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  6. Pokyny pre formuláre 8804, 8805 a 8813

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)
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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  
recent versions, go to IRS.gov/Form8804.  
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.  
See Reporting to Partners and the instructions for Line 8b  
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  
report this withheld tax on line 6f if the transferred interest  
was in a non-publicly traded partnership (non-PTP) and  
on line 6g if the transferred interest was in a publicly  
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  
partnership should see Tiered Partnerships, later.  
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  
for Line 6f and Line 6g of Form 8804, later. For transfers  
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  
8804. See Amended Form 8804, later.  
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  
one at IRS.gov/EIN. If the principal business was created  
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  
under Where To File, earlier.  
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  
general rule of section 7704(a). ECTI and applicable  
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  
signature.  
Fill in the other blanks in the “Paid Preparer Use Only”  
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  
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,  
or by other means. See Form of certification and Use of  
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  
partner. See Effect of certification, later.  
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.  
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  
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,  
The partner submitting the form has signed it under  
penalties of perjury, and  
It contains all the required information.  
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,  
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  
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  
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  
information, see Rev. Proc. 2021-45, section 3.57.  
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)  
-5-  
   
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  
million during a specified period of time,  
Corrects the failure to furnish within a specified period,  
or  
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  
information, see Rev. Proc. 2021-45, section 3.58.  
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,  
available at IRS.gov/pub/irs-irbs/irb97-45.pdf, for the rules  
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  
reported on Form 8805. See the instructions for Line 8b of  
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  
additional information. The netting rules under section  
1(h) and Notice 97-59 must be considered in determining  
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  
Losses, earlier, for additional information. The netting  
rules under section 1(h) and Notice 97-59 must be  
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  
See Address, earlier.  
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  
upper-tier partnership (see Tiered Partnerships, earlier).  
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  
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  
See Address, earlier.  
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  
See Address, earlier.  
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  
(see Applicable percentage, earlier). Finally, total the  
resulting amounts.  
Line 11c  
See Address, earlier.  
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  
by the applicable percentage (see Applicable percentage,  
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  
address as shown under Where To File, earlier. Failure to  
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  
See Address, earlier.  
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)  
-9-  
 
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.  
Paperwork Reduction Act Notice. We ask for the information on these forms to carry out the Internal Revenue laws of  
the United States. You are required to give us the information. We need it to ensure that you are complying with these  
laws and to allow us to figure and collect the right amount of tax.  
You aren't required to provide the information requested on a form that is subject to the Paperwork Reduction Act  
unless the form displays a valid OMB control number. Books or records relating to a form or its instructions must be  
retained as long as their contents can become material in the administration of any Internal Revenue law. Generally, tax  
returns and return information are confidential, as required by section 6103.  
The time needed to complete and file this form will vary depending on individual circumstances. The estimated burden  
for business taxpayers filing this form is approved under OMB control number 1545-0123.  
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  
send the tax forms to this address. Instead, see Where To File, earlier.  
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Instr. for Forms 8804, 8805, and 8813 (Rev. 11-2022)