NRA withholding for payments to Foreign vendors

Question

Hi
I would like to discuss with configurators from other US companies as to how they have implemented NRA withholding.
In particular, how they handle varying tax rates for certain countries under tax treaties.
Thanks
Deepa

Answer 1

How to determine the amount to be withheld
Question 16:  If a payment to a foreign person (foreign vendor) is determined to be FDAP and U.S. sourced, how much should be withheld?
Answer 16:  The statutory withholding rate is generally 30%.  This rate should be generally applied to the gross amount of the payment. See Q&A-19 below concerning this rate.
Question 17:  When should the tax is withheld?
Answer 17:  Withholding is required at the time that the payment is made.  A payment is considered to be made when the beneficial owner of the payment realizes income.  There does not need to be a transfer of cash or other property.
Question 18:  When should the tax withheld be deposited?
Answer 18:  The amount of tax that the US withholding agent and is required to withhold determines the frequency of the deposits.  The frequency could be annual, monthly, or quarter-monthly.  Publication 515 details the specific rules for making deposits including the deposit due dates, which forms to use, electronic deposit requirements and penalties for failure to make deposits timely.
Question 19:  Can the statutory rate (30%) be reduced?
Answer 19:  If the foreign vendor is a resident in a country that has a tax treaty with the United States, the rate may be reduced.  Each treaty has specific provisions which determine the reduced withholding rate.  These provisions reduce the withholding rate based on the type of income and the status of the recipient.
Question 20:  Is there a listing of treaties and rates to be applied?
Answer 20:  Publication 515 provides a listing of tax treaties and the withholding tax rates to be applied to various types of income under each treaty. The Publication 515 is located on the IRS website which is www.irs.gov.
Question 21:  How can a foreign vendor certify its foreign status?
Answer 21:  The foreign vendor must provide the withholding agent with form
a properly completed W-8 or Form 8233 (see FAQ section 5 for further information).
5.  How should the withholding agent properly document the foreign status or treaty claim of a foreign person
Question 22:  Must we obtain documentation from a foreign person to support its claim of foreign status or treaty eligibility?
Answer 22:  In order to reduce the amount that is required to be withheld on a payment of U.S. sourced FDAP income to a foreign person (foreign vendor), or to exempt such a payment from withholding tax, the withholding agent must have documentation from the foreign vendor to certify its non-U.S. status and, if applicable, its eligibility for the treaty benefits claimed.  Such documentation must be submitted by the foreign vendor in the form of a Form W8-IMY Form W-8 or Form 8233.
Question 23:  Which forms would be most commonly used by foreign vendors?
Answer 23:  Form W-8BEN (Beneficial Owner), Form W-8IMY (Intermediary), Form W-8ECI (Effectively Connected Income) and Form 8233.
Question 24:  When should Form W-8BEN be used by foreign vendors?
Answer 24:  Form W-8BEN should be used by the foreign vendor to certify that it has non-U.S. status. If a treaty claim is made by the vendor Part II of the
W-8BEN must be completed to be eligible for the treaty benefits.
Question 25:  When should Form W-8ECI be used by our foreign vendors?
Answer 25:  Form W-8ECI should be used by a foreign vendor to certify that the payment is income that is effectively connected with a U.S. trade or business.  No withholding is required on such income.  Rather, such income must be on some cases, a W8-BEN can be provided by a U.S. Branchu2019s income tax.
Question 26:  When should Form 8233 be completed by a foreign vendor?
Answer 26:  If you make a payment to a non-resident alien individual as compensation for personal services performed for you in the United States, that individual may have to provide you with Form 8233 instead of Form W-8.  See   Form 8233 and its instructions for further information.
Question 27:  Are we responsible for the validity of the documentation presented to us by the foreign vendor?
Answer 27:  In order to rely on the documentation, it must be valid.  In order to be valid, the documentation must meet the requirements of Treasury Regulation 1.1441 and must be completed in accordance with the applicable Form instructions (see Instructions for the Requester of Forms W-8BEN, W-8ECI, W-8EXP and W-8IMY).
In addition, in order for the documentation to be valid, the US withholding agent or multi-national must not know, or have reason to know, that the information provided on the documentation is unreliable or incorrect.  If the US withholding agent (multi-national) has such knowledge, or if the documentation is invalid for any reason, the withholding agent must apply the presumption rules set forth in Treasury Regulation Section 1.1441, 1.
Question 28:  When should the Form W-8 or Form 8233 be obtained from the foreign vendor?
Answer 28:  In general, the documentation must be in the possession of the withholding agent at the time of payment.
6. How to report NRA payments and withholding
Question 29:  What forms should we use to report payments to foreign persons (foreign vendors) of FDAP income that is U.S. sourced and any amounts withheld on such payments?
Answer 29:  Forms 1042, 1042-S and 1042-T are the forms that a withholding agent (multi-national) must use to report payments to foreign persons of FDAP income that is U.S. sourced and any amounts withheld on such payments.
Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons should be submitted to the IRS in order to report the total aggregate NRA payments, withholdings and deposits made by the withholding agent during the applicable year.
Form 1042-S, Foreign Personu2019s U.S. Source Income subject to Withholding is an information return.  The withholding agent should submit these information returns to the IRS and the payee in order to report the payments and withholdings made during the year that are specific to the payee, the type of income paid and the withholding rate. Form 1042-T, Annual Summary and Transmittal of Forms 1042-S should be used to transmit paper Forms 1042-S to the IRS.
7. What to expect from an IRS audit regarding NRA reporting and withholding responsibilities
Question 30:  If upon audit, it is determined that there has been under reporting and under withholding, will the IRS assess penalties and interest in addition to the under withholding amounts due?
Answer 30:  If deficiencies in reporting, withholding and depositing with regard to NRA payments are found on audit, the IRS will consider all applicable penalties, including, but not limited to the following:
Failure to file (IRC Section 6651)
Failure to pay (IRC Section 6651)
Failure to deposit (IRC Section 6656)
Failure to file information returns (IRC Sections 6721-6723)
Negligence (IRC Section 6662)
In addition, interest will be assessed on the under withholding.
Question 31:  If upon audit, it is determined that there has been under withholding, on account of a failure to document any vendors, as described above what recourse does the withholding agent have in order to reduce the under withholding?
Answer 31:  The withholding agent can obtain certification of foreign status and the treaty claim from the foreign vendor.  This is accomplished by the vendor completing a valid Form W-8.  A valid Form W-8 will allow a reduction in the under withholding from the 30% statutory rate for the type of income paid.
Since the documentation is being obtained after the payment is made, the foreign vendor should provide an additional statement indicating that all facts and elections made on the Form W-8 were true, correct and complete at the time of the payment. Documentation other than this statement might be considered based on the facts of the particular case.
Question 32:  If the under withholding has been u201Ccuredu201D by obtaining a
Form W-8 or other applicable documentation after a payment, according to
Q&A-31 above and such documentation is found sufficient is there any remaining liability to the withholding agent?
Answer 32:  In general, there is no remaining liability for tax, interest and penalties. Exceptions to this apply in case in which the withholding agent is relieved from the tax liability by showing that the underwithholding tax was paid by the payee.  In those cases, the withholding agent may still be liable for interest and applicable penalties.  In other cases, reporting-related penalties might still apply where no underwithholding results on account of the cure, but the filed Form 1042-S reflected incorrect information.