8804, 8805, 8813 Instructions for Forms 8804, 8805, and 8813

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2021

Instructions for Forms 8804,
8805, and 8813

Department of the Treasury
Internal Revenue Service

DRAFT AS OF
September 1, 2021

Section references are to the Internal Revenue
Code unless otherwise noted.

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 IRS.gov/Form8804,
IRS.gov/Form8805, and IRS.gov/
Form8813, respectively.

Reminders
Cross-crediting section 1446(f)(1)
withholding against section 1446(a)
withholding. Since January 1, 2018, a
foreign partnership has been subject to
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
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.
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, available at
IRS.gov/pub/irs-drop/td-9919.pdf, Gains
from sales of interests in partnerships
engaged in a trade or business in the
United States, later, and the instructions
for Line 6d of Form 8804, later. A
partnership that, for transfers occurring
on or after January 1, 2018, 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.

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General Instructions

Purpose of Forms

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.
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 partnership that
receives a Form 8805 from a lower-tier
partnership should see Tiered
Partnerships, later.
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
Cat. No. 10393W

beneficiaries' income tax returns. See
Schedule T—Beneficiary Information,
later.

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.

Taxpayer Identification
Number (TIN)

To ensure proper crediting of the
withholding tax when reporting to the
IRS, a partnership must provide a U.S.
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 aliens 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
individual is its U.S. employer
identification number (EIN).

Applying for an EIN

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).

Who Must File

Every partnership (other than a publicly
traded partnership) 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.

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 permitted to file these
forms on or before the 15th day of the
6th month, check the box at the top of
Form 8804.

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.

Withholding Agents

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).

DRAFT AS OF
September 1, 2021

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.
Note. Filing a Form 7004 doesn't
extend the time for payment of tax.

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

File Forms 8804, 8805, and 8813 with:
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.
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

For ease of reference, these instructions
refer to various requirements applicable
to withholding agents as requirements
applicable to partnerships themselves.

Determining if a Partner Is
a Foreign Person

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).
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 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.
• 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 described in
Regulations section 1.1446-1(c)(2)(ii)
(E)) with the necessary documentation
required for the trust and the grantor.
-2-

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:
• 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.
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

Instructions for Forms 8804, 8805, and 8813 (2021)

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.

Use of Means Other Than
Certification

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 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.

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.

DRAFT AS OF
September 1, 2021

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
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.

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.
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

See Regulations section 1.1446-2 for
additional information for calculating
ECTI.

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.

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.
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.

Instructions for Forms 8804, 8805, and 8813 (2021)

-3-

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.

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.
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
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.
See Regulations section 1.1446-3(a)
(2) for additional information.

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.

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.

DRAFT AS OF
September 1, 2021

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.

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.

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).

Gains from sales of interests in partnerships engaged 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 6d of
the Form 8804 filed by the foreign
partnership.

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.
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 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).
A foreign partner that is a foreign
trust or estate must provide to each of
its beneficiaries a Form 8805 completed
as described under Schedule T–
Beneficiary Information, later.
-4-

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.
If Form 8804 is filed more than 60
days late, the minimum penalty will be
$330, 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.
The penalty for each failure to file a
correct 2021 Form 8805 is $280, with a
maximum penalty of $3,426,000. See
section 3.57 of Rev. Proc. 2020-45,
available at IRS.gov/pub/irs-drop/
rp-20-45.pdf, for more information.
There are some situations where the
penalty under section 6721 is reduced
or eliminated. This can apply if the
partnership:
• 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 Forms 8805.
There can also be a higher penalty
imposed when the failure is due to

Instructions for Forms 8804, 8805, and 8813 (2021)

intentional disregard of the requirement
to file timely correct information returns.
For more information, see Rev. Proc.
2020-45, 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.

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.

See Regulations section 1.1446-3(d)
(2) for additional information.

Publicly Traded
Partnerships (PTPs)

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).

DRAFT AS OF
September 1, 2021

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.

The penalty for each failure to furnish
a correct 2021 Form 8805 to the
recipient is $280, with a maximum
penalty of $3,426,000. For more
information, see Rev. Proc. 2020-45,
section 3.58.
There are some situations where the
penalty under section 6722 is reduced
or eliminated. This can apply if the
partnership:
• 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.
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. 2020-45, section 3.58.
Reasonable cause. A partnership can
seek a waiver of the penalty if the
partnership can establish it had
reasonable cause for the failure.

Late Payment of Tax

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.
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.

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.
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.
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 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 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.
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.

Instructions for Forms 8804, 8805, and 8813 (2021)

-5-

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.

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.
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 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.
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
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.

Connected Taxable Income (ECTI).
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.

must be considered in determining the
category of income the reduction
amounts offset.

Line 5f

Add lines 5a through 5e.

Line 6b

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 by
lower-tier 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.

DRAFT AS OF
September 1, 2021

See Regulations section 1.1446-5 for
additional information.

Specific Instructions
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.

Form 8804
Lines 1c, 1d, 2c, and 2d

See Address, earlier.

Lines 4a, 4e, 4i, 4m, and 4q

Figure the partnership's ECTI using the
definition, earlier, under Effectively

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. 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.
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

Enter the reduction amounts for state
and local taxes under Regulations
section 1.1446-6(c)(1)(iii). See
Reductions for State and Local Taxes,
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.

Lines 4c, 4g, 4k, 4o, and 4s

Enter the reduction amounts resulting
from certified partner-level items
received from foreign partners using
Form 8804-C. See Certification of
Deductions and Losses, earlier, for
additional information. The netting rules
under section 1(h) and Notice 97-59
-6-

Line 6c

Enter on line 6c the amount of section
1446 tax withheld by a lower-tier PTP
that is reported to the partnership on
Form 1042-S. The amount withheld will
be shown in box 7a of the Form 1042-S.
(Box 1 of the Form 1042-S will show
income code 27.)

Line 6d

Line 6d applies only to partnerships
treated as foreign persons and:
• Subject to withholding under section
1445(a) or 1445(e)(1) upon the
disposition of a USRPI, or
• Subject to withholding under section
1446(f)(1) upon the disposition of an
interest in a partnership engaged in a
U.S. trade or business.
Enter on line 6d the amount of tax
withheld under section 1445(a), 1445(e)
(1), or 1446(f)(1) and shown on Form
8288-A for the tax year, but only to the
extent that the amount is allocable to
foreign partners. The amount withheld
will be shown in box 2 of the Form
8288-A.

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. The amount withheld will be
shown in box 7a of the Form 1042-S the
partnership receives from the trust. (Box
1 of the Form 1042-S will show income
code 25 or 26.)

Reporting Amounts Allocable
to Partners

For lines 6d and 6e, don’t enter more
than the amount allocable to foreign
partners (as defined in section 1446(e)).
Enter amounts allocable to U.S.
partners on line 15f of Schedule K

Instructions for Forms 8804, 8805, and 8813 (2021)

(Form 1065) and in box 15 (using code
P) of Schedule K-1 (Form 1065).

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
Schedule A (Form 8804). For more
information, see the Instructions for
Schedule A (Form 8804).

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.

Line 9

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
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 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 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.

DRAFT AS OF
September 1, 2021

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.

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. See
Taxpayer Identification Number, earlier,
for details.

Line 1c

See Address, earlier.

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 5c

See Address, earlier.

Line 8b

Check the box on this line if any of the
partnership's ECTI is treated as not

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).

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
• Adjusted net capital gain, including
qualified dividend 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).

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.
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.

Attachments

The partnership is required to attach to
Form 8805 the calculation described in

Instructions for Forms 8804, 8805, and 8813 (2021)

-7-

Note. With respect to the last two
bulleted items, a statement showing one
calculation for both items is permitted.
A partnership must attach all
applicable items referred to
CAUTION above to reduce its section
1446 withholding tax due by either of
the reductions referred to above.

!

Schedule T—Beneficiary
Information

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 Schedule T for
each of its beneficiaries and must
provide that Schedule T information to
each beneficiary.
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 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:
• Ordinary income;
• 28% rate gains;
• Unrecaptured section 1250 gains;
and
• Adjusted net capital gain, including
qualified dividend income and net
section 1231 gains.

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.

period even if no section 1446
withholding tax is due.
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 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.

DRAFT AS OF
September 1, 2021

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).

Form 8813
Line 1

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

Line 2

See Amount of each installment
payment of withholding tax, earlier, for
information on figuring the amount of the
payment.

Line 3

See Address, earlier.

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 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

Note. With respect to the last two
bulleted items, a statement showing one
calculation for both items is permitted.
A partnership must attach all
applicable items referred to
CAUTION above to reduce its section
1446 withholding tax due by either of
the reductions referred to above.

!

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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.

-8-

Instructions for Forms 8804, 8805, and 8813 (2021)