FATCA for Non-Financial Entities: Active NFFE vs Passive NFFE
Most foreign companies are NFFEs. But are you active or passive? The distinction matters for W-8BEN-E.
Fill W-8BEN-E with UFF
Certificate of Status of Beneficial Owner for U.S. Tax Withholding and Reporting (Entities)
FATCA (Foreign Account Tax Compliance Act) requires all foreign entities to classify themselves for US tax purposes. If you're not a bank, fund, or insurance company, you're almost certainly a Non-Financial Foreign Entity (NFFE). But which kind?
Active NFFE
You're an Active NFFE if less than 50% of your gross income for the preceding calendar year is passive income, AND less than 50% of your assets produce or are held for passive income.
Passive income includes:
- •Dividends
- •Interest
- •Rents (unless actively managed)
- •Royalties
- •Annuities
- •Capital gains from selling assets that produce passive income
Active income includes:
- •Revenue from services
- •Revenue from selling goods
- •Revenue from SaaS subscriptions
- •Consulting fees
- •Manufacturing revenue
If you run an actual business (software company, consulting firm, e-commerce store, agency), you're almost certainly an Active NFFE.
Passive NFFE
You're a Passive NFFE if 50% or more of your gross income is passive. Common examples:
- •Holding companies that primarily earn dividends
- •Investment vehicles
- •Companies that primarily license IP and earn royalties
- •Companies with large cash holdings earning mostly interest
Why the distinction matters
Active NFFE: No additional reporting required on W-8BEN-E. Complete Part XXV with a simple certification.
Passive NFFE: Must disclose "substantial US owners" — any US person who owns 10%+ of the entity. Complete Part XXVI with owner details. This is FATCA's way of finding US persons hiding money in foreign entities.
For international founders
If you're a non-US person running a foreign company that provides services to US clients:
- •You're an Active NFFE
- •Check the Active NFFE box on W-8BEN-E Part I, Line 5
- •Complete Part XXV
- •No US owner disclosure needed (you're not a US person)
Edge cases
Startups with no revenue yet? Look at your assets. If your assets are primarily for business operations (equipment, IP you're developing), you're likely Active NFFE. If your only asset is a bank account earning interest, you might be Passive NFFE.
Mixed income? Use the 50% threshold. If 60% of your income is from services and 40% from investments, you're Active NFFE.
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