This morning, the Internal Revenue Service issued long-awaited instructions for the new Form W-8BEN-E. This W-8BEN-E includes the relevant FATCA certifications that investment funds will need to obtain from certain non-U.S. entity investors, and — now that the form’s instructions are available — investment funds should be using them and obtaining completed updated Form W-8s from non-U.S. investors.

Fund managers should consider:

  • Promptly sending the new Form W-8s (see below for a breakdown by investor type and links to the forms) to all non-U.S. July 1 subscribers on a stand-alone basis;
  • Obtaining completed new Form W-8s in advance of any July 1 subscriptions; and
  • Subsequent to the completion of all July 1 closings, coordinating with your attorney at Schulte Roth & Zabel to determine what updates your form subscription agreements will need in order to reflect this development and certain other changes resulting from FATCA and UK FATCA.

The new Form W-8s can be found here:

  • Form W-8BEN (for non-U.S. individual investors that are beneficial owners):

http://www.irs.gov/uac/Form-W-8BEN,-Certificate-of-Foreign-Status-of-Beneficial-Owner-for-United-States-Tax-Withholding

  • Form W-8BEN-E (for non-U.S. entity investors that are beneficial owners):

http://www.irs.gov/formw8bene

http://www.irs.gov/pub/irs-pdf/iw8bene.pdf

  • Form W-8IMY (for non-U.S. intermediaries, such as nominees or pass-through entities):

http://www.irs.gov/uac/Form-W-8IMY,-Certificate-of-Foreign-Intermediary,-Foreign-Flow-Through-Entity,-or-Certain-U.S.-Branches-for-United-States-Tax-Withholding

  • Form W-8EXP (for certain non-U.S. exempt entities, such as foreign governmental or international organizations):

http://www.irs.gov/uac/Form-W-8EXP,-Certificate-of-Foreign-Government-or-Other-Foreign-Organization-for-United-States-Tax-Withholding