless otherwise noted.

Future Developments

For the latest information about developments related to Pub. 515, such as legislation enacted after it was published, go to IRS.gov/Pub515.

What's New

Withholding and Reporting under sections 1446(a) and (f) starting in 2023. T.D. 9926 (85 FR 76910), published on November 30, 2020 (as corrected at 86 FR 13191), contains fi-nal regulations (section 1446(f) regulations) re-lating to the withholding and reporting required under section 1446(f) on transfers of interests in certain partnership interests, which include withholding requirements that apply to brokers effecting transfers of interests in publicly traded partnerships (PTPs). While section 1446(f) with-holding generally applies to transfers occurring on or after January 1, 2018, certain provisions

of the section 1446(f) regulations apply to trans-fers on or after January 1, 2023, including:

The requirements for withholding on trans-fers of interests in PTPs under section 1446(f)(1);

Certain changes to the withholding require-ments under Regulations section 1.1446-4 for distributions made by PTPs (PTP distri-butions), which include an allowance for Qualified Intermediaries (QIs) and U.S. branches to act as withholding agents for the distributions; and

Partnership withholding under section 1446(f)(4) on distributions to transferees of non-PTP interests that failed to properly withhold under section 1446(f)(1).

For further information regarding the effec-tive date of these provisions, see Notice 2021-51, 2021-36 I.R.B. 361, available at IRS.gov/irb/2021-36_IRB#NOT-2021-51.

Reminders

Central Withholding Agreement (CWA) sim-plified application process. We’ve tempora-rily waived the income requirement for which form to use when applying for a CWA. Form 13930-A is currently unavailable. While the waiver is in effect, individuals with income be-low $10,000 can apply for a CWA using Form 13930, Instructions on How to Apply for a Cen-tral Withholding Agreement PDF. For more in-formation on how to apply for a CWA, see Form 13930.

For more information, go to IRS.gov/ Individuals/International-Taxpayers/Central-Withholding-Agreements.

Deposit interest paid to certain nonresident alien individuals. Deposit interest of $10 or more paid to certain nonresident alien individu-als must be reported on Form 1042-S. See De-posit interest paid to certain nonresident alien individuals for more information.

Electronic deposits. You must make all de-posits of taxes paid with respect to Form 1042-S (including taxes withheld under either chapter 3 or chapter 4) electronically.

Filing electronically. To file Form 1042-S electronically, use the Filing Information Re-turns Electronically (FIRE) system at FIRE.IRS.gov.

When you submit files on the FIRE system, it is your responsibility to verify the results of the transmission within 5 business days. The IRS will not mail error reports for files that are bad. See Pub. 1187 for information on the require-ments for filing Form 1042-S electronically.

Note. The electronic filing of Form 1042 is expected to be available in 2023. Although not required, taxpayers can choose to file Form 1042 electronically. For general information about electronic filing, see Pub. 4163, Modern-ized e-file Information for Authorized IRS e-file Providers for Business Returns.

Requests for extensions on Form 8809. Re-quests on Form 8809 for an extension of time to file Form 1042-S should be made electronically. See Extension to file Form 1042-S with the IRS, later.

Page 2

If you have questions about Form 8809, call the IRS toll free at 866-455-7438 or 304-263-8700 (not toll free). Persons with a hearing or speech dis-

ability with access to TTY/TDD equipment can call 304-579-4827 (not toll free).

Photographs of missing children. The IRS is a proud partner with the National Center for Missing & Exploited Children® (NCMEC). Pho-tographs of missing children selected by the Center may appear in this publication on pages that would otherwise be blank. You can help bring these children home by looking at the photographs and calling 1-800 -THE-LOST (1-800-843-5678) if you recognize a child.

Introduction

This publication is for withholding agents who pay income to foreign persons, including non-resident aliens, foreign corporations, foreign partnerships, foreign trusts, foreign estates, for-eign governments, and international organiza-tions. Specifically, it describes the persons re-sponsible for withholding (withholding agents), the types of income subject to withholding, and the information return and tax return filing obli-gations of withholding agents. In addition to dis-cussing the rules that apply generally to pay-ments of U.S. source income to foreign persons, it also contains sections on the with-holding that applies to the disposition of U.S. real property interests (USRPI) and the with-holding by partnerships on income effectively connected with the active conduct of a U.S. trade or business.

Comments and suggestions. We welcome your comments about this publication and sug-gestions for future editions.

You can send us comments through IRS.gov/FormComments. Or, you can write to the Internal Revenue Service, Tax Forms and Publications, 1111 Constitution Ave. NW, IR-6526, Washington, DC 20224.

Although we can’t respond individually to each comment received, we do appreciate your feedback and will consider your comments and suggestions as we revise our tax forms, instruc-tions, and publications. Don’t send tax ques-tions, tax returns, or payments to the above ad-dress.

Getting answers to your tax questions. If you have a tax question not answered by this publication or the How To Get Tax Help section at the end of this publication, go to the IRS In-teractive Tax Assistant page at IRS.gov/ Help/ITA where you can find topics by using the search feature or viewing the categories listed.

Getting tax forms, instructions, and pub-lications. Go to IRS.gov/Forms to download current and prior-year forms, instructions, and publications.

Ordering tax forms, instructions, and publications. Go to IRS.gov/OrderForms to order current forms, instructions, and publica-tions; call 800-829-3676 to order prior-year forms and instructions. The IRS will process your order for forms and publications as soon

as possible. Don’t resubmit requests you’ve al-ready sent us. You can get forms and publica-tions faster online.

Useful Items

You may want to see:

Publication

15(Circular E), Employer's Tax Guide

15-A Employer's Supplemental Tax Guide

15-B Employer's Tax Guide to Fringe Benefits

15-T Federal Income Tax Withholding Methods

51(Circular A), Agricultural Employer's Tax Guide

505 Tax Withholding and Estimated Tax

519 U.S. Tax Guide for Aliens

901 U.S. Tax Treaties

1179 General Rules and Specifications for Substitute Forms 1096, 1098, 1099, 5498, and Certain Other Information Returns

1187 Specifications for Electronic Filing of Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding

5124 FATCA XML User Guide Form (and Instructions)

SS-4 Application for Employer Identification Number

W-2 Wage and Tax Statement

W-4 Employee's Withholding Allowance Certificate

W-4P Withholding Certificate for Pension or Annuity Payments

W-7 Application for IRS Individual Taxpayer Identification Number

W-8BEN Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and Reporting (Individuals)

W-8BEN-E Certificate of Status of Beneficial Owner for United States Tax Withholding and Reporting (Entities)

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

W-8EXP Certificate of Foreign Government or Other Foreign Organization for United States Tax Withholding and Reporting

W-8IMY Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. Branches for United States Tax Withholding and Reporting

Publication 515 (2023)

W-8 Inst. Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY

W-9 Request for Taxpayer Identification Number and Certification

W-9 Inst. Instructions for the Requester of Form W-9

941 Employer's QUARTERLY Federal Tax Return

945 Annual Return of Withheld Federal Income Tax

1042 Annual Withholding Tax Return for U.S. Source Income of Foreign Persons

1042-S Foreign Person's U.S. Source Income Subject to Withholding

withholding on a payment of U.S. source in-				any qualified intermediary (QI), withholding for-
come. Payments to foreign persons, including				eign partnership, or withholding foreign trust in
nonresident alien individuals, foreign entities,				accordance with the terms of its withholding
and governments, may be subject to chapter 3				agreement, discussed later.
withholding.				Liability for tax. As a withholding agent, you
Withholding may also be required on a pay-
				are personally liable for any tax required to be
ment to the extent required under chapter 4.
				withheld. This liability is independent of the tax
“Chapter 4” refers to chapter 4 of Subtitle A
				liability of the foreign person to whom the pay-
(sections 1471 through 1474). See Chapter 4
				ment is made. If you fail to withhold and the for-
Withholding Requirements			, later.
				eign payee fails to satisfy its U.S. tax liability,

!	Chapter 3 withholding, when refer-			then both you and the foreign person are liable
	enced in (and not provided otherwise)			for tax, as well as interest and any applicable
CAUTION	in this publication, does not include			penalties.
withholding under section 1445 (see U.S. Real				The applicable tax will be collected only
				once. If the foreign person satisfies its U.S. tax
Property Interest, later) or under section 1446
(see Partnership		Withholding on Effectively		liability, you are not liable for the tax but remain
				liable for any interest and penalties for failure to
Connected Income and Section 1446(f) With-
holding, later).				withhold.

1042-T Annual Summary and Transmittal of Forms 1042-S

13930 Instructions on how to apply for a Central Withholding Agreement

13930-A Application for Central Withholding Agreement Less than $10,000

8233 Exemption From Withholding on Compensation for Independent (and Certain Dependent) Personal Services of a Nonresident Alien Individual

8288 U.S. Withholding Tax Return for Certain Dispositions by Foreign Persons

8288-A Statement of Withholding on Certain Dispositions by Foreign Persons

8288-B Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests

8288-C Statement of Withholding Under Section 1446(f)(4) on Dispositions by Foreign Persons of Partnership Interests

8966 FATCA Report

See How To Get Tax Help at the end of this publication for information about getting publi-cations and forms.

Withholding of Tax

In most cases, a foreign person is subject to U.S. tax on its U.S. source income. Most types of U.S. source income received by a foreign person are subject to U.S. tax of 30%. A re-duced rate, including exemption, may apply if there is a tax treaty between the foreign per-son's country of residence and the United States. The tax is generally withheld (chapter 3 withholding) from the payment made to the for-

A withholding agent (defined next) is the person responsible for withholding on payments made to a foreign person. However, a withhold-ing agent that can reliably associate the pay-ment with documentation (discussed later) from a U.S. person is not required to withhold. In ad-dition, a withholding agent may apply a reduced rate of withholding (including an exemption from withholding) if it can reliably associate the payment with documentation from a beneficial owner that is a foreign person entitled to a re-duced rate of withholding.

If an amount subject to chapter 3 withhold-ing is also a withholdable payment and chap-ter 4 withholding is applied to the payment, no withholding is required under chapter 3. See Chapter 4 Withholding Requirements, later.

Withholding Agent

Chapter 3

Withholding Requirements

You are a withholding agent if you are a U.S. or foreign person, in whatever capacity acting, that has control, receipt, custody, disposal, or pay-ment of an amount subject to chapter 3 with-holding. A withholding agent may be an individ-ual, corporation, partnership, trust, association, nominee (under section 1446), or any other en-tity, including any foreign intermediary, foreign partnership, or U.S. branch of certain foreign banks and insurance companies. You may be a withholding agent even if there is no require-ment to withhold from a payment or even if an-other person has withheld the required amount from the payment.

Although several persons may be withhold-ing agents for a single payment, the full tax is required to be withheld only once. In most ca-ses, the U.S. person who pays an amount sub-ject to chapter 3 withholding is the person re-sponsible for withholding. However, other persons may be required to withhold. For exam-ple, a payment made by a flow-through entity or

Determination of amount to withhold. You must withhold on the gross amount subject to chapter 3 withholding. You cannot reduce the gross amount by any deductions.

If the determination of the source of the in-come or the amount subject to tax depends on facts that are not known at the time of payment, you must withhold an amount sufficient to en-sure that at least 30% of the amount subse-quently determined to be subject to withholding is withheld. In no case, however, should you withhold more than 30% of the total amount paid. You may elect to hold 30% of the payment in escrow until the earlier of the date that the amount of income from U.S. sources or the tax-able amount can be determined or 1 year from the date the amount is placed in escrow, at which time the withholding becomes due, or, to the extent that withholding is not required, the escrowed amount must be paid to the payee.

When to withhold. Withholding is required at the time you make a payment of an amount subject to withholding. A payment is made to a person if that person realizes income, whether or not there is an actual transfer of cash or other property. A payment is considered made to a person if it is paid for that person's benefit. For example, a payment made to a creditor of a person in satisfaction of that person's debt to the creditor is considered made to the person. A payment is also considered made to a person if it is made to that person's agent.

A U.S. partnership should withhold when any distributions that include amounts subject to withholding are made. However, if a foreign partner's distributive share of income subject to withholding is not actually distributed, the U.S. partnership must withhold on the foreign part-ner's distributive share of the income on the earlier of the date that a Schedule K-1 (Form 1065) is furnished or mailed to the partner or the due date for furnishing that schedule. If the distributable amount consists of effectively con-nected income (ECI), see Partnership Withhold-ing on Effectively Connected Income, later.

eign person.

The term “chapter 3 withholding” is used in this publication descriptively to refer to with-holding required under sections 1441, 1442, and 1443. In most cases, chapter 3 withholding describes the withholding regime that requires

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nonqualified intermediary (NQI) that knows, or	A U.S. trust is required to withhold on the
has reason to know, that the full amount of	amount includible in the gross income of a for-
chapter 3 withholding was not done by the per-	eign beneficiary to the extent the trust's distrib-
son from which it receives a payment is re-	utable net income consists of an amount sub-
quired to do the appropriate withholding since it	ject to withholding. To the extent a U.S. trust is
also falls within the definition of a withholding	required to distribute an amount subject to with-
agent. In addition, withholding must be done by	holding but does not actually distribute the
	Page 3

amount, it must withhold on the foreign benefi-ciary's allocable share at the time the income is required to be reported on Form 1042-S.

Chapter 4

Withholding Requirements

You are a withholding agent for purposes of chapter 4 if you are a U.S. or foreign person, in whatever capacity you are acting, that has con-trol, receipt, custody, disposal, or payment of a withholdable payment. Similar rules for deter-mining who is a withholding agent as those de-scribed in Chapter 3 Withholding Require-ments, earlier, also apply for chapter 4. For purposes of chapter 4, a withholding agent in-cludes a participating foreign financial institution (FFI) (including a reporting Model 2 FFI) or reg-istered deemed-compliant FFI to the extent such FFI makes a withholdable payment.

Under chapter 4 a withholding agent that makes a withholdable payment to a payee that is an FFI must withhold 30% on the payment unless the withholding agent is able to treat the FFI as a participating FFI, deemed-compliant FFI, or exempt beneficial owner. A withholding agent must also withhold 30% on a withholda-ble payment made to a payee that is a foreign entity other than an FFI (that is, a nonfinancial foreign entity, or NFFE) that fails to identify its substantial U.S. owners (or certify that it does not have any substantial U.S. owners) unless the payment is excepted from withholding un-der the regulations to section 1472. A participat-ing FFI is a withholding agent under chapter 4 and is required to withhold on a withholdable payment to the extent required under the FFI agreement, including on a payment made to an account holder that the FFI is required to treat as a recalcitrant account holder. A reporting Model 1 FFI is required to withhold under chap-ter 4 to the extent required in the applicable In-tergovernmental Agreement (IGA). A registered deemed-compliant FFI (other than a reporting Model 1 FFI) is required to withhold under chapter 4 to the extent required under the con-ditions applicable to its registered deemed-compliant FFI status. See Regulations section 1.1471-5(f)(1) for a description of the types of registered deemed-compliant FFIs that may have withholding requirements.

Generally, a withholdable payment is a pay-ment of U.S. source fixed or determinable an-nual or periodical (FDAP) income. Specific ex-ceptions to withholdable payments apply instead of the exemptions from withholding or taxation provided under chapter 3. See Income Subject to Withholding, later, for more informa-tion on payments of U.S. source FDAP income that are excepted from the definition of with-holdable payment.

If a withholding agent makes a payment subject to both chapter 4 withholding and chap-ter 3 withholding, the withholding agent must apply the withholding provisions of chapter 4, and need not withhold on the payment under chapter 3 to the extent that it has withheld under chapter 4.

Similar rules for withholding agent liability for tax, determination of amount to withhold, and

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when to withhold as those described in Chap-ter 3 Withholding Requirements, earlier, also apply for chapter 4.

Forms 1042 and 1042-S Reporting Obligations

You are required to report payments subject to chapter 3 withholding on Form 1042-S and to file a tax return on Form 1042. (See Returns Required, later.) You are also required to report withholdable payments to which chapter 4 with-holding was (or should have been) applied on Form 1042-S and to file a tax return on Form 1042 to report the payments. An exception from reporting may apply for chapter 3 purposes to individuals who are not required to withhold from a payment and who do not make the pay-ment in the course of their trade or business. A similar exception from reporting for chapter 4 purposes may apply to an individual making a withholdable payment outside the course of the individual’s trade or business (including as an agent with respect to making or receiving such payment).

Withholding and Reporting Obligations (Other Than Forms 1042 and 1042-S Reporting for Chapter 3 or 4 purposes)

Form 1099 reporting and backup withhold-ing. You may also be responsible as a payer for reporting payments to a U.S. person, gener-ally on Form 1099. You must withhold 24% (backup withholding rate) from certain reporta-ble payments made to a U.S. person that is subject to Form 1099 reporting if any of the fol-lowing apply.

The U.S. person has not provided its tax-payer identification number (TIN) in the manner required.

The IRS notifies you that the TIN furnished by the payee is incorrect.

There has been a notified payee underre-porting.

There has been a payee certification fail-ure.

In most cases, a TIN must be provided by a U.S. nonexempt recipient (a U.S. person sub-ject to Form 1099 reporting) on Form W-9.

A payer files a tax return on Form 945 to re-port backup withholding.

You may be required to file Form 1099 and, if appropriate, backup withhold, even if you do not make the payments directly to that U.S. per-son. For example, you are required to report in-come paid to a foreign intermediary or flow-through entity that collects for a U.S. per-son subject to Form 1099 reporting. However, you may not be required to report on Form 1099 if you make a payment to a participating FFI or registered deemed-compliant FFI that provides a withholding statement allocating the payment to a chapter 4 withholding rate pool of U.S. pay-ees. See Identifying the Payee, later, for more information. Also see Section S. Special Rules for Reporting Payments Made Through Foreign Intermediaries and Foreign Flow-Through

Entities on Form 1099 in the General Instruc-tions for Certain Information Returns.

Foreign persons who provide a valid TIP Form W-8 (or applicable documentary evidence when permitted in lieu of a Form W-8) are exempt from backup withholding

and Form 1099 reporting.

Form 8966 reporting. For chapter 4 purpo-ses, you may be required to report on Form 8966, FATCA Report, if you make a withholda-ble payment to an entity you agree to treat as an owner-documented FFI or to a passive NFFE. See Returns Required, later.

Wages paid to employees. If you are the em-ployer of a nonresident alien, you must gener-ally withhold taxes at graduated rates. See Pay for Personal Services Performed, later.

Effectively connected income by partner-ships. A withholding agent that is a partnership (whether U.S. or foreign) is also responsible for withholding on its income effectively connected with a U.S. trade or business that is allocable to foreign partners. In the case of a publicly traded partnership, however, either the partnership or a nominee may be responsible for this withhold-ing, as applied to distributions by the partner-ship (PTP distributions). See Partnership With-holding on Effectively Connected Income, later, for more information.

Transfers of interests in partnerships en-gaged in the conduct of a U.S. trade or business. A withholding agent is also respon-sible for withholding on the amount realized on the transfer by a foreign partner of an interest in a partnership (domestic or foreign) engaged in the conduct of a U.S. trade or business. See Section 1446(f) Withholding, later, for more in-formation, including withholding requirements applicable to brokers effecting transfers of PTP interests.

U.S. real property interest (USRPI). A with-holding agent may also be responsible for with-holding if a foreign person transfers a USRPI to the agent, or if it is a corporation, partnership, trust, or estate that distributes a USRPI to a shareholder, partner, or beneficiary that is a for-eign person. See U.S. Real Property Interest, later.

Persons Subject to Chapter 3 or Chapter 4 Withholding

Chapter 3 withholding applies only to payments made to a payee that is a foreign person. It does not apply to payments made to U.S. per-sons.

Usually, you determine the payee's status as a U.S. or foreign person or, if you are making a withholdable payment to an entity (or are an FFI making a payment to an account holder), the payee's chapter 4 status, based on the doc-umentation that person provides. See Docu-mentation, discussed later. However, if you have received no documentation or you cannot

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reliably associate all or a part of a payment with documentation upon which you can rely, then you must apply certain presumption rules, dis-cussed later.

Chapter 4 withholding applies to withholda-ble payments made to an entity payee that is an FFI unless the withholding agent is able to treat the FFI as a participating FFI, deemed-compli-ant FFI, or exempt beneficial owner. Chapter 4 withholding also applies to withholdable pay-ments made to a passive NFFE that fails to identify its substantial U.S. owners (or certify that it does not have any substantial U.S. own-ers). You must establish the payee’s chapter 4 status to determine if withholding applies by ap-plying the documentation requirements of chap-ter 4, generally by obtaining a Form W-8 (or, un-der an applicable IGA, a similar agreed form) associated with the payment, or other docu-mentation for payments made outside of the United States on offshore obligations. See Reg-ulations section 1.1471-3(d) for details on these documentation requirements. Withholding un-der chapter 4 also applies to account holders of a participating FFI or registered deemed-com-pliant FFI that the FFI is required to treat as re-calcitrant account holders.

This section applies to both chapters 3 and 4 except where otherwise indicated and except where the text clearly applies to one or the other (for example, reduced rates and exemptions under income tax treaties).

Identifying the Payee

In most cases, the payee is the person to whom you make the payment, regardless of whether that person is the beneficial owner of the in-come. However, there are situations in which the payee is a person other than the one to whom you actually make a payment.

U.S. agent of foreign person. For purposes of chapter 3, if you make a payment to a U.S. person and you have actual knowledge that the U.S. person is receiving the payment as an agent of a foreign person, you must treat the payment as made to the foreign person. How-ever, if the U.S. person is a financial institution, you may treat the institution as the payee provi-ded you have no reason to believe that the insti-tution will not comply with its own obligation to withhold under chapter 3.

For chapter 4 purposes, if you make a with-holdable payment to a U.S. person and you have actual knowledge that the U.S. person is receiving the payment as an intermediary or agent of a foreign person, you must treat the foreign person as the payee. However, if you make a withholdable payment to a U.S. finan-cial institution or a U.S. insurance broker (to the extent the withholdable payment is a payment of an insurance premium) that is receiving the payment as an intermediary or agent, you may treat the financial institution or insurance broker as the payee if you do not have reason to know that the financial institution or insurance broker will not comply with its obligations to withhold under chapter 4. See Definitions, later, for the definition of financial institution.

If the payment is not subject to chapter 3 withholding and is not a withholdable payment,

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you must treat the payment as made to a U.S. person and not as a payment to a foreign per-son. You may be required to report the payment on Form 1099 and, if applicable, backup with-hold.

Disregarded entities. In general, a business entity that is not a corporation and that has a single owner may be disregarded as an entity separate from its owner (a disregarded entity) for federal tax purposes. The payee of a pay-ment made to a disregarded entity is the owner of the entity.

If the owner of the entity is a foreign person, you must apply chapter 3 withholding unless you can treat the foreign owner as a beneficial owner entitled to a reduced rate of withholding.

If the owner is a U.S. person, you do not ap-ply chapter 3 withholding. However, you may be required to report the payment on Form 1099 and, if applicable, backup withhold. You may assume that a foreign entity is not a disregar-ded entity unless you can reliably associate the payment with documentation provided by the owner or you have actual knowledge or reason to know that the foreign entity is a disregarded entity.

Special chapter 4 rules. If you make a with-holdable payment to a disregarded entity owned by an FFI, for chapter 4 purposes you must determine whether you must treat the pay-ment as made to a payee that is a nonpartici-pating FFI (to which chapter 4 withholding ap-plies) or a payee that is an FFI with another chapter 4 status (such as a participating FFI). If you make a withholdable payment to a disre-garded entity that is treated as a disregarded entity that is a branch of an FFI that cannot comply with the requirements of an applicable IGA or the regulations under chapter 4, you must treat the payment as made to a nonpartici-pating FFI and withhold 30% of the payment. See the Instructions for Form W-8BEN-E for more information on payments to disregarded entities.

Flow-Through Entities

Chapter 3 payees. The payees of payments (other than income effectively connected with a U.S. trade or business and dispositions of inter-ests in partnerships engaged in a trade or busi-ness within the United States) made to a foreign flow-through entity are the owners or beneficia-ries of the flow-through entity. This rule applies for purposes of chapter 3 withholding and for Form 1099 reporting and backup withholding. Income that is, or is deemed to be, effectively connected with the conduct of a U.S. trade or business of a flow-through entity is treated as paid to the entity.

The following are flow-through entities.

A foreign partnership (other than a with-holding foreign partnership).

A foreign simple or foreign grantor trust (other than a withholding foreign trust).

If the chapter 3 payee is a disregarded entity or flow-through entity for U.S. tax purposes, but the payee is claiming treaty benefits, see Fis-cally transparent entities claiming treaty bene-fits, later.

Chapter 4 payees. For purposes of chapter 4, however, a foreign entity that is a flow-through entity is a payee with respect to a payment (other than income effectively connected with the conduct of a U.S. trade or business) if the flow-through entity is:

An FFI that is not a participating FFI or deemed-compliant FFI, or restricted dis-tributor (an entity that operates as a distrib-utor that holds debt or equity interests in a restricted fund as a nominee and meets the requirements described in Regulations section 1.1471-5(f)(4)) receiving the pay-ment on behalf of its owners (in such a case, the entity is a nonparticipating FFI subject to withholding under chapter 4); or

An excepted NFFE that is not acting as an agent or intermediary with respect to the payment.

If you make a withholdable payment to a flow-through entity that is not one of the types described above, you must treat the partner, beneficiary, or owner (as applicable) of the flow-through entity as the payee for chapter 4 purposes (similar to the determination of the payee for chapter 3 purposes) (looking through partners, beneficiaries, and owners that are themselves flow-through entities that are not one of the types described above).

In most cases, you treat a payee as a flow-through entity if it provides you with a Form W-8IMY (see Documentation, later) on which it claims such status. You may also be required to treat the entity as a flow-through entity under the presumption rules, discussed later.

For purposes of chapter 3, you must deter-mine whether the owners or beneficiaries of a flow-through entity are U.S. or foreign persons, how much of the payment relates to each owner or beneficiary, and, if the owner or beneficiary is foreign, whether a reduced rate of chapter 3 withholding applies. For purposes of chapter 4, you must determine the chapter 4 status of the owners or beneficiaries of a flow-through entity (subject to the exceptions described above), how much of the payment relates to each owner or beneficiary, and whether withholding under chapter 4 applies. You make these determina-tions based on the documentation and other in-formation (contained in a withholding state-ment) that is associated with the flow-through entity's Form W-8IMY. If you do not have all of the information that is required to reliably asso-ciate a payment with a specific payee, you must apply the presumption rules. See Documenta-tion and Presumption Rules, later.

Withholding foreign partnerships and with-holding foreign trusts are not flow-through enti-ties.

Foreign partnerships. A foreign partnership is any partnership (including an entity classified as a partnership) that is not organized under the laws of any state of the United States or the Dis-trict of Columbia or any partnership that is trea-ted as foreign under the income tax regulations. If a foreign partnership is not a withholding for-eign partnership, the payees of income are the partners of the partnership, provided the part-ners are not themselves flow-through entities or foreign intermediaries. However, the payee is the partnership itself if the partnership is claim-ing treaty benefits on the basis that it is not

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treated as fiscally transparent in the treaty juris-diction and that it meets all the other require-ments for claiming treaty benefits. If a partner is a foreign flow-through entity or a foreign inter-mediary, you apply the payee determination rules to that partner to determine the payees.

For purposes of chapter 4, a foreign partner-ship is a payee of a withholdable payment if the partnership is a withholding foreign partnership that is not acting as an agent or intermediary with respect to the payment. If the partnership is not a withholding foreign partnership, the pay-ees are the partners (looking through any part-ners that are flow-through entities that are not treated as payees under the chapter 4 regula-tions).

Example 1. A nonwithholding foreign part-nership has three partners: a nonresident alien individual, a foreign corporation, and a U.S. citi-zen. You make a payment of U.S. source inter-est to the partnership. Assume that the payment is subject to chapter 3 withholding but is not a withholdable payment. The partnership gives you a Form W-8IMY with which it associates Form W-8BEN from the nonresident alien, Form W-8BEN-E from the foreign corporation, and Form W-9 from the U.S. citizen. The partnership also gives you a complete withholding state-ment that enables you to associate a part of the interest payment to each partner.

You must treat all three partners as the pay-ees of their part of the interest payment as if the payment were made directly to them. Report the payments to the nonresident alien and the foreign corporation on Forms 1042 -S. Report the payment to the U.S. citizen on Form 1099-INT. You do not need to determine the chapter 4 status of the partnership because the payment is not a withholdable payment.

Example 2. A nonwithholding foreign part-nership has two partners: a foreign corporation and a nonwithholding foreign partnership. The second partnership has two partners, both non-resident alien individuals. You make a payment of U.S. source interest to the first partnership. Assume that the payment is subject to chap-ter 3 withholding but is not a withholdable pay-ment. The partnership gives you a valid Form W-8IMY with which it associates a Form W-8BEN-E from the foreign corporation and a Form W-8IMY from the second partnership. In addition, Forms W-8BEN from the partners are associated with the Form W-8IMY from the sec-ond partnership. The Forms W-8IMY from the partnerships have complete withholding state-ments associated with them. Because you can reliably associate a part of the interest payment with the Form W-8BEN-E provided by the for-eign corporation and the Forms W-8BEN provi-ded by the nonresident alien individual partners as a result of the withholding statements, you must treat them as the payees of the interest. You do not need to determine the chapter 4 sta-tus of the partnership because the payment is not a withholdable payment.

Example 3. You make a payment of U.S. source dividends to a withholding foreign part-nership. Assume that the payment is subject to chapter 3 withholding and is not a withholdable payment. The partnership has two partners, both foreign corporations. You can reliably

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associate the payment with a valid Form W-8IMY from the partnership on which it repre-sents that it is a withholding foreign partnership. You must treat the partnership as the payee of the dividends for purposes of both chapter 3 and chapter 4, and you must determine the chapter 4 status of the partnership.

Foreign simple and grantor trust. A trust is foreign unless it meets both of the following tests.

A court within the United States is able to exercise primary supervision over the ad-ministration of the trust.

One or more U.S. persons have the au-thority to control all substantial decisions of the trust.

In most cases, a foreign simple trust is a for-eign trust that is required to distribute all of its income annually. A foreign grantor trust is a for-eign trust that is treated as a grantor trust under sections 671 through 679.

The payees of a payment made to a foreign simple trust are the beneficiaries of the trust. The payees of a payment made to a foreign grantor trust are the owners of the trust. How-ever, the payee is the foreign simple or grantor trust itself if the trust is claiming treaty benefits on the basis that it is not fiscally transparent and that it meets all the other requirements for claiming treaty benefits. If the beneficiaries or owners are themselves flow-through entities or foreign intermediaries, you apply the payee de-termination rules to that beneficiary or owner to determine the payees.

Example. A foreign simple trust has three beneficiaries: two nonresident alien individuals and a U.S. citizen. You make a payment of U.S. source interest to the foreign trust. Assume that the payment is subject to chapter 3 withholding but is not a withholdable payment. The foreign trust gives you a Form W-8IMY with which it as-sociates Forms W-8BEN from the nonresident aliens and a Form W-9 from the U.S. citizen. The trust also gives you a complete withholding statement that enables you to associate the in-terest payment with the forms provided by each beneficiary. You must treat all three beneficia-ries as the payees of their part of the interest payment as if the payment were made directly to them. Report the payment to the nonresident aliens on Forms 1042-S. Report the payment to the U.S. citizen on Form 1099-INT. You do not need to establish the chapter 4 status of the trust because the payment is not a withholdable payment.

Fiscally transparent entities claiming treaty benefits. For purposes of claiming treaty ben-efits, if an entity is fiscally transparent for U.S. tax purposes (for example, a disregarded entity or flow-through entity for U.S. tax purposes) and the entity is or is treated as a resident of a treaty country, it will derive the item of income and may be eligible for treaty benefits. In such case, the entity is the payee for chapter 3 purposes. It does not need to be taxed on such item, but the item must be accounted for as the entity's in-come, not the interest holders' income, under the law of the treaty country whose treaty it is in-voking. It must also meet any other require-ments for claiming benefits, including a limita-tion on benefits article, if any, in the treaty. The

entity should provide a Form W-8BEN-E in such circumstances. If, for chapter 3 purposes, the payee is a foreign corporation or other non-flow-through entity for U.S. tax purposes, it is nonetheless not entitled to claim treaty bene-fits if the entity is fiscally transparent in its coun-try of residence (that is, a foreign reverse hy-brid). Instead, any interest holder resident in that country will derive its allocable share of the items of income paid to the foreign reverse hy-brid and may be eligible for benefits. If an inter-est holder is a resident of a third country, the in-terest holder may claim treaty benefits under its treaty with the United States, if any, only if the foreign reverse hybrid is fiscally transparent un-der the laws of the third country. If an interest holder is entitled to treaty benefits under its country of residence, the payee may provide a Form W-8IMY and attach Form W-8BEN or W-8BEN-E from any interest holder that claims treaty benefits on such income.

The determination of whether an entity is fis-cally transparent is made on an item of income basis (that is, the determination is made sepa-rately for interest, dividends, royalties, etc.). An interest holder in an entity makes the determi-nation by applying the laws of the jurisdiction where the interest holder is organized, incorpo-rated, or otherwise considered a resident. An entity is considered to be fiscally transparent with respect to the income to the extent the laws of that jurisdiction require the interest holder to separately take into account on a cur-rent basis the interest holder's share of the in-come, whether or not distributed to the interest holder, and the character and source of the in-come to the interest holder are determined as if the income was realized directly from the source that paid it to the entity. Subject to the Standards of Knowledge for Purposes of Chap-ter 3 and Standards of Knowledge for Purposes of Chapter 4, discussed later, you generally make the determination that an entity is fiscally transparent based on a Form W-8IMY provided by the entity.

For chapter 3 purposes, the payees of a payment made to a fiscally transparent entity are the interest holders of the entity if the inter-est holders are claiming treaty benefits with re-spect to the payment.

For chapter 4 purposes, if you are making a withholdable payment to a fiscally transparent entity, you must apply the rules of chapter 4 to determine the payee (applying the rules descri-bed earlier) and whether chapter 4 withholding applies to the payment based on the payee’s chapter 4 status. Thus, chapter 4 withholding may apply to a withholdable payment made to a fiscally transparent entity based on the chap-ter 4 status of the entity even when the interest holders in the entity would be eligible for re-duced withholding under an income tax treaty with respect to the payment. Treaty benefits may be granted to the interest holder when the payment made is not subject to chapter 4 with-holding based on the chapter 4 status of both the entity and the interest holder.

Example. Entity A is a business organiza-tion organized under the laws of country X that has an income tax treaty in force with the United States. A has two interest holders, B and C. B is a corporation organized under the laws of coun-try Y. C is a corporation organized under the

Publication 515 (2023)

laws of country Z. Both countries Y and Z have an income tax treaty in force with the United States.

A receives royalty income from U.S. sources that is not effectively connected with the con-duct of a trade or business in the United States and that is not a withholdable payment. The chapter 4 status of A does not need to be deter-mined because the payment is not a withholda-ble payment.

For U.S. income tax purposes, A is treated as a partnership. Country X treats A as a part-nership and requires the interest holders in A to separately take into account on a current basis their respective shares of the income paid to A even if the income is not distributed. The laws of country X provide that the character and source of the income to A's interest holders are determined as if the income were realized di-rectly from the source that paid it to A. Accord-ingly, A is fiscally transparent in its jurisdiction, country X.

B and C are not fiscally transparent under the laws of their respective countries of incorpo-ration. Country Y requires B to separately take into account on a current basis B's share of the income paid to A, and the character and source of the income to B is determined as if the in-come were realized directly from the source that paid it to A. Accordingly, A is fiscally trans-parent for that income under the laws of country Y, and B is treated as deriving its share of the U.S. source royalty income for purposes of the U.S.–Y income tax treaty. Country Z, on the other hand, treats A as a corporation and does not require C to take into account its share of A's income on a current basis whether or not distributed. Therefore, A is not treated as fis-cally transparent under the laws of country Z. Accordingly, C is not treated as deriving its share of the U.S. source royalty income for pur-poses of the U.S.–Z income tax treaty.

Foreign Intermediaries

In most cases, if you make payments to a for-eign intermediary, the payees are the persons for whom the foreign intermediary collects the payment, such as account holders or custom-ers, not the intermediary itself. This rule applies for purposes of chapter 3 withholding and for Form 1099 reporting and backup withholding and chapter 4 withholding, provided the inter-mediary is not a nonparticipating FFI to which you make a withholdable payment to which chapter 4 withholding applies. You may, how-ever, treat a QI that has assumed primary with-holding responsibility for a payment as the payee, and you are not required to withhold.

An intermediary is a custodian, broker, nom-inee, or any other person that acts as an agent for another person. A foreign intermediary is ei-ther a QI or an NQI. In most cases, you deter-mine whether an entity is a QI or an NQI based on the representations the intermediary makes on Form W-8IMY.

For purposes of chapter 3, you must deter-mine whether the customers or account holders of a foreign intermediary are U.S. or foreign per-sons and, if the account holder or customer is foreign, whether a reduced rate of, or exemp-tion from, chapter 3 withholding applies. For

Publication 515 (2023)

purposes of chapter 4, you must generally de-termine the chapter 4 status of the account holders of a foreign intermediary if the payment is a withholdable payment. The determination for chapter 3 purposes is not required when withholding applies under chapter 4 (that is, when the chapter 4 status of the foreign inter-mediary is a nonparticipating FFI or an entity or branch treated as a nonparticipating FFI under an applicable IGA). You make these determina-tions based on the foreign intermediary's Form W-8IMY and associated information and docu-mentation. If you do not have all of the informa-tion or documentation that is required to reliably associate a payment with a payee, you must apply the presumption rules of chapter 3, and must apply the presumption rules of chapter 4 to the foreign intermediary if the chapter 4 sta-tus of the entity (when required) cannot be de-termined. See Documentation and Presumption Rules, later.

Special rule for chapter 4. For purposes of chapter 4, a foreign person acting as an inter-mediary is generally not the payee if the foreign person is:

An NFFE, unless the NFFE is a QI that has assumed primary chapters 3 and 4 with-holding responsibility; or

A participating FFI, deemed-compliant FFI, or restricted distributor, unless such entity is a QI that has assumed primary chapters 3 and 4 withholding responsibility.

If you make a withholdable payment to one of the types of entities described above, the payee is the person for whom the agent or inter-mediary collects the payment.

Nonqualified intermediary (NQI). An NQI is any intermediary that is a foreign person and that is not a QI. The payees of a payment made to an NQI for both chapter 3 and chapter 4 pur-poses are the customers or account holders on whose behalf the NQI is acting.

Example. You make a payment of interest to a foreign bank that is an NQI. Assume the payment is subject to chapter 3 withholding but is not a withholdable payment. The bank gives you a Form W-8IMY, the Forms W-8BEN of two foreign persons, and a Form W-9 from a U.S. person for whom the bank is collecting the pay-ments. The bank also associates with its Form W-8IMY a withholding statement on which it al-locates the interest payment and provides all other information required to be on the with-holding statement. The account holders are the payees of the interest payment. You should re-port the part of the interest paid to the two for-eign persons on Forms 1042-S and the part paid to the U.S. person on Form 1099-INT. You do not need to establish the chapter 4 status of the NQI because the payment is not a withhold-able payment.

Qualified intermediary (QI). A QI is generally a foreign intermediary (or foreign branch of a U.S. intermediary) that has entered into a QI agreement (discussed later) with the IRS. Cer-tain entities may also act as QIs even when they are not intermediaries. You may treat a QI as a payee to the extent it assumes primary chapters 3 and 4 withholding responsibility or primary Form 1099 reporting and backup withholding

responsibility for a payment. In this situation, the QI is required to withhold the tax. You can determine whether a QI has assumed responsi-bility from the Form W-8IMY provided by the QI.

A payment to a QI to the extent it does not assume primary chapters 3 and 4 withholding responsibility is considered made to the person on whose behalf the QI acts. If a QI does not assume Form 1099 reporting and backup with-holding responsibility, you must report on Form 1099 and, if applicable, backup withhold as if you were making the payment directly to the U.S. person. See Qualified Intermediary (QI), later, for a discussion of withholding rate pools and when a QI may include a U.S. nonexempt recipient in a U.S. payee pool.

Additionally, starting January 1, 2023, a QI may also assume primary withholding responsi-bilities with respect to PTP distributions (includ-ing withholding under section 1446(a)) and transfers of PTP interests for section 1446(f) purposes. For discussion of those provisions, see Publicly Traded Partnership Distributions (PTP Distributions) and Section 1446(f): PTP Interests, later.

Qualified derivatives dealers (QDDs). For the definition of QDD, see Qualified deriva-tives dealer (QDD), later. For QDD liability, see Amounts paid to QDDs, later.

Branches of financial institutions. Branches of financial institutions are not permit-ted to operate as QIs if they are located outside of countries having approved “know-your-cus-tomer” (KYC) rules. The countries with ap-proved KYC rules are listed at IRS.gov/ Businesses/International-Businesses/List-of-Approved-KYC-Rules.

QI agreement. FFIs, foreign clearing or-ganizations, and foreign branches of U.S. finan-cial institutions or clearing organizations can enter into an agreement with the IRS to become a QI. An eligible entity (as defined in Regula-tions section 1.1441-1(e)(6)(ii)) may also enter into a QI agreement for purposes of becoming a QDD. To enter into a QI agreement, an FFI must have a chapter 4 status as:

A participating FFI (including a reporting Model 2 FFI);

A registered deemed-compliant FFI (in-cluding a reporting Model 1 FFI and a non-reporting Model 2 FFI treated as registered deemed-compliant); or

An FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and report-ing requirements with respect to U.S. ac-counts as those applicable to a registered deemed-compliant FFI (a “registered deemed-compliant Model 1 IGA FFI”).

Certain foreign corporations that are NFFEs acting on behalf of persons other than share-holders or foreign central banks of issue may also apply to the IRS to become QIs.

See Revenue Procedure 2022-43, 2022-52 I.R.B. 570, available at IRS.gov/irb/ 2022-43_IRB#RP-2022-52, for more informa-tion on becoming a QI.

An entity may apply for QI status at IRS.gov/ Businesses/Corporations/Qualified-Intermediary-System.

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Note. A QI (other than an NFFE acting on behalf of persons other than shareholders and certain central banks) must also register at IRS.gov/FATCA to obtain its applicable chap-ter 4 status and global intermediary identifica-tion number (GIIN).

Documentation requirements. For docu-mentation requirements applicable to payments made to QIs, for chapter 3 and 4 purposes, see Responsibilities and Documentation, discussed later under Qualified Intermediary (QI).

Reporting requirements. For the report-ing requirements of QIs, see Form 1042-S re-porting and Collective refund procedures, dis-cussed later under Qualified Intermediary (QI).

U.S. branches of foreign banks and foreign insurance companies. Special rules apply to a U.S. branch of a foreign bank subject to Fed-eral Reserve Board supervision or a foreign in-surance company subject to state regulatory supervision. If you make a payment of an amount subject to chapter 3 withholding or a withholdable payment to a U.S. branch of a for-eign bank or insurance company that agrees to be treated as a U.S. person, you may treat the U.S. branch as a payee that is a U.S. person, provided you receive a Form W-8IMY from the U.S. branch that you can reliably associate with the payment. If you treat the branch as a U.S. person, you are not required to withhold on an amount subject to chapter 3 withholding or a withholdable payment. Even though you agree to treat the branch as a U.S. person, you must report the payments made to the branch on Form 1042-S.

A territory financial institution is a financial institution as defined for chapter 4 purposes

the payment as a payment to a foreign person of income that is effectively connected with the conduct of a trade or business in the United States. If you cannot reliably associate the pay-ment with a Form W-8IMY from the U.S. branch and you have not obtained an EIN for the branch, you should treat the payment as a pay-ment to a foreign person of income that is not effectively connected with the conduct of a trade or business in the United States.

Withholding foreign partnership and with-holding foreign trust. A withholding foreign partnership (WP) is any foreign partnership that has entered into a WP agreement with the IRS and is acting in that capacity with respect to its partners. A withholding foreign trust (WT) is a foreign simple or grantor trust that has entered into a WT agreement with the IRS and is acting in that capacity with respect to its owners and beneficiaries. In order to enter into a WP or WT agreement with the IRS, a WP or WT that is an FFI must have chapter 4 status as a:

Participating FFI (including a reporting Model 2 FFI),

Registered-deemed compliant FFI (includ-ing a reporting Model 1 FFI and a nonrep-orting Model 2 FFI treated as registered deemed compliant),

Registered deemed-compliant Model 1 IGA FFI, or

Retirement fund.

A WP or WT that is an NFFE may also enter into a WP or WT agreement with the IRS. An FFI that is a foreign reverse hybrid entity may apply to enter into a WP agreement, provided that the FFI is a participating FFI, a registered deemed-compliant FFI, or a registered deemed-compliant Model 1 IGA FFI.

A WP or WT that is an FFI (other than a re-tirement fund) must also register with the IRS at IRS.gov/Businesses/Corporations/FATCA-Foreign-Financial-Institution-Registration-System to obtain its applicable chapter 4 status and GIIN.

Documentation. A WP or WT must pro-vide you with a Form W-8IMY that certifies that the WP or WT is acting in that capacity and pro-vides all other information and certifications re-quired by the form, including its WP-EIN or WT-EIN. When you make a withholdable pay-ment to a WP or WT, the WP or WT generally may also provide a certificate of a chapter 4 sta-tus permitted of a WP or WT (and GIIN, if appli-cable). The WP or WT, when acting in such ca-pacity, is not required to provide a withholding statement and is not required to disclose any in-formation regarding its direct partners, benefi-ciaries, or owners, or any indirect partner, bene-ficiary, or owner for which it acts as a WP or WT that is not a U.S. nonexempt recipient (except for a U.S. nonexempt recipient included in a chapter 4 withholding rate pool of U.S. payees). A chapter 4 withholding rate pool also means a payment of a single type of income that is allo-cated to U.S. payees when the WP provides the certification required on Form W-8IMY for allo-cating payments to this pool. When a WP or WT is not acting as a WP or WT with respect to an amount distributed to, or included in the distrib-utive share of, an indirect partner, beneficiary, or owner, it must provide you with a nonwith-holding foreign partnership or nonwithholding foreign trust withholding certificate on a Form W-8IMY and documentation for its indirect part-ners, beneficiaries, and owners that are not in-cluded in a chapter 4 withholding rate pool.

(except when it is an investment entity that is not also a depository institution, custodial insti-tution, or specified insurance company) incor-porated or organized under the laws of a pos-session of the United States. A territory financial institution that is an intermediary or flow-through entity is treated as a U.S. branch that agrees to be treated as a U.S. person. The special rules described in this section apply to a territory fi-nancial institution.

If you are paying a U.S. branch an amount that is not subject to chapter 3 withholding and is not a withholdable payment, treat the pay-ment as made to a foreign person, irrespective of any agreement to treat the branch as a U.S. person for such amounts. Consequently, amounts not subject to chapter 3 withholding and that are not withholdable payments that are paid to a U.S. branch are not subject to Form 1099 reporting or backup withholding.

Alternatively, a U.S. branch may provide you with a Form W-8IMY with which it associates the documentation of the persons on whose be-half it acts. In this situation, the U.S. branch is not treated as a U.S. person, and the payees are the persons on whose behalf the branch acts provided you can reliably associate the payment with valid documentation from those persons. See Nonqualified Intermediary (NQI) under Documentation, later.

If you cannot reliably associate the payment with a Form W-8IMY from the U.S. branch but you have obtained an employer identification number (EIN) for the branch, you should treat

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A WP or WT must act in that capacity for re-						Foreign Persons
portable amounts that are distributed to, or in-
cluded in the distributive share of, its direct part-						Rules relevant to chapters 3 and 4. A payee
ners, beneficiaries, or owners. A WP or WT
may act in that capacity for reportable amounts						is subject to withholding only if it is a foreign
that are distributed to, or included in the distrib-						person. A foreign person includes a nonresi-
utive share of, its indirect partners, beneficia-						dent alien individual, foreign corporation, for-
ries, or owners that are not U.S. nonexempt re-						eign partnership, foreign trust, foreign estate,
cipients (except for a U.S. nonexempt recipient						and any other person that is not a U.S. person.
that is included in a chapter 4 withholding rate						It also includes a foreign branch of a U.S. finan-
pool of U.S. payees). A WP or WT acting in that						cial institution if the foreign branch is a QI. In
capacity must assume primary chapters 3 and 4						most cases, the U.S. branch of a foreign corpo-
withholding responsibility for payments subject						ration or partnership is treated as a foreign per-
to withholding and must assume certain report-						son. The determination of whether a foreign
ing requirements with respect to its U.S. part-						person is treated as an entity (i.e., as opposed
ners, beneficiaries, and owners. You may treat						to being disregarded as separate from its
a WP or WT as a payee if it has provided you						owner), or as a foreign corporation, foreign part-
with documentation (discussed later) that repre-						nership, or foreign trust is made under U.S. tax
sents						rules.
	that it is acting as a WP or WT for such
amounts.						If an amount is both a withholdable payment
See Revenue Procedure 2017-21, 2017-6						and an amount subject to chapter 3 withholding
I.R.B.		791,	available	at	IRS.gov/irb/	and the withholding agent withholds under
						chapter 4, it may credit this amount against any
2017-06_IRB#RP-2017-21, for more informa-
tion on becoming a WP or				WT.		tax due under chapter 3.
*WP agreement and WT agreement.* The						Nonresident alien. A nonresident alien is an
WP agreement and WT agreement and the ap-						individual who is not a U.S. citizen or a resident
plication procedures for the agreements are in						alien. A resident of a foreign country under the
Revenue Procedure 2017-21, earlier. An entity						residence article of an income tax treaty is a
applies for WP or WT status at IRS.gov/						nonresident alien individual for purposes of
Businesses/Corporations/Qualified-						withholding.


Intermediary-System. The WP or WT will be as-			*Married to U.S. citizen or resident alien.*

signed a WP-EIN or WT-EIN to be used only
			Nonresident alien individuals married to U.S.
when acting in that capacity.
			citizens or resident aliens may choose to be

			Publication 515 (2023)

treated as resident aliens for certain income tax purposes. However, these individuals are still subject to the chapter 3 withholding rules that apply to nonresident aliens for all income ex-cept wages. Wages paid to these individuals are subject to graduated withholding. See Wa-ges Paid to Employees—Graduated Withhold-ing, later.

Resident alien. A resident alien is an individ-ual who is not a citizen or national of the United States and who meets either the green card test or the substantial presence test for the calendar year.

Green card test. An alien is a resident alien if the individual was a lawful perma-nent resident of the United States at any time during the calendar year. This is known as the green card test because these aliens hold immigrant visas (also known as green cards).

Substantial presence test. An alien is considered a resident alien if the individual meets the substantial presence test for the calendar year. Under this test, the individ-ual must be physically present in the Uni-ted States on at least:

1. 31 days during the current calendar year; and

2. 183 days during the current year and the 2 preceding years, counting all the days of physical presence in the current year, but only 1/3 the number of days of presence in the first preceding year, and only 1/6 the number of days in the second preceding year.

In most cases, the days the alien is in the United States as a teacher, student, or trainee on an “F,” “J,” “M,” or “Q” visa are not counted. This exception is for a limited period of time.

For more information on resident and non-resident status, the tests for residence, and the exceptions to them, see Pub. 519.

Note. If your employee is late in notifying you that his or her status changed from nonresi-dent alien to resident alien, you may have to make an adjustment to Form 941 if that em-ployee was exempt from withholding of social security and Medicare taxes as a nonresident alien. For more information on making adjust-ments, see chapter 13 of Pub. 15 (Circular E) .

Resident of a U.S. possession. A bona fide resident of Puerto Rico, the U.S. Virgin Is-lands (USVI), Guam, the Commonwealth of the Northern Mariana Islands (CNMI), or American Samoa who is not a U.S. citizen or a U.S. na-tional is treated as a nonresident alien for the withholding rules explained here. A bona fide resident of a possession is someone who:

Meets the presence test,

Does not have a tax home outside the pos-session, and

Does not have a closer connection to the United States or to a foreign country than to the possession.

For more information, see Pub. 570.

Foreign corporations. A foreign corporation is one that does not fit the definition of a domes-tic corporation. A domestic corporation is one that was created or organized in the United

Publication 515 (2023)

States or under the laws of the United States, any of its states, or the District of Columbia.

Guam or CNMI corporations. A corpora-tion created or organized in, or under the laws of, Guam or the CNMI is not considered a for-eign corporation for the purpose of withholding tax for the tax year if:

At all times during the tax year less than 25% in value of the corporation's stock is owned, directly or indirectly, by foreign per-sons; and

At least 20% of the corporation's gross in-come is derived from sources within Guam or the CNMI for the 3-year period ending with the close of the preceding tax year of the corporation (or the period the corpora-tion has been in existence, if less).

Note. The provisions discussed below un-der USVI and American Samoa corporations will apply to Guam or CNMI corporations when an implementing agreement is in effect between the United States and that possession.

USVI and American Samoa corpora-tions. A corporation created or organized in, or under the laws of, the USVI or American Samoa is not considered a foreign corporation for the purposes of withholding tax for the tax year if:

At all times during the tax year less than 25% in value of the corporation's stock is owned, directly or indirectly, by foreign per-sons;

At least 65% of the corporation's gross in-come is effectively connected with the con-duct of a trade or business in the USVI, American Samoa, Guam, the CNMI, or the United States for the 3-year period ending with the close of the tax year of the corpo-ration (or the period the corporation or any predecessor has been in existence, if less); and

No substantial part of the income of the corporation is used, directly or indirectly, to satisfy obligations to a person who is not a bona fide resident of the USVI, American Samoa, Guam, the CNMI, or the United States.

Foreign private foundations. A private foun-dation that was created or organized under the laws of a foreign country is a foreign private foundation. Gross investment income from sources within the United States paid to a quali-fied foreign private foundation is subject to with-holding at a 4% rate (unless exempted by a treaty) rather than the ordinary statutory 30% rate.

Other foreign organizations, associations, and charitable institutions. An organization may be exempt from income tax under section 501(a) and chapter 4 withholding tax even if it was formed under foreign law. In most cases, you do not have to withhold tax on payments of income to these foreign tax-exempt organiza-tions unless the IRS has determined that they are foreign private foundations.

Payments to these organizations, however, must be reported on Form 1042-S if the pay-ment is subject to chapter 3 withholding, even though no tax is withheld.

You must withhold tax on the unrelated busi-ness income (as described in Pub. 598) of for-eign tax -exempt organizations in the same way that you would withhold tax on similar income of nonexempt organizations when the organiza-tion does not provide you a Form W-8ECI to certify that the income is effectively connected with a U.S. trade or business of the organiza-tion.

U.S. branches of foreign persons. In most cases, a payment to a U.S. branch of a foreign person is a payment made to the foreign per-son. However, you may treat payments to U.S. branches of foreign banks and foreign insur-ance companies (discussed earlier) that are subject to U.S. regulatory supervision as pay-ments made to a U.S. person, if you and the U.S. branch have agreed to do so, and if their agreement is evidenced by a withholding certifi-cate, Form W-8IMY. For this purpose, a territory financial institution acting as an intermediary or that is a flow-through entity is treated as a U.S. branch.

Additional Rules Specific to Chapter 4

A payee may be subject to chapter 4 withhold-ing only if it is a foreign entity. A foreign entity for chapter 4 purposes means any entity that is not a U.S. person and includes a territory entity as defined in Regulations section 1.1471-1(b) (129).

A foreign entity is subject to chapter 4 with-holding if it is a nonparticipating FFI or a pas-sive NFFE that does not provide the appropri-ate certification regarding its substantial U.S. owners. A nonparticipating FFI is an FFI other than a participating FFI, deemed-compliant FFI, or exempt beneficial owner. See Definitions, later, for the definitions of these terms.

A passive NFFE is:

An NFFE other than a publicly traded cor-poration,

Certain affiliated entities related to a pub-licly traded corporation,

Certain territory entities,

Active NFFEs, or

Excluded FFIs.

For chapter 4 purposes, a U.S. person does not include a foreign insurance company that has made an election under section 953(d) if it is a specified insurance company and is not li-censed to do business in any state. Notwith-standing the foregoing, a withholding agent should treat such entity as a U.S. person for purposes of documenting the entity’s status for purposes of chapters 3 and 4.

Documentation

Documentation for Chapter 3

For purposes of chapter 3, in most cases, you must withhold 30% from the gross amount paid

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to a foreign payee unless you can reliably asso-ciate the payment with valid documentation that establishes either of the following.

The payee is a U.S. person.

The payee is a foreign person that is the beneficial owner of the income and is enti-tled to a reduced rate of withholding under the Internal Revenue Code, or an applica-ble income tax treaty.

For rules related to when a withholding agent may rely on an otherwise valid withhold-ing certificate received electronically from a third-party repository, see Regulations section 1.1441-1(e)(4)(iv)(E).

If withholding is applied under chapter 4 on a payment, no withholding will be required on such payment under chapter 3.

Documentation for Chapter 4

If you make a withholdable payment, you must determine the chapter 4 status of payees, bene-ficial owners, intermediaries, and flow-through entities receiving the payment to the extent re-quired for chapter 4 purposes. You must also determine the chapter 4 status of persons that own an interest in an entity receiving a withhold-able payment that you treat as an owner-docu-mented FFI, provided you are either a U.S. fi-nancial institution, participating FFI, or reporting Model 1 FFI. To establish chapter 4 status, you must generally obtain a valid withholding certifi-cate or documentary evidence that you can reli-ably associate with the payment. If you make a payment to a passive NFFE, you must obtain ei-ther a certification that the NFFE does not have any substantial U.S. owners, or the name, ad-dress, and TIN of each substantial U.S. owner of the NFFE (or, under an applicable IGA, each controlling person that is a specified U.S. per-son).

You can reliably associate a payment with a Form W-8 for purposes of establishing a payee’s chapter 4 status in most cases if, prior to the payment, you:

Obtain a valid form that contains the infor-mation required for chapter 4 purposes,

Can reliably determine how much of the payment relates to the form, and

Have no actual knowledge or reason to know that any of the information, certifica-tions, or statements in, or associated with, the form is unreliable or incorrect for chap-ter 4 purposes.

See Standards of Knowledge for Purposes of Chapter 4, later, for the reason to know standards that apply for chapter 4 purposes.

For the requirements for documenting spe-cific chapter 4 statuses of persons receiving withholdable payments, see Regulations sec-tion 1.1471-3(d). For rules related to when a withholding agent may rely on an otherwise valid withholding certificate received electroni-cally from a third-party repository, see Regula-tions section 1.1441-1(e)(4)(iv)(E). Also see Regulations section 1.1471-3(d) for the extent to which a withholding agent may rely on docu-mentary evidence (other than a Form W-8) to establish the chapter 4 status of an entity payee, including the forms of documentary evidence permitted for each specific chapter 4

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status. For the requirements for documentary evidence, see Regulations section 1.1471-3(c)

(5). If you make a withholdable payment to an entity payee and cannot reliably associate the payment with a valid withholding certificate or valid documentary evidence, you must apply the chapter 4 presumption rules described in Presumption Rules for Chapter 4, later.

You may rely on the same documentation for purposes of both chapters 3 and 4 provided the documentation is sufficient to meet the re-quirements of each chapter. For example, you may use a Form W-8BEN-E to obtain both the chapter 3 and chapter 4 statuses of an entity providing the form.

Additional Documentation Rules Applicable to Chapters 3 and 4

In most cases, you must reliably associate the payment with valid documentation to apply re-duced withholding and must get the documen-tation before you make the payment. The docu-mentation is not valid if you know, or have reason to know, that it is unreliable or incorrect. See Standards of Knowledge for Purposes of Chapter 3 and Standards of Knowledge for Pur-poses of Chapter 4, later.

If you cannot reliably associate a payment with valid documentation, you must use the pre-sumption rules discussed later to determine the rate of withholding. For example, if you do not have documentation or you cannot determine the part of a payment that is allocable to spe-cific documentation, you must use the pre-sumption rules of section 1441.

The specific types of documentation are dis-cussed in this section. However, see Withhold-ing on Specific Income, later, as well as the in-structions to the particular forms. As the withholding agent, you may also want to see the Instructions for the Requester of Forms W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, and W-8IMY.

Sections 1446(a) and (f) withholding. Under section 1446(a), a partnership must withhold tax on its effectively connected income (ECI) al-locable to a foreign partner or, for a partnership that is a PTP, the PTP or a nominee for a PTP distribution must withhold on the amount of the distribution subject to section 1446(a) withhold-ing made to a foreign partner. In most cases, a partnership (or nominee when applicable) de-termines if a partner is a foreign partner and the partner's tax classification based on the with-holding certificate provided by the partner. This is the same documentation that is filed for chap-ter 3 withholding, but may require additional in-formation, as discussed under each of the forms in this section.

For information on section 1446(f) withhold-ing, go to Section 1446(f) Withholding, later.

Documentation rule for joint payees. If you make a payment to joint payees (such as hold-ers of a joint account), you need to get docu-mentation from each payee. If you make a pay-ment to joint payees and cannot reliably associate the payment with documentation from

all of the payees, you must generally presume the payment is made to an unidentified U.S. person. If the payment is a withholdable pay-ment and any of the payees do not appear, by name or other information in the account file, to be an individual, you must treat the entire amount as a payment made to an undocumen-ted foreign person. However, if one of the joint payees has provided you with a Form W-9, you must treat the payment as made to that payee.

Form W-9. In most cases, you can treat the payee as a U.S. person if the payee gives you a Form W-9. The Form W-9 can be used only by a U.S. person and must contain the payee's TIN. U.S. persons are not subject to chapter 3 withholding (or withholding under section 1446(a) or (f)), but may be subject to:

Form 1099 reporting and backup withhold-ing under section 3406,

Reporting as a U.S. account holder of a participating FFI or registered deemed-compliant FFI, and

Classification as a recalcitrant account holder of a participating FFI or registered deemed-compliant FFI for chapter 4 purpo-ses (including chapter 4 withholding) when the FFI is unable to report the information required with respect to the account holder.

Forms W-8. In most cases, a foreign payee of the income should give you a form in the Form W-8 series.

If certain requirements are met, the foreign person can give you documentary evidence, rather than a Form W-8 for chapter 3 or 4 pur-poses. You can rely on documentary evidence in lieu of a Form W-8 for an amount paid out-side the United States with respect to an off-shore obligation. Refer to Offshore obligations, later, to determine whether a payment qualifies as such a payment.

Other documentation. Other documentation may be required to claim an exemption from, or a reduced rate of, chapter 3 withholding on pay for personal services. The nonresident alien in-dividual may have to give you a Form W -4 or a Form 8233. These forms are discussed in Pay for Personal Services Performed under With-holding on Specific Income, later.

Beneficial Owners

If all the appropriate requirements have been established on a Form W-8BEN, W-8BEN-E, W-8ECI, W-8EXP, or, if applicable, on docu-mentary evidence, you can treat the payee as a foreign beneficial owner.

Claiming treaty benefits for purposes of chapter 3. You may apply a reduced rate of withholding under chapter 3 to a foreign person that provides a Form W-8 claiming a reduced rate of withholding under an income tax treaty only if the person provides a U.S. or foreign TIN and certifies that:

It is a resident of a treaty country;

It is the beneficial owner of the income;

If it is an entity, it derives the income within the meaning of section 894 (it is not fiscally transparent); and

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It meets any limitation on benefits provision contained in the treaty, if applicable, and specifies the category of the limitation on benefits provision.

If the payment you make is a withholdable payment to an entity, a requirement to withhold under chapter 4 may apply based on the chap-ter 4 status of the payee regardless of whether a claim of treaty benefits may apply to such payee or other person receiving the income.

An entity derives income for which it is claiming treaty benefits only if the entity is not treated as fiscally transparent for that income. See Fiscally transparent entities claiming treaty benefits, discussed earlier under Flow-Through Entities.

Limitations on benefits (LOB) provisions in income tax treaties generally prevent third country residents (unless the treaty contains a derivative benefits rule) and others that do not have a substantial nexus to the treaty country from obtaining treaty benefits. For example, a foreign corporation may not be entitled to a re-duced rate of withholding unless a minimum percentage of its owners are citizens or resi-dents of the United States or the treaty country. Foreign entities that are residents of a country whose income tax treaty with the United States contains an LOB article are eligible for treaty benefits only if they satisfy one of the objective tests under the LOB article or obtain a favorable discretionary determination from the U.S. com-petent authority.

The exemptions from, or reduced rates of, U.S. tax vary under each treaty. You must check the provisions of the tax treaty that apply. See Tax Treaties, later, for information on how to access tax treaties.

If you know, or have reason to know, that an owner of income is not eligible for treaty bene-fits claimed or if the United States does not have an income tax treaty in force with that country, you may not reduce the rate of with-holding. You are not, however, responsible for misstatements on a Form W-8, documentary evidence, or statements accompanying docu-mentary evidence for which you did not have actual knowledge, or reason to know, that the statements were incorrect. Certain withholding agents, such as financial institutions, have limi-ted reason to know requirements for this pur-pose. See Regulations section 1.1441-7(b) for these requirements.

Exceptions to TIN requirement. A for-eign person does not have to provide a U.S. or foreign TIN to claim a reduced rate of withhold-ing under a treaty for chapter 3 purposes if the requirements for the following exceptions are met.

Income from marketable securities (dis-cussed next).

Unexpected payments to an individual (discussed under U.S. or Foreign TINs, later).

The allowance to provide a foreign TIN (rather than a U.S. TIN) does not apply to a pay-ment to compensate an individual for personal services.

See U.S. or Foreign TINs, later, for when a foreign person is required to provide a foreign TIN for purposes other than making a treaty claim.

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Marketable securities. A Form W-8 provi-ded to claim treaty benefits does not need a U.S. or foreign TIN if the foreign beneficial owner is claiming the benefits on income from marketable securities for chapter 3 purposes. For this purpose, income from a marketable se-curity consists of the following items.

Dividends and interest from stocks and debt obligations that are actively traded.

Dividends from any redeemable security issued by an investment company regis-tered under the Investment Company Act of 1940 (mutual fund).

Dividends, interest, or royalties from units of beneficial interest in a unit investment trust that are (or were upon issuance) pub-licly offered and are registered with the SEC under the Securities Act of 1933.

Income related to loans of any of the above securities.

Offshore obligations. An offshore obliga-tion is an account maintained at an office or branch of a bank or other financial institution lo-cated outside the United States or an obliga-tion, contract, or other instrument with respect to which the payer of the payment is either en-gaged in business as a broker or dealer in se-curities or a financial institution that engages in significant activities at an office or branch loca-ted outside the United States.

A payment is made outside the United States if you complete the acts necessary to ef-fect the payment outside the United States. However, an amount paid by a bank or other fi-nancial institution on a deposit or account usu-ally will be treated as paid at the branch or of-fice where the amount is credited unless the other requirements of Regulations section 1.6049-5(e)(2) are met with respect to the branch or office, unless the amount is collected by the financial institution as an agent of the payee.

If a payment is made outside the United States with respect to an offshore obligation, a payee may give you documentary evidence, rather than a Form W-8, to establish that the payee is a foreign person. See Regulations section 1.6049-5(c)(1) for the requirements for documentary evidence for offshore obligations. For accounts opened on or after July 1, 2014, through December 31, 2014, you may use the rules regarding the use of documentary evi-dence under Regulations sections 1.6049-5(c)

(1) and (c)(4) as in effect prior to the issuance of the temporary regulations.

You may rely on documentary evidence given to you by an NQI or a flow-through entity with its Form W-8IMY. This rule applies even though you make the payment to an NQI or flow-through entity in the United States. In most cases, the NQI or flow-through entity that gives you documentary evidence will also have to give you a withholding statement, discussed later.

Documentary evidence. You may apply a reduced rate of withholding to income from mar-ketable securities (discussed earlier) paid out-side the United States for chapter 3 purposes with respect to an offshore obligation if the ben-eficial owner gives you documentary evidence in place of a Form W-8. To claim treaty benefits, the documentary evidence must be one of the following.

1. A certificate of residence that:

a. Is issued by a tax official of the treaty country of which the foreign beneficial owner claims to be a resident,

b. States that the person has filed its most recent income tax return as a resident of that country, and

c. Is issued within 3 years before it is presented to you.

2. Documentation for an individual that:

d. Includes the individual's name, ad-dress, and photograph;

e. Is an official document issued by an authorized governmental body; and

f. Is issued no more than 3 years prior to being presented to you.

3. Documentation for an entity that:

g. Includes the name of the entity,

h. Includes the address of its principal office in the treaty country, and

i. Is an official document issued by an authorized governmental body.

In addition to the documentary evidence, a foreign beneficial owner that is an entity must provide a statement that it derives the income for which it claims treaty benefits and that it meets one or more of the conditions set forth in a limitation on benefits article, if any (or similar provision), contained in the applicable treaty and must identify the specific limitation on ben-efits provision. In the case of a withholdable payment made to an entity, you must also ob-tain the applicable documentation to establish that withholding does not apply under chap-ter 4.

Form W-8BEN. This form is used by a foreign individual to:

Establish foreign status;

Claim that such individual is the beneficial owner of the income for which the form is being furnished or a partner in a partner-ship subject to withholding under section 1446(a) or a transferee of an interest in a partnership under section 1446(f); and

If applicable, claim a reduced rate of, or exemption from, withholding under an in-come tax treaty.

A withholding agent in some cases may substitute its own form for a Form W-8BEN for individuals.

Form W-8BEN may also be used to claim that the foreign individual is exempt from Form 1099 reporting and backup withholding for in-come that is not subject to chapter 3 withhold-ing and is not a withholdable payment. For ex-ample, a foreign person may provide a Form W-8BEN to a broker to establish that the gross proceeds from the sale of securities are not subject to Form 1099 reporting or backup with-holding.

Date of birth requirement for certain ac-count holders. If you are a U.S. office or branch of a depository institution, custodial in-stitution, investment entity, or specified insur-ance company (each as defined in Regulations section 1.1471-5(e)) documenting an individual

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account holder (as defined in Regulations sec-tion 1.1471-5(a)(3)) of an account that is a fi-nancial account (as defined in Regulations sec-tion 1.1471-5(b)), you must obtain the individual account holder’s date of birth on the Form W-8BEN in order for the form to not be invalid for a payment of U.S. source income reportable on Form 1042-S. If the individual’s date of birth is not provided on the Form W-8BEN, the form is still valid if you otherwise have the date of birth in your account files for the account holder or you obtain the date of birth on a written state-ment (including a written statement transmitted by email) from the account holder and asso-ciate the written statement with the Form W-8BEN. See the related Foreign TIN require-ment discussed under Foreign TIN requirement for account holders., later, which also generally applies with respect to accounts described in this paragraph.

Form W-8BEN-E. This form is used by a for-eign entity to:

Establish foreign status;

Establish an entity's chapter 4 status to the extent required for chapter 4 purposes;

Claim that such entity is the beneficial owner of the income for which the form is being furnished or a partner in a partner-ship subject to withholding under section 1446(a) or (f) (excluding a partnership or grantor trust); and

If applicable, claim a reduced rate of, or exemption from, chapter 3 withholding un-der an income tax treaty.

Form W-8BEN-E may also be used to claim that the foreign entity is exempt from Form 1099 reporting and backup withholding for income that is not subject to chapter 3 withholding and is not a withholdable payment. For example, a foreign entity may provide a Form W-8BEN-E to a broker to establish that the gross proceeds from the sale of securities are not subject to Form 1099 reporting or backup withholding.

An entity payee may also provide a Form W-8BEN-E to establish that certain income from notional principal contracts is not effectively connected with the conduct of a U.S. trade or business. In addition, a foreign hybrid entity claiming treaty benefits on its own behalf should provide you with a Form W -8BEN-E with re-spect to the income for which treaty benefits are being claimed. In certain cases, a similar agreed form may be associated with the pay-ment instead of a Form W-8BEN-E.

Form W-8ECI. This form is used by a foreign person to:

Establish foreign status,

Claim that such person is the beneficial owner of the income for which the form is being furnished, and

Claim that the income is effectively con-nected with the conduct of a trade or busi-ness in the United States. (See Effectively Connected Income, later.)

Claim that the person is a dealer in securi-ties for the exception to withholding under Regulations section 1.1446(f)-4(b)(6). See Section 1446(f): PTP Interests, later.

ECI for which a valid Form W-8ECI has been provided is generally not subject to chap-ter 3 or chapter 4 withholding.

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If a partner submits this form to a partner-ship, the income claimed to be effectively con-nected with the conduct of a U.S. trade or busi-ness is subject to withholding under section 1446. If the partner has made, or will make, an election under section 871(d) or 882(d), the partner must submit Form W-8ECI, and attach a copy of the election, or a statement of intent to elect, to the form.

If the partner's only ECI is the income

allocated from the partnership and the CAUTION partner is not making the election un-der section 871(d) or 882(d), the partner should provide Form W-8BEN or W-8BEN-E to the partnership.

Form W-8EXP. This form is used by a foreign government, international organization, foreign central bank of issue, foreign tax-exempt organ-ization, foreign private foundation, or govern-ment of a U.S. possession to:

Establish foreign status,

Establish the entity's chapter 4 status to the extent required for chapter 4 purposes,

Claim that such person is the beneficial owner of the income for which the form is being furnished, and

Claim an exemption from withholding un-der both chapter 3 and chapter 4 for such entity or that the entity is a foreign private foundation subject to the 4% tax. See sec-tion 1443 for the withholding required for a payment made to such an entity.

If the government or organization named on the form is a partner in a partnership carrying on a trade or business in the United States, the ECI allocable to the partner is subject to with-holding under section 1446.

See also Foreign Governments and Certain Other Foreign Organizations, later.

Foreign Intermediaries and Foreign Flow-Through Entities

Payments made to a foreign intermediary or for-eign flow-through entity that is not a QI that as-sumes primary chapters 3 and 4 withholding re-sponsibility, a WP, a WT, or a branch treated as a U.S. person (see U.S. branches of foreign banks and foreign insurance companies, ear-lier) are treated as made to the payees on whose behalf the intermediary or entity acts ex-cept when the intermediary or flow-through en-tity is subject to chapter 4 withholding. See Flow-Through Entities and Foreign intermedia-ries, earlier. The Form W-8IMY provided by a foreign intermediary or flow-through entity must be accompanied by additional information for you to be able to reliably associate the payment with a payee. The additional information re-quired depends on the type of intermediary or flow-through entity and the extent of the with-holding responsibilities it assumes.

Form W-8IMY. This form is used by foreign in-termediaries and foreign flow-through entities, as well as certain U.S. branches for chapter 3 or 4 purposes, or when applicable, for section 1446(a) or (f) purposes, to:

Represent that a foreign person is a QI or NQI;

Establish the entity’s chapter 4 status when required for chapter 4 purposes;

When applicable, certify that the entity is a participating FFI, a registered deemed-compliant FFI, or a QI that may provide a withholding statement allocating a payment to a chapter 4 withholding rate pool of U.S. payees;

Represent, if applicable, that the QI is as-suming primary chapters 3 and 4 withhold-ing responsibility and/or primary Form

1099 reporting and backup withholding re-sponsibility;

Represent that a foreign partnership or a foreign simple or grantor trust is a with-holding foreign partnership or a withhold-ing foreign trust;

Represent that a foreign flow-through en-tity is a nonwithholding foreign partnership, or a nonwithholding foreign trust;

Represent that the provider is a U.S. branch of a foreign bank or insurance com-pany and either is agreeing to be treated as a U.S. person or is transmitting docu-mentation of the persons on whose behalf it is acting for the payments;

Represent its status as a qualified securi-ties lender with respect to payments of U.S. source substitute dividends;

Represent its status as a QI acting as a QDD for certain payments; and

Represent that, for purposes of section 1446, it is an upper-tier foreign partnership or a foreign grantor trust and that the form is being used to transmit the required doc-umentation. For information on qualifying as an upper-tier foreign partnership, see Regulations section 1.1446-5.

For purposes of chapter 4, an intermediary or flow-through entity that is a participating FFI or registered deemed-compliant FFI receiving a withholdable payment may, instead of providing documentation for each payee, provide pooled allocation information, as described under FFI withholding statement, later.

FFI withholding statement. An FFI with-holding statement must be provided by a partic-ipating FFI or registered deemed-compliant FFI (including a U.S. branch of a participating FFI that is not treated as a U.S. person) that is an NQI, nonwithholding foreign partnership, non-withholding foreign trust, or a QI that makes an election to be withheld on for chapter 4 purpo-ses (that is, a QI that does not assume chap-ter 3 or 4 withholding responsibility), as descri-bed under Qualified Intermediary (QI), later.

An FFI withholding statement may include either payee-specific information or pooled in-formation. If the withholding statement includes pooled information, the withholding statement must indicate the portion of the payment alloca-ble to:

A chapter 4 withholding rate pool of U.S. payees,

Each class of recalcitrant account holders under Regulations section 1.1471-4(d)(6) or a single pool for a QI, or

A class of nonparticipating FFIs.

If the withholding statement includes payee-specific information, it must indicate both the portion of the payment allocated to each payee and each payee’s chapter 4 status.

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Any withholding statement provided by an FFI other than an FFI acting as a WP, WT, or QI with respect to the account must also identify each intermediary or flow-through entity that re-ceives the payment and such entity’s chapter 4 status and GIIN, when applicable.

For additional information on the require-ments for FFI withholding statements, see Reg-ulations section 1.1471-3(c)(3)(iii)(B)(2).

Chapter 4 withholding statement. A chapter 4 withholding statement must be provi-ded by the following.

A territory financial institution that does not agree to be treated as a U.S. person.

A U.S. branch that is not a U.S. branch of a participating FFI.

An NFFE or certified deemed-compliant FFI that is an NQI, nonwithholding foreign partnership, or nonwithholding foreign trust and is not the payee.

A chapter 4 withholding statement must contain the following.

The name, address, TIN (if any), entity type, and chapter 4 status of each payee.

The amount allocated to each payee.

A valid withholding certificate or other ap-propriate documentation sufficient to es-tablish the chapter 4 status of each payee, and each intermediary or flow-through en-tity that receives the payment on behalf of the payee.

Any other information the withholding agent reasonably requests in order to fulfill its obligations under chapter 4.

A chapter 4 withholding statement is permit-ted to provide pooled allocation information with respect to payees that are treated as nonpartici-pating FFIs.

A Form W-8 must include a U.S. TIN

for a partner to be valid for purposes of CAUTION a claim of exemption or reduced with-holding under section 1446(a) or (f). See the in-structions to the applicable Form W-8.

Qualified Intermediary (QI)

In most cases, a QI is any foreign intermediary that has entered into a QI agreement (dis-cussed earlier) with the IRS with respect to the withholding and reporting required under chap-ters 3 and 4 and for purposes of Form 1099 re-porting and backup withholding under section 3406. Additionally, starting January 1, 2023, a QI may also assume certain withholding re-sponsibilities with respect to PTP distributions (including withholding under section 1446(a)) and certain transfers of PTP interests for sec-tion 1446(f) purposes when acting as an inter-mediary. For discussion of those provisions, see Publicly Traded Partnership Distributions (PTP Distributions) and Section 1446(f): PTP Interests , later. A foreign entity that is a QI act-ing as a QDD or that is acting with respect to payments of substitute interest (as permitted by the QI agreement) can act as a QI even though it is not receiving payments as an intermediary. A foreign entity that has received a QI employer identification number (QI-EIN) may represent on Form W-8IMY that it is a QI. The QI can claim that it is a QI until the IRS revokes its QI-EIN.

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A QI can be either an FFI or an NFFE. An FFI that is a QI must be a participating FFI (in-cluding a reporting Model 2 FFI), a registered deemed-compliant FFI (including a reporting Model 1 FFI and a nonreporting Model 2 FFI treated as a registered deemed-compliant FFI), or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due diligence and reporting require-ments with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI (including the requirement to register with the IRS) (defined in the QI agreement as a “reg-istered deemed-compliant Model 1 IGA FFI”). Thus, you must identify the chapter 4 status of an FFI, certifying its status as a QI as one of the chapter 4 statuses referenced in the preceding sentence on a Form W-8IMY when a chapter 4 status is required for chapter 4 purposes.

Responsibilities and documentation for chapter 3 and 4. Payments made to a QI that does not assume primary chapters 3 and 4 withholding responsibilities are treated as paid to its account holders. However, a QI is not re-quired to provide you with documentation it ob-tains from its foreign account holders or from U.S. exempt recipients (U.S. persons exempt from Form 1099 reporting). Instead, it provides you with a withholding statement that contains either chapter 3 or chapter 4 withholding rate pool information. A chapter 4 withholding rate pool is a payment of a single type of income that is a withholdable payment that is allocated to payees that are nonparticipating FFIs or re-calcitrant account holders (in a single pool). A chapter 4 withholding rate pool also means a payment of a single type of income that is allo-cated to U.S. payees when the QI provides the certification required on Form W-8IMY for allo-cating payments to this pool and a withholding statement. A QI may include in its chapter 4 withholding rate pools its direct account holders as well as account holders of another QI or a participating FFI or registered deemed-compli-ant FFI. With respect to a payment to a foreign person for which no chapter 4 withholding is re-quired, a chapter 3 withholding rate pool is a payment of a single type of income that is sub-ject to a single rate of withholding and that is re-ported on Form 1042-S under a single chap-ter 4 exemption code. Payments made to U.S. exempt recipients may also be included in a chapter 3 withholding rate pool to which with-holding does not apply.

A QI is required to provide you with informa-tion regarding U.S. nonexempt recipients (U.S. persons subject to Form 1099 information re-porting) and to provide you withholding rate pool information separately for each such U.S. person unless it has assumed primary Form 1099 reporting and backup withholding respon-sibility and meets the requirements to include these recipients in a U.S. payee pool. For the alternative procedure for providing withholding rate pool information for U.S. nonexempt per-sons not included in a chapter 4 withholding rate pool of U.S. payees, see the Instructions Form W-8IMY.

The withholding statement must:

1. Designate those accounts for which it acts as a QI;

2. Designate those accounts for which it as-sumes primary chapters 3 and 4 withhold-ing responsibility and/or primary Form 1099 reporting and backup withholding re-sponsibility;

3. If applicable, designate the accounts for which it acts as a qualified securities lender with respect to any U.S. source substitute dividend payments;

4. If applicable, designate those accounts for which it acts as a QDD;

5. Provide sufficient information for you to al-locate the payment, as applicable, to chapter 3 withholding rate pools and, for payments that are withholdable payments, chapter 4 withholding rate pools of non-participating FFIs and recalcitrant account holders when the QI has not assumed pri-mary chapter 3 or 4 withholding responsi-bility; and

6. Provide sufficient information for you to al-locate payments to each U.S. nonexempt recipient or to a pool of U.S. payees to the extent described earlier under this head-ing.

The extent to which you must have withhold-ing rate pool information depends on the with-holding and reporting obligations assumed by the QI.

If a QI that is permitted to do so by the QI agreement obtains documentary evidence un-der the “KYC” rules that apply to the QI under local law, and the documentary evidence is of a type specified in an attachment to the QI agree-ment, the documentary evidence remains valid until there is a change in circumstances or the QI knows the information is incorrect. A QI may rely on a Form W-8 until its validity expires un-der Regulations section 1.1441-1(e)(4)(ii) and may rely on documentary evidence not ob-tained pursuant to “KYC” rules until its validity expires under Regulations section 1.6049-5(c).

Primary chapters 3 and 4 withholding re-sponsibilities not assumed. If a QI does not assume primary chapters 3 and 4 withholding responsibility or primary Form 1099 reporting and backup withholding responsibility for the payment, you can reliably associate the pay-ment with valid documentation only to the ex-tent you can reliably determine the part of the payment that relates to each withholding rate pool for foreign and U.S. payees. Unless the al-ternative procedure applies and the QI is per-mitted to include U.S. nonexempt recipients in a chapter 4 withholding rate pool of U.S. payees, the QI must provide you with a separate with-holding rate pool for each U.S. nonexempt re-cipient that must be reported on Form 1099. If you and the QI agree, the QI may apply the al-ternative procedures for U.S. nonexempt recipi-ents by establishing a single withholding rate pool (not subject to backup withholding) for all U.S. nonexempt recipient account holders for whom the QI is required to report on Form 1099 and has provided you with Forms W-9 prior to you making the reportable payment, or, if appli-cable, designated broker proceeds to which backup withholding does not apply. The QI must provide a Form W-9 or, in the absence of the form, the name, address, and TIN, if availa-ble, for each U.S. nonexempt recipient.

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Primary chapters 3 and 4 withholding re-sponsibilities assumed. If you make a pay-ment to a QI that assumes primary chapters 3 and 4 withholding responsibilities (but not pri-mary Form 1099 reporting and backup with-holding responsibility), you can reliably asso-ciate the payment with valid documentation only to the extent you can reliably determine the part of the payment that relates to the chapter 4 withholding rate pools and chapter 3 withhold-ing rate pools, as applicable, and the part of the payment attributable to withholding rate pools for each U.S. nonexempt recipient, unless the alternative procedure applies for Form 1099 re-porting and/or backup withholding purposes. The QI must provide a Form W-9 or, in the ab-sence of the form, the name, address, and TIN, if available, for such person.

Primary chapters 3 and 4 withholding re-sponsibilities and Form 1099 reporting and backup withholding responsibilities as-sumed. If you make a payment to a QI that as-sumes primary chapters 3 and 4 withholding re-sponsibilities and primary Form 1099 reporting and backup withholding responsibility, you can reliably associate the payment with valid docu-mentation provided that you receive a valid Form W-8IMY. It is not necessary to associate the payment with any chapter 3 or chapter 4 withholding rate pools.

If you make a payment to a QI that is also a QDD, the QI must provide a withholding state-ment designating the accounts for which it acts as a QDD even if it assumes primary withhold-ing responsibility for all payments, unless it is acting as a QDD for all payments it receives.

Example. You make a payment of U.S. source dividends to a QI. It has five customers: two are foreign persons who have provided documentation entitling them to a 15% rate of withholding on dividends; two are foreign per-sons subject to a 30% rate of withholding on dividends; and one is a U.S. individual who pro-vides it with a Form W-9. Each customer is enti-tled to 20% of the dividend payment. The QI does not assume any primary withholding re-sponsibility. The QI gives you a Form W-8IMY with which it associates the Form W-9 and a withholding statement that allocates 40% of the dividend to a 15% withholding rate pool, 40% to a 30% withholding rate pool, and 20% to the U.S. individual. You should report on Forms 1042-S, 40% of the payment as made to a 15% rate dividend pool and 40% of the payment as made to a 30% rate dividend pool. The part of the payment allocable to the U.S. individual (20%) is reportable on Form 1099-DIV.

Joint account treatment for chapters 3 and

4. A QI may apply joint account treatment to a partnership or trust if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI), an owner-documented FFI with respect to the QI, an exempt ben-eficial owner, an NFFE, or is covered as an account that is excluded from the definition of financial account under Annex II of an

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applicable IGA or under Regulations sec-tion 1.1471-5(a) and has provided the QI with a certification that it has maintained such chapter 4 status during each certifica-tion period.

It is a direct account holder of the QI.

None of its partners, beneficiaries, or own-ers is a flow-through entity or is acting as an intermediary for a payment made by the QI to the partnership or trust, and none of its partners, beneficiaries, or owners is a U.S. person.

None of its foreign partners, beneficiaries, or owners is subject to withholding or re-porting under chapter 4.

It agrees to make available upon request to the QI (or QI’s reviewer) records that es-tablish it has provided the QI with docu-mentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or own-ers.

For information on these rules, see section 4.05 of the QI agreement in Revenue Proce-dure 2022-43, available at IRS.gov/irb/ 2022-52_IRB#RP-2022-43.

Agency option. A QI may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the QI and to apply the provisions of the QI agreement to its partners, beneficiaries, or own-ers. A QI and a partnership or trust may only ap-ply the agency option if the partnership or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct account holder of the QI or an indirect account holder of the QI that is a direct partner, beneficiary, or owner of a partnership or trust to which the QI also applies the agency option.

It is an FFI that is a certified deemed-com-pliant FFI (other than a registered deemed-compliant Model 1 IGA FFI), an owner-documented FFI with respect to the QI, an NFFE, an exempt beneficial owner, or is covered as an account that is exclu-ded from the definition of financial account under Annex II of an applicable IGA or un-der Regulations section 1.1471-5(a) and has provided the QI with a certification that it has maintained such chapter 4 status during each certification period.

None of its partners, beneficiaries, or own-ers is a withholding foreign trust, withhold-ing foreign partnership, participating FFI, registered deemed-compliant FFI, regis-tered deemed-compliant Model 1 IGA FFI, or another QI acting as an intermediary for a payment made by the QI to the partner-ship or trust.

It agrees to permit the QI to treat its direct and indirect partners, beneficiaries, or owners as direct and indirect account hold-ers, respectively, of the QI under the QI agreement.

It agrees to comply with the compliance procedures of the QI agreement.

For information on these rules, see section 4.06 of the QI agreement in Revenue Proce-dure 2022-43, available at IRS.gov/irb/ 2022-52_IRB#RP-2022-43.

Form 1042-S reporting. A QI is generally per-mitted to report payments made to its foreign account holders on a pooled basis rather than reporting payments to each account holder spe-cifically. Pooled basis reporting is not available for payments to certain account holders, such as nonqualified intermediaries, flow-through en-tities (discussed earlier) and certain of their ac-count holders and owners, private arrangement intermediaries, and, in certain circumstances, qualified intermediaries, withholding foreign partnerships, and withholding foreign trusts. Notwithstanding these requirements, separate Forms 1042-S are not issued to account hold-ers that the QI is permitted to include in a chap-ter 4 withholding rate pool.

Collective refund procedures. A QI may seek a refund of tax withheld under chapters 3 and 4 on behalf of its account holders when the QI has not issued a Form 1042-S to the account holders that received the payment that was subject to overwithholding. The account hold-ers, therefore, are not required to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the QI. A QI may obtain a refund of tax withheld under chapter 4, how-ever, to the extent permitted under the QI agreement.

Nonqualified Intermediary (NQI)

If you are making a payment to an NQI or U.S. branch that is using Form W-8IMY to transmit information about the branch's account holders or customers for chapter 3 or 4 purposes, you can treat the payment (or a part of the payment) as reliably associated with valid documentation from a specific payee only if, before making the payment:

You can allocate the payment to a valid Form W-8IMY;

You can reliably determine how much of the payment relates to valid documentation provided by a payee (a person that is not itself a foreign intermediary, flow-through entity, or U.S. branch with a chapter 4 with-holding rate pool) (see Pooled withholding information, later); and

You have sufficient information to report the payment on Form 1042-S or Form 1099, if reporting is required.

Withholding statement. The NQI or U.S. branch must give you certain information on a withholding statement that is associated with the Form W-8IMY for chapter 3 or 4 purposes. A withholding statement must be updated to keep the information accurate prior to each pay-ment. See, however, Regulations section 1.1441-3(e)(4)(iv)(C) for when a withholding agent may instead accept an alternative with-holding statement.

For chapter 4 purposes. An NQI receiving a withholdable payment must provide a with-holding statement which satisfies the require-ments of an FFI withholding statement or, if the NQI is not a participating FFI or registered deemed-compliant FFI, a chapter 4 withholding statement.

An FFI withholding statement may allocate the payment to chapter 4 reporting rate pools (as appropriate), including a chapter 4

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withholding rate pool for nonparticipating FFIs, recalcitrant account holders (in each class of account holders, as described in the chapter 4 regulations), and, for an NQI that is a participat-ing FFI (including a reporting Model 2 FFI) or a registered deemed-compliant FFI (including a reporting Model 1 FFI), U.S. payees. However, an NQI may allocate a payment of a reportable amount (regardless of whether the payment is a withholdable payment) to a chapter 4 withhold-ing rate pool of U.S. payees when the NQI sat-isfies the requirements for providing such a pool, including the requirement to certify to its status as a participating FFI, including a report-ing Model 2 FFI, or registered deemed-compli-ant FFI, including a reporting Model 1 FFI.

If the FFI withholding statement instead in-cludes payee-specific information for purposes of chapter 4, it must indicate both the portion of the payment allocated to each payee and each payee’s chapter 4 status. The withholding state-ment must also identify each intermediary or flow-through entity that is receiving a payment (excluding any intermediary or flow-through en-tity that is an account holder or interest holder in another QI, WP, or WT), each such entity’s chapter 4 status and GIIN (if applicable) when required for chapter 4 purposes, and the chap-ter 4 withholding rate pools associated with each such entity.

A chapter 4 withholding statement must contain the name, address, TIN (if any), entity type, chapter 4 status of each payee, the amount allocated to each payee, and a valid withholding certificate or other documentation sufficient to establish each payee’s chapter 4 status for payees that are not included in a chapter 4 withholding rate pool of nonparticipat-ing FFIs. The withholding statement must also identify each intermediary or flow-through entity that is receiving a payment (excluding any inter-mediary or flow-through entity that is an account holder or interest holder in another QI, WP, or WT), each such entity’s chapter 4 status and GIIN (if applicable), and the chapter 4 withhold-ing rate pools associated with each such entity. An allocation of a payment to an NQI, nonwith-holding foreign partnership, or nonwithholding foreign trust of an amount subject to chapter 3 withholding to a chapter 4 withholding rate pool of U.S. payees must identify the payees consis-tent with the description in Regulations section 1.1471-3(c)(3)(iii)(B)(2)(iii).

For chapter 3 purposes. The withholding statement should allocate for chapter 3 purpo-ses only the portion of the payment that was not allocated to a chapter 4 withholding rate pool or to a payee identified on a withholding statement to whom withholding was applied under chap-ter 4. For chapter 3 purposes, a withholding statement must include the information descri-bed below for a reportable amount.

1. The name, address, and TIN (if any, or if required) of each person for whom docu-mentation is provided.

2. The type of documentation (documentary evidence, Form W-8, or Form W-9) for ev-ery person for whom documentation has been provided, and, for a withholdable payment, that the documentation estab-lishes the payee’s chapter 4 status to the extent required for chapter 4 purposes.

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3. The status of the person for whom the documentation has been provided, such as whether the person is a U.S. exempt re-cipient, U.S. nonexempt recipient, or a for-eign person. For a foreign person, the statement must indicate whether the per-son is the beneficial owner or a foreign in-termediary, flow-through entity, or a U.S. branch that is not included in a chapter 4 withholding rate pool or in a pool of pay-ees under the alternative procedures (see Alternative procedure, later).

4. The type of recipient the person is, based on the recipient codes used on Form 1042-S.

5. Information allocating each payment, by income type, to each payee (including U.S. exempt and nonexempt recipients) for whom documentation has been provi-ded that is not included in a chapter 4 withholding rate pool or in a pool of pay-ees under the alternative procedures (see Alternative procedure, later).

6. The rate of withholding that applies to each foreign person to whom a payment is allocated.

7. A foreign payee's country of residence.

8. If a reduced rate of withholding is claimed under chapter 3, the basis for a reduced rate of withholding (for example, portfolio interest, treaty benefit, etc.).

9. In the case of treaty benefits claimed by entities, whether the applicable limitation on benefits statement and the statement that the foreign person derives the income for which treaty benefits are claimed, have been made.

10. The name, address, and TIN (if any) and, for a withholdable payment, the chapter 4 status (if required) and GIIN (if applicable) of any other NQI, flow-through entity, or U.S. branch from which the payee will di-rectly receive a payment.

11. Any other information a withholding agent requests to fulfill its reporting and with-holding obligations.

Alternative procedure. Under this alternative procedure, the NQI can give you the informa-tion that allocates each payment to each foreign and U.S. exempt recipient or chapter 4 with-holding rate pool by January 31 following the calendar year of payment, rather than before the payment is made, as otherwise required. To take advantage of this procedure, the NQI must

(a) inform you, on its withholding statement, that it is using the alternative procedure; and (b) ob-tain your consent. You must receive the with-holding statement with all the required informa-tion (other than item 5) before the NQI makes the payment.

The alternative procedure cannot, how-

ever, be used for payments to U.S. CAUTION nonexempt recipients other than those recipients included in a chapter 4 withholding rate pool of U.S. payees. See Chapter 4, later. Therefore, an NQI must provide you with alloca-tion information for any U.S. nonexempt recipi-ents not included in a chapter 4 withholding rate pool of U.S. payees before the NQI makes a payment.

Pooled withholding information for chapters 3 and 4. If an NQI uses the alterna-tive procedure, it must provide you with with-holding rate pool information, as opposed to in-dividual allocation information, before the payment of a reportable amount. The NQI must provide you with the payee specific allocation information (information allocating each pay-ment to each payee) by January 31 following the calendar year of payment, except as other-wise permitted for chapter 4 purposes, when using this procedure.

Chapter 4. In the case of a reportable amount that is also a withholdable payment, an NQI may include amounts allocable to a chap-ter 4 withholding rate pool (other than a chap-ter 4 withholding rate pool of U.S. payees) and payees subject to chapter 4 withholding for whom the NQI will provide payee-specific infor-mation in a 30% rate pool together with payees subject to chapter 3 withholding at the 30% rate. For the amount of the payment allocable to a chapter 4 withholding rate pool of U.S. pay-ees, an NQI may include amounts allocable to the pool with other amounts exempt from with-holding (and an NQI may allocate payments to this pool regardless of whether the payment is a withholdable payment) and may not otherwise apply these provisions for payments made to U.S. nonexempt recipients. The NQI must iden-tify prior to the payment each chapter 4 with-holding rate pool to be allocated a portion of the payment, in addition to each payee to be alloca-ted the payments that is not included in such a pool. The NQI must then also allocate, by Janu-ary 31 following the calendar year of the pay-ment, the portion of the payment to each such pool in addition to allocating the payment to each payee that is not included in the pool.

Failure to provide allocation informa-tion. If an NQI fails to provide you with the payee specific allocation information for a with-holding rate pool or chapter 4 withholding rate pool by January 31, you must not apply the al-ternative procedure to any of the NQI's with-holding rate pools from that date forward. You must treat the payees as undocumented and apply the presumption rules, discussed later in Presumption Rules. An NQI is deemed to have failed to provide specific allocation information if it does not give you such information for more than 10% of any one withholding rate pool.

However, if you receive such information by February 14, you may make the appropriate ad-justments to repay any excess withholding in-curred between February 1 and on or before February 14.

If the NQI fails to allocate more than 10% of the payment to a withholding rate pool by Feb-ruary 14 following the calendar year of

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payment, you must file a Form 1042-S for each account holder in the pool on a pro -rata basis (treating a chapter 4 withholding rate pool as an account holder for this purpose and excluding U.S. exempt recipients). For example, if there are four account holders in a withholding rate pool that receives a $100 payment and the NQI fails to allocate more than $10 of the payment, you must file four Forms 1042-S, one for each account holder in the pool, showing $25 of in-come to each. You must also check the “Pro-rata Basis Reporting” box at the top of each form. If, however, the NQI provides alloca-tion information for 90% or more of the payment to a withholding rate pool, the pro-rata reporting method is not required. Instead, you must file a Form 1042-S for each account holder for whom you have allocation information and report the unallocated part of the payment on a Form 1042-S issued to “unknown recipient.”

Withholding Foreign Partnerships (WPs)

If you are making payments to a WP for chap-ter 3 or 4 purposes, you do not have to withhold if the WP is acting in that capacity. The WP must assume primary chapters 3 and 4 with-holding responsibility for amounts that are dis-tributed to, or included in the distributive share of, any direct partner and may assume chapters 3 and 4 withholding responsibilities for certain of its indirect partners. The WP must withhold the amount required to be withheld. A WP must provide you with a Form W-8IMY that certifies that the WP is acting in that capacity and pro-vides all other information and certifications re-quired by the form. The Form W-8IMY must contain the WP-EIN and GIIN (if applicable).

A WP can be either an FFI or an NFFE. An FFI (other than a retirement fund) that is a WP must be a participating FFI, a registered deemed-compliant FFI, or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due dili-gence and reporting requirements with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI under Regu-lations section 1.1471-5(f)(1) (including the re-quirement to register with the IRS) (defined in the WP agreement as a “registered deemed-compliant Model 1 IGA FFI”). Thus, an FFI certifying its status as a WP must provide you a Form W-8IMY that certifies to one of the chapter 4 statuses referenced in the preceding sentence when a chapter 4 status is required.

Responsibilities of the WP. The WP must withhold under chapter 3 or 4 on the date it makes a distribution of a withholdable payment or an amount subject to chapter 3 withholding to a direct foreign partner based on the Form W-8 or W-9 it receives from its partners. If the part-ner's distributive share has not been distributed, the WP must withhold on the partner's distribu-tive share on the earlier of the date that the part-nership must mail or otherwise provide to the partner a Schedule K-1 (Form 1065) or the due date for furnishing the statement (whether or not the WP is required to furnish the statement).

The WP may determine the amount of with-holding based on a reasonable estimate of the partner's distributive share of income subject to

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withholding for the year. The WP must correct the estimated withholding to reflect the actual distributive share on the earlier of the dates mentioned in the preceding paragraph. If that date is after the earlier of the due date (includ-ing extensions) for filing the WP's Form 1042-S or the date the WP actually issues Form 1042-S for the calendar year, the WP may withhold and report any adjustments required by correcting the information for the following calendar year.

Form 1042 filing. The WP must file Form 1042 even if no amount was withheld. In addi-tion to the information that is required for the Form 1042, the WP must attach a statement showing the amounts of any over- or un-der-withholding adjustments and an explana-tion of those adjustments.

Form 1042-S reporting. The WP can elect to report payments made to its foreign di-rect partners on a pooled basis for chapter 3 purposes rather than reporting payments to each direct partner in addition to reporting pay-ments in a chapter 4 withholding rate pool to the extent the WP is permitted to do so based on its chapter 4 status. A WP can treat as its direct partners those indirect partners of the WP for which it applies joint account treatment or the agency option (described later). A WP must otherwise issue a Form 1042-S to each partner to the extent it is required to do so under the WP agreement. You may issue a single Form 1042-S for all payments you make to a WP other than payments for which the entity does not act as a WP. You may, however, have Form 1099 requirements for certain indirect partners of a WP that are U.S. nonexempt recipients.

Collective refund procedures. A WP may seek a refund of tax withheld under chapters 3 and 4 on behalf of its partners when the WP has not issued a Form 1042-S to the partners that received the payment that was subject to over-withholding. The partners, therefore, are not re-quired to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the WP. A WP may obtain a refund of tax with-held under chapter 4 to the extent permitted un-der the WP agreement.

Reporting of U.S. partners. A WP must report its U.S. partners on Schedule K-1 to the extent required under the WP agreement. If the WP is an FFI, it is also required to report each of its U.S. accounts (or U.S. reportable accounts if a reporting Model 1 FFI) on Form 8966 consis-tent with its chapter 4 requirements or the re-quirements of an IGA. If the WP is an NFFE, the WP must file Form 8966 to report any partner that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) if the NFFE is the beneficial owner of a withholdable payment received by the WP. The WP must also file a Form 8966 to report withholdable payments made to a pass-through partner for which the WP acts under the WP agreement that provides information on an account holder (or interest holder) that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. own-ers (or, under an applicable IGA, controlling persons that are specified U.S. persons) and that is the beneficial owner of the withholdable

payment received by the WP, unless the pass-through partner certifies to the WP that it is reporting on the account holder (or interest holder) pursuant to its U.S. account reporting requirements. The preceding sentence applies with respect to a pass-through partner to which the WP applies the agency option or which has partners, beneficiaries, or owners that are indi-rect partners of the WP.

Joint account treatment. Under special pro-cedures provided in the WP agreement, a WP may apply joint account treatment to a partner-ship or trust that is a direct partner of the WP. A WP that applies the joint account option must elect to perform pool reporting for amounts sub-ject to chapter 3 withholding that either are not withholdable payments or are withholdable pay-ments for which no chapter 4 withholding is re-quired and that the WP distributes to, or in-cludes in the distributive share of, a foreign direct partner. These rules only apply to a part-nership or trust that meets the following condi-tions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WP agreement), an owner-documented FFI, an exempt beneficial owner, or an NFFE (other than a WP or WT).

It is a direct partner of the WP.

None of its partners, beneficiaries, or own-ers is a flow-through entity or intermediary.

None of the partnership’s or trust’s part-ners, beneficiaries, or owners is a U.S. person or is subject to withholding or re-porting under chapter 4.

It agrees to make available upon request to the WP (or the WP’s auditor) records that establish it has provided the WP with doc-umentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or owners.

For more information on applying these rules, see section 9.01 of the WP agreement in section 6 of Revenue Procedure 2017-21, avail-able at IRS.gov/irb/2017-06_IRB#RP-2017-21.

Agency option. A WP may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the WP and to apply the provisions of the WP agreement to its partners, beneficiaries, or own-ers. A WP that applies the agency option must elect to perform pool reporting for amounts sub-ject to chapter 3 withholding that either are not withholdable payments or are withholdable pay-ments for which no chapter 4 withholding is re-quired and that the WP distributes to, or in-cludes in the distributive share of, a foreign direct partner. A WP and a partnership or trust may only apply the agency option if the partner-ship or trust meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct partner of the WP or an indirect partner of the WP that is a direct partner, beneficiary, or owner of a partner-ship or trust to which the WP also applies the agency option.

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It is an FFI that is a certified deemed-com-pliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WP agreement), an owner-documented FFI, an NFFE, or an exempt beneficial owner.

None of its partners, beneficiaries, or own-ers is a WT, WP, participating FFI, regis-tered deemed-compliant FFI, registered deemed-compliant Model 1 IGA FFI (as defined in the WP agreement), or QI acting as an intermediary for a payment made by the WP to the partnership or trust.

The WP may not act as a withholding for-eign partnership with respect to any direct or indirect partner of the partnership or trust that is a U.S. nonexempt recipient, unless the U.S. nonexempt recipient is a partner of an owner-documented FFI or passive NFFE to which the WP applies the agency option and is included in the WP’s U.S. payee pool.

It agrees to comply with the compliance procedures described in section 8.05 of the WP agreement by providing the WP with the certification described in section 8.03 of the WP agreement and providing the WP with documentation or other infor-mation for review.

It agrees to comply with the documentation requirements of a WP in the WP agree-ment.

For more information on applying these rules, see section 9.02 of the WP agreement in section 6 of Revenue Procedure 2017-21, avail-able at IRS.gov/irb/2017-06_IRB#RP-2017-21.

WP acting for indirect partners. A WP may act as a WP with respect to an indirect partner of the WP that is not a U.S. nonexempt recipi-ent. However, a WP may act as a WP for an in-direct partner that is a U.S. nonexempt recipient if the indirect partner is included in a pass-through partner’s chapter 4 withholding rate pool of recalcitrant account holders or U.S. payees. A WP acting as a WP for an indirect partner is not required to forward to its withhold-ing agent the documentation and the withhold-ing statement of the pass-through partner and indirect partner that the WP would have other-wise been required to provide under the re-quirements of a nonwithholding foreign partner-ship. See Not acting as a WP, later. However, a WP must provide the withholding agent with documentation and any other information from any pass-through partner whose direct or indi-rect partner, beneficiary, or owner is a U.S. non-exempt recipient unless the recipient is inclu-ded in the pass-through partner’s chapter 4 withholding rate pool of recalcitrant account holders or U.S. payees.

If a WP is making a payment that is a with-holdable payment, the pass-through partner’s withholding statement must meet the require-ments of Regulations section 1.1471-3(c)(3)(iii)

(B). The pass-through partner’s withholding statement must include the account holders or interest holders of the pass-through partner in chapter 4 withholding rate pools (to the extent permitted), and, for an amount subject to chap-ter 3 withholding that is not a withholdable pay-ment or is a withholdable payment for which chapter 4 withholding is not required, valid

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documentation provided by the account holders or interest holders of the pass-through partner that are not themselves QIs or flow-through en-tities.

For more information on applying these rules, see section 9.03 of the WP agreement in section 6 of Revenue Procedure 2017-21, avail-able at IRS.gov/irb/2017-06_IRB#RP-2017-21.

Not acting as a WP. A foreign partnership that is not acting as a WP is a nonwithholding for-eign partnership. This occurs if a WP is not act-ing in that capacity for some or all of the amounts it receives from you.

You must treat payments made to a non-withholding foreign partnership as made to the partners of the partnership. The partnership must provide you with a Form W-8IMY (with Part VIII completed), a withholding statement identifying the amounts, the withholding certifi-cates or documentary evidence of the partners, and the information shown earlier under With-holding statement under Nonqualified Interme-diary (NQI).

Withholding Foreign Trusts (WTs)

If you are making payments to a WT for chap-ter 3 or 4 purposes, you do not have to withhold if the WT is acting in that capacity. The WT must assume primary chapters 3 and 4 with-holding responsibility for amounts that are dis-tributed to, or included in the distributive share of, any direct beneficiary or owner and may as-sume primary chapters 3 and 4 withholding re-sponsibility for certain of its indirect beneficia-ries or owners. The WT must withhold the amount required to be withheld. A WT must pro-vide you with a Form W-8IMY that certifies that the WT is acting in that capacity and provides all other information and certifications required by the form. The Form W-8IMY must contain the WT-EIN and GIIN (if applicable).

A WT can be either an FFI or an NFFE. An FFI (other than a retirement fund) that is a WT must be a participating FFI, a registered deemed-compliant FFI, or an FFI treated as a deemed-compliant FFI under an applicable Model 1 IGA that is subject to similar due dili-gence and reporting requirements with respect to its U.S. accounts as those applicable to a registered deemed-compliant FFI under Regu-lations section 1.1471-5(f)(1) (including the re-quirement to register with the IRS) (defined in the WT agreement as a “registered deemed-compliant Model 1 IGA FFI”). Thus, you must identify the chapter 4 status of an FFI certifying its status as a WT as one of the chap-ter 4 statuses referenced in the preceding sen-tence on a Form W-8IMY when a chapter 4 sta-tus is required for chapter 4 purposes.

Responsibilities of a WT. The WT must with-hold on the date it makes a distribution of a withholdable payment or an amount subject to chapter 3 withholding to a direct foreign benefi-ciary or owner. If the beneficiary's or owner's distributive share has not been distributed, the WT must withhold on the beneficiary's or own-er's distributive share on the earlier of the date that the trust must mail or otherwise provide to the beneficiary or owner the statement required under section 6048(b) or the due date for fur-

nishing the statement (whether or not the WT is required to furnish the statement).

The WT may determine the amount of with-holding based on a reasonable estimate of the beneficiary's or owner's distributive share of in-come subject to withholding for the year. The WT must correct the estimated withholding to reflect the actual distributive share on the earlier of the dates mentioned in the preceding para-graph. If that date is after the earlier of the due date (including extensions) for filing the WT's Form 1042-S or the date the WT actually issues Form 1042-S for the calendar year, the WT may withhold and report any adjustments required by correcting the information for the following calendar year.

Form 1042 filing. The WT must file Form 1042 even if no amount was withheld. In addi-tion to the information that is required for the Form 1042, the WT must attach a statement showing the amounts of any over- or un-der-withholding adjustments and an explana-tion of those adjustments.

Form 1042-S reporting. The WT can elect to report payments made to its foreign di-rect beneficiaries or owners on a pooled basis for chapter 3 purposes rather than reporting payments made to each foreign direct benefi-ciary or owner in addition to reporting payments in a chapter 4 withholding rate pool to the extent the WT is permitted to do so based on its chap-ter 4 status. A WT can treat as its direct benefi-ciaries or owners those indirect beneficiaries or owners of the WT for which it applies joint ac-count treatment or the agency option (descri-bed later). A WT must otherwise issue a Form 1042-S to each beneficiary or owner to the ex-tent it is required to do so under the WT agree-ment. You may issue a single Form 1042-S for all payments you make to a WT other than pay-ments for which the entity does not act as a WT. You may, however, have Form 1099 require-ments for certain indirect beneficiaries or own-ers of a WT that are U.S. nonexempt recipients.

Collective refund procedures. A WT may seek a refund of tax withheld under chap-ters 3 and 4 on behalf of its beneficiaries or owners when the WT has not issued a Form 1042-S to the beneficiaries or owners that re-ceived the payment that was subject to over-withholding. The beneficiaries or owners, there-fore, are not required to file claims for refund with the IRS to obtain refunds, but rather may obtain them from the WT. A WT may obtain a refund of tax withheld under chapter 4 to the ex-tent permitted under the WT agreement.

Reporting of U.S. beneficiaries or own-ers. If the WT is a grantor trust with U.S. own-ers, the WT is required to file Form 3520-A, and to provide statements to a U.S. owner, as well as each U.S. beneficiary who is not an owner and receives a distribution. If the WT is an FFI, it is required to report each of its U.S. accounts (or U.S. reportable accounts if a reporting Model 1 FFI) on Form 8966 consistent with its FATCA requirements or the requirements of an IGA. If the WT is an NFFE, the WT must file Form 8966 to report any beneficiary or owner that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons

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that are specified U.S. persons) if the NFFE is the beneficial owner of a withholdable payment received by the WT.

The WT must also file a Form 8966 to report withholdable payments made to a pass -through beneficiary or owner for which the WT acts un-der the WT agreement that provides information on an account holder (or interest holder) that is an NFFE (other than an excepted NFFE) with one or more substantial U.S. owners (or, under an applicable IGA, controlling persons that are specified U.S. persons) and that is the benefi-cial owner of the withholdable payment re-ceived by the WT, unless the pass-through ben-eficiary or owner certifies to the WT that it is reporting on the account holder (or interest holder) pursuant to its U.S. account reporting requirements. The preceding sentence applies with respect to a pass-through beneficiary or owner to which the WT applies the agency op-tion or which has partners, beneficiaries, or owners that are indirect beneficiaries or owners of the WT. In addition, if the WT is not a partici-pating FFI, a registered deemed-compliant FFI, or a registered deemed-compliant Model 1 IGA FFI and is not required to report with respect to a U.S. beneficiary of the WT on Form 3520-A, then the WT must report with respect to such beneficiary on Form 8966, as required in the WT agreement. A beneficiary for this purpose means a beneficiary that receives a distribution from the WT during the year or that is required to include an amount in gross income with re-spect to the WT under sections 652(a) or 662(a).

Joint account treatment. Under special pro-cedures provided in the WT agreement, a WT may apply joint account treatment to a partner-ship or trust that is a direct beneficiary or owner of the WT. A WT that applies the joint account option must elect to perform pool reporting for amounts subject to chapter 3 withholding that either are not withholdable payments or are withholdable payments for which no chapter 4 withholding is required and that the WT distrib-utes to, or includes in the distributive share of, a foreign direct beneficiary or owner. These rules only apply to a partnership or trust that meets the following conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is a certified deemed-compliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WT agreement), an owner-documented FFI, an exempt beneficial owner, or an NFFE (other than a WP or WT).

It is a direct beneficiary or owner of the WT.

None of its partners, beneficiaries, or own-ers is a flow-through entity or intermediary.

None of the partnership’s or trust’s part-ners, beneficiaries, or owners is a U.S. person or is subject to withholding or re-porting under chapter 4.

It agrees to make available upon request to the WT (or the WT’s auditor) records that establish it has provided the WT with docu-mentation for purposes of chapters 3 and 4 for all of its partners, beneficiaries, or own-ers.

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For more information on applying these rules, see section 9.01 of the WT agreement found in section 7 of Revenue Procedure

2017-21,availableatIRS.gov/irb/

2017-06_IRB#RP-2017-21.

Agency option. A WT may apply the agency option to a partnership or trust under which the partnership or trust agrees to act as an agent of the WT and to apply the provisions of the WT agreement to its partners, beneficiaries, or own-ers. A WT that applies the agency option must elect to perform pool reporting for amounts sub-ject to chapter 3 withholding that either are not withholdable payments or are withholdable pay-ments for which no chapter 4 withholding is re-quired and that the WT distributes to, or in-cludes in the distributive share of, a foreign direct beneficiary or owner. A WT and a part-nership or trust may only apply the agency op-tion if the partnership or trust meets the follow-ing conditions.

It is a nonwithholding foreign partnership or nonwithholding foreign trust that is either a simple or grantor trust.

It is either a direct beneficiary or owner of the WT or an indirect beneficiary or owner of the WT that is a direct partner, benefi-ciary, or owner of a partnership or trust to which the WT also applies the agency op-tion.

It is an FFI that is a certified deemed-com-pliant FFI (other than a registered deemed-compliant Model 1 IGA FFI, as defined in the WT agreement), an owner-documented FFI, an NFFE, or an exempt beneficial owner.

None of its partners, beneficiaries, or own-ers is a WT, WP, participating FFI, regis-tered deemed-compliant FFI, registered deemed-compliant Model 1 IGA FFI (as defined in the WT agreement), or a QI act-ing as an intermediary for a payment made by the WT to the partnership or trust.

The WT may not act as a withholding for-eign trust with respect to any direct or indi-rect beneficiary or owner of the partnership or trust that is a U.S. nonexempt recipient, unless the U.S. nonexempt recipient is a beneficiary or owner of an owner-docu-mented FFI or passive NFFE to which the WT applies the agency option and is inclu-ded in the WT’s U.S. payee pool.

It agrees to comply with the compliance procedures described in section 8.05 of the WT agreement by providing the WT with the certification described in section 8.03 of the WT agreement and providing the WT with documentation or other infor-mation for review.

It agrees to comply with the documentation requirements of a WT in the WT agree-ment.

For more information on applying these rules, see section 9.02 of the WT agreement in section 7 of Revenue Procedure 2017-21, avail-able at IRS.gov/irb/2017-06_IRB#RP-2017-21.

WT acting for indirect beneficiaries or own-ers. A WT may act as a WT with respect to an indirect beneficiary or owner of the WT that is not a U.S. nonexempt recipient. However, a WT may act as a WT for an indirect beneficiary or owner that is a U.S. nonexempt recipient if the

indirect beneficiary or owner is included in a pass-through beneficiary’s or owner’s chapter 4 withholding rate pool of recalcitrant account holders or U.S. payees. A WT acting as a WT for an indirect beneficiary or owner is not re-quired to forward to its withholding agent the documentation and the withholding statement of the pass-through beneficiary or owner and in-direct beneficiary or owner that the WT would have otherwise been required to provide under the requirements of a nonwithholding foreign trust. See Not acting as a WT, later. However, a WT must provide the withholding agent with documentation and any other information from any pass-through beneficiary or owner whose direct or indirect partner, beneficiary, or owner is a U.S. nonexempt recipient unless the recipi-ent is included in the pass-through beneficiary’s or owner’s chapter 4 withholding rate pool of re-calcitrant account holders or U.S. payees. If a WT is making a payment that is a withholdable payment, the pass-through beneficiary’s or owner’s withholding statement must meet the requirements of Regulations section 1.1471-3(c)(3)(iii)(B). The pass-through benefi-ciary’s or owner’s withholding statement must include the account holders or interest holders of the pass-through beneficiary or owner in chapter 4 withholding rate pools (to the extent permitted), and, for an amount subject to chap-ter 3 withholding that is not a withholdable pay-ment or is a withholdable payment for which chapter 4 withholding is not required, valid doc-umentation provided by the account holders or interest holders of the pass-through beneficiary or owner that are not themselves QIs or flow-through entities.

For more information on applying these rules, see section 9.03 of the WT agreement in section 7 of Revenue Procedure 2017-21, avail-able at IRS.gov/irb/2017-06_IRB#RP-2017-21.

Not acting as a WT. A foreign trust that is not acting as a WT is a nonwithholding foreign trust. This occurs if a WT is not acting in that capacity for some or all of the amounts it receives from you.

In most cases, you must treat payments made to a nonwithholding foreign trust as made to the beneficiaries of a simple trust or the own-ers of a grantor trust. The trust must provide you with a Form W-8IMY (with Part VIII comple-ted), a withholding statement identifying the amounts, the withholding certificates or docu-mentary evidence of the beneficiaries or own-ers, and the information shown earlier under Withholding statement under Nonqualified Inter-mediary (NQI).

Standards of Knowledge for Purposes of Chapter 3

You must withhold in accordance with the pre-sumption rules (discussed later) if you know or have reason to know that a withholding certifi-cate or documentary evidence provided by a payee is unreliable or incorrect to establish the payee's status for chapter 3 purposes. If you rely on an agent to obtain documentation, you are considered to know, or have reason to know, the facts that are within the knowledge of your agent for this purpose.

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Reason To Know

In general, you are considered to have reason to know that a claim of foreign status or of a re-duced rate of withholding is incorrect if state-ments contained in the withholding certificate or other documentation, or other relevant facts of which you have knowledge, would cause a rea-sonably prudent person in your position to question the claims made.

For an obligation that is not a preexisting ob-ligation (that is, an obligation, including an ac-count, held by an individual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, exe-cuted, or issued before January 1, 2015), you have reason to know that an account holder’s chapter 3 claim is unreliable or incorrect if any information contained in your account opening files or other account information conflicts with the account holder’s claim. For an obligation other than a preexisting obligation, you will not be considered to have reason to know that a person’s chapter 3 claim is unreliable or incor-rect based on documentation collected for anti-money laundering (AML) purposes until 30 days after the obligation is executed, or 30 days after the account is opened for such person, whichever is applicable.

Financial institutions, insurance companies, or brokers or dealers in securities have reason to know that documentation provided by a di-rect account holder is unreliable or incorrect only in the circumstances discussed next. If the documentation is considered unreliable or in-correct, you must get new documentation to support the payee’s claimed status or may rely on the original documentation if you receive the additional statements and/or documentation discussed later and are a withholding agent de-scribed above with respect to a direct account holder (defined in Regulations section 1.1441-7(b)(3)(i)). Such documentation is de-scribed in Regulations section 1.1471-3(c)(5)(i).

The circumstances, discussed next, also apply to other withholding agents. However, these withholding agents are not limited to these circumstances in determining if they have reason to know that documentation is unreliable or incorrect. These withholding agents cannot base their determination on the receipt of addi-tional statements or documents. They need to get new documentation.

Withholding Certificates

You have reason to know that a Form W-8 pro-vided by a direct account holder that is a foreign person is unreliable or incorrect if:

The Form W-8 is incomplete with respect to any item on the form that is relevant to the claims made by the account holder;

The Form W-8 contains any information that is inconsistent with the account hold-er's claim;

The Form W-8 lacks information necessary to establish entitlement to a reduced rate of withholding, if a reduced rate is claimed; or

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You have information not contained on the form that is inconsistent with the claims made on the form.

The rules below apply to withholding agents that are financial institutions, insurance compa-nies, or brokers or dealers in securities.

Limits on reason to know for preexisting obligations. With respect to a preexisting obli-gation (that is, an obligation, including an ac-count, held by an individual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, exe-cuted, or issued before January 1, 2015), if you have documented the foreign status of an ac-count holder for purposes of chapter 3 or 61 prior to July 1, 2014, you may continue to rely on that documentation. In addition, if you make a payment to a new entity account holder that you treat as a preexisting entity account under Notice 2014-33, 2014-20 I.R.B. 1006, available at IRS.gov/irb/2014-21_IRB#NOT-2014-33, you may apply the standards of knowledge in Regu-lations sections 1.1441 -7(b)(5) and (b)(8), that were applicable prior to the issuance of the tem-porary regulations. See Notice 2014-59, 2014-44 I.R.B. 747, available at IRS.gov/irb/ 2014-44_IRB#NOT-2014-59.

However, if you review documentation for an individual account holder claiming foreign sta-tus that contains a U.S. place of birth or if you are notified of a change in circumstances, the obligation will be treated as having a change in circumstances as of the date you review the documentation or receive the notification, and you will then have reason to know that the doc-umentation is unreliable or incorrect. However, if you are reviewing documentation provided by an entity before January 1, 2015, you will not be required to treat the additional U.S. indicia added to Regulations section 1.1441-7(b) by the temporary regulations as a change in cir-cumstances. See Notice 2014-59, for more in-formation.

Establishment of foreign status by certain withholding agents. You have reason to know that a Form W-8BEN or W-8BEN-E is un-reliable or incorrect to establish a direct account holder's status as a foreign person if:

1. The Form W-8 has a current permanent residence address in the United States,

2. The Form W-8 has a current mailing ad-dress in the United States,

3. You have a current residence or current mailing address as part of your account in-formation that is an address in the United States,

4. The account holder notifies you of a new residence or mailing address in the United States,

5. You have classified the account holder as a U.S. person in your account information, or

6. You have a current telephone number for the account holder in the United States and no telephone number for the account holder outside the United States (only to the extent described in Regulations sec-tion 1.1441-7(b)(5)).

You may, however, rely on a Form W-8 as establishing the account holder's foreign status if any of the following apply.

1. You receive the Form W-8BEN from an in-dividual and:

a. You possess or obtain documentary evidence (that does not contain a U.S. address) that supports the claim of foreign status, and the individual pro-vides you with a reasonable explana-tion, in writing, supporting the claim of foreign status;

b. If you make a payment outside the United States with respect to an off-shore obligation and you possess or obtain documentary evidence estab-lishing foreign status that does not contain a U.S. address;

c. With respect to an offshore obligation, if you classify the individual as a resi-dent of the country where the obliga-tion is maintained and you are re-quired to report payments to the individual annually to the tax authority of the country where the obligation is maintained and that country has a tax treaty or information exchange agree-ment in effect with the United States; or

d. You have classified the account holder as a U.S person in your ac-count information and you possess or obtain documentary evidence evi-dencing citizenship in a country other than the United States.

2. You receive the Form W-8BEN-E from an entity that is not a flow-through entity and:

e. You have in your possession or obtain documentation establishing foreign status that substantiates that the en-tity is organized or created under for-eign law; or

f. With respect to an offshore obligation, if you classify the entity as a resident of the country where the obligation is maintained and you are required to report payments to the entity annually to the tax authority of the country where the obligation is maintained and that country has a tax treaty or in-formation exchange agreement in ef-fect with the United States.

3. The account holder (whether an individual or an entity) has provided standing instruc-tions to make payments with respect to an offshore obligation to an address in, or an account maintained in, the United States, unless the account holder provides a rea-sonable explanation, in writing, that sup-ports its foreign status or provides docu-mentary evidence supporting its foreign status.

4. If an individual account holder provides a Form W-8BEN to establish the individual’s foreign status, and you have, either on ac-companying documentation or as part of your account information, an unambigu-ous indication of a place of birth for the in-dividual in the United States, you may not

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rely on the Form W-8BEN unless you pos-sess or obtain documentary evidence evi-dencing citizenship in a country other than the United States, and either (i) a copy of the individual’s Certificate of Loss of Na-tionality of the United States, or (ii) a rea-sonable written explanation for the individ-ual’s renunciation of U.S. citizenship (or, under an applicable IGA, the reason the individual does not have a Certificate of Loss of Nationality of the United States despite relinquishing its U.S. citizenship), or the reason the individual did not obtain U.S. citizenship at birth.

Claim of reduced rate of withholding under treaty by certain withholding agents. You have reason to know that a Form W-8BEN or W -8BEN-E provided by a direct account holder to claim a reduced rate of withholding under a treaty is unreliable or incorrect for purposes of establishing the account holder's residency in a treaty country if:

The permanent residence address on the Form W-8 is not in the treaty country or the beneficial owner notifies you of a new per-manent residence address that is not in the treaty country,

The permanent residence address on the Form W-8 is in the treaty country but the withholding certificate (or your account in-formation) contains a mailing address that is not in the treaty country,

You have a current mailing address in your account information outside the treaty country, or

The account holder has standing instruc-tions for you to pay amounts from its ac-count to an address or an account not in the treaty country.

You may, however, rely on a Form W-8 as establishing an account holder's claim of a re-duced rate of withholding under a treaty if any of the following apply.

1. The permanent residence address is not in the treaty country and:

a. The account holder provides a rea-sonable explanation for the perma-nent residence address outside the treaty country, or

b. You possess or obtain documentary evidence described in Regulations section 1.1471-3(c)(5)(i) that estab-lishes residency in a treaty country.

2. The mailing address is not in the treaty country and:

c. You possess or obtain documentary evidence described in Regulations section 1.1471-3(c)(5)(i) (that does not contain an address outside the treaty country) supporting the benefi-cial owner's claim of residence in the treaty country,

d. You possess or obtain documentation that establishes that the beneficial owner is an entity organized in a treaty country,

e. You know that the address outside the treaty country is a branch of the

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account holder that is a resident of the treaty country, or

d. You obtain a written statement from the beneficial owner that reasonably establishes its entitlement to treaty benefits.

3. You have instructions to pay amounts out-side the treaty country and the account holder gives you a reasonable explana-tion, in writing, establishing residence in the applicable treaty country or you pos-sess or obtain documentary evidence de-scribed in Regulations section 1.1471-3(c)

(5)(i) establishing the account holder’s residence in the treaty country.

Hold mail instruction. An address that is pro-vided subject to an instruction to hold all mail to that address is not a permanent residence ad-dress such that you may not rely upon the Form W-8. However, the address can be used as a permanent residence address if the person has provided you with documentary evidence that is permitted under Regulations section 1.1441-1(c)(38)(ii). If, after a Form W-8 is provi-ded, a person’s permanent residence address is subsequently subject to a hold mail instruc-tion, this is a change in circumstances requiring the person to provide the documentary evi-dence described in the preceding sentence in order to use the address as a permanent resi-dence address.

Documentary Evidence

You have reason to know that documentary evi-dence provided by a direct account holder to support a claim of foreign status is unreliable or incorrect if:

The documentary evidence does not rea-sonably establish the identity of the person presenting the documentary evidence;

The documentary evidence contains infor-mation that is inconsistent with the account holder's claim of a reduced rate of with-holding; or

You have account information that is in-consistent with the account holder's claim of a reduced rate of withholding, or the documentary evidence lacks information necessary to establish a reduced rate of withholding. For example, the documen-tary evidence does not contain, or is not supplemented by, statements regarding the derivation of the income or compliance with limitations on benefits provisions in the case of an entity claiming treaty bene-fits.

Establishment of foreign status. You have reason to know that documentary evidence is unreliable or incorrect to establish a direct ac-count holder's status as a foreign person if any of the following apply.

For documentary evidence received prior to January 1, 2001, if you have actual knowledge that the account holder is a U.S. person or if you have a mailing or resi-dence address for the account holder in the United States.

For documentary evidence received after December 31, 2000, if you do not have a permanent residence address for the ac-

count holder, if you have classified the ac-count holder as a U.S. person in your ac-count information, if you have a current mailing or current permanent residence address (whether or not on the documen-tation) for the account holder in the United States, if the account holder notifies you of a new residence or mailing address in the United States, or if you have a current tele-phone number for the account holder in the United States and no telephone number for the account holder outside the United States.

If the account holder is an individual and you have, either on the documentary evi-dence or as part of your account informa-tion, an unambiguous place of birth for the individual in the United States.

With respect to an offshore obligation, the account holder has standing instructions directing you to pay amounts from the ac-count to an address or account maintained in the United States.

You may, however, rely on documentary evi-dence as establishing an account holder's for-eign status if any of the following apply.

1. The mailing or residence address or sole telephone number is in the United States, you receive the documentary evidence from an individual, and:

a. You possess or obtain additional documentary evidence (that does not contain a U.S. address) supporting the claim of foreign status and a rea-sonable explanation, in writing, sup-porting the account holder's foreign status;

b. You obtain a Form W-8 that contains a permanent residence address and mailing address outside the United States (or, if a mailing address is in-side the United States, the account holder provides a reasonable explan-ation, in writing, supporting the ac-count holder’s foreign status); or

c. For a payment made with respect to an offshore obligation, if you classify the individual as a resident of the country where the obligation is main-tained, you are required to report a payment made to the individual annu-ally on a tax information statement filed with that country’s tax authority as part of the resident reporting re-quirements, and that country has a tax information exchange agreement or income tax treaty in effect with the United States.

2. The mailing or residence address or sole telephone number is in the United States, you receive the documentary evidence from an entity (other than a flow-through entity), and:

d. You possess or obtain documentation to substantiate that the entity is ac-tually organized or created under the laws of a foreign country;

e. You obtain a valid Form W-8 that con-tains a permanent residence address and mailing address outside the

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United States (or, if a mailing address is inside the United States, the ac-count holder provides a reasonable explanation, in writing, supporting the account holder’s foreign status); or

c. For a payment made with respect to an offshore obligation, if you classify the entity as a resident of the country where the obligation is maintained and you are required to report a pay-ment made to the entity annually on a tax information statement filed with that country’s tax authority as part of the resident reporting requirements, and that country has a tax information exchange agreement or income tax treaty in effect with the United States.

3. You have instructions to pay amounts to an address or an account in the United States and the account holder provides you with a reasonable explanation, in writ-ing, that supports the account holder's for-eign status or a valid beneficial owner withholding certificate claiming foreign sta-tus.

4. You have an unambiguous place of birth in the United States for an individual account holder and you possess or obtain docu-mentary evidence demonstrating the indi-vidual’s citizenship in a country other than the United States and a copy of the indi-vidual’s Certificate of Loss of Nationality of the United States. Alternatively, you may treat such an individual as a foreign per-son if you obtain a valid beneficial owner withholding certificate that establishes the individual’s foreign status, documentary evidence evidencing citizenship in a coun-try other than the United States, and a rea-sonable explanation, in writing, of the indi-vidual’s renunciation of U.S. citizenship (or, under an applicable IGA, the reason the individual does not have a Certificate of Loss of Nationality of the United States despite relinquishing U.S. citizenship) or the reason the individual did not obtain U.S. citizenship at birth.

Claim of reduced rate of withholding under treaty. You have reason to know that docu-mentary evidence provided by a direct account holder to claim a reduced rate of withholding under a treaty is unreliable or incorrect for pur-poses of establishing the account holder's resi-dency in a treaty country if:

You have a mailing or residence address for the account holder that is outside the applicable treaty country,

You have no permanent residence for the account holder, or

The account holder has standing instruc-tions for you to pay amounts from its ac-count to an address or account not in the treaty country.

You may, however, rely on documentary evi-dence as establishing an account holder's claim of a reduced rate of withholding under a treaty if any of the following apply.

1. The mailing or residence address is out-side the treaty country and:

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a. You possess or obtain additional documentary evidence supporting the account holder's claim of residence in the treaty country (and the documen-tary evidence does not contain an ad-dress outside the treaty country, a P.O. box, an in-care-of address, or the address of a financial institution),

b. You possess or obtain documentary evidence that establishes that the ac-count holder is an entity organized in a treaty country, or

c. You obtain a valid Form W-8 that con-tains a permanent residence address and a mailing address in the applica-ble treaty country.

2. You have instructions to pay amounts out-side the treaty country and the account holder gives you a reasonable explana-tion, in writing, establishing residence in the applicable treaty country or a valid beneficial owner withholding certificate that contains a permanent residence ad-dress and a mailing address in the appli-cable treaty country.

Indirect Account Holders' Chapter 3 Status

A withholding agent that receives documenta-tion from a payee through an NQI, a flow-through entity, or a U.S. branch of a foreign bank or insurance company subject to U.S. or state regulatory supervision or a territory finan-cial institution (other than a U.S. branch treated as a U.S. person) has reason to know that the documentary evidence is unreliable or incorrect for purposes of a claim of foreign status or a treaty claim if a reasonably prudent person in the withholding agent's position would question the claims made. This standard requires, but is not limited to, compliance with the following rules.

Withholding statement. You must review the withholding statement provided with Form W-8IMY and may not rely on information in the statement to the extent the information does not support the claims made for a payee. You may not treat a payee as a foreign person if a U.S. address is provided for the payee. You may not treat a person as a resident of a country with which the United States has an income tax treaty if the address for the person is outside the treaty country.

You may, however, treat a payee as a for-eign person and may treat a foreign person as a resident of a treaty country if the withholding statement is accompanied by a valid withhold-ing certificate and documentary evidence or a reasonable explanation is provided, by the NQI, flow-through entity, or U.S. branch supporting the payee’s foreign status or residency in a treaty country.

Withholding certificate. If you receive a Form W-8 for a payee in association with a Form W-8IMY, you must review each Form W-8 and verify that the information is consistent with the information on the withholding statement. If there is a discrepancy, you may rely on the Form W-8, if valid, and instruct the NQI,

flow-through entity, or U.S. branch to correct the withholding statement, or, alternatively, you may apply the presumption rules, discussed later in Presumption Rules, to the payee.

If you choose to rely on the withholding cer-tificate, you must, in addition to instructing the NQI, flow-through entity, or U.S. branch to cor-rect the withholding statement, instruct the NQI, flow-through entity, or U.S. branch to confirm that it does not know or have reason to know that the withholding certificate is unreliable or inaccurate.

Documentary evidence. If you receive docu-mentary evidence for a payee in association with a Form W-8IMY, you must review the documentary evidence provided by the NQI, flow -through entity, or U.S. branch to determine that there is no obvious indication that the payee is a U.S. person subject to Form 1099 re-porting or that the documentary evidence does not establish the identity of the person who pro-vided the documentation (for example, the documentary evidence does not appear to be an identification document).

Standards of Knowledge for Purposes of Chapter 4

If you make a withholdable payment, you must withhold in accordance with the presumption rules (discussed later) if you know or have rea-son to know that a withholding certificate or documentary evidence provided by the payee is unreliable or incorrect to establish a payee’s chapter 4 status. If you rely on an agent to ob-tain documentation, you are considered to know, or have reason to know, the facts that are within the knowledge of your agent for this pur-pose.

Notification by the IRS

If you receive notification from the IRS that a claim of status as a U.S. person, a participating FFI, a deemed-compliant FFI, or other entity en-titled to a reduced rate of withholding under chapter 4 is incorrect, you are considered to have knowledge that such a claim is incorrect beginning 30 days after you receive the notice.

GIIN Verification

If you have received a Form W-8BEN-E or Form W-8IMY from an entity payee that is claiming certain chapter 4 statuses, you must obtain and verify the entity’s GIIN against the published IRS FFI list. The IRS FFI list can be found at IRS.gov/Businesses/Corporations/FFI-List-Resources-Page. You must obtain and verify against the published IRS FFI list a GIIN for the following chapter 4 statuses.

Participating FFIs (including reporting Model 2 FFIs).

Registered deemed-compliant FFIs (in-cluding reporting Model 1 FFIs).

Sponsored FFIs.

Direct reporting NFFEs.

Sponsored direct reporting NFFEs.

Certain nonreporting IGA FFIs (as descri-bed below).

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If you receive a Form W -8BEN-E or Form W-8IMY from a nonreporting IGA FFI that is a trustee-documented trust with a foreign trustee, you must obtain the GIIN of a foreign trustee, but you are not required to verify the GIIN. The GIIN that the trustee must provide is the GIIN that it received when it registered as a partici-pating FFI or reporting Model 1 FFI, not the GIIN that it received when it registered as a trustee of a trustee-documented trust.

If you receive a Form W-8BEN-E or Form W-8IMY from a nonreporting IGA FFI that checks Model 2 IGA in Part XII of Form W-8BEN-E or Part XIX of Form W-8IMY (as ap-plicable) and identifies a category of entity that is a registered deemed -compliant FFI under An-nex II of an applicable Model 2 IGA, you must obtain and verify the GIIN of the nonreporting IGA FFI. Additionally, if you receive a Form W-8BEN-E or Form W-8IMY from a nonreport-ing IGA FFI that provides a citation to a section of the regulations for its registered deemed-compliant status in Part XII of Form W-8BEN-E or Part XIX of Form W-8IMY (as ap-plicable), you must obtain and verify the GIIN of the nonreporting IGA FFI. You will have reason to know that such payee is not such a financial institution if the payee's name (including a name reasonably similar to the name the with-holding agent has on file for the payee) and GIIN do not appear on the most recently pub-lished IRS FFI list within 90 days of the date that the claim is made.

If you receive a Form W -8BEN-E or Form W-8IMY from an entity payee and the form con-tains “Applied for” in the box for the GIIN, the payee must provide you its GIIN within 90 days of providing the form. A Form W-8BEN-E or Form W-8IMY from such payee that does not include a GIIN, or includes a GIIN that does not appear on the published IRS FFI list, will be in-valid for chapter 4 purposes 90 days after the date the form is provided.

The GIIN that you must confirm is the GIIN assigned to the FFI identifying its country of res-idence for tax purposes (or place of organiza-tion if the FFI has no country of residence), ex-cept as otherwise provided.

Branches and disregarded entities. If you make a withholdable payment to a branch of, or an entity that is disregarded as an entity sepa-rate from, a participating FFI or registered deemed-compliant FFI located outside of the FFI's country of residence or organization, the GIIN you must verify is the GIIN of the branch or disregarded entity receiving the payment. You must identify a GIIN associated with a disregar-ded entity to the extent provided in the Instruc-tions for Form W-8BEN-E or the Instructions for Form W-8IMY.

You will have reason to know that a with-holdable payment is made to a branch (includ-ing a disregarded entity) of a participating FFI or registered deemed-compliant FFI that is not it-self a participating FFI or registered deemed -compliant FFI when you are directed to make the payment to an address in a jurisdic-tion other than that of the participating FFI or registered deemed-compliant FFI (or branch of, or disregarded entity wholly owned by, such

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FFI) that is identified as the FFI (or branch of, or disregarded entity wholly owned by, such FFI) that is supposed to receive the payment and for which the FFI's GIIN is not confirmed, as descri-bed in the preceding paragraphs.

The preceding sentence does not apply to an FFI that is an investment entity. If an FFI (other than an investment entity) directs you to make the payment to an account held by the FFI and maintained by another financial institu-tion, the FFI must provide to you a statement, in writing, that the FFI is not directing the payment to any branch of such FFI that is not a partici-pating FFI or a registered deemed-compliant FFI.

Sponsored, closely held investment vehi-cles. If you make a withholdable payment to a certified deemed-compliant FFI that is a spon-sored, closely held investment vehicle, you must obtain a GIIN for the sponsoring entity and verify it against the published IRS FFI list.

Reason To Know

In general, you have reason to know that a claim of chapter 4 status is unreliable or incor-rect if your knowledge of relevant facts or state-ments contained in the withholding certificate or other documentation is such that a reasonably prudent person would question the claim being made. For an obligation other than a preexisting obligation (that is, an obligation other than an obligation, including an account, held by an in-dividual that is outstanding on June 30, 2014, or an obligation, including an account, held by an entity that is opened, executed, or issued be-fore January 1, 2015), you have reason to know that a claim of chapter 4 status is unreliable or incorrect if any information contained in the ac-count opening files or other customer account files, including documentation collected for AML due diligence purposes, conflicts with the chap-ter 4 status being claimed. You will not have reason to know that a claim of chapter 4 status is unreliable or incorrect based on documenta-tion collected for AML due diligence purposes until the date that is 30 days after the obligation is created.

If you have classified an entity as engaged in a particular type of business based on your records, such as through the use of a standar-dized industry coding system, you have reason to know that the chapter 4 status claimed by the entity is unreliable or incorrect only if the entity’s claim conflicts with the withholding agent’s clas-sification of the entity’s business type.

Withholding Certificates

In general, you have reason to know that a with-holding certificate from a person is unreliable or incorrect with respect to a claim of chapter 4 status if:

The withholding certificate is incomplete with respect to any item on the certificate that is relevant to the claim made by the person;

The withholding certificate contains any in-formation that is inconsistent with the per-son’s claim;

You have other account information that is inconsistent with the person’s claim;

The withholding certificate lacks informa-tion necessary to establish entitlement to an exemption from withholding for chap-ter 4 purposes; or

With respect to an alternative certification under an applicable IGA included with a withholding certificate, if you know or have reason to know the certification is incor-rect.

If you obtain a withholding certificate associ-ated with a withholdable payment to a partici-pating FFI, a registered deemed-compliant FFI, a sponsoring entity, or a sponsored FFI, you do not need to apply the standards of knowledge described earlier with respect to an account holder’s claim of foreign status if you have con-firmed the FFI’s GIIN on the current published IRS FFI list within 90 days of receipt of the with-holding certificate.

A withholding certificate used for chap-

ter 4 purposes must also include the in-CAUTION formation required for chapter 3 purpo-ses (that is, the entity’s tax classification) with regard to a payment that is a reportable amount under Regulations section 1.1441-1(e)(3)(vi).

Documentary Evidence

You have reason to know that documentary evi-dence provided by a person is unreliable or in-correct with respect to a claim of chapter 4 sta-tus if:

The documentary evidence does not rea-sonably establish the identity of the person presenting the documentary evidence,

The documentary evidence contains infor-mation that is inconsistent with the per-son’s claim as to its chapter 4 status,

You have other account information that is inconsistent with the person’s chapter 4 status, or

The documentary evidence lacks informa-tion necessary to establish the person’s chapter 4 status.

For standards of knowledge applicable to specific types of documentary evidence, see Regulations section 1.1471-3.

Payee Documentation From Intermediaries

or Flow-Through Entities

In general. If you receive documentation for a payee of a withholdable payment through one or more intermediaries or flow-through entities, you must, in addition to determining each such entity’s chapter 4 status when required for chapter 4 purposes, review all documentation obtained with respect to the payee. Under cer-tain circumstances, you may rely on a withhold-ing certificate with an electronic signature provi-ded by an account holder that is an NQI, when you are permitted to do so under Regulations section 1.1441-1(e)(4)(i)(B). When withholding under chapter 4 is not applied based on the chapter 4 status of an intermediary or flow-through entity, you are not required to ob-tain documentation for a payee through an

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intermediary or flow-through entity that is a QI, WP, or WT, or a payee that is included in a chapter 4 withholding rate pool of U.S. payees.

Withholding statement. You must review the withholding statement provided and may not rely on information in the statement to the extent the information does not support the claims made regarding the chapter 4 status of the payee. You may not treat a person as a for-eign person if a U.S. address is provided, un-less the withholding statement is accompanied by a valid withholding certificate and documen-tary evidence establishing foreign status.

Withholding certificate. You must review each withholding certificate, written statement (as permitted for chapter 4 purposes with re-spect to certain payments to entities), or docu-mentary evidence, and must verify that the in-formation is consistent with the information on the withholding statement. If there is a discrep-ancy, you may rely on the documentation provi-ded such documentation is valid and the inter-mediary or flow-through entity does not indicate that the documentation is unreliable or incor-rect, or, alternatively, you may apply the pre-sumption rules. If you choose to rely on the doc-umentation, you must instruct the intermediary or flow-through entity to correct the withholding statement and confirm that the intermediary or flow-through entity does not know or have rea-son to know that the documentation is unrelia-ble or incorrect. See Regulations section 1.1471-3(d) for when a written statement is per-mitted for chapter 4 purposes.

Documentation from participating FFIs and registered deemed-compliant FFIs. If you receive documentation for a payee of a with-holdable payment through a participating FFI or registered deemed-compliant FFI that is an in-termediary or flow-through entity receiving the payment, you may rely on the chapter 4 status provided in the withholding statement, including a chapter 4 status determined under the re-quirements of (and documentation or informa-tion that is publicly available that determines the chapter 4 status of the payee permitted under) an applicable IGA, provided that you have the information necessary to report on Form 1042 -S, unless you have information that con-flicts with the chapter 4 status provided. If un-derlying documentation is provided for the payee and information in the documentation or in your records conflicts with the chapter 4 sta-tus claimed, you have reason to know that the chapter 4 status claimed is unreliable or incor-rect. However, you are not required to verify the information contained in the documentation that is not facially incorrect, and you are generally not required to obtain supporting documenta-tion for the payee. You may determine the re-cipient code of a payee for chapter 4 purposes (for filing Form 1042-S) that is not identified on a withholding statement when you are able to do so based on other information included on or with the withholding statement or in your re-cords with respect to the payee.

Preexisting obligation of entities. If you make a withholdable payment with respect to a preexisting obligation to an entity, the scope of review is limited with respect to the time in which you must determine the entity’s chapter 4

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status. For more information, see Regulations section 1.1471-3(e)(4)(vii) or, if you are a re-porting Model 1 FFI or a reporting Model 2 FFI, the requirements of the applicable IGA.

Presumption Rules

If you cannot reliably associate a payment with valid documentation, you must apply certain presumption rules or you may be liable for tax, interest, and penalties. If you comply with the presumption rules, you are not liable for tax, in-terest, and penalties even if the rate of withhold-ing that should have been applied based on the payee's actual status is different from that pre-sumed.

The presumption rules apply to determine the status of the person you pay as a U.S. or foreign person and other relevant characteris-tics, such as whether the payee is a beneficial owner or intermediary, and whether the payee is an individual, corporation, partnership, or trust. In the case of a withholdable payment you make to an entity, you must apply the presump-tion rules for chapter 4 purposes to treat the en-tity as a nonparticipating FFI when you cannot reliably associate the payment with documenta-tion permitted for chapter 4 purposes. You are not permitted to apply a reduced rate of chap-ter 3 withholding based on a payee's presumed status if documentation is required to establish a reduced rate of withholding. For example, if the payee of interest is presumed to be a for-eign person, you may not apply the portfolio in-terest exception or a reduced rate of withhold-ing under a tax treaty since both exceptions require documentation.

If you rely on your actual knowledge about a payee's status and withhold an amount less than that required under the presumption rules or do not report a payment that is subject to re-porting under the presumption rules, you may be liable for tax, interest, and penalties. You should, however, rely on your actual knowledge if doing so results in withholding an amount greater than would apply under the presumption rules or in reporting an amount that would not be subject to reporting under the presumption rules.

In the case of a participating FFI or regis-tered deemed-compliant FFI that cannot report with respect to an individual account holder, the FFI must classify the account holder under the requirements (as applicable) of the FFI agree-ment, Regulations section 1.1471-5(f), or an ap-plicable IGA. Whether withholding applies to payments made to such account holders classi-fied as recalcitrant account holders (including payments to intermediaries or flow-through enti-ties allocating payments to such account hold-ers on an applicable withholding statement) dif-fers under these requirements.

The presumption rules, in the absence of documentation, for the subject matter are dis-cussed in the regulations section indicated on Chart A.

Chart A. Presumption Rules in the Absence of Documentation

For the	See Regulations
presumption	section:
rules related to:
	1.1441-1(b)(3);
	1.6049-5(d);
Payee's status	1.1471-3(f)
	(chapter 4 payees)
Effectively	1.1441-4(a)(2)
connected income
Partnership and its	1.1441-5(d);
partners	1.1446-1(c)(3)
Estate or trust and
its beneficiaries or	1.1441-5(e)(6)
owner
Foreign
tax-exempt
organizations
(including private	1.1441-9(b)(3)
foundations)

Presumption Rules for Chapter 4

If you determine that you are making a withhold-able payment to an entity and cannot reliably associate the payment with a valid Form W-8 or other documentation that you are permitted to rely upon and that is sufficient to determine the chapter 4 status of the entity, you are required to treat the entity payee as a nonparticipating FFI such that withholding applies. For purposes of determining whether the payment is made to an individual or an entity, or to a U.S. person or a foreign person, if you cannot reliably asso-ciate a payment with a valid Form W-8 or other documentation that you are permitted to rely upon and from which you are able to determine the payee’s status as an individual or entity, or U.S. or foreign status, you must apply the pre-sumption rules of Regulations section 1.1441 -1(b)(3)(ii) to determine the payee’s sta-tus as an individual or entity and Regulations section 1.1441-1(b)(3)(iii) to determine the payee’s U.S. or foreign status.

If you are making a withholdable payment to joint payees and cannot reliably associate the payment with valid documentation from each payee and each of the payees appears to be an individual, the payment is presumed made to an unidentified U.S. person. If any of the joint pay-ees does not appear, by its name or other infor-mation in its account file, to be an individual, then the entire payment is treated as made to a nonparticipating FFI. However, if you receive from one of the joint payees a Form W-9, the payment shall be treated as made to that payee.

Income Subject to Withholding

This section explains how to determine if a pay-ment is subject to chapter 3 withholding or is a withholdable payment.

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Amounts Subject to Chapter 3 Withholding

A payment is subject to chapter 3 withholding if it is from sources within the United States, and it is fixed or determinable annual or periodical (FDAP) income. Generally, excluding gains but including certain gains from the disposal of tim-ber, coal, and iron ore, or from the sale or ex-change of patents, copyrights, and similar intan-gible property.

In addition, a payment is subject to chap-ter 3 withholding if withholding is specifically re-quired, even though it may not constitute U.S. source income or FDAP income. For example, corporate distributions may be subject to chap-ter 3 withholding even though a part of the dis-tribution may be a return of capital or capital gain that is not FDAP income.

Amounts not subject to chapter 3 withhold-ing. The following amounts are not subject to chapter 3 withholding.

Portfolio interest paid on obligations that meet certain requirements. See Interest, later.

Bank deposit interest that is not effectively connected with the conduct of a U.S. trade or business. See Interest, later.

Original issue discount on certain short-term obligations. See Original issue dis-count, later.

Nonbusiness gambling income of a non-resident alien playing blackjack, baccarat, craps, roulette, or big-6 wheel in the United States. See Gambling winnings, later.

Amounts paid as part of the purchase price of an obligation sold between interest pay-ment dates. See Interest, later.

Original issue discount paid on the sale of an obligation other than a redemption. See Original issue discount, later.

Insurance premiums paid on a contract is-sued by a foreign insurer subject to the ex-cise tax under section 4371.

U.S. source transportation income subject to a 4% tax on gross income.

Amounts Subject to Chapter 4 Withholding

U.S. source FDAP income for purposes of chapter 4 is similar to U.S. source FDAP in-come for purposes of chapter 3, subject to cer-tain modifications such as the exclusion of cer-tain types of non-financial payments and the inclusion (as U.S. source interest) of deposit in-terest paid by a foreign branch of a U. S. corpo-ration or partnership. Also, see Fixed or Deter-minable Annual or Periodical Income (FDAP), later.

A withholding agent must withhold on a pay-ment of U.S. source FDAP income that is a withholdable payment to which an exception does not apply under chapter 4.

Amounts not subject to withholding under chapter 4. The following amounts are not sub-ject to withholding under chapter 4.

Interest or original issue discount from a short-term obligation.

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Payments made under a grandfathered obligation (for example, obligations out-standing on July 1, 2014).

Source of Income

In most cases, income is from U.S. sources if it is paid by domestic corporations, U.S. citizens or resident aliens, or entities formed under the laws of the United States or a state. Income is also from U.S. sources if the property that pro-duces the income is located in the United States or the services for which the income is paid were performed in the United States or the income is a dividend equivalent. A payment is treated as being from sources within the United States if the source of the payment cannot be determined at the time of payment, such as fees for personal services paid before the serv-ices have been performed. Other source rules are summarized in Chart B and explained in de-tail in the separate discussions under Withhold-ing on Specific Income, later.

In most cases, interest on an obligation of a foreign corporation or foreign partnership is for-eign-source income. If the entity is engaged in a trade or business in the United States during its tax year, interest paid by such entity is treated as from U.S. sources only if the interest is paid by a U.S. trade or business conducted by the entity or is allocable to income that is treated as effectively connected with the conduct of a U.S. trade or business. This applies to a foreign part-nership only if it is predominantly engaged in the active conduct of a trade or business out-side the United States.

Guarantee income. Certain amounts paid, di-rectly or indirectly, for the provision of a guaran-tee of indebtedness issued after September 27, 2010, are from U.S. sources. The amounts must be paid by one of the following.

1. A noncorporate U.S. resident or a U.S. corporation for the provision of a guaran-tee of the resident or corporation.

2. Any foreign person for the provision of a guarantee if the payment of income is ef-fectively connected, or treated as effec-tively connected, with the conduct of a U.S. trade or business.

Personal service income (for purposes of chapter 3 withholding). If the income is for personal services performed in the United States, it is from U.S. sources. The place where the services are performed determines the source of the income, regardless of where the contract was made, the place of payment, or the residence of the payer.

However, under certain circumstances, pay-ment for personal services performed in the United States is not considered income from sources within the United States. For informa-tion on this exception, see Pay for Personal Services Performed, later.

If the income is for personal services per-formed partly in the United States and partly outside the United States, you must make an accurate allocation of income for services per-formed in the United States based on the facts and circumstances. In most cases, you make this allocation on a time basis. That is, U.S.

source income is the amount that results from multiplying the total amount of pay by the fol-lowing fraction.

Number of days services are performed in the United States

Total number of days of service for which

compensation is paid

Multiyear compensation. Generally, the source of multiyear compensation is deter-mined on a time basis over the period to which the compensation is attributable. Multiyear compensation is compensation that is included in the taxable income of a recipient in 1 tax year but that is attributable to a period that includes 2 or more tax years. The determination of the pe-riod to which the compensation is attributable, for purposes of determining its source, is based on the facts and circumstances of each case. For example, an amount of compensation that specifically relates to a period of time that in-cludes several calendar years is attributable to the entire multiyear period. Where determining the source of multiyear compensation on a time basis is appropriate, the amount of compensa-tion treated as from U.S. sources is figured by multiplying the total multiyear compensation by a fraction. The numerator of the fraction is the number of days (or unit of time less than a day, if appropriate) that labor or personal services were performed in the United States in connec-tion with the project. The denominator of the fraction is the total number of days (or unit of time less than a day, if appropriate) that labor or personal services were performed in connec-tion with the project.

Employees. If the services are performed partly in the United States and partly outside the United States by an employee, the allocation of pay, other than certain fringe benefits, is deter-mined on a time basis. The following fringe ben-efits are sourced on a geographical basis as shown in the following list.

Housing—employee's main job location.

Education—employee's main job location.

Local transportation—employee's main job location.

Tax reimbursement—jurisdiction imposing tax.

Hazardous or hardship duty pay—location of pay zone.

Moving expense reimbursement—employ-ee's new main job location.

For information on what is included in these benefits, see Regulations section 1.861-4(b)(2) (ii)(D).

An employee's main job location (principal place of work) is usually the place where the employee spends most of his or her working time. If there is no one place where most of the work time is spent, the main job location is the place where the work is centered, such as where the employee reports for work or is other-wise required to base his or her work.

An employee can use an alternative basis based on facts and circumstances, rather than the time or geographical basis. The employee, not the employer, must demonstrate that the al-ternative basis more properly determines the source of the pay or fringe benefits.

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Territorial limits. Wages received for serv-ices rendered inside the territorial limits of the United States and wages of an alien seaman earned on a voyage along the coast of the Uni-ted States are regarded as from sources in the United States. Wages or salaries for personal services performed in a mine or on an oil or gas well located or being developed on the conti-nental shelf of the United States are treated as from sources in the United States.

Income from the performance of services di-rectly related to the use of a vessel or aircraft is treated as derived entirely from sources in the United States if the use begins and ends in the United States. This income is subject to with-holding if it is not effectively connected with a U.S. trade or business. If the use either begins or ends in the United States, see Transportation income, later.

Crew members. Income from the perform-ance of services by a nonresident alien in con-nection with the individual's temporary pres-ence in the United States as a regular member of the crew of a foreign vessel engaged in trans-portation between the United States and a for-eign country or a U.S. possession is not income from U.S. sources.

Multilevel marketing. Certain companies sell products through a multilevel marketing ar-rangement, such that an upper-tier distributor, who has sponsored a lower-tier distributor, is entitled to a payment from the company based on certain activities of that lower-tier distributor. Generally, depending on the facts, payments from such multilevel marketing companies to in-dependent (nonemployee) distributors (up-per-tier distributors) that are based on the sales or purchases of persons whom they have spon-sored (lower-tier distributors) constitute income for the performance of personal services in re-cruiting, training, and supporting the lower-tier distributors. The source of such income is gen-erally based on where the services of the up-per-tier distributor are performed, and may, de-pending on the facts, be considered multiyear compensation, with the source of income deter-mined over the period to which such compen-sation is attributable.

Scholarships, fellowships, and grants. Scholarships, fellowships, and grants are sourced according to the residence of the payer. Those made by entities created or domi-ciled in the United States are generally treated as income from sources within the United States. However, see Activities outside the Uni-ted States next. Those made by entities created or domiciled in a foreign country are treated as income from foreign sources.

Activities outside the United States. A scholarship, fellowship, grant, targeted grant, or an achievement award received by a nonresi-dent alien for activities conducted outside the United States is treated as foreign source in-come.

Pension payments. The source of pension payments is determined by the part of the distri-bution that constitutes the compensation ele-ment (employer contributions) and the part that constitutes the earnings element (the invest-ment income).

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The compensation element is sourced the same as compensation from the performance of personal services. The part attributable to serv-ices performed in the United States is U.S. source income, and the part attributable to serv-ices performed outside the United States is for-eign source income.

Employer contributions to a defined benefit plan covering more than one individual are not made for the benefit of a specific participant, but are made based on the total liabilities to all participants. All funds held under the plan are available to provide benefits to any participant. If the payment is from such a plan, you can use the method in Revenue Procedure 2004-37, 2004-26 I.R.B. 1099, available at IRS.gov/irb/ 2004-26_IRB#RP-2004-37, to allocate the pay-ment to sources within and without the United States.

The earnings part of a pension payment is U.S. source income if the trust is a U.S. trust.

Chart B. Summary of Source Rules for FDAP Income

IF you have...	THEN the source of that
	income is determined by...
pay for personal services	where the services are
	performed.
dividends	the type of corporation (U.S.
	or foreign).
interest	the residence of the payer.
rents	where the property is
	located.
royalties—patents,	where the property is used.
copyrights, etc.
royalties—natural	where the property is
resources	located.
pensions—distributions	where the services were
attributable to
contributions	performed.
pensions—investment	the location of pension trust.
earnings on contributions
scholarships and	in most cases, the
fellowship grants	residence of the payer.
guarantee of	the residence of the debtor
indebtedness	or whether the payment is
	effectively connected with a
	U.S. trade or business.

Fixed or Determinable Annual or Periodical (FDAP) Income

FDAP income is all income except:

Gains from the sale of property (not includ-ing original issue discount and certain gains that are referred to in Amounts Sub-ject to Chapter 3 Withholding, earlier); and

Items of income excluded from gross in-come without regard to U.S. or foreign sta-tus of the owner of the income, such as tax-exempt municipal bond interest and qualified scholarship income.

The following items are examples of FDAP income.

Compensation for personal services paid to an individual or a sole proprietorship.

Dividends and dividend equivalent pay-ments.

Interest.

Original issue discount.

Real estate mortgage investment conduit (REMIC) excess inclusion income.

Pensions and annuities.

Alimony (no longer income if the divorce or separation agreement is executed after December 31, 2018, or if executed before January 1, 2019, but modified after De-cember 31, 2018, the modification must state that section 11051 of P.L. 115-97 (TCJA) applies to the modification).

Real property income, such as rents, other than gains from the sale of real property.

Royalties.

Taxable scholarships and fellowship grants.

Other taxable grants, prizes, and awards.

A sales commission paid or credited monthly.

A commission paid for a single transaction.

The distributable net income of an estate or trust that is FDAP income and must be distributed currently, or has been paid or credited during the tax year.

FDAP income distributed by a partnership that, or such an amount that, although not actually distributed, is includible in the gross income of a foreign partner.

Taxes, mortgage interest, or insurance premiums paid to, or for the account of, a nonresident alien landlord by a tenant un-der the terms of a lease.

Publication rights.

Prizes awarded to nonresident alien artists for pictures exhibited in the United States.

Purses paid to nonresident alien boxers for prize fights in the United States.

Prizes awarded to nonresident alien pro-fessional golfers in golfing tournaments in the United States.

Payments for the following purposes are ex-amples of payments that are not withholdable payments.

Services (including wages and other forms of employee compensation (such as stock options)).

The use of property.

Office and equipment leases.

Software licenses.

Transportation.

Freight.

Gambling winnings.

Awards, prizes, and scholarships.

Interest on outstanding accounts payable arising from the acquisition of goods or services.

Periodic or lump-sum payments. Income can be FDAP income whether it is paid in a ser-ies of repeated payments or in a single lump sum. For example, $5,000 in royalty income would be FDAP income whether paid in 10 pay-ments of $500 each or in one payment of $5,000.

Insurance proceeds. Income derived by an insured nonresident alien from U.S. sources upon the surrender of, or at the maturity of, a life insurance policy, is FDAP income and is sub-ject to chapter 3 withholding and is a withholda-ble payment. This includes income derived un-der a life insurance contract issued by a foreign branch of a U.S. life insurance company. The

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proceeds are income to the extent they exceed the cost of the policy.

However, certain payments received under a life insurance contract on the life of a termi-nally or chronically ill individual before death (accelerated death benefits) may not be subject to tax. This also applies to certain payments re-ceived for the sale or assignment of any part of the death benefit under contract to a viatical settlement provider. For more information, see Pub. 525.

Racing purses (for purposes of chapter 3 withholding). Racing purses are FDAP in-come and racetrack operators must withhold 30% on any purse paid to a nonresident alien racehorse owner in the absence of definite in-formation contained in a statement filed to-gether with a Form W-8 that the owner has not raced, or does not intend to enter, a horse in another race in the United States during the tax year. If available information indicates that the racehorse owner has raced a horse in another race in the United States during the tax year, then the statement and Form W-8 filed for that year are ineffective. The owner may be exempt from withholding of tax at 30% on the purses if the owner gives you Form W-8ECI, which pro-vides that the income is effectively connected with the conduct of a U.S. trade or business and that the income is includible in the owner's gross income.

Covenant not to compete. Payment received for a promise not to compete is generally FDAP income. Its source is the place where the prom-isor forfeited his or her right to act. Amounts paid to a nonresident alien for his or her prom-ise not to compete in the United States are sub-ject to chapter 3 withholding and are withholda-ble payments.

Withholding on Specific Income

Different kinds of income are subject to different withholding requirements.

Effectively Connected Income

In most cases, when a foreign person engages in a trade or business in the United States, all income from sources in the United States con-nected with the conduct of that trade or busi-ness is considered effectively connected with a U.S. business. FDAP income may or may not be effectively connected with a U.S. business. For example, effectively connected income (ECI) includes rents from real property if the alien chooses to treat that income as effectively connected with a U.S. trade or business.

The factors to be considered in establishing whether FDAP income and similar amounts are effectively connected with a U.S. trade or busi-ness include:

Whether the income is from assets used in, or held for use in, the conduct of that trade or business; or

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Whether the activities of that trade or busi-ness were a material factor in the realization of the income.

Income from securities. There is a special rule determining whether income from securi-ties is effectively connected with the active con-duct of a U.S. banking, financing, or similar business.

If the foreign person's U.S. office actively and materially participates in soliciting, negoti-ating, or performing other activities required to arrange the acquisition of securities, the U.S. source interest or dividend income from the se-curities, gain or loss from their sale or ex-change, income or gain economically equiva-lent to such amounts, or amounts received for providing a guarantee of indebtedness, is attrib-utable to the U.S. office and is ECI.

Withholding exemption. In most cases, you do not need to withhold tax on income for pur-poses of chapter 3 or 4 if you receive a Form W-8ECI on which a foreign payee represents that:

The foreign payee is the beneficial owner of the income;

The income is effectively connected with the conduct of a trade or business in the United States; and

For purposes of chapter 3 withholding, the income is includible in the payee's gross income.

This withholding exemption applies to in-come for services performed by a foreign part-nership or foreign corporation (unless item (4) below applies to the corporation). The exemp-tion does not apply, however, to:

1. Pay for personal services performed by an individual for purposes of chapter 3 (see Pay for Personal Services Performed, later),

2. Effectively connected taxable income of a partnership that is allocable to its foreign partners (see Partnership Withholding on Effectively Connected Income, later),

3. Income from the disposition of a USRPI (see U.S. Real Property Interest, later), or

4. Payments to a foreign corporation for per-sonal services if all of the following apply.

a. The foreign corporation otherwise qualifies as a personal holding com-pany for income tax purposes;

b. The foreign corporation receives amounts under a contract for personal services of an individual whom the corporation has no right to designate;

c. 25% or more in value of the outstand-ing stock of the foreign corporation at some time during the tax year is owned, directly or indirectly, by or for an individual who has performed, is to perform, or may be designated as the one to perform, the services called for under the contract.

Withholding exemption for purposes of chapter 4. Income effectively connected with the conduct of a trade or business in the United States is not a withholdable payment under

chapter 4 and thus is not subject to withholding for chapter 4 purposes. You do not need to withhold tax under chapter 4 if you receive a Form W-8ECI on which a foreign payee makes the representations described in Withholding exemptions, earlier.

Notional principal contract income. Certain payments attributable to a notional principal contract are not subject to withholding regard-less of whether a Form W-8ECI is provided. However, payments of dividend equivalents that are not effectively connected with the con-duct of a trade or business in the United States, pursuant to a specified notional principal con-tract (described later under Dividend equivalent payments) are subject to withholding.

Income from a notional principal contract is subject to reporting on Form 1042-S if it is ef-fectively connected with the conduct of a trade or business in the United States. You must treat the income as effectively connected with a U.S. trade or business if you pay the income to, or to the account of, a qualified business unit (a branch) of a foreign person located in the Uni-ted States or a qualified business unit located outside the United States and you know, or have reason to know, the income is effectively connected with the conduct of a U.S. trade or business. You do not need to treat notional prin-cipal contract income as effectively connected if you receive a Form W-8BEN-E that represents that the income is not effectively connected with the conduct of a U.S. trade or business or if the payee provides a representation in a master agreement or in the confirmation on the particu-lar notional principal contract transaction that the payee is a U.S. person or a non-U.S. branch of a foreign person.

Income paid to U.S. branch of foreign bank or insurance company. A payment to a U.S. branch of a foreign bank or a foreign insurance company that is subject to U.S. regulation by the Federal Reserve or state insurance authori-ties is presumed to be effectively connected with the conduct of a trade or business in the United States if you have an EIN for the branch, unless the branch provides a Form W-8BEN-E or Form W-8IMY for the income. If a U.S. branch of a foreign bank or insurance company receives income that the payer did not withhold upon because of the presumption that the in-come was effectively connected with the U.S. branch's trade or business, the U.S. branch is required to withhold on the income if it is in fact not effectively connected with the conduct of its trade or business in the United States. With-holding is required whether the payment was collected on behalf of other persons or on be-half of another branch of the same entity.

Income Not Effectively Connected

This section discusses the specific types of in-come that are subject to chapter 3 withholding and where withholding under chapter 4 is re-quired. The income codes contained in this sec-tion correspond to the income codes used on the 2023 Form 1042-S (discussed later).

For purposes of chapter 3, you must with-hold tax at the statutory rates shown in Chart C

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unless a reduced rate or exemption under a tax treaty applies. For U.S. source gross income that is not effectively connected with a U.S. trade or business, the rate is usually 30%. In most cases, you must withhold the tax at the time you pay the income to the foreign person. See When to withhold, earlier.

Interest

Interest from U.S. sources paid to foreign pay-ees is subject to chapter 3 withholding and is a withholdable payment (except when the interest is paid with respect to a grandfathered obliga-tion or another exemption under chapter 4 ap-plies). When making a payment on an inter-est-bearing obligation, you must withhold on the gross amount of stated interest payable on the interest payment date, even if the payment or a part of the payment may be a return of capital rather than interest.

A substitute interest payment made to the transferor of a security in a securities lending transaction or a sale-repurchase transaction is treated the same as the interest on the transfer-red security. Use Income Code 33 to report these substitute payments.

Interest paid by U.S. obligors—general (In-come Code 1). With specific exceptions, such as portfolio interest (for purposes of chapter 3), you must withhold on interest paid or credited on bonds, debentures, notes, open account in-debtedness, governmental obligations, certain deferred payment arrangements (as provided in section 483), or other evidences of indebted-ness of U.S. obligors. U.S. obligors include the U.S. Government or its agencies or instrumen-talities, any U.S. citizen or resident, any U.S. corporation, and any U.S. partnership.

If, in a sale of a corporation's property, pay-ment of the bonds or other obligations of the corporation is assumed by the buyer, that buyer, whether an individual, partnership, or corporation, must deduct and withhold the taxes that would be required to be withheld by the selling corporation as if there had been no sale or transfer. Also, if interest coupons are in default, the tax must be withheld on the gross amount of interest whether or not the payment is a return of capital or the payment of income.

A resident alien paying interest on a margin account maintained with a foreign brokerage firm must withhold from the interest whether the interest is paid directly or constructively.

Interest on bonds of a U.S. corporation paid to a foreign corporation not engaged in a trade or business in the United States is subject to withholding even if the interest is guaranteed by a foreign corporation.

Domestic corporations must withhold on in-terest credited to foreign subsidiaries or foreign parents.

For withholding under chapter 4 on the inter-est payments described in this section, see the definition of withholdable payments in Regula-tions section 1.1473-1(a).

Original issue discount (Income Code 30). Original issue discount paid on the redemption of an obligation is subject to chapter 3 withhold-ing and is a withholdable payment (except

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when paid with respect to a grandfathered obli-gation). Original issue discount paid as part of the purchase price of an obligation sold or ex-changed, other than in a redemption, is not sub-ject to chapter 3 withholding unless the pur-chase is part of a plan the principal purpose of which is to avoid tax and the withholding agent has actual knowledge or reason to know of the plan. However, such original issue discount is a withholdable payment (except when paid with respect to a grandfathered obligation). With-holding is required by a person other than the issuer of an obligation (or the issuer's agent).

The original issue discount that is subject to chapter 3 withholding and is a withholdable payment (except when paid with respect to a grandfathered obligation) is the taxable amount of original issue discount. The taxable amount for both chapters 3 and 4 withholding purposes is the original issue discount that accrued while the obligation was held by the foreign beneficial owner up to the time the obligation was sold or exchanged or a payment was made, reduced by any original issue discount that was previ-ously taxed. If a payment was made, the tax due on the original issue discount may not ex-ceed the payment reduced by the tax imposed on the part of the payment that is qualified sta-ted interest.

If you cannot determine the taxable amount, you must withhold on the entire amount of origi-nal issue discount accrued from the date of is-sue until the date of redemption (or sale or ex-change, if subject to chapter 3 withholding or a withholdable payment) determined on the basis of the most recently published Pub. 1212.

For more information on original issue dis-count, see Pub. 550.

Chart C. Withholding Tax Rates for Purposes of Chapter 3

Note. You must withhold tax at the following rates on payments of income unless a reduced rate or exemption is authorized under a tax treaty. The President may apply higher tax rates on income paid to residents or corporations of foreign countries that impose burdensome or discriminatory taxes on U.S. persons.

IF you paid the following type

THEN you must

of income...

generally

withhold at the

following rate...

Taxable part of U.S. scholarship or

fellowship grant paid to holder of

“F,” “J,” “M,” or “Q” visa (see

Scholarships and Fellowship

14%

Grants, later)

Gross investment income from

interest, dividends, rents, and

royalties paid to a foreign private

4%

foundation

Pensions—part paid for personal

Graduated rates in

services (see Pensions, Annuities,

Circular A or

and Alimony,

later)

Circular E

Wages paid to a nonresident alien

Graduated rates in

employee (see Pay for Personal

Circular A or

Circular E

Services Performed, later)

Each foreign partner's share of

37% for

effectively connected income of

noncorporate

the partnership (see Partnership

partners;

21% for corporate

Withholding on Effectively

Connected Income, later)

partners

Distributions of ECI to foreign

37% for

partners by publicly traded

noncorporate

partnerships (see Publicly Traded

partners;

Partnerships, later)

21% for corporate

partners

Dispositions of USRPI (see U.S.

Real Property Interest, later)

15%*

Dispositions of partnership

10%

interests under section 1446(f)

Dividends paid to Puerto Rican

10%

corporation

All other income subject to

30%

withholding

*21% in the case of certain distributions by corporations, partnerships, trusts, or estates.

Reduced Rates of Withholding on Interest

Notwithstandingtheexceptionfrom

withholding under chapter 3 on interest CAUTION described under this heading, with-holding may still apply under chapter 4 when the payment is a withholdable payment and an exception from withholding under chapter 4 does not apply.

Certain interest is subject to a reduced rate of, or exemption from, withholding.

Portfolio interest exempt from chapter 3 withholding. Interest and original issue dis-count that qualifies as portfolio interest is ex-empt from chapter 3 withholding. However, these amounts are not exempt from withholding under chapter 4 when the interest is a withhold-able payment, unless an exception from chap-ter 4 withholding applies. To qualify as portfolio

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interest, the interest must be paid on obligations issued after July 18, 1984, and otherwise sub-ject to chapter 3 withholding.

Note. The rules for determining whether in-terest is portfolio interest changed for obliga-tions issued after March 18, 2012. Before March 19, 2012, portfolio interest included inter-est on certain registered and nonregistered (bearer) bonds if the obligations meet the re-quirements described below.

For obligations issued after March 18, 2012, portfolio interest does not include interest paid on debt that is not in registered form, except for interest paid on foreign-targeted registered obli-gations issued before January 1, 2016, as de-scribed in Foreign-targeted registered obliga-tions, later.

Obligations in registered form. Portfolio interest includes interest paid on an obligation that is in registered form, and for which you have received documentation that the beneficial owner of the obligation is not a U.S. person.

Generally, an obligation is in registered form if (i) the obligation is registered as to both princi-pal and any stated interest with the issuer (or its agent) and any transfer of the obligation may be effected only by surrender of the old obligation and reissuance to the new holder, (ii) the right to principal and stated interest with respect to the obligation may be transferred only through a book entry system maintained by the issuer or its agent, or (iii) the obligation is registered as to both principal and stated interest with the issuer or its agent and can be transferred both by sur-render and reissuance and through a book en-try system.

An obligation that would otherwise be con-sidered to be in registered form is not consid-ered to be in registered form as of a particular time if it can be converted at any time in the fu-ture into an obligation that is not in registered form, except as otherwise provided in Notice 2012-20, 2012-13 I.R.B. 574, available at IRS.gov/irb/2012-13_IRB#NOT-2012-20, as described in the following section.

Dematerialized book-entry systems and effectively immobilized obligations. An ob-ligation will be considered to be in registered form if it is issued through either a dematerial-ized book entry system maintained by a clear-ing organization (or agent thereof) or a clearing system in which the obligation (including a global obligation in bearer form) is effectively immobilized. See Notice 2012-20, amplified by Notice 2013-43, 2013-31 I.R.B. 113, available at IRS.gov/irb/2013-31_IRB#NOT-2013-43.

Under dematerialized book-entry systems, bonds are required to be represented only by book entries, and no physical certificates are is-sued or transferred. The bonds are transferred only by book entries.

An obligation will be considered to be effec-tively immobilized if (1) it is represented by one or more global securities in physical form that are issued to and held by a clearing organiza-tion (or by a custodian or depository acting as an agent of the clearing organization) for the benefit of purchasers and under arrangements that prohibit transfer except to a successor clearing organization subject to the same terms, and (2) beneficial interest in the underlying obli-gation is transferable only through a book-entry

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system maintained by the clearing organization or its agent.

These bonds are considered to be in regis-tered form if the holder may only obtain a physi-cal certificate in bearer form when (1) the clear-ing organization that maintains the book-entry system goes out of business without a succes-sor, (2) the issuer defaults, or (3) definitive se-curities are issued at the issuer’s request upon a change in tax law adverse to the issuer. See Notice 2012-20 for more information on regis-tered form requirements.

Foreign-targeted registered obligations. A registered bond issued after March 18, 2012, and before January 1, 2016, will also be consid-ered to be in registered form if it is targeted to foreign markets, and portfolio interest treatment may apply even when you do not receive docu-mentation regarding the beneficial owner of the bond.

If the registered obligation is not targeted to foreign markets, you must receive documenta-tion on which you may rely to treat the payee as a foreign person that is the beneficial owner of the interest. A registered obligation is targeted to foreign markets if it is sold (or resold in con-nection with its original issuance) only to foreign persons or to foreign branches of U.S. financial institutions in accordance with procedures simi-lar to those provided in Regulations section 1.163-5(c)(2)(i). However, the procedure that requires the obligation to be offered for sale (or resale) only outside the United States does not apply if the registered obligation is offered for sale through a public auction. Also, the proce-dure that requires the obligation to be delivered outside the United States does not apply if the obligation is considered registered because it may be transferred only through a book-entry system and the obligation is offered for sale through a public auction. The documentation needed depends on whether the interest is paid to a financial institution, a member of a clearing organization, or to some other foreign person. See Notice 2012-20 and Regulations section 1.871-14(e) for more information on foreign-tar-geted registered obligations.

Obligations not in registered form and obligations issued before March 19, 2012. For obligations issued before March 19, 2012, interest on an obligation that is not in registered form (bearer obligation) is portfolio interest if the obligation is foreign targeted. A bearer obliga-tion is foreign targeted if:

There are arrangements to ensure that the obligation will be sold, or resold in connec-tion with the original issue, only to a person who is not a U.S. person;

Interest on the obligation is payable only outside the United States and its posses-sions; and

The face of the obligation contains a state-ment that any U.S. person who holds the obligation will be subject to limits under the U.S. income tax laws.

Documentation is not required for interest on bearer obligations to qualify as portfolio interest. In some cases, however, you may need docu-mentation for purposes of Form 1099 reporting and backup withholding.

Interest on such obligations is not a with-holdable payment under chapter 4, except

when the instrument is materially modified after March 18, 2012.

Interest that does not qualify as portfolio interest. Payments to certain persons and payments of contingent interest do not qualify as portfolio interest. You must withhold at the statutory rate on such payments unless some other exception, such as a treaty provision, ap-plies and withholding under chapter 4 does not apply.

Contingent interest. Portfolio interest gen-erally does not include contingent interest. Con-tingent interest is interest that is determined by reference to any of the following.

Any receipts, sales, or other cash flow of the debtor or a related person.

Income or profits of the debtor or a related person.

Any change in value of any property of the debtor or a related person.

Any dividend, partnership distributions, or similar payments made by the debtor or a related person.

Any amount that is a dividend equivalent.

The term “related person” is defined in sec-tion 871(h)(4)(B) .

The contingent interest rule does not apply to any interest paid or accrued on any indebted-ness with a fixed term that was issued:

On or before April 7, 1993; or

After April 7, 1993, pursuant to a written binding contract in effect on that date and at all times thereafter before that indebted-ness was issued.

10% owners. Interest paid to a foreign per-son that owns 10% or more of the total com-bined voting power of all classes of stock of a corporation, or 10% or more of the capital or profits interest in a partnership, that issued the obligation on which the interest is paid is not portfolio interest. To determine 10% ownership, see Regulations section 1.871-14(g).

Banks. Except in the case of interest paid on an obligation of the United States, interest paid to a bank on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of the bank's trade or business does not qualify as portfolio interest.

Controlled foreign corporations. Interest paid to a controlled foreign corporation from a person related to the controlled foreign corpora-tion is not portfolio interest.

Reduced rate or exemption from chapter 3 withholding for interest on real property mortgages (Income Code 2). Certain treaties permit a reduced rate or exemption for interest paid or credited on real property mortgages. This is interest paid on any type of debt instru-ment that is secured by a mortgage or deed of trust on real property located in the United States, regardless of whether the mortgagor (or grantor) is a U.S. citizen or a U.S. business en-tity.

REMIC excess inclusions. A domestic partnership must separately state a partner's al-locable share of REMIC taxable income or net loss and the excess inclusion amount on Schedule K-1 (Form 1065). If the partnership

Publication 515 (2023)

allocates all or some part of its allocable share of REMIC taxable income to a foreign partner, the partner must include the partner's allocated amount in income as if that amount was re-ceived on the earlier of the following dates.

1. The date of distribution by the partnership.

2. The date the foreign partner disposed of its indirect interest in the REMIC residual interest.

3. The last day of the partnership's tax year.

For purposes of item (2), the disposition may occur as a result of:

A termination of the REMIC,

A disposition of the partnership's residual interest in the REMIC,

A disposition of the foreign partner's inter-est in the partnership, or

Any other reduction in the foreign partner's allocable share of the partnership's part of the REMIC net income or deduction.

The partnership must withhold tax on the part of the REMIC amount that is an excess in-clusion. Excess inclusion income is treated as income from sources in the United States and is not eligible for any reduction in withholding tax (by treaty or otherwise). It is also a withholdable payment for chapter 4 purposes.

An excess inclusion allocated to the follow-ing foreign persons must be included in that person's income at the same time as other in-come from the entity is included in income.

Shareholder of a real estate investment trust (REIT).

Shareholder of a regulated investment company (RIC).

Participant in a common trust fund.

Patron of a subchapter T cooperative or-ganization.

The entity must withhold on the excess in-clusion.

For information on the taxation and reporting of excess inclusion income by REITs, RICs, and other pass-through entities, see Notice 2006-97, 2006-46 I.R.B. 904, available at IRS.gov/irb/2006-46_IRB#NOT-2006-97.

Reduced rate or exemption from chapter 3 withholding for interest paid to controlling foreign corporations (Income Code 3). A treaty may permit a reduced rate or exemption for interest paid by a domestic corporation to a controlling foreign corporation. The interest may be on any type of debt, including open or unse-cured accounts payable, notes, certificates, bonds, or other evidences of indebtedness.

Reduced rate or exemption from chapter 3 withholding for interest paid by foreign cor-porations (Income Code 4). If a foreign cor-poration is engaged in a U.S. trade or business, any interest paid by the foreign corporation's trade or business in the United States (branch interest) is subject to chapter 3 withholding as if paid by a domestic corporation (without consid-ering the “payer having income from abroad” exception) and is a withholdable payment. As a result, the interest paid to foreign payees is generally subject to chapter 3 withholding and withholding may apply under chapter 4 absent an applicable withholding exception. In addi-tion, if “allocable interest” exceeds the branch

Publication 515 (2023)

interest paid, the excess interest is also subject to tax and reported on the foreign corporation's income tax return, Form 1120-F. See the Instructions for Form 1120-F for more informa-tion.

If there is no treaty provision that reduces the rate of withholding on branch interest, you must withhold tax under chapter 3 at the statu-tory rate of 30% on the interest paid by a foreign corporation's U.S. trade or business and you must withhold under chapter 4 when otherwise applicable and without regard to a treaty provi-sion.

In general, payees of interest from a U.S. trade or business of a foreign corporation are entitled to reduced rates of, or exemption from, tax under a treaty in the same manner and sub-ject to the same conditions as if they had re-ceived the interest from a domestic corporation. However, a foreign corporation that receives in-terest paid by a U.S. trade or business of a for-eign corporation must also be a qualified resi-dent of its country of residence to be entitled to benefits under that country's tax treaty. If the payee foreign corporation is a resident of a country that has entered into an income tax treaty since 1987 that contains a limitation on benefits article, the foreign corporation need only satisfy the limitation on benefits article in that treaty to qualify for a reduced rate of tax.

Alternatively, a payee may be entitled to treaty benefits under the payer's treaty if there is a provision in that treaty that applies specifi-cally to interest paid by the payer foreign corpo-ration. This provision may exempt all or a part of this interest. Some treaties provide for an ex-emption regardless of the payee's residence or citizenship, while others provide for an exemp-tion according to the payee's status as a resi-dent or citizen of the payer's country.

A foreign corporation that pays interest must be a qualified resident (under section 884) of its country of residence for the payer's treaty to ex-empt payments from tax by the foreign corpora-tion. However, if the foreign corporation is a res-ident of a country that has entered into an income tax treaty since 1987 that contains a limitation on benefits article, the foreign corpo-ration need only satisfy the limitation on benefits article in that treaty to qualify for the exemption.

Interest on deposits (Income Code 29). For-eign persons are not subject to chapter 3 with-holding on interest that is not connected with a U.S. trade or business if it is from:

Deposits with persons carrying on the banking business;

Deposits or withdrawable accounts with savings institutions chartered and super-vised under federal or state law as savings and loan or similar associations, such as credit unions, if the interest is or would be deductible by the institutions; or

Amounts left with an insurance company under an agreement to pay interest on them.

Deposits include certificates of deposit, open account time deposits, Eurodollar certifi-cates of deposit, and other deposit arrange-ments.

You may have to file Form 1042-S to report certain payments of interest on deposits. See Deposit interest paid to certain nonresident alien individuals under Returns Required, later. You may also have to file Form 1042-S when the deposit interest is a withholdable payment to which withholding applies (or was applied) to chapter 4.

Obligations issued before August 10, 2010. Interest received from a resident alien individual or a domestic corporation is not subject to chapter 3 withholding and is not a withholdable payment if the interest meets all of the following requirements.

At least 80% of the payer’s gross income from all sources has been from active for-eign business for the 3 tax years of the payer before the year in which the interest is paid, or for the applicable part of those 3 years.

The recipient is not a related person. Use rules similar to those in section 954(d)(3) to determine if the recipient is a related person.

The interest is paid on an obligation issued before August 10, 2010.

The obligation has not been significantly modified since August 10, 2010.

Interest from foreign business arrange-ments. In certain cases, interest received from a domestic payer, most of whose gross income is active foreign business income, is not subject to chapter 3 withholding and is not a withholda-ble payment.

Active foreign business income is gross in-come which is:

Derived from sources outside the United States, and

Attributable to the active conduct of a trade or business in a foreign country or posses-sion of the United States by the domestic payer.

Corporations existing on January 1, 2011. Certain interest received from a domestic cor-poration that is an existing 80/20 company is not subject to withholding. An existing 80/20 company must meet all of the following require-ments.

It was in existence on January 1, 2011.

For the 3 tax years beginning before Janu-ary 1, 2011 (or for its years of existence if the corporation was in existence for less than 3 tax years), at least 80% of its gross income from all sources was active foreign business income.

It continues to meet the 80% test for every tax year beginning after December 31, 2010.

It has not added a substantial line of busi-ness after August 10, 2010.

Transitional rule for active foreign business income. In most cases, the domestic corpora-tion determines its active foreign business in-come by combining its income and the income of any subsidiary in which it owns, directly or in-directly, 50% or more of the stock. However, if the testing period includes 1 or more tax years beginning before January 1, 2011, the corpora-tion can use only its gross income for any tax year beginning before January 1, 2011, and will

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meet the 80% test if the weighted average per-centage of active foreign business income is more than 80%.

A foreign beneficial owner does not need to provide a Form W-8 or documentary evidence for this exception. However, documentation may be required for purposes of Form 1099 re-porting and backup withholding.

Sales of bonds between interest dates. Amounts paid as part of the purchase price of an obligation sold or exchanged between inter-est payment dates is not subject to chapter 3 withholding. In addition, such a payment is not a withholdable payment. This does not apply if the sale or exchange is part of a plan the princi-pal purpose of which is to avoid tax and you have actual knowledge or reason to know of the plan. The exemption from chapter 3 withholding and from withholdable payments applies even if you do not have any documentation from the payee. However, documentation may be re-quired for purposes of Form 1099 reporting and backup withholding.

Short-term obligations. Interest and original issue discount paid on an obligation that is pay-able 183 days or less from the date of its origi-nal issue (without regard to the period held by the taxpayer) that satisfy other requirements in-tended to ensure that the debt is not held by a U.S. nonexempt person are not subject to chap-ter 3 withholding. In addition, such a payment is not a withholdable payment. These exemptions apply even if you do not have any documenta-tion from the payee. However, documentation may be required for purposes of Form 1099 re-porting and backup withholding.

Income from U.S. Savings Bonds of resi-dents of the Ryukyu Islands or the Trust Territory of the Pacific Islands. Interest from a Series E, Series EE, Series H, or Series HH U.S. Savings Bond is not subject to chapter 3 withholding if the nonresident alien individual acquired the bond while a resident of the Ryu-kyu Islands or the Trust Territory of the Pacific Islands.

Dividends

The following types of dividends paid to foreign payees are generally subject to chapter 3 with-holding and are generally withholdable pay-ments such that withholding chapter 4 applies absent an exception available under chapter 4.

Dividends paid by U.S. corporations—gen-eral (Income Code 6). This category includes all distributions of domestic corporations (other than dividends qualifying for direct dividend rate—Income Code 7).

A corporation making a distribution with re-spect to its stock, or any intermediary making a payment of such a distribution, is required to withhold on the entire amount of the distribution at the rate applicable under chapter 3 when withholding under chapter 4 does not apply. However, a distributing corporation or interme-diary may elect to not withhold on the part of the distribution that:

1. Represents a nontaxable distribution pay-able in stock or stock rights;

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2. Represents a distribution in part or full payment in exchange for stock;

3. Is not paid out of current or accumulated earnings and profits, based on a reasona-ble estimate of the anticipated amount of earnings and profits for the tax year of the distribution made at a time reasonably close to the date of the distribution;

4. Represents a capital gain dividend (use Income Code 36) or an exempt interest dividend by a RIC; or

5. Is subject to withholding under section 1445 (withholding of tax on dispositions of USRPI) and the distributing corporation is a U.S. real property holding corporation or a qualified investment entity (QIE).

The election is made by actually reducing the amount of withholding at the time the distri-bution is paid.

Dividends paid by a QIE (Income Code 24). A QIE is:

1. Any REIT, or

2. Any RIC that is a U.S. real property hold-ing corporation.

A distribution by a QIE to a nonresident alien or a foreign corporation is treated as a dividend and is not subject to withholding under section 1445 as a gain from the sale or exchange of a USRPI if:

The distribution is on stock regularly traded on a securities market in the United States, and

The individual or corporation did not own more than 10% of such stock in the case of a REIT or 5% of such stock in the case of a RIC at any time during the 1-year period ending on the date of distribution.

Certain distributions by a REIT may be trea-ted as a dividend and are not subject to with-holding under section 1445 as a gain from the sale or exchange of a USRPI. See Qualified in-vestment entities (QIEs) under U.S. Real Prop-erty Interest, later.

Dividends paid by a domestic corpora-tion (an existing “80/20” company). The ac-tive foreign business percentage of any divi-dend paid by a domestic corporation that is an existing 80/20 company is not subject to with-holding. A domestic corporation is an existing 80/20 company if it satisfies all of the following.

1. It was in existence on January 1, 2011.

2. For the 3 tax years beginning before Janu-ary 1, 2011 (or for all years of existence if it was in existence for less than 3 tax years), at least 80% of its gross income from all sources was active foreign busi-ness income. Active foreign business in-come is gross income that is:

a. Derived from sources outside the Uni-ted States, and

b. Attributable to the active conduct of a trade or business in a foreign country or possession of the United States by the corporation.

3. It continues to meet the 80% test for every tax year beginning after December 31, 2010.

4. It has not added a substantial line of busi-ness after August 10, 2010.

Transitional rule for item (2). In most ca-ses, the domestic corporation determines its active foreign business income by combining its income and the income of any subsidiary in which it owns, directly or indirectly, 50% or more of the stock. However, if the testing period includes 1 or more tax years beginning before January 1, 2011, the corporation can use only its gross income for any tax year beginning be-fore January 1, 2011, and will meet the 80% test if the weighted average percentage of ac-tive foreign business income is more than 80%.

The active foreign business percentage is found by dividing the corporation’s active for-eign business income for the testing period by the corporation’s total gross income for that pe-riod. The testing period is the 3 tax years before the year in which the dividends are declared (or shorter period if the corporation was not in exis-tence for 3 years). If the corporation has no gross income for that 3-year period, the testing period is the tax year in which the dividend is paid.

Consent dividends. If you receive a Form 972, Consent of Shareholder To Include Spe-cific Amount in Gross Income, from a nonresi-dent alien individual or other foreign share-holder who agrees to treat the amount as a taxable dividend, you must pay and report on Form 1042 and Form 1042-S any withholding tax you would have withheld if the dividend ac-tually had been paid.

Interest-related dividends and short-term capital gain dividends received from mutual funds. Certain interest-related dividends and short-term capital gain dividends paid by a mu-tual fund or other RIC are exempt from chap-ter 3 withholding.

Dividends qualifying for direct dividend rate (Income Code 7). A treaty may reduce the rate of withholding on dividends from that which generally applies under the treaty if the shareholder owns a certain percentage of the voting stock of the corporation when withhold-ing under chapter 4 does not apply. In most ca-ses, this preferential rate applies only if the shareholder directly owns the required percent-age, although some treaties permit the percent-age to be met by direct or indirect ownership. The preferential rate may apply to the payment of a deemed dividend under section 304(a)(1). Under some treaties, the preferential rate for dividends qualifying for the direct dividend rate applies only if no more than a certain percent-age of the paying corporation's gross income for a certain period consists of dividends and in-terest other than dividends and interest from subsidiaries or from the active conduct of a banking, financing, or insurance business. A foreign person should claim the direct dividend rate by filing the appropriate Form W-8.

Consent dividends. If you receive a Form 972 from a foreign shareholder qualifying for the direct dividend rate, you must pay and report on Form 1042 and Form 1042-S any withholding

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tax you would have withheld if the dividend ac-tually had been paid.

Dividends paid by foreign corporations (In-come Code 8). Dividends paid by a foreign corporation generally are not subject to chap-ter 3 withholding and are not withholdable pay-ments. This exception does not require a Form W-8. However, a Form W-8 may be required for purposes of Form 1099 reporting and backup withholding.

The payment to a foreign corporation by a foreign corporation of a deemed dividend under section 304(a)(1) is subject to chapter 3 with-holding and may be a withholdable payment ex-cept to the extent it can be clearly determined to be from foreign sources.

Corporation subject to branch profits tax. If a foreign corporation is subject to branch profits tax for any tax year, withholding is not re-quired on any dividends paid by the corporation out of its earnings and profits for that tax year. Dividends may be subject to withholding if they are attributable to any earnings and profits when the branch profits tax is prohibited by a tax treaty.

A foreign person may claim a treaty benefit on dividends paid by a foreign corporation to the extent the dividends are paid out of earn-ings and profits in a year in which the foreign corporation was not subject to the branch prof-its tax. However, you may apply a reduced rate of withholding under an income tax treaty only under rules similar to the rules that apply to treaty benefits claimed on branch interest paid by a foreign corporation. You should check the specific treaty provision.

Dividends paid to Puerto Rican corpora-tion. For chapter 3 purposes, the tax rate on dividends paid to a corporation created or or-ganized in, or under the law of, the Common-wealth of Puerto Rico is 10%, rather than 30%,

^if:• At all times during the tax year less than 25% in value of the Puerto Rican corpora-tion's stock is owned, directly or indirectly, by foreign persons;

At least 65% of the Puerto Rican corpora-tion's gross income is effectively connec-ted with the conduct of a trade or business in Puerto Rico or the United States for the 3-year period ending with the close of the tax year of that corporation (or the period the corporation or any predecessor has been in existence, if less); and

No substantial part of the income of the Puerto Rican corporation is used, directly or indirectly, to satisfy obligations to a per-son who is not a bona fide resident of Pu-erto Rico or the United States.

No special rules apply to Puerto Rican cor-porations for chapter 4 purposes, but special withholding rules do apply for withholdable pay-ments made to territory financial institutions and nonfinancial entities. See the chapter 4 regula-tions for information on these special require-ments.

Dividend Equivalents

Dividend equivalent payments. Dividend equivalent payments are treated as U.S. source

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dividends such that withholding under chapter 3 may apply. Use Income Code 34 or 40 to report dividend equivalent payments. Dividend equiv-alent payments are withholdable payments ex-cept when an exception applies for chapter 4 purposes.

A dividend equivalent is a payment (as de-fined in Regulations section 1.871-15(c)) that, directly or indirectly, is contingent on, or deter-mined by reference to, the payment of a divi-dend from U.S. sources. Dividend equivalent payments include the following payments.

1. A substitute dividend made under a secur-ities lending or sale-repurchase transac-tion involving a U.S. stock.

2. A payment that references the payment of a dividend from an underlying security made under a specified notional principal contract.

3. A payment that references the payment of a dividend from an underlying security made to a specified equity-linked instru-ment.

Substitute dividend (Income Code 34). A substitute dividend is any payment made un-der a securities lending or sale-repurchase transaction that (directly or indirectly) is contin-gent upon, or determined by reference to, the payment of a dividend from sources in the Uni-ted States.

Specified notional principal contracts (SNPCs) and specified equity-linked instru-ments (SELIs) (Income Code 40).

Transactions entered into on or after Janu-ary 1, 2017.

For transactions entered into on or after Jan-uary 1, 2017 (including as a result of a deemed exchange pursuant to section 1001), an SNPC or SELI is a notional principal contract (NPC), or equity linked instrument, respectively, with a delta of 0.8 or greater if it is a simple contract under Regulations section 1.871-15(a)(14)(i), or it meets the substantial equivalence test if it is a complex contract under Regulations section 1.871-15(a)(14)(ii). See Regulations section

1.871-15(g) for the delta test and Regulations section 1.871-15(h) for the substantial equiva-lence test.

Notwithstanding the preceding paragraph, for transactions entered into prior to January 1, 2025, transition relief provides that, subject to an anti-abuse rule, only delta-one transactions will be treated as SNPCs and SELIs. See No-tice 2022-37, 2022-37 I.R.B. 234, available at IRS.gov/irb/2022-37_IRB#NOT-2022-37.

NPCs entered into before January 1, 2017.

For transactions entered into before January 1, 2017, an SNPC is any NPC if:

In connection with entering into the con-tract, any long party to the contract trans-fers the underlying security to any short party to the contract;

In connection with the termination of the contract, any short party to the contract transfers the underlying security to any long party to the contract;

The underlying security is not readily trade-able on an established securities market; or

In connection with entering into the con-tract, the underlying security is posted as collateral by any short party to the contract with any long party to the contract.

For more information regarding dividend equivalents, see Regulations section 1.871-15 and Notice 2022-37.

Amounts paid to qualified securities lenders (QSLs). A withholding agent that makes substitute dividend payments to a QSL may apply the transition rules described in No-tice 2010-46, Part III, for payments made before January 1, 2025. See Notice 2022-37.

Amounts paid to QDDs. Only an eligible entity that has entered into a QI agreement can be a QDD. An eligible entity is a home office or branch that is a QI and that is:

1. A dealer in equity derivatives that is sub-ject to regulatory supervision as a dealer by a governmental authority in the jurisdic-tion in which it was organized or operates;

2. A bank or bank holding company that is subject to regulatory supervision as a bank or bank holding company (as appli-cable) by a governmental authority in the jurisdiction in which it was organized or operates;

3. An entity that is wholly owned (directly or indirectly) by a bank or bank holding com-pany subject to regulatory supervision as a bank or bank holding company (as appli-cable) by a governmental authority in the jurisdiction in which the bank or bank hold-ing company (as applicable) was organ-ized or operates and that entity, in its ca-pacity as a dealer in equity derivatives:

a. Issues potential section 871(m) trans-actions to customers; and

b. Receives dividends with respect to stock or dividend equivalent pay-ments pursuant to potential section 871(m) transactions that hedge po-tential section 871(m) transactions that it issued;

4. A foreign branch of a U.S. financial institu-tion if the foreign branch would be descri-bed in (1), (2), or (3) had it been a sepa-rate entity; or

5. Any person otherwise acceptable to the IRS.

A QDD is liable for tax under section 881 on its section 871(m) amount for each dividend on each underlying security. The section 871(m) amount is described in Regulations section 1.871-15(q)(3).

For more information on amounts paid to QDDs, see the chapter 3 regulations issued with the section 871(m) regulations. You can view the regulations at IRS.gov/irb/ 2017-09_IRB#TD-9815.

Gains

You generally do not need to withhold under chapter 3 or 4 on any gain from the sale of real or personal property because it is not FDAP in-come. However, see U.S. Real Property Inter-est, later.

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Capital gains (Income Code 9). You must withhold at 30%, or if applicable, a reduced treaty rate, on the gross amount of the following items.

Gains on the disposal of timber, coal, or domestic iron ore with a retained economic interest, unless an election is made to treat those gains as income effectively connec-ted with a U.S. trade or business.

Gains on contingent payments received from the sale or exchange after October 4, 1966, of patents, copyrights, secret pro-cesses and formulas, goodwill, trade-marks, trade brands, franchises, and other like property.

Gains on certain transfers of all substantial rights to, or an undivided interest in, pat-ents if the transfers were made before Oc-tober 5, 1966.

Certain gains from the sale or exchange of original issue discount obligations issued after March 31, 1972. For more on with-holding on original issue discount obliga-tions, see Interest, earlier.

If you do not know the amount of the gain, you must withhold an amount necessary to en-sure that the tax withheld will not be less than 30% of the recognized gain. The amount to be withheld, however, must not be more than 30% of the amount payable because of the transac-tion.

Unless you have reason to believe other-wise, you may rely upon the written statement of the person entitled to the income as to the amount of gain. The Form W-8 or documentary evidence must show the beneficial owner's ba-sis in the property giving rise to the gain.

Tax treaties. Many tax treaties exempt certain types of gains from U.S. income tax. Be sure to carefully check the provision of the treaty that applies before allowing an exemption from with-holding.

Royalties

In general, you must withhold tax under chap-ter 3 on the payment of royalties from sources in the United States. However, certain types of royalties are given reduced rates or exemptions under some tax treaties. Accordingly, these dif-ferent types of royalties are treated as separate categories for withholding purposes. For chap-ter 4 purposes, royalties are nonfinancial pay-ments and are therefore excluded as withholda-ble payments.

Most treaties have more than one with-

holding rate on royalties, which varies CAUTION by the classification of the payment in that treaty. Be sure to check your particular treaty for the specific rate that applies to you.

Industrial royalties (Income Code 10). This category of income includes royalties for the use of, or the right to use, patents, trademarks, secret processes and formulas, goodwill, franchises, “know-how,” and similar rights. It may also include payments for the use of, or right to use, industrial, commercial, and scien-tific equipment, when this is included in the treaty definition of royalties.

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Motion picture or television copyright royal-ties (Income Code 11). This category refers to royalties paid for the use of motion picture and television copyrights.

Other royalties (for example, copyright, re-cording, publishing) (Income Code 12). This category refers to the royalties paid for the use of copyrights on books, periodicals, arti-cles, etc., except motion picture and television copyrights.

Real Property Income and Natural Resources Royalties (Income Code 14)

You must withhold tax under chapter 3 on in-come (such as rents and royalties) from real property located in the United States and held for the production of income, unless the foreign payee elects to treat this income as effectively connected with a U.S. trade or business. If the foreign payee chooses to treat this income as effectively connected, the payee must give you Form W-8ECI (discussed earlier). This real property income includes royalties from mines, wells, or other natural deposits, as well as ordi-nary rents for the use of real property. For chap-ter 4 purposes, income from real property is ei-ther a nonfinancial payment (and therefore not a withholdable payment) or is excluded as a withholdable payment because it is ECI. For withholding that applies to the disposition of USRPI, see U.S. Real Property Interest, later.

Pensions, Annuities, and Alimony (Income Code 15)

The following rules apply to withholding on pen-sions, annuities, and alimony of foreign payees.

Pensions and annuities. In most cases, you must withhold tax on the gross amount of pen-sions and annuities that you pay that are from sources within the United States. This includes amounts paid under an annuity contract issued by a foreign branch of a U.S. life insurance company.

Most tax treaties provide an exemption from tax on non-government pensions and annuities. See the specific treaty rules for government pensions. The exemption may not apply to lump-sum payments. See, for example, Article 17(2) of the United States–United Kingdom in-come tax treaty. In addition, it does not apply to payments treated as deferred compensation, which is often treated as income from employ-ment.

For purposes of chapter 3 withholding, in the absence of a treaty exemption, you must with-hold at the statutory rate of 30% on the entire distribution that is from sources within the Uni-ted States. You may, however, apply withhold-ing at graduated rates to the part of a distribu-tion that arises from the performance of services in the United States after December 31, 1986.

Employer contributions to a defined benefit plan covering more than one individual are not made for the benefit of a specific participant, but are made based on the total liabilities to all participants. All funds held under the plan are available to provide benefits to any participant.

If the distribution is from such a plan, you can use the method in Revenue Procedure 2004-37 to allocate the distribution to sources in the Uni-ted States.

The withholding rules that apply to pay-ments to foreign persons generally take prece-dence over any other withholding rules that would apply to distributions from qualified plans and other qualified retirement arrangements.

Foreign pension plans are exempt from ap-plying withholding under chapter 4 when they are exempt beneficial owners under Regula-tions section 1.1471-6(f). A payment from a U.S. pension plan to a foreign individual benefi-ciary in the plan is not subject to withholding un-der chapter 4.

No withholding. Do not withhold tax on an an-nuity payment to a nonresident alien if at the time of the first payment from the plan, 90% or more of the employees eligible for benefits un-der the plan are citizens or residents of the Uni-ted States and the payment is:

1. For the nonresident's personal services performed outside the United States; or

2. For personal services by a nonresident in-dividual present in the United States for 90 days or less during each tax year, whose pay for those services did not exceed $3,000, and the personal services were performed for:

a. A nonresident alien individual, foreign partnership, or foreign corporation not engaged in a trade or business in the United States; or

b. An office or place of business of a U.S. resident or citizen which was maintained outside the United States.

If the payment otherwise qualifies under these rules, but less than 90% of the employees eligible for benefits are citizens or residents of the United States, you still need not withhold tax on the payment if:

The recipient is a resident of a country that gives a substantially equal exclusion to U.S. citizens and residents, or

The recipient is a resident of a beneficiary developing country under the Trade Act of 1974.

The foreign person entitled to the payments must provide you with a Form W-8BEN that contains the TIN of the foreign person.

Alimony payments. In most cases, alimony payments made by U.S. resident aliens to non-resident aliens are taxable and subject to chap-ter 3 withholding whether the recipients are re-siding abroad or are temporarily present in the United States.

Many tax treaties, however, provide for an exemption from withholding for alimony pay-ments. See Tax Treaties, later, for information about treaty benefits.

Alimony payments made to a nonresident alien by a U.S. ancillary administrator of a non-resident alien estate are from foreign sources and are not subject to withholding. Alimony pay-ments are not subject to chapter 4 withholding.

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Note. Under section 11051 of P.L. 115 -97 (TCJA), alimony is no longer considered in-come if the divorce or separation agreement is executed after December 31, 2018, or if execu-ted before January 1, 2019, but modified after December 31, 2018, the modification must state that section 11051 of P.L. 115-97 applies to the modification.

Scholarships and Fellowship Grants Subject to Chapter 3 Withholding (Income Code 16)

A scholarship or fellowship grant is an amount given to an individual for study, training, or re-search, and which does not constitute compen-sation for personal services. For information about withholding on scholarship and fellowship grants that is treated as compensation for serv-ices, see Pay for services rendered, later. Whether a fellowship grant from U.S. sources is subject to chapter 3 withholding depends on the nature of the payments and whether the recipi-ent is a candidate for a degree. These amounts are not subject to chapter 4 withholding. See Scholarships, fellowships, and grants under Source of Income, earlier.

Candidate for a degree. Do not withhold on a qualified scholarship from U.S. sources granted and paid to a candidate for a degree. A quali-fied scholarship means any amount paid to an individual as a scholarship or fellowship grant to the extent that, in accordance with the condi-tions of the grant, the amount is to be used for the following expenses.

Tuition and fees required for enrollment or attendance at an educational organization.

Fees, books, supplies, and equipment re-quired for courses of instruction at the edu-cational organization.

The payment of a qualified scholarship to a nonresident alien is not reportable and is not subject to withholding. However, the part of a scholarship or fellowship paid to a nonresident alien which does not constitute a qualified scholarship is reportable on Form 1042-S and is subject to withholding. For example, those parts of a scholarship devoted to travel, room, and board are subject to withholding and are re-ported on Form 1042-S. The withholding rate is 14% on taxable scholarship and fellowship grants paid to nonresident aliens temporarily present in the United States in “F,” “J,” “M,” or “Q” nonimmigrant status. Payments made to nonresident alien individuals in any other immi-gration status are subject to 30% withholding.

Nondegree candidate. If the person receiving the scholarship or fellowship grant is not a can-didate for a degree, and is present in the United States in “F,” “J,” “M,” or “Q” nonimmigrant sta-tus, you must withhold tax at 14% on the total amount of the grant that is from U.S. sources if the following requirements are met.

1. The grant must be for study, training, or re-search in the United States.

2. The grant must be made by:

a. A tax-exempt organization operated for charitable, religious, educational, etc. purposes;

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b. A foreign government;

c. A federal, state, or local government agency; or

d. An international organization, or a bi-national or multinational educational or cultural organization created or continued by the Mutual Educational and Cultural Exchange Act of 1961 (known as the Fulbright-Hays Act).

If the grant does not meet both (1) and (2) above, you must withhold at 30% on the amount of the grant that is from U.S. sources.

Alternate withholding procedure. You may choose to treat the taxable part of a U.S. source grant or scholarship as wages. The student or grantee must have been admitted into the Uni-ted States on an “F,” “J,” “M,” or “Q” visa. The student or grantee will know that you are using this alternate withholding procedure when you ask for a Form W-4.

The student or grantee must complete Form W-4 annually following the instructions given here and forward it to you, the payer of the scholarship, or your designated withholding agent. You may rely on the information on Form W-4 unless you know or have reason to know it is incorrect. You must file a Form 1042-S (dis-cussed later) for each student or grantee who gives you, or your withholding agent, a Form W-4.

Each student or grantee who files a Form W-4 must file an annual U.S. income tax return to take the deductions claimed on that form. If the individual is in the United States during more than 1 tax year, they must attach a state-ment to the annual Form W-4 indicating that the individual has filed a U.S. income tax return for the previous year. If they have not been in the United States long enough to have to file a re-turn, the individual must attach a statement to the Form W-4 saying that a timely U.S. income tax return will be filed.

The payer of the grant or scholarship must review the Form W-4 to make sure all the nec-essary and required information is provided. If the withholding agent knows or has reason to know that the amounts shown on the Form W-4 may be false, the withholding agent must reject the Form W-4 and withhold at the appropriate statutory rate (14% or 30%).

After receipt and acceptance of the Form W-4, the payer must withhold at the graduated rates in Pub. 15-T as if the grant or scholarship income were wages. The gross amount of the income is reduced by the total amount of any deductions on the Form W-4 and the withhold-ing tax is figured on the rest.

Pay for services rendered. Pay for services rendered as an employee by an alien who is also the recipient of a scholarship or fellowship grant is usually subject to graduated withhold-ing under chapter 3 according to the rules dis-cussed later in Wages Paid to Employees— Graduated Withholding. This includes taxable amounts an individual who is a candidate for a degree receives for teaching, doing research, and carrying out other part-time employment re-quired as a condition for receiving the scholar-ship or fellowship grant (that is, compensatory scholarship or fellowship income).

Grants given to students, trainees, or re-searchers which require the performance of personal services as a necessary condition for disbursing the grant do not qualify as scholar-ship or fellowship grants. Instead, they are com-pensation for personal services considered to be wages. It does not matter what term is used to describe the grant (for example, stipend, scholarship, fellowship, etc.).

Withholding agents who pay grants

that are in fact wages must report such CAUTION grants on Forms 941 and W-2 and withhold income tax on them at the graduated rates. Withholding agents may not allow tax treaty exemptions that apply to scholarships and fellowships to be applied to grants that are really wages. It is the responsibility of the with-holding agent to determine whether a grant is “wages” or a “scholarship or fellowship,” and to report and withhold on the grant accordingly. An alien student, trainee, or researcher may not claim a scholarship or fellowship treaty exemp-tion against income that has been reported to them on Form W-2 as wages.

Per diem paid by the U.S. Government. Per diem for subsistence paid by the U.S. Govern-ment (directly or by contract) to a nonresident alien engaged in a training program in the Uni-ted States funded by the U.S. Agency for Inter-national Development are not subject to 14% or 30% withholding. This is true even if the alien is subject to income tax on those amounts.

Tax treaties. Many treaties contain exemp-tions from U.S. taxation for scholarships and fel-lowships. Although usually found in the student articles of the tax treaties, many of these ex-emptions also apply to research grants re-ceived by researchers who are not students. See Tax Treaties, later, for information about treaty benefits. The treaty provision usually ex-empts the entire scholarship or fellowship amount, regardless of whether the grant is a “qualified scholarship” under U.S. law.

An alien student, trainee, or researcher may claim a treaty exemption for a scholarship or fel-lowship by submitting Form W-8BEN to the payer of the grant. However, a scholarship or fellowship recipient who receives both wages and a scholarship or fellowship from the same institution can claim treaty exemptions on both kinds of income on Form 8233.

The scholarship or fellowship recipient who is claiming a treaty exemption must provide you with a foreign TIN on Form W-8BEN or, in the case of a recipient who also received wages from the same institution, a U.S. TIN on Form 8233, or you cannot allow the treaty exemption. A copy of a completed Form W-7, showing that a TIN has been applied for, can be given to you with a Form 8233. See Form 8233, later, under Pay for Personal Services Performed.

Nonresident alien who becomes a resi-dent alien. In most cases, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on income from a scholarship or fellowship grant. A student (in-cluding a trainee or business apprentice) or re-searcher who has become a resident alien for U.S. tax purposes may not use the terms of a

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tax treaty due to a provision known as a “saving clause.” However, an exception to the saving clause may permit an exemption from tax to continue for scholarship or fellowship grant in-come even after the recipient has otherwise be-come a U.S. resident alien for tax purposes. In this situation, the individual must give you a Form W-9 and an attachment that includes all the following information.

The treaty country.

The treaty article addressing the income.

The article number (or location) in the tax treaty that contains the saving clause and its exceptions.

The type and amount of income that quali-fies for the exemption from tax.

Sufficient facts to justify the exemption from tax under the terms of the treaty arti-cle.

Example. Article 20 of the U.S.–China in-come tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under the Internal Revenue Code, a student may become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, the treaty allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States.

Other Grants, Prizes, and Awards Subject to Chapter 3 Withholding

Other grants, prizes, and awards made by gran-tors that reside in the United States are treated as income from sources within the United States. Those made for activities conducted outside the United States by a foreign person or by grantors that reside outside the United States are treated as income from foreign sour-ces. These provisions do not apply to salaries or other pay for services.

Grant. The purpose of a grant must be to ach-ieve a specific objective, produce a report or other similar product, or improve or enhance a literary, artistic, musical, scientific, teaching, or other similar capacity, skill, or talent of the grantee. A grant must also be an amount which does not qualify as a scholarship or fellowship. The grantor must not intend the amount to be given to the grantee for the purpose of aiding the grantee to perform study, training, or re-search.

Prizes and awards. Prizes and awards are amounts received primarily in recognition of reli-gious, charitable, scientific, educational, artistic, literary, or civic achievement, or are received as the result of entering a contest. A prize or award is taxable to the recipient unless all of the fol-lowing conditions are met.

The recipient was selected without any ac-tion on his or her part to enter the contest or proceeding.

The recipient is not required to render sub-stantial future services as a condition to re-ceive the prize or award.

The prize or award is transferred by the payer to a governmental unit or tax-exempt charitable organization as designated by the recipient.

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Targeted grants and achievement awards. Targeted grants and achievement awards re-ceived by nonresident aliens for activities con-ducted outside the United States are treated as income from foreign sources. Targeted grants and achievement awards are issued by exempt organizations or by the United States (or one of its instruments or agencies), a state (or a politi-cal subdivision of a state), or the District of Co-lumbia for an activity (or past activity in the case of an achievement award) undertaken in the public interest.

Pay for Personal Services Performed

This section explains the rules for withholding tax from pay for personal services. You must generally withhold tax at the 30% rate on com-pensation you pay to a nonresident alien indi-vidual for labor or personal services performed in the United States, unless that pay is specifi-cally exempted from withholding or subject to graduated withholding. This rule applies regard-less of your place of residence, the place where the contract for service was made, or the place of payment.

Payments for personal services are not with-holdable payments under chapter 4 when they are nonfinancial payments. See Regulations section 1.1473-1(a)(4)(iii) for a description of these payments and their exclusion as with-holdable payments.

Illegal aliens. Foreign workers who are illegal aliens are subject to U.S. taxes in spite of their illegal status. U.S. employers or payers who hire illegal aliens may be subject to various fines, penalties, and sanctions imposed by U.S. Immigration and Customs Enforcement. If such employers or payers choose to hire illegal ali-ens, the payments made to those aliens are subject to the same tax withholding and report-ing obligations that apply to other classes of ali-ens. Illegal aliens who are nonresident aliens and who receive income from performing inde-pendent personal services are subject to 30% withholding unless exempt under some provi-sion of law or a tax treaty. Illegal aliens who are resident aliens and who receive income from performing dependent personal services are subject to the same reporting and withholding obligations that apply to U.S. citizens who re-ceive the same kind of income.

Form 8233. This form is used by a nonresident alien individual to claim a tax treaty exemption from withholding on some or all compensation paid for:

Independent personal services (self-em-ployment),

Dependent personal services, or

Personal services income and noncom-pensatory scholarship or fellowship in-come from the same withholding agent.

A withholding agent that receives Form 8233 from a nonresident alien individual claim-ing a tax treaty exemption must review the form, sign to indicate its acceptance, and forward the form to the IRS within 5 days of its acceptance.

COVID-19 medical condition travel excep-tion. For tax years after December 31, 2021,

individuals cannot claim the COVID-19 medical condition travel exception to exclude any days of presence in the United States for the purpose of the “substantial presence test.” This was solely available for the 2020 tax year. How-ever, days of presence in the United States in 2020 that were excluded for tax year 2020 may impact the application of the “substantial pres-ence test” for tax year 2021. For more informa-tion, including guidance for withholding agents, see the Instructions for Form 8233.

Form W-4. This form is used by a person pro-viding dependent personal services to claim withholding allowances, but not a tax treaty ex-emption. Nonresident alien individuals are sub-ject to special instructions for completing the Form W-4. See the discussion under Wages Paid to Employees—Graduated Withholding, later.

Pay for independent personal services (In-come Code 17). Independent personal serv-ices (a term commonly used in tax treaties) are personal services performed by an independent nonresident alien contractor as contrasted with those performed by an employee. This category of pay includes payments for professional serv-ices, such as fees of an attorney, physician, or accountant made directly to the person per-forming the services. It also includes honoraria paid by colleges and universities to visiting teachers, lecturers, and researchers.

Pay for independent personal services is subject to chapter 3 withholding and reporting as follows.

30% rate. You must withhold at the statu-tory rate of 30% on all payments unless the alien enters into a withholding agreement or re-ceives a final payment exemption (discussed later).

Withholding agreements. Pay for per-sonal services of a nonresident alien who is en-gaged during the tax year in the conduct of a U.S. trade or business may be wholly or parti-ally exempted from withholding at the statutory rate if an agreement has been reached between the Commissioner or his delegate and the alien as to the amount of withholding required. This agreement will be effective for payments cov-ered by the agreement that are made after the agreement is executed by all parties. The alien must agree to timely file an income tax return for the current tax year.

Final payment exemption. The final pay-ment of compensation for independent per-sonal services may be wholly or partially ex-empt from withholding at the statutory rate. This exemption applies to the last payment of com-pensation, other than wages, for personal serv-ices rendered in the United States that the alien expects to receive from any withholding agent during the tax year.

To obtain the final payment exemption, the alien, or the alien's agent, must file the forms and provide the information required by the Commissioner or his delegate. This information includes, but is not limited to, the following items.

A statement by each withholding agent from whom amounts of gross income ef-fectively connected with the conduct of a

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U.S. trade or business have been received by the alien during the tax year. It must show the amount of income paid and the amount of tax withheld. The withholding agent must sign the statement and include a declaration that it is made under penal-ties of perjury.

A statement by the withholding agent from whom the final payment of compensation for personal services will be received showing the amount of final payment and the amount that would be withheld if a final payment exemption is not granted. The withholding agent must sign the statement and include a declaration that it is made under penalties of perjury.

A statement by the alien that they do not intend to receive any other amounts of gross income effectively connected with the conduct of a U.S. trade or business during the current tax year.

The amount of tax that has been withheld (or paid) under any other provision of the Internal Revenue Code or regulations for any income effectively connected with the conduct of a U.S. trade or business during the current tax year.

The amount of any outstanding tax liabili-ties, including any interest and penalties, from the current tax year or prior tax peri-ods.

The provision of any income tax treaty un-der which a partial or complete exemption from withholding may be claimed, the country of the alien's residence, and a statement of sufficient facts to justify an ex-emption under that treaty.

The alien must give a statement, signed and verified by a declaration that it is made under penalties of perjury, that all the information pro-vided is true, and that to his or her knowledge no relevant information has been omitted.

If satisfied with the information provided, the Commissioner or his delegate will determine the amount of the alien's tentative income tax for the tax year on gross income effectively con-nected with the conduct of a U.S. trade or busi-ness. Ordinary and necessary business expen-ses may be taken into account if proved to the satisfaction of the Commissioner or his dele-gate.

The Commissioner or his delegate will pro-vide the alien with a letter to you, the withhold-ing agent, stating the amount of the final pay-ment of compensation for personal services that is exempt from withholding, and the amount that would otherwise be withheld that may be paid to the alien due to the exemption. The amount of pay exempt from withholding cannot be more than $5,000. The alien must give two copies of the letter to you and must also attach a copy of the letter to his or her in-come tax return for the tax year for which the exemption is effective.

Travel expenses. If you pay or reimburse the travel expenses of a nonresident alien, the payments are not reportable to the IRS and are not subject to chapter 3 withholding if the pay-ments are made under an accountable plan, as described in Regulations section 1.62-2. This treatment applies only to that part of a payment that represents the payment of travel and lodg-ing expenses and not to that part that

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represents compensation for independent per-sonal services.

Tax treaties. Under some tax treaties, pay for independent personal services performed in the United States is treated as business income and taxed according to the treaty provisions for business profits.

Under other tax treaties, pay for independ-ent personal services performed in the United States is exempt from U.S. income tax only if the independent nonresident alien contractor performs the services during a period of tempo-rary presence in the United States (usually not more than 183 days) and is a resident of the treaty country.

Independent nonresident alien contractors use Form 8233 to claim an exemption from withholding under a tax treaty. For more infor-mation, see Form 8233, earlier.

Form 8233 should be used to claim a TIP treaty benefit based on a business profits provision or an independent per-

sonal services provision.

Often, you must withhold under the statutory rules on payments made to a treaty country res-ident contractor for services performed in the United States. This is because the factors on which the treaty exemption is based may not be determinable until after the close of the tax year. The contractor must then file a U.S. in-come tax return (Form 1040-NR) to recover any overwithheld tax by providing the IRS with proof that they are entitled to a treaty exemption.

Wages Paid to Employees— Graduated Withholding

Salaries, wages, bonuses, or any other pay for personal services (referred to collectively as wages) paid to nonresident alien employees are subject to graduated withholding in the same way as for U.S. citizens and residents if the wa-ges are effectively connected with the conduct of a U.S. trade or business.

Note. Any wages paid to a nonresident alien for personal services performed as an em-ployee for an employer are generally not sub-ject to the 30% withholding if the wages are subject to graduated withholding.

Also, the 30% withholding does not apply to pay for personal services performed as an em-ployee for an employer if it is effectively connec-ted with the conduct of a U.S. trade or business and is specifically exempted from the definition of wages. Chapter 4 withholding does not apply to these payments. See Pay that is not wages, later.

Special rule for certain agricultural work-ers. The 30% withholding does not apply to pay for personal services performed by a for-eign agricultural worker in the United States on an H-2A visa. However, if the total wages are $600 or more and the worker does not give you a TIN, you may need to backup withhold. You may withhold at graduated rates if the em-ployee asks you to by giving you a completed Form W-4.

Pay for personal services that is not subject to withholding is not subject to reporting on

Form 1042-S. If the compensation is more than $600, report it on Form W-2 (if the employee gave you a TIN) or on Form 1099-NEC, Nonem-ployee Compensation (if the employee did not give you a TIN). See the Instructions for Forms 1099-MISC and 1099-NEC for more informa-tion.

For more information on withholding on for-eign agricultural workers, go to IRS.gov and en-ter “agricultural workers” in the search box.

Employer–employee relationship. For pay for personal services to qualify as wages, there must be an employer–employee relationship.

Under the common law rules, every individ-ual who performs services subject to the will and control of an employer, both as to what shall be done and how it shall be done, is an employee. It does not matter that the employer allows the employee considerable discretion and freedom of action, as long as the employer has the legal right to control both the method and the result of the services.

If an employer–employee relationship exists, it does not matter what the parties call the rela-tionship. It does not matter if the employee is called a partner, coadventurer, agent, or inde-pendent contractor. It does not matter how the pay is measured, how the individual is paid, or what the payments are called. Nor does it mat-ter whether the individual works full time or part time.

The existence of the employer–employee relationship under the usual common law rules will be determined, in doubtful cases, by an ex-amination of the facts of each case.

Employee. An employee generally in-cludes any individual who performs services if the relationship between the individual and the person for whom the services are performed is the legal relationship of employer and em-ployee. This includes an individual who re-ceives a supplemental unemployment pay ben-efit that is treated as wages.

No distinction is made between classes of employees. Superintendents, managers, and other supervisory personnel are employ-ees. In most cases, an officer of a corporation is an employee, but a director acting in this ca-pacity is not. An officer who does not perform any services, or only minor services, and nei-ther receives nor is entitled to receive any pay is not considered an employee.

Employer. An employer is any person or organization for whom an individual performs or has performed any service, of whatever nature, as an employee. The term “employer” includes not only individuals and organizations in a trade or business, but organizations exempt from in-come tax, such as religious and charitable or-ganizations, educational institutions, clubs, so-cial organizations, and societies. It also includes the governments of the United States, the States, Puerto Rico, and the District of Co-lumbia, as well as their agencies, instrumentali-ties, and political subdivisions.

Two special definitions of employer that may have considerable application to nonresident aliens are:

An employer includes any person paying wages for a nonresident alien individual, foreign partnership, or foreign corporation

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not engaged in trade or business in the United States (including Puerto Rico as if a part of the United States), and

An employer includes any person who has control of the payment of wages for serv-ices that are performed for another person who does not have that control.

For example, if a trust pays wages, such as certain types of pensions, supplemental unem-ployment pay, or retired pay, and the person for whom the services were performed has no legal control over the payment of the wages, the trust is the employer.

These special definitions have no effect upon the relationship between an alien em-ployee and the actual employer when determin-ing whether the pay received is considered to be wages.

If an employer–employee relationship exists, the employer ordinarily must withhold the in-come tax from wage payments by using the percentage method or wage bracket tables as shown in Pub. 15-T.

Pay that is not wages. Employment for which the pay is not considered wages (for graduated income tax withholding) includes, but is not limi-ted to, the following items.

Agricultural labor if the total cash wages paid to an individual worker during the year is less than $150 and the total paid to all workers during the year is less than $2,500. But even if the total amount paid to all workers is $2,500 or more, wages of less than $150 per year paid to a worker are not subject to income tax withholding if certain conditions are met. For these con-ditions, see Pub. 51 (Circular A).

Services of a household nature performed in or about the private home of an em-ployer, or in or about the clubrooms or house of a local college club, fraternity, or sorority. A local college club, fraternity, or sorority does not include an alumni club or chapter and may not be operated primarily as a business enterprise. Examples of these services include those performed as a cook, janitor, housekeeper, governess, gardener, or houseparent.

Certain services performed outside the course of the employer's trade or business for which cash payment is less than $50 for the calendar quarter.

Services performed as an employee of a foreign government, without regard to citi-zenship, residence, or where services are performed. These include services per-formed by ambassadors, other diplomatic and consular officers and employees, and nondiplomatic representatives. They do not include services for a U.S. or Puerto Rican corporation owned by a foreign gov-ernment.

Services performed within or outside the United States by an employee or officer (regardless of citizenship or residence) of an international organization designated under the International Organizations Im-munities Act.

Services performed by a duly ordained, commissioned, or licensed minister of a church, but only if performed in the exer-cise of the ministry and not as an em-

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ployee of the United States, a U.S. posses-sion, or a foreign government, or any of their political subdivisions. These also in-clude services performed by a member of a religious order in carrying out duties re-quired by that order.

Tips paid to an employee if they are paid in any medium other than cash or, if in cash, they amount to less than $20 in any calen-dar month in the course of employment.

Services performed outside the United States. Compensation paid to a nonresident alien (other than a resident of Puerto Rico, dis-cussed later) for services performed outside the United States is not considered wages and is not subject to withholding.

Special instructions for Form W-4. A nonresident alien subject to wage withholding must give the employer a completed Form W-4 to enable the employer to figure how much in-come tax to withhold.

A nonresident alien cannot claim ex-

emption from withholding on Form CAUTION W-4. Use Form 8233 to claim a tax treaty exemption from withholding. See Form 8233, earlier.

In completing Form W-4, nonresident aliens should use the following instructions instead of the instructions on Form W-4.

1. Check “Single or Married filing separately” on Step 1(c) (regardless of actual marital status).

2. Write “Nonresident Alien” or “NRA” in the space below Step 4(c).

For more information see Notice 1392.

Nonresident alien employees are not TIP required to request an additional with-holding amount, but they can choose to

have an additional amount withheld.

Determining amount to withhold. Employers are required to add an amount to the wages of a nonresident alien employee solely for the pur-pose of calculating income tax withholding. The specific amounts depend on the payroll period. These amounts can be found in Withholding Adjustment for Nonresident Alien Employees in the Introduction of Pub. 15-T. This adjustment does not apply to students and business ap-prentices from India.

Do not include the additional amount

on the employee's Form W-2, Wage CAUTION and Tax Statement.

Reporting requirements for wages and withheld taxes paid to nonresident aliens. The employer must report the amount of wages and deposits of withheld income and social se-curity and Medicare taxes by filing Form 941. Household employers should see Pub. 926, for information on reporting and paying employ-ment taxes on wages paid to household em-ployees.

Form W-2. The employer must also report on Form W-2 the wages subject to chapter 3 withholding and the withheld taxes. You must give copies of this form to the employee. If the employee submits Form 8233 to claim

exemption from withholding under a tax treaty, the wages are reported on Form 1042-S and not in box 1 of Form W-2. Wages exempt under a tax treaty may still be reported in the state and local wages boxes of Form W-2 if such wages are subject to state and local taxation. For more information, see the instructions for these forms.

Trust fund recovery penalty. If you are a per-son responsible for withholding, accounting for, or depositing or paying employment taxes, and willfully fail to do so, you can be held liable for a penalty equal to the full amount of the unpaid trust fund tax, plus interest. A responsible per-son for this purpose can be an officer of a cor-poration, a partner, a sole proprietor, or an em-ployee of any form of business. A trustee or agent with authority over the funds of the busi-ness can also be held responsible for the pen-alty.

“Willfully” in this case means voluntarily, consciously, and intentionally. You are acting willfully if you pay other expenses of the busi-ness instead of the withholding taxes.

Social security and Medicare tax. In most cases, the employer must also withhold Federal Insurance Contributions Act (FICA) tax and file Form 941. In certain cases, wages paid to stu-dents and railroad and agricultural workers are exempt from FICA tax. Wages paid to nonresi-dent alien students, teachers, researchers, trainees, and other nonresident aliens in “F-1,” “J-1,”“ M-1,” or “Q” nonimmigrant status are not subject to FICA. See Pub. 15-T for the rules on withholding.

In addition to withholding Medicare tax at 1.45%, you must withhold a 0.9% Additional Medicare Tax from wages you pay in excess of $200,000 in a calendar year. See Pub.15 for more information.

Federal unemployment tax (FUTA). The em-ployer must pay FUTA tax and file Form 940. Only the employer pays this tax; it is not deduc-ted from the employee's wages. In certain ca-ses, wages paid to students and railroad and agricultural workers are exempt from FUTA tax. For more information, see the Instructions for Form 940.

Wages paid to nonresident alien students, teachers, researchers, trainees, and other non-resident aliens in “F-1,” “J-1,” “M-1,” or “Q” non-immigrant status are not subject to FUTA tax.

Pay for dependent personal services (In-come Code 18). Dependent personal services are personal services performed in the United States by a nonresident alien individual as an employee rather than as an independent con-tractor.

Pay for dependent personal services is sub-ject to chapter 3 withholding and reporting as follows.

Graduated rates. Ordinarily, you must withhold on pay (wages) for dependent per-sonal services using graduated rates. The non-resident alien must complete Form W-4, as dis-cussed earlier under Special instructions for Form W-4, and you must report wages and in-come tax withheld on Form W-2. However, you

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do not have to withhold if any of the following four exceptions applies.

Exception 1. Compensation paid for labor or personal services performed in the United States is deemed not to be income from sour-ces within the United States and is exempt from U.S. income tax if:

1. The labor or services are performed by a nonresident alien temporarily present in the United States for a period or periods not exceeding a total of 90 days during the tax year;

2. The total pay does not exceed $3,000; and

3. The pay is for labor or services performed as an employee of, or under a contract with:

a. A nonresident alien individual, foreign partnership, or foreign corporation that is not engaged in a trade or busi-ness in the United States; or

b. A U.S. citizen or resident alien individ-ual, a domestic partnership, or a do-mestic corporation, if the labor or services are performed for an office or place of business maintained in a for-eign country or in a possession of the United States by this individual, part-nership, or corporation.

If the total pay is more than $3,000, the en-tire amount is income from sources in the Uni-ted States and is subject to U.S. tax.

Also, compensation paid for labor or serv-ices performed in the United States by a non-resident alien in connection with the individual's temporary presence in the United States as a regular member of the crew of a foreign vessel engaged in transportation between the United States and a foreign country or a U.S. posses-sion is not income from sources within the Uni-ted States.

Exception 2. Compensation paid by a for-eign employer to a nonresident alien for the pe-riod the alien is temporarily present in the Uni-ted States on an “F,” “J,” or “Q” visa is exempt from U.S. income tax. For this purpose, a for-eign employer means:

A nonresident alien individual, foreign part-nership, or foreign corporation; or

An office or place of business maintained in a foreign country or in a U.S. possession by a domestic corporation, a domestic partnership, or an individual U.S. citizen or resident.

You can exempt the payment from withhold-ing if you can reliably associate the payment with a Form W-8BEN containing the TIN of the payee.

Exception 3. Compensation paid to certain residents of Canada or Mexico who enter or leave the United States at frequent intervals is not subject to withholding. These aliens must either:

Perform duties in transportation services (such as a railroad, bus, truck, ferry, steamboat, aircraft, or other type) between

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the United States and Canada or Mexico; or

Perform duties connected with an interna-tional project, relating to the construction, maintenance, or operation of a waterway, viaduct, dam, or bridge crossed by, or crossing, the boundary between the United States and Canada or the boundary be-tween the United States and Mexico.

To qualify for the exemption from withhold-ing during a tax year, a Canadian or Mexican resident must give the employer a statement with the employee's name, address, and identi-fication number, and certifying that the resident:

Is not a U.S. citizen or resident;

Is a resident of Canada or Mexico, which-ever applies; and

Expects to perform the described duties during the tax year in question.

The statement can be in any form, but it must be dated and signed by the employee and must include a written declaration that it is made under penalties of perjury.

Canadian and Mexican residents em-ployed entirely within the United States. Neither the transportation service exception nor the international projects exception applies to the pay of a resident of Canada or Mexico who is employed entirely within the United States and who commutes from a home in Canada or Mexico to work in the United States. If an indi-vidual works at a fixed point or points in the Uni-ted States (such as a factory, store, office, or designated area or areas), the wages for serv-ices performed as an employee for an employer are subject to graduated withholding.

Exception 4. Compensation paid for serv-ices performed in Puerto Rico by a nonresident alien who is a resident of Puerto Rico for an em-ployer (other than the United States or one of its agencies) is not subject to withholding.

Compensation paid for either of the follow-ing types of services is not subject to withhold-ing if the alien does not expect to be a resident of Puerto Rico during the entire tax year.

Services performed outside the United States but not in Puerto Rico by a nonresi-dent alien who is a resident of Puerto Rico for an employer other than the United States or one of its agencies.

Services performed outside the United States by a nonresident alien who is a resi-dent of Puerto Rico, as an employee of the United States or any of its agencies.

To qualify for the exemption from withhold-ing for any tax year, the employee must give the employer a statement showing the employee's name and address and certifying that the em-ployee:

Is not a citizen or resident of the United States, and

Is a resident of Puerto Rico who does not expect to be a resident for that entire tax year.

The statement must be signed and dated by the employee and contain a written declaration that it is made under penalties of perjury.

Tax treaties. Pay for dependent personal services under some tax treaties is exempt from U.S. income tax only if both the employer and

the employee are treaty country residents and the nonresident alien employee performs the services while temporarily living in the United States (usually for not more than 183 days). Other treaties provide for exemption from U.S. tax on pay for dependent personal services if the employer is any foreign resident and the employee is a treaty country resident and the nonresident alien employee performs the serv-ices while temporarily in the United States. See Tax Treaties, later, for information about treaty benefits.

Pay for teaching (Income Code 19). This category is given a separate income code num-ber because some tax treaties exempt a teacher from tax for a limited number of years. Pay for teaching means payments to a nonresi-dent alien professor, teacher, or researcher by a U.S. university or other accredited educa-tional institution for teaching or research work at the institution.

Graduated rates. Graduated withholding of income tax usually applies to all wages, sal-aries, and other pay for teaching and research paid by a U.S. educational institution during the period the nonresident alien is teaching or per-forming research at the institution.

Social security and Medicare tax. A non-resident alien temporarily in the United States on an “F-1,” “J-1,” “M-1,” or “Q-1” visa is not subject to social security and Medicare taxes on pay for services performed to carry out the purpose for which the alien was admitted to the United States. Social security and Medicare taxes should not be withheld or paid on this amount.

Example. A nonresident alien is issued a visa to teach for a university. While in the United States, he takes a part-time job working for a chemical company. The wages earned while teaching at the university are exempt from so-cial security and Medicare taxes. The wages earned at the chemical company are subject to social security and Medicare taxes.

If an alien is considered a resident alien, as discussed earlier, that pay is subject to social security and Medicare taxes even though the alien is still in one of the nonimmigrant statuses mentioned above. This rule also applies to FUTA (unemployment) taxes paid by the em-ployer. Teachers, researchers, and other em-ployees temporarily present in the United States on other nonimmigrant visas or in refu-gee or asylee immigration status are fully liable for social security and Medicare taxes unless an exemption applies from one of the totaliza-tion agreements in force between the United States and several other nations.

The Social Security Administration (SSA) publishes the complete texts and explanatory pamphlets of the total-

ization agreements, which are available by call-ing 410-965-7306 or by going to SSA.gov/ international/totalization_agreements.html.

Tax treaties. Under most tax treaties, pay for teaching or research is exempt from U.S. in-come tax and from withholding for a specified period of time when paid to a professor, teacher, or researcher who was a resident of

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the treaty country immediately prior to entry into the United States and who is not a citizen of the United States. The U.S. educational institution paying the compensation must report the amount of compensation paid each year that is exempt from tax under a tax treaty on Form 1042-S. See Tax Treaties, later, for information about treaty benefits. The employer should also report the compensation in the state and local wages boxes of Form W-2 if the wages are sub-ject to state and local taxes, or in the social se-curity and Medicare wages boxes of Form W-2 if the wages are subject to social security and Medicare taxes.

Claimants must give you either Form W-8BEN or Form 8233, as applicable, to obtain these treaty benefits.

Pay during studying and training (Income Code 20). This category refers to pay (as con-trasted with remittances, allowances, or other forms of scholarships or fellowship grants—see Scholarships and Fellowship Grants Subject to Chapter 3 Withholding, earlier) for personal services performed while a nonresident alien is temporarily in the United States as a student, trainee, or apprentice, or while acquiring techni-cal, professional, or business experience.

Graduated rates. Wages, salaries, or other compensation paid to a nonresident alien student, trainee, or apprentice for labor or per-sonal services performed in the United States are subject to graduated withholding.

Social security and Medicare tax. A nonresident alien temporarily in the United States on an “F-1,” “J-1,” “M-1,” or “Q-1” visa is not subject to social security and Medicare taxes on pay for services performed to carry out the purpose for which the alien was admitted to the United States. Social security and Medicare taxes should not be withheld or paid on this amount. This exemption from social security and Medicare taxes also applies to employment performed under Curricular Practical Training and Optional Practical Training, on or off cam-pus, by foreign students in “F-1,” “J-1,” “M-1,” or “Q” status as long as the employment is author-ized by the U.S. Citizenship and Immigration Services.

Example. A nonresident alien is admitted to the United States to study surveying. As part of her course, she apprentices to a surveyor. She also works part-time at a restaurant to sup-plement her income. The wages she earns as an apprentice are not subject to social security and Medicare taxes. The wages and tips she earns at the restaurant are subject to social se-curity and Medicare taxes.

If an alien is considered a resident alien, as discussed earlier, that pay is subject to social security and Medicare taxes even though the alien is still in one of the nonimmigrant statuses mentioned above. This rule also applies to FUTA (unemployment) taxes paid by the em-ployer.

Any student who is enrolled and regularly at-tending classes at a school may be exempt from social security, Medicare, and FUTA taxes on pay for services performed for that school. See Pub.15.

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*Tax treaties.* Certain tax treaties provide a			Tax treaties. Under many tax treaties, com-
limited exemption from U.S. income tax and			pensation paid to public entertainers or athletes
from withholding on compensation paid to non-			for services performed in the United States is
resident alien students or trainees during train-			exempt from U.S. income tax if the artist or ath-
ing in the United States for a limited period. In			lete derives receipts for the tax year concerned,
addition, some treaties provide an exemption			including expenses reimbursed to them or
from tax and withholding for compensation paid			borne on their behalf, not in excess of $10,000,
by the U.S. Government or its contractor to a			or in more recent treaties, $20,000. See Tax
nonresident alien student or trainee who is tem-			Treaties, later, for information about treaty	ben-
porarily present in the United States as a partic-			efits.
ipant in a program sponsored by the U.S. Gov-			Employees and independent contractors
ernment. See	Tax Treaties	, later, for information	may claim an exemption from withholding under
about treaty	benefits. However, a withholding		a tax treaty by filing Form 8233. Often, however,
agent who is a U.S. resident, a U.S. Govern-			you will have to withhold at the statutory rates
ment agency, or its contractor must report the			on the total payments to the entertainer or ath-
amount of pay on Form 1042-S.			lete. This is because the exemption may be
Claimants must give you either Form			based upon factors that cannot be determined
W-8BEN or Form 8233, as applicable, to obtain			until after the end of the year.
these treaty benefits.

Artists and Athletes

Other Income

(Income Codes 42 and 43)

For the discussion of Income Codes 24, 25, and

26, see U.S. Real Property Interest, later. For

Publicly

Because many tax treaties contain a provision

the discussion of Income Code 27, see

for pay to artists and athletes, a separate cate-

Traded Partnerships

, later.

gory is assigned these payments for chapter 3

Gambling winnings (Income Code 28). In

withholding purposes. This category includes

general, nonresident aliens are subject to chap-

payments made for performances by public en-

ter 3 withholding at 30% on the gross proceeds

tertainers (such as theater, motion picture, ra-

from gambling won in the United States if that

dio, or television artists, or musicians) or ath-

income is not effectively connected with a U.S.

letes.

trade or business and is not exempted by

Use Income Code 42 to report payments to

treaty. The tax withheld and winnings are re-

nonresident alien athletes and entertainers

portable on Forms 1042 and 1042-S. Chapter 4

(NRAAEs) who have not signed a central with-

withholding does not apply to these proceeds.

holding agreement (CWA), discussed later. Use

No tax is imposed on nonbusiness gambling

Income Code 43 to report payments to artists

income a nonresident alien wins playing black-

and athletes who have signed a CWA.

jack, baccarat, craps, roulette, or big-6 wheel in

the United States. A Form W-8BEN is not re-

Income Code 42. You must withhold tax at a

quired to obtain the exemption from withhold-

30% rate on payments to artists and athletes for

ing, but a Form W-8BEN may be required for

services performed as independent contractors.

purposes of Form 1099 reporting and backup

See Pay for independent personal services,

withholding. Gambling income that is not sub-

earlier,

for more information. You must withhold

ject to chapter 3 withholding is not subject to re-

tax at graduated rates on payments to artists

porting on Form 1042-S.

and athletes for services performed as employ-

Nonresident aliens are taxed at graduated

ees. See Pay for dependent personal services,

rates on net gambling income won in the United

States that is effectively connected with a U.S.

earlier, for more information. However, in any

situation where the nature of the relationship

trade or business.

between the payer of the income and the artist

Tax treaties. Gambling income of resi-

or athlete is not ascertainable, you should with-

dents (as defined by treaty) of the following for-

hold at a rate of 30%.

eign countries is not taxable by the United

Income Code 43.

NRAAEs who perform or

States: Austria, Belgium, Bulgaria, Czech Re-

public, Denmark, Finland, France, Germany,

participate in events in the United States can re-

Hungary, Iceland, Ireland, Italy, Japan, Latvia,

quest a CWA for a lower rate of withholding. A

Lithuania, Luxembourg, Netherlands, Russia,

CWA is an agreement entered into by the ath-

Slovak Republic, Slovenia, South Africa, Spain,

lete or

entertainer,

a designated withholding

Sweden, Tunisia, Turkey, Ukraine, and the Uni-

agent, and the IRS. Under no circumstances

ted Kingdom.

will a CWA reduce taxes withheld to less than

Gambling income of residents of Malta is

the anticipated amount of income tax liability.

taxed at 10%.

We’ve

temporarily waived the income re-

Claimants must give you a Form W-8BEN

quirement for which form to use when applying

(with a U.S. or foreign TIN) to claim treaty bene-

for a CWA. Form 13930-A is currently unavaila-

fits on gambling income that is not effectively

ble. While the waiver is in effect, individuals with

connected with a U.S. trade or business. See

income below $10,000 can apply for a CWA us-

U.S. or Foreign TINs, later, for when you can

ing Form 13930, Instructions on How to Apply

accept a Form W-8BEN without a TIN.

for a Central Withholding Agreement PDF. For

more information on how to apply for a CWA,

Transportation income. U.S. source gross

see Form 13930.

transportation income (USSGTI), as defined in

For more information on the CWA program,

section 887, is not subject to 30% gross with-

go

to

IRS.gov/Individuals/International-

holding tax, and chapter 4 withholding does not

Taxpayers/Central-Withholding-Agreements

.

apply to this income. Transportation income is

Publication 515 (2023)

income from the use of a vessel or aircraft, whether owned, hired, or leased, or from the performance of services directly related to the use of a vessel or aircraft. U.S. source gross transportation income includes 50% of all trans-portation income from transportation that either begins or ends in the United States. USSGTI does not include transportation income of a for-eign corporation taxable in a U.S. possession. The recipient of USSGTI must pay tax on it an-nually at the rate of 4% on Section I of Form 1120-F, unless the income is effectively con-nected with the conduct of a U.S. trade or busi-ness and is reportable on Section II of Form 1120-F. Special rules apply to determine if a foreign corporation's USSGTI is effectively con-nected with a U.S. trade or business.

Canadian truck and rail income. Under Article VIII (Transportation) of the U.S.–Canada treaty, any U.S. source income derived by a Canadian company engaged in the operation of trucks or a railway as a common carrier or con-tract carrier, and attributable to the transporta-tion of property between Canada and the Uni-ted States, is exempt from tax in the United States, provided the company is otherwise eligi-ble for treaty benefits. Payments for the use of trucks (including trailers) or railway rolling stock, or from the use, maintenance, or rental of con-tainers (including trailers and related equipment for the transport of containers) used to transport property between Canada and the United States are also exempt from U.S. tax, provided the company is otherwise eligible for treaty ben-efits. Canadian companies must file Form 1120 -F and Form 8833 to claim an exemption from tax for profits from their operating income. Canadian corporations are subject to chapter 3 withholding on rental payments for the use of such equipment in the United States and may claim an exemption on Form W8-BEN-E.

Foreign freight charges or rental of equipment used outside the United States. Payments for transportation of property, whether by ship, air, or truck, solely between points outside the United States or rental of tan-gible property in connection with transportation solely for use between points outside the United States is not U.S. source income and not sub-ject to chapter 3 withholding.

Payments to certain expatriates. Certain payments to nonresident aliens who are cov-ered expatriates under section 877A(g)(1) are subject to withholding at 30%. In general, non-resident aliens are covered expatriates if they were U.S. citizens or long-term residents who renounced their citizenship or ceased to be long-term residents for U.S. tax purposes after June 16, 2008, and satisfied other tests for average annual net income tax or net worth. For more information on the definition of covered expatriates, see the Instructions for Form 8854.

A covered expatriate should have provided you with Form W-8CE notifying you of their cov-ered expatriate status and the fact that they may be subject to special tax rules with respect to certain items. For more information, see the Instructions for Form W-8CE.

Eligible deferred compensation items (Income Code 38). In general, you must with-hold tax at a 30% rate on any payment of an

Publication 515 (2023)

eligible deferred compensation item paid to a covered expatriate. The amount subject to tax is the amount of the payment that would have been included in the nonresident alien's U.S. gross income if they had continued to be taxed as a U.S. citizen or resident.

Distributions from a nongrantor trust (Income Code 39). In general, you must with-hold tax at a 30% rate on any direct or indirect distribution from a nongrantor trust. The amount subject to tax is the part of the distribution that would have been included in the nonresident alien's U.S. gross income if they had continued to be taxed as a U.S. citizen or resident. If the nonresident alien was not a beneficiary of the nongrantor trust on the day before they gave up their U.S. citizenship or long-term residence, you do not have to withhold tax. See section 7 of Notice 2009-85, 2009-45 I.R.B. 598, availa-ble at IRS.gov/irb/2009-45_IRB#NOT-2009-85.

Guarantee of indebtedness (Income Code 41). An amount paid to a foreign payee for the provision of a guarantee of indebtedness is-sued after September 27, 2010, may be subject to chapter 3 withholding. The amounts must be paid by one of the following.

1. A noncorporate U.S. resident.

2. A domestic corporation.

3. Any foreign person if the amount paid is connected with income that is effectively connected, or treated as effectively con-nected, with a U.S. trade or business.

An indirect payment includes a payment by a foreign bank to a foreign corporation for the foreign corporation's guarantee of indebtedness owed to the foreign bank by the foreign corpo-ration's domestic subsidiary, where the cost of the guarantee fee is passed on to the domestic subsidiary through additional interest charged on the indebtedness.

The amounts described above for a guaran-tee of indebtedness are withholdable pay-ments, such that chapter 4 withholding may ap-ply absent an exclusion from withholding under chapter 4.

Other income (Income Code 23). Use this category to report U.S. source FDAP income that is not reportable under any of the other in-come categories. Examples of income that may be reportable under this category are commis-sions, insurance proceeds, patronage distribu-tions, prizes, and racing purses.

As discussed earlier under Amounts Subject to Chapter 3 Withholding, every kind of FDAP income from U.S. sources that is not effectively connected with a U.S. trade or business is sub-ject to chapter 3 withholding unless the income is specifically exempt under the Internal Reve-nue Code or a tax treaty. You must generally withhold at the 30% rate on this income. As a payment of U.S. source FDAP is generally a withholdable payment, you should review Reg-ulations section 1.1473-1(a) (definition of with-holdable payment) to determine if the payment is excluded from the definition of a withholdable payment.

Foreign Governments and Certain Other Foreign Organizations

Investment income earned by a foreign govern-ment is not included in the gross income of the foreign government and is not subject to chap-ter 3 withholding. The term foreign government means an integral part of a foreign government or an entity that is controlled by a foreign gov-ernment. See Temporary Regulations section 1.892-2T. Investment income means income from investments in the United States in stocks, bonds, or other domestic securities, financial in-struments held in the execution of governmen-tal financial or monetary policy, and interest on money deposited by a foreign government in banks in the United States. A foreign govern-ment must provide a Form W-8EXP or, in the case of a payment made outside the United States to an offshore account, documentary evi-dence to obtain this exemption. Investment in-come paid to a foreign government is subject to reporting on Form 1042-S.

The following types of income received by a foreign government are subject to chapter 3 withholding.

1. Income (including investment income) re-ceived from the conduct of a commercial activity or from sources other than those stated above.

2. Income received from a controlled com-mercial entity (including gain from the dis-position of any interest in a controlled commercial entity) and income received by a controlled commercial entity.

If the foreign government is a partner in a partnership carrying on a trade or busi-ness in the United States, the ECI alloca-ble to the foreign government is consid-ered derived from a controlled commercial activity and is subject to withholding under section 1446.

3. Gain derived from the disposition of a USRPI. Withholding on these gains is dis-cussed later under U.S. Real Property In-terest.

For chapter 4 purposes, payments to a for-eign government (other than earnings inuring to the benefit of a private person) are not pay-ments to which chapter 4 withholding applies unless the payment is made to a controlled en-tity of the foreign government that is engaged in a commercial financial activity. See Regulations section 1.1471-6(h) for a description of a com-mercial financial activity. See Regulations sec-tion 1.1471-3(d)(9) for the documentation re-quired to establish an entity’s chapter 4 status as a foreign government. Similar rules apply for chapter 4 purposes to a payment to a foreign central bank of issue.

A government of a U.S. possession is ex-empt from U.S. tax on all U.S. source income. This income is not subject to chapter 3 with-holding, and chapter 4 withholding does not ap-ply to income paid to a government of a U.S. possession. See Regulations section

Page 39

1.1471-3(d)(9) for the documentation required to establish an entity’s chapter 4 status as a government of a U.S. possession. These gov-ernments should use Form W-8EXP to claim this exemption for both chapters 3 and 4 purpo-ses (as required).

International organizations. International or-ganizations are exempt from U.S. tax on all U.S. source income. Income paid to an international organization (within the meaning of section 7701(a)(18)) is not subject to chapter 3 with-holding. International organizations are not re-quired to provide a Form W-8 or documentary evidence to receive the exemption if the name of the payee is one that is designated as an in-ternational organization by executive order.

Payments made to an international organi-zation, as defined for chapter 4 purposes, are not payments to which chapter 4 withholding applies. An international organization for purpo-ses of chapter 4 means any entity described in section 7701(a)(18). The term also includes any intergovernmental or supranational organization that is comprised primarily of foreign govern-ments, that is recognized as an intergovern-mental or supranational organization under cer-tain foreign laws, or that has in effect a headquarters agreement with a foreign govern-ment, and whose income does not inure to the benefit of private persons. See Regulations section 1.1471-3(d)(9) for the documentation required to establish an entity’s chapter 4 status as an international organization.

Foreign tax-exempt organizations. A for-eign organization that is a tax-exempt organiza-tion under section 501(c) is not subject to a withholding tax on amounts that are not income includible under section 512 as unrelated busi-ness taxable income. In addition, withholdable payments made to a tax-exempt organization under section 501(c) are not payments to which chapter 4 withholding applies.

However, if a foreign organization is a for-eign private foundation, it is subject to a 4% withholding tax on all U.S. source investment in-come. For a foreign tax-exempt organization to claim an exemption from withholding under chapter 3 or 4 because of its tax-exempt status under section 501(c), or to claim withholding at a 4% rate, it must provide you with a Form W-8EXP. However, if a foreign organization is claiming an exemption from withholding under an income tax treaty, or the income is unrelated business taxable income, the organization must provide a Form W-8BEN-E or W-8ECI. Income paid to foreign tax-exempt organizations is sub-ject to reporting on Form 1042-S. If the organi-zation is a partner in a partnership carrying on a trade or business in the United States, the ECI allocable to the organization is subject to with-holding under section 1446.

Foreign financial institutions. For payments made to a reporting Model 1 FFI or reporting Model 2 FFI, see the applicable IGA for defini-tions of entities described under this heading. You may generally rely on documentation provi-ded by such an FFI to treat an entity as descri-bed under this heading (included under the class of a nonreporting IGA FFI). See the Instructions for Form W-8BEN-E.

Page 40

U.S. or Foreign TINs

As the withholding agent, in many cases you must request that the payee provide you with its U.S. TIN. You must in such a case include the payee's TIN on forms, statements, and other tax documents. The payee's TIN may be any of the following.

An individual may have a social security number (SSN). If the individual does not have and is eligible for an SSN, go to SSA.gov/ssnumber/ for more information. The SSA will tell the individual if they are eligible to get an SSN.

An individual may have an IRS individual taxpayer identification number (ITIN). If the individual does not have and is not eligible for an SSN, they must apply for an ITIN by using Form W-7.

Any person other than an individual, and any individual who is an employer or who is engaged in a U.S. trade or business as a sole proprietor, must have an employer identification number (EIN). Use Form SS-4 to get an EIN.

Under certain circumstances, a finan-

cial institution may be required to get a CAUTION GIIN for purposes of chapter 4. See Global Intermediary Identification Numbers, later. See the Instructions for Form 8957 for in-formation on whether a GIIN is needed.

A U.S. or foreign TIN (as applicable) must generally be on a withholding certificate if the beneficial owner is claiming any of the follow-ing.

Tax treaty benefits (see Exceptions to TIN requirement, later).

Income is effectively connected with a U.S. trade or business.

Exemption for certain annuities (see Pen-sions, Annuities, and Alimony, earlier).

Exemption based on exempt organization or private foundation status.

A foreign TIN may also be required for cer-tain account holders (see Foreign TIN require-ment for account holders, later). In addition, a U.S. TIN must be on a withholding certificate from a person claiming to be any of the follow-ing.

QI.

QSL.

Withholding foreign partnership.

Withholding foreign trust.

An organization claiming an exemption or reduced rate of withholding based solely on a claim of tax-exempt status under sec-tion 501(c) or private foundation status (un-less only the 4-percent tax under section 4948(a) applies to the private foundation).

U.S. branch of a foreign person treated as a U.S. person (see Regulations section

1.1441-1(b)(2)(iv)), and a U.S. branch of an FFI acting as an intermediary that is not treated as a U.S person.

U.S. person.

Exceptions to U.S. TIN requirement. A for-eign person does not have to provide a U.S. TIN to claim a reduced rate of withholding under a tax treaty if the requirements for the following

exceptions are met. Instead of requesting a U.S. TIN from a foreign payee, you may request a foreign TIN issued by the payee’s country of residence except when the payee is a nonresi-dent alien individual claiming an exemption from withholding on Form 8233.

Income from marketable securities (dis-cussed earlier under Beneficial Owners).

Unexpected payment to an individual in the case of a payment made by a U.S. fi-nancial institution to an account main-tained at a U.S. office (discussed next).

Unexpected payment. A Form W-8BEN or a Form 8233 provided by a nonresident alien to get treaty benefits does not need a U.S. TIN if you, the withholding agent, meet all the follow-ing requirements.

You are an acceptance agent.

You can request an ITIN for a payee on an expedited basis.

You are required to make an unexpected payment to the nonresident alien.

You cannot get the ITIN because the IRS is not issuing ITINs at the time you make the payment or at any earlier time after you know you have to make the payment.

You cannot reasonably delay making the unexpected payment.

You submit a completed Form W-7 for the payee, with a certification that you have re-viewed the required documentation and have no actual knowledge or reason to know that the documentation is not com-plete or accurate, to the IRS during the first business day after you made the payment.

An acceptance agent is a person who, un-der a written agreement with the IRS, is author-ized to help alien individuals and other foreign persons get ITINs or EINs. For information on the application procedures for becoming an ac-ceptance agent, go to IRS.gov/Individuals/New-ITIN-Acceptance-Agent-Program-Changes.

Note. All acceptance agents will be re-quired to adhere to new quality standards es-tablished and monitored by the IRS.

A payment is unexpected if you or the bene-ficial owner could not have reasonably anticipa-ted the payment during a time when an ITIN could be obtained. This could be due to the na-ture of the payment or the circumstances in which the payment is made. A payment is not considered unexpected solely because the amount of the payment is not fixed.

Example. Mary, a citizen and resident of Ireland, visits the United States and wins $5,000 playing a slot machine in a casino. Un-der the treaty with Ireland, the winnings are not subject to U.S. tax. Mary claims the treaty bene-fits by providing a Form W-8BEN to the casino upon winning at the slot machine. However, she does not have an ITIN or foreign TIN. The ca-sino is an acceptance agent that can request an ITIN on an expedited basis.

Situation 1. Assume that Mary won the money on Sunday. Since the IRS does not is-sue ITINs on Sunday, the casino can pay $5,000 to Mary without withholding U.S. tax. The casino must, on the following Monday, fax a completed Form W -7 for Mary, including the required certification, to the IRS for an expedi-ted ITIN.

Publication 515 (2023)

Situation 2. Assume that Mary won the money on Monday. To pay the winnings without withholding U.S. tax, the casino must apply for and get an ITIN for Mary because an expedited ITIN is available from the IRS at the time of the payment.

Foreign TIN requirement for account hold-ers. If you are a U.S. office or branch of a de-pository institution, custodial institution, invest-ment entity, or specified insurance company (each as defined in Regulations section 1.1471-5(e)) documenting an account holder (as defined in Regulations section 1.1471-5(a)

(3)) of an account that is a financial account (as defined in Regulations section 1.1471-5(b)), you must obtain the account holder’s TIN for its jurisdiction of tax residence (foreign TIN) on a Form W-8 that is a beneficial owner withholding certificate in order for the form to not be invalid for a payment of U.S. source income reportable on Form 1042-S, unless:

The account holder is a resident of a juris-diction that is not listed in section 3 of Rev-enue Procedure 2021-32, 2021-42 I.R.B.

465, available at IRS.gov/irb/

2021-42_IRB#REV-PROC-2021-32, which may be further updated in future published guidance;

The account holder is a resident in a juris-diction that has been identified by the IRS on a list of jurisdictions that do not issue foreign TINs. See IRS.gov/businesses/ corporations/list-of-jurisdictions-that-do-not-issue-foreign-tins;

The account holder is a government, inter-national organization, foreign central bank of issue, or resident of a U.S. territory; or

The account holder obtains a reasonable explanation for why the account holder has not been issued a foreign TIN, including by checking the applicable box on the appli-cable Form W-8 indicating that the account holder is not legally required to obtain an FTIN from the account holder’s jurisdiction of residence (including if the jurisdiction does not issue TINs).

Depositing Withheld Taxes

This section discusses the rules for depositing income tax withheld on FDAP income, including tax withheld pursuant to chapter 4. The deposit rules discussed here do not apply to the follow-ing items.

Taxes on pay subject to graduated with-holding, as discussed earlier. (See Form 941 for the deposit rules.)

Tax withheld on pensions and annuities subject to graduated withholding or the 10% tax on nonperiodic distributions. (See Form 945 for the deposit rules.)

Tax withheld on a foreign partner's share of ECI of a partnership, other than a pub-licly traded partnership. See Partnership Withholding on Effectively Connected In-come, later.

Tax withheld on dispositions of USRPI by foreign persons. See U.S. Real Property Interest, later.

Taxes on household employees. See Schedule H (Form 1040) to report social security and Medicare taxes, and any in-come tax withheld, on wages paid to a nonresident alien household employee.

When Deposits

Are Required

A deposit required for any period occurring in 1 calendar year must be made separately from a deposit for any period occurring in another cal-endar year. A deposit of this tax must be made separately from a deposit of any other type of tax, but you need not identify whether the de-posit is of tax withheld under chapter 3 or 4.

The amount of tax you are required to with-hold determines the frequency of your deposits. For more information, see Deposit Require-ments in the Instructions for Form 1042.

payment because the source or character of the payment is unknown, the withholding agent may retain 30% of the payment to hold in es-crow for chapter 4 purposes in accordance with Regulations section 1.1471-2(a)(5).

Electronic deposit requirement. You must deposit all withheld taxes under chapter 3 or 4 by electronic funds transfer. In most cases, electronic funds transfers are made using the Electronic Federal Tax Payment System (EFTPS). If you do not want to use EFTPS, you can arrange for your tax professional, financial institution, or other trusted third party to make deposits on your behalf. You may also arrange for your financial institution to initiate a same-day wire payment on your behalf. EFTPS is a free service provided by the Department of Treasury. Services provided by your tax profes-sional, financial institution, or other third party may have a fee. For more information about EFTPS or to enroll in EFTPS, visit EFTPS.gov or call 800-555-4477. Additional information about EFTPS is also available in Pub. 966.

Qualified business taxpayers that re-TIP quest an EIN will automatically be en-rolled in EFTPS. They will receive infor-

mation on how to activate their account.

Note. All payments should be stated in U.S. dollars and should be made in U.S. dol-lars.

Penalty for failure to make deposits on time. If you fail to make a required deposit within the time prescribed, a penalty is imposed on the underpayment (the excess of the re-quired deposit over any actual timely deposit for a period). You can avoid the penalty if you can show that the failure to deposit was for reasona-ble cause and not because of willful neglect. Also, the IRS may waive the penalty if certain requirements are met.

Depositing on time. For deposits made by EFTPS to be on time, you must initiate the de-posit by 8 p.m. Eastern time the day before the

A reasonable explanation that an account		Escrow in lieu of deposit. Under certain cir-
holder does not have a foreign TIN must ad-
dress why the account holder was not issued a		cumstances, a withholding agent may be per-
foreign TIN to the extent provided in the instruc-		mitted to set aside a withheld amount in escrow
tions for the applicable Form W-8. If an account		rather than depositing the tax. A participating
holder provides an explanation other than the		FFI that withholds tax on a withholdable pay-
one described in the instructions for the appli-		ment not otherwise subject to chapter 3 with-
cable Form W-8, you must determine whether		holding or backup withholding under section
the explanation is reasonable.		3406 made to a recalcitrant account holder of a
		dormant account may, in lieu of depositing the
Global Intermediary		tax withheld, set aside the amount withheld in
		escrow until the date that the account ceases to
Identification Numbers		be a dormant account. In such case, the tax
(GIINs)		withheld becomes due 90 days following the
If you make a withholdable payment to an entity		date that the account ceases to be a dormant
		account if the account holder does not provide
claiming certain chapter 4 statuses, you may be		the required documentation, or becomes re-
required to obtain and verify the entity’s GIIN		fundable to the account holder if the account
against the published IRS FFI list within 90 days		holder provides documentation establishing
to rely on such a claim. See GIIN Verification		that withholding does not apply.
under Standards of Knowledge	for Purposes of	A withholding agent that withholds tax under
Chapter 4, earlier, for which chapter 4 statuses		chapter 3 on certain payments that include an
require a GIIN.		undetermined amount of income may retain
		30% of the payment to hold in escrow in ac-
		cordance with Regulations section 1.1441-3(d).
		Similarly, if a withholding agent is unable to de-
		termine whether the payment is a withholdable
Publication 515 (2023)

date the deposit is due. If you use a third party to make deposits on your behalf, they may have different cutoff times.

Penalty rate. If the deposit is:

1 to 5 days late, the penalty is 2% of the underpayment;

6 to 15 days late, the penalty is 5%; or

16 or more days late, the penalty is 10%.

However, if the deposit is not made within 10 days after the IRS issues the first notice de-manding payment, the penalty is 15%.

If you owe a penalty for failing to deposit tax for more than one deposit period, and you make a deposit, your deposit is applied to the most recent period to which the deposit relates unless you designate the deposit period or peri-ods to which your deposit is to be applied. You can make this designation only during a 90-day period that begins on the date of the penalty no-tice. The notice contains instructions on how to make this designation.

Page 41

Adjustment for Overwithholding

What to do if you overwithheld tax depends on when you discover the overwithholding.

Overwithholding discovered by March 15 of the following calendar year. If you discover that you overwithheld tax under chapter 3 or 4 by March 15 of the following calendar year, you may use the undeposited amount of tax to make any necessary adjustments between you and the recipient of the income. However, if the undeposited amount is not enough to make any adjustments, or if you discover the overwith-holding after the entire amount of tax has been deposited, you can use either the reimburse-ment procedure or the set-off procedure to ad-just the overwithholding.

If March 15 is a Saturday, Sunday, or TIP legal holiday, the next business day is

the final date for these actions.

For more information on the reimbursement procedure and set-off procedure, and what to do if you discover the overwithholding after March 15 of the following calendar year, see Adjustment for Overwithholding in the Instruc-tions for Form 1042.

Returns Required

Every withholding agent, whether U.S. or for-eign, must file Forms 1042 and 1042-S to re-port:

Amounts subject to chapter 3 withholding paid to foreign persons (including persons presumed to be foreign), even if no amount is deducted and withheld from the pay-ment under chapter 3, and

Payments to which chapter 4 withholding is applied or which are allocated on an ap-plicable withholding statement provided by a participating FFI or registered deemed-compliant FFI to a chapter 4 with-holding rate pool of U.S. payees (chapter 4 reportable amounts).

Do not use Forms 1042 and 1042-S to report tax withheld on the following.

Wages, salaries, or other compensation reported on Form W-2 (see Wages Paid to Employees—Graduated Withholding, ear-lier, under Pay for Personal Services Per-formed).

Any part of a U.S. or foreign partnership's (other than a publicly traded partnership) effectively connected taxable income allo-cable to a foreign partner (see Partnership Withholding on Effectively Connected In-come, later).

Dispositions of USRPI by foreign persons (see U.S. Real Property Interest, later).

Pensions, annuities, and certain other de-ferred income reported on Form 1099.

Income, social security, and Medicare taxes on wages paid to a household em-ployee reported on Schedule H (Form 1040).

Amounts subject to backup withholding un-der section 3406, including withholdable payments that are reportable payments and that are paid to a recalcitrant account

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holder of a participating FFI or registered deemed-compliant FFI that has elected on its withholding statement for withholding under section 3406 to apply instead of withholding under chapter 4.

Forms 1042 and 1042-S must be filed DUE by March 15 of the year following the calendar year in which the income sub-

ject to reporting was paid. If March 15 falls on a Saturday, Sunday, or legal holiday, the due date is the next business day.

Form 1042. Every U.S. and foreign withhold-ing agent that is required to file a Form 1042-S must also file an annual return on Form 1042. You must file Form 1042 even if you were not required to withhold any income tax under chapter 3 on the payment, or if the payment is a chapter 4 reportable amount.

You must file Form 1042 with the:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409

Form 1042-S. Every U.S. and foreign with-holding agent must file a Form 1042-S for amounts subject to chapter 3 withholding and chapter 4 reportable amounts unless an excep-tion applies. The form can be filed electronically or on paper. A separate Form 1042-S is re-quired for each recipient of income to whom you made payments during the preceding cal-endar year regardless of whether you withheld or were required to withhold tax. However, if you make a withholdable payment to an NQI or a flow-through entity that is allocable to a chap-ter 4 withholding rate pool, as indicated on a withholding statement upon which you may rely with respect to the payment allocable to such a pool, you should complete a separate Form 1042 -S for each chapter 4 withholding rate pool (that is, pool of recalcitrant account holders, pool of nonparticipating FFIs, pool of payees that are U.S. persons), treating the intermediary or flow-through entity as the recipient (and the applicable pool as the chapter 4 status of the recipient). You need not issue a Form 1042-S to each recipient included in such pool. You must use a separate Form 1042-S for each type of in-come that you paid to the same recipient. See Statements to recipients, later.

You must furnish a Form 1042-S for each re-cipient even if you did not withhold tax because you repaid the tax withheld to the recipient or because the income payment was exempt from tax under the Internal Revenue Code or under a U.S. income tax treaty (except for a withholda-ble payment that is not a chapter 4 reportable amount).

You can use a substitute Form 1042-S if it meets the requirements listed in Pub. 1179. Pa-per substitutes that totally conform to the format and size of the official form may be used with-out prior approval from the IRS. See Pub. 1179 for more information.

If you are reporting amounts withheld by an-other withholding agent, Form 1042-S requests the name and EIN of the withholding agent that withheld the tax to the extent required in the Instructions for Form 1042-S.

If you file a substitute for Copy A with

the IRS that does not conform to the CAUTION specifications in Pub. 1179, you may be subject to a penalty for failing to file a correct return. See Penalties, later.

Joint owners. If there are joint owners of the withholdable payment, see Payments di-rectly to beneficial owners under Payments to Recipients in the Instructions for Form 1042-S.

Electronic reporting. For information about the Form 1042-S electronic reporting re-quirements for withholding agents or their agents, and partnerships with a Form 1042-S filing requirement, including the threshold return limits, see Electronic Reporting in the Instruc-tions for Form 1042-S.

A completed Form 4419 should be filed at least 30 days before the due date of the return. Returns may not be filed electronically until the application has been approved by the IRS.

For additional information and instructions on filing Forms 1042-S electronically, get Pub. 1187. If you file electronically, you will use the Filing Information Returns Electronically (FIRE) system at FIRE.IRS.gov.

Form 1042-T. If Form 1042-S is filed on paper, it must be filed with Form 1042 -T. You may need to file more than one Form 1042-T. See the instructions for Form 1042-T for more infor-mation.

Deposit interest paid to certain nonresident alien individuals. Interest earned by residents of certain foreign countries is subject to infor-mation reporting. Deposit interest of $10 or more paid to any nonresident alien individual who is a resident of a foreign country with which the United States has agreed to exchange tax information pursuant to an income tax treaty or other convention or bilateral agreement, must be reported on Form 1042-S.

Revenue Procedure 2021-32 identifies those countries for which reporting of deposit interest is required with respect to a resident of any such country.

Note. You may elect to report interest paid to any nonresident alien.

Statements to recipients. You must furnish a statement to each recipient for whom you are filing a Form 1042-S by the due date for filing Forms 1042 and 1042-S with the IRS. You may use a copy of the official Form 1042-S for this purpose. Any substitute forms must comply with the rules set out in Pub. 1179. You must furnish a separate substitute Form 1042 -S for each type of income or payment. The withholding agent must ensure that any substitute Form 1042-S copies B, C, and D, which are furnished to the recipient, conforms in format and size to the official Form 1042-S and contains the exact same information as the copy filed with the IRS or submitted electronically. However, the size of a substitute Form 1042-S, copies B, C, and D, may be adjusted if the substitute form is presen-ted on a landscape-oriented page instead of portrait. Only one Form 1042-S may be submit-ted per page, regardless of orientation.

Publication 515 (2023)

Form 8966

A withholding agent that makes a withholdable payment to a passive NFFE with one or more substantial U.S. owners (or, in the case of a re-porting Model 2 FFI, controlling persons of such an entity) or an owner-documented FFI with a specified U.S. person owning certain equity or debt interests in the FFI must report the pay-ment and each such substantial U.S. owner (or controlling person, as applicable) or specified U.S. person owner of the passive NFFE or owner-documented FFI, respectively, on Form 8966 (in addition to reporting the payment and tax (if any) on Forms 1042 and 1042-S when the payment is an amount subject to chapter 3 withholding). An exception to the requirement to report on Form 8966 applies when the payment is made to an account reported by an FFI as a U.S. account under the FFI’s applicable chap-ter 4 requirements or the requirements of an ap-plicable IGA.

Form 8966 must be filed by March 31 of the year following the calendar year in which the payment is made. An automatic 90 -day exten-sion of time to file Form 8966 may be reques-ted. To request an automatic 90-day extension of time to file Form 8966, file Form 8809-I. See the Instructions for Form 8809-I for where to file that form. You should request an extension as soon as you are aware that an extension is nec-essary, but no later than the due date for filing Form 8966. Under certain hardship conditions, the IRS may grant an additional 90-day exten-sion to file Form 8966. To request an additional 90-day extension of time to file Form 8966, file a second Form 8809-I before the end of the initial extended due date.

Electronic filing requirement for Form 8966. For information about the Form 8966 electronic reporting requirements, including the threshold return limits, for financial institutions and all other entities with a Form 8966 filing require-ment, see Electronic filing requirement and How to file electronically in the Instructions for Form 8966.

Extensions of Time To File

You can request extensions of time to file Forms 1042 and 1042-S with the IRS and addi-tional extensions to furnish Forms 1042-S to re-cipients.

Extension to file Form 1042. You can get an automatic 6-month extension of time to file Form 1042 by filing Form 7004. File Form 7004 on or before the due date of Form 1042. Form 7004 does not extend the time for payment of tax.

Form 7004 extends only the due date

for filing the returns with the IRS. It CAUTION does not extend the due date for fur-nishing statements to recipients.

Extension to file Form 1042-S with the IRS. You can get an automatic 30-day extension of time to file Form 1042-S by filing Form 8809. You should request an extension as soon as you are aware that an extension is necessary,

but no later than the due date for filing Form 1042-S.

You may request one additional extension of 30 days by submitting a second Form 8809 be-fore the end of the first extension period. Re-quests for an additional extension are not auto-matically granted. When requesting the additional extension, include copy of the Form 8809 filed. The IRS will send you a letter of ex-planation approving or denying your request for an additional extension. See the instructions for Form 8809 for more information.

If you are requesting extensions of time

to file for more than one withholding CAUTION agent or payer, you must submit the extension request electronically.

Extension to furnish statements to recipi-ents. You may request an extension of time to furnish the statements to recipients by faxing a letter to:

Internal Revenue Service Technical Services Operation

Attn: Extension of Time Coordinator

Fax: 866-477-0572

(International: 304-589-4151)

The letter must include the following:

Payer name,

Payer TIN,

Payer address,

Type of return (for example, Form 1042-S),

A statement that your extension request is for providing statements to recipients,

Reason for delay, and

The signature of the payer or authorized agent.

Your request must be received no later than the date on which the statements are due to the re-cipients. If your request for an extension is ap-proved, you will generally be granted a maxi-mum of 30 extra days (15 days for Forms W-2) to furnish the recipient statements.

Requests for extensions of time to file infor-mation returns must be made using Form 8809.

Penalties

If you do not file a correct and complete Form 1042 or Form 1042-S with the IRS on time or if you do not provide a correct and complete Form 1042-S to the recipient on time, you may be subject to a penalty.

Failure to file Form 1042. The penalty for not filing Form 1042 when due (including exten-sions) is usually 5% of the unpaid tax for each month or part of a month the return is late, but not more than 25% of the unpaid tax.

Failure to file correct Form 1042-S. A pen-alty may be imposed for failure to file Form 1042-S when due (including extensions) or for failure to furnish complete and correct informa-tion.

For more information on the penalty for fail-ure to file a correct Form 1042-S to a recipient, see Penalties in the 2023 Instructions for Form 1042-S .

Failure to furnish Form 1042-S to recipient. For more information on the penalty for failure to furnish Form 1042-S to a recipient, see Pen-alties in the 2023 Instructions for Form 1042-S.

Penalty for intentional disregard of require-ments to file or furnish returns. If you inten-tionally disregard the requirement to file Form 1042-S when due, to furnish Form 1042-S to the recipient when due, or to report correct in-formation, the penalty is the greater of $580 or 10% of the total amount of the items that must be reported, with no maximum penalty.

Failure to file electronically. If you are re-quired to file Form 1042-S electronically but you fail to do so, and you do not have an approved waiver, penalties may apply unless you estab-lish reasonable cause for your failure.

For more information on failure to file elec-tronically, see Penalties in the 2023 Instructions for Form 1042-S.

Partnership Withholding on Effectively Connected Income

Under section 1446(a), a partnership (foreign or domestic) that has income effectively connec-ted with a U.S. trade or business (or income treated as effectively connected) must pay a withholding tax on the effectively connected taxable income that is allocable to its foreign partners. A publicly traded partnership or nomi-nee for a publicly traded partnership distribution must withhold tax on actual distributions of ECI. See Publicly Traded Partnership Distributions (PTP Distributions), later. Chapter 4 withholding does not apply to this income.

This withholding tax does not apply to in-come that is not effectively connected with the partnership's U.S. trade or business. That in-come may be subject to Chapter 3 withholding tax, as discussed earlier in this publication.

Who Must Withhold

The partnership, or a withholding agent for the partnership, must pay the withholding tax. A partnership that must pay the withholding tax but fails to do so may be liable for the payment of the tax and any penalties and interest.

The partnership must determine whether a partner is a foreign partner. A foreign partner can be a nonresident alien individual, foreign corporation, foreign partnership, foreign estate or trust, foreign tax-exempt organization, or for-eign government.

U.S. partner. A partner that is a U.S. person should provide Form W-9 to the partnership.

A partnership may rely on a partner's certifi-cation of nonforeign status and assume that a partner is not a foreign partner unless the form:

Does not give the partner's name, U.S. TIN, and address; or

Is not signed under penalties of perjury and dated.

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The partnership must keep the certification for as long as it may be relevant to the partner-ship's liability for tax under section 1446.

The partnership may not rely on the certifi-cation if it has actual knowledge or has reason to know that any information on the form is in-correct or unreliable.

If a partnership does not receive a Form W-9 (or similar documentation), the partnership must presume that the partner is a foreign per-son.

Foreign Partner

A partner that is a foreign person should pro-vide the appropriate Form W-8 (as shown in Chart D) to the partnership.

Partners who have otherwise provided Form W-8 to a partnership for purposes of section 1441 or 1442, as discussed earlier, can use the same form for purposes of section 1446(a) if they meet the requirements discussed earlier under Documentation. However, a foreign sim-ple trust that has provided documentation for its beneficiaries for purposes of section 1441 must provide a Form W-8 on its own behalf for purpo-ses of section 1446.

The partnership may not rely on the certifi-cation if it has actual knowledge or has reason to know that any information on the form is in-correct or unreliable.

The partnership must keep the certification for as long as it may be relevant to the partner-ship's liability for section 1446 tax.

Chart D. Documentation for Foreign Partners*

	THEN provide to
IF you are a...	the partnership
	Form...
nonresident alien	W-8BEN.
foreign corporation	W-8BEN-E.
foreign partnership	W-8IMY.
foreign government	W-8EXP.
foreign grantor	W-8IMY.
trust**
certain foreign trust	W-8BEN.
or foreign estate
foreign tax-exempt
organization
(including a private	W-8EXP.
foundation)
nominee	W-8 used by
	beneficial owner.

* A partnership may substitute its own form for the official version of Form W-8 to ascertain the identity of its partners.

** A domestic grantor trust must provide a statement as shown in Regulations section 1.1446-1(c)(2)(ii)(E), and documentation for its grantor.

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Amount of Withholding Tax

The amount a partnership must withhold is based on its effectively connected taxable in-come that is allocable to its foreign partners for the partnership's tax year. However, see Pub-licly Traded Partnerships, later.

Reduction of withholding. The foreign part-ner's share of the partnership's gross ECI is re-duced by the following.

The partner's share of partnership deduc-tions connected to that income for the year.

The partner's tax treaty benefits related to that income (see Chart D. Documentation for Foreign Partners for documentation).

The partnership may reduce the foreign partner's share of partnership gross ECI by the following.

1. State and local income taxes the partner-ship withholds and pays on behalf of the partner on current year effectively connec-ted taxable income allocated to the part-ner.

2. The foreign partner's partner-level deduc-tions and losses that the partner certifies to the partnership as:

a. Carried forward from a prior year,

b. Properly allocated to gross ECI of the partner's trade or business in the Uni-ted States, and

c. Reasonably expected to be available and claimed on the partner's U.S. in-come tax return.

To certify the deductions and losses, a part-ner must submit to the partnership Form 8804-C.

If the partner's investment in the partnership is the only activity producing ECI and the sec-tion 1446 tax is less than $1,000, no withholding is required. The partner must provide Form 8804-C to the partnership to receive the exemp-tion from withholding.

A foreign partner may submit a Form 8804-C to a partnership at any time during the partnership's year and prior to the partnership's filing of its Form 8804. An updated certificate is required when the facts or representations made in the original certificate have changed or a status report is required.

For more information, see the Instructions for Form 8804-C.

Tax rate. The withholding tax rate on a part-ner's share of ECI is 37% for noncorporate part-ners and 21% for corporate partners. However, the partnership may withhold at the highest rate applicable to a particular type of income alloca-ted to a partner provided the partnership re-ceived the appropriate documentation. See Regulations section 1.1446-3(a)(2)(ii).

Installment payments. A partnership must make installment payments of withholding tax on its foreign partners' share of effectively con-nected taxable income whether or not distribu-tions are made during the partnership's tax year. The amount of a partnership's installment payment is the sum of the installment payments

for each of its foreign partners. The amount of each installment payment can be figured by us-ing Form 8804-W.

Date payments are due. Payments of DUE withholding tax must be made during the partnership's tax year in which the

effectively connected taxable income is de-rived. A partnership must pay the IRS a part of the annual withholding tax for its foreign part-ners by the 15th day of the 4th, 6th, 9th, and 12th months of its tax year for U.S. income tax purposes. Any additional amounts due are to be paid with Form 8804, the annual partnership withholding tax return, discussed later.

A foreign partner's share of withholding tax paid by a partnership is treated as distributed to the partner on the earliest of:

The day on which the tax was paid by the partnership,

The last day of the partnership's tax year for which the tax was paid, or

The last day on which the partner owned an interest in the partnership during that year.

The amount treated as distributed to the partner resulting from an installment payment is generally treated as an advance or draw under Regulations section 1.731-1(a)(1)(ii) to the ex-tent of the partner's share of income for the partnership year.

Notification to partners. In most cases, a partnership must notify each foreign partner of the tax withheld on its behalf within 10 days of the installment payment date. No particular form is required for this notification. For more in-formation on the substance of the notification and exceptions, see Regulations section 1.1446-3(d)(1)(i).

Real property transfers. If a domestic part-nership disposes of a USRPI, gain or loss from the sale allocable to a foreign partner is treated as effectively connected to the conduct of a U.S. trade or business and is included in ECTI. The partnership or withholding agent must with-hold following the rules discussed here for sec-tion 1446(a) withholding. A domestic partner-ship's compliance with these rules satisfies the requirements for withholding on the disposition of U.S. real property interests (discussed later).

If a foreign partnership disposes of a U.S. property interest, the transferee must withhold under section 1445(a), although gain or loss from the sale is also treated as effectively con-nected to the conduct of a U.S. trade or busi-ness and is included in ECTI. The foreign part-nership may credit the amount withheld under section 1445(a) that is allocable to foreign part-ners against its tax liability under section 1446.

Transfers of interests in partnerships en-gaged in the conduct of a U.S. trade or bus-sines. If a domestic partnership transfers a di-rect or indirect interest in another partnership engaged in the conduct of a U.S. trade or busi-ness, gain or loss from the sale allocable to a foreign partner that is treated under section 864(c)(8) as effectively connected to the con-duct of a U.S. trade or business is included in ECTI.

Publication 515 (2023)

If a foreign partnership transfers an interest in another partnership for a gain and section 864(c)(8) treats any portion of that gain as ef-fectively connected with the conduct of a trade or business in the U.S., then the partnership will be withheld upon under section 1446(f)(1). The foreign partnership may credit the amount with-held under section 1446(f)(1) that is allocable to foreign partners against its tax liability under section 1446(a).

Reporting and Paying the Tax

Three forms are required for reporting and pay-ing over tax withheld on ECI allocable to foreign partners. This does not apply to publicly traded partnerships, discussed later.

Form 8804. The withholding tax liability of the partnership for its tax year is reported on Form 8804. Form 8804 is also a transmittal form for Forms 8805.

Any additional withholding tax owed for the partnership's tax year is paid (in U.S. currency) with Form 8804.

File Form 8804 by the 15th day of the DUE 3rd month after the close of the part- nership's tax year. If you need more

time to file Form 8804, file Form 7004 to request an extension of time to file. Form 7004 does not extend the time to pay the tax.

Form 8805. This form is used to show the amount of effectively connected taxable income and any withholding tax payments allocable to a foreign partner for the partnership's tax year. At the end of the partnership's tax year, Form 8805 must be sent to each foreign partner on whose behalf tax under section 1446 was withheld or whose Form 8804-C the partnership consid-ered, whether or not any withholding tax is paid. It must be delivered to the foreign partner by the due date of the partnership return (including ex-tensions). A copy of Form 8805 for each foreign partner must also be attached to Form 8804 when it is filed. Also attach the most recent Form 8804-C, discussed earlier, to the Form 8805 filed for the partnership's tax year in which the Form 8804-C was considered.

A copy of Form 8805 must be attached to the foreign partner's U.S. income tax return to take a credit on its Form 1040-NR or Form 1120-F.

Form 8813. This form is used to make pay-ments of withheld tax to the U.S. Treasury. Pay-ments must be made in U.S. currency by the payment dates (see Date payments are due, earlier). See the Instructions for Form 8804-C for when you must attach a copy of that form to Form 8813.

Penalties. A penalty may be imposed for fail-ure to file Form 8804 when due (including ex-tensions). It is generally the same as the pen-alty for not filing Form 1042, discussed earlier under Failure to file Form 1042.

A penalty may be imposed for failure to file Form 8805 when due (including extensions) or for failure to provide complete and correct infor-mation. The amount of the penalty depends on when you file a correct Form 8805. The penalty for each Form 8805 is generally the same as

Publication 515 (2023)

the penalty for not filing Form 1042-S. For more information, see Penalties in the 2023 Instruc-tions for Form 1042-S.

If you fail to provide a complete and correct Form 8805 to each partner when due (including extensions), a penalty may be imposed. The amount of the penalty depends on when you provide the correct Form 8805. The penalty for each Form 8805 is generally the same as the penalty for not providing a correct and complete Form 1042-S. For more information, see Penal-ties in the 2023 Instructions for Form 1042-S.

Exception. No penalty is imposed if you meet certain requirements. The rules are the same as for Form 1042-S. However, if a filer in-tentionally disregards the requirement to file Form 8805 when due, to furnish Form 8805 to the recipient when due, or to report correct in-formation, the penalty for each Form 8805 (or statement to recipient) may be higher.

For more information, see Penalties in the 2023 Instructions for Form 1042-S.

Identification numbers. A partnership that has not been assigned a U.S. EIN must obtain one. If a number has not been assigned by the due date of the first withholding tax payment, the partnership should enter the date the num-ber was applied for on Form 8813 when making its payment. As soon as the partnership re-ceives its EIN, it must immediately provide that number to the IRS.

To ensure proper crediting of the withhold-ing tax when reporting to the IRS, the partner-ship must include each partner's U.S. TIN on Form 8805. If there are partners in the partner-ship without identification numbers, the partner-ship should inform them of the need to get a number. See U.S. or Foreign TINs, earlier.

Publicly Traded Partnership Distributions (PTP Distributions)

A PTP that has effectively connected taxable in-come must pay withholding tax under section 1446(a) on any distributions of that income made to its foreign partners. A PTP must use Forms 1042 and 1042-S (Income Code 27) to report withholding from PTP distributions. The rate of withholding is 37% for noncorporate partners and 21% for corporate partners under section 1446(a).

A publicly traded partnership (PTP) is any partnership an interest in which is regularly tra-ded on an established securities market or is readily tradable on a secondary market. These rules do not apply to a PTP treated as a corpo-ration under section 7704.

Foreign partner. The partnership determines whether a partner is a foreign partner using the rules discussed earlier under Foreign Partner.

Nominee. The withholding agent under section 1446(a) can be the PTP or a nominee. Starting in 2023, a nominee for section 1446(a) purpo-ses is a person receiving a PTP distribution on behalf of a foreign person and that is a domes-tic person, a U.S. branch of a foreign corpora-tion that is treated as a U.S. person, or a QI that assumes primary withholding responsibility for

the distribution. See Regulations section 1.1446-4(b)(3) (describing nominees and their withholding requirements). For purposes of sec-tion 1446(a) withholding, a nominee generally determines whether a partner is a foreign part-ner under the same requirements applicable to a PTP. See Foreign partner, directly above. A nominee for a PTP distribution must, in addition to withholding on the distribution to the extent required under section 1446(a), withhold on amounts attributable to the distribution that are subject to withholding under chapters 3 and 4, in addition to withholding under section 1446(f) on an amount realized on the distribution. See Ordering rules and Section 1446(f): PTP Inter-ests, later. A nominee determines each amount subject to withholding on a PTP distribution based on a qualified notice issued by the PTP making the distribution or, in the absence of a qualified notice (or when a qualified notice does not specify each amount attributable to the dis-tribution), based on the withholding default rule in section §1.1446-4(d).

A PTP or a nominee for a PTP distribution is not generally required to withhold on the distri-bution, however, when it pays the distribution to a nominee for the distribution. In such a case, the PTP or nominee is required to report the nominee to which it pays the distribution as the recipient for Form 1042-S reporting. If a PTP or nominee pays a PTP distribution to a NQI, how-ever, the PTP or nominee must generally deter-mine its withholding based on a withholding statement and partner documentation provided by the NQI with respect to the distribution. An NQI for this purpose includes a U.S. branch that is not acting a U.S. person for a PTP distribu-tion. See the Instructions for Form W-8IMY for additional information on payments of PTP dis-tributions made to NQIs. If a PTP or nominee for a PTP distribution pays the distribution to a QI not acting as a nominee for the distribution, the PTP or nominee can determine its withholding based on withholding rate pool information pro-vided by the QI or partner information provided by a QI that acts as a disclosing QI. See Reve-nue Procedure 2022-43 for information on the withholding and other requirements of QIs act-ing as nominees or as disclosing QIs for PTP distributions (starting January 1, 2023). See the Instructions for Form 1042-S for the reporting of a PTP distribution paid to an account holder of a disclosing QI and when a nominee for a PTP distribution is required to report information about the PTP making a distribution on a Form 1042-S.

Distributions subject to withholding. The partnership or nominee must withhold tax on any actual distributions of money or property to foreign partners. The amount of the distribution includes the amount of any tax under section 1446(a) required to be withheld. In the case of a partnership that receives a partnership distribu-tion from another partnership (a tiered partner-ship), the distribution also includes the tax with-held from that distribution.

If the distribution is in property other than money, the partnership cannot release the property until it has enough funds to pay over the withholding tax.

A PTP or nominee that complies with these withholding requirements satisfies the require-ments discussed later under U.S. Real Property

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Interest. Distributions subject to withholding in-clude:

Amounts subject to withholding under sec-tion 1445(e)(1) on distributions pursuant to an election under Regulations section 1.1445-5(c)(3), and

Amounts not subject to withholding under section 1445 because the distributee is a partnership or is a foreign corporation that has made an election to be treated as a domestic corporation.

Ordering rules. Partnership distributions are considered to be paid out of the following types of income in the order listed.

1. Amounts attributable to income described in section 1441 or 1442 that are not effec-tively connected with the conduct of a trade or business in the United States and are subject to withholding under Regula-tions section 1.1441-2(a).

2. Amounts attributable to income described in section 1441 or 1442 that are not effec-tively connected with the conduct of a trade or business in the United States and are not subject to withholding under Regu-lations section 1.1441-2(a).

3. Amounts attributable to income effectively connected with the conduct of a trade or business in the United States and not sub-ject to withholding under Regulations sec-tion 1.1446-1 through 1.1446-6.

4. Amounts subject to withholding under Regulations section 1.1446-1 through 1.1446-6.

5. Other amounts not listed above.

Depositing taxes a PTP withholds under section 1446. The general rules for making payments of taxes withheld under section 1446(a) do not apply to PTP distributions. In-stead, apply the rules discussed earlier, under Depositing Withheld Taxes.

Section 1446(f)

Withholding

Section 13501 of the TCJA added section 1446(f) effective for transfers of partnership in-terests occurring on or after January 1, 2018. It generally requires that a transferee of an inter-est in a partnership withhold 10% of the amount realized on the disposition if any portion of the gain (if any) would be treated under section 864(c)(8) as effectively connected with the con-duct of a trade or business within the United States. A transfer can occur when a partnership distribution results in gain under section 731. Under section 1446(f)(4), if the transferee fails to withhold any required amount, the partner-ship must deduct and withhold from distribu-tions to the transferee the amount that the transferee failed to withhold (plus interest).

Notice 2018-08, 2018-07 I.R.B. 352, availa-ble at IRS.gov/irb/2018-07_IRB#NOT-2018-08, temporarily suspended the application of sec-tion 1446(f) to the disposition of certain PTP in-terests.

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Notice 2018-29, 2018-16 I.R.B. 495, availa-ble at IRS.gov/irb/2018-16_IRB#NOT-2018-29, provides interim guidance regarding withhold-ing of U.S. tax related to transfers of interests in partnerships, other than PTPs, under section 1446(f). It also temporarily suspended withhold-ing under section 1446(f)(4).

On May 7, 2019, the Department of Treas-ury and the IRS issued proposed regulations under section 1446(f) (84 FR 21198) for trans-fers of both non-PTP and PTP interests. During the period that Notice 2018-29 applies, instead of applying the rules described in the Notice, taxpayers and other affected persons may choose to apply Regulations sections 1.1446(f)-1, 1.1446(f)-2, and 1.1446(f)-5 of the proposed regulations in their entirety to all transfers as if they were final regulations.

On November 30, 2020, the Department of Treasury and the IRS issued final regulations under section 1446(f) in T.D. 9926 (85 FR 76910) for transfers of both non-PTP and PTP interests. The final regulations require any transferee to withhold a tax equal to 10% of the amount realized on any transfer of a partnership interest (other than certain PTP interests) under section 1446(f)(1), unless an exception to with-holding applies. These regulations generally apply to transfers that occur on or after January 29, 2021. However, in accordance with Notice 2021-51, 2021-36 I.R.B. 361, the rules related to withholding under section 1446(f)(4) and to transfers of PTP interests apply to transfers oc-curring on or after January 1, 2023. Additionally, the final regulations revised certain provisions in Regulations section 1.1446-4 for withholding under section 1446(a) on PTP distributions. Also in accordance with Notice 2021-51, these revisions apply to PTP distributions made on or after January 1, 2023. Notices 2018-8 and 2018-29 apply to transfers that occur before the effective date of the final regulations or, as pre-viously described, taxpayers may apply the pro-posed regulations to transfers of non-PTP inter-ests during this time.

Section 1446(f): Non-PTP Interests

Exceptions to withholding on transfers of non-PTP interests. A transferee, including a partnership when the partner is a distributee, is not required to withhold on the transfer of a non-PTP interest if it properly relies on one of the following six certifications, the requirements of which are more fully described in the refer-enced regulations. A transferee may not rely on a certification if it has actual knowledge that the certification is incorrect or unreliable. A partner-ship that is a transferee because it makes a dis-tribution may not rely on its books and records if it knows, or has reason to know, that the infor-mation is incorrect or unreliable. A certification must provide the name and address of the per-son providing it, be signed under penalties of perjury, and generally include the taxpayer identification number of the transferor. See Regulations sections 1.1446(f)-1(c)(2)(i) and 1.1446(f)-2(b)(1). Also, separate rules apply if the transfer results from a partnership distribu-tion. Only the certification in exception six must be submitted to the IRS.

The certifications in several of the excep-tions are based on a determination date. The determination date must be one of the follow-ing: (a) the date of the transfer; (b) any date no more than 60 days before the date of the trans-fer; or (c) if the transferor is not a controlling partner, as defined in Regulations section 1.1446(f)-1(b)(2), the later of (i) the first day of the partnership’s taxable year in which the transfer occurs, or (ii) the date before the trans-fer of the partnership’s most recent capital ac-count revaluation event. See Regulations sec-tion 1.1446(f)-1(c)(4).

1. Certification of non-foreign status.The transferor provides a certification of non-foreign status signed under penalties of perjury that states that the transferor is not a foreign person, and provides the transferor’s name, TIN, and address. A certificate of non-foreign status includes a Form W-9. See Regulations section 1.1446(f)-2(b)(2).

2. Certification of no realized gain. The transferor provides a certification that there was no realized gain on the transfer of the partnership interest (including no or-dinary income arising from the application of section 751 and Regulations section

1.751-1) as of the determination date. See Regulations section 1.1446(f)-2(b)(3).

3. Certification of less than 10% effec-tively connected gain. The partnership provides a certification stating that:

a. On the deemed sale of the partner-ship assets in the manner described in Regulations section 1.864(c)

(8)-1(c) as of the determination date either: the partnership would have no effectively connected gain (or the net amount of its effectively connected gain would be less than 10% of the to-tal net gain) on all its assets; or the transferor’s distributive share of net effectively connected gain resulting from the deemed sale would be less than 10% of the transferor’s distribu-tive share of the total net gain; or

b. The partnership was not engaged in a trade or business within the United States at any time during the taxable year of the partnership until the date of transfer. See Regulations section 1.1446(f)-2(b)(4).

4. Certification of Less Than 10% effec-tively connected income. The transferor provides a certification that:

c. The transferor was a partner in the partnership for the transferor’s imme-diately prior tax year (for which it has already received a Schedule K-1) and the 2 preceding tax years (the look back period) and had a distributive share of gross income from the part-nership in each of these years;

d. The transferor’s distributive share of gross ECI from the partnership, and any persons related to the transferor, as reported on a Schedule K-1 (Form 1065) or other statement required by the partnership, was less than $1

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million for each of the tax years during the look back period;

c. The transferor’s distributive share of partnership gross ECI, as reported on a Schedule K-1 (Form 1065) or other statement required by the partnership, for each year during the look-back pe-riod, was less than 10% of its total dis-tributive share of partnership gross in-come; and

d. For each year during the look-back period, the transferor’s distributive share of partnership ECI or gain (or losses properly allocated and appor-tioned to that income) has been timely reported on a federal income tax re-turn of the transferor (or if the trans-feror was a partnership, its direct or indirect nonresident alien and foreign corporate partners) and any tax due with respect to such amounts have been timely paid, provided the return was required to be filed when the transferor furnishes the certification. See Regulations section 1.1446(f)-2(b)(5).

5. Certification of nonrecognition. The transferor provides a certification that it is not required to recognize any gain or loss with respect to the transfer by reason of the operation of a nonrecognition provi-sion of the Internal Revenue Code. The certification must briefly describe the transfer and provide the relevant law and facts relating to the certification. This ex-ception does not apply if only a portion of the gain is not recognized. See Regula-tions section 1.1446(f)-2(b)(6).

6. Certification that an income tax treaty applies.The transferor provides a certifi-cation using Form W-8BEN or W-8BEN-E, as applicable, or applicable substitute form that meets the requirements under Regulations section 1.1446-1(c)(5) that the transferor is not subject to tax on any gain from the transfer pursuant to an in-come tax treaty. The transferor may not provide this certification if any portion of the gain is subject to tax. The form should contain the information necessary to sup-port the claim for treaty benefits. Within 30 days after the date of the transfer, the transferee must mail certain information, plus a copy of the certificate, to the IRS, at the address in the Instructions for Form 8288. See Regulations section 1.1446(f)-2(b)(7).

See the discussion, later, regarding

certification of maximum tax lability if a CAUTION nonrecognition provision applies to only a portion of the gain realized on the trans-fer or only a portion of the gain on the transfer is not subject to tax pursuant to an income tax treaty.

A non-PTP making a distribution to a partner may generally rely on any of the above excep-tions, with certain additional considerations:

In Exception 2, the no realized gain excep-tion, a distributing partnership generally may rely on its books and records or on a certification from the distributee partner.

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In Exception 4, the less than 10% ECI ex-ception, a distributing partnership may generally rely on its books and records but must also obtain a representation from the distributee partner stating that the distribu-tee partner satisfies the reporting and tax payment requirements with respect to the partnership’s ECI for the look-back period.

Determining the amount to withhold. In general, the transferee must withhold 10% of the amount realized. The amount realized in-cludes the cash paid, the fair market value of property transferred, plus the assumption of and relief from liabilities, and liabilities to which the partnership interest is subject. See Regula-tions section 1.1446(f)-2(c)(2)(i). If certain re-quirements are met, the transferee may rely on a certification of the amount of the transferor's share of partnership liabilities reported on the most recent Schedule K-1 (Form 1065) issued by the partnership or a certification from a part-nership that provides the amount of the trans-feror's share of partnership liabilities as of the determination date. See Regulations section 1.1446(f)-2(c)(2)(ii) and (iii).

Modified amount realized. If a foreign partnership is the transferor, separate rules may apply to determine a modified amount realized. The modified amount realized is determined by multiplying the amount realized by the aggre-gate percentage computed as of the determina-tion date. The aggregate percentage is the per-centage of the gain (if any) arising from the transfer that would be allocated to any pre-sumed foreign taxable persons. For this pur-pose, a presumed foreign taxable person is any person that has not provided a certificate of non-foreign status, as previously described in the Exception 1 to withholding, or a certification that pursuant to a tax treaty no portion of the foreign taxable person’s gain is subject to tax. The certification the transferor foreign partner-ship provides does not need to be submitted to the IRS. See Regulations section 1.1446(f)-2(c) (iv).

Lack of money or property or lack of knowledge regarding liabilities. Under cer-tain circumstances, the amount the transferee must withhold equals the entire amount real-ized, rather than 10% of the amount realized, but the amount realized is determined without regard to any decrease in the transferor’s share of partnership liabilities. These circumstances are if:

1. The amount otherwise required to be with-held would exceed the amount realized determined without regard to the decrease in the transferor’s share of partnership lia-bilities; or

2. The transferee is unable to determine the amount realized because it does not have actual knowledge of the transferor’s share of partnership liabilities (and has not re-ceived or cannot rely on a certification of the transferor’s share of partnership liabili-ties received from the transferor (including the most recent Schedule K-1) or a certifi-cation of the transferor’s share of liabilities received from the partnership). See Regu-lations section 1.1446(f)-2(c)(3).

Certification of maximum tax liability. A transferor that meets certain requirements can certify its maximum tax liability to the transferee. The maximum tax liability is the amount of the transferor’s effectively connected gain multi-plied by the applicable percentage under Regu-lations section 1.1446-3(a)(2). The applicable percentage for foreign corporations is the high-est rate of tax under section 11(b) and for non-corporations is the highest rate of tax under section 1. See Regulations section 1.1446(f)-2(c)(4) for further information. The certificate does not need to and should not be submitted to the IRS for approval.

Effect of withholding on transferor. A transferee’s withholding of tax under section 1446(f)(1) does not relieve a foreign person from filing a U.S. tax return with respect to the transfer. Further, it does not relieve a nonresi-dent alien individual or foreign corporation sub-ject to tax on gain by reason of section 864(c)

(8) from paying with the return any tax due that has not been fully satisfied through withholding.

Transfers of partnership interests subject to withholding under sections 1445(e)(5) and 1446(f)(1). The transfer of a partnership interest may be subject to withholding under section 1445(e)(5) or Regulations section 1.1445-11T(d)(1) if 50% or more of the value of the partnership’s gross assets consist of USRPI, and 90% or more of the value of its gross assets consist of USRPI plus any cash or cash equivalents. The transfer of a partnership interest may also be subject to withholding un-der section 1446(f)(1) and Regulations section 1.1446(f)-2 if the partnership also holds other property used in the conduct of a trade or busi-ness within the United States. If both sections 1445(e)(5) and 1446(f)(1) could apply to the same transfer, generally the transfer is subject to the payment and reporting requirements of section 1445 only, and not section 1446(f)(1) . However, if the transferor has applied for a with-holding certificate under the last sentence of Regulations section 1.1445-11T(d)(1), the transferee must withhold the greater of the amounts required under section 1445(e)(5) or 1446(f)(1). A transferee that has complied with the withholding requirements under either sec-tion 1445(e)(5) or 1446(f)(1), as described un-der this paragraph, will be deemed to satisfy its withholding requirement.

Forms for paying and reporting section 1446(f)(1) withholding. To meet the with-holding, payment, and reporting requirements under section 1446(f)(1) for transfers of inter-ests in partnerships other than PTPs, taxpayers must use Forms 8288 and 8288-A and follow the instructions for those forms.

The time for filing Forms 8288 and 8288-A to report section 1446(f)(1) withholding is the same as for section 1445 withholding. The same rules for filing Forms 8288 and 8288-A by transferees withholding tax under section 1445 apply to transferees withholding tax under sec-tion 1446(f)(1) . The same rules for claiming a credit for withholding of tax under section 1445 apply to transferors receiving Form 8288-A claiming credit for withholding under section 1446(f)(1). The rules relating to Forms 8288 and 8288-A discussed in this paragraph are

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described, later, under U.S. Real Property Inter-est, Reporting and Paying the Tax and in the Instructions for Form 8288.

Transferee reporting to partnership. No later than 10 days after the transfer, a trans-feree (other than a partnership that is a trans-feree because it made a distribution) must cer-tify to the partnership the extent to which it has satisfied its withholding obligation. See Regula-tions section 1.1446(f)-2(d)(2) for the documen-tation required for making this certification.

Partnership’s requirement to withhold un-der section 1446(f)(4) on distributions to transferee. Section 1446(f)(4) requires a part-nership to withhold on distributions to a trans-feree on any amount that the transferee failed to properly withhold under section 1446(f)(1), plus any interest on this amount. See Regulations section 1.1446(f)-3. These rules apply to trans-fers occurring on or after January 1, 2023. See Notice 2021-51, 2021-36 I.R.B. 361, available at IRS.gov/irb/2021-36_IRB#NOT-2021-51.

Requirement to withhold. If a transferee fails to withhold any amount required by Regulations section 1.1446(f)-2 in connection with the trans-fer of a partnership interest, the partnership must withhold from the distributions it makes to the transferee. Generally, a partnership may rely on the certification described in Regula-tions section 1.1446(f)-2(d)(2) that it receives from the transferee to determine whether a transferee has withheld the amount required by Regulations section 1.1446(f)-2, unless it knows, or has reason to know, that the certifica-tion is incorrect or unreliable. See Regulations section 1.1446(f)-3(a)(1).

If the partnership receives, within 10 days from the transfer, a certification from the trans-feree stating that an exception to withholding applies or establishing that the transferee has withheld the amount required to be withheld un-der Regulations section 1.1446(f)-2, then the partnership generally is not required to withhold under Regulations section 1.1446(f)-3(a)(1). See Regulations section 1.1446(f)-3(b)(1). However, a partnership is required to withhold under section 1446(f)(4) if it receives notifica-tion from the IRS that the transferee has provi-ded incorrect information on the certification. This may occur when the IRS determines that the transferee has provided incorrect informa-tion on the certification regarding the amount re-alized or the amount withheld, or that the trans-feree failed to pay the amounts reported as withheld to the IRS. See Regulations section 1.1446(f)-3(a)(2).

A partnership that is a transferee because it makes a distribution subject to section 1446(f)

(1) is not required to withhold under section 1446(f)(4). However, the partnership remains li-able for its failure to withhold in its capacity as a transferee. A publicly traded partnership is not required to withhold on distributions made to a transferee under section 1446(f)(4). See Regu-lations sections 1.1446(f)-3(b)(2) and (3).

Withholding Rules. A partnership that does not receive, or cannot rely on, a timely certifica-tion from a transferee stating that an exception to withholding applies or that the proper amount has been withheld must begin withholding on

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distributions made to the transferee on the later of the date that is 30 days after the transfer or the date that is 15 days after the partnership ac-quires actual knowledge of the transfer. See Regulations section 1.1446(f)-3(c)(1)(i).

The partnership must withhold on the entire amount of each distribution made to the trans-feree until it may rely on a certification from the transferee that states that an exception to with-holding applies or that provides the information necessary to determine the amount required to be withheld. See Regulations section 1.1446(f)-3(c)(1)(ii). The partnership may rely on this certification to determine its withholding obligation regardless of whether it is provided within the time prescribed in Regulations sec-tion 1.1446(f)-2(d)(2). Once the partnership re-ceives a certification from the transferee, the partnership must withhold 10 percent of the amount realized on the transfer, reduced by any amount already withheld by the transferee, plus any computed interest. See Regulations section 1.1446(f)-3(c)(2)(i).

A partnership that is required to withhold un-der Regulations section 1.1446(f)-3(a)(1) may not take into account any adjustment proce-dures that would otherwise affect the amount required to be withheld under Regulations sec-tion 1.1446(f)-2(c)(2)(i). See Regulations sec-tion 1.1446(f)-3(c)(2)(i)(A). Thus, for example, a partnership may not reduce the amount that it is required to withhold under the procedures de-scribed in Regulations section 1.1446(f)-2(c)(4) (adjusting the amount subject to withholding based on a transferor’s maximum tax liability). For example, if a partnership is required to with-hold $30 under section 1441 on a $100 distribu-tion, the maximum amount required to be with-held on that distribution under section 1446(f)

(4) is $70.

A partnership that does not receive or can-not rely on a certification from the transferee must withhold the full amount of each distribu-tion made to the transferee until the partnership receives a certification that it can rely on. How-ever, any amount required to be withheld on a distribution under any other withholding provi-sion in the Code is not required to be withheld under section 1446(f)(4). See Regulations sec-tion 1.1446(f)-3(c)(3). Nevertheless, the part-nership may stop withholding if the transferee disposes of all of its interest in the partnership, unless the partnership has actual knowledge that any successor to the transferee is related to the transferee or the transferor from which the transferee acquired the interest.

Computation of interest. The amount of in-terest required to be withheld is the amount of interest that would be required to be paid under section 6601 and Regulations section 301.6601-1 if the amount that should have been withheld by the transferee was considered an underpayment of tax. Interest is payable be-tween the date that is 20 days after the date of the transfer and the date on which the transfer-ee’s withholding tax liability due under section 1446(f)(1) is satisfied. See Regulations section 1.1446(f)-3(c)(2)(ii).

Forms and filing dates. A partnership re-quired to withhold under section 1446(f)(4) must report and pay the tax withheld using Forms 8288 and 8288-C. See Regulations sec-

tion 1.1446(f)-3(d). The time for filing Forms 8288 and 8288-C to report section 1446(f)(4) withholding is the same as for section 1445 withholding.

Buyer/transferee claiming refund of section 1446(f)(4) withholding. A transferee may claim a refund for an excess amount if it has been overwithheld upon under section 1446(f)

(4). An excess amount is the amount of tax and interest withheld that exceeds the transferee's withholding tax liability plus any interest owed by the transferee with respect to such liability. See Regulations section 1.1446(f) -3(e). The transferee may also be liable for any applicable penalties or additions to tax. A transferee must complete Part V of Form 8288 and attach Form(s) 8288-C it received from the partnership when making a claim for refund of section 1446(f)(4) withholding. If a transferee that has not yet completed and filed Part III of Form 8288 with respect to a transfer and is now claiming a refund for amounts withheld under section 1446(f)(4), the transferee must com-plete Part III when filing Part V of Form 8288.

Section 1446(f): PTP Interests

For purposes of section 1446(f), a broker is generally required to withhold on an amount re-alized from the transfer of a PTP interest that it effects for the transferor of the interest. A broker is generally required to withhold at a 10% rate on an amount realized paid to the transferor. However, certain exceptions to withholding may apply under Regulations section 1.1446(f)-4(b), which include exceptions for a transferor pro-viding a certification of non-foreign status, a certification from a transferor claiming an ex-emption from tax on any gain from the transfer under an income tax treaty, or a certification of the transferor’s status as a dealer in securities stating that any gain from the transfer is effec-tively connected with a trade or business in the U.S. without regard to section 864(c)(8). Addi-tionally, for an amount realized paid to a trans-feror that is a foreign partnership, a broker may rely on a claim for a modified amount realized made by the partnership on a valid Form W-8IMY and determine its withholding taking into account a certification of non-foreign status or claim for treaty benefits provided for a part-ner in the partnership that meets the require-ments of Regulations section 1.1446(f)-4(b)(2) or (5). See Regulations section 1.1446(f)-4(c)

(2)(ii) for further information on a modified amount realized. For an amount realized paid to a transferor that is a grantor trust, a broker may similarly determine its withholding taking into account any withholding exception applicable to a grantor or owner in the trust.

A broker is also required to withhold under section 1446(f) an amount realized from the transfer of a PTP interest that it pays to a broker that is an NQI, a QI (other than a QI assuming primary withholding responsibility for the amount realized), or U.S. branch or territory fi-nancial institution that is not treated as a U.S. person for the amount realized. In the case of an amount realized paid to an NQI (including a U.S. branch or territory financial institution not treated as a U.S. person), a broker is required

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to withhold at the 10% percent rate under sec-tion 1446(f). See the Instructions for Form W-8IMY for additional information on amount realized paid to NQIs. In the case of an amount realized paid to a QI not assuming primary with-holding responsibility for the amount, a broker may withhold based on either withholding rate pool information provided by the QI or informa-tion on the transferors of the PTP interest when the QI acts as a disclosing QI.

Regardless of whether an amount realized is paid to a transferor of a PTP interest through a broker, a broker is not required to withhold un-der section 1446(f) when it may rely on a quali-fied notice from the PTP that states the applica-bility of the “10-percent exception” to withholding. See Regulations section 1.1446(f)-4(b)(3) for further information on this exception, which applies to a PTP with less than 10-percent effectively connected gain (or that is otherwise not engaged in a trade or busi-ness in the U.S.).

An amount realized from the sale of a PTP interest is the amount of gross proceeds paid or credited from the sale. In the case of a PTP dis-tribution, an amount realized on the distribution is limited to an amount described in Regulations section 1.1446(f)-4(c)(2)(iii).

For when an amount realized is reportable on Form 1042-S and other requirements for re-porting amounts realized on Form 1042-S, see Regulation section 1.1461-1(c)(2)(i) and the In-structions for Form 1042-S. Also see the in-structions for Form 1042-S for the reporting of an amount realized paid to an NQI, or to a QI (including when the QI acts as a disclosing QI for the amount realized). See Revenue Proce-dure 2022-43 for the withholding and reporting requirements of QIs with respect to amounts re-alized paid to their account holders (including QIs acting as disclosing QIs), effective starting January 1, 2023.

U.S. Real Property Interest

The disposition of a USRPI by a foreign person (the transferor) is subject to income tax with-holding under section 1445. If you are the trans-feree, you must find out if the transferor is a for-eign person. If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax.

Foreign person. A foreign person is a nonresi-dent alien individual, or a foreign corporation that has not made an election under section 897(i) to be treated as a domestic corporation, foreign partnership, foreign trust, or foreign es-tate. It does not include a resident alien individ-ual or, in certain cases, a qualified foreign pen-sion fund. See Retirement and pension funds, later.

Transferor. A transferor is any foreign person that disposes of a USRPI by sale, exchange, gift, or any other transfer. A transfer includes distributions to shareholders of a corporation and beneficiaries of a trust or estate.

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The owner of a disregarded entity, not the entity, is treated as the transferor of the property transferred by the disregarded entity.

Transferee. A transferee is any person, for-eign or domestic, that acquires a USRPI by pur-chase, exchange, gift, or any other transfer.

USRPI. A USRPI is an interest, other than as a creditor, in real property (including an interest in a mine, well, or other natural deposit) located in the United States or the USVI, as well as certain personal property that is associated with the use of real property (such as farming machi-nery). It also means any interest, other than as a creditor, in any domestic corporation unless it is established that the corporation was at no time a U.S. real property holding corporation during the shorter of the period during which the interest was held, or the 5-year period ending on the date of disposition (applicable periods). An interest in a corporation is not a USRPI if:

1. Such corporation did not hold any USRPI on the date of disposition,

2. All the USRPI held by such corporation at any time during the shorter of the applica-ble periods were disposed of in transac-tions in which the full amount of any gain was recognized, and

3. Such corporation and any predecessor of such corporation was not a RIC or a REIT during the shorter of the applicable peri-ods during which the interest was held.

Exception for publicly traded stock. If, at any time during the calendar year, any class of stock of a domestic corporation is regularly tra-ded on an established securities market, an in-terest in such corporation will not be treated as a USRPI if the beneficial owner did not own more than 5% of the total fair market value of that class of interests, or 10% of the total fair market value of that class of interests in the case of a REIT, at any time during the shorter of the applicable periods. Certain constructive ownership rules apply for purposes of determin-ing whether any person meets the above own-ership threshold of any class of stock. See sec-tion 897(c)(6)(C) for more information on the constructive ownership rules.

Amount to withhold. The transferee must de-duct and withhold a tax on the total amount real-ized by the foreign person on the disposition. The rate of withholding is generally 15%.

The amount realized is the sum of:

The cash paid, or to be paid (principal only);

The fair market value of other property transferred, or to be transferred; and

The amount of any liability assumed by the transferee or to which the property is sub-ject immediately before and after the trans-fer.

If the property transferred was owned jointly by U.S. and foreign persons, the amount real-ized is allocated between the transferors based on the capital contribution of each transferor.

Residences. This rule applies when the prop-erty disposed of is acquired by the transferee for use by the transferee as a residence. If the amount realized on such disposition does not

exceed $300,000, no withholding is required. Otherwise, the transferee must generally with-hold 10% of the amount realized by a foreign person. The rate of withholding is 15% when the amount realized is in excess of $1,000,000.

Foreign corporations. A foreign corpora-tion that distributes a USRPI must withhold a tax equal to 21% of the gain it recognizes on the distribution to its shareholders.

Domestic corporations. A domestic cor-poration must withhold tax on the fair market value of the property distributed to a foreign shareholder if:

The shareholder's interest in the corpora-tion is a USRPI, and

The property distributed is either in re-demption of stock or in liquidation of the corporation.

The corporation must generally withhold 15% of the amount realized by a foreign person.

U.S. real property holding corporations. A distribution from a domestic corporation that is a U.S. real property holding corporation (USRPHC) is generally subject to chapter 3 withholding and withholding under the USRPI provisions. This also applies to a corporation that was a USRPHC at any time during the shorter of the period during which the USRPI was held, or the 5-year period ending on the date of disposition. A USRPHC can satisfy both withholding provisions if it withholds under one of the following procedures.

Apply chapter 3 withholding on the full amount of the distribution, whether or not any part of the distribution represents a re-turn of basis or capital gain. If a reduced tax rate applies under an income tax treaty, see Regulations section

1.1441-3T(c)(4)(i)(A) for the minimum with-holding rate that may be applicable.

Apply chapter 3 withholding to the part of the distribution that the USRPHC esti-mates is a dividend. Then, withhold 15% on the remainder of the distribution (or on a smaller amount if a withholding certificate is obtained and the amount of the distribu-tion that is a return of capital is estab-lished).

The same procedure must be used for all distributions made during the year. A different procedure may be used each year.

Partnerships. If a domestic or foreign part-nership with any foreign partners disposes of a USRPI at a gain, the gain is treated as ECI and is generally subject to the rules explained ear-lier under Partnership Withholding on Effec-tively Connected Income. A foreign partnership that disposes of a USRPI may credit the taxes withheld by the transferee against the tax liabil-ity determined under the partnership withhold-ing on effectively connected income rules.

If a foreign person disposes of an interest in a partnership in which 50% or more of the value of the gross assets consist of USRPI and 90% or more of the value of the gross assets consist of USRPI plus any cash or cash equivalents, the transferee of the partnership interest must deduct and withhold 15% of the amount real-ized on the disposition.

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Trusts and estates. You are a withholding agent if you are a trustee, fiduciary, or executor of a trust or estate having one or more foreign beneficiaries. You must establish a USRPI ac-count. You enter in the account all gains and losses realized during the tax year of the trust or estate from dispositions of USRPI. You must withhold 21% on any distribution to a foreign beneficiary that is attributable to the balance in the real property interest account on the day of the distribution. A distribution from a trust or es-tate to a beneficiary (foreign or domestic) will be treated as attributable first to any balance in the USRPI account and then to other amounts.

A trust with more than 100 beneficiaries may elect to withhold from each distribution 21% of the amount attributable to the foreign benefi-ciary's proportionate share of the current bal-ance of the trust's real property interest ac-count. This election does not apply to publicly traded trusts or REITs. For more information about this election, see Regulations section 1.1445-5(c).

Publicly traded partnership and trust inter-ests. If any class of interest in a partnership or a trust is regularly traded on an established se-curities market, any interest in such a partner-ship or trust will be treated as an interest in a publicly traded corporation and will be subject to the rules applicable to those interests.

Qualified investment entities (QIEs). Spe-cial rules apply to QIEs. A QIE is:

1. A REIT, or

2. A RIC that is a U.S. real property holding corporation.

Look -through rule for QIEs. In most ca-ses, any distribution from a QIE to a nonresi-dent alien, foreign corporation, or other QIE that is attributable to the QIE's gain from the sale or exchange of a USRPI is treated as gain recog-nized by the nonresident alien, foreign corpora-tion, or other QIE from the sale or exchange of a USRPI.

A distribution by a QIE to a nonresident alien or foreign corporation that is treated as gain from the sale or exchange of a USRPI by the shareholder is subject to withholding at 21%.

Certain exceptions apply to the look-through rule for distributions by QIEs. Any distribution by a QIE with respect to stock regularly traded on an established securities market in the United States is not treated as gain from the sale or ex-change of a USRPI if the shareholder did not own more than 5% of that stock (or more than 10% of that stock in the case of REITs) at any time during the 1-year period ending on the date of the distribution. A distribution by a REIT generally is not treated as gain from the sale or exchange of a USRPI if the shareholder is a qualified shareholder (as described in section 897(k)(3)). These distributions may be included in the shareholder's gross income as a dividend from the QIE, not as long-term capital gain.

Disposition of REIT stock. Disposition of stock in a REIT that is held directly (or indirectly through one or more partnerships) by a quali-fied shareholder may not be subject to withhold-ing. See section 897(k)(2) for more information.

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Domestically controlled QIE. The sale of an interest in a domestically controlled QIE is not the sale of a USRPI. The entity is domesti-cally controlled if at all times during the testing period less than 50% in value of its stock was held, directly or indirectly, by foreign persons. The testing period is the shorter of (a) the 5-year period ending on the date of disposition, or (b) the period during which the entity was in existence.

For the purpose of determining whether a QIE is domestically controlled, the following rules apply.

1. A person holding less than 5% of any class of stock of a QIE which is regularly traded on an established securities market in the United States at all times during the testing period will be treated as a U.S. per-son unless the QIE has actual knowledge that such person is not a U.S. person.

2. Any stock in a QIE that is held by another QIE will be treated as held by a foreign person if:

a. Any class of stock of such other QIE is regularly traded on an established securities market, or

b. Such other QIE is a RIC that issues certain redeemable securities.

Notwithstanding the above, the stock of the QIE will be treated as held by a U.S. person if such other QIE is domestically controlled.

3. Stock in a QIE that is held by any other QIE not described above will be treated as held by a U.S. person in proportion to the stock ownership of such other QIE which is (or is treated as) held by a U.S. person.

If a foreign shareholder in a domestically controlled QIE disposes of an interest in the QIE in an applicable wash sale transaction, special rules apply. See section 897 for more informa-tion.

Retirement and pension funds. A qualified foreign pension fund or any entity wholly owned by such qualified foreign pension fund will not be treated as a foreign person for dispositions of USRPI or distributions received from a REIT or certain RICs described in section 897(h)(4) (A)(ii). Qualified foreign pension funds are de-scribed in section 897(l)(2).

Additional information. For additional infor-mation on the withholding rules that apply to corporations, trusts, estates, and qualified in-vestment entities, see section 1445 and the re-lated regulations. For additional information on the withholding rules that apply to partnerships, see the previous discussion.

Exceptions. You do not have to withhold if any of the following apply.

1. You (the transferee) acquire the property for use as a residence and the amount re-alized (sales price) is not more than $300,000. You or a member of your family must have definite plans to reside at the property for at least 50% of the number of days the property is used by any person during each of the first two 12-month peri-

ods following the date of transfer. When counting the number of days the property is used, do not count the days the property will be vacant. For this exception, the transferee must be an individual.

2. The property disposed of is an interest in a domestic corporation and any class of stock of the corporation is regularly traded on an established securities market. How-ever, this exception does not apply to cer-tain dispositions of substantial amounts of non-publicly traded interests in publicly traded corporations.

3. The disposition is of an interest in a do-mestic corporation and that corporation furnishes you a certification stating, under penalties of perjury, that the interest is not a USRPI. In most cases, the corporation can make this certification only if either of the following is true.

During the previous 5 years (or, if shorter, the period the interest was held by its present owner), the corpo-ration was not a USRPHC.

As of the date of disposition, the inter-est in the corporation is not a USRPI by reason of section 897(c)(1)(B). The certification must be dated not more than 30 days before the date of transfer.

4. The transferor gives you a certification stating, under penalties of perjury, that the transferor is not a foreign person and con-taining the transferor's name, U.S. TIN, and home address (or office address, in the case of an entity). A certificate of non-foreign status includes a Form W-9.

The transferor can give the certification to a qualified substitute. The qualified sub-stitute gives you a statement, under penal-ties of perjury, that the certification is in the possession of the qualified substitute. For this purpose, a qualified substitute is (a) the person (including any attorney or title company) responsible for closing the transaction, other than the transferor's agent, and (b) the transferee's agent.

5. You receive a withholding certificate from the IRS that excuses withholding. See Withholding Certificates, later.

6. The transferor gives you written notice that no recognition of any gain or loss on the transfer is required because of a nonre-cognition provision in the Internal Revenue Code or a provision in a U.S. tax treaty. You must file a copy of the notice by the 20th day after the date of transfer with:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409

7. The amount the transferor realizes on the transfer of a USRPI is zero.

8. The property is acquired by the United States, a U.S. state or possession, a politi-cal subdivision, or the District of Columbia.

9. The grantor realizes an amount on the grant or lapse of an option to acquire a USRPI. However, you must withhold on the sale, exchange, or exercise of that op-tion.

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10. The disposition is of an interest in a pub-licly traded partnership or trust. However, this exception does not apply to certain dispositions of substantial amounts of non-publicly traded interests in publicly traded partnerships or trusts.

Late filing of certifications or notices. If you become aware that you have failed to timely file certain certifications or notices, you still may be able to file them. See Revenue Pro-cedure 2008-27, 2008-21 I.R.B. 1014 available at IRS.gov/irb/2008-21_IRB#RP-2008-27.

Complete the required certification or notice and file it with the appropriate person or the IRS. Also include the following.

A statement at the top of the document(s) that it is “FILED PURSUANT TO Revenue Procedure 2008-27.”

An explanation describing why the failure was due to reasonable cause. Within the explanation, provide that you filed with, or obtained from, an appropriate person the required certification or notice.

The completed certification or notice at-tached to the explanation must be sent to:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409.

Certifications. The certifications in items

(3) and (4) are not effective if you (or the quali-fied substitute) have actual knowledge, or re-ceive a notice from an agent (or substitute), that they are false. This also applies to the qualified substitute's statement under item (4).

If you (or the substitute) are required by reg-ulations to furnish a copy of the certification (or statement) to the IRS and you (or the substitute) fail to do so in the time and manner prescribed, the certification (or statement) is not effective.

Liability of agent or qualified substitute. If you (or the substitute) receive a certification discussed in item (3) or (4) or a statement in item (4), and the agent, or substitute, has actual knowledge that the certification (or statement) is false, or in the case of (3), that the corporation is a foreign corporation, the agent (or substitute) must notify you, or the agent (or substitute) will be held liable for the tax. The agent's (or substi-tute's) liability is limited to the compensation the agent (or substitute) gets from the transaction.

An agent is any person who represents the transferor or transferee in any negotiation with another person (or another person's agent) re-lating to the transaction, or in settling the trans-action. A person is not treated as an agent if the person only performs one or more of the follow-ing acts related to the transaction.

Receipt and disbursement of any part of the consideration.

Recording of any document.

Typing, copying, and other clerical tasks.

Obtaining title insurance reports and re-ports concerning the condition of the prop-erty.

Transmitting documents between the par-ties.

Reporting and

Paying the Tax

Transferees must use Forms 8288 and 8288-A to report and pay over any tax withheld on the acquisition of USRPI. These forms must also be used by corporations, estates, and QIEs that must withhold tax on distributions and other transactions involving USRPI. You must include the U.S. TIN of both the transferor and the transferee on the forms.

For partnerships disposing of USRPI, the manner of reporting and paying over the tax withheld is the same as discussed earlier under Partnership Withholding on Effectively Connec-ted Income.

Publicly traded trusts must use Forms 1042 and 1042-S to report and pay over tax withheld on distributions from dispositions of USRPI.

QIEs must use Forms 1042 and 1042-S for a distribution to a nonresident alien or foreign corporation that is treated as a dividend, as dis-cussed earlier under Qualified investment enti-ties (QIEs).

Form 8288. The tax withheld on the acquisi-tion of a USRPI from a foreign person is repor-ted and paid over using Form 8288. Form 8288 also serves as the transmittal form for copies A and B of Form 8288-A.

In most cases, you must file Form 8288 DUE by the 20th day after the date of the

transfer.

If an application for a withholding certificate (discussed later) is submitted to the IRS before or on the date of a transfer and the application is still pending with the IRS on the date of trans-fer, the correct withholding tax must be with-held, but does not have to be reported and paid over immediately. The amount withheld (or lesser amount, as determined by the IRS) must be reported and paid over within 20 days follow-ing the day on which a copy of the withholding certificate or notice of denial is mailed by the IRS.

If the principal purpose of applying for a withholding certificate is to delay paying over the withheld tax, the transferee will be subject to interest and penalties. The interest and penal-ties will be assessed for the period beginning on the 21st day after the date of transfer and ending on the day the payment is made.

Form 8288-A. The withholding agent must prepare a Form 8288-A for each person from whom tax has been withheld. Attach copies A and B of Form 8288-A to Form 8288. Keep copy C for your records.

The IRS will stamp copy B and send it to the person subject to withholding. That person must file a U.S. income tax return and attach the stamped Form 8288-A to receive credit for any tax withheld.

A stamped copy of Form 8288-A will

not be provided to the transferor if the CAUTION transferor's TIN is not included on that form. The IRS will send a letter to the transferor requesting the TIN and providing instructions for how to get a TIN. When the transferor pro-vides the IRS with a TIN, the IRS will provide the transferor with a stamped copy B of Form 8288-A.

Form 1099-S. In most cases, the real estate broker or other person responsible for closing the transaction must report the sale of the prop-erty to the IRS using Form 1099-S. For more in-formation about Form 1099-S, see the Instructions for Form 1099-S and the General Instructions for Certain Information Returns.

Withholding Certificates

The amount that must be withheld from the dis-position of a USRPI can be adjusted by a with-holding certificate issued by the IRS. The trans-feree, the transferee's agent, or the transferor may request a withholding certificate. The IRS will generally act on these requests within 90 days after receipt of a complete application in-cluding the TINs of all the parties to the transac-tion. A transferor that applies for a withholding certificate must notify the transferee, in writing, that the certificate has been applied for on the day of or the day before the transfer.

A withholding certificate may be issued due

to:

1. A determination by the IRS that reduced withholding is appropriate because either:

a. The amount that must be withheld would be more than the transferor's maximum tax liability, or

b. Withholding of the reduced amount would not jeopardize collection of the tax;

2. The exemption from U.S. tax of all gain re-alized by the transferor; or

3. An agreement for the payment of tax pro-viding security for the tax liability, entered into by the transferee or transferor.

Applications for withholding certificates are divided into six basic categories. This categoriz-ing provides for specific information that is nee-ded to process the applications. The six catego-ries are:

1. Applications based on a claim that the transferor is entitled to nonrecognition treatment or is exempt from tax,

2. Applications based solely on a calculation of the transferor's maximum tax liability,

3. Applications under special installment sales rules,

4. Applications based on an agreement for the payment of tax with conforming secur-ity,

5. Applications for blanket withholding certifi-cates, and

6. Applications on any other basis.

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The applicant must make available to the IRS, within the time prescribed, all RECORDS information required to verify that rep-

resentations relied upon in accepting the agree-ment are accurate, and that the obligations as-sumed by the applicant will be performed pursuant to the agreement. Failure to provide requested information promptly will usually re-sult in rejection of the application, unless the IRS grants an extension of the target date.

Categories (1), (2), and (3). Use Form 8288-B to apply for a withholding certificate. Follow the instructions for the form.

Categories (4), (5), and (6). Do not use Form 8288-B for applications under categories (4),

(5), and (6). For these categories, follow the in-structions given here and under the specific cat-egory.

All applications for withholding certificates must use the following format. The information must be provided in paragraphs labeled to cor-respond with the numbers and letters set forth below. If the information requested does not ap-ply, place “N/A” in the relevant space.

1. Information on the application category:

a. State which category (4, 5, or 6) de-scribes the application,

b. If a category (4) application:

i. State whether the proposed agreement secures (A) the trans-feror's maximum tax liability, or

(B) the amount that would other-wise have to be withheld; and

ii. State whether the proposed agreement and security instru-ment conform to the standard for-mats.

2. Information on the transferee or transferor:

c. State the name, address, and TIN of the person applying for the withhold-ing certificate (if this person does not have a TIN and is eligible for an ITIN, they can apply for the ITIN by attach-ing the application to a completed Form W-7 and forwarding the pack-age to the address given in the Form W-7 instructions);

d. State whether that person is the trans-feree or transferor; and

e. State the name, address, and TIN of all other transferees and transferors of the USRPI for which the withholding certificate is sought.

3. Information on the USRPI for which the withholding certificate is sought. State the:

f. Type of interest (such as interest in real property, in associated personal property, or in a domestic U.S. real property holding corporation);

g. Contract price;

h. Date of transfer;

i. Location and general description (if an interest in real property);

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e. Class or type and amount of the inter-est in a U.S. real property holding cor-poration; and

f. Whether in the 3 preceding tax years

(1) U.S. income tax returns were filed relating to the USRPI and, if so, when and where those returns were filed and, if not, why returns were not filed, and (2) U.S. income taxes were paid relating to the USRPI and, if so, the amount of tax paid.

4. Provide full information concerning the ba-sis for the issuance of the withholding cer-tificate. Although the information to be in-cluded in this section of the application will vary from case to case, the rules shown under the specific category provide gen-eral guidelines for the inclusion of appro-priate information for that category.

The application must be signed by the indi-vidual, a responsible officer in the case of a cor-poration, a general partner in the case of a part-nership, or a trustee, executor, or equivalent fiduciary in the case of a trust or estate, or a duly authorized agent (with a copy of the power of attorney, such as Form 2848, attached). The person signing the application must verify under penalties of perjury that all representations are true, correct, and complete to that person's knowledge and belief. If the application is based in whole or in part on information provi-ded by another party to the transaction, that in-formation must be supported by a written verifi-cation signed under penalties of perjury by that party and attached to the application.

Send applications to the:

Ogden Service Center

P.O. Box 409101

Ogden, UT 84409

Category (4) applications. If the application is based on an agreement for the payment of tax, the application must include:

Information establishing the transferor's maximum tax liability, or the amount that otherwise has to be withheld;

A signed copy of the agreement proposed by the applicant; and

A copy of the security instrument proposed by the applicant.

Either the transferee or the transferor may enter into an agreement for the payment of tax. The agreement is a contract between the IRS and any other person and consists of two nec-essary elements. Those elements are:

A detailed description of the rights and ob-ligations of each, and

A security instrument or other form of se-curity acceptable to the Commissioner or his delegate.

For more information on the agreement for the payment of tax, including a sample agree-ment, see section 5 of Revenue Procedure 2000-35, 2000–35 I.R.B. 211, available at IRS.gov/pub/irs-irbs/irb00-35.pdf.

There are four major types of security ac-ceptable to the IRS. They are:

Bond with surety or guarantor,

Bond with collateral,

Letter of credit, and

Guarantee (corporate transferors).

The IRS may, in unusual circumstances and at its discretion, accept any additional form of security that it finds to be adequate.

For more information on acceptable security instruments, including sample forms of these in-struments, see section 6 of Revenue Procedure 2000-35.

Category (5) applications. A blanket with-holding certificate may be issued if the trans-feror holding the USRPI provides an irrevocable letter of credit or a guarantee and enters into a tax payment and security agreement with the IRS. A blanket withholding certificate excuses withholding concerning multiple dispositions of those property interests by the transferor or the transferor's legal representative during a period of no more than 12 months.

For more information, see section 9 of Reve-nue Procedure 2000-35.

Category (6) applications. These are non-standard applications and may be of the follow-ing types.

Agreement for payment of tax with non-conforming security. An applicant seeking to enter into an agreement for the payment of tax but wanting to provide a nonconforming type of security must include the following in the appli-cation.

1. The information required for category (4) applications, discussed earlier.

2. A description of the nonconforming secur-ity proposed by the applicant.

3. A memorandum of law and facts establish-ing that the proposed security is valid and enforceable and that it adequately pro-tects the government's interest.

Other nonstandard applications. An ap-plication for a withholding certificate not previ-ously described must explain in detail the pro-posed basis for the issuance of the certificate and set forth the reasons justifying the issuance of a certificate on that basis.

Amendments to Applications

An applicant for a withholding certificate may amend an otherwise complete application by sending an amending statement to the address shown earlier in Withholding Certificates. There is no particular form required, but the amending statement must provide the following informa-tion.

The name, address, and TIN of the person providing the amending statement specify-ing whether that person is the transferee or transferor.

The date of the original application for a withholding certificate that is being amen-ded.

A brief description of the real property in-terest for which the original application for a withholding certificate was provided.

The basis for the amendment including any change in the facts supporting the original application for a withholding certifi-cate and any change in the terms of the withholding certificate.

Publication 515 (2023)

The statement must be signed and accom-panied by a penalties of perjury statement.

If an amending statement is provided, the time in which the IRS must act upon the appli-cation is extended by 30 days. If the amending statement substantially changes the original ap-plication, the time for acting upon the applica-tion is extended by 60 days. If an amending statement is received after the withholding cer-tificate has been signed, but before it has been mailed to the applicant, the IRS will have a 90-day extension of time in which to act.

Definitions

Chapter 4 withholding rate pool. A “chap-ter 4 withholding rate pool” means a pool of payees that are nonparticipating FFIs provided on a chapter 4 withholding statement (as de-scribed in Regulations section 1.1471-3(c)(3) (iii)(B)(3)) to which a withholdable payment is allocated. The term also means a pool of pay-ees provided on an FFI withholding statement (as described in Regulations section 1.1471-3(c)(iii)(B)(2)) to which a withholdable payment is allocated to (a) a pool of payees consisting of each class of recalcitrant account holders described in Regulations section 1.1471-4(d)(6) (or with respect to an FFI that is a QI, a single pool of recalcitrant account hold-ers), including a separate pool of account hold-ers to which the escrow procedures for dormant accounts apply; or (b) a pool of payees that are U.S. persons as described in Regulations sec-tion 1.1471-3(c)(3)(iii)(B)(2) (including such a pool allocated to a reportable amount on a with-holding statement provided solely for chapter 3 purposes).

Deemed-compliant FFI. A “deemed-compli-ant FFI” means an FFI that is treated, pursuant to section 1471(b)(2) and Regulations section 1.1471-5(f), as meeting the requirements of section 1471(b). The term “deemed-compliant FFI” includes a nonreporting IGA FFI (as de-fined in Regulations section 1.1471-1(b)(83)).

Dividend equivalents. Generally, a “dividend equivalent” is any payment that references the payment of a dividend from an underlying se-curity pursuant to a securities lending or sale-repurchase transaction, SNPC, or speci-fied ELI. This applies without regard to whether there is an actual distribution of cash or prop-erty.

Exempt beneficial owner. An “exempt benefi-cial owner” is any person described in Regula-tions sections 1.1471-6(b) through (g) and in-cludes any person treated as an exempt beneficial owner under an applicable Model 1 IGA or Model 2 IGA.

Financial institution (FI). A “financial institu-tion” (FI) is any institution that is a depository in-stitution, custodial institution, investment entity, insurance company (or holding company of an insurance company) that issues cash value in-surance or annuity contracts, or a holding com-pany or treasury center that is part of an expan-ded affiliated group of certain FFIs, and includes a financial institution, as defined under

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an applicable Model 1 IGA or Model 2 IGA. See Regulations section 1.1471-5(e)(1).

Foreign financial institution (FFI). Except as otherwise provided for certain foreign branches of a U.S. financial institution or territory financial institutions, a “foreign financial institution” (FFI) means a financial institution that is a foreign en-tity. The term “FFI” also includes a foreign branch of a U.S. financial institution with a QI agreement in effect.

Model 1 IGA. A “Model 1 IGA” means an agreement between the United States or the Treasury Department and a foreign government or one or more foreign agencies to implement FATCA through reporting by financial institu-tions to such foreign government or agency thereof, followed by automatic exchange of the reported information with the IRS. For a list of jurisdictions treated as having an IGA in effect, go to Treasury.gov/Resource-Center/Tax-Policy/Treaties/Pages/FATCA.aspx.

Model 2 IGA. A “Model 2 IGA” means an agreement or arrangement between the United States or the Treasury Department and a for-eign government or one or more foreign agen-cies to implement FATCA through reporting by financial institutions directly to the IRS in ac-cordance with the requirements of the FFI agreement, as modified by an applicable Model 2 IGA, supplemented by the exchange of infor-mation between such foreign government or agency thereof and the IRS. For a list of juris-dictions treated as having an IGA in effect, go to Treasury.gov/Resource-Center/Tax-Policy/ Treaties/Pages/FATCA.aspx.

Non-financial foreign entity (NFFE). A “non-financial foreign entity” (NFFE) is a foreign entity that is not a financial institution. An NFFE includes a territory NFFE, as defined in Regula-tions section 1.1471-1(b)(132), and a foreign entity treated as an NFFE pursuant to a Model 1 IGA or Model 2 IGA.

Nonparticipating FFI. A “nonparticipating FFI” is an FFI other than a participating FFI, a deemed-compliant FFI, or an exempt beneficial owner.

Participating FFI. A “participating FFI” is an FFI that has agreed to comply with the require-ments of an FFI agreement with respect to all branches of the FFI, other than a branch that is a reporting Model 1 FFI or a U.S. branch. The term "participating FFI" also includes a reporting Model 2 FFI and a QI branch of a U.S. financial institution, unless such branch is a reporting Model 1 FFI.

Passive NFFE. A “passive NFFE” is an NFFE that is not an excepted NFFE. With respect to a reporting Model 2 FFI filing a Form 8966 to re-port its accounts and payees, a passive NFFE is an NFFE that is not an active NFFE (as de-scribed in the applicable IGA).

Qualified derivatives dealer (QDD). A “quali-fied derivatives dealer” (QDD) is a QI that is an eligible entity (as defined in Regulations section 1.1441-1(e)(6)(ii)) that agrees to meet the re-

quirements of Regulations section 1.1441-1(e)

(6)(i) and the QI agreement.

Recalcitrant account holder. A “recalcitrant account holder” is an account holder (other than an account holder that is an FFI or is presumed to be an FFI) of a participating FFI or registered deemed-compliant FFI that has failed to provide the FFI maintaining its account with the informa-tion required under Regulations section 1.1471-5(g).

Registered deemed-compliant FFI. A “regis-tered deemed-compliant FFI” is an FFI descri-bed in Regulations section 1.1471-5(f)(1) and includes a reporting Model 1 FFI and a QI branch of a U.S. financial institution that is a re-porting Model 1 FFI.

Reporting Model 1 FFI. A “reporting Model 1 FFI” is an FI, including a foreign branch of a U.S. financial institution, treated as a reporting financial institution under a Model 1 IGA.

Reporting Model 2 FFI. A “reporting Model 2 FFI” is an FFI described in a Model 2 IGA that has agreed to comply with the requirements of an FFI agreement with respect to a branch.

Territory financial institution. A “territory fi-nancial institution” is a financial institution that is incorporated or organized under the laws of any U.S. territory, excluding a territory entity that is a financial institution only because it is an invest-ment entity, as defined in Regulations section 1.1471-5(e)(4).

Withholdable payment. A “withholdable pay-ment” is a payment described in Regulations section 1.1473-1(a). See Income Subject to Withholding, earlier, for a discussion of which payments qualify as withholdable payments.

Tax Treaties

The United States has bilateral income tax trea-ties, also known as “conventions,” with a num-ber of foreign countries under which residents (sometimes limited to citizens) of those coun-tries are taxed at a reduced rate or are exempt from U.S. income taxes on certain income re-ceived from within the United States.

Income that is exempt under a treaty is not subject to withholding at source under the statu-tory rules discussed in this publication.

Obtaining treaty information. You can obtain the full text of these treaties, and accompanying technical explanations, at IRS.gov/Businesses/ International-Businesses/United-States-Income-Tax-Treaties-A-to-Z.

Detailed information about treaty provisions can be found at IRS.gov/Individuals/ International-Taxpayers/Tax-Treaties.

Tax treaty tables. The tax treaty tables previ-ously contained in this publication have been updated and moved to IRS.gov/Individuals/ International-Taxpayers/Tax-Treaty-Tables.

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How To Get Tax Help

If you have questions about a tax issue; need help preparing your tax return; or want to down-load free publications, forms, or instructions, go to IRS.gov to find resources that can help you right away.

Preparing and filing your tax return. After receiving all your wage and earnings state-ments (Forms W-2, W-2G, 1099-R, 1099-MISC, 1099-NEC, etc.); unemployment compensation statements (by mail or in a digital format) or other government payment statements (Form 1099-G); and interest, dividend, and retirement statements from banks and investment firms (Forms 1099), you have several options to choose from to prepare and file your tax return. You can prepare the tax return yourself, see if you qualify for free tax preparation, or hire a tax professional to prepare your return.

Free options for tax preparation. Go to IRS.gov to see your options for preparing and filing your return online or in your local commun-ity, if you qualify, which include the following.

Free File. This program lets you prepare and file your federal individual income tax return for free using brand-name tax-prep-aration-and-filing software or Free File filla-ble forms. However, state tax preparation may not be available through Free File. Go to IRS.gov/FreeFile to see if you qualify for free online federal tax preparation, e-filing, and direct deposit or payment options.

VITA. The Volunteer Income Tax Assis-tance (VITA) program offers free tax help to people with low-to-moderate incomes, persons with disabilities, and limited-Eng-lish-speaking taxpayers who need help preparing their own tax returns. Go to IRS.gov/VITA, download the free IRS2Go app, or call 800-906-9887 for information on free tax return preparation.

TCE. The Tax Counseling for the Elderly (TCE) program offers free tax help for all taxpayers, particularly those who are 60 years of age and older. TCE volunteers specialize in answering questions about pensions and retirement-related issues unique to seniors. Go to IRS.gov/TCE, download the free IRS2Go app, or call

888-227-7669 for information on free tax return preparation.

MilTax. Members of the U.S. Armed Forces and qualified veterans may use Mil-Tax, a free tax service offered by the De-partment of Defense through Military One-Source. For more information, go to MilitaryOneSource (MilitaryOneSource.mil/ MilTax).

Also, the IRS offers Free Fillable Forms, which can be completed online and then filed electronically regardless of in-come.

Using online tools to help prepare your re-turn. Go to IRS.gov/Tools for the following.

The Earned Income Tax Credit Assistant (IRS.gov/EITCAssistant) determines if you’re eligible for the earned income credit (EIC).

Page 54

The Online EIN Application (IRS.gov/EIN) helps you get an employer identification number (EIN) at no cost.

The Tax Withholding Estimator (IRS.gov/ W4app) makes it easier for you to estimate the federal income tax you want your em-ployer to withhold from your paycheck. This is tax withholding. See how your with-holding affects your refund, take-home pay, or tax due.

The First-Time Homebuyer Credit Account Look-up (IRS.gov/HomeBuyer) tool pro-vides information on your repayments and account balance.

The Sales Tax Deduction Calculator

(IRS.gov/SalesTax) figures the amount you can claim if you itemize deductions on Schedule A (Form 1040).

Getting answers to your tax ques-tions. On IRS.gov, you can get up-to-date information on current

events and changes in tax law.

IRS.gov/Help: A variety of tools to help you get answers to some of the most common tax questions.

IRS.gov/ITA: The Interactive Tax Assistant, a tool that will ask you questions and, based on your input, provide answers on a number of tax law topics.

IRS.gov/Forms: Find forms, instructions, and publications. You will find details on the most recent tax changes and interac-tive links to help you find answers to your questions.

You may also be able to access tax law in-formation in your electronic filing software.

Need someone to prepare your tax return? There are various types of tax return preparers, including enrolled agents, certified public ac-countants (CPAs), accountants, and many oth-ers who don’t have professional credentials. If you choose to have someone prepare your tax return, choose that preparer wisely. A paid tax preparer is:

Primarily responsible for the overall sub-stantive accuracy of your return,

Required to sign the return, and

Required to include their preparer tax iden-tification number (PTIN).

Although the tax preparer always signs the return, you're ultimately responsible for provid-ing all the information required for the preparer to accurately prepare your return. Anyone paid to prepare tax returns for others should have a thorough understanding of tax matters. For more information on how to choose a tax pre-parer, go to Tips for Choosing a Tax Preparer on IRS.gov.

Coronavirus. Go to IRS.gov/Coronavirus for links to information on the impact of the corona-virus, as well as tax relief available for individu-als and families, small and large businesses, and tax-exempt organizations.

Employers can register to use Business Services Online. The Social Security Adminis-tration (SSA) offers online service at SSA.gov/ employer for fast, free, and secure online W-2 filing options to CPAs, accountants, enrolled

agents, and individuals who process Form W-2, Wage and Tax Statement, and Form W-2c, Corrected Wage and Tax Statement.

IRS social media. Go to IRS.gov/SocialMedia to see the various social media tools the IRS uses to share the latest information on tax changes, scam alerts, initiatives, products, and services. At the IRS, privacy and security are our highest priority. We use these tools to share public information with you. Don’t post your so-cial security number (SSN) or other confidential information on social media sites. Always pro-tect your identity when using any social net-working site.

The following IRS YouTube channels pro-vide short, informative videos on various tax-re-lated topics in English, Spanish, and ASL.

Youtube.com/irsvideos.

Youtube.com/irsvideosmultilingua.

Youtube.com/irsvideosASL.

Watching IRS videos. The IRS Video portal (IRSVideos.gov) contains video and audio pre-sentations for individuals, small businesses, and tax professionals.

Online tax information in other languages. You can find information on IRS.gov/ MyLanguage if English isn’t your native lan-guage.

Free Over-the-Phone Interpreter (OPI) Serv-ice. The IRS is committed to serving our multi-lingual customers by offering OPI services. The OPI Service is a federally funded program and is available at Taxpayer Assistance Centers (TACs), other IRS offices, and every VITA/TCE return site. The OPI Service is accessible in more than 350 languages.

Accessibility Helpline available for taxpay-ers with disabilities. Taxpayers who need in-formation about accessibility services can call 833-690-0598. The Accessibility Helpline can answer questions related to current and future accessibility products and services available in alternative media formats (for example, braille, large print, audio, etc.). The Accessibility Help-line does not have access to your IRS account. For help with tax law, refunds, or account-rela-ted issues, go to IRS.gov/LetUsHelp.

Note. Form 9000, Alternative Media Prefer-ence, or Form 9000(SP) allows you to elect to receive certain types of written correspondence in the following formats.

Standard Print.

Large Print.

Braille.

Audio (MP3).

Plain Text File (TXT).

Braille Ready File (BRF).

Disasters. Go to Disaster Assistance and Emergency Relief for Individuals and Businesses to review the available disaster tax relief.

Getting tax forms and publications. Go to IRS.gov/Forms to view, download, or print all the forms, instructions, and publications you

Publication 515 (2023)

may need. Or, you can go to IRS.gov/ OrderForms to place an order.

Getting tax publications and instructions in eBook format. You can also download and view popular tax publications and instructions (including the Instructions for Form 1040) on mobile devices as eBooks at IRS.gov/eBooks.

Note. IRS eBooks have been tested using Apple's iBooks for iPad. Our eBooks haven’t been tested on other dedicated eBook readers, and eBook functionality may not operate as in-tended.

Access your online account (individual tax-payers only). Go to IRS.gov/Account to se-curely access information about your federal tax account.

View the amount you owe and a break-down by tax year.

See payment plan details or apply for a new payment plan.

Make a payment or view 5 years of pay-ment history and any pending or sched-uled payments.

Access your tax records, including key data from your most recent tax return, and transcripts.

View digital copies of select notices from the IRS.

Approve or reject authorization requests from tax professionals.

View your address on file or manage your communication preferences.

Tax Pro Account. This tool lets your tax pro-fessional submit an authorization request to ac-cess your individual taxpayer IRS online account. For more information, go to IRS.gov/ TaxProAccount.

Using direct deposit. The fastest way to re-ceive a tax refund is to file electronically and choose direct deposit, which securely and elec-tronically transfers your refund directly into your financial account. Direct deposit also avoids the possibility that your check could be lost, stolen, destroyed, or returned undeliverable to the IRS. Eight in 10 taxpayers use direct deposit to re-ceive their refunds. If you don’t have a bank ac-count, go to IRS.gov/DirectDeposit for more in-formation on where to find a bank or credit union that can open an account online.

Getting a transcript of your return. The quickest way to get a copy of your tax transcript is to go to IRS.gov/Transcripts. Click on either “Get Transcript Online” or “Get Transcript by Mail” to order a free copy of your transcript. If you prefer, you can order your transcript by call-ing 800-908-9946.

Reporting and resolving your tax-related identity theft issues.

Tax-related identity theft happens when someone steals your personal information to commit tax fraud. Your taxes can be af-fected if your SSN is used to file a fraudu-lent return or to claim a refund or credit.

The IRS doesn’t initiate contact with tax-payers by email, text messages (including shortened links), telephone calls, or social media channels to request or verify per-

sonal or financial information. This in-cludes requests for personal identification numbers (PINs), passwords, or similar in-formation for credit cards, banks, or other financial accounts.

Go to IRS.gov/IdentityTheft, the IRS Iden-tity Theft Central webpage, for information on identity theft and data security protec-tion for taxpayers, tax professionals, and businesses. If your SSN has been lost or stolen or you suspect you’re a victim of tax-related identity theft, you can learn what steps you should take.

Get an Identity Protection PIN (IP PIN). IP PINs are six-digit numbers assigned to tax-payers to help prevent the misuse of their SSNs on fraudulent federal income tax re-turns. When you have an IP PIN, it pre-vents someone else from filing a tax return with your SSN. To learn more, go to IRS.gov/IPPIN.

Ways to check on the status of your refund.

Go to IRS.gov/Refunds.

Download the official IRS2Go app to your mobile device to check your refund status.

Call the automated refund hotline at 800-829-1954.

Note. The IRS can’t issue refunds before mid-February for returns that claimed the EIC or the additional child tax credit (ACTC). This ap-plies to the entire refund, not just the portion as-sociated with these credits.

Making a tax payment. Go to IRS.gov/ Payments for information on how to make a payment using any of the following options.

IRS Direct Pay: Pay your individual tax bill or estimated tax payment directly from your checking or savings account at no cost to you.

Debit or Credit Card: Choose an approved payment processor to pay online or by phone.

Electronic Funds Withdrawal: Schedule a payment when filing your federal taxes us-ing tax return preparation software or through a tax professional.

Electronic Federal Tax Payment System: Best option for businesses. Enrollment is required.

Check or Money Order: Mail your payment to the address listed on the notice or in-structions.

Cash: You may be able to pay your taxes with cash at a participating retail store.

Same-Day Wire: You may be able to do same-day wire from your financial institu-tion. Contact your financial institution for availability, cost, and time frames.

Note. The IRS uses the latest encryption technology to ensure that the electronic pay-ments you make online, by phone, or from a mobile device using the IRS2Go app are safe and secure. Paying electronically is quick, easy, and faster than mailing in a check or money or-der.

What if I can’t pay now? Go to IRS.gov/ Payments for more information about your op-tions.

Apply for an online payment agreement

(IRS.gov/OPA) to meet your tax obligation in monthly installments if you can’t pay your taxes in full today. Once you complete the online process, you will receive imme-diate notification of whether your agree-ment has been approved.

Use the Offer in Compromise Pre-Qualifier to see if you can settle your tax debt for less than the full amount you owe. For more information on the Offer in Compro-mise program, go to IRS.gov/OIC.

Filing an amended return. Go to IRS.gov/ Form1040X for information and updates.

Checking the status of your amended re-turn. Go to IRS.gov/WMAR to track the status of Form 1040-X amended returns.

Note. It can take up to 3 weeks from the date you filed your amended return for it to show up in our system, and processing it can take up to 16 weeks.

Understanding an IRS notice or letter you’ve received. Go to IRS.gov/Notices to find additional information about responding to an IRS notice or letter.

Note. You can use Schedule LEP (Form 1040), Request for Change in Language Prefer-ence, to state a preference to receive notices, letters, or other written communications from the IRS in an alternative language. You may not immediately receive written communications in the requested language. The IRS’s commitment to LEP taxpayers is part of a multi-year timeline that is scheduled to begin providing translations in 2023. You will continue to receive communi-cations, including notices and letters in English until they are translated to your preferred lan-guage.

Contacting your local IRS office. Keep in mind, many questions can be answered on IRS.gov without visiting an IRS TAC. Go to IRS.gov/LetUsHelp for the topics people ask about most. If you still need help, IRS TACs provide tax help when a tax issue can’t be han-dled online or by phone. All TACs now provide service by appointment, so you’ll know in ad-vance that you can get the service you need without long wait times. Before you visit, go to IRS.gov/TACLocator to find the nearest TAC and to check hours, available services, and ap-pointment options. Or, on the IRS2Go app, un-der the Stay Connected tab, choose the Con-tact Us option and click on “Local Offices.”

The Taxpayer Advocate Service (TAS) Is Here To Help You

What Is TAS?

TAS is an independent organization within the IRS that helps taxpayers and protects taxpayer rights. Their job is to ensure that every taxpayer

Publication 515 (2023)Page 55

is treated fairly and that you know and under-stand your rights under the Taxpayer Bill of Rights.

How Can You Learn About Your Taxpayer Rights?

The Taxpayer Bill of Rights describes 10 basic rights that all taxpayers have when dealing with the IRS. Go to TaxpayerAdvocate.IRS.gov to help you understand what these rights mean to you and how they apply. These are your rights. Know them. Use them.

You face (or your business is facing) an immediate threat of adverse action; or

You’ve tried repeatedly to contact the IRS but no one has responded, or the IRS hasn’t responded by the date promised.

How Can You Reach TAS?

TAS has offices in every state, the District of Columbia, and Puerto Rico. Your local advo-cate’s number is in your local directory and at TaxpayerAdvocate.IRS.gov/Contact-Us. You can also call them at 877-777-4778.

TAS for Tax Professionals

TAS can provide a variety of information for tax professionals, including tax law updates and guidance, TAS programs, and ways to let TAS know about systemic problems you’ve seen in your practice.

Low Income Taxpayer Clinics (LITCs)

LITCs are independent from the IRS. LITCs represent individuals whose income is below a

What Can TAS Do for You?

TAS can help you resolve problems that you can’t resolve with the IRS. And their service is free. If you qualify for their assistance, you will be assigned to one advocate who will work with you throughout the process and will do every-thing possible to resolve your issue. TAS can help you if:

Your problem is causing financial difficulty for you, your family, or your business;

How Else Does TAS Help Taxpayers?

TAS works to resolve large-scale problems that affect many taxpayers. If you know of one of these broad issues, report it to them at IRS.gov/ SAMS.

certain level and need to resolve tax problems with the IRS, such as audits, appeals, and tax collection disputes. In addition, LITCs can pro-vide information about taxpayer rights and re-sponsibilities in different languages for individu-als who speak English as a second language. Services are offered for free or a small fee for eligible taxpayers. To find an LITC near you, go to TaxpayerAdvocate.IRS.gov/about-us/Low-Income-Taxpayer-Clinics-LITC or see IRS Pub. 4134, Low Income Taxpayer Clinic List.

Page 56Publication 515 (2023)

	To help us develop a more useful index, please let us know if you have ideas for index entries.

Index
	See “Comments and Suggestions” in the “Introduction” for the ways you can reach us.

10% owners 28

501(c) organizations 39 80/20 company 30

A

Acceptance agent 40 Accounts, offshore 11 Alien:

Defined 8

Illegal 34

Nonresident alien 8

Resident alien 9

Alimony 32 American Samoa 9 Amount to withhold 3

Amount to withhold Determining the 47

Annuities 32

Artists and athletes:

Earnings of 38 Special events and

promotions 38 Assistance (See Tax help) Awards 34

B

Backup withholding 4

Banks, interest received by 28

Beneficial owner 10

Beneficiary of foreign trust 17

Bonds sold between interest dates 30

Branch profits tax 31

C

Canada 37, 42

Capital gains 32

Central withholding agreements 38

Chapter 3 withholding 3-9 Income subject to 23 Payees 5

Persons subject to 4 Chapter 4 withholding 4-9

Payees 5

Persons subject to 4

Withholding rate pool 53

Withholding statement 13

Charitable organizations 9

Commonwealth of the Northern Mariana Islands (CNMI) 9

Consent dividends 30

Contingent interest 28

Controlled foreign corporations:

Interest paid to 28, 29

Covenant not to compete 26

Crew members 25

D

Deemed-compliant FFI 53

Dependent personal services 36

Defined 36

Exempt from withholding 36

Depositing taxes:

How to 41

When to 41

Deposits 29 Publication 515 (2023)

Determining the amount to withhold 47

Disregarded entities 5

Dividend equivalent payments 31

Dividend Equivalents 31

Dividends:

Direct dividend rate 30

Domestic corporation 30

Foreign corporations 31

In general 30

Documentary evidence 11, 20, 21

Documentation 9-23 For chapter 3 9 For chapter 4 10

From foreign beneficial owners and U.S. payees 9, 10

From foreign intermediaries and foreign flow-through entities 12

Presumptions in the absence of 23

E

Effectively connected income:

Defined 26 Foreign partners 43 Partnerships 4

EFTPS 41

Electronic deposit rules 41 Employees 24, 35 Employer 35

Exceptions to withholding on transfers of non-PTP interests. 46

Exempt beneficial owner 53

F

FATCA report 4

Federal unemployment tax 36 Fellowship grants 33 Fellowships 25

Financial institution (FI) 53

Financial institutions 7

FIRPTA withholding 4, 49

Fiscally transparent entity 6

Fixed or determinable annual or periodic income 25

Flow-through entities 5

Foreign:

501(c) organizations 39 Bank 8, 26

Charitable organizations 9 Corporations 9 Governments 39 Insurance company 8, 26 Intermediary, payee 7 Organizations and

associations 9

Partner 43

Partnerships, payee 5

Private foundation 9, 39

Status 19

Trusts, payee 6

Foreign financial institution (FFI) 53

Foreign person 8

Form:

1042 4, 16, 17, 42

1042-S 4, 16, 17, 42

1099 4

1099-S 51

4419 42

7004 43

8233 34

8288 51

8288-A 51

8288-B 52

8804 45

8805 45

8813 45

8833 10

8966 4

940. 36

941. 36

972. 30

SS-4 40 SS-5 40 W-2 36

W-4 33, 34, 36 W-7 40

W-8 series 10 W-8BEN 10, 11 W-8BEN-E 12 W-8ECI 11, 12 W-8EXP 12 W-8IMY 12 W-9 10, 40

Forms for paying and reporting

section 1446(f)

withholding. 47

FUTA 36

G

Gambling winnings 38

Global intermediary identification number (GIIN) 21, 41

Graduated rates 38 Graduated withholding 35 Grants 25, 33, 34

Green card test 9

Guam 9

I

Identification number, taxpayer 40, 45 Important reminders 2

Income:

Fixed or determinable annual or periodical 25

Interest 27

Notional principal contract 26 Other than effectively

connected 26 Pensions 25 Personal service 24 Source of 24 Transportation 38

Income code:

1. 27

2. 28

3. 29

4. 29

6. 30

7. 30

8. 31

9. 32

10. 32

11. 32

12. 32

14. 32

15. 32

16. 33

17. 34

18. 36

19. 37

20. 38

24. 51

25. 51

26. 51

27. 45

28. 38

29. 29

30. 27

42. 38

43. 38

51. 39

Independent personal services:

Defined 34

Exempt from withholding 34 Indirect account holders 21 Installment payment 25, 44 Insurance proceeds 25 Interest:

Contingent 28

Controlled foreign

corporations 29 Deposits 29 Foreign business

arrangements 29

Foreign corporations 29

Income 27

Portfolio 27, 28

Real property mortgages 28

Intermediary:

Foreign 7

Nonqualified 7

Qualified 7, 13

International organizations 39 ITIN 40

K

Knowledge, standards of 18

L

Liability of withholding agent 3

M

Magnetic media reporting 42

Marketable securities 11

Mexico 37

Model 1 IGA 53

Model 2 IGA 53 Mortgages 28 Multi-level marketing 25

N

Non-financial foreign entity (NFFE) 53

Non-registered obligations 28 Nonparticipating FFI 53 Nonqualified intermediary:

Alternative withholding procedure 15

Page 57

Chapter 4 withholding rate pool 15

Defined 7

For chapter 3 purposes 15

For chapter 4 purposes 14

For chapter 61 purposes 15

Pooled withholding 15

Withholding statement 14

Nonresident alien:

Defined 8

Married to U.S. citizen or resident 8

Who becomes a resident alien 33

Nonwage pay 36

Notional principal contract income 26

O

Obligations:

Not in registered form 28 Registered 28

Offshore accounts 11 Original issue discount 27

Overwithholding, adjustment for 42

P

Participating FFI 12, 53 Partner, foreign 43, 45 Partnerships:

Effectively connected income of foreign partners 43

Foreign payee 5

Publicly traded 45

Withholding foreign 8, 16

Passive NFFE 53

Pay for personal services: Artists and athletes 38 Dependent personal services 36 Employees 35

Exempt from withholding 34 Independent personal

services 34

Salaries and wages 35

Scholarship or fellowship

recipient 33

Studying 38

Teaching 37

Training 38

Payee:

Charitable organizations 9

Fiscally transparent entity 6

Foreign flow-through entities 12

Foreign intermediaries 12

Foreign partnerships 5

Foreign trusts 6

Identifying 5

Nonqualified intermediary 7 Organizations and

associations 9 Private foundations 9 Qualified intermediary 7 U.S branches of foreign

persons 9

Penalties:

Deposit 41

Form 1042 43

Form 8804 45 Form 8805 45 Magnetic media 43 Trust fund recovery 36

Pensions 25, 32

Per diem 33

Personal service income 24

Pooled withholding information 15

Portfolio interest 27, 28

Presumption rules:

Corporation 23

Individual 23

Partnership 23

Trust 23

Private foundation, foreign 9 Prizes 34

Publications (See Tax help)

Puerto Rico 9, 37

Q

QI agreement 7

Qualified derivatives dealer (QDD) 53

Qualified intermediary:

Agency option 14

Collective refund procedures 14 Defined 13

Joint account treatment 14 Payee 7

Reporting on Form 1042-S 14 Responsibilities and

documentation 13

Qualified investment entity (QIE):

Distributions paid by 50 Dividends paid by 30

R

Racing purses 26

Real property interest:

Disposition of 49 Withholding certificates 51 Withholding obligation 4

Reason to know 19 Recalcitrant account holder 53

Registered deemed-compliant FFI 12, 53

Registered obligations 28

Reminders:

Central Withholding Agreement (CWA) simplified application process. 2

Reporting and paying the tax 45 Reporting Model 1 FFI 53 Reporting Model 2 FFI 53 Researchers 37

Resident alien, defined 9 Returns required 42 Royalties 32 Ryukyu Islands 30

S

Salaries 35

Saving clause 33

Scholarships 25, 33

Section 1446(f) Withholding 46

Section 1446(f)

withholding.Forms for paying

and reporting 47

Sections 1446(a) and (f)

withholding 10

Securities 26

Securities, marketable 11

Services performed outside the U.S. 36

Short-term obligation 30

Social security 37

Source of income 24

Standards of knowledge:

For chapter 3 18

For chapter 4 21

Substantial presence test 9

T

Tax help 54

Tax treaties (See Treaties)

Tax-exempt entities 39

Taxpayer identification number (TIN) 40, 45

Exceptions 40 Teachers 37 Ten-percent owners 28 Territorial limits 25

Territory financial institution 53 Totalization agreements 37

Transfers of partnership interests subject to withholding under sections 1445(e)(5) and 1446(f) . 47

Transportation income 38 Travel expenses 35 Treaties:

Claiming benefits for chapter 3 10

Dependent personal services 37 Entertainers and athletes 38 Gains 32

Independent personal services 35

Rate tables 53

Students 33, 38

Teaching 37

Trainees 38

Trust Territory of the Pacific

Islands 30

Trusts:

Foreign payee 6 Withholding foreign 8, 17

U

U.S. agent of foreign person 5

U.S. branch:

Foreign bank 8, 26

Foreign insurance company 8, 26

Foreign person 9

U.S. possession, resident of 9

U.S. real property interest

(See Real property interest)

U.S. savings bonds 30 U.S. territorial limits 25

U.S. Virgin Islands (USVI) 9 Unexpected payment 40

W

Wages:

Paid to employees 35

Pay that is not 36

What's New 1

Withholding and Reporting under sections 1446(a) and (f) starting in 2023. 1

When to withhold 3 Withhold, amount to 3 Withhold, when to 3 Withholdable payment 4, 5, 53 Withholding:

Agreements 34, 38

Certificate 19, 21

Chapter 3 3

Chapter 4 4

In general 3

On specific income 26

Rate pool 15, 53

Real property 49

Reporting and paying 45

Withholding agent 3

Liability 3

Returns required 42

Tax deposit requirements 41

Withholding exemptions and reductions:

Dependent personal services 36 Exemption 26

Final payment exemption 34 Foreign governments 39 International organizations 39 Real property interest 51 Researchers 37 Scholarships and fellowship

grants 33

Students 38

Withholding agreements 34, 38

Withholding foreign partnership (WP):

Agency option 16

Collective refund procedures 16

Joint account treatment 16

Not acting as WP 17

Withholding foreign trust (WT):

Agency option 18

Collective refund procedures 17 Joint account treatment 18 Not acting as WT 18 Reporting U.S. beneficiaries 17 Responsibilities of 17

Withholding on transfers of non-PTP interests. Exceptions to 46

Withholding under sections

1445(e)(5) and

1446(f) .Transfers of

partnership interests subject

to 47

Page 58Publication 515 (2023)

IRS Releases Publication 515 (2023), Withholding of Tax on Nonresident Aliens and Foreign Entities