Fresh off the heels of the annual Tax Withholding and Information Reporting Conference in NYC, the oil and gas industry should have one takeaway:be ready for focused audits. The IRS made its intentions clear that audits will occur in this vertical with a focus on royalty payments made by US oil and gas companies, specifically when paid to foreign persons.

Historically, IRS audits of 1441 compliance stemmed from Information Document Requests (IDRs) issued when an annual Form 1120 audit was underway, and would be focused on any payments made to foreign persons. The IRS recently determined that focused audits on targeted areas of compliance within specific industries would be more impactful, and have started training regional teams accordingly. It’s only a matter of time that auditors will start putting that training to work. Oil and gas companies should start preparing for “when” not “if” a focused audit will occur.

The monetary impact for companies will be 30% of any US sourced royalty income paid to undocumented foreign recipients, plus penalties and interest, and up to $520 per information return (Form 1042-S) filed incorrectly or not filed at all. If the IRS decides that there was intentional disregard with respect to the regulations in this area, penalties quickly grow steeper. There is no question that the negative financial impact of non-compliance is severe, however, non-compliance is 100% avoidable.

Industry experience has typically shown that 1441 compliance is conducted across multiple departments and is extremely manual. Simply collecting Forms W-9 or W-8 is not sufficient for compliance. Companies must ensure that they are collecting the proper tax Forms (i.e. W-9 or W-8), in addition to validating those forms to determine the proper withholding rate, applicable withholding on payments, and timely filing of accurate annual information returns.

US oil and gas companies can take precautionary steps to limit potential tax liability by automating these complex and burdensome compliance obligations. Instead of investing the time and money required to train and keep personnel current on these constantly evolving tax regulations, utilizing software can ensure that your company is identifying royalty payments within scope, electronically collecting and validating the necessary tax forms, as well as providing applicable withholding rates and Form 1042-S/1099 reporting codes. Without automated software, oil and gas companies run the risk that withholding is not being done correctly. We have seen this to be the case with our current clients and the recently updated tax regulations surrounding valid treaty claims. The new W-8BEN-E requires not only the paragraph, but also the subparagraph for all royalty payments. Without this granular detail, a treaty claim would not be valid, and under audit, the IRS would expect 30% withholding of any US sourced royalty payment. While a seemingly simple change, it can have a large monetary impact under audit. 

Learn more about how IHS Markit can help automate these extensive compliance obligations. If you are already under audit, please contact our team of subject matter experts for information on our extensive audit preparation and defense experience.

Posted 2 August 2017

This article was published by S&P Global Commodity Insights and not by S&P Global Ratings, which is a separately managed division of S&P Global.