W-8 BEN, EB-5 & Visa-Holder Tax Withholding Exemptions – FATCA Lawyers
If you are a foreign person, Non-U.S. Citizen or Non-Legal Permanent Resident and you have passive earnings in the United States (otherwise known as FDAP – Fixed, Determinable, Annual, Periodical) and file an W-8 BEN you may be able to claim treaty benefits or meet the portfolio exception and avoid a 30% withholding of your earnings by the withholding agent.
A W-8 BEN is a Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding and it should be filed by all Non-U.S. Citizens or Non-Legal Permanent Residents who may have passive income being withheld by a withholding agent. For example, if you are a foreign investor in an EB-5 regional center then you may be able to reduce the 30% withholding requirement by the regional center by providing the center with the W-8.
In accordance with the terms of the W-8 BEN, if you can show that you are the beneficial recipient of the money and/or qualified or treaty benefits under a particular tax treatment then you may be able to avoid the 30% withholding. In other words, by submitting this form you are essentially claiming treaty benefits or beneficial ownership of the money and under the particular treaty your country has with the United States and/or qualify for a general portfolio interest exception — you may be able to reduce the withholding to zero.
Substantial Presence Test
If you are a non EB-5 investor and have a different type of visa and otherwise qualify for the Substantial Presence Test, then you will have the responsibility to submit a W9 instead of a W8 and therefore reduce the withholding requirements if not eliminate them completely for the withholding agent/bank/financial institution. On the one hand, by intentionally or inadvertently meeting the substantial presence test you have now become subject to tax by the United States on your worldwide income, — but on the other hand it will reduce the automatic 30% withholding requirement by withholding agents of your passive income.
FATCA and Withholding
Under FATCA (Foreign Account Tax Compliance Act) many EB-5 Regional Centers are even more concerned about withholding requirements (Since it is the Regional Center who will be held at fault). Therefore unless the investor provides the necessary documentation, the Regional Center (withholding agent) is going to withhold the full amount of the 30% – which is usually way more withholding than the investor would otherwise be required to pay tax.
Thereafter, the investor is going to have to go through a more complicated process to try to obtain a refund for the amount of money those withheld – which money exceeds the investor’s tax liability. It is important that all foreign investors, as well as legal permanent residents and visa holders subject to the substantial presence test understand the very basics of FATCA.
Below please find a very brief summary of FATCA for individuals as provided by Golding & Golding:
FATCA is the Foreign Account Tax Compliance Act. It is an IRS International Tax Law that is designed to reduce offshore tax evasion and tax fraud. FATCA requires U.S. Taxpayers to disclose unreported foreign bank accounts, foreign financial accounts, and foreign income to the IRS; otherwise the Taxpayer can be subject to extremely high fines, penalties, and outstanding tax liabilities.
Unfortunately, most people only learn of FATCA when they receive a letter (“FATCA Letter”) from their foreign bank or foreign financial institution requiring the U.S. Taxpayer to show proof that they are in FATCA compliance.
Accounts subject to FATCA compliance include:
• Foreign Bank Accounts
• Foreign Savings Accounts
• Foreign Investment Accounts
• Foreign Securities Accounts
• Foreign Mutual Funds
• Foreign Trusts
• Foreign Retirement Plans
• Foreign Business and/or Corporate Accounts
• Insurance Policies
• Foreign Accounts held in a CFC (Controlled Foreign Corporation); or
• Foreign Accounts held in a PFIC (Passive Foreign Investment Company)
If the Taxpayer cannot show proof that they have complied with FATCA, the bank or foreign financial institution will freeze or even forfeit the foreign accounts.
I Have Overseas Accounts and Income, Now What?
To make matters worse, you or your friend probably conducted some quick online research and gathered enough misinformation to:
- Assume that the IRS and Department of Treasury will be kicking in your door at any minute to interrogate you;
- Resign yourself to the fact that your only options are either doing a hard 20 in federal prison, or escaping into the middle of the night under a cloak of darkness and assuming a new identity; or
- Contact CPAs, enrolled agents, or inexperienced international tax attorneys (or any inexperienced attorney) who use fear and scare tactics in an attempt to sell you.
Under FATCA, Does the IRS Want to Arrest and Prosecute People?
As one of the few small international tax law firms in the country that has represented numerous taxpayers in both the offshore voluntary disclosure program (OVDP) and newly implemented modified streamlined program in the United States and overseas, we can tell you that there is almost nothing to be afraid of. The purpose of these international tax law programs is to “generate revenue” for the United States.
The IRS accomplishes this by mandating individuals who have not otherwise complied with US tax law involving overseas and foreign accounts to either enter one of the voluntary disclosure programs or risk facing significant monetary penalties and possible prison time for noncompliance (which can be resolved by entering one of these programs).
The Basics of FATCA, OVDP, and the “Streamlined” Program?
In an effort to try to ease your concerns, Golding & Golding put together a very basic FAQ list to try to clear up the misinformation you will find online:
What Does “Willful” Mean?
There is no specific definition for the term “willful”; rather, it is simply a fact-based test (aka “Totality of the Circumstances”). At its core, the IRS wants to know whether you knew you were responsible for filing these taxes and disclosing this information about your foreign accounts.
- Based on a whole set of background facts, including: whether you are a US citizen (even if you reside overseas), US resident, how long you have been residing in the US, do you still reside in the US, did you file your taxes yourself, if you used a tax professional – did he or she ask you about your foreign accounts, and other type of background questions will determine whether you were willful or not.
If I Happened to be Willful, Can I Still Enter One of These Programs?
Yes, and this is where the misinformation online begins. Whether or not you were willful is not the threshold question to determine whether you can enter into one of these disclosure programs. Rather, willful will determine which program you are entitled to enter. If you are not willful, you may enter the streamlined program and have your penalties reduced to 5% or possibly completely eliminated depending on your country of residence and how long you resided overseas – if it all.
- If you were willful, then you should enter the traditional OVDP and pay the 27.5% penalty or 50% (if any of your money was being maintained at one of the IRS’s “Bad Banks”). That is because as long as you are truthful (read: full compliance) in your disclosure, you will usually not be subject to criminal liability. The modified streamlined program generally takes the place of the previous mechanism which was entering into the traditional OVDP and then “opting out” of the penalty, in order to risk audit.
- The problem with “opting out” was that for individuals who were not willful, it is a very heavy burden to bear in terms of the paperwork that was required as well as penalties on taxes, which seemed highly unfair (20% tax on overdue income). Thus, for the non-willful individuals who would have ordinarily opted out of the traditional OVDP, the IRS modified the prior streamlined program — which was previously much more limited in scope.
What is The Difference Between OVDP and The IRS Streamlined Program?
In a nutshell, the traditional OVDP is for individuals who knowingly or otherwise were aware of the requirement of filing and disclosing offshore and foreign assets and tax information but chose not to. On the other hand, if an individual was unaware of the requirement to disclose or otherwise file tax information for their overseas and foreign offshore accounts, then there was no intent and thus, generally no finding of ‘willfulness’.
What Does It Mean To Not Comply With FATCA?
FATCA Is the Foreign Account Tax Compliance Act, which is an act designed to promote and facilitate international tax compliance in accordance with US tax law. As to individuals and businesses, there are specific withholding requirements when submitting payment to US tax persons and/or foreign individuals when the tax income and tax source is foreign.
- In addition, there are certain reporting requirements involving forms such as the 8938 and FBAR (FinCEN 114). The breadth of FATCA is well beyond the scope of this basic FAQ article, but for the average ordinary citizen, it just means complying with IRS international tax law.
When Will These Programs Disappear?
Your guess is as good as mine. There is no way of knowing if or when the IRS will discontinue these offshore voluntary disclosure programs. But, it is important to keep in mind that the IRS can discontinue these programs at any time and they can increase the penalty at any time.
- Moreover, word on the “tax street” is that because so many individuals who were willful are attempting to evade the larger penalty by entering into the streamlined program, the IRS is going to either increase scrutiny, withdraw the program, or increase the penalty for the modified streamlined program.
Why Hire an Experienced International Tax Law Attorney?
While either a tax attorney, CPA, or enrolled agent is licensed to enter individuals into these programs, a person must select an Attorney in order to get the most protection, including the attorney-client privilege (which is only afforded to clients who are represented by their attorneys). What is important to keep in mind is that only an attorney can provide you protection if the IRS Special Agents want to investigate you for potential criminal prosecution.
- Moreover, while many enrolled agents and CPAs are experienced in preparing tax returns and otherwise have some tax knowledge, they do not have the experience in handling sophisticated negotiations with the IRS involving complex areas of law such as FATCA, OVDP, and related matters.
- Finally, while there is a limited privilege in using an enrolled agent or CPA, there is no attorney client privilege between a CPA and/or enrolled agent and the client. Your CPA or EA (unless they are also an attorney) could be called to testify against you.
Sean holds a Master's in Tax Law from one of the top Tax LL.M. programs in the country at the University of Denver, and has also earned the prestigious Enrolled Agent credential. Mr. Golding is also a Board Certified Tax Law Specialist Attorney (A designation earned by Less than 1% of Attorneys nationwide.)