New IRS Tax Withholding Rules Require a Change in Syndicated Credit Agreement Provisions

The Internal Revenue Service has substantially revised its withholding rules applicable to payments of United States-source income paid to non-U.S. entities. In the context of syndicated credit arrangements, the withholding rules apply to both borrowers and agents. With respect to agents in syndicated credits, the new rules apply to agents when they transfer a U.S. borrower's payments to a lending group that has or appears to have non-U.S. lenders among its members. When an agent passes along a U.S. borrower's payments of interest and fees, for example, to non-U.S. lenders in a syndicated credit, that agent is making payments of U.S.-source income which would be subject to the U.S. Internal Revenue Service's revised withholding regulations. This is true regardless whether or not the non-U.S. lenders in the syndicated credit have an office or branch in the United States.