Pokyny pre formuláre 8804, 8805 a 8813
Pokyny pre formuláre 8804, 8805 a 8813
Rev. november 2022
Súvisiace formuláre
- Formulár 8804 - Ročný návrat pre partnerstvo so zadržaním dane (Section 1446)
- Formulár 8805 - Vyhlásenie o ochrane osobných údajov spoločnosti Cudzinec 1446 so zadržaním dane
- Formulár 8813 - Partnerstvo so zadržaním daňového platobného poukazu (Section 1446)
Department of the Treasury
Internal Revenue Service
Instructions for Forms 8804,
8805, and 8813
(Rev. November 2022)
Section references are to the Internal Revenue Code
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Future Developments
For the latest information about developments related to
Forms 8804, 8805, 8813, and their instructions, such as
legislation enacted after they were published, go to
Form8813, respectively.
800-THE-LOST (800-843-5678) if you recognize a child.
General Instructions
What’s New
Purpose of Forms
Continuous-use form and instructions. Form 8804
and these instructions have been converted from an
annual revision to continuous use. Both the form and
instructions will be updated as needed. For the most
Use Forms 8804, 8805, and 8813 to pay and report
section 1446 withholding tax based on effectively
connected taxable income (ECTI) allocable to foreign
partners (as defined in section 1446(e)).
Use Form 8804 to report the total liability under section
1446 for the partnership's tax year. Form 8804 is also a
transmittal form for Form(s) 8805.
Use Form 8805 to show the amount of ECTI and the
total tax credit allocable to the foreign partner for the
partnership's tax year.
File a separate Form 8805 for each foreign partner.
of Form 8805, later, to determine when Form 8805 is
required even if no section 1446 withholding tax was paid.
Attach Copy A of each Form 8805 to the Form 8804 filed
with the IRS.
New lines on Form 8804. New lines 6f and 6g have
been added for the partnership named on line 1(a) to
report tax withheld from it under section 1446(f)(1) on the
transfer of an interest in a partnership engaged in a trade
or business in the United States. The partnership will
was in a non-publicly traded partnership (non-PTP) and
traded partnership (PTP).
Reminders
Cross-crediting section 1446(f)(1) withholding
against section 1446(a) withholding. Since January 1,
2018, a foreign partnership has been subject to
Foreign partners must attach Form 8805 to their U.S.
income tax returns to claim a withholding credit for their
shares of the section 1446 tax withheld by the partnership.
Any U.S. person erroneously subjected to the withholding
tax would also receive Form 8805 from a partnership, and
the Form 8805 should be attached to the U.S. person's
income tax return to claim a withholding credit. A
withholding under section 1446(f)(1) on the transfer of an
interest in another partnership engaged in a U.S. trade or
business (unless that interest is publicly traded) if:
1. The foreign partnership realized gain on the sale,
and
partnership that receives a Form 8805 from a lower-tier
2. Any portion of the gain would be treated under
section 864(c)(8) as effectively connected with the
conduct of a trade or business within the United States.
Form 8805 can also be completed, in some cases, by a
foreign trust or estate. A foreign partner that is a foreign
trust or estate must complete Schedule T of Form 8805 to
report to the trust’s or estate's beneficiaries the section
1446 withholding tax that can be claimed as a withholding
tax credit on the beneficiaries' income tax returns. See
Use Form 8813 to pay the withholding tax under
section 1446 to the United States Treasury. Form 8813
must accompany each payment of section 1446 tax made
during the partnership's tax year.
Under new regulations, for all transfers occurring since
January 1, 2018, a partnership may claim a credit against
its section 1446(a) tax liability for the amount withheld
from it under section 1446(f)(1) to the extent that the
amount is allocable to foreign partners. See T.D. 9919,
or business in the United States, later, and the instructions
occurring on or after January 1, 2018, a partnership that
did not claim that credit against its section 1446(a) liability
or file for a refund may file an amended return using Form
Taxpayer Identification Number (TIN)
To ensure proper crediting of the withholding tax when
reporting to the IRS, a partnership must provide a U.S.
Oct 04, 2022
Cat. No. 10393W
TIN for each foreign partner. The partnership should notify
any of its foreign partners without such a number of the
necessity of obtaining a U.S. TIN. An individual's TIN is
the individual's social security number (SSN) or individual
taxpayer identification number (ITIN). Certain individuals
who don't have and aren't eligible to get an SSN can apply
for an ITIN on Form W-7. The application is available at
IRS.gov/ITIN. The TIN for a partner other than an
permitted to file these forms on or before the 15th day of
the 6th month, check the box at the top of Form 8804.
If a due date falls on a Saturday, Sunday, or legal
holiday, file by the next business day.
File Forms 8804 and 8805 separately from Form 1065.
If you need more time, you can file Form 7004 to
request an extension of time to file Form 8804.
individual is its U.S. employer identification number (EIN).
Note. Filing a Form 7004 doesn't extend the time for
Applying for an EIN
payment of tax.
Use EINs to identify estates, trusts, partnerships, and
corporations. If you are required to have an EIN, apply for
or organized outside of the United States or U.S.
territories, you may also apply for an EIN by calling
267-941-1099 (toll call).
Form 8813
File on or before the 15th day of the 4th, 6th, 9th, and 12th
months of the partnership's tax year for U.S. income tax
purposes.
Where To File
Who Must File
File Forms 8804, 8805, and 8813 with:
Every partnership (other than a publicly traded partnership
(PTP)) that has effectively connected gross income
allocable to a foreign partner must file a Form 8804,
regardless of whether it had ECTI allocable to a foreign
partner. The partnership must also file a Form 8805 for
each partner on whose behalf it paid section 1446 tax,
regardless of whether the partnership made any
distributions during its tax year. The partnership can
designate a person to file the forms. The partnership, or
person it designates, must file these forms even if the
partnership has no withholding tax liability under section
1446.
Internal Revenue Service Center
P.O. Box 409101
Ogden, UT 84409
Amended Form 8804
A partnership can file an amended Form 8804 to correct a
previously filed Form 8804. To do so, complete a new
Form 8804 with the corrected information. Write
“Amended” in the top margin of the form and write
“Corrected” on any Forms 8805 attached to the Form
8804. File the amended form with the address shown
Who Must Sign Form 8804
The partnership can designate a partner or limited liability
company (LLC) member to sign Form 8804. The paid
preparer's space should remain blank if the form is
completed by a partner or LLC member. If the form is
completed by a paid preparer with a valid preparer tax
identification number (PTIN), the paid preparer should
complete the paid preparer's section.
For the requirements for and the limits on obtaining a
refund of the 1446 tax based on an amended Form 8804,
see Regulations section 1.1446-3(d)(2)(iv).
Requirement To Make Withholding
Tax Payments
A foreign or domestic partnership that has ECTI allocable
to a foreign partner must pay a withholding tax equal to
the applicable percentage of the ECTI that is allocable to
its foreign partners. However, this requirement doesn't
apply to a partnership treated as a corporation under the
percentage are defined later.
Paid preparer. Generally, anyone who is paid to prepare
the return must do the following.
Sign the return in the space provided for the preparer's
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signature.
Fill in the other blanks in the “Paid Preparer Use Only”
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area of the return. A paid preparer cannot use a social
security number (SSN) in the “Paid Preparer Use Only”
box. The paid preparer must use a PTIN.
Withholding Agents
Give the partnership a copy of the return in addition to
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For ease of reference, these instructions refer to various
requirements applicable to withholding agents as
requirements applicable to partnerships themselves.
the copy to be filed with the IRS.
A paid preparer may sign original or amended returns
by rubber stamp, mechanical device, or computer
software program.
Determining if a Partner Is a Foreign
Person
When To File
Forms 8804 and 8805
Generally, file these forms on or before the 15th day of the
3rd month following the close of the partnership's tax year.
For partnerships that keep their records and books of
account outside the United States and Puerto Rico, the
due date is the 15th day of the 6th month following the
close of the partnership's tax year. If the partnership is
A partnership must determine if any partner is a foreign
partner subject to section 1446. A foreign partner (as
defined in section 1446(e)) is any partner who isn't a U.S.
person, as defined in section 7701(a)(30). As such, a
foreign person includes a nonresident alien individual,
foreign corporation, foreign partnership, foreign trust or
estate, or a foreign organization described in section
501(c).
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
A partnership can determine a partner's foreign or
nonforeign status by relying on a W-8 form (for example,
Form W-8BEN), Form W-9, an acceptable substitute form,
Means Other Than Certification, later. Also, see
See Regulations section 1.1446-1(c)(2)(iv) for more
details.
Change in circumstances. A partner must provide a
new withholding certificate when there is a change in
circumstances. The principles of Regulations section
1.1441-1(e)(4)(ii)(D) shall apply when a change in
circumstances has occurred (including situations where
the status of a U.S. person changes) that requires a
partner to provide a new withholding certificate.
How long to keep the certifications. A partnership or
nominee who has responsibility for paying the section
1446 withholding tax must retain each withholding
certificate, statement, and other information received from
its direct and indirect partners for as long as it can be
relevant to the determination of the withholding agent's
section 1446 tax liability under section 1461 and the
regulations thereunder.
Regulations section 1.1446-1(c) for additional information.
Certification of Nonforeign Status
In general, a partnership can determine that a partner isn't
a foreign person by obtaining a Form W-9 from the
partner. A partnership that has obtained this certification
can rely on it to establish the nonforeign status of a
Form of certification. Generally, a partnership can
determine a partner's foreign or nonforeign status by
obtaining one of the following withholding certificates from
the partner.
Form W-8BEN.
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Form W-8BEN-E.
Form W-8ECI.
Use of Means Other Than Certification
A partnership isn't required to obtain a Form W-9. It can
rely on other means to learn the nonforeign status of the
partner. But if the partnership relies on other means and
erroneously determines that the partner wasn’t a foreign
person, the partnership will be held liable for payment of
the tax, any applicable penalties, and interest. A
Form W-8EXP.
Form W-8IMY.
Form W-9.
An acceptable substitute form (as described in
Regulations section 1.1446-1(c)(5)).
A statement required from a domestic grantor trust (as
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partnership isn't required to rely on other means to
determine the nonforeign status of a partner and can
demand a Form W-9. If a certification isn't provided, the
partnership can presume the partner is foreign and will be
considered for purposes of sections 1461 through 1463 to
have been required to withhold section 1446 tax.
described in Regulations section 1.1446-1(c)(2)(ii)(E))
with the necessary documentation required for the trust
and the grantor.
Effect of certification. Generally, a partnership that has
obtained a withholding certificate (for example, a W-8
form or Form W-9) according to the rules in these
instructions can rely on the certification to determine
whether the partner is a foreign or nonforeign partner for
purposes of figuring the section 1446 withholding tax, and
if such partner is a foreign partner, to determine whether
or not such partner is a corporation for U.S. tax purposes.
The partnership can also use the withholding certificate to
determine that the partner isn't subject to withholding. A
partnership can’t rely on a withholding certificate if it
knows or has reason to know that any information
provided on the withholding certificate is incorrect or
unreliable, and based on that information the partnership
should pay more section 1446 withholding tax. Under
those circumstances, the certificate isn't valid.
The partnership won't be subject to penalties for its
failure to pay the section 1446 withholding tax prior to the
date that it knows or has reason to know that the
certificate isn't valid. However, the partnership is fully
liable for section 1446 withholding tax for the year, as well
as penalties and interest, starting with the installment
period or Form 8804 filing period during which it knows or
has reason to know that the certificate isn't valid. See
Regulations section 1.1446-1(c)(2)(iii).
Effectively Connected Taxable
Income (ECTI)
Definition
ECTI is the excess of the gross income of the partnership
that is effectively connected under section 864(c), or
treated as effectively connected with the conduct of a U.S.
trade or business, over the allowable deductions that are
connected to such income. See Pub. 519 for detailed
instructions regarding the calculation of ECTI. For
purposes of these instructions, figure this income with the
following statutory adjustments.
1. Section 703(a)(1) doesn't apply.
2. The partnership is allowed a deduction for depletion
of oil and gas wells, but the amount of the deduction must
be determined without regard to sections 613 and 613A.
3. The partnership can’t take into account items of
income, gain, loss, or deduction allocable to any partner
that isn't a foreign partner.
See Regulations section 1.1446-2 for additional
adjustments that can be required.
Requirements for certificates to be valid. Generally,
the validity of a Form W-9 is determined under section
3406 and Regulations section 31.3406(h)-3(e). A W-8
form is only valid if:
A partnership's ECTI includes partnership income
subject to a partner's election under section 871(d) or
882(d) (election to treat real property income as income
connected with a U.S. business). It also includes any
partnership income treated as effectively connected with
the conduct of a U.S. trade or business under section 897
(disposition of investment in U.S. real property), and other
Its validity period hasn't expired,
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The partner submitting the form has signed it under
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penalties of perjury, and
It contains all the required information.
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
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items of partnership income treated as effectively
connected under other provisions of the Internal Revenue
Code, regardless of whether those amounts are taxable to
the partner.
Amount of Withholding Tax
Figuring the Tax Payments
Under section 1446, a partnership must make four
installment payments of withholding tax during the tax
year.
See Regulations section 1.1446-2 for additional
information for calculating ECTI.
Amount of each installment payment of withholding
tax. In general, the amount of a partnership's installment
payment is equal to the sum of the installment payments
for each of the partnership's foreign partners. A
Amount Allocable to Foreign Partners
The amount of a partnership's ECTI for the partnership's
tax year allocable to a foreign partner under section 704
equals (a) the foreign partner's distributive share of
effectively connected gross income of the partnership for
the partnership's tax year that is properly allocable to the
partner under section 704, minus (b) the foreign partner's
distributive share of deductions of the partnership for that
year that are connected with that income under section
873(a) or section 882(c) and that are properly allocable to
the partner under section 704. This income must be
figured by taking into account any adjustments to the
basis of the partnership property described in section 743
according to the partnership's election under section 754.
Also, a partnership's ECTI isn't allocable to a foreign
partner to the extent the amounts are exempt from U.S.
tax for that partner by a treaty or reciprocal agreement, or
a provision of the Code.
partnership will generally determine the amount of the
installment payment for each of its foreign partners by
applying the principles of section 6655 and Regulations
section 1.1446-3. To do so, use Form 8804-W.
Applicable percentage. For all corporate partners, the
section 1446 applicable percentage is 21% (0.21).
For all non-corporate foreign partners, the section 1446
applicable percentage is generally 37% (0.37). However,
in some circumstances, the partnership can consider the
highest rate applicable to a particular type of income
allocated to a non-corporate partner if such partner would
be entitled to use a preferential rate on such income or
gain.
The facts and circumstances of a partner that the
partnership knows or has reason to know may determine
if the partner would be entitled to a preferential rate on
such income or gain. For example, the partner would not
be entitled to a preferential rate if the partnership’s income
that otherwise is long-term capital gain is a type that is
treated with respect to the partner as short-term capital
gain under section 1061.
Certification of Deductions and
Losses
A foreign partner, in certain circumstances, can certify to
the partnership that it has deductions and losses it
reasonably expects to be available to reduce the partner's
U.S. income tax liability on the partner's allocable share of
effectively connected income or gain from the partnership.
In certain circumstances, the partnership can consider
and rely on these deductions and losses to reduce the
partnership's section 1446 tax.
See Regulations section 1.1446-3(a)(2) for additional
information.
When to make the payment. Make installment
payments of the withholding tax under section 1446 with
Form 8813 by the applicable due dates during the tax year
of the partnership in which the income is earned. The
partnership must generally make the installment
payments for each foreign partner on or before the 15th
day of the 4th, 6th, 9th, and 12th months of the
partnership's tax year.
Generally, pay any additional amounts due when filing
Form 8804. However, if the partnership files Form 7004 to
request an extension of time to file Form 8804, pay the
balance of section 1446 withholding tax estimated to be
due with Form 7004 in order to avoid the late payment
penalty.
Note. Foreign partners must submit all certificates
(including updated certificates) using Form 8804-C. See
Form 8804-C and its instructions, and Regulations section
1.1446-6 for additional information.
Reductions for State and Local Taxes
In addition to any deductions and losses certified by a
foreign partner to the partnership (see Certification of
Deductions and Losses, earlier), the partnership can
consider as a deduction of such partner 90% (0.90) of any
state and local income taxes withheld and remitted by the
partnership on behalf of such partner with respect to the
partner's allocable share of partnership ECTI. The
partnership can consider the amount of state and local
taxes of the foreign partner regardless of whether the
foreign partner submits a certificate to the partnership.
Coordination With Other Withholding Rules
Interest, Dividends, etc.
Fixed or determinable annual or periodical (FDAP) income
subject to tax under section 871(a) or 881 isn't included in
the partnership's ECTI under section 1446. However,
these amounts are independently subject to withholding
under the requirements of sections 1441 and 1442 and
their regulations.
Note. Don't deduct state and local taxes paid on behalf of
the partnership. The partnership can only consider as a
deduction of a partner the partner's own state and
local income taxes the partnership withholds and remits
on the partner's behalf with respect to the partner's
allocable share of partnership ECTI.
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
completed as described under Schedule T– Beneficiary
Information, later.
Real Property Gains
Domestic partnerships. Domestic partnerships subject
to the withholding requirements of section 1446 aren't
subject to the payment and reporting requirements of
section 1445(e)(1) and its regulations for income from the
disposition of a U.S. real property interest (USRPI). A
domestic partnership's compliance with the requirement
to pay a withholding tax under section 1446 satisfies the
requirements under section 1445 for dispositions of
USRPIs. However, a domestic partnership that would
otherwise be exempt from section 1445 withholding by
operation of a nonrecognition provision must continue to
comply with the requirements of Regulations section
1.1445-5(b)(2).
Interest and Penalties
Interest
Interest is charged on taxes not paid by the due date,
even if an extension of time to file is granted. Interest is
also charged on penalties imposed for failure to file,
negligence, fraud, and substantial understatements of tax
from the due date (including extensions) to the date of
payment. The interest charge is figured at a rate
determined under section 6621.
Late Filing of Form 8804
A partnership that fails to file Form 8804 when due
(including extensions of time to file) can generally be
subject to a penalty of 5% (0.05) of the unpaid tax for each
month or part of a month the return is late, up to a
maximum of 25% (0.25) of the unpaid tax. The penalty
won't apply if the partnership can show reasonable cause
for filing late.
Foreign partnerships. A foreign partnership subject to
withholding under section 1445(a) during a tax year will be
allowed to credit the amount withheld under section
1445(a), to the extent such amount is allocable to foreign
partners, against its liability to pay the section 1446
withholding tax for that year. This credit is allowed on
line 6d or 6e of the Form 8804 filed by the foreign
partnership.
Gains from sales of interests in partnerships engag-
ed in a trade or business in the United States. A
foreign partnership subject to withholding under section
1446(f)(1) during a tax year will be allowed to credit the
amount withheld under section 1446(f)(1), to the extent
that amount is allocable to foreign partners, against its
liability to pay the section 1446 withholding tax for that
year. This credit is allowed on line 6f or 6g of the Form
8804 filed by the foreign partnership.
If Form 8804 is filed more than 60 days late, the
minimum penalty will be $450, or the amount of any tax
owed, whichever is smaller.
If you receive a notice about penalty and interest after
you file Form 8804, send us an explanation and we will
determine if you meet reasonable-cause criteria. Don't
attach an explanation when you file Form 8804.
Late Filing of Correct Form 8805
A penalty can be imposed for failure to file each Form
8805 when due (including extensions). The penalty can
also be imposed for failure to include all required
information on Form 8805 or for furnishing incorrect
information. The penalty is based on when a correct Form
8805 is filed.
Reporting to Partners
When making an installment payment of the section 1446
withholding tax, a partnership must notify all foreign
partners of their allocable shares of any section 1446
withholding tax paid by the partnership. The partners use
this information to adjust the amount of estimated tax that
they must otherwise pay to the IRS. The notification to the
foreign partners must be provided within 10 days of the
installment due date, or, if paid , the date the installment
payment is made. See Regulations section 1.1446-3(d)(1)
(i) for information that must be included in the notification
and for exceptions to the notification requirement.
The penalty for each failure to file a correct 2022 Form
8805 is $290, with a maximum penalty of $3,532,500. See
section 3.57 of Rev. Proc. 2021-45, I.R.B. 2021-48 775,
available at IRS.gov/irb/2021-48_IRB#REV-
PROC-2021-45, for more information.
There are some situations where the penalty under
section 6721 is reduced or eliminated. This can apply if
the partnership:
If a partnership has gross effectively connected
income, it must file a separate Form 8805 for each partner
for whom it paid section 1446 tax. In addition, if the
partnership reduces ECTI for state and local income tax
deductions permitted under Regulations section
Has average annual gross receipts of not more than $5
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million during a specified period of time,
Corrects the failure to file within a specified period, or
Has a de minimis number of failures to file correct
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1.1446-6(c)(1)(iii) or relies on a Form 8804-C it receives
from a partner to reduce its section 1446 tax, it must
complete a Form 8805 for the partner even if no tax is paid
on behalf of the partner. The foreign partner must also
receive a copy of its Form 8805 by the due date of the
partnership return (including extensions). The partnership
must also issue a Form 8805 to any U.S. person
Forms 8805.
There can also be a higher penalty imposed when the
failure is due to intentional disregard of the requirement to
file timely correct information returns. For more
Reasonable cause. A partnership can seek a waiver of
the penalty if the partnership can establish it had
reasonable cause for the failure.
erroneously subjected to withholding tax by the due date
of the partnership return (including extensions).
A foreign partner that is a foreign trust or estate must
provide to each of its beneficiaries a Form 8805
Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
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Amounts paid by the partnership under section 1446 on
ECTI allocable to a partner are allowed to the partner as a
credit under section 33. The partner can’t claim an early
refund of withholding tax paid under section 1446.
Failure To Furnish Correct Form 8805 to
Recipient
A penalty can be imposed for each failure to furnish Form
8805 to the recipient when due. The penalty can also be
imposed for each failure to give the recipient all required
information on each Form 8805 or for furnishing incorrect
information.
Amounts paid by a partnership under section 1446 for a
partner are to be treated as distributions made to that
partner on the earliest of the following.
1. The day on which this tax was paid by the
The penalty for each failure to furnish a correct 2022
Form 8805 to the recipient is $290, with a maximum
penalty of $3,532,500. For more information, see Rev.
Proc. 2021-45, section 3.58.
partnership.
2. The last day of the partnership's tax year for which
the amount was paid.
3. The last day on which the partner owned an interest
There are some situations where the penalty under
section 6722 is reduced or eliminated. This can apply if
the partnership:
in the partnership during that year.
However, the amount of section 1446 withholding tax
paid during a tax year by the partnership is generally
treated as an advance or draw under Regulations section
1.731-1(a)(1)(ii) to the extent of the partner's share of
income for the partnership year. See Regulations section
1.1446-3(d)(2)(v) for more details.
Has average annual gross receipts of not more than $5
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million during a specified period of time,
Corrects the failure to furnish within a specified period,
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or
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Has a de minimis number of failures to furnish correct
Forms 8805.
A partner that wishes to claim a credit against its U.S.
income tax liability for amounts withheld and paid under
section 1446 must attach Copy C of Form 8805 to its U.S.
income tax return for the tax year in which it claims the
credit.
There can also be a higher penalty imposed when the
failure is due to intentional disregard of the requirement to
furnish timely correct information returns. For more
See Regulations section 1.1446-3(d)(2) for additional
information.
Reasonable cause. A partnership can seek a waiver of
the penalty if the partnership can establish it had
reasonable cause for the failure.
Publicly Traded Partnerships (PTPs)
Late Payment of Tax
A PTP is any partnership whose interests are regularly
traded on an established securities market (regardless of
the number of its partners). However, this doesn't include
a PTP treated as a corporation under the general rule of
section 7704(a).
The penalty for not paying tax when due is usually 1/2 of
1% (0.005) of the unpaid tax for each month or part of a
month the tax is unpaid. The penalty can’t exceed 25%
(0.25) of the unpaid tax. The penalty won't apply if the
partnership can show reasonable cause for paying late.
A PTP that has effectively connected income, gain, or
loss must withhold tax on distributions of that income
made to its foreign partners. The rate is 37% (0.37) for
non-corporate foreign partners, and 21% (0.21) for
corporate partners. The PTP can’t consider preferential
rates when figuring the section 1446 withholding tax for a
partner. The partnership uses Form 1042, Form 1042-S,
and Form 1042-T to report withholding from distributions
instead of following these instructions. It must also comply
with the regulations under section 1461 and Regulations
section 1.6302-2.
If you receive a notice about penalty and interest after
you file Form 8804, send us an explanation and we will
determine if you meet reasonable-cause criteria. Don't
attach an explanation when you file Form 8804.
Failure To Withhold and Pay Over Tax
Any person required to withhold, account for, and pay
over the withholding tax under section 1446, but who fails
to do so, can be subject to a civil penalty under section
6672. The civil penalty is equal to the amount that should
have been withheld and paid over.
Tiered Partnerships
The term “tiered partnership” describes the situation in
which a partnership owns an interest in another
partnership. The former is an “upper-tier partnership” and
the latter is a “lower-tier partnership.” An upper-tier
partnership that owns a partnership interest in a lower-tier
partnership is allowed a credit against its own section
1446 withholding tax liability for any section 1446
withholding tax paid by the lower-tier partnership for that
partnership interest.
Other Penalties
Penalties can also be imposed, absent reasonable cause
and good faith, for failing to accurately report the amount
of tax required to be shown on a return, if any portion of
the resulting underpayment is attributable to negligence,
substantial understatement of income tax, valuation
misstatement, or fraud. See sections 6662 and 6663.
Treatment of Partners
A partnership's payment of section 1446 withholding tax
on ECTI allocable to a foreign partner generally relates to
the partner's U.S. income tax liability for the partner's tax
year in which the partner is subject to U.S. tax on that
income.
If an upper-tier partnership provides appropriate
documentation to a lower-tier partnership, the lower-tier
partnership can look through the partnership to the
partners of such upper-tier partnership in determining its
section 1446 withholding tax due. The look-through can
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
apply only with respect to the portion of the upper-tier
partnership's allocation that is allocable to partners of
such partnership for which appropriate documentation
has been received by the lower-tier partnership. For more
information, see Regulations section 1.1446-5(c) for
upper-tier foreign partnerships and Regulations section
1.1446-5(e) for upper-tier domestic partnerships. See
Regulations section 1.1446-5(b) for reporting
requirements.
Enter the total ECTI allocable to foreign partners (by
income type) on lines 4a, 4e, 4i, 4m, and 4q. With respect
to lines 4i, 4m, and 4q, enter the specified types of income
allocable to non-corporate partners if appropriate
documentation is received and such partners would be
entitled to use a preferential rate on such income or gain.
See Regulations section 1.1446-3(a)(2) for additional
information.
If the partnership has net ordinary loss, net short-term
capital loss, or net 28% rate loss, each net loss should be
netted against the appropriate categories of income and
gain to determine the amounts of income and gain to be
entered on lines 4a, 4e, 4i, 4m, and 4q, respectively.
Don't enter a negative number on lines 4a, 4e, 4i, 4m, and
4q. See section 1(h) and Notice 97-59, 1997-45 I.R.B. 7,
for netting gains and losses.
Note. The look-through rules, referred to above, apply
only for purposes of the lower-tier partnership's
calculation of its section 1446 withholding tax liability. It
doesn't affect the upper-tier partnership's reporting
requirements with respect to Forms 8804 and 8805 as set
forth in the next paragraph and elsewhere in these
instructions.
An upper-tier partnership that has had section 1446
withholding tax payments made on its behalf by a
lower-tier partnership will receive a copy of Form 1042-S
or Form 8805 from the lower-tier partnership. The
upper-tier partnership must in turn file these forms with its
Form 8804 and treat the amount withheld by the lower-tier
partnership as a credit against its own liability to withhold
under section 1446. This credit is allowed on line 6b or
line 6c of the Form 8804 filed by the upper-tier
Note. If the partnership relied on a certificate the partner
submitted under Regulations section 1.1446-6(c)(1)(ii) to
determine that the partnership is not required to pay any
section 1446 withholding tax with respect to that partner,
reduce the ECTI on line 4 of Form 8804 by any amount
allocable to that foreign partner. See Form 8804-C, Part
III.
partnership. The upper-tier partnership must also provide
to its partners the information described in Reporting to
Partners, earlier. These statements and forms will enable
those partners to obtain appropriate credit for tax withheld
under section 1446.
See Regulations section 1.1446-5 for additional
information.
Note. Partnership ECTI on which a foreign partner is
exempt from U.S. tax by a treaty or other reciprocal
agreement isn't allocable to that partner and is exempt
from withholding under section 1446. However, this
exemption from section 1446 withholding must be
Form 8805, later.
Lines 4b, 4f, 4j, 4n, and 4r
Specific Instructions
Enter the reduction amounts for state and local taxes
under Regulations section 1.1446-6(c)(1)(iii). See
Reductions for State and Local Taxes, earlier, for
additional information. The netting rules under section
the category of income the reduction amounts offset.
Address
When providing a U.S. address on Form 8804, 8805, or
8813, include the suite, room, or other unit number after
the street address. If the post office doesn't deliver mail to
the street address and the partnership (or withholding
agent) has a P.O. box, show the box number instead of
the street address. If the partnership (or withholding
agent) receives its mail in care of a third party (such as an
accountant or an attorney), enter on the street address
line “c/o” followed by the third party's name and street
address or P.O. box.
When providing a foreign address on Form 8804, 8805,
or 8813, enter the number and street, city or town, state or
province, the name of the country, and ZIP or foreign
postal code. Follow the foreign country's practice in
placing the postal code in the address. Don't abbreviate
the country name.
Lines 4c, 4g, 4k, 4o, and 4s
Enter the reduction amounts resulting from certified
partner-level items received from foreign partners using
Form 8804-C. See Certification of Deductions and
Losses, earlier, for additional information. The netting
considered in determining the category of income the
reduction amounts offset.
Line 5f
Add lines 5a through 5e.
Line 6
Form 8804
Lines 1c, 1d, 2c, and 2d
If the partnership is claiming a credit on lines 6b through
6g related to a form it received, the partnership must
attach that form to its Form 8804 to obtain that credit.
Line 6b
Lines 4a, 4e, 4i, 4m, and 4q
If the partnership is an upper-tier partnership in one or
more lower-tier partnerships, enter on line 6b the amount
of section 1446 tax withheld on ECTI by lower-tier
Figure the partnership's ECTI using the definition, earlier,
Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
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partnerships with respect to ECTI allocable to the
The amount withheld will be shown on line 10 of the Form
8805 the partnership receives from the lower-tier
partnership.
Schedule A (Form 8804). For more information, see the
Instructions for Schedule A (Form 8804).
Line 12
If the partnership has an overpayment on line 11, it can
allocate some or all of that amount to its partners. Enter
the amount of the overpayment it wishes to allocate to its
partners on line 12. Include the amount allocated to each
partner in the amount reported on line 10 of Form 8805.
Line 6c
Enter on line 6c the amount of section 1446 tax withheld
on ECTI by a lower-tier PTP that is reported to the
partnership on Form 1042-S. On Form 1042-S, box 7a will
show the amount withheld, and box 1 will show income
code 27.
Paid Preparer
Generally, anyone you pay to prepare Form 8804 must
sign it and include their PTIN in the space provided. See
Who Must Sign Form 8804, earlier.
Line 6d
Line 6d applies to partnerships treated as foreign persons
that are subject to withholding under section 1445(a) or
1445(e)(1) upon the disposition of a USRPI.
Form 8805
Line 1b
A partnership must pay the withholding tax for a foreign
partner even if it doesn't have a U.S. TIN for that partner.
details.
Enter on line 6d the amount of tax withheld from the
partnership under section 1445(a), but only to the extent
that the amount is allocable to foreign partners, or
withheld by the partnership under section 1445(e)(1). On
Form 8288-A, box 4 will show the amount withheld, and
box 5a will be checked.
Line 1c
Line 6e
Enter on line 6e the amount of section 1445(e) tax
withheld on a distribution by a domestic trust to the
partnership with respect to the disposition of a USRPI by
the trust. On Form 1042-S, box 7a will show the amount
withheld that the partnership received from the trust, and
box 1 will show income code 25 or 26.
Line 3
Enter the type of partner (for example, individual,
corporation, partnership, trust, estate).
Line 4
Enter the applicable two-letter code from the list at
IRS.gov/CountryCodes for the country of which the
partner is a resident for tax purposes. These codes are
used by the IRS to provide information to all tax treaty
countries for purposes of their tax administration.
Line 6f
Enter on line 6f the amount of section 1446(f)(1) tax
withheld from the partnership on a transfer of an interest in
a non-PTP engaged in the conduct of a U.S. trade or
business, but only to the extent that the amount is
allocable to foreign partners. On Form 8288-A, box 4 will
show the amount withheld, and box 5b will be checked.
Line 5c
Line 8b
Line 6g
Check the box on this line if any of the partnership's ECTI
is treated as not allocable to the foreign partner identified
on line 1a and therefore exempt from section 1446
withholding because the income is exempt from U.S. tax
for that foreign partner by a treaty, reciprocal exemption,
or a provision of the Internal Revenue Code.
Enter on line 6g the amount of section 1446(f)(1) tax
withheld from the partnership on a transfer of an interest in
a PTP engaged in the conduct of a U. S. trade or
business, but only to the extent that the amount is
allocable to foreign partners. On Form 1042-S, box 7a will
show the amount withheld, and box 1 will show income
code 57.
Line 9
Enter the partnership ECTI allocable to the foreign partner
(before considering any state and local income tax
reduction permitted under Regulations section
1.1446-6(c)(1)(iii) or any reduction amounts resulting from
certified partner-level items received from foreign partners
using Form 8804-C).
Line 8
If Schedule A (Form 8804) is attached, check the box on
line 8 and enter the amount of any penalty on this line.
Failure to pay withholding as required. A penalty will
be imposed if the partnership failed to make its four
installment payments of withholding during the tax year as
required. If a penalty is due, the partnership should figure
the penalty using Schedule A (Form 8804) and enter it on
line 8. If the partnership failed to pay withholding tax as
required, and a completed Schedule A (Form 8804) is not
attached to the return, the IRS will figure the penalty
without regard to any exceptions that may apply on
The partnership must provide a statement (generally,
Schedule K-1 (Form 1065)) to the foreign partner that lists
each type of ECTI included on line 9. The types of ECTI
that can be included on line 9 are:
Ordinary income;
•
•
•
28% rate gains;
Unrecaptured section 1250 gains; and
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
Adjusted net capital gain, including qualified dividend
Schedule T for each of its beneficiaries and must provide
that Schedule T information to each beneficiary.
•
income and net section 1231 gains.
The partnership must also provide any additional
information to foreign partners that they may reasonably
need to complete Schedule P (Form 1120-F).
The foreign trust or estate can provide all of the
information listed in the previous paragraph on a single
Form 8805 for each of its beneficiaries. In this case, the
information provided in boxes 1a through 10 will be the
same for all of the beneficiaries, but the information
provided on Schedule T can vary from beneficiary to
beneficiary, depending on the ownership interests of the
respective beneficiaries.
Form 1040-NR. A foreign trust or estate must attach to
the Form 1040-NR it files any Form(s) 8805 it receives
and copies of the Form(s) 8805 it must furnish to its
beneficiaries with the Schedule(s) T completed.
Line 10
To figure the total tax credit allowed to a foreign partner
under section 1446, subtract from each type of ECTI
allocable to the foreign partner the amount of any state
and local income tax reduction permitted under
Regulations section 1.1446-6(c)(1)(iii) and any reduction
amounts resulting from certified partner-level items
received from foreign partners, using Form 8804-C, that
the partnership considered in determining that partner's
portion of the section 1446 withholding tax due. Then,
multiply each net amount by the applicable percentage
resulting amounts.
Line 11c
Line 12
Enter the amount of ECTI on line 9 to be included in the
beneficiary's gross income. The foreign trust or estate
must provide a statement to each of its beneficiaries that
lists each type of ECTI included on line 12. The types of
ECTI that can be included on line 12 are:
Note. If the partnership relied on a certificate the partner
submitted under Regulations section 1.1446-6(c)(1)(ii) to
determine that the partnership isn't required to pay any
section 1446 withholding tax with respect to that partner,
enter -0- on line 10. See Form 8804-C, Part III.
Ordinary income;
•
•
•
•
28% rate gains;
Attachments
Unrecaptured section 1250 gains; and
Adjusted net capital gain, including qualified dividend
The partnership is required to attach to Form 8805 the
calculation described in the first paragraph of these
line 10 instructions. Furthermore, if the total section 1446
withholding tax paid for a partner has been reduced as a
result of the state and local income tax reduction
income and net section 1231 gains.
Line 13
To determine the total tax credit allowed to a beneficiary
under section 1446, multiply each type of ECTI on line 12
earlier).
permitted under Regulations section 1.1446-6(c)(1)(iii) or
as a result of relying in whole or in part on a partner's
Form 8804-C, then the documentation described below
must also be attached to the Form 8805 for that partner.
If the total section 1446 withholding tax paid for the
•
Form 8813
Line 1
partner has been reduced because the partnership relied
on a Form 8804-C, attach that Form 8804-C to the
partner's Form 8805.
A partnership without a U.S. EIN must obtain one and
must pay any section 1446 withholding tax due (see
Applying for an EIN, earlier). If the partnership hasn't
received an EIN by the time it files Form 8813, indicate on
line 1 of Form 8813 the date the partnership applied for its
EIN. On receipt of its EIN, the partnership must
immediately send that number to the IRS using the
provide an EIN can delay processing of payments on
behalf of the partners.
A statement showing the calculation of the tax due
•
relating to the partner if any Forms 8804-C were relied on.
See Regulations section 1.1446-6(d)(3)(i).
If the total section 1446 withholding tax paid for the
•
partner has been reduced based on the state and local
income tax reduction permitted under Regulations section
1.1446-6(c)(1)(iii), attach a statement showing the
calculation of the tax due.
Note. With respect to the last two bulleted items, a
statement showing one calculation for both items is
permitted.
Line 2
tax, earlier, for information on figuring the amount of the
payment.
A partnership must attach all applicable items
referred to above to reduce its section 1446
!
CAUTION
withholding tax due by either of the reductions
referred to above.
Line 3
Schedule T—Beneficiary Information
Attachments
If the total section 1446 withholding tax paid for an
installment period has been reduced as a result of the
state and local income tax reduction permitted under
If the foreign partner is a foreign trust or estate, the foreign
trust or estate must provide to each of its beneficiaries a
copy of the Form 8805 furnished by the partnership. In
addition, the foreign trust or estate must complete
Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)
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Regulations section 1.1446-6(c)(1)(iii) or as a result of
relying in whole or in part on a partner's Form 8804-C,
then the documentation described later must be attached
to all Forms 8813 starting with the first installment period
in which the certificate was considered. Under these
circumstances, a partnership must file Form 8813 for an
installment period even if no section 1446 withholding tax
is due.
A statement showing the calculation of the tax due
•
relating to each partner whose Form 8804-C it relied on.
See Regulations section 1.1446-6(d)(3)(i).
If the partnership reduced an installment payment
•
based on state and local income tax deductions permitted
under Regulations section 1.1446-6(c)(1)(iii), attach a
statement showing the calculation of the tax due.
Note. With respect to the last two bulleted items, a
statement showing one calculation for both items is
permitted.
The required documentation is as follows.
If the partnership reduced an installment payment
•
because it relied on Forms 8804-C, attach all such Forms
8804-C to Form 8813. If the same Form 8804-C for a
partner is used in a subsequent installment period, see
Regulations section 1.1446-6(d)(3)(i) for a substitute to
attaching that Form 8804-C to the Form 8813 for
subsequent installment periods.
A partnership must attach all applicable items
referred to above to reduce its section 1446
!
CAUTION
withholding tax due by either of the reductions
referred to above.
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If you have comments concerning the accuracy of these time estimates or suggestions for making this form simpler,
we’d be happy to hear from you. You can send us comments from IRS.gov/FormComments. Or you can write to: Internal
Revenue Service, Tax Forms and Publications, 1111 Constitution Ave. NW, IR-6526, Washington, DC 20224. Don't
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)