Partnership Withholding on Effectively Connected Income(p31)

Under section 1446, a partnership (foreign or domestic) that has income effectively connected with a U.S. trade or business (or income treated as effectively connected) must pay a withholding tax on the effectively connected taxable income that is allocable to its foreign partners. A publicly traded partnership must withhold tax on actual distributions of effectively connected income. See Publicly Traded Partnerships, later.

This withholding tax does not apply to income that is not effectively connected with the partnership's U.S. trade or business. That income is subject to NRA withholding tax, as discussed earlier in this publication.

The partnership, or a withholding agent for the partnership, must pay the withholding tax. A partnership that must pay the withholding tax but fails to do so may be liable for the payment of the tax and any penalties and interest.

The partnership must determine whether a partner is a foreign partner. A foreign partner can be a nonresident alien individual, foreign corporation, foreign partnership, foreign estate or trust, foreign tax-exempt organization, or foreign government.

A partner that is a U.S. person should provide Form W-9 to the partnership.

A partnership may rely on a partner's certification of nonforeign status and assume that a partner is not a foreign partner unless the form:

• Does not give the partner's name, U.S. taxpayer identification number, and address, or
• Is not signed under penalties of perjury and dated.

The partnership must keep the certification for as long as it may be relevant to the partnership's liability for section 1446 tax.

The partnership may not rely on the certification if it has actual knowledge or has reason to know that any information on the form is incorrect or unreliable.

If a partnership does not receive a Form W-9 (or similar documentation) the partnership must presume that the partner is a foreign person.

A partner that is a foreign person should provide the appropriate Form W-8 (as shown in Chart D) to the partnership.

Partners who have otherwise provided Form W-8 to a partnership for purposes of section 1441 or 1442, as discussed earlier, can use the same form for purposes of section 1446 if they meet the requirements discussed earlier under Documentation. However, a foreign simple trust that has provided documentation for its beneficiaries for purposes of section 1441 must provide a Form W-8 on its own behalf for purposes of section 1446.

The partnership may not rely on the certification if it has actual knowledge or has reason to know that any information on the form is incorrect or unreliable.

The partnership must keep the certification for as long as it may be relevant to the partnership's liability for section 1446 tax.

IF you are a:	THEN provide to the partnership Form:
Nonresident alien	W-8BEN
Foreign corporation	W-8BEN
Foreign partnership	W-8IMY
Foreign government	W-8EXP
Foreign grantor trust**	W-8IMY
Certain foreign trust or foreign estate	W-8BEN
Foreign tax-exempt organization (including a private foundation)	W-8EXP
Nominee	W-8 used by beneficial owner
* A partnership may substitute its own form for the official version of Form W-8 to ascertain the identity of its partners.
**A domestic grantor trust must provide a statement as shown in Regulations section 1.1446-1(c)(2)(ii)(E) and documentation for its grantor.

The amount a partnership must withhold is based on its effectively connected taxable income that is allocable to its foreign partners for the partnership's tax year. However, see Publicly Traded Partnerships, later.

The foreign partner's share of the partnership's gross effectively connected income is reduced by:

• The partner's share of partnership deductions connected to that income for the year.
• The partner's tax treaty benefits related to that income (see Chart D for documentation).

The partnership may reduce the foreign partner's share of partnership gross effectively connected income by:

1. State and local income taxes the partnership withholds and pays on behalf of the partner on current year effectively connected taxable income allocated to the partner.
2. The foreign partner's partner-level deductions and losses that the partner certifies to the partnership as:
   1. Carried forward from a prior year,
   2. Properly allocated to gross effectively connected income of the partner's trade or business in the United States, and
   3. Reasonably expected to be available and claimed on the partner's U.S. income tax return.

To certify the deductions and losses, a partner must submit to the partnership Form 8804-C, Certificate of Partner-Level Items to Reduce Section 1446 Withholding.

If the partner's investment in the partnership is the only activity producing effectively connected income and the section 1446 tax is less than $1,000, no withholding is required. The partner must provide Form 8804-C to the partnership to receive the exemption from withholding.

A foreign partner may submit a Form 8804-C to a partnership at any time during the partnership's year and prior to the partnership's filing of its Form 8804. An updated certificate is required when the facts or representations made in the original certificate have changed or a status report is required.

For more information, see the Instructions for Form 8804-C.

The withholding tax rate on a partner's share of effectively connected income is 35%. However, the partnership may withhold at the highest rate applicable to a particular type of income allocated to a noncorporate partner provided the partnership received the appropriate documentation. See Regulations section 1.1446-3(a)(2)(ii).

A partnership must make installment payments of withholding tax on its foreign partners' share of effectively connected taxable income whether or not distributions are made during the partnership's tax year. The amount of a partnership's installment payment is the sum of the installment payments for each of its foreign partners. The amount of each installment payment can be figured by using Form 8804-W.

A foreign partner's share of withholding tax paid by a partnership is treated as distributed to the partner on the earliest of:

• The day on which the tax was paid by the partnership,
• The last day of the partnership's tax year for which the tax was paid, or
• The last day on which the partner owned an interest in the partnership during that year.

The amount treated as distributed to the partner 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.

Generally, a partnership must notify each foreign partner of the tax withheld on its behalf within 10 days of the installment payment date. No particular form is required for this notification. For more information on the substance of the notification and exceptions, see Regulations section 1.1446-3(d)(1)(i).

If a domestic partnership disposes of a U.S. real property interest, the gain is treated as effectively connected income and the partnership or withholding agent must withhold following the rules discussed here. A domestic partnership's compliance with these rules satisfies the requirements for withholding on the disposition of U.S. real property interests (discussed later).

If a foreign partnership disposes of a U.S. property interest, while the gain also is treated as effectively connected income, the transferee must withhold under section 1445(a). The foreign partnership may credit the amount withheld under section 1445(a) that is allocable to foreign partners against its section 1446 tax liability.

Three forms are required for reporting and paying over tax withheld on effectively connected income allocable to foreign partners. This does not apply to publicly traded partnerships, discussed later.

The withholding tax liability of the partnership for its tax year is reported on Form 8804. Form 8804 is also a transmittal form for Forms 8805.

Any additional withholding tax owed for the partnership's tax year is paid (in U.S. currency) with Form 8804. A Form 8805 for each foreign partner must be attached to Form 8804, whether or not any withholding tax was paid.

Form 8805 is used to show the amount of effectively connected taxable income and any withholding tax payments allocable to a foreign partner for the partnership's tax year. At the end of the partnership's tax year, Form 8805 must be sent to each foreign partner on whose behalf section 1446 tax was withheld or whose Form 8804-C the partnership considered, whether or not any withholding tax is paid. It must be delivered to the foreign partner by the due date of the partnership return (including extensions). A copy of Form 8805 for each foreign partner also must be attached to Form 8804 when it is filed. Also attach the most recent Form 8804-C, discussed earlier, to the Form 8805 filed for the partnership's tax year in which the Form 8804-C was considered.

A copy of Form 8805 must be attached to the foreign partner's U.S. income tax return to take a credit on its Form 1040NR or Form 1120-F.

This form is used to make payments of withheld tax to the United States Treasury. Payments must be made in U.S. currency by the payment dates (see Date payments are due, earlier). See the Instructions for Form 8804-C for when you must attach a copy of that form to Form 8813.

A penalty may be imposed for failure to file Form 8804 when due (including extensions). It is the same as the penalty for not filing Form 1042, discussed earlier under Returns Required.

A penalty may be imposed for failure to file Form 8805 when due (including extensions) or for failure to provide complete and correct information. The amount of the penalty depends on when you file a correct Form 8805. The penalty for each Form 8805 is:

• $30 if you file a correct form within 30 days, with a maximum penalty of $250,000 per year ($75,000 for a small business); or
• $100 if you file after 30 days or do not file a correct form, with a maximum penalty of $1,500,000 per year ($500,000 for a small business).

A small business is a business that has average annual gross receipts of $5 million or less for the most recent 3 tax years (or for the period of its existence, if shorter) ending before the calendar year in which the Forms 8805 are due.

If you fail to provide a complete and correct Form 8805 to each partner when due (including extensions), a penalty may be imposed. The amount of the penalty depends on when you provide the correct Form 8805. The penalty for each Form 8805 is:

• $30 if you provide the correct Form 8805 within 30 days, with a maximum penalty of $250,000 per year ($75,000 for a small business),
• $60 if you provide the correct Form 8805 after 30 days but by August 1, with a maximum penalty of $500,000 ($200,000 for a small business), or
• $100 if you provide the correct Form 8805 after August 1, with a maximum penalty of $1,500,000 per year ($500,000 for a small business).

No penalty is imposed if you meet all the following requirements.

1. You provided a Form 8805 to a recipient on time, but it was incorrect or incomplete.
2. You provide a correct Form 8805 to the recipient by August 1.
3. The number of incorrect or incomplete Form(s) 8805 is not more than the greater of 10 or .5% of the total forms you had to file during the calendar year.

If you intentionally disregard the requirement to file Form 8805 when due, to provide Form 8805 to the recipient when due, or to report correct information, the penalty for each Form 8805 (or statement to recipient) is the greater of $250 or 10% of the total amount of the items that must be reported, with no maximum penalty.

A partnership that has not been assigned a U.S. TIN must obtain one. If a number has not been assigned by the due date of the first withholding tax payment, the partnership should enter the date the number was applied for on Form 8813 when making its payment. As soon as the partnership receives its TIN, it must immediately provide that number to the IRS.

To ensure proper crediting of the withholding tax when reporting to the IRS, the partnership must include each partner's U.S. TIN on Form 8805. If there are partners in the partnership without identification numbers, the partnership should inform them of the need to get a number. See U.S. Taxpayer Identification Numbers, earlier.

A publicly traded partnership (PTP) that has effectively connected income, gain, or loss must pay withholding tax on any distributions of that income made to its foreign partners. A PTP must use Forms 1042 and 1042-S (Income Code 27) to report withholding from distributions. The rate of withholding is 35%.

A PTP is any partnership an interest in which is regularly traded on an established securities market or is readily tradable on a secondary market. These rules do not apply to a PTP treated as a corporation under section 7704 of the Code.

The partnership determines whether a partner is a foreign partner using the rules discussed earlier under Foreign Partner.

The withholding agent under this section can be the PTP or a nominee. For this purpose, a nominee is a domestic person that holds an interest in a PTP on behalf of a foreign person. The nominee is treated as the withholding agent only to the extent of the amount specified in the qualified notice given to the nominee by the PTP. If a nominee is designated as the withholding agent, the obligation to withhold is imposed solely on the nominee. The nominee must report the distributions and withheld amounts on Forms 1042 and 1042-S. For more information, see Regulations section 1.1446-4(b) and (d).

The partnership or nominee must withhold tax on any actual distributions of money or property to foreign partners. The amount of the distribution includes the amount of any section 1446 tax required to be withheld. In the case of a partnership that receives a partnership distribution from another partnership (a tiered partnership), the distribution also includes the tax withheld from that distribution.

If the distribution is in property other than money, the partnership cannot release the property until it has enough funds to pay over the withholding tax.

A publicly traded partnership that complies with these withholding requirements satisfies the requirements discussed later under U.S. Real Property Interest. Distributions subject to withholding include:

• Amounts subject to withholding under section 1445(e)(1) of the Code on distributions pursuant to an election under Regulations section 1.1445-5(c)(3), and
• Amounts not subject to withholding under section 1445 of the Code because the distributee is a partnership or is a foreign corporation that has made an election to be treated as a domestic corporation.

Partnership distributions are considered to be paid out of the following types of income in the order listed.

1. Amounts of noneffectively connected income distributed by the partnership and subject to NRA withholding under section 1441 or 1442, as discussed earlier.
2. Amounts of effectively connected income not subject to withholding under section 1446 (for example, amounts exempt by treaty).
3. Amounts subject to withholding under these rules.
4. Amounts not listed in (1) through (3).