On 9 and 10 June, the 28th Annual Forum on International Tax Withholding & Information Reporting, generally referred to as the Executive Enterprise Institute or EEI Conference, took place in New York. This year’s EEI Conference consisted of eleven panels, ranging across the multiple U.S. withholding and reporting regimes as well as targeted updates on the Department of Justice’s investigations into an array of tax-related activities. Panelists included representatives from industry (primarily, large custodial banks with U.S. operations), professional tax advisors and software vendors as well as IRS officials.
Highlights from the event are set forth below, segmented by topic.
IRS Forms and Publications
- Revised Form W-BEN-E: The IRS clarified that the revised Form will not become mandatory until 1 November (and that date may be deferred as well). Accordingly, they indicated that the new sections (notably, the new Limitation on Benefits section) need not be validated until that date. Versions of the new Form submitted prior to that date need only be validated for fields and sections on the expiring version of the Form. The IRS representatives also indicated that the treaty statements under the new QI Agreement (see below) would include similar sections.
- New QI Agreement: The release of the new Qualified Intermediary (QI) Agreement is imminent. In addition to detailing the mechanics of withholding for 871(m) (see below for further specifics), it will set forth more prescriptive rules around the QI “audit” requirements.
- Revised Form W-8IMY: An updated version of the Form W-8IMY (along with accompanying instructions) will be released in the near team with the foremost purpose of modifying the Form for use with 871(m) (see below for further specifics).
- Sponsoring guidance: The IRS will prepare a set of guidance for sponsoring entities, covering, inter alia, the sponsor RO certification process and default implications for both the sponsored and sponsoring entities.
- 2014 Form 8966 and Model 1 equivalent reports: All reports submitted for tax year 2014 were validated for formatting purposes and prepared for content review, but not yet reviewed for content. Presumably, therefore, Reporting Financial Institutions (FIs) may still be subject to follow-up questions and group administrative requests for account information submitted last year.
- De-registered GIINs: Where an entity is liquidated or otherwise dissolved, it must de-register on the IRS FATCA Portal, thereby decommissioning its Global Intermediary Identification Number (GIIN) for purposes of self-certification. The IRS, however, maintains an historical archive of GIINs so that any de-registered Reporting FIs with residual reporting obligations may still submit a Form 8966 using their GIIN. Whether Model 1 IGA jurisdictions allow for reporting under historical GIINs is, according to the IRS officials, a matter for the local competent authority and ought to be discussed with them.
- Deemed active IGAs: Jurisdictions with an intergovernmental agreement (IGA) agreed in substance will continue to be treated as having an active IGA so long as the jurisdiction continues to take positive steps towards the signing of an IGA.
- Reporting schema: A representative from the IRS IT team asserted that the IRS works with peers from the relevant OECD team to ensure harmonization between the FATCA reporting schema and the one used for the OECD Common Reporting Standard (CRS).
- In light of the on-going U.S. absence from the OECD CRS regime, the EEI Conference devoted less time to the topic then would a similarly-situated non-U.S. event.
- However, one panel focused on the current hot topics in the area, addressing such issues as the treatment of the U.S. as a Participating Jurisdiction via inclusion on white lists, alternative Financial Account identification and documentation techniques and the vibrant concerns around data security that dominate many OECD CRS discussions.
- No extension is currently under consideration for any parts of the 871(m) regulations, but few attendees seemed to believe that the industry could develop widespread compliance by 1 January 2017.
- QDD status: The forthcoming QI Agreement will detail the role and mechanics of the Qualified Derivatives Dealer (QDD) status. From IRS comments around the topic, a clearer picture emerged of the IRS’s conception of the role as one that straddles the hedge side of a derivative product and the investor or product side. Thus, it seems that the revised Form W-8IMY role will permit a QDD to document itself to its hedge parties and, in return for withholding on the investor side, receive gross payments on any dividend or dividend equivalent payments that will be offset by subsequent payments on in-scope derivative products. In exchange for this advantageous treatment, the QDD will be subject to IRS oversight to ensure proper and timely withholding (including self-withholding in the case of, say, an over-hedge with no offsetting payment), the correct Form 1042-S reporting and compliance with the maintenance and certification obligations of the status.
- Combination rules: The combination transaction rules elicited the fiercest questioning from Conference attendees, but unfortunately, as the specific branch of the IRS that drafted the 871(m) regulations did not attend the panels, complete and satisfying answers were not always forthcoming. Topics of concern included the correct standard of knowledge to apply, the definition of an account in respect of the presumption rules available to short party broker/dealers and the proper delta to use in the withholding calculation following a payment on a product subject to the combination transaction rules.
Many questions were settled at the EEI Conference this year; many emerged from it. As one co-organizer of the event noted, at the first event, no one anticipated a need for nearly three decades’ worth of follow-up events. However, the QI Regime and its withholding and reporting offspring continue to multiply, breeding more regimes and novel complexities and, thus, unless the rules and operations around these regimes suddenly become simple, the next EEI Conference will take place this winter in New York, as scheduled.