NOTES ON RECENT NEWS AND TAX GUIDANCE
Supplemental instructions issued as “Updated Information for Form W-8BEN-E” to conform
to January 2017 final and temporary regulations
Updated information for Form W-8BEN-E has been published as a cover sheet to the current
W-8BEN-E form as it is found on the IRS website at https://www.irs.gov/pub/irs-pdf/fw8bene.pdf. This
supplements and updates the existing Instructions to conform to the January 2017 final and temporary
regulations under IRC chapters 3 and 4 (TD 9808 for chapter 3 and coordinating regulations; TD 9809
for FATCA regulations). The following are summaries or truncations; use the link above to obtain the
Foreign TIN requirement: A foreign entity’s explanation of why it hasn’t been issued a TIN by its
country of tax residence may be either written in the margins of the form or provided to the withholding
agent on a separate sheet attached to the form.
Electronic signatures: Many withholding agents are aware that the January 2017 regulations
included an allowance for electronically signed withholding certificates, but it’s necessary to consult the
regs for details. You might be presented with something which your payee considers an electronic
signature but doesn’t actually satisfy the requirements of Reg. sec. 1.1441-1T(e)(4)(i)(B) including the
referenced paragraph (e)(4)(iv)(B)(3)(ii).
Sponsored entities that must have their own GIINs: Beginning January 1, 2017, a sponsored FFI
that is a registered deemed-compliant FFI, or a sponsored direct reporting NFFE, is required to have
obtained its own GIIN. The number is reported on line 9a of Form W-8BEN-E.
Disregard Form W-8BEN-E’s reference to limited FFIs: The status “limited FFI” and “limited
branch” expired December 31, 2016.
Investment entities that do not maintain financial accounts: The January final regulations initiated
use of the status “certain investment entities that do not maintain financial accounts” for what was
previously termed “certified deemed-compliant investment advisors and investment managers” but the
substantive requirements for qualification for this status are the same now, as under the previous
New de minimis threshold for filing corrected Forms 1099
In IRS Notice 2017-9 the IRS has established its administrative plans for implementing the changes
made by the PATH Act regarding the de minimis error safe harbor from information reporting penalties
under IRC sections 6721 and 6722 as well as any payee election (also provided for in the new law) to
override the payer’s safe harbor. The IRS has plans to ultimately issue regulations, and to the extent
the regulations incorporate the rules contained in this notice, the regulations will be effective for
returns required to be filed, and payee statements required to be furnished, after December 31, 2016.
Under the safe harbor, an error on an information return or payee statement is not required to be
corrected, and no penalty is imposed, if the error relates to an incorrect dollar amount and the error
differs from the correct amount by no more than $100 ($25 in the case of an error with respect to an
amount of tax withheld). However, new IRC sec. 6722(c)(3)(B) provides that the safe harbor does not
apply to any payee statement if the payee makes an election that the safe harbor not apply; the
election to be made at such time and in such manner as the Secretary may prescribe. Section 6721(c)
(3)(B) provides that the safe harbor does not apply with respect to any incorrect dollar amount to the
extent that such an error on an information return relates to an amount with respect to which a payee
election is made under section 6722(c)(3)(B). Accordingly, if an election is in effect, a payer may be
subject to penalties for an incorrect dollar amount appearing on an information return or payee
statement even if the incorrect amount is a de minimis error.
Notice 2017-9 addresses the method for a payee to make such an election and also clarifies that
the de minimis error safe harbor does not apply in the case of an intentional error or if a payer fails
altogether to file an information return or furnish a payee statement.
ITINs. Notice 2016-48 provides guidance for the new ITIN process dictated by the PATH Act,
including no incorrect-TIN penalty if an expired ITIN used on an information return.
Significant changes in the use and issuance of ITINs were enacted by Congress in the December 2015
PATH Act, including the expiration of ITINs. Some ITINs expired December 31, 2016. An ITIN
(Individual Taxpayer Identification Number) is a nine-digit number assigned by the IRS to an individual
who is required to have a U.S. tax identification number for U.S. tax purposes but does not have and
does not qualify to be issued a social security number.
No incorrect-TIN penalties for expired ITINs: Filers of information returns (including the 1099 and
1098 series and Form 1042-S) who file and furnish information returns with an expired payee ITIN will
not be subject to information return penalties under IRC sections 6721 or 6722 solely because the ITIN
is expired. ITINs may continue to be used for information return purposes regardless of whether they
have expired for individual income tax return filing purposes. This is a relief to members of the
information reporting community who were wondering how they could be expected to track and code
for ITIN expiration. And, an individual whose expired ITIN is used only on information returns filed and
furnished by third parties is not required to renew the ITIN unless the person is also required to file a
U.S. tax return.
COKALA Tax Information
Reporting Solutions, LLC
|COKALA Tax Information Reporting Solutions, LLC - telephone 734.629.5155
PO Box 2224, Ann Arbor MI 48105-2224 - fax 734.428.0702