Instructions For Forms 8804, 8805, And 8813

agents as requirements applicable to

2. The date the partnership receives

determining nonforeign status will not be

partnerships themselves.

notice from the partner that it has become

held liable for payment of the tax, any

a foreign person.

applicable penalties, or interest. However,

Determining If a Partner Is

3. The date the partnership learns that

if a partnership learns that any of these

the partner is, or has become, a foreign

forms contain false information, it may no

a Foreign Person

person.

longer rely on the form and will be liable

A partnership must determine if any

under section 1461 for any failure to pay

Form of certification. No particular form

partner is a foreign person subject to

the withholding tax under section 1446 for

nor any particular language is required for

section 1446. Under section 1446, a

the tax year in which it obtained that

certification of nonforeign status.

foreign person is a nonresident alien

knowledge. The partnership will not be

However, the certification must:

individual, foreign corporation, foreign

liable for penalties for failure to make

partnership, or foreign trust or estate. A

1. State that the partner is not a

timely payments of installments of the

partnership may determine a partner’s

foreign person.

section 1446 withholding tax that were

status by relying on a certification of

2. State the partner’s name, U.S.

due prior to the time it learned that the

nonforeign status or by any other means.

taxpayer identifying number, and home

information it properly relied on was false.

address (for individuals) or office address

Certification of Nonforeign

For a widely held partnership, the

(for entities).

Status

documentation used to determine the

3. State that the partner will notify the

nonforeign status of a partner must be

In general, a partnership may determine

partnership within 60 days of a change to

kept until the end of the 5th tax year

that a partner is not a foreign person by

foreign status.

following the last tax year in which the

obtaining a certification of nonforeign

4. Be signed by or for the partner

status from the partner. A partnership that

partnership properly relied on the

under penalties of perjury.

has obtained this certification may rely on

documentation.

it to establish the nonforeign status of a

A certification of nonforeign status

Use of Means Other Than

partner. See below.

must be verified as true and signed under

Certification

penalties of perjury by a responsible

Effect of certification. Generally, a

corporate officer for a corporation that is a

partnership that has obtained a

A partnership is not required to obtain a

partner, by a general partner for a

certification of nonforeign status

certification of nonforeign status. It may

partnership that is a partner, and by a

according to the rules in these

rely on other means to learn the

trustee, executor, or equivalent fiduciary

instructions may rely on the certification to

nonforeign status of the partner. But if the

for a trust or estate that is a partner. A

determine that the partner is not subject

partnership relies on other means and

certification of nonforeign status may also

to withholding. If a partnership relies in

erroneously determines that the partner

be signed by a person authorized under a

good faith on the certification, but it is

was not a foreign person, the partnership

properly executed power of attorney,

later determined that the certification was

will be held liable for payment of the tax,

provided the power of attorney

false, the partnership will not be held

any applicable penalties, and interest. A

accompanies the certification.

liable for payment of the tax, any

partnership is not required to rely on other

applicable penalties, or interest. A

How long to keep the certifications. A

means to determine the nonforeign status

certification that satisfies the

partnership must keep a certification of

of a partner and may demand a

requirements of these instructions will

nonforeign status until the end of the 5th

certification of nonforeign status. If a

also satisfy the requirements for a

tax year after the last tax year in which

certification is not provided, the

certificate of nonforeign status under

the partnership relied on the certification.

partnership may withhold tax under

section 1445.

section 1446 of the Code and will be

Special rule for widely held

considered for purposes of section 1461

Once a partnership learns that the

partnership. In addition to relying on a

through section 1463, to have been

certification is false, it will no longer be

certification of nonforeign status, a widely

required to withhold such tax.

entitled to rely on that certification. For

held partnership (a partnership that has

this purpose, the knowledge of any

more than 200 partners, including a

general partner will be imputed to the

publicly traded partnership) may rely on

Effectively Connected

partnership to cause a withholding

the information provided to it by partners

Taxable Income

liability. The knowledge of one of its

on a Form W-8BEN, Certificate of Foreign

limited partners will not be imputed to a

Status of Beneficial Owner for United

Definition

partnership based solely on that partner’s

States Tax Withholding, or Form W-9,

status as a limited partner. For a limited

Request for Taxpayer Identification

“Effectively connected taxable income” is

liability company or other entity classified

Number and Certification.

the excess of the gross income of the

as a partnership for federal income tax

partnership that is effectively connected

Also, a widely held partnership may

purposes, any member with authority to

under section 864(c), or treated as

rely on a certification under penalties of

manage or bind the entity is treated as a

effectively connected with the conduct of

perjury from a nominee (or intermediary)

general partner.

a U.S. trade or business, over the

about the nonforeign status of partners

allowable deductions that are connected

Also, the partnership will be liable

owning partnership interests through the

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

under section 1461 for any failure to pay

nominee. No particular form is required

Guide for Aliens, for detailed instructions

the withholding tax under section 1446 for

for this certification, but it should identify

regarding the computation of effectively

the tax year in which it learned that the

the partner for whom the certification is

connected taxable income. For purposes

certification is false. However, the

made and indicate the basis for the

of these instructions, figure this income

partnership will not be liable for penalties

certification. When making a certification,

with the following adjustments:

for failure to make timely payments of

a nominee may also rely on a certification

installments of section 1446 withholding

of nonforeign status or on information

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

tax that were due prior to the time it

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

2. The partnership is allowed a

learned that the certification was false.

nominee and a partnership may not rely

deduction for depletion of oil and gas

on any of those forms after the date that

Duration of certification. A partnership

wells, but the amount of the deduction

the forms must be re-executed, nor on a

may rely on a partner’s certification of

must be determined without regard to

certification of nonforeign status based on

nonforeign status until the earliest of the

sections 613 and 613A.

an election under section 897(i).

following:

3. The partnership may not take into

account items of income, gain, loss, or

1. The end of the 3rd year after the

A widely held partnership that relies in

deduction allocable to any partner that is

tax year of the partnership during which

good faith on a certification of nonforeign

not a foreign partner.

the certification was obtained.

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

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Instructions for Forms 8804, 8805, and 8813

Instructions For Forms 8804, 8805, And 8813 - 2004 Page 2

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