The Internal Revenue Service has issued additional informal guidance regarding implementation of the Foreign Account Tax Compliance Act (FATCA). First, the IRS published a new “Frequently Asked Question” on its website addressing form and documentary evidence received by facsimile or email. The text of the guidance, which states that withholding agents may rely upon Forms W-8 which have been scanned and provided in electronic form, such as email, follows:
Q11. Has a Form W-8 that has been completed and signed by a payee, scanned into an image or portable document format (PDF), and uploaded to a third-party repository been scanned and received electronically by a withholding agent for purposes of sections 1.1441-1(e)(4)(iv)(C) and 1.1471-3(c)(6)(iv) if the payee, upon request from the withholding agent for a Form W-8 to document its status for purposes of chapters 3 and 4, sends the withholding agent an email with a link to the third-party repository site that allows the withholding agent to download the image or PDF of the form that is stored on the repository for such purpose (or the payee otherwise authorizes the withholding agent to access the specific form from the third-party repository in a similar manner).
Yes. The Form W-8 will be considered to have been scanned and received electronically by the withholding agent, provided that the withholding agent does not know that the email containing the link to the third-party repository has been transmitted by someone other than the payee or an agent of the payee. Also, because the withholding agent has obtained the form at the payee’s direction, the form will be treated as having been furnished by/provided by the payee (see sections 1.1441-1(e)(1)(ii)(A)(1) and 1.1471-3(c)(1)). A withholding agent is still required to determine whether the form is valid and may be relied upon for purposes of chapter 3 or 4 and whether a change in circumstances affects its continuing reliance on the form.
Second, the IRS has issued revised publications addressing the information reporting requirements imposed by FATCA and the manner in which foreign financial institutions are required to submit such data to the IRS. Specifically, the IDES User Guide has been updated and includes a revised metadata section and additional instructions on IDES alert codes. In addition, the FATCA Metadata XML Schema v1.1 User Guide (Publication 5188) has been updated and includes new data elements and metadata sample files.
