rp-01-20.pdf

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# Part III. Administrative, Procedural, and Miscellaneous

Offer to resolve issues arising from certain tax, withholding, and reporting obligations of
public and other not-for-profit colleges and universities with respect to payments to alien
individuals.

Rev. Proc. 2001-20

TABLE OF CONTENTS

SECTION 1. GENERAL

.01 Background.

.02 Applicable law.

.03 Definitions.

.04 Summary of VCAP.

.05 No waiver of excise tax, FICA, or other tax obligations.

.06 Request for comments.

## SEC. 2. ELIGIBLE ORGANIZATIONS

.01 Eligible Organizations.

.02 Organizations currently under examination.

## SEC. 3. TAX AND WITHHOLDING OBLIGATIONS SUBJECT TO VCAP

SEC. 4. SUBMISSION PROCEDURES

.01 In general.

.02 Required information.

.03 Required documents.

.04 Signatures.

.05 Power of Attorney requirements.

.06 Penalty of perjury statement.

.07 Marked letter.

.08 Mailing address.

## SEC. 5. PROCESSING OF VCAP REQUESTS

.01 Inadequate or incomplete submission or request for additional
information.

.02 Determining tax liability.

.03 Review of Eligible Organization's compliance procedures.

.04 Other tax liabilities or issues.

.05 Verification.

.06 Acknowledgment letter.

.07 Failure to reach resolution.

.08 Applicability of ' ' 6103 and 6110.
.09 Conferences.

SEC. 6. EFFECTIVE DATE AND SUNSET DATE

SEC. 7. PAPERWORK REDUCTION ACT

SEC. 8. DRAFTING INFORMATION

SECTION 1. GENERAL

.01 Background. This revenue procedure describes the Voluntary Compliance
on Alien Withholding Program ( VCAP ), which is available to certain public and other
not-for-profit colleges and universities, and their charitable affiliates, with respect to the
payment, withholding, and reporting of certain taxes due on payments made to alien
individuals.

The Internal Revenue Service ("Service") will begin VCAP as a temporary and
experimental program. See section 6 of this revenue procedure for the effective date
and sunset date of VCAP. See section 2 of this revenue procedure for the
organizations that are eligible to participate in VCAP (eligible organizations). See
section 3 of this revenue procedure for the taxes, including excise taxes, and the
withholding and reporting obligations covered by VCAP.

.02 Applicable law. The objective of VCAP is to enhance voluntary compliance
among public and other not-for-profit colleges and universities, and their affiliated
charitable organizations, making payments of wages, grants, scholarships, and other
income to alien individuals. Generally, income received by a nonresident alien
individual from sources within the United States is subject to tax under 871(a) of the
Internal Revenue Code ( Code ) unless an exception applies. The tax is imposed,
generally on the gross amount of income, at a 30-percent rate if the income is not

effectively connected with the conduct of a trade or business in the United States or at
a 14-percent rate in the case of income from certain scholarships, fellowships and
grants. Section 1441 of the Code requires any person who pays income subject to tax
under 871(a) of the Code to a nonresident alien individual to deduct and withhold the
30% (or 14%) tax from the gross amount paid. The rate of tax, and therefore
withholding, may be reduced or eliminated under an income tax treaty. A withholding
agent may rely on a claim of treaty benefit if the nonresident alien individual has
furnished appropriate documentation. See 1.1441-6 of the Income Tax Regulations.
See also IRS Publication 515, Withholding of Tax on Nonresident Aliens and Foreign
Corporations, and IRS Publication 901, U.S. Tax Treaties.

Section 871(b) of the Code imposes a graduated rate of tax on a nonresident
alien individual s income that is effectively connected with the individual's conduct of a
trade or business in the United States. This provision is relevant to income earned for
personal services because, under 864(b) of the Code, the performance of personal
services in the United States is considered to be the conduct of a trade or business
within the United States. Further, under 871(c) of the Code, a nonresident alien
individual with a specified nonimmigrant status who is a participant in certain exchange
or training programs is treated as being engaged in a trade or business within the
United States (regardless of whether he is actually so engaged) with regard to income
derived in connection with that exchange or training program. A nonresident alien
individual's effectively connected services income may also be subject to withholding
under 1441 of the Code (or 3402 of the Code for most income constituting wages).
With respect to reporting obligations, a nonresident alien individual's effectively

connected personal services income constituting wages under 3402 of the Code is
subject to wage reporting under chapter 61 of the Code (i.e., on Form 941 and Form
W-2), and such individual's non-wage income is subject to reporting under 1.1461-
1(c)(2) of the Income Tax Regulations (i.e., on Form 1042 and Form 1042-S).
Additionally, taxes may be imposed on wages paid to alien individuals under
3101
and 3111 of the Code (social security and Medicare taxes).

.03 Definitions. For purposes of this revenue procedure, the following
definitions apply:

(1) The term alien individual means an individual who is not a citizen or a
national of the United States. See 1.1-1(c) of the Income Tax Regulations.

(2) The term resident alien means an alien individual described in
7701(b)(1)(A) of the Code.

(3) The term nonresident alien means an alien individual described in
7701(b)(1)(B) of the Code.

.04 Summary of VCAP. Organizations that request consideration under VCAP
agree to (1) identify those areas in which they are not in compliance with tax,
withholding, and reporting obligations on payments to alien individuals; (2) compute and
pay any tax due; and (3) institute procedures and policies which will assure compliance
in the future with the organization's tax, withholding, and reporting obligations.

Organizations will receive assurance that their proposed procedures and policies
relating to tax, withholding, and reporting obligations applicable to alien individuals are
acceptable to the Service, and the Service generally will not impose penalties for
identified underpayments or deficiencies, if the liability is due to reasonable cause.

See sections 5.02(3) and 5.06 of this revenue procedure.

.05 No waiver of excise tax, FICA, or other tax obligations. VCAP does not
waive or reduce any applicable tax and does not alter an employer's obligations to
satisfy any applicable Federal Insurance Contributions Act (FICA) or Federal income
tax withholding requirements with regard to any employee. (However, see

3121(b)(10) and 3121(b)(19) of the Code for certain tax-exempt wages.) In addition,
VCAP does not affect any other obligations of the taxpayer or the Service that are not
within the scope of this revenue procedure or the acknowledgment described in section
5.06 of this revenue procedure.

.06 Request for comments. Because of the experimental nature of VCAP, the
Service welcomes comments on the format and operation of this program, including
suggestions regarding whether the program should be expanded to cover other
organizations, such as proprietary colleges and universities and other educational
organizations, not listed in section 2 of this revenue procedure, or other types of defects
not listed in section 3 of this revenue procedure. The Service also welcomes
suggestions regarding possible standardized correction methods for specified defects
that could be appropriately addressed under VCAP. Any modifications will be made
only by announcements, revenue procedures, notices or other guidance published in
the Internal Revenue Bulletin. Comments on VCAP should be mailed to:

Internal Revenue Service
Attention: T:EO:RA:T:G (VCAP)
1111 Constitution Avenue, N.W.
Washington, D.C. 20224

Comments may also be sent electronically via the Internet to *TE/GE-EO-3@irs.gov.

# SEC. 2. ELIGIBLE ORGANIZATIONS

.01 Eligible Organizations. Except as provided in section 2.02, an organization
is eligible for VCAP (an "eligible organization") if it is:

(1) A college or university described in 170(b)(1)(A)(ii) of the Code that is:

(a) Exempt from tax under 501(a) of the Code as an organization described in
501(c)(3); or

(b) An agency or instrumentality of any government or any political subdivision
thereof, or that is owned or operated by a government or any political subdivision
thereof, or by an agency or instrumentality of one or more governments or political
subdivisions (a State college or university ); or

(2) An organization described in 501(c)(3) of the Code and exempt from
income tax under 501(a) that is affiliated with such a college or university.

An eligible organization may apply for VCAP with respect to any payments made
to alien individuals.

.02 Organizations currently under examination. An organization is not eligible
for VCAP if the organization is under examination on the date of the publication of this
revenue procedure, or comes under examination prior to submitting the information
required by section 4 of this revenue procedure. For this purpose, an examination is
treated as commencing on the date the organization received notification from the
Service of an impending examination or of an impending referral for examination. This
program is also not available to any organization that has a case pending in Appeals or
in litigation on issues involving taxes or withholding obligations described in section 3 of
this revenue procedure.

SEC. 3. TAX, WITHHOLDING, AND REPORTING OBLIGATIONS SUBJECT TO VCAP
The defects for which an eligible organization may make a submission under
VCAP are:

(1) Failure to pay the correct amount of social security and Medicare excise
taxes imposed on employers with respect to wages paid to alien individuals ( 3111(a)
and 3111(b) of the Code);

(2) Failure to withhold or pay the correct amount of social security and Medicare
taxes imposed on employees with respect to wages paid to alien individuals ( 3101(a)
and 3101(b) of the Code);

(3) Failure to withhold or pay the correct amount of income taxes on wages paid
to alien individuals ( 3402 of the Code);

(4) Failure to withhold or pay the correct amount of income taxes on
scholarships, fellowships and grants paid to nonresident alien individuals ( 1441 --
1464 of the Code);

(5) Failure to withhold or pay the correct amount of taxes on compensation for
independent personal services paid to nonresident alien individuals ( 1441 -- 1464 of
the Code);

(6) Failure to withhold or pay the correct amount of taxes on royalties or other
types of taxable income paid to nonresident alien individuals ( 1441-1464 of the
Code); and

(7) Failure to report the correct amount of any or all of the taxes listed above
( 1441-1464 and 6011 of the Code).

SEC. 4. SUBMISSION PROCEDURES

.01 In general. In general, an eligible organization submits a request under
VCAP through a letter to the Tax Exempt/Government Entities (TE/GE) office at the
address in section 4.08 of this revenue procedure. The submission must contain the
information and documentation described in sections 4.02 and 4.03 of this revenue
procedure. The Service will not accept anonymous submissions under VCAP.

.02 Required information. The request for consideration under VCAP must
contain the following information:

(1) The name, address, and taxpayer identification number of the eligible
organization.

(2) A description of the current administrative procedures that the eligible
organization uses to determine tax, withholding, and reporting obligations regarding
payments to alien individuals.

(3) A description of the defects in the eligible organization's tax, withholding, and
reporting procedures for payments to alien individuals, how and why the defects
occurred, and the years affected by such defects.

(4) The number of alien individuals affected and how the number was
determined.

(5) The number of any affiliated charitable organizations affected by the defects,
their names, addresses, and taxpayer identification numbers.

(6) A calculation of the total amount of taxes the eligible organization failed to
withhold, pay and/or report, not including interest and penalties, for tax periods open for
assessment or collection under the provisions of 6501 of the Code. This calculation
should take into account properly substantiated adjustments under
1463 and

3402(d) of the Code. The eligible organization must agree to pay and remit all of its
additional tax due and owing plus interest at the completion of the Service's review or
examination. See section 5 of this revenue procedure. (However, regarding the non-
assertion of interest, see section 5.02(2) of this revenue procedure.) In certain cases
involving large liabilities or underpayments, the Service will consider the organization's
proposal for payment of the liability or underpayment in more than one installment, or
will consider the organization s posting of a cash bond under the procedures outlined in
Rev. Proc. 84-58, 1984-2 C.B. 501. See section 5.02(4) of this revenue procedure.

(7) A detailed description of the methods for correcting the defects that the
organization has implemented or proposes to implement. Those methods must ensure
that the correct amount of taxes and withholding of taxes on payments to alien
individuals will be withheld, paid over, and reported to the Service on the proper forms
and in a timely manner.

(8) A statement signed by the eligible organization's officer or authorized
representative acknowledging and agreeing that the eligible organization's participation
in VCAP will not constitute an employment tax audit of the eligible organization and will
not provide a reasonable basis for not treating an individual as an employee under
530 of the Revenue Act of 1978.

.03 Required documents. The submission must be accompanied by the
following documentation:

(1) In the case of a college or university, a copy of the organization's
determination letter indicating that it is an organization described in 170(b)(1)(A)(ii)
and 501(c)(3) of the Code, or sufficient documentation indicating that the organization is

a State college or university. In the case of an affiliated charitable organization, the
organization must provide both a copy of its determination letter indicating that it is an
organization described in 501(c)(3) of the Code and sufficient documentation
indicating its relationship to a college or university that is itself an eligible organization.

(2) Copies of workpapers or schedules that clearly explain the eligible
organization's calculation of its correct tax liability regarding payments to alien
individuals (see section 4.02(6) of this revenue procedure). The workpapers or
schedules should also show to which specific tax returns and tax periods the liability
relates.

(3) Copies of the original Forms 941, 945, 1042, if any, as filed that relate to the
above calculations.

(4) Copies of Forms 8233, 1001, W-8BEN, W-9, or sufficient information to
support tax treaty claims.

(5) In cases involving the failure to pay the correct amount of social security and
Medicare excise taxes imposed on employers with to respect wages paid to alien
individuals ( 3111(a) and 3111(b) of the Code), and the failure to withhold or pay the
correct amount of social security and Medicare taxes imposed on employees with
respect to wages paid to alien individuals ( 3101(a) and 3101(b) of the Code), a
description of how Forms W-2C will be prepared and provided to affected employees
and the Social Security Administration.

.04 Signatures. The submission must be signed by an officer of the eligible
organization who is authorized to sign or the eligible organization's authorized
representative.

.05 Power of Attorney requirements. To sign the submission or to appear
before the Service in connection with the submission, a representative must comply
with the requirements of section 9 of Rev. Proc. 2001-4, 2000-1 I.R.B. 135.
.06 Penalty of perjury statement. The following declaration must accompany a
VCAP submission and any factual information submitted after the original submission or
any change in the submission at a later time: "Under penalties of perjury, I declare
that I have examined this submission, including accompanying documents, and
to the best of my knowledge and belief, the facts presented in support of the
VCAP request are true, correct, and complete." The declaration must be signed by
the eligible organization's officer, not the organization's representative.
.07 Marked letter and marked envelope. The letter which transmits the
submission to the Service must be marked "VCAP" in the upper right-hand corner of the
letter, and the envelope containing the submission must be marked VCAP in the
lower left-hand corner of the envelope.

.08 Mailing address. The submission must be mailed to the address shown
below. The Service may issue an announcement later which contains other addresses
for the mailing of VCAP submissions.

Internal Revenue Service
Roger Greening
Manager EPP
1100 Commerce Street
MC: 4910DAL
Dallas, TX 75242

SEC. 5. PROCESSING OF VCAP REQUESTS
.01 Inadequate or incomplete submission or request for additional information.

If the submission fails to comply with the provisions of this revenue procedure or the

Service requires additional information, the Service representative assigned to the case
will contact the eligible organization or its representative and explain what is needed to
complete the submission. The organization will have 90 business days from the date of
this contact to provide the requested information. Any request for an extension of the
90-day time period must be made prior to expiration of the period, and must be
approved by the TE/GE Area Manager of the appropriate TE/GE Area Office, or his or
her designated representative. If the requested information is not received within 90
business days, or an agreement cannot be reached on correction or administrative
procedures, the matter will be closed, and the Service may consider the case for
examination.

.02 Determining tax liability. Once the Service accepts the submission under
VCAP, the Service will analyze the eligible organization's calculation of its tax liability
regarding payments to alien individuals, and will analyze the accompanying
workpapers, schedules, and returns which support such calculation. The Service will
generally apply the following approach to determine the tax liability of an eligible
organization:

(1) The Service will normally allow tax treaty benefits in the computation of any
adjustments to taxes and withholding of taxes on payments to nonresident alien
individuals, even in the absence of Forms 8233, 1001, W-9, or W-8BEN if the eligible
organization has acted in good faith and provides sufficient information to support the
treaty claims.

(2) Interest on the eligible organization's underpayments will be due from the
last date prescribed for payment of the taxes (determined without regard to VCAP or

any extension of time for payment) to the date on which payment is received; provided,
however, that interest-free adjustments of underpayments of certain employment taxes
may be made in accordance with 6205(a)(1) of the Code, Proposed Treas. Reg.
31.6205-1(b) and (c), and Rev. Rul. 75-464, 1975-2 C.B. 474.

(3) The Service will not assert any penalties on the eligible organization's
liability, if the organization s failure to withhold, pay, and report taxes as described in
section 1 of this revenue procedure, is due to reasonable cause.

(4) In certain cases involving large liabilities, the Service will consider the eligible
organization's proposal for payment of the liability in more than one installment. See
Internal Revenue Manual (IRM) Handbook 4.3.2, Examination Collectibility Handbook,
Chapter 4, Installment Agreements (05-25-2000). Applicants may also wish to avail
themselves of the procedures for making a deposit in the nature of a cash bond as
contained in Rev. Proc. 84-58, 1984-2 C.B. 501.

.03 Review of Eligible Organization's compliance procedures. The eligible
organization must demonstrate to the satisfaction of the Service that it has implemented
(or it has plans for implementing) policies and procedures that ensure that the correct
amount of taxes and withholding of taxes on payments to alien individuals are reported
and paid over to the Service on the proper forms and in a timely manner. The Service
will review the eligible organization's policies and procedures to assure itself that the
policies and procedures are reasonably likely to bring the organization into compliance
on a prospective basis. The Service reserves the right to prescribe appropriate
administrative procedures, but will first discuss the appropriateness of existing
procedures with the organization. Where the current procedures, or proposed future

procedures, are inadequate for complying with the relevant tax, withholding, and
reporting requirements, the Service also reserves the right to deny relief under VCAP.

.04 Other tax liabilities or issues. If the Service discovers an unrelated tax
liability or exemption issue while considering the request, that issue will remain outside
the scope of the VCAP submission because it was not voluntarily brought forward by
the organization.

.05 Verification. As part of the processing of the VCAP submission, the Service
reserves the right to verify that corrections have been made to the eligible
organization's tax, withholding, and reporting procedures on payments to alien
individuals. Verification of such corrections does not constitute an examination of the
books and records of the organization. If the Service determines that the eligible
organization has not implemented or does not plan to implement the proper corrections
and procedures, the case may be considered for examination. The Service does not
contemplate opening examinations on VCAP submissions but reserves the right to do
so. If the Service decides to examine the eligible organization, the examination will be
commenced and completed as soon as possible, with the intention in most cases that
the scope of the examination will be limited to tax and withholding obligations on
payments to alien individuals and related issues.

.06 Acknowledgment letter. If the Service is satisfied at the conclusion of its
review that the organization has instituted policies and procedures which ensure that
the correct amounts of taxes on payments to alien individuals are withheld, paid, and
reported to the Service on the proper forms and in a timely manner, then the Service
will issue to the eligible organization an acknowledgment letter indicating that based

upon its review, the eligible organization is at that time in substantial compliance with
the tax, withholding, and reporting obligations governing payments to alien individuals.
Once the organization has received an acknowledgment letter at the completion of the
VCAP process, and provided that the organization in fact complies with the agreed
upon withholding, payment and reporting procedures, the information submitted by the
organization to the Service under VCAP will not be used as the basis to initiate an
examination of the organization.

.07 Failure to reach resolution. If resolution cannot be reached because
sufficient information is not timely provided to the Service or because agreement cannot
be reached on correction or administrative procedures, the Service may consider the
case for examination.

.08 Applicability of 6103 and 6110. The information received or generated by
the Service under VCAP is subject to the confidentiality requirements of 6103 of the
Code. The acknowledgment letter is not a written determination letter within the
meaning of 6110 of the Code.

.09 Conferences. If the Service initially determines that it cannot issue an
acknowledgment letter because the parties cannot agree upon some correction or
administrative issue, the organization or the organization's representative may be
granted a conference with the Service, at the Service's discretion and upon request by
the organization or the organization's representative. The conference can be held
either in person or by telephone. If a conference is offered, the organization or its
representative will be contacted by the Service representative.
SEC. 6. EFFECTIVE DATE AND SUNSET DATE

VCAP is effective on February 26, 2001. It will be available for submissions
made on or before February 28, 2002.

## SEC. 7. PAPERWORK REDUCTION ACT

The collections of information contained in this revenue procedure have been
reviewed and approved by the Office of Management and Budget in accordance with
the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1545-1735.

An agency may not conduct or sponsor, and a person is not required to respond
to, a collection of information unless the collection of information displays a valid control
number.

The collections of information contained in this revenue procedure are in section
4.02 and section 4.03(2). This information will enable the Service to determine whether
an organization qualifies for VCAP. The likely respondents are public and other not-for-
profit colleges and universities and certain other charitable organizations.

The estimated total annual reporting burden is 346,500 hours.

The estimated average annual burden per respondent is 700 hours. The
estimated number of respondents is 495.

The estimated annual frequency of responses is on occasion.

Books or records relating to a collection of information must be retained as long
as their contents may become material in the administration of any internal revenue
law. Generally, tax returns and tax return information are confidential, as required by
26 U.S.C. 6103.

# SEC. 8. DRAFTING INFORMATION

The principal authors of this revenue procedure are Lowell G. Hancock of the

Office of Pre-Filing Services, and Virginia Richardson of the Tax Exempt/Government
Entities Division. For more information concerning VCAP, contact Mr. Hancock at
(202) 874-1800 or (330) 375-5421 (not toll-free numbers), Ms. Richardson at (202) 283-
8938 (not a toll-free number), or Neil Shepherd of the Office of the Associate Chief
Counsel (Tax Exempt and Government Entities) at (202) 622-6040 (not a toll-free
number).

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