General Instructions
Note:
For definitions of terms used throughout these instructions,
see Definitions on pages 2 and 3.
Purpose of form.
Foreign persons are subject to U.S. tax at a 30% rate on income
they receive from U.S. sources that consists of interest (including
certain original issue discount (OID)), dividends, rents, premiums,
annuities, compensation for, or in expectation of, services performed,
or other fixed or determinable annual or periodical gains, profits, or
income. This tax is imposed on the gross amount paid and is generally
collected by withholding on that amount. A payment is considered to
have been made whether it is made directly to the beneficial owner or
to another person for the benefit of the beneficial owner.
If you receive certain types of income, you must provide Form
W-8EXP to:
- Establish that you are not a U.S. person,
- Claim that you are the beneficial owner of the income for
which Form W-8EXP is given, and
- Claim a reduced rate of, or exemption from, withholding as a
foreign government, international organization, foreign central bank
of issue, foreign tax-exempt organization, foreign private foundation,
or government of a U.S. possession.
In general, payments to a foreign government (including a foreign
central bank of issue wholly-owned by a foreign sovereign) from
investments in the United States in stocks, bonds, other domestic
securities, financial instruments held in the execution of
governmental financial or monetary policy, and interest on deposits in
banks in the United States are exempt from tax under section 892 and
exempt from withholding under sections 1441 and 1442. Payments other
than those described above, including income derived in the U.S. from
the conduct of a commercial activity, income received from a
controlled commercial entity (including gain from the disposition of
any interest in a controlled commercial entity), and income received
by a controlled commercial entity, do not qualify for exemption from
tax under section 892 or exemption from withholding under sections
1441 and 1442. See Temporary Regulations section 1.892-3T. In
addition, certain distributions to a foreign government from a real
estate investment trust (REIT) may not be eligible for relief from
withholding and may be subject to withholding at 35% of the gain
realized. For the definition of commercial activities, see
Temporary Regulations section 1.892-4T.
In general, payments to an international organization from
investment in the United States in stocks, bonds and other domestic
securities, interest on deposits in banks in the United States, and
payments from any other source within the United States are exempt
from tax under section 892 and exempt from withholding under sections
1441 and 1442. See Temporary Regulations section 1.892-6T. Payments to
a foreign central bank of issue (whether or not wholly owned by a
foreign sovereign) or to the Bank for International Settlements from
obligations of the United States or of any agency or instrumentality
thereof, or from interest on deposits with persons carrying on the
banking business, are also generally exempt from tax under section 895
and exempt from withholding under sections 1441 and 1442. In addition,
payments to a foreign central bank of issue from bankers' acceptances
are exempt from tax under section 871(i)(2)(C) and exempt from
withholding under sections 1441 and 1442.
Payments to a foreign tax-exempt organization of certain types of
U.S. source income are also generally exempt from tax and exempt from
withholding. Gross investment income of a foreign private foundation,
however, is subject to withholding under section 1443(b) at a rate of
4%.
Payments to a government of a possession of the United States are
generally exempt from tax and withholding under section 115(2).
To establish eligibility for exemption from 30% tax and
withholding, a foreign government, international organization, foreign
central bank of issue, foreign tax-exempt organization, foreign
private foundation, or government of a U.S. possession must provide a
Form W-8EXP to a withholding agent or payer with all necessary
documentation. The withholding agent or payer of the income may rely
on a properly completed Form W-8EXP to treat the payment associated
with the Form W-8EXP as a payment to a foreign government,
international organization, foreign central bank of issue, foreign
tax-exempt organization, foreign private foundation, or government of
a U.S. possession exempt from withholding at source (or, where
appropriate, subject to withholding at a 4% rate).
Provide Form W-8EXP to the withholding agent or payer before income
is paid or credited to you. Failure by a beneficial owner to provide a
Form W-8EXP when requested may lead to withholding at a 30% rate
(foreign-person withholding) or the backup withholding rate.
Note:
For additional information and instructions for the withholding
agent, see the Instructions for the Requester of Forms W-8BEN,
W-8ECI, W-8EXP, and W-8IMY.
Who must file.
You must give Form W-8EXP to the withholding agent or payer if you
are a foreign government, international organization, foreign central
bank of issue, foreign tax-exempt organization, foreign private
foundation, or government of a U.S. possession. Submit Form W-8EXP
whether or not you are claiming a reduced rate of, or exemption from,
U.S. tax withholding.
Do not use Form W-8EXP if:
- You are not a foreign government, international
organization, foreign central bank of issue, foreign tax-exempt
organization, foreign private foundation, or government of a U.S.
possession claiming the applicability of section 115(2), 501(c), 892,
895, or 1443(b). Instead, provide Form W-8BEN, Certificate
of Foreign Status of Beneficial Owner for United States Tax
Withholding, or Form W-8ECI, Certificate of Foreign
Person's Claim for Exemption From Withholding on Income Effectively
Connected With the Conduct of a Trade or Business in the United
States. For example, if you are a foreign tax-exempt organization
claiming a benefit under an income tax treaty, provide Form
W-8BEN.
- You are receiving income that is effectively connected with
the conduct of a trade or business in the United States. Instead,
provide Form W-8ECI.
- You are a tax-exempt organization receiving unrelated
business taxable income subject to withholding under section 1443(a).
Instead, provide Form W-8BEN or Form W-8ECI for this portion of your
income.
- You are a foreign partnership, a foreign simple trust, or a
foreign grantor trust. Instead, provide Form W-8ECI or Form
W-8IMY, Certificate of Foreign Intermediary, Foreign
Flow-Through Entity, or Certain U.S. Branches for United States Tax
Withholding.
- You are acting as an intermediary (that is, acting not for
your own account, but for the account of others as an agent, nominee,
or custodian). Instead, provide Form W-8IMY.
Giving Form W-8EXP to the withholding agent.
Do not send Form W-8EXP to the IRS. Instead, give it to
the person who is requesting it from you. Generally, this person will
be the one from whom you receive the payment or who credits your
account. Generally, a separate Form W-8EXP must be given to each
withholding agent.
Give Form W-8EXP to the person requesting it before the payment is
made to you or credited to your account. If you do not provide this
form, the withholding agent may have to withhold tax at a 30% rate
(foreign-person withholding) or the backup withholding rate. If you
receive more than one type of income from a single withholding agent,
the withholding agent may require you to submit a Form W-8EXP for each
different type of income.
Change in circumstances.
If a change in circumstances makes any information on the Form
W-8EXP you have submitted incorrect, you must notify the withholding
agent within 30 days of the change in circumstances and you must
file a new Form W-8EXP or other appropriate form.
Expiration of Form W-8EXP.
Generally, a Form W-8EXP filed without a U.S. taxpayer
identification number (TIN) will remain in effect for a period
starting on the date the form is signed and ending on the last day of
the third succeeding calendar year. However, in the case of an
integral part of a foreign government (within the meaning of Temporary
Regulations section 1.892-2T(a)(2)) or a foreign central bank of
issue, a Form W-8EXP filed without a U.S. TIN will remain in effect
until a change in circumstances makes any of the information on the
form incorrect. A Form W-8EXP furnished with a U.S. TIN will remain in
effect until a change in circumstances makes any information on the
form incorrect provided that the withholding agent reports on
Form 1042-S, Foreign Person's U.S. Source Income Subject to
Withholding, at least one payment annually to the beneficial owner.
Definitions
Beneficial owner.
For payments other than those for which a reduced rate of
withholding is claimed under an income tax treaty, the beneficial
owner of income is generally the person who is required under U.S. tax
principles to include the income in gross income on a tax return. A
person is not a beneficial owner of income, however, to the extent
that person is receiving the income as a nominee, agent, or custodian,
or to the extent the person is a conduit whose participation in a
transaction is disregarded. In the case of amounts paid that do not
constitute income, beneficial ownership is determined as if the
payment were income.
Foreign partnerships, foreign simple trusts, and foreign grantor
trusts are not the beneficial owners of income paid to the partnership
or trust. The beneficial owners of income paid to a foreign
partnership are generally the partners in the partnership, provided
that the partner is not itself a partnership, foreign simple or
grantor trust, nominee or other agent. The beneficial owners of income
paid to a foreign simple trust (that is, a foreign trust that is
described in section 651(a)) are generally the beneficiaries of the
trust, if the beneficiary is not a foreign partnership, foreign simple
or grantor trust, nominee or other agent. The beneficial owners of a
foreign grantor trust (that is, a foreign trust to the extent that all
or a portion of the income of the trust is treated as owned by the
grantor or another person under sections 671 through 679) are the
persons treated as the owners of the trust. The beneficial owners of
income paid to a foreign complex trust (that is, a foreign trust that
is not a foreign simple trust or foreign grantor trust) is the trust
itself.
The beneficial owner of income paid to a foreign estate is the
estate itself.
Foreign person.
A foreign person includes a nonresident alien individual, foreign
corporation, foreign partnership, foreign trust, foreign estate,
foreign government, international organization, foreign central bank
of issue, foreign tax-exempt organization, foreign private foundation,
or government of a U.S. possession, and any other person that is not a
U.S. person. It also includes a foreign branch or office of a U.S.
financial institution or U.S. clearing organization if the foreign
branch is a qualified intermediary. Generally, a payment to a U.S.
branch of a foreign person is a payment to a foreign person.
Foreign government.
A foreign government includes only the integral parts or controlled
entities of a foreign sovereign as defined in Temporary Regulations
section 1.892-2T.
An integral part of a foreign sovereign, in general, is
any person, body of persons, organization, agency, bureau, fund,
instrumentality, or other body, however designated, that constitutes a
governing authority of a foreign country. The net earnings of the
governing authority must be credited to its own account or to other
accounts of the foreign sovereign, with no portion benefiting any
private person.
A controlled entity of a foreign sovereign is an entity
that is separate in form from the foreign sovereign or otherwise
constitutes a separate juridical entity only if:
- It is wholly owned and controlled by the foreign sovereign
directly or indirectly through one or more controlled entities;
- It is organized under the laws of the foreign sovereign by
which it is owned;
- Its net earnings are credited to its own account or to other
accounts of the foreign sovereign, with no portion of its income
benefiting any private person; and
- Its assets vest in the foreign sovereign upon
dissolution.
A controlled entity also includes a pension trust
defined in Temporary Regulations section 1.892-2T(c) and may include a
foreign central bank of issue to the extent that it is
wholly owned by a foreign sovereign.
A foreign government must provide Form W-8EXP to establish
eligibility for exemption from withholding for payments exempt from
tax under section 892.
International organization.
An international organization is any public international
organization entitled to enjoy privileges, exemptions, and immunities
as an international organization under the International Organizations
Immunities Act (22 U.S.C. 288-288(f)). In general, to qualify as an
international organization, the United States must participate in the
organization pursuant to a treaty or under the authority of an Act of
Congress authorizing such participation.
Amounts exempt from tax under section 892.
Only a foreign government or an international organization as
defined above qualifies for exemption from taxation under section 892.
Section 892 generally excludes from gross income and exempts from U.S.
taxation income a foreign government receives from investments in the
United States in stocks, bonds, or other domestic securities;
financial instruments held in the execution of governmental financial
or monetary policy; and interest on deposits in banks in the United
States of monies belonging to the foreign government. Income of a
foreign government from sources other than those enumerated above or
that is (a) derived from the conduct of any commercial
activity, (b) received directly or indirectly from a
controlled commercial entity, or (c) derived from the
disposition of any interest in a controlled commercial entity is not
exempt from U.S. taxation. For the definition of commercial
activity, see Temporary Regulations section 1.892-4T.
Section 892 also generally excludes from gross income and exempts
from U.S. taxation income of an international organization received
from investments in the United States in stocks, bonds, or other
domestic securities and interest on deposits in banks in the United
States of monies belonging to the international organization or from
any other source within the United States.
Controlled commercial entity.
A controlled commercial entity is an entity engaged in commercial
activities (whether within or outside the United States) if the
foreign government (a) holds any interest in the entity
that is 50% or more of the total of all interests in the entity
or (b) holds a sufficient interest or any other interest in
the entity which provides the foreign government with effective
practical control of the entity.
Note:
A foreign central bank of issue will be treated as a controlled
commercial entity only if it engages in commercial activities within
the United States.
Foreign central bank of issue.
A foreign central bank of issue is a bank that is by law or
government sanction the principal authority, other than the government
itself, to issue instruments intended to circulate as currency. Such a
bank is generally the custodian of the banking reserves of the country
under whose law it is organized. For purposes of section 895, the Bank
of International Settlements is treated as though it were a foreign
central bank of issue.
A foreign central bank of issue must provide Form W-8EXP to
establish eligibility for exemption from withholding for payments
exempt from tax under either section 892 or section 895.
Amounts exempt from tax under section 895.
Section 895 generally excludes from gross income and exempts from
U.S. taxation income a foreign central bank of issue receives from
obligations of the United States (or of any agency or instrumentality
thereof) or from interest on deposits with persons carrying on the
banking business unless such obligations or deposits are held for, or
used in connection with, the conduct of commercial banking functions
or other commercial activities of the foreign central bank of issue.
Amounts subject to withholding.
Generally, an amount subject to withholding is an amount from
sources within the United States that is fixed or determinable annual
or periodical (FDAP) income. FDAP income is all income included in
gross income, including interest (as well as original issue discount
(OID)), dividends, rents, royalties, and compensation. FDAP income
does not include most gains from the sale of property (including
market discount and option premiums).
Withholding agent.
Any person, U.S. or foreign, that has control, receipt, or custody
of an amount subject to withholding or who can disburse or make
payments of an amount subject to withholding is a withholding agent.
The withholding agent may be an individual, corporation, partnership,
trust, association, or any other entity including (but not limited to)
any foreign intermediary, foreign partnership, and U.S. branches of
certain foreign banks and insurance companies. Generally, the person
who pays (or causes to be paid) an amount subject to withholding to
the foreign person (or to its agent) must withhold.
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