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You or your Asset Protection Entity may have already been asked by your Foreign Financial Institution, FFI,  to provide a fully completed form W-8BEN.  This is the first of many steps that will be asked of you by your FFI to be in compliance with the FATCA rules and/or IGA of your banking jurisdiction.  W-8BEN acts to establish that the individual receiving the payment (payee) is the beneficial owner of certain income as well as establishes the status of the beneficial owner.  W-8BEN also is utilized to put forth your claim for a possible reduced tax rate (pursuant to an income tax treaty) or exemption from withholding on certain payments.

Currently, Form W-8BEN is valid by both foreign individuals and foreign entities. The new W-8BEN is not yet finalized and strictly forbidden from being used for filing as well as forbidding using the accompanying Instructions.  In addition, the new Form W-8BEN will be used only by foreign individuals only. Foreign entities will be required to use the new Form W-8BEN-E (see attached DRAFT FORMS OF W8-BEN and W8-BEN-E), unless another form applies.

The new draft Form W-8BEN was released in May of 2013 and as noted above, continues as of this writing to be still in DRAFT form. It is generally consistent with the June 2012 draft and retains the previous version’s succinct one-page format.  Similar to the June 2012 version, instructions have not been provided. The DRAFT includes an additional line for payees to provide their date of birth if the beneficial owner does not have a foreign tax identifying number.

The requirement to obtain a date of birth was probably designed to give greater information for exchanging tax information under the particular IGA jurisdiction. The penalty of perjury certification now includes a condition that requires the payee to agree to submit a new form within 30 days if any certification made on the form becomes incorrect.

The latest DRAFT gives withholding agents more insight into the type of information they will need to collect. For example, the date of birth was going to be a data point given the requirements in the Model 1A IGA, but it was unclear how the date of birth was going to be collected.

We will continue to keep you updated on the progress of these forms and well as other forms that you may be required to file with the IGA or the U.S. Treasury.


Michael Nelson

Michael has great depth of experiences and skills that evolved from over 35 years of representing international businesses, executives, expatriates and multi-national families. From these years of successful legal representations of CEOs of Fortune 500 Companies to family clients with needs from complex estate planning to international trusts and private foundations. He is committed to his clients, always finding better alternatives or options for his clients. Dedication to the client is synonymous with his name.