Form 8804-C - Certificate of Partner-Level Items to Reduce Section 1446 Withholding

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Instructions for Form 8804-C

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16:43 - 8-MAY-2008

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2008

Department of the Treasury
Internal Revenue Service

Instructions for Form 8804-C
Certificate of Partner-Level Items to Reduce Section 1446 Withholding
Section references are to the Internal
Revenue Code unless otherwise noted.

General Instructions
Purpose of Form
Form 8804-C is used by a foreign partner
who chooses to provide to a partnership a
certification under Regulations section
1.1446-6 to reduce or eliminate the
partnership’s withholding tax obligation
under section 1446 (1446 tax) on the
partner’s allocable share of effectively
connected taxable income (ECTI) from
the partnership. The foreign partner uses
Form 8804-C to certify to the partnership
that it has certain partner-level deductions
and losses that can reduce or eliminate
the 1446 tax on its allocable share of
ECTI from the partnership or that its
investment in the partnership is its only
activity giving rise to effectively connected
income, gain, loss, or deduction. The
foreign partner also uses Form 8804-C to
update information previously certified to
the partnership for the same tax year
(updated certificate).
Each foreign partner who chooses to
submit a certificate to a partnership must
submit a separate Form 8804-C. Also, a
foreign partner must submit a new Form
8804-C for each tax year in which it
chooses to utilize the provisions of
Regulations section 1.1446-6.
A partnership that receives a Form
8804-C from a foreign partner may
consider the form in calculating, paying,
and reporting the 1446 tax due with
respect to the ECTI allocable to the
foreign partner. A partnership may
consider, in whole or in part, a Form
8804-C received from a foreign partner to
reduce or eliminate the 1446 tax withheld
and paid with respect to that partner
based on the deductions and losses
certified by the foreign partner on the
Form 8804-C.
A partnership can also eliminate the
1446 tax due with respect to a partner
that certifies, using Form 8804-C, that its
investment in the partnership is its only
activity giving rise to effectively connected
income, gain, loss, or deduction, if the
partnership estimates that the annualized
(or, in the case of a partnership
completing its Form 8804, the actual)
1446 tax otherwise due for that partner is
less than $1,000, without taking into
account any deductions or losses certified
by the partner to the partnership or any

state and local taxes paid by the
partnership on behalf of the partner.

When To File

Who Must File

Foreign partner. A foreign partner may
submit an original 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.
Partnership. A partnership must make
installment payments of 1446 tax with
respect to a foreign partner using Form
8813. For the first installment period in
which the partnership considers an
original or updated Form 8804-C in
calculating an installment payment of
1446 tax, the partnership must attach a
copy of the Form 8804-C to the Form
8813. For all subsequent installment
periods for which the partnership
considers the same Form 8804-C, the
partnership may, instead of attaching a
copy of the Form 8804-C, attach to the
Form 8813 a statement listing the
following information for each foreign
partner whose certificate was relied upon
during that installment period:
• Name,
• Taxpayer identification number, and
• The amount of certified deductions and
losses, and the amount of state and local
taxes (if any) the partnership may
consider under Regulations section
1.1446-6(c)(1)(iii).

Foreign partner. A foreign partner must
use Form 8804-C to provide a certification
to a partnership under Regulations
section 1.1446-6 to reduce or eliminate
the 1446 tax the partnership must
withhold and pay on ECTI allocable to the
foreign partner. The foreign partner uses
Form 8804-C to certify to the partnership
that it meets all the requirements of the
regulations, and represents that the
information provided, including filing
requirements, is true, correct, and
complete.
Failure to accurately supply all the
information requested by the form
CAUTION (including attachments) may result
in the IRS rejecting the form and prevent
the partnership from considering the
certifications in the form in calculating its
1446 tax on the partner’s allocable share
of ECTI.

!

A foreign partner should not file
Form 8804-C with the IRS. Only
CAUTION the partnership files Form 8804-C
with the IRS.
Partnership. A partnership that receives
a Form 8804-C from a foreign partner is
not obligated to consider the Form
8804-C in computing the 1446 tax due
with respect to that foreign partner.
However, if the partnership considers the
Form 8804-C in computing the 1446 tax
due with respect to a foreign partner, the
partnership must submit a copy of the
Form 8804-C to the IRS as explained in
When To File below.
If you receive written notification from
the IRS that a foreign partner’s certificate
is defective, you may not use that
certificate or any other certificate
submitted by the foreign partner for the
year submitted or any subsequent year
until you receive written notification from
the IRS revoking or modifying the original
notification.
Transition rule. A certificate that meets
the requirements of Regulations section
1.1446-6T(c), as in effect before January
1, 2008, submitted on or before July 28,
2008, by a partner that meets the
requirements of Regulations section
1.1446-6T(b), as in effect before January
1, 2008, will not be considered defective.
However, foreign partners must submit all
certificates (including updated certificates)
after July 28, 2008, using Form 8804-C.

!

Cat. No. 51633R

If the partnership is relying on a de
minimis certification submitted by a
foreign partner, the statement attached to
the Form 8813 should instead indicate
that no 1446 tax is due with respect to
that partner based on the de minimis
certification.
In all events, the partnership must
attach the foreign partner’s most recently
submitted Form 8804-C (whether it be the
original or an updated certificate) to the
Form 8805 filed for the partnership’s tax
year in which the Form 8804-C was
considered.
In all events, the partnership must also
attach a copy of the computation of 1446
tax due with respect to such foreign
partner to all Forms 8813, Partnership
Withholding Tax Payment Voucher
(Section 1446), and Forms 8805, Foreign
Partner’s Information Statement of
Section 1446 Withholding Tax, filed with
the IRS for any installment period or year
for which such Form 8804-C is
considered in computing the partnership’s
1446 tax. The computation of 1446 tax
due attached to each form must include
the amount, if any, of state and local
taxes described in Regulations section

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Instructions for Form 8804-C

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The same rule applies with respect to the filing of Forms
8804 and 8805 at the end of the partnership's tax year.
1.1446-6(c)(1)(iii) that is taken into
account with respect to that partner.
A partnership that considers a Form
8804-C received from a foreign partner
(including an updated Form 8804-C)
when computing its 1446 tax due with
respect to such partner must file Form
8813 for each installment period for which
the Form 8804-C is considered. The
partnership will also need to file Form
,
8804 and 8805 at the end of the
partnership’s tax year. This rule applies
even if, as a result of relying on the
certificate, no 1446 tax (or an installment
of such tax) is due with respect to such
foreign partner.
A partnership that fails to comply with
the above requirements will not qualify to
consider a foreign partner’s Form 8804-C
in calculating its 1446 tax. Therefore, a
partnership that considers a foreign
partner’s Form 8804-C under these
circumstances will have underpaid its
1446 tax and may be subject to an
underpayment penalty. See Regulations
sections 1.1446-3(b)(2) and
1.1446-6(d)(3).
Insert Caution icon

Tiered Partnership Rules
The following special rules apply to a
partnership (upper-tier partnership), with
one or more foreign partners, that is also
a partner in another partnership
(lower-tier partnership).
1. An upper-tier partnership may
submit Forms 8804-C for its direct or
indirect foreign partners to a lower-tier
partnership only to the extent that
Regulations section 1.1446-5 applies to
allow the lower-tier partnership to look
through the upper-tier partnership (and
any partnership owning an interest in the
upper-tier partnership for which the
upper-tier partnership is submitting Forms
8804-C for that partnership) to its
partners. Included in this requirement is
that the upper-tier partnership provide the
lower-tier partnership sufficient
documentation under Regulations section
1.1446-1 to determine the status of these
partners and determine their indirect
share of the lower-tier partnership’s ECTI.
See Regulations sections 1.1446-5(c) and
(e).
2. An upper-tier partnership that
submits a Form 8804-C of a direct or
indirect foreign partner to a lower-tier
partnership may not submit that Form
8804-C to another lower-tier partnership.
3. An upper-tier partnership that relies
on a Form 8804-C submitted to it by a
direct or indirect foreign partner to
compute its 1446 tax due on ECTI
allocable to that partner (other than ECTI
allocated to it from a lower-tier
partnership) may not submit that Form
8804-C to any lower-tier partnership.
4. A lower-tier partnership that relies
on a Form 8804-C of a foreign partner in
an upper-tier partnership to reduce the
1446 tax due with respect to such foreign
partner must submit sufficient information
with each Form 8813, and Form 8805, so
that the IRS may reliably associate the

ECTI and the Form 8804-C with the
foreign partner in the upper-tier
partnership. The information submitted
must include the foreign partner’s name
and taxpayer identification number, as
well as the allocations of effectively
connected items at each partnership
level.

Avoid Common Errors
Foreign partner. To ensure that your
Form 8804-C is accepted, be sure that
you:
• Answer all applicable questions
completely.
• Complete the date of certification in the
space provided in Part I.
• Enter your complete name, address,
and identifying number in Part I, Section
A.
the
• Enter the complete name, address, and
EIN of the partnership in Part I, Section B.
• Have attached any statement required
by line 5e, 8b, 8d, 8e, or 8f.
• If making the certification in Part II,
complete lines 8a through 8f accurately to
allow the IRS to determine the benefit you
are claiming.
• List on line 4a all returns that have not
been filed.
• Sign and date Part IV. If signed by an
authorized representative, be sure to
attach a copy of the power of attorney.
Partnership. To qualify to consider a
Form 8804-C to reduce the amount of
1446 tax withheld and paid, be sure to:
• Attach Form 8804-C to Form 8813 for
the first installment it is considered. For
subsequent installments, see the
instructions for When To File on page 1.
Also attach Form 8804-C to Form 8805
the Form 8804-C
when you file Form 8804.
• When paying installments of 1446 tax
with Form 8813, attach the required
computation of 1446 tax due, if
certification on Form 8804-C is
considered. Also attach the required
computation of 1446 tax due to Form
8805 when you file Form 8804.

Specific Instructions
Part I – General
Information

If the partner is
an individual,
the

submitted a certificate for its 2006 tax
year, enter “January 1, 2006 – December
31, 2006.”

Item C. Updated certificate
See Form 8804-C, line 5, for the
circumstances when an updated
certificate is required.

Addresses
When providing a U.S. street address on
Form 8804-C, include the suite, room, or
other unit number after the street
address. If the Post Office does not
deliver mail to the street address and the
foreign partner (or partnership) has a P.O.
box, enter the box number instead of the
street address. If the foreign partner (or
partnership) receives its mail in care of a
third party (such as an accountant or
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-C, enter the number and street, city,
province or state, and the name of the
country. Follow the foreign country’s
practice in placing the postal code in the
address. Do not abbreviate the country
name.
, if that line has been completed.

Section A – Partner
Information
Foreign partner’s name
Enter the foreign partner’s name. If the
partner is an individual, enter the
partner’s last name (surname), then first
name. For business entities, enter the
complete and official business name (as
set forth in the charter or other legal
document creating it). If a “c/o” or another
person’s name is necessary, insert that
information in the address line.

Foreign partner’s taxpayer
identifying number (TIN)
An individual foreign partner’s TIN is the
individual’s social security number or
individual taxpayer identification number,
and must be entered using a
NNN-NN-NNNN format (for example,
123-45-6789). The TIN of any other
foreign partner is its U.S. employer
identification number (EIN), and must be
entered using a NN-NNNNNNN format
(for example, 12-3456789).

Item A. First certificate

Date of certification

Check the box only if the partner is
submitting a Form 8804-C to any
partnership for the first time, and has
never submitted a certificate to any
partnership under the section 1446
regulations for any tax year.

Enter the date when the foreign partner
submits the certificate (Form 8804-C) to
the partnership. Use a MM/DD/YYYY
format (for example, 09/22/2008).

Item B. Previously submitted
certificate

See Addresses above.

If applicable, enter the foreign partner’s
first tax year for which it submitted a
certificate under the section 1446
regulations to any partnership. For
example, if the foreign partner is a
calendar year taxpayer and previously

Attach the required computation of 1446 tax due (see When To File
on page 1) to Form 8813 for any installment period such Form
8804-C is considered in computing the partnership's 1446 tax.

-2-

Foreign partner’s address

Section B – Partnership
Information
Partnership’s name
Enter the partnership’s name. If a “c/o” or
another person’s name is necessary,
Instructions for Form 8804-C

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Instructions for Form 8804-C

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indicates

delete
insert that information in the address line
below.

Employer identification number
(EIN)
Enter the partnership’s EIN using a
NN-NNNNNNN format (for example,
12-3456789).

Partnership’s address
See Addresses above.

Section C – Partner
Representations
Line 1a
(a)

delete

A foreign partner must represent that the
Form 8804-C is not being submitted to a
publicly traded partnership. A publicly
traded partnership is any partnership
whose interests are regularly traded on
an established securities market or is
readily tradable on a secondary market
and that is not treated as a corporation.
See section 7704.
, and (b)

Line 1b
The only type of trust that may submit a
certificate to a partnership is a grantor
trust. A grantor trust is any trust over
which the grantor or other owner retains
the power to control or direct the trust’s
income or assets. See sections 671
through 679. A grantor trust may submit a
certificate if the grantor or other owner of
the trust has submitted the certificate and
has met the documentation requirements
of Regulations section 1.1446-1.

Lines 2a and b
A partner may make estimated payments
for both income tax and self-employment
tax, as well as other taxes and amounts
reported on its tax return. If the partner
does not pay enough tax through
withholding or estimated tax payments, it
may be charged a penalty. If the partner
does not pay enough tax by the due date
of each payment period, it may be
charged a penalty even if it is due a
refund when it files its tax return. For
more information see Forms 2210 and
2220.

Line 2c
The character of a loss includes whether
the loss is ordinary or capital and whether
or not it is passive.

Line 2d
See Form of certification in the
Instructions for Forms 8804, 8805, and
8813 for a listing of documentation a
foreign partner can provide to a
partnership under Regulations section
1.1446-1 to establish its foreign status.
bf itals
Lines 3a and 3b
The following examples illustrate the
required representations.
Example 1. A foreign individual (NRA)
and a U.S. individual (B) form a
partnership (PRS) in 2008 to conduct a
trade or business in the United States.
NRA and B provide PRS appropriate

documentation under Regulations section
1.1446-1 to establish their status for
purposes of section 1446. NRA, B, and
PRS are calendar year taxpayers. NRA
submits a Form 8804-C to PRS on July
22, 2008, to be considered by PRS in
determining its 1446 tax due with respect
to NRA for the third installment period in
2008. The Form 8804-C states that NRA
reasonably expects to have an effectively
connected net operating loss of $5,000
available to offset his allocable share of
ECTI from PRS in 2008. Prior to 2008,
NRA had not submitted a certificate to a
partnership. NRA filed his 2005 U.S.
federal income tax return on March 13,
2007; his 2006 U.S. federal income tax
return on February 12, 2008; and his
2007 U.S. federal income tax return on
April 13, 2008. NRA will file his 2008 U.S.
federal income tax return on May 14,
2009. NRA paid (or will pay) all amounts
due with respect to the returns (including
interest, penalties, and additions to tax, if
any) by the date they are filed. NRA’s
2005 through 2007 U.S. federal income
tax returns report income or gain
effectively connected with a U.S. trade or
business or deductions or losses properly
allocated and apportioned to such
activities.

Under these circumstances NRA was
required to have timely filed his U.S.
federal income tax return for 2005 and all
subsequent tax years. Because NRA did
not timely file his 2005 U.S. federal
income tax return, NRA is not eligible to
submit a certificate to any partnership,
including PRS, for any subsequent tax
year, including 2008.

Line 4a
A foreign partner submitting a Form
8804-C to the partnership must list all
returns required under line 3a or 3b that
have not been filed at the time of the
Form 8804-C submission.
Example 3. A foreign partner submits a
Form 8804-C to its U.S. partnership on
June 2, 2008, but has not yet filed its
2007 U.S. federal income tax return. The
foreign partner discloses the required
information on line 4a as follows.
Return Form: 1040NR
Tax Year Ended: December 31, 2007
Filing Due Date: June 15, 2008

Section D – Updated
line
Certificates

bf itals

Because 2008 is NRA’s first tax year
for which he is submitting a certificate to
any partnership (regardless of whether he
was a partner in PRS or any other
partnership during each of these years),
he must meet the following requirements:
1. His U.S. federal income tax return
for the 2007 tax year must be timely filed,
including any extensions he obtained;
2. His U.S. federal income tax return
for the 2005 and 2006 tax years must
have been filed by the earlier of:
• The date that is one year after the
due date set forth in section 6072(c) for
filing such return, not including any
extensions of time to file; or
• July 22, 2008, the date on which this
certificate is submitted to the partnership;
3. All amounts due with each return
(including interest, penalties, and
additions to tax, if any) must have been
(or will be) paid on or before these dates
for filing such returns.

A partner must submit any updated
certificates required by lines 5a, 5c, and
5d within 10 days of the occurrence of the
event described on those lines. Like the
original Form 8804-C, a partner must
submit any updated Forms 8804-C to the
partnership, not the IRS. It is possible that
the foreign partner may need to check
more than one box.
delete

submit a certificate to PRS in 2008. paragraph

Line 5c

Example 2. Assume the same facts as
Example 1 except NRA had submitted a
certificate to another partnership in 2005.

The character of a loss includes whether
the loss is ordinary or capital and whether
or not it is passive.

or

Example 4. When the foreign partner
submitted its original certificate to the
partnership, it had not yet filed a prior
year U.S. federal income tax return.
When the foreign partner files the tax
return, it determines that it had overstated
the amount of the loss certified on its
original certificate. The partner would
check boxes 5a and 5c when it submits
its updated certificate.

Line 5b

Move down after
second sentence.

The partnership’s installment due dates of
1446 tax are the 15th day of the 4th, 6th,
9th, and 12th months of its tax year. For
calendar year partnerships, these
While NRA’s 2005 and 2006 U.S.
correspond to the 15th day of April, June,
federal income tax returns were filed after
September, and December. A partner
their due dates, they were filed within one
must inform the partnership before the
year of the due date and before NRA
partnership’s final installment due date if
submitted his certificate to PRS. In
of 1446 tax.
addition, if NRA files his 2007 U.S. federal the partner will not have filed a prior
year’s
income
tax
return
by
that
date.
The
income tax return on April 13, 2008, and
foreign partner will also need to submit to
his 2008 U.S. federal income tax return
the partnership another updated Form
on May 14, 2009, then such returns will
8804-C when it files that prior year’s
be timely filed. Finally, all amounts due
return. The foreign partner must inform
with each return (including interest,
the partnership if it fails to file the prior
penalties, and additions to tax, if any)
year’s return by its due date including any
were (or will be) paid on or before these
Insert A (see page 5)
dates. Therefore, NRA is eligible to Begin new extensions obtained.

Instructions for Form 8804-C
On that updated Form 8804-C, the foreign partner will check the box
on line 5a to inform the partnership of the occurrence of the event.

-3-

Insert B (see page 5)

A foreign partner must check the box on line 5b to provide the status update
required by Regulations section 1.1446-6(c)(2)(ii)(B)(1). This update informs the
partnership that an un-filed prior year U.S. federal income tax return listed on a
previous certificate remains un-filed. This updated certificate must be provided to

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Instructions for Form 8804-C

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Certifications
Line 5d

Line 8

Examples of when another activity would
give rise to effectively connected income,
gain, loss, or deduction include if the
foreign partner began a U.S. trade or
business or invested in a partnership that
is engaged in a U.S. trade or business.

The following instructions explain the
responsibilities of the partner and the
partnership with respect to this line.
Partnership. A partnership must take
into account any limitations on the use of
any deduction or loss certified by the
foreign partners on Form 8804-C in
determining the 1446 tax due with respect
to the partner. For example, a partner
certifies passive activity losses on line 8d
and identifies the activities the partnership
conducts that the partner expects will be
passive activities. The partnership must
limit the amount of certified loss it
considers relating to each activity to the
amount of income the partnership
generates from that activity.
Foreign partner. Enter on the
appropriate line the amount of the eligible
deductions and losses that are being
represented to the partnership. The
character of the deductions and losses
will determine where the entry is made.
Any deductions and losses certified to the
partnership from another partnership
must be reported on a Form 1065
(Schedule K-1) issued (or to be issued) to
the foreign partner by such other
partnership.

Line 5e
Examples of other information that would
require an updated certificate include a
partner correcting an incorrect taxpayer
identification number or address listed on
the original Form 8804-C.

Part II – Certification of
Deductions and Losses
Under Regulations Section
1.1446-6(c)(1)(i)
In Part II, the foreign partner makes
representations about the character and
amounts of its deductions and losses that
are available to offset its allocable share
of ECTI. The foreign partner also lists the
amounts and character of the eligible
deductions and losses. Deductions and
losses certified to a partnership for a tax
year of the partnership may not be
certified to another partnership whose tax
year begins or ends with or within the tax
year of the partnership to which the
deductions and losses were certified.
Note. If Part III is applicable, it is not
necessary to complete Part II. However,
under some circumstances, it may be
advisable to complete both Part II and
Part III. See the instructions for line 11
below for more information.
A partner

Line 6
A partner may not certify charitable
contribution deductions to the partnership.

Line 7

Begin new paragraph

A foreign partner cannot certify a loss or
deduction for a tax year that ends on the
same date as or after the partnership’s
tax year ends. See lines 3a and 3b above
for the filing dates required for U.S.
federal income tax returns on which the
deductions and losses must be reflected.
bf itals

Example 5. Both the foreign partner
and the partnership have calendar tax
years. The foreign partner may certify a
net operating loss (NOL) for its 2007 tax
year to the partnership for the
partnership’s 2008 tax year. However, the
foreign partner may not certify an NOL for
its 2008 tax year for the partnership’s
2008 tax year.
Example 6. The foreign partner has a
fiscal tax year ending on June 30, and the
partnership has a calendar tax year. The
foreign partner may not certify an NOL for
its tax year ending June 30, 2008, to the
partnership until after June 30, 2008. If
the foreign partner certifies the NOL on
July 15, 2008, the partnership is not
permitted to consider that NOL until its
September 15, 2008, installment due
date.
Partnership.

!

CAUTION

A foreign partner may not certify
current year deductions and
losses to a partnership.
its first

Column (a)

A partner submitting an original certificate
should complete column (a) only.
Partners submitting updated certificates
should complete columns (a), (b), and (c).
A partner submitting an updated
certificate should enter the amounts from
the partner’s original certificate submitted
to the partnership for the current tax year.
If the original certificate has been
superseded, enter the amounts from the
most recent certificate submitted to the
partnership.

partnership may not consider a partner’s
certified NOL deduction in an amount
greater than 90% of the partner’s
allocable share of ECTI reduced by all
other certified deductions whether or not
otherwise taken into account, as well as
state and local income taxes the
partnership withholds on behalf of the
partner that are taken into account under
Regulations section 1.1446-6(c)(1)(iii).
The 90% limitation should be applied on a
cumulative basis for each installment
period. Note that if the partnership’s
annualized income changes during the
year, the limitation on the amount of the
certified NOL deduction that the
partnership may take into account can
increase or decrease accordingly. See
Regulations section 1.1446-3(b)(2)(i)(B).

Line 8b
Attach a statement that indicates the type
and amount of each capital loss. The
foreign partner must distinguish
short-term capital losses from long-term
capital losses in the attachment.

Line 8c
Enter only those losses suspended under
section 704(d) that are attributable to the
partnership to which this certificate is
being submitted. Section 704(d) limits the
amount of losses (that flow through a
partnership to a partner) to the partner’s
basis in the partnership. Any excess
losses are suspended and may not be
used by the partner until the partner’s
basis increases. A partner may certify its
losses suspended under section 704(d)
only to the partnership to whom those
losses are attributable.

Line 8d

for the current tax year

Enter only those suspended activity
losses that meet the requirements of
Regulations section 1.1446-6(c)(1)(i)(D).
Attach a statement identifying the
partnership activity to which each loss
relates. For more information regarding
in column (a) from its first
passive activity losses, see Form 8582
Column (b)
and Pub. 925.
Enter the net increase or net decrease for
an updated certificate
Line 8e
each line being changed.
Enter only those suspended at-risk losses
Column (c)
that meet the requirements of Regulations
Add the increase in column (b) to the
section 1.1446-6(c)(1)(i)(D). Attach a
amount in column (a), or subtract the
statement identifying the partnership
column (b) decrease from column (a).
activity to which each loss relates. For
Enter the result in column (c). For an item
more information regarding at-risk loss
that did not change, enter the amount
limitations, see Form 6198 and Pub. 925.
from column (a) in column (c).
Line 8f
Note. Show any negative numbers
Enter other ordinary deductions and
(losses or decreases) in columns (a), (b),
losses described in Regulations section
or (c) in parentheses.
1.1446-6(c)(1)(i) that are subject to
Line 8a. Net operating loss
partner level limitation or warrant special
consideration. A foreign partner must
carryover
identify in an attachment any other
Foreign partner. The NOL must be
certified losses or deductions that are
connected with gross income which is
subject to special limitations at the partner
effectively connected (or treated as
level.
effectively connected) with conduct of the
partner’s trade or business in the United
Line 9
States.
If a foreign partner is a partner in more
Partnerships. Regulations section
than one partnership, the partner can
1.1446-6(c)(1)(i)(C) provides that a
certify some of its deductions and losses

-4init caps

Instructions for Form 8804-C

Page 5 of 5

Instructions for Form 8804-C

16:43 - 8-MAY-2008

The type and rule above prints on all proofs including departmental reproduction proofs. MUST be removed before printing.

two
to one partnership and some to another.
However, the total of any one type of
deduction or loss certified to all
partnerships cannot exceed the amount
of that deduction or loss carried forward
from a prior year that the partner may
claim on its current year U.S. federal tax
return.

Line 10
The foreign partner may not utilize
deductions and losses that have been
disallowed or proposed to be adjusted by
the IRS. This refers not only to loss
disallowances or proposed adjustments
resulting from an IRS audit of the foreign
partner, but also to those resulting from
an administrative proceeding of a
partnership (in which the partner is or was
a partner) that affects the foreign
partner’s original distributive share of
deductions and losses from a prior year.

Part III – Certification
Under Regulations Section
1.1446-6
Line 11
When applicable under Regulations
section 1.1446-6(c)(1)(ii)(B), a foreign
partner may certify that its investment in
the partnership is (and will be) the sole
activity that will give rise to effectively
connected income, gain, deduction, or
loss during the partner’s tax year in which
Form 8804-C is submitted to the
partnership. The foreign partner must
make this determination based on the
partnership’s tax year that ends with or
within the partner’s tax year. A qualifying
foreign partner makes this certification by
checking the box on line 11.
A foreign partner may make the
certification on line 11 without making the
certifications in Part II. However, see the
next paragraph for the only circumstance
when a partnership may consider a
certification on line 11. A foreign partner
making the certifications in Part II need
not make the certification on line 11.
A partnership that receives this
certification from a foreign partner, and
that may reasonably rely on such
certification, is not required to pay 1446
tax (or any installment of such tax) with

on the form

respect to such partner if the partnership
estimates that the annualized (or, in the
case of a partnership completing its Form
8804, the actual) 1446 tax otherwise due
with respect to such partner is less than
$1,000, without taking into account any
deductions or losses the foreign partner
certified to the partnership or any state
and local taxes the partnership withholds
on behalf of the partner.

Part IV – Disclosure
Consent and Signature
Foreign partners should note the
importance of the following statements to
which they are consenting to and
certifying under penalties of perjury:
“Consent is hereby given to disclosures of
return and return information by the
Internal Revenue Service pertaining to
the validity of this certificate to the
partnership or other withholding agent to
which this certificate is submitted for the
purpose of administering section 1446.”
The foreign partner’s consent gives the

IRS authority to contact the partnership or
withholding agent directly with questions
to ensure processing of the certificate.
The foreign partner will receive copies of
all IRS correspondence with the
partnership regarding the certificate.
The second statement is a penalty of
perjury statement required by the
regulations. The statement requires the
signature of the partner, or its authorized
representative, under penalties of perjury,
and the date that the Form 8804-C was
signed.
If a representative of the partner signs
and dates the Form 8804-C, a power of
attorney specifically authorizing the
representative to make this
representation must be attached to the
Form 8804-C.
A partnership will not be able to
consider a Form 8804-C unless all the
above requirements are met.
delete

Date

Enter the date when the foreign partner
signs Form 8804-C. Use the format MM/
DD/YYYY (for example, 09/22/2008).
The first statement
reads as follows:

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. Section 6109 requires return
preparers to provide their identifying numbers on the return.
You are not 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 may 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 average times are:
Recordkeeping
Learning about the law or the form
Preparing the form
Copying, assembling, and sending
the form to the IRS

xx min.
xx min.
xx min.
xx min.

If you have comments concerning the accuracy of these time estimates or
suggestions for making this form simpler, we would be happy to hear from you. You
can write to the Internal Revenue Service, Tax Products Coordinating Committee,
SE:W:CAR:MP:T:T:SP, 1111 Constitution Ave. NW, IR-6526, Washington, DC 20224.
Do not send the tax forms to this address. Instead, see Where To File on page 1.

under which
Insert A (to be inserted on page 3)
Also, the foreign partner must attach to Form 8804-C a statement stating whether the first
certificate submitted may continue to be considered by the partnership.
If the partnership does not receive an updated certificate from the partner prior to the
partnership's final installment due date, the partnership must disregard the partner's
certificate when computing the 1446 tax due with respect to that partner for the final
installment period and when completing its Form 8804 for the tax year. See Regulations
section 1.1446-6(c)(2)(ii)(B)(1) for additional information.
The foreign partner is also required

Instructions for Form 8804-C

-5-

Insert B (to be inserted on page 3)
In this case, the partnership must disregard the partner's
certificate when computing the 1446 tax due with respect to
that partner for all remaining installment periods and when
completing its Form 8804 for the tax year.