Instructions For Forms 8804, 8805, And 8813

obtaining a certification of nonforeign

4. Be signed by or for the partner

partnership properly relied on the

status from the partner. A partnership that

under penalties of perjury.

documentation.

has obtained this certification may rely on

A certification of nonforeign status

Use of Means Other Than

it to establish the nonforeign status of a

must be verified as true and signed under

Certification

partner. See below.

penalties of perjury by a responsible

A partnership is not required to obtain a

Effect of certification. Generally, a

corporate officer for a corporation that is a

partnership that has obtained a

certification of nonforeign status. It may

partner, by a general partner for a

certification of nonforeign status

rely on other means to learn the

partnership that is a partner, and by a

according to the rules in these

nonforeign status of the partner. But if the

trustee, executor, or equivalent fiduciary

instructions may rely on the certification to

partnership relies on other means and

for a trust or estate that is a partner. A

determine that the partner is not subject

erroneously determines that the partner

certification of nonforeign status may also

to withholding. If a partnership relies in

was not a foreign person, the partnership

be signed by a person authorized under a

good faith on the certification, but it is

will be held liable for payment of the tax,

properly executed power of attorney,

later determined that the certification was

any applicable penalties, and interest. A

provided the power of attorney

false, the partnership will not be held

partnership is not required to rely on other

accompanies the certification.

liable for payment of the tax, any

means to determine the nonforeign status

How long to keep the certifications. A

applicable penalties, or interest. A

of a partner and may demand a

partnership must keep a certification of

certification that satisfies the

certification of nonforeign status.

nonforeign status until the end of the 5th

requirements of these instructions will

tax year after the last tax year in which

also satisfy the requirements for a

Effectively Connected

the partnership relied on the certification.

certificate of nonforeign status under

Taxable Income

Special rule for widely held

section 1445.

partnership. In addition to relying on a

Once a partnership learns that the

Definition

certification of nonforeign status, a widely

certification is false, it will no longer be

held partnership (a partnership that has

“Effectively connected taxable income” is

entitled to rely on that certification. For

more than 200 partners, including a

the excess of the gross income of the

this purpose, the knowledge of any

publicly traded partnership) may rely on

partnership that is effectively connected

general partner will be imputed to the

the information provided to it by partners

under section 864(c), or treated as

partnership to cause a withholding

on a Form W-8BEN, Certificate of

effectively connected with the conduct of

liability. The knowledge of one of its

Foreign Status of Beneficial Owner for

a U.S. trade or business, over the

limited partners will not be imputed to a

United States Tax Withholding, or Form

allowable deductions that are connected

partnership based solely on that partner’s

W-9, Request for Taxpayer Identification

to such income. See Pub. 519, U.S. Tax

status as a limited partner. For a limited

Number and Certification.

Guide for Aliens, for detailed instructions

liability company or other entity classified

regarding the computation of effectively

as a partnership for Federal income tax

Also, a widely held partnership may

connected taxable income. For purposes

purposes, any member with authority to

rely on a certification under penalties of

of these instructions, figure this income

manage or bind the entity is treated as a

perjury from a nominee about the

with the following adjustments:

general partner.

nonforeign status of partners owning

partnership interests through the

1. Section 703(a)(1) does not apply.

Also, the partnership will be liable

nominee. No particular form is required

2. The partnership is allowed a

under section 1461 for any failure to pay

for this certification, but it should identify

deduction for depletion of oil and gas

the withholding tax under section 1446 for

the partner for whom the certification is

wells, but the amount of the deduction

the tax year in which it learned that the

made and indicate the basis for the

must be determined without regard to

certification is false. However, the

certification. When making a certification,

sections 613 and 613A.

partnership will not be liable for penalties

a nominee may also rely on a certification

3. The partnership may not take into

for failure to make timely payments of

of nonforeign status or on information

account items of income, gain, loss, or

installments of section 1446 withholding

provided by Forms W-8BEN or W-9. A

deduction allocable to any partner that is

tax that were due prior to the time it

nominee and a partnership may not rely

not a foreign partner.

learned that the certification was false.

on any of those forms after the date that

4. The partnership may not take into

Duration of certification. A partnership

the forms must be re-executed, nor on a

account any net operating loss carryovers

may rely on a partner’s certification of

certification of nonforeign status based on

or charitable contributions.

nonforeign status until the earliest of the

an election under section 897(i).

following:

A partnership’s effectively connected

A widely held partnership that relies in

taxable income includes partnership

1. The end of the 3rd year after the

good faith on a certification of nonforeign

income subject to a partner’s election

tax year of the partnership during which

status or Forms W-8BEN or W-9 in

under section 871(d) or 882(d) (election

the certification was obtained.

determining nonforeign status will not be

to treat real property income as income

2. The date the partnership receives

held liable for payment of the tax, any

connected with a U.S. business). It also

notice from the partner that it has become

applicable penalties, or interest. However,

includes any partnership income treated

a foreign person.

if a partnership learns that any of these

as effectively connected with the conduct

3. The date the partnership learns that

forms contain false information, it may no

of a U.S. trade or business under section

the partner is, or has become, a foreign

longer rely on the form and will be liable

897 (disposition of investment in U.S. real

person.

under section 1461 for any failure to pay

property), and other items of partnership

the withholding tax under section 1446 for

Form of certification. No particular form

income treated as effectively connected

the tax year in which it obtained that

nor any particular language is required for

under other provisions of the Internal

knowledge. The partnership will not be

certification of nonforeign status.

Revenue Code, regardless of whether

liable for penalties for failure to make

However, the certification must:

those amounts are taxable to the partner.

timely payments of installments of the

1. State that the partner is not a

Amount Allocable to Foreign

section 1446 withholding tax that were

foreign person.

Partners

due prior to the time it learned that the

2. State the partner’s name, U.S.

information it properly relied on was false.

taxpayer identifying number, and home

The amount of a partnership’s effectively

address (for individuals) or office address

For a widely held partnership, the

connected taxable income for the

(for entities).

documentation used to determine the

partnership’s tax year allocable to a

3. State that the partner will notify the

nonforeign status of a partner must be

foreign partner under section 704 equals

partnership within 60 days of a change to

kept until the end of the 5th tax year

(a) the foreign partner’s distributive share

foreign status.

following the last tax year in which the

of effectively connected gross income of

-2-

Instructions for Forms 8804, 8805, and 8813

Instructions For Forms 8804, 8805, And 8813 - 2002 Page 2

Related Articles

Related forms

Related Categories