On May 31, the IRS issued a proposed regulation — presented in Q & A format — concerning income tax withholding obligations on non-rollover distributions from employer-sponsored plans — including pension, annuity, profit sharing, stock bonus and any other deferred compensation plan — to destinations outside the U.S. Unlike U.S. payees, non-U.S. payees cannot elect to forego income tax withholding on such distributions.

Current Guidance

Notice 87-7 provides current guidance concerning withholding obligations on non-rollover distributions. The Notice provides:

• If the payee provides the payor with a residential address outside the U.S., the payor is required to withhold.

• If the payee provides the payor with a residential address within the U.S., the payor is required to withhold unless the payee has elected no withholding.

• If the payee does not provide any residential address, the payor is required to withhold.

Proposed Regulation

The proposed regulation is based on, and provides clarification concerning, the guidance provided in Notice 87-7. The proposed regulation provides:

• Withholding obligations apply and cannot be waived where the payee provides a U.S. residential address but provides payment instructions indicating the funds are to be delivered outside of the U.S.

• Withholding obligations apply and cannot be waived where the payee provides a non-U.S. residential address, without regard to the delivery instructions — including an instruction to deliver the distribution to a financial institution located in the U.S.

This clarification is an acknowledgement of the ease with which funds deposited in a U.S. financial institution can be withdrawn by a person located outside the U.S. and of the fact that a payee’s residential address is most likely the location of ultimate distribution.

• Withholding obligations apply and cannot be waived where the payee has not provided a residential address.

• Withholding obligations apply and can be waived where the payee provides a military or diplomatic post office address.

Proposed Applicability Date

The new withholding rules will apply to distributions that occur after the proposed regulation is finalized, at which point it will supersede Notice 87-7. Until then, payors can continue to rely on Notice 87-7 as well as the proposed regulation’s rule concerning military and diplomatic post office addresses.

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Photo of Stephanie O. Zorn Stephanie O. Zorn

Stephanie O. Zorn is a principal in the St. Louis, Missouri, office of Jackson Lewis P.C.

Stephanie has over twenty years of experience representing management in employee benefits and employment matters, both as in-house counsel and in private practice.

Stephanie is co-lead of…

Stephanie O. Zorn is a principal in the St. Louis, Missouri, office of Jackson Lewis P.C.

Stephanie has over twenty years of experience representing management in employee benefits and employment matters, both as in-house counsel and in private practice.

Stephanie is co-lead of the firm’s Transactional Services group and spends a substantial amount of her practice assisting clients with the employment and employee benefits matters implicated in mergers and acquisitions, with a special focus on clients in the private equity, technology, consumer goods, manufacturing and healthcare sectors. Stephanie leads due diligence review, the drafting and negotiation of definitive deal documents, insurer and co-investor interface and closing and post-closing business integrations.

Stephanie’s employee benefits practice includes assisting clients with all aspects of a broad range of plans including retirement plans, health and welfare plans, nonqualified plans, executive compensation plans, severance plans and voluntary early retirement plans. Stephanie also defends plans and plan administrators in disability, group health plan and life insurance claim litigation including ERISA section 502(a)(1)(B) and (a)(3) claims. Stephanie’s practice also includes counseling clients on Internal Revenue Code, ERISA, COBRA, ACA, HIPAA and fiduciary compliance including investment selection, service provider reviews and plan committee issues.

Stephanie’s employment practice consists of counseling employers in connection with discrimination, harassment, disability accommodations, family and medical leave and wage and hour matters. Stephanie also assists clients with reductions in force and reorganizations, noncompete and confidentiality agreements, retention agreements, service provider classification, outsourcing and international labor and employment matters.