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

Instructions for Form 8804-C
(Rev. November 2012)

Department of the Treasury
Internal Revenue Service

(Use with the March 2009 revision of Form 8804-C)
Certificate of Partner-Level Items to Reduce Section 1446 Withholding

General Instructions

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.

Purpose of Form

Who Must File

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

Future Developments

For the latest information about
developments related to Form 8804-C,
and its instructions, such as legislation
enacted after they were published, go to
www.irs.gov/form8804.

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 may also eliminate the
1446 tax due with respect to a partner that
certifies, using Form 8804-C, that its

Nov 16, 2012

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
CAUTION
form (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 the partnership receives written
notification from the IRS that a foreign
partner's certificate is defective, the
partnership may not use that certificate or
any other certificate submitted by the
foreign partner for the year submitted or
any subsequent year until the partnership
Cat. No. 51633R

receives written notification from the IRS
revoking or modifying the original
notification.

When To File
Foreign partner. A foreign partner may
submit a Form 8804-C to a partnership at
any time during the partnership's year and
prior to the partnership's filing of its Form
8804.
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 a 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).
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 to the Form 8805
filed for the partnership's tax year in which
the Form 8804-C was considered.
Also, in all events, the partnership must
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 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, 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. The same
rule applies with respect to the filing of
Forms 8804 and 8805 at the end of the
partnership's tax year.
A partnership that fails to timely file a
valid certificate and computation of 1446
tax due is considered to have satisfied the
above filing requirements if the partnership
demonstrates to the IRS that the failure
was due to reasonable cause and not
willful neglect. See Regulations section
1.1446-6(d)(3)(ii) for more information,
including the requirements and
documents necessary to be submitted to
satisfy this requirement. All required
documentation should be mailed to:
Department of the Treasury
Internal Revenue Service Center
Philadelphia, PA 19255-0549
A partnership that fails to comply
with the above requirements will
CAUTION
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).

!

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.
Enter the complete name, address, and
EIN of the partnership in Part I, Section B.
Attach any statement required by
line 5f, 8b, 8d, 8e, or 8f, if the line(s) is
applicable.
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 the Form 8804-C is
considered. For subsequent installments,
see When To File, earlier. Also attach
Form 8804-C to Form 8805 when filing
Form 8804.
Attach the required computation of
1446 tax due (see When To File, earlier)
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to Form 8813 for any installment period
such Form 8804-C is considered in
computing the partnership's 1446 tax.
Also attach the required computation of
1446 tax due to Form 8805 when filing
Form 8804.

Specific Instructions
Partnership tax year. Enter in the space
below the title of Form 8804-C the tax year
of the partnership to whom you are
furnishing this certificate. If you are
uncertain, contact the partnership and
request its tax year.

Part I – General
Information
Item A. First certificate

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.

Item B. Previously submitted
certificate

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
submitted a certificate for its 2010 tax
year, enter “January 1, 2010 – December
31, 2010.”

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.

Instructions for Form 8804-C (Rev. 11-2012)

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)

If the partner is an individual, the 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).

Date of certification

Enter the date when the foreign partner
submits the certificate (Form 8804-C) to
the partnership. Use a MM/DD/YYYY
format (for example, 09/24/2012).

Foreign partner's address

See Addresses, earlier.

Section B – Partnership
Information
Partnership's name

Enter the partnership's name. If a “c/o” or
another person's name is necessary,
insert that information in the address line.

Employer identification number
(EIN)

Enter the partnership's EIN using a
NN-NNNNNNN format (for example,
12-3456789).

Partnership's address
See Addresses, earlier.

Section C – Partner
Representations
Line 1a

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 (a)
whose interests are regularly traded on an
established securities market or is readily
tradable on a secondary market (or the
substantial equivalent thereof), and (b)
that is not treated as a corporation. See
section 7704.

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.

Line 2a

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 2b

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

Line 2c

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.

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 2012 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
23, 2012, to be considered by PRS in
determining its 1446 tax due with respect
to NRA for the third installment period in
2012. The Form 8804-C indicates 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 2012. Prior to
2012, NRA had not submitted a certificate
to a partnership. NRA filed his 2009 U.S.
federal income tax return on March 14,
2011; his 2010 U.S. federal income tax
return on February 13, 2012; and his 2011
U.S. federal income tax return on April 13,
2012. NRA will file his 2012 U.S. federal
income tax return on May 14, 2013. NRA

Instructions for Form 8804-C (Rev. 11-2012)

-3-

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 2009
through 2011 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.
Because 2012 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 2011 tax year must be timely filed,
including any extensions he obtained;
2. His U.S. federal income tax return
for the 2009 and 2010 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 23, 2012, 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.
While NRA's 2009 and 2010 U.S.
federal income tax returns were filed after
their due dates, they were filed within one
year of the due date and before NRA
submitted his certificate to PRS. In
addition, if NRA files his 2011 U.S. federal
income tax return on April 13, 2012, and
his 2012 U.S. federal income tax return on
May 14, 2013, then such returns will be
timely filed. Finally, all amounts due with
each return (including interest, penalties,
and additions to tax, if any) were (or will
be) paid on or before these dates.
Therefore, NRA is eligible to submit a
certificate to PRS in 2012.
Example 2. Assume the same facts as
Example 1 except NRA had submitted a
certificate to another partnership in 2009.
Under these circumstances NRA was
required to have timely filed his U.S.
federal income tax return for 2009 and all
subsequent tax years. Because NRA did
not timely file his 2009 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 2012.

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 1, 2012, but has not yet filed its 2011
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, 2011
Filing Due Date: June 15, 2012

Section D – Updated
Certificates

A foreign partner must submit any updated
certificate(s) required by line 5a, 5c, 5d, or
5e within 10 days of the occurrence of the
event described on the applicable line(s).
Like the first Form 8804-C, a partner must
submit any updated Forms 8804-C to the
partnership, not the IRS.
Example 4. When the foreign partner
submitted its first 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 first
certificate. The partner would check boxes
5a and 5d when it submits its updated
certificate.

Lines 5b and 5c

A foreign partner checks the box on
line 5b or line 5c to provide the status
update required by Regulations section
1.1446-6(c)(2)(ii)(B)(1), if applicable. 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 the partnership before
the partnership's final installment due date
of 1446 tax. 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 correspond to the 15th day of April,
June, September, and December.
If the first certificate submitted can
continue to be considered by the
partnership, check the box on line 5b. If
the first certificate submitted can no longer
be considered by the partnership, check
the box on line 5c.
If the partnership does not
receive an updated certificate
CAUTION
from the partner prior to the
partnership's final installment due date (or
if the statement described in the previous
paragraph is not attached to the
certificate), 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 to
submit to the partnership another updated
Form 8804-C when it files the prior year
income tax return. 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.
The foreign partner must inform
the partnership if it fails to file the
CAUTION
prior year return by its due date
including any extensions obtained. 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.

!

Line 5d

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

Line 5e

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.

Line 5f

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

Part II – Certifications 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, later, for
more information.

Line 6

Line 7

A foreign partner may not 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 the instructions for lines 3a
and 3b, earlier, for the filing dates required
for U.S. federal income tax returns on
which the deductions and losses must be
reflected.
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 2011 tax
year to the partnership for the
partnership's 2012 tax year. However, the
foreign partner may not certify an NOL for
its 2012 tax year for the partnership's 2012
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, 2012, to the
partnership until after June 30, 2012. If the
foreign partner certifies the NOL on July
16, 2012, the partnership is not permitted
to consider that NOL until its September
15, 2012, installment due date.

Line 8

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.

!

CAUTION

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

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

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Instructions for Form 8804-C (Rev. 11-2012)

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

Column (b)
Enter the net increase or net decrease for
each line being changed.

Column (c)
Add the increase in column (b) to the
amount in column (a), or subtract the
column (b) decrease from column (a).
Enter the result in column (c). For an item
that did not change, enter the amount from
column (a) in column (c).
Note. Show any negative numbers
(losses or decreases) in columns (a), (b),
or (c) in parentheses.

Line 8a. Net Operating Loss
Carryover
Foreign partner. The NOL must be
connected with gross income which is
effectively connected (or treated as
effectively connected) with conduct of the
partner's trade or business in the United
States.
Partnership. Regulations section
1.1446-6(c)(1)(i)(C) provides that a
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

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 passive
activity losses, see Form 8582 and Pub.
925.

Line 8e

Enter only those suspended at-risk 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 at-risk loss
limitations, see Form 6198 and Pub. 925.

Line 8f

Enter other ordinary deductions and
losses described in Regulations section
1.1446-6(c)(1)(i) that are subject to
partner level limitation or warrant special
consideration. A foreign partner must
identify in an attachment any other
certified losses or deductions that are
subject to special limitations at the partner
level.

Line 9

If a foreign partner is a partner in more
than one partnership, the partner may
certify some of its deductions and losses
to one partnership and some to another.
However, the total of any one type of
deduction or loss certified to all
partnerships may not 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

Instructions for Form 8804-C (Rev. 11-2012)

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(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
under which 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
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 two statements on the
form to which they are consenting and
certifying under penalties of perjury. The
first statement reads as follows:
“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 on the form 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 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.

Date

Enter the date when the foreign partner
signs Form 8804-C. Use the format
MM/DD/YYYY (for example, 09/24/2012).

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.
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

-6-

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
. . . . . . . . . . . .

10 hrs., 16 min.
3 hr., 26 min.
4 hrs., 41 min.

16 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:M:S, 1111 Constitution
Ave. NW, IR-6526, Washington, DC
20224. Do not send Form 8804-C to this
address. Instead, send it to the
partnership.

Instructions for Form 8804-C (Rev. 11-2012)