Are you a Withholding Agent for FDAP Income in the US?

Are you a Withholding Agent for FDAP Income in the US?

When it comes to nonresident aliens who are generating US income, unfortunately, the rules involving who may be considered a Withholding Agent are overbroad and ambiguous. Essentially, if a person is either a US or foreign person but has control or other custody of the income of a foreign person –– they may be considered a withholding agent. The idea behind the concept is that a nonresident alien that generates FDAP income is subject to a 30% withholding on the income (unless an exception, exclusion or limitations apply, such as making a treaty election). Thus, if you are a person who received income only half of a non-resident alien, then oftentimes you are considered to be the withholding agent  –and you will be required to submit payment to the Internal Revenue Service — or else become subject to penalties for noncompliance. It is important to note, that if the money generated by foreign persons passes through several different potential withholding agents, only a single payment is required — and it is not as if each person who holds the money then becomes subject to the withholding requirements for tax (e.g., it does not operate the same as VAT “tax” for example, in which each cog in the wheel may be required to submit the portion of the tax required and then claim a refund).  Let’s take a look at what the Internal Revenue Service provides about withholding agents.

Withholding Agent Explained

As provided by the IRS:

• • • You are a withholding agent if you are a U.S. or foreign person that has control, receipt, custody, disposal, or payment of any item of income of a foreign person that is subject to withholding.

    • A withholding agent may be an individual, corporation, partnership, trust, association, or any other entity, including any foreign intermediary, foreign partnership, or U.S. branch of certain foreign banks and insurance companies. You may be a withholding agent even if there is no requirement to withhold from a payment or even if another person has withheld the required amount from the payment.

    • Although several persons may be withholding agents for a single payment, the full tax is required to be withheld only once. Generally, the U.S. person who pays an amount subject to NRA withholding is the person responsible for withholding. However, other persons may be required to withhold.

    • For example, a payment made by a flow-through entity or nonqualified intermediary that knows, or has reason to know, that the full amount of NRA withholding was not done by the person from which it receives a payment is required to do the appropriate withholding since it also falls within the definition of a withholding agent. In addition, withholding must be done by any qualified intermediary in accordance with the terms of its qualified intermediary withholding agreement.

Withholding Agent Liability

• • • As a withholding agent, you are personally liable for any tax required to be withheld. This liability is independent of the tax liability of the foreign person to whom the payment is made. If you fail to withhold and the foreign payee fails to satisfy its U.S. tax liability, then both you and the foreign person are liable for tax, as well as interest and any applicable penalties. The applicable tax will be collected only once. If the foreign person satisfies its U.S. tax liability, you may still be held liable for interest and penalties for your failure to withhold.

Determination of Amount to Withhold

• • • You must withhold on the gross amount subject to NRA withholding. You cannot reduce the gross amount by any deductions. However, refer to Withholding Federal Income Tax on Scholarships, Fellowships, and Grants Paid to Aliens and Pay for Personal Services Performed for when a deduction for a personal exemption may be allowed.

    • If the determination of the source of the income or the amount subject to tax depends on facts that are not known at the time of payment, you must withhold an amount sufficient to ensure that at least 30 percent of the amount subsequently determined to be subject to withholding is withheld. In no case, however, should you withhold more than 30 percent of the total amount paid.

When to Withhold

• • • Withholding is required at the time you make a payment of an amount subject to withholding. A payment is made to a person if that person realizes income whether or not there is an actual transfer of cash or other property. A payment is considered made to a person if it is paid for that person’s benefit. For example, a payment made to a creditor of a person in satisfaction of that person’s debt to the creditor is considered made to the person. A payment is also considered made to a person if it is made to that person’s agent. For treatment of a payment made to the U.S. agent of a foreign person, refer to Identifying the Payee, U.S. Agent of Foreign Person.

    • A U.S. partnership should withhold when any distributions that include amounts subject to withholding are made. However, if a foreign partner’s distributive share of income subject to withholding is not actually distributed, the U.S. partnership must withhold on the foreign partner’s distributive share of the income on the earlier of the date that a Schedule K-1 (Form 1065) is provided or mailed to the partner or the due date for furnishing that schedule. If the distributable amount consists of effectively connected income, refer to Partnership Withholding on Effectively Connected Income.

    • A U.S. trust is required to withhold on the amount includible in the gross income of a foreign beneficiary to the extent the trust’s distributable net income consists of an amount subject to withholding. To the extent a U.S. trust is required to distribute an amount subject to withholding but does not actually distribute the amount, it must withhold on the foreign beneficiary’s allocable share at the time the income is required to be reported on Form 1042-S.

    • For questions related to Qualified Intermediaries refer to Qualified Intermediary.

Information Reporting for Forms 1042-S and 1042-T

• • • Withholding agents should pay attention to details on Forms 1042-S and 1042-T for successful processing. For additional information, refer to Information Reporting on Forms 1042-S and 1042-T.

References/Related Topics

• • • • • NRA Withholding

        • Penalties Related to Form 1042-S

        • Form 1042-S Data Integrity Tool

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