The IRS has recently announced a number of changes related to identification requirements impacting Qualified Intermediaries (QIs). This blog is the first of a two-part series and describes how the current design of the Secure Access Account (SAA), and in particular the request to provide a US Tax identification number to validate the QI’s Responsible Officials identity, would impair the QIs’ capabilities to comply with their electronic reporting obligations through FIRE. The second part of this series, covering QI’s new due diligence challenges linked to their non-US account holders’ US Tax identification number requirement for 1446(a) and 1446(f) purposes, will follow in a separate blog.
On 26 July 2021 the IRS announced (IRS release available here) it is substantially transforming the existing application procedure for Filing Information Returns Electronically (FIRE) transitioning from Form 4419 to the Information Returns (IR) Application system to obtain the Transmitter Control Code (TCC) required to file electronically via FIRE.
This transformation is particularly relevant for QIs since they have no other option than filing Forms 1042-S (and sometimes Forms 1099) electronically via FIRE.
Currently, the planned changes are not fit for most QIs. Specifically, the system preliminary requires QI’s Responsible Officials to validate their identify through a SAA, unfortunately designed for individuals with US tax filing requirements.
Luckily this transition is happening progressively and thus most QIs are not yet impacted provided that prior to August 2022 they ensure that the identifying information (legal business name, mailing address, and/or contact information) associated with their active TCC received before 26 September 2021 is current and correct to log into the FIRE System.
We recommend that QIs immediately validate that the information the IRS has on file is current and correct. If changes are needed, QIs should use paper Form 4419 (Rev. 9-2021) to update this information given that as of 2 August 2022, the IRS will discontinue the paper form process to transition to the IR TCC application system to make such changes. As of this date the complex issues of gaining access to the new system will be a reality for QIs with the risk of being shut out of FIRE if their legal business name is incorrect (e.g., spelling, abbreviations, special characters and spacing do not match the IRS records).
New FIRE users
As of 26 September 2021, new FIRE users can no longer make use of paper and fill-in versions of Form 4419 to request an original TCC, the five-digit number required to file electronic returns through FIRE. Instead, they need to use the new online IR Application for TCC. Additionally, in order to access the IR Application for TCC, new FIRE users are firstly required to verify their identity by creating a Secure Access Account (SAA) to improve security features and thus protect from fraudulent access.
Since at least two Responsible Officials need to be listed on the IR Application for TCC, both persons need to create their own respective SAA.
The IR Application for TCC currently foresees that users need to provide the following information amongst other to create an SAA:
- The user’s Social Security number (SSN) or Individual Tax Identification Number (ITIN);
- The user’s tax filing status and mailing address from the most recently filed tax return;
- A financial account number linked to the user from one of these account (last eight digits of Visa, Mastercard or Discover Credit Card, Student loan, Mortgage or home equity loan, Home equity line of credit, or Auto loan); and
- A US-based cell phone in the name of the user (for faster registration) or a mailing address where the user can receive an activation code by mail.
Existing FIRE users
Existing FIRE users (i.e., those who submitted their TCC Application prior to 26 September 2021) were originally scheduled to transition to the IR Application for TCC in Fall 2022.
However, on 16 June 2022, the IRS granted existing FIRE users more time to transition to the new system (IRS release available here). Those existing TCCs will remain active until 1 August 2023. After that date, any FIRE TCC that does not have a completed IR Application for TCC will be dropped and will no longer be available for e-filing. Accordingly, existing FIRE users will need to validate their identity via the SAA, log in to IR application for TCC and complete the online application between September 2022 and 1 August 2023.
Existing FIRE users, not yet transitioning to the IR Application, are currently allowed to use paper Form 4419 (Rev. 9-2021) to revise identifying information (legal business name, mailing address, and/or contact information) associated with an active TCC received before 26 September 2021.
However, paper Form 4419 will be discontinued as of 2 August (IRS release available here) to transition to the IR Application for TCC also for purpose of revising existing TCC information. Therefore, prior to August 2022, existing FIRE users will need to ensure that the information on their application (submitted via Form 4419) contains the current contact’s name, current email address and current telephone number and verify that the company’s current legal business name is correct (spelling, abbreviations, special characters and spacing) to match the IRS records. If any information needs to be updated, the changes through Form 4419 need to be received by the IRS by 1 August 2022. Notably, as certain QIs have already started experiencing, an incorrect legal business name will trigger the inability to file information returns electronically via FIRE.
QIs may risk being unable to create an SAA and consequently left out of FIRE
As mentioned above, the setup of an SAA, currently foreseen by the IR Application for TCC, requires either an SSN or an ITIN.
- At its most basic level, an SSN is used by US citizens and authorized noncitizen residents (i.e., noncitizens authorized to work in the US).
- An ITIN is a tax processing number issued by the IRS to individuals who are required to have a US taxpayer identification number but who do not have and are not eligible to obtain an SSN from the Social Security Administration. In general individuals must have a filing requirement and file a valid federal income tax return to receive an ITIN unless they meet an exception. However, a specific exception applies for a non-US representative of a foreign corporation who needs to obtain an ITIN for the purpose of meeting e-filing requirements.
Since employees of QIs generally do not have a connection to the United States, other than working at a bank that holds US securities, they cannot apply for an SSN. However, based on the above-mentioned exception, they can apply for an ITIN.
Accordingly, some QIs have already asked certain of their non-US employees to apply for an ITIN via Form W-7 to create an SAA to be able to obtain a TCC via the IR Application to continue to use FIRE.
Unfortunately, this appears to not yet be sufficient to ensure the creation of an SAA. Although the instructions for Form W-7 allow to apply for an ITIN for e-filing purposes absent a US filing requirement, the SAA presumes a US filing requirement and consequently asks for the user’s tax filing status. This misalignment results in an insurmountable obstacle for most QI’s employees unable to create their SAA. As a result, QIs cannot obtain the required new TCC.
What are the alternatives?
The IRS, through its Frequently Asked Questions about the IR Application for TCC originally envisaged two options:
- Enlist a third party to file on their behalf; or
- Purchase a software package to support their electronic filing.
An IRS representative, speaking at the last Kaplan Financial Education tax conference in June 2022, indicated that the FAQ was revised to no longer refer to option 2 above, leaving as sole alternative option 1.
Although option 1 is technically possible, QIs face many issues to put in place the necessary infrastructure to enable it to outsource this activity to a 3rd party in light of client confidentiality (e.g., the case of Form 1099 or nominative Form 1042-S reporting).
At the same conference, the IRS indicated it is aware of the implementation issues that non-US filers are facing and that “this is actively being worked and considered”. The IRS representative encouraged stakeholders to bring forward alternatives and provide comments to notify the Service of concrete examples of the challenges that non-US filers are facing.
Although SAA is today a limited problem for QIs that are existing FIRE users, given they still have more than a year to transition to the new IR TCC application, they immediately need to check that the information associated with their current TCC is correct. If this is not the case, QIs need to make sure that the IRS receives the corrected legal business name via Form 4419 by 1 August 2022 at the latest to avoid being shut out of the FIRE system (after this date, revising the information associated with a TCC will only be possible through the IR TCC application system with the current SAA issues described above).
QIs that are existing FIRE users having submitted their TCC Application prior to 26 September 2021, will meanwhile also face the aforementioned SAA issues in case they need an additional TCC or to add a new Form Type. This is because in both circumstances the completion of the IR Application for TCC is required.
Although Deloitte recognizes the need to strengthen validation controls to protect against unauthorized filing and input of fraudulent information returns, it is clear that SAA, as currently designed, does not work for QIs.
- QI’s Responsible Officials don’t generally have US tax filing requirements, and as such are unable to populate the user’s tax filing status necessary to go through SAA.
- At the same time, since non-US applicants will generally not have a US-based mobile phone, requesting them to provide, at SAA set-up, an international postal mail to receive a one-time code that is only valid for 30 days appears an inappropriate way of communication; experience shows that IRS mail is sometimes received by QIs after 30-days of issuance.
- It is unclear whether it is feasible for non-US applicants to provide the required information pertaining to a financial account or whether such account must be one maintained in the US linked to their name.
Therefore, we encourage the IRS to make the SAA process accessible to QIs and more broadly to non-US filers. For this purpose, we would suggest keeping the ITIN requirement consistent with the instructions for Form W-7, while eliminating the need to provide the user’s tax filing status. Moreover, we propose to allow non-US applicants to access the SAA without requesting any financial information and giving the option to provide a non-US phone number or a non-US e-mail address to receive the one-time code through the SAA process.
There are clearly several obstacles to overcome in order for QIs to have the required access to fulfil their reporting obligations as of August 2023. However, it is quite clear that obtaining an ITIN (which usually takes a few months) will be most likely one of the steps of the transition process. Deloitte, as Certifying Acceptance Agent (CAA), can assist and simplify the ITIN application procedure in the following ways:
- Support with the completion of Form W-7
- Review and authenticate the applicant’s passport to verify his/her identity and foreign status
- Submit to the IRS the completed Form W-7 together with a copy of the applicant’s passport; and
- Directly receive the applicant’s ITIN from IRS
If you would like to discuss more on this topic, please do reach out to one of the key contacts below: