Alert for Non-U.S. Persons, or their Advisors, Filing Income Tax Form W-8BEN: Bogus Form in Circulation

January 08, 2014

We were recently asked to assist a non-resident alien (NRA) client with the completion of IRS Form W-8BEN – the Certificate of Foreign Status of Beneficial Owner for United States Tax Withholding. Upon examining the form sent to our client, we identified it as not being the official IRS form.

Briefly, this form is used to identify non-U.S. persons so the payor can properly report income and withhold taxes at the source. This payor, also known as a “withholding agent,” has responsibility for withholding the required tax and paying it over to the U.S. Internal Revenue Service (IRS).  Non-U.S. persons (whether individuals or entities, such as foreign corporations) may be subject to U.S. income tax at a flat 30% rate on certain kinds of income received from U.S. sources (or lower if a treaty applies).

If you are an NRA, an HR executive in a company that employs international employees, or you know or advise one or more NRAs, you should be aware that a bogus form exists. The official IRS form W-8BEN can be found here.

The most glaring difference between the bogus form and the real one is in Part II.  The bogus form asks for significant personal information – none of which is on the official form [e.g., the IRS doesn’t ask for the filer’s mother’s maiden name (misspelled on the bogus form as “median”), his or her passport number, or information related to their U.S. bank and investment accounts.]

The bogus form also asks the recipient to sign the form and fax it to the IRS.  Forms W-8BEN are returned to a filer’s financial institution; they are not filed (faxed or otherwise) with the IRS.

This is not an isolated incident – we are aware of another firm with an NRA client who also got the bogus form.  This other version contained an email address (in addition to the fax number) as an alternative way to transmit it. The IRS never asks taxpayers to email them information.

If you have any suspicion about a W-8BEN form, please consult your tax advisor immediately.

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