TITLE 26 - INTERNAL REVENUE

CHAPTER I - INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY

SUBCHAPTER C - EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE

PART 31 - EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE

subpart e - COLLECTION OF INCOME TAX AT SOURCE

31.3402(o) - 2 - Extension of withholding to annuity payments if requested by payee.

  (a) In general. Under section 3402(o) of the Internal Revenue Code of 1954 and this section, the payee (as defined in paragraph (g)(2) of this section) of an annuity (as defined in paragraph (g)(1) of this section) may request the payor (as defined in paragraph (g)(3) of this section) of the annuity to withhold income tax with respect to payments of the annuity made after December 31, 1970. If such a request is made, the payor shall deduct and withhold as requested.

  (b) Manner of making request. A payee who wishes a payor to deduct and withhold income tax from annuity payments shall file a request with the payor to deduct and withhold a specific whole dollar amount from each annuity payment. Such specific dollar amount requested shall be at least $5 per month and shall not reduce the net amount of any annuity payment received by the payee below $10. The request shall be made on Form W4P (annuitant's withholding exemption certificate and request) in accordance with the instructions applicable thereto, and shall set forth fully and clearly the data therein called for. In lieu of Form W4P, payors may prepare and use a form the provisions of which are identical with those of Form W4P.

For the requirements relating to Form W4P with respect to qualified State individual income taxes, see paragraph (d)(3)(i) of 301.63611 of this chapter (Regulations on Procedure and Administration).

  (c) When request takes effect. Upon receipt of a request under this section the payor of the annuity with respect to which such request was made shall deduct and withhold the amount specified in such request from each annuity payment commencing with the first annuity payment made on or after the date which occurs (1) In a case in which no previous request is in effect, 3 calendar months after the date on which such request is furnished to such payor, and (2) In a case in which a previous request is in effect, the first status determination date (see section 3402(f)(3)(B) and paragraph (d) of 31.3402(f)(3)1 of this chapter) which occurs at least 30 days after the date on which such request is so furnished.

However, the payor may, at his election, commence to deduct and withhold such specified amount with respect to an annuity payment which is made prior to the annuity payment described in the preceding sentence with respect to which the payor must commence to deduct and withhold.

  (d) Duration and termination of request. A request under this section shall continue in effect until terminated. The payee may terminate the request by furnishing the payor a signed written notice of termination.

Such notice of termination shall, except as hereinafter provided, take effect with respect to the first payment of an amount in respect of which the request is in effect which is made on or after the first status determination date (see section 3402(f)(3)(B) and paragraph (d) of 31.3402(f)(3)1 of this chapter) which occurs at least 30 days after the date on which such notice is so furnished. However, at the election of such payor, such notice may be made effective with respect to any payment of an amount in respect of which the request is in effect which is made on or after the date on which such notice is so furnished and before such status determination date.

  (e) Special rules. For purposes of chapter 24 of subtitle C of the Internal Revenue Code of 1954 (relating to collection of income tax at source on wages) and of subtitle F of such Code (relating to procedure and administration), and the regulations thereunder (1) An amount which is requested to be withheld pursuant to this section shall be deemed a tax required to be deducted and withheld under section 3402.

  (2) An amount deducted and withheld pursuant to this section shall be deemed an amount deducted and withheld under section 3402.

  (3) The term wages includes the gross amount of an annuity payment with respect to which there is in effect a request for withholding under this section. However, references to the definition of wages in section 3401(a) which are made in section 6014 (relating to election by the taxpayor not to compute the tax on his annual return) and section 6015(a) (relating to declaration of estimated tax by individuals) shall not be deemed to include any portion of such an annuity payment.

  (4) The term employer includes a payor with respect to whom a request for withholding is in effect under this section.

  (5) The term employee includes a payee with respect to whom a request for withholding is in effect under this section.

  (6) The term payroll period includes the period of accrual with respect to which payments of an annuity which is subject to withholding under this section are ordinarily made.

  (f) Returns of income tax withheld and statements for payees. (1) Form W2P is to be used in lieu of Form W2, which is required to be furnished by an employer to an employee under 31.60511 of this chapter and to the Social Security Administration under paragraph (a) of 31.60512 of this chapter, with respect to an annuity subject to withholding under this section. If an amount is required to be deducted and withheld under this section from any or all of the payments made to a payee under an annuity contract during a calendar year, all payments with respect to that annuity contract are required to be reported on Form W2P, in lieu of Form 1099, as prescribed in 1.60411, 1.60412, and 1.60471 of this chapter; any other annuity payments made by the same payor to the same payee may, at the option of the payor, be reported on Form W2P.

  (2) Each statement on Form W2P shall show the following: (i) The gross amount of annuity payments made during the calendar year, whether or not income tax withholding under this section was in effect with respect to all such payments, (ii) The total amount deducted and withheld as tax under section 3402 of this section, and (iii) The information required to be shown by Form W2P and the instructions applicable thereto.

For the requirements relating to Form W2P with respect to qualified State individual income taxes, see paragraph (d)(3)(ii) of 301.63611 of this chapter (Regulations on Procedure and Administration).

  (3) The provisions of 1.91011 of this chapter (relating to permission to submit information required by certain returns and statements on magnetic tape) shall be applicable to the information required to be furnished on Form W2P.

  (4) The provisions of 31.61091 of this chapter (relating to supplying of identifying numbers) shall be applicable to Form W2P and to any payee of an annuity to whom a statement on Form W2P is required to be furnished.

  (g) Definitions. For purposes of this section (1) The term annuity means periodic payments which are payable over a period greater than 1 year and which are treated under section 72 as amounts received as an annuity, whether or not such periodic payments are variable in amount. Also, periodic payments to an individual who is retired before the normal retirement age for reasons of disability, to which the provisions of section 105(d) apply, shall be deemed to be an annuity for purposes of this section. A lump-sum payment (including a total distribution under section 72(n)) is not an annuity.

  (2) The term payee means an individual who is a citizen or resident of the United States and who receives an annuity payment.

  (3) The term payor means a person making an annuity payment except that, if the person making the payment is acting soley as an agent for another person, the term payor shall mean such other person and not the person actually making the payment. For example, if a bank makes an annuity payment only as agent for an employees' trust, the trust shall be deemed to be the payor. Notwithstanding the preceding two sentences, any person who, under section 3401(a) (5) or (8), would not be required to deduct and withhold the tax under section 3402 if the annuity payment were remuneration for services shall not be considered a payor.

(Sec. 7805, 68A Stat. 917; 26 U.S.C. 7805; 86 Stat. 944, 26 U.S.C. 6364; 68A Stat. 747, 26 U.S.C. 6051) [T.D. 7056, 35 FR 13436, Aug. 22, 1970, as amended by T.D. 7577, 43 FR 59360, Dec. 20, 1978: T.D. 7580, 43 FR 60160, Dec. 26, 1978.

Redesignated by T.D. 7803, 47 FR 3546, Jan. 26, 1982]