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remain in effect until a change in circumstances makes

nonresident alien individual. An alien individual meeting

any information on the form incorrect, provided that the

either the “green card test” or the “substantial presence

withholding agent reports on Form 1042-S at least one

test” for the calendar year is a resident alien. Any person

payment annually to the beneficial owner who provided

not meeting either test is a nonresident alien individual.

the Form W-8BEN. See the instructions for line 6

Additionally, an alien individual who is a resident of a

beginning on page 4 for circumstances under which you

foreign country under the residence article of an income

must provide a U.S. TIN.

tax treaty, or an alien individual who is a bona fide

resident of Puerto Rico, Guam, the Commonwealth of the

Definitions

Northern Mariana Islands, the U.S. Virgin Islands, or

American Samoa is a nonresident alien individual. See

Beneficial owner. For payments other than those for

Pub. 519, U.S. Tax Guide for Aliens, for more information

which a reduced rate of withholding is claimed under an

on resident and nonresident alien status.

income tax treaty, the beneficial owner of income is

generally the person who is required under U.S. tax

Even though a nonresident alien individual

principles to include the income in gross income on a tax

married to a U.S. citizen or resident alien may

return. A person is not a beneficial owner of income,

choose to be treated as a resident alien for

CAUTION

however, to the extent that person is receiving the

certain purposes (for example, filing a joint income tax

income as a nominee, agent, or custodian, or to the

return), such individual is still treated as a nonresident

extent the person is a conduit whose participation in a

alien for withholding tax purposes on all income except

transaction is disregarded. In the case of amounts paid

wages.

that do not constitute income, beneficial ownership is

Flow-through entity. A flow-through entity is a foreign

determined as if the payment were income.

partnership (other than a withholding foreign partnership),

a foreign simple or foreign grantor trust (other than a

Foreign partnerships, foreign simple trusts, and foreign

withholding foreign trust), or, for payments for which a

grantor trusts are not the beneficial owners of income

reduced rate of withholding is claimed under an income

paid to the partnership or trust. The beneficial owners of

tax treaty, any entity to the extent the entity is considered

income paid to a foreign partnership are generally the

to be fiscally transparent (see below) with respect to the

partners in the partnership, provided that the partner is

payment by an interest holder’s jurisdiction.

not itself a partnership, foreign simple or grantor trust,

nominee or other agent. The beneficial owners of income

For purposes of section 1446, a foreign partnership or

paid to a foreign simple trust (that is, a foreign trust that is

foreign grantor trust must submit Form W-8IMY to

described in section 651(a)) are generally the

establish the partnership or grantor trust as a look

beneficiaries of the trust, if the beneficiary is not a foreign

through entity. The Form W-8IMY may be accompanied

partnership, foreign simple or grantor trust, nominee or

by this form or another version of Form W-8 or Form W-9

other agent. The beneficial owners of a foreign grantor

to establish the foreign or domestic status of a partner or

trust (that is, a foreign trust to the extent that all or a

grantor or other owner. See Regulations section

portion of the income of the trust is treated as owned by

1.1446-1.

the grantor or another person under sections 671 through

Hybrid entity. A hybrid entity is any person (other than

679) are the persons treated as the owners of the trust.

an individual) that is treated as fiscally transparent (see

The beneficial owners of income paid to a foreign

below) in the United States but is not treated as fiscally

complex trust (that is, a foreign trust that is not a foreign

transparent by a country with which the United States

simple trust or foreign grantor trust) is the trust itself.

has an income tax treaty. Hybrid entity status is relevant

For purposes of section 1446, the same beneficial

for claiming treaty benefits. See the instructions for line

owner rules apply, except that under section 1446 a

9c on page 5.

foreign simple trust rather than the beneficiary provides

Reverse hybrid entity. A reverse hybrid entity is any

the form to the partnership.

person (other than an individual) that is not fiscally

The beneficial owner of income paid to a foreign

transparent under U.S. tax law principles but that is

estate is the estate itself.

fiscally transparent under the laws of a jurisdiction with

which the United States has an income tax treaty. See

Note. A payment to a U.S. partnership, U.S. trust, or

the instructions for line 9c on page 5.

U.S. estate is treated as a payment to a U.S. payee that

is not subject to 30% withholding. A U.S. partnership,

Fiscally transparent entity. An entity is treated as

trust, or estate should provide the withholding agent with

fiscally transparent with respect to an item of income for

a Form W-9. For purposes of section 1446, a U.S.

which treaty benefits are claimed to the extent that the

grantor trust or disregarded entity shall not provide the

interest holders in the entity must, on a current basis,

withholding agent a Form W-9 in its own right. Rather,

take into account separately their shares of an item of

the grantor or other owner shall provide the withholding

income paid to the entity, whether or not distributed, and

agent the appropriate form.

must determine the character of the items of income as if

they were realized directly from the sources from which

Foreign person. A foreign person includes a

realized by the entity. For example, partnerships,

nonresident alien individual, a foreign corporation, a

common trust funds, and simple trusts or grantor trusts

foreign partnership, a foreign trust, a foreign estate, and

are generally considered to be fiscally transparent with

any other person that is not a U.S. person. It also

respect to items of income received by them.

includes a foreign branch or office of a U.S. financial

Disregarded entity. A business entity that has a single

institution or U.S. clearing organization if the foreign

owner and is not a corporation under Regulations section

branch is a qualified intermediary. Generally, a payment

301.7701-2(b) is disregarded as an entity separate from

to a U.S. branch of a foreign person is a payment to a

its owner.

foreign person.

Nonresident alien individual. Any individual who is not

A disregarded entity shall not submit this form to a

a citizen or resident alien of the United States is a

partnership for purposes of section 1446. Instead, the

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Instructions For Form W-8ben Draft - Certificate Of Foreign Status Of Beneficial Owner For United States Tax Withholding - 2008 Page 4

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