26 C.F.R. § 1.1446-0   Table of contents.


Title 26 - Internal Revenue


Title 26: Internal Revenue
PART 1—INCOME TAXES
Withholding of Tax on Nonresident Aliens and Foreign Corporations and Tax-Free Covenant Bonds

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§ 1.1446-0   Table of contents.

This section lists the captions contained in §§1.1446–1 through 1.1446–7.

§1.1446–1  Withholding tax on foreign partners' share of effectively connected taxable income.

(a) In general.

(b) Steps in determining 1446 tax obligation.

(c) Determining whether a partnership has a foreign partner.

(1) In general.

(2) Submission of Forms W–8BEN, W–8IMY, W–8ECI, W–8EXP, and W–9.

(i) In general.

(ii) Withholding certificate applicable to each type of partner.

(A) U.S. person.

(B) Nonresident alien.

(C) Foreign partnership.

(D) Disregarded entities.

(E) Domestic and foreign grantor trusts.

(F) Nominees.

(G) Foreign governments, foreign tax-exempt organizations and other foreign persons.

(H) Foreign corporations, certain foreign trusts, and foreign estates.

(iii) Effect of Forms W–8BEN, W–8IMY, W–8ECI, W–8EXP, W–9, and statement.

(A) Partnership reliance on withholding certificate.

(B) Reason to know.

(C) Subsequent knowledge and impact on penalties.

(iv) Requirements for certificates to be valid.

(A) When period of validity expires.

(B) Required information for Forms W–8BEN, W–8IMY, W–8ECI, and W–8EXP.

(v) Partner must provide new withholding certificate when there is a change in circumstances.

(vi) Partnership must retain withholding certificates.

(3) Presumptions in the absence of valid Form W–8BEN, Form W–8IMY, Form W–8ECI, Form W–8EXP, Form W–9, or statement.

(4) Consequences when partnership knows or has reason to know that Form W–8BEN, Form W–8IMY, Form W–8ECI, Form W–8EXP, or Form W–9 is incorrect or unreliable and does not withhold.

(5) Acceptable substitute form.

§1.1446–2  Determining a partnership's effectively connected taxable income allocable to foreign partners under section 704.

(a) In general.

(b) Computation.

(1) In general.

(2) Income and gain rules.

(i) Application of the principles of section 864.

(ii) Income treated as effectively connected.

(iii) Exempt income.

(3) Deductions and losses.

(i) Oil and gas interests.

(ii) Charitable contributions.

(iii) Net operating losses and other suspended or carried losses.

(iv) Interest deductions.

(v) Limitation on capital losses.

(vi) Other deductions.

(vii) Limitations on deductions.

(4) Other rules.

(i) Exclusion of items allocated to U.S. partners.

(ii) Partnership credits.

(5) Examples.

§1.1446–3  Time and manner of calculating and paying over the 1446 tax.

(a) In general.

(1) Calculating 1446 tax.

(2) Applicable percentage.

(i) In general.

(ii) Special types of income or gain.

(b) Installment payments.

(1) In general.

(2) Calculation.

(i) General application of the principles of section 6655.

(ii) Annualization methods.

(iii) Partner's estimated tax payments.

(iv) Partner whose interest terminates during the partnership's taxable year.

(v) Exceptions and modifications to the application of the principles under section 6655.

(A) Inapplicability of special rules for large corporations.

(B) Inapplicability of special rules regarding early refunds.

(C) Period of underpayment.

(D) Other taxes.

(E) 1446 tax treated as tax under section 11.

(F) Application of section 6655(f).

(G) Application of section 6655(i).

(H) Current year tax safe harbor.

(I) Prior year tax safe harbor.

(3) 1446 tax safe harbor.

(i) In general.

(ii) Permission to change to standard annualization method.

(c) Coordination with other withholding rules.

(1) Fixed or determinable, annual or periodical income.

(2) Real property gains.

(i) Domestic partnerships.

(ii) Foreign partnerships.

(3) Coordination with section 1443.

(d) Reporting and crediting the 1446 tax.

(1) Reporting 1446 tax.

(i) Reporting of installment tax payments and notification to partners of installment tax payments.

(ii) Payment due dates.

(iii) Annual return and notification to partners.

(iv) Information provided to beneficiaries of foreign trusts and estates.

(v) Attachments required of foreign trusts and estates.

(vi) Attachments required of beneficiaries of foreign trusts and estates.

(vii) Information provided to beneficiaries of foreign trusts and estates that are partners in certain publicly traded partnerships.

(2) Crediting 1446 tax against a partner's U.S. tax liability.

(i) In general.

(ii) Substantiation for purposes of claiming the credit under section 33.

(iii) Special rules for apportioning the tax credit under section 33.

(A) Foreign trusts and estates.

(B) Use of domestic trusts to circumvent section 1446.

(iv) Refunds to withholding agent.

(v) 1446 tax treated as cash distribution to partners.

(vi) Examples.

(e) Liability of partnership for failure to withhold.

(1) In general.

(2) Proof that tax liability has been satisfied and deemed payment of 1446 tax.

(3) Liability for interest, penalties, and additions to the tax.

(i) Partnership.

(ii) Foreign partner.

(4) Examples.

(f) Effect of withholding on partner.

§1.1446–4  Publicly traded partnerships.

(a) In general.

(b) Definitions.

(1) Publicly traded partnership.

(2) Applicable percentage.

(3) Nominee.

(4) Qualified notice.

(c) Paying and reporting 1446 tax.

(d) Rules for designation of nominees to withhold tax under section 1446.

(e) Determining foreign status of partners.

(f) Distributions subject to withholding.

(1) In general.

(2) In-kind distributions.

(3) Ordering rule relating to distributions.

(4) Coordination with section 1445(e)(1).

§1.1446–5  Tiered partnership structures.

(a) In general.

(b) Reporting requirements.

(1) In general.

(2) Publicly traded partnerships.

(c) Look through rules for foreign upper-tier partnerships.

(d) Publicly traded partnerships.

(1) Upper-tier publicly traded partnership.

(2) Lower-tier publicly traded partnership.

(e) Election by a domestic upper-tier partnership to apply look through rules.

(1) In general.

(2) Information required for valid election statement.

(3) Consent of lower-tier partnership.

(f) Examples.

§1.1446–6T  Special rules to reduce a partnership's 1446 tax with respect to a foreign partner's allocable share of effectively connected taxable income (Temporary).

(a) In general.

(b) Foreign partner to whom this section applies.

(1) In general.

(2) Special rules.

(c) Certificate to reduce 1446 tax with respect to a foreign partner.

(1) In general.

(i) Deductions and losses from the partnership from prior taxable years.

(ii) Deductions and losses from sources other than the partnership from prior taxable years.

(iii) Limit on the consideration of a partner's net operating loss deduction.

(iv) Certificate of nonresident alien partner that partnership investment is partner's only activity giving rise to effectively connected items.

(2) Time and form of certification.

(i) Time for certification provided to partnership.

(A) First certificate submitted for a partnership's taxable year.

(B) Updated certificates and status updates.

(1) Foreign partner's prior year tax returns not yet filed.

(2) Other circumstances requiring a foreign partner to submit an updated certificate.

(3) Form and content of updated certificate.

(4) When partnership may consider an updated certificate.

(ii) Form of certification.

(3) Notification to partnership when a partner's certificate cannot be relied upon.

(4) Partner to receive copy of notice.

(5) Partner's certificate valid only for partnership taxable year for which submitted.

(d) Effect of certificate of deductions and losses on partners and partnership.

(1) Effect on partner.

(i) No effect on substantive tax liability of foreign partner.

(ii) No effect on partner's estimated tax obligations.

(2) Effect on partnership.

(i) Reasonable reliance to relieve partnership from addition to the tax under section 6655.

(ii) Filing requirement.

(iii) Continuing liability for withholding tax under section 1461 and for applicable interest and penalties.

(iv) Partner's certified deductions and losses to offset foreign partner's annualized allocable share of partnership ECTI.

(e) Examples.

(f) Effective dates.

§1.1446–7  Effective dates.

[T.D. 9200, 70 FR 28717, May 18, 2005]

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