June 28, 2019
Updated August 27, 2020 (EXPIRING ITINs)

UPDATE ON U.S. TAX ID NUMBERS FOR FOREIGN ENTITIES AND EXPIRING ITINs

A non-U.S. person (which includes an individual or an entity) generally must have a U.S. taxpayer identification number (or apply for one) in connection with filing a U.S tax return and certain other U.S. tax documents. 

For individuals, the U.S. taxpayer identification number (U.S. tax ID) obtained is either a U.S. social security number or an “individual taxpayer identification number” (ITIN). The rules are straightforward although occasionally a little burdensome (see “EXPIRING ITINs” below).

For entities, the number obtained is called an “employer identification number” (EIN) and is applied for on IRS Form SS-4. Somewhat confusingly, Form SS-4 is used even if there are no employees. Recently, the rules for Form SS-4 were changed, causing some uncertainties in cases where non-U.S. persons are involved.

OBTAINING AN EIN

The IRS instructions state that Form SS-4 must be signed by the “responsible party”, and the U.S. tax number of the “responsible party” must be included. Of course, if the responsible party does not have a U.S. tax ID there can be confusion as to how to proceed.

Who is a Responsible Party?

The “responsible party” is the person who ultimately owns or controls the entity or who exercises ultimate effective control over the entity. The person identified as the responsible party should have a level of control over, or entitlement to, the funds or assets in the entity that, as a practical matter, enables the person, directly or indirectly, to control, manage, or direct the entity and the disposition of its funds and assets. For trusts, the responsible party is a grantor, owner, or trustor. Unless the applicant is a government entity, the responsible party must be an individual (i.e., a natural person), not an entity. A “nominee” cannot serve as the responsible party.

Separate rules apply for entities with shares or interests traded on a public exchange, or which are registered with the Securities and Exchange Commission, for tax-exempt organizations, and for government entities.

Recent Confusion Concerning the U.S. Tax ID of a Foreign Responsible Party

Line 7b on Form SS-4 requires the U.S. tax ID of the responsible party. Often the responsible party will be a nonresident alien who does not have a U.S. tax ID! In such cases, until recently the informal policy of the IRS was to accept the SS-4 application if the words “foreign” or “nonresident alien”, were inserted on line 7b.

However, in IR-2019-58 and IR-2019-89, issued in March and May 2019, the IRS stated clearly that only individuals with U.S. tax IDs were eligible to act as a responsible party on the SS-4 application. Naturally, this caused confusion amongst tax professionals, not only because of the potential additional work and expense for the responsible party to obtain a U.S. tax ID, but especially because the IRS instructions do not permit a nonresident alien to obtain a U.S. tax ID solely for the purpose of signing Form SS-4!

We recently spoke with the EIN Department of the IRS and were told that in cases where the responsible party is a nonresident alien without a U.S. tax ID, it is still acceptable to state “foreign” on line 7b. This applies to Form SS-4 being filed for both a domestic entity with a non-U.S. responsible party, and a foreign entity with a non-U.S. responsible party.

The prior confusion was caused by the fact that the 2019 IRS notices were intended mainly to remind the public of 2017 changes, in which the IRS instituted new rules preventing entities, as distinguished from individuals, from acting as responsible parties, and were not intended to change the rule for a foreign individual who is a responsible party.

EXPIRING ITINs

In 2016, the IRS issued Notice 2016-48 implementing ITIN changes made pursuant to the “Protecting Americans from Tax Hikes Act of 2015” (PATH Act). Please see our November 6, 2017, International Tax Alert “Renewing Your U.S. Individual Taxpayer Identification Number (ITIN)”. The notice also introduced a schedule of ITINs that expire based upon the fourth and fifth digits (middle digits) of the ITIN. 

The IRS recently announced that the following ITINs will expire on December 31, 2020, if no action is taken:

• ITINs with middle digits 88 (e.g., 9NN-88-NNNN), 

        or

• ITINs with middle digits 90, 91, 92, 94, 95, 97, 98, or 99 (e.g. 9NN-83-NNNN), if the ITIN was assigned before 2013 and has not already been renewed,
  
  or
  
  
• If you have not used your ITIN on a U.S. federal income tax return at least once in the last three consecutive years, it will expire. For example, if you did not file a U.S. income tax return for 2017, 2018, or 2019, you, and anyone listed as a dependent on your tax return must renew your ITINs.

To help alleviate the burden on taxpayers, the IRS is offering taxpayers an option to renew ITINs for their entire family (tax filer, spouse, and any dependents claimed on the tax return) at the same time.

ITINs with middle digits of 70 through 87 have previously expired and can be renewed at any time (if they have not already been renewed).

The IRS is encouraging taxpayers to renew their ITINs now to prevent refund delays next year.  The IRS will begin sending Notice CP-48 to affected taxpayers in the next few weeks.  

To receive our free International Tax Alerts via e-mail, please click here to subscribe.