December 2019 Foodman website and JD Supra

Backup Withholding requires a payer to “withhold tax” from payments that are not otherwise subject to withholding.  A Taxpayer (payee) may be subject to Backup Withholding if it:

• fails to provide a correct taxpayer identification number (TIN) when required, OR
• fails to report interest, dividend, or patronage dividend income.

A payer must withhold at a flat 24% rate. The 24 % tax is taken from any future payments to ensure the IRS receives the tax due on this income. 

Backup Withholding is tied to Forms 1099 – a/k/a – “Information Returns”

Forms 1099 is a series of information returns which reports the various types of income a Taxpayer might receive other than what a Taxpayer receives from an Employer (usually a W-2). Financial Institutions and other types of businesses that make certain types of payment to a Taxpayer must file an information return with the IRS (on Form 1099) showing payments that a Taxpayer received during a year. Form 1099 includes a Taxpayer’s name and TIN such as a social security number (SSN), employer identification number (EIN), or individual taxpayer identification number (ITIN).   

Payers have the responsibility to obtain Form W-9 (Request for Taxpayer Identification Number and Certification) from a U.S. person (including a resident alien), that includes a Taxpayer’s correct TIN.

Backup withholding may apply to most kinds of payments reported on Form 1099, including:

  • Interest payments
  • Dividends
  • Rents, profits, or other income
  • Commissions, fees, or other payments for work performed as an independent contractor
  • Payments by brokers and barter exchange transactions
  • Payment Card and Third-Party Network Transactions
  • Royalty payments
  • Payments by fishing boat operators
  • Gambling winnings that aren’t subject to regular gambling withholding

Who is Not subject to Backup Withholding?

A Taxpayer will NOT be subject to backup withholding on payments if a Taxpayer:

  • provides the requester a correct TIN,
  • makes the proper certifications, and
  • reports all their taxable interest and dividends on their tax return.

Who is subject to Backup Withholding and the Payer must withhold at a flat 24% rate

A Taxpayer will be subject to a flat 24% withholding if: 

  1. Taxpayer does not provide the payer their TIN in the required manner
  2. IRS notifies the payer that the TIN a Taxpayer provided is incorrect
  3. IRS notifies the payer to start withholding on interest or dividends because a Taxpayer has underreported interest or dividends on their income tax return. The IRS will do this only after it has mailed a Taxpayer four notices over at least a 120-day period.
  4. Taxpayer fails to certify that they are not subject to backup withholding for underreporting of interest and dividends.

Payments excluded from Backup Withholding

  • Real estate transactions
  • Foreclosures and abandonments
  • Cancelled debts
  • Distributions from Archer MSAs
  • Long term care benefits
  • Distributions from any retirement account
  • Distributions from an employee stock ownership plan
  • Fish purchases for cash
  • Unemployment compensation
  • State or local income tax refunds
  • Qualified tuition program earnings

Don’t be a Victim of your Own Making

A Taxpayer may only avoid backup withholding if they are able to correct the reason why they became subject to a backup withholding in the first place. This can include:

• providing the correct TIN to the payer,
• resolving the underreported income and paying the amount owed, or
• filing the missing return(s), as appropriate.

Consult your tax specialist for assistance.