IRS Should Improve Partnership Reporting Compliance, TIGTA Says

Withholding Compliance Efforts for Partnerships With Foreign Partners Can Be Improved

June 15, 2020

This report has cleared the Treasury Inspector General for Tax Administration disclosure review process and information determined to be restricted from public release has been redacted from this document.

Redaction Legend:

1 = Tax Return/Return Information
2 = Law Enforcement Techniques/Procedures and Guidelines for Law Enforcement Investigations or Prosecutions.

Highlights

Final Report issued on June 15, 2020

Highlights of Reference Number: 2020-30-026 to the Commissioner of Internal Revenue.

IMPACT ON TAXPAYERS

Internal Revenue Code (I.R.C.) Section (§) 1446 requires partnerships to withhold taxes on “effectively connected taxable income” (ECTI) that is allocable to their foreign partners. The withholding serves as an incentive for foreign partners to file the appropriate U.S. tax return, i.e., Form 1040-NR, U.S. Nonresident Alien Income Tax Return, or Form 1120-F, U.S. Income Tax Return of a Foreign Corporation, to report income from the partnership. For Tax Year 2016, the Project 1446 database shows that partnerships reported $12.6 billion in the ECTI allocable to their foreign partners.

WHY TIGTA DID THE AUDIT

The overall objective of this review was to determine the effectiveness of the IRS's efforts to ensure withholding compliance of partnerships with foreign partners.

WHAT TIGTA FOUND

A sample of 137 partnership filings found that partnerships remitted the reported I.R.C. § 1446 tax; however, TIGTA identified barriers for the IRS to use Form 8804, Annual Return for Partnership Withholding Tax (Section 1446), and Form 8805, Foreign Partner's Information Statement of Section 1446 Withholding Tax, data to ensure compliance of partnerships and foreign partners subject to the provisions of I.R.C. § 1446. TIGTA identified significant errors in the Project 1446 database which limit the IRS's ability to verify withholding credits and identify potential nonfilers accurately. For Tax Year 2016, there were 17,734 partnerships that filed Forms 8804 that had related Forms 8805 reporting nearly $3.7 billion in withholding credits. Of these, 2,445 Forms 8804 had discrepancies concerning the withholding amounts reported on their related Forms 8805. Specifically, the 2,445 Forms 8804 reported and paid nearly $303 million less than was reported on their related Forms 8805. Furthermore, some partnerships with foreign partners filed 1,183 Forms 8804 reporting nearly $450 million in income that did not have any related Forms 8805 in the Project 1446 database, and 27,038 Forms 8805 were filed reporting nearly $907 million in income that did not contain valid Taxpayer Identification Numbers. * * * 2 * * *

In addition, 5,077 foreign partners did not file their income tax returns reporting their share of the ECTI. As a result, these foreign partners would potentially owe $184 million in additional tax.

Further, Form 8805 data were erroneously uploaded multiple times on the Master File, overstating the income and withholding amounts. Although the IRS identified and fixed this issue in October 2018, the overstated records remain.

WHAT TIGTA RECOMMENDED

TIGTA recommended that the IRS: 1) strengthen controls to ensure correspondence with partnerships when there are no Forms 8805 attached to Form 8804 reporting ECTI and withholding amounts, 2) establish procedures for tax examiners to prevent duplicate or multiple Forms 8805 filed by partnerships from being entered into the Project 1446 database, and 3) establish procedures using Form 8805 data to identify underreporting and potential nonfilers.

IRS management agreed with all three recommendations and plans to take appropriate corrective actions.

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 June 15, 2020

MEMORANDUM FOR
COMMISSIONER OF INTERNAL REVENUE

FROM:
Michael E. McKenney
Deputy Inspector General for Audit

SUBJECT:
Final Audit Report — Withholding Compliance Efforts for Partnerships With Foreign Partners
Can Be Improved (Audit # 201830019)

This report presents the results of our review to determine the effectiveness of the Internal Revenue Service's efforts to ensure withholding compliance of partnerships with foreign partners. This audit is part of our Fiscal Year 2020 Annual Audit Plan and addresses the major management challenge of the Impact of Global Economies.

Management's complete response to the draft report is included as Appendix IX.

Copies of this report are also being sent to the Internal Revenue Service managers affected by the report recommendations. If you have any questions, please contact me or Matthew A. Weir, Assistant Inspector General for Audit (Compliance and Enforcement Operations).

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Table of Contents

Background

Results of Review

Appendices

Abbreviations

ECTI	Effectively Connected Taxable Income
I.R.C.	Internal Revenue Code
IRMF	Information Returns Master File
IRS	Internal Revenue Service
TIN	Taxpayer Identification Number
TY	Tax Year

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Background

The Tax Reform Act of 1986 added Section (§) 1446 to the Internal Revenue Code (I.R.C.).¹ This law requires partnerships to withhold taxes on “effectively connected taxable income” (ECTI) paid to foreign partners.² The ECTI is taxable income connected with the conduct of a trade or business in the United States. Tax is withheld on each foreign partner's allocable share of the ECTI. The withholding rules apply regardless of whether the partnership makes any actual partnership distributions during its tax year. A foreign partner can be a foreign corporation, foreign partnership, and any other person who is not a U.S. citizen.

The rate of withholding depends on the type of the foreign partner and the type of the ECTI earned by the partnership. Withholding is imposed at the highest tax rate of 39.6 percent for non-corporate foreign partners and at a 35 percent rate for foreign corporate partners for Tax Years (TY) 2014 through 2016.³ The partnership must pay the withholding tax regardless of the amount of the foreign partners' ultimate U.S. tax liability. While it could be that the foreign partner will actually owe no U.S. tax, the partnership must still withhold and pay over the tax to the Internal Revenue Service (IRS). In that case, the affected foreign partner would be required to file a tax return with the IRS to claim a refund.

Treasury Regulation § 1.1446-3 establishes the procedures for partnership reporting obligations with respect to the tax and how to pay the withholding tax. The partnership is required to use Form 8804, Annual Return for Partnership Withholding Tax (Section 1446), to report the total withholding liability under I.R.C. § 1446 for the partnership's tax year.⁴ Form 8813, Partnership Withholding Tax Payment Voucher (Section 1446), is used to remit payment of the withholding collected by the partnership.⁵

The partnership is also required to file Form 8805, Foreign Partner's Information Statement of Section 1446 Withholding Tax, to show the amount of the ECTI and the total withholding tax credit allocable to the foreign partner for the partnership's tax year.⁶ A separate Form 8805 is required for each partner on whose behalf the partnership paid I.R.C. § 1446 tax. Foreign partners must attach Form 8805 to their U.S. income tax return Form 1040-NR, U.S. Nonresident Alien Income Tax Return, to claim a withholding tax credit for their portion of the I.R.C. § 1446 tax withheld by the partnership. In order for a foreign partner to claim a refund, a valid Taxpayer Identification Number (TIN) is required when filing the income tax return, e.g., Form 1040-NR, Form 1120-F, U.S. Income Tax Return of a Foreign Corporation. Figure 1 shows that the number of Forms 8805 filed in TY 2015 decreased to 153,400, but TY 2016 filings increased to 163,111.

The Large Business and International Division provides oversight of I.R.C. § 1446 withholding tax matters, with an emphasis on Service-wide coordination of technical issues, compliance, and processing. The Wage and Investment Division Entity function is responsible for processing Forms 8804, 8805, and 8813, which are filed at the Ogden, Utah Campus. Form 8804 data are entered on the Master File, while Form 8805 data are entered and stored on the International Web Application.⁷ The International Web Application Project 1446 database (hereafter referred to as the Project 1446 database) is not a Master File program, but Form 8805 data are uploaded to the Information Returns Master File (IRMF) monthly.

This review was performed at the Submission Processing Site in Ogden, Utah, and with information obtained from the IRS Large Business and International Division in Washington, D.C., during the period April 2018 through November 2019. We conducted this performance audit in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objective. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objective. Detailed information on our audit objective, scope, and methodology is presented in Appendix I. Major contributors to the report are listed in Appendix II.

Results of Review

Every partnership that has the ECTI allocable to a foreign partner must file a Form 8804 with the IRS. The partnership must also send the IRS a Form 8805 for each foreign partner on whose behalf the partnership paid I.R.C. § 1446 withholding tax and provide a copy to the foreign partner. For TY 2016, the IRS received 18,929 Forms 8804 from 18,917 partnerships and also received 163,111 Forms 8805 from 17,734 of these partnerships.

* * * 2 * * * While we found that partnerships timely remitted their I.R.C. § 1446 withholding tax, there are barriers to using the data to ensure compliance, and it is critical for international tax administration that the IRS take the steps to overcome these barriers. Specifically, we found that:

• Partnerships remitted the reported amount of I.R.C. § 1446 tax.

• Inaccuracies in the Project 1446 database limit its usefulness to verify withholding credit claims.

• Some foreign partners are not compliant with their tax obligations.

• Form 8805 data on the IRMF are erroneously overstated.

If the IRS does not ensure that Forms 8804 and Forms 8805 are correctly filed, then its ability to identify underreporting and potential nonfilers is diminished.

Partnerships Remitted the Reported Internal Revenue Code Section 1446 Tax

Partnerships use Form 8813 to pay their I.R.C. § 1446 withholding to the IRS. Forms 8813 are to be filed on or before the 15^th day of the 4^th, 6^th, 9^th, and 12^th months of the partnership's tax year. For TY 2016, the Project 1446 database documents that 17,734 partnerships filed Forms 8804 with Forms 8805 attached.⁸ These Forms 8804 reported more than $11.5 billion in the ECTI with nearly $3.7 billion (32 percent) in I.R.C. § 1446 withholding tax.⁹

We randomly sampled 137 partnerships from the population of 17,734 partnerships and reviewed their Forms 8804 reporting I.R.C. § 1446 withholding for TY 2016.¹⁰ The I.R.C. § 1446 withholding for the 137 partnerships totaled almost $15 million. We researched the Master File for each partnership's TY 2016 account to confirm that they remitted their I.R.C. § 1446 taxes to the IRS.¹¹ For all 137 partnerships, the I.R.C. § 1446 withholding payments that were remitted to the IRS reconciled with the amounts reported on their respective Form 8804.

However, while the partnerships we reviewed complied with their payment requirements, the I.R.C. § 1446 withheld amounts reported on the partnership's Form 8804 did not always match the withheld amounts reported on the Forms 8805 filed by the partnerships and provided to the foreign partners. For seven of the 137 cases, the partnership Form 8804 I.R.C § 1446 tax did not reconcile with the total I.R.C. § 1446 tax reported on their related Forms 8805. In all seven cases, the partnerships remitted the amounts reported on their Form 8804, which was $387,799 less than the amounts reported in the Project 1446 database. As subsequently discussed, our review of the 137 partnership filings led us to conduct additional testing of the Project 1446 database, and we determined that there are significant errors in the database that limit the IRS's ability to verify withholding credits and identify potential nonfilers accurately.

Inaccuracies in the Internal Revenue Code Section 1446 Project Database Limit Its Usefulness to Verify Withholding Credit Claims

There were 17,734 partnerships that filed Forms 8804 for TY 2016 on the Master File that had at least one related Form 8805 on the Project 1446 database. We compared the ECTI and withholding amounts reported on the Forms 8804 to related Form 8805 information tax examiners entered into the Project 1446 database. Overall, the 17,734 partnerships reported nearly $3.7 billion in withholding. We identified 2,445 Forms 8804 with withholding amounts that did not match withholding amounts reported on their related Forms 8805. Figure 2 provided the instances in which Form 8804 data did not reconcile with Form 8805 data.

Figure 2: Withholding Reported on Form 8804 Versus
Withholding Tax Credited on Form 8805

Type of Variance	Number of Forms 8804	Withholding Reported on Form 8804	Reported Withholding Tax Credits on Form 8805	Variance
Forms 8804 Withholding Less Than Forms 8805 Credits	1,338	$462,707,708	$893,478,072	($430,770,364)
Forms 8804 Withholding Greater Than Forms 8805 Credits	1,107	$572,102,619	$444,252,008	$127,850,611
Net of Total Variances	2,445	$1,034,810,327	$1,337,730,080	($302,919,753)
Source: Our analysis of the Project 1446 database and the Master File.

We identified 1,338 Forms 8804 that reported nearly $463 million in withholding credits while the related Forms 8805 reported more than $893 million in withholding credits. This difference of more than $430 million reflects additional withholding credits reported on the Form 8805 database than on the Forms 8804. We reviewed the discrepancies and determined that many of them appeared to be the result of:

• Duplicate or multiple Forms 8805 filed by partnerships and erroneously entered into the database.

• Transcription errors when entering dollar values.

We identified another 1,107 Forms 8804 that reported withholding credits over $127 million greater than what was reported on their related Forms 8805. We reviewed the discrepancies and determined that many of them appeared to be the result of the number of partners stated on Form 8804 was greater than the number of related Forms 8805 in the database.¹²

In addition, we identified 1,183 Forms 8804 in which we did not find any related Forms 8805 in the Project 1446 database. IRS procedures do require correspondence with the partnership if there are no Forms 8805 attached to Form 8804 reporting ECTI and withholding amounts.¹³ The 1,183 Forms 8804 reported $449,948,542 in the ECTI and $146,824,567 in withholding; however, because we were unable to find the related Forms 8805, the IRS cannot determine whether the foreign partners in receipt of this income filed their appropriate income tax returns.

* * * 2 * * *

From the population of 163,111 Forms 8805, we also identified 27,038 Forms 8805 that had either no TIN or an invalid TIN.¹⁴ These 27,038 Form 8805 reflected $906,850,847 of the ECTI and $273,586,004 of withholding that foreign partners are required to report on Form 1040-NR. * * * 2 * * *.¹⁵ These withholding certificates are only valid if they contain all the required information, including valid TINs.¹⁶ Partnerships are instructed to complete Forms 8805 with a valid foreign partner's TIN.¹⁷ * * * 2 * * * Specifically, when entering Form 8805 data to the Project 1446 database, Ogden Campus Entity function employees are instructed to enter the TIN that appears on Line 1b of Form 8805, and if no TIN is present on Form 8805, leave the field blank.¹⁸ The 27,038 Forms 8805 included obviously erroneous TINs, e.g., 999-99-9999 and 000-00-0000, and instances in which the TIN field was left blank.

Reconciling of the withholding taxes reported on Forms 8804 with amounts posted to the Master File

The International Web Application at the Ogden Campus also houses the Foreign Investment in Real Property Tax Act database and is maintained by the same campus function as the Project 1446 database. We recently reported that extensive inaccuracies in the Foreign Investment in Real Property Tax Act database limit its usefulness to verify withholding credit claims accurately.¹⁹

At the Ogden Campus, Forms 8805 and 8804 are processed separately, and the information reported on Form 8805 * * * 2 * * * Forms 8804 and Forms 8805 are separated during the Code and Edit function process.²⁰ * * * 2 * * * The Data Conversion function inputs Form 8804 data in the same manner as data for other income tax returns are input, such as Form 1040, U.S. Individual Income Tax Return. Forms 8805 are routed to the Campus Entity function where tax examiners input them to the Project 1446 database.

Recommendations

The Commissioner, Large Business and International Division, should request that Submission Processing sites:

Recommendation 1: Strengthen controls to ensure that the Code and Edit function corresponds with partnerships when there are no Forms 8805 attached to Form 8804 reporting ECTI and withholding amounts or in the Project 1446 database.

Recommendation 2: Establish procedures for tax examiners to prevent duplicate or multiple Forms 8805 filed by partnerships from being entered into the Project 1446 database.

Some Foreign Partners Are Not Compliant With Their Tax Obligations

Withholding requirements are among the most common and effective tax compliance methods, causing foreign partners subject to withholding to have more motivation to file their U.S. income tax returns. Foreign partners engaged or considered to be engaged in a trade or business in the United States during the tax year must file an income tax return. Foreign partners that are individuals and are required to file an income tax return use Form 1040-NR. Due to high withholding rates under I.R.C. § 1446, foreign partners are more likely to file a tax return to claim a refund.²¹ Accordingly, I.R.C. § 1446 withholding serves as an incentive for the foreign partners to file a U.S. income tax return reporting the distribution of their share of partnership income.

We obtained an extract of the Project 1446 database which included all Forms 8805 filed with the IRS from January 2015 to October 2018. We also extracted Form 1040-NR, Form 1065, U.S. Return of Partnership Income, and Form 1120-F data from the Treasury Inspector General for Tax Administration's Data Center Warehouse that were filed for TY 2016. We tested foreign partners' compliance with their filing and reporting requirements and found that some foreign partners are not compliant with tax obligations.

The ECTI reported on Forms 8805 was not reported on Forms 1040-NR, 1120-F, or 1065

In a prior section of this report, we showed that 27,038 Forms 8805 submitted for TY 2016 did not have valid TINs, and therefore, these Forms 8805 were unable to be matched against income tax returns to test filing and reporting compliance of the recipients. These Forms 8805 reported $906,850,847 of the ECTI and $273,586,004 of withholding that foreign partners are required to report on Form 1040-NR. It is critical for Forms 8805 to include valid TINs so that the IRS can match this information against foreign partners' income tax returns to ensure that they are appropriately reporting their partnership ECTI, as reported earlier. The TINs are equally important to ensure proper crediting of withholding tax when partnerships report to the IRS.

The IRS Automated Underreporter Program matches information returns, such as a taxpayer's Form W-2, Wage and Tax Statement, against individual Form 1040 tax returns to verify the income is reported and potential discrepancies are identified. The International Web Application is not a Master File program, but Form 8805 data are uploaded to the IRMF monthly. * * * 2 * * * The foreign partners' portion of the partnership ECTI is reported on Form 8805, line 9. This amount is required to be entered on their Form 1040-NR, Line 8; Form 1120-F, Section II, Line 10; and Form 1065, Line 4.

To determine whether foreign partners complied with their filing and reporting requirements, we matched the 163,111 Forms 8805 issued for TY 2016 against the TY 2016 Form 1040-NR, Form 1120-F, and Form 1065 filing data and identified 20,749 Forms 8805 that did not have a matching Form 1040-NR, 1120-F, or 1065. The 20,749 Forms 8805 reported more than $2.7 billion in the ECTI and more than $926 million (average of 34 percent) in tax withheld. Because there was no associated income tax form, the taxpayers who received these Forms 8805 did not report their ECTI as required. Given that there was some tax withheld on this income, we performed the following tests on the 20,749 foreign partners:

• Determined the actual rate of withholding (withholding amount/ECTI amount) for each of the 20,749 foreign partners.

• Using 35 percent, the lower of the two I.R.C. § 1446 withholding rates, as criteria, we identified those foreign partners whose withholding amount was more than 35 percent (13,960 foreign partners).²² Given that the withholding was at or greater than 35 percent, these taxpayers may have sufficient withholding to cover their tax obligations even if they had filed an income tax return reporting their ECTI.

• Because the withholding rate on the remaining 6,789 foreign partners was less than 35 percent, they would potentially owe tax if they had filed income tax returns.²³

For each of these 6,789 foreign partners, we calculated withholding on their ECTI at 35 percent and determined the variance between the actual amount of tax withheld and the amount that would have been withheld at 35 percent.²⁴ From the 6,789, we eliminated 1,712 cases consisting of foreign partners that either: filed a Form 1040 (and not a Form 1040-NR) or filed a Form 1065 or Form 1120-F for a non-calendar year fiscal year. As a result, 5,077 foreign partners would owe potential additional tax of $184,114,263.

Recommendation

Recommendation 3: The Commissioner, Large Business and International Division, should establish procedures using Form 8805 data to identify potential nonfilers (foreign partners that do not file an income tax return) and underreporters (foreign partners that do not report their partnership ECTI on their income tax return).

Form 8805 Data on the Information Return Master File Are Overstated

Form 8805 data are sent to the IRMF on a monthly basis. Form 8805 records created get a time stamp which is used in the electronic file transfer script to identify which records need to move to the IRMF and which ones have already been moved to the IRMF. The time stamp helps to keep records from being duplicated.

We selected a random sample of 65 Forms 8805 issued for TY 2016 to verify the income and withholding amounts on the IRMF.²⁵ We determined that the income and withholding amounts on the IRMF were overstated due to processing errors when Form 8805 data were uploaded from the Project 1446 database. Specifically, Form 8805 data were erroneously uploaded multiple times because the time stamp control was not working as intended.

When the Form 8805 is extracted, the records are retrieved and saved to a temporary file. The file name contains a cycle number which is provided by the IRMF team. The cycle number is the week of the year. During the process, the extracted record is marked by setting an indicator in the database table and time stamped to avoid duplications. If errors occur, the time stamp is used to reverse the indicator so that the record can be re-selected. Before the Form 8805 records are merged to the Master File, the IRMF verifies that the data format and the sequence of the transferred data match what is in the record. If an error is spotted, the process will start over. After the verification is completed, the temporary file is removed.

In regards to our sample of 65 Forms 8805, 61 forms contained effectively connected income overstated by $36,369,601 and withholding overstated by $12,141,645.²⁶ In October 2018, the IRS identified and fixed the problem. However, the duplicate records remain as the IRMF did not update the records or replace the records. As such, IRS employees who use the IRMF need to be aware that they need to look at the latest records based on file entry date and initial cycle.

Given that the TY 2016 Form 8805 was overstated and the problem was not identified or resolved until October 2018, we believe that Form 8805 data for at least TYs 2016 to 2018 were affected, as well as other systems that rely on the IRMF.

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Appendix I
Detailed Objective, Scope, and Methodology

The overall objective of this audit was to determine the effectiveness of the IRS's efforts to ensure withholding compliance of partnerships with foreign partners. To accomplish our objective, we:

I. Evaluated IRS processes and procedures to determine if income and withholdings reported on Forms 8804, Annual Return for Partnership Withholding Tax (Section 1446)), are reconciled with the detailed income and withholdings reported on any associated Forms 8805, Foreign Partner's Information Statement of Section 1446 Withholding Tax.¹

II. Assessed the effectiveness of IRS processes to ensure that income and withholdings reported on Forms 8805 are reported on Forms 8804.

III. Determined whether IRS procedures for monitoring compliance of U.S. partnership returns with foreign partners are adequate to identify unreported income.

IV. Determined the extent of the IRS's computer matching of Forms 8804 and 8805 and income tax returns (Form 1065, U.S. Return of Partnership Income; Schedule K-1 (Form 1065), Partner's Share of Income, Deductions, Credits, etc.; and Form 1040-NR, U.S. Nonresident Alien Income Tax Return) to identify taxpayers with underreported income or withholding and nonfiling cases of foreign partners.

Data validation methodology

During this review, we relied on data located on the Treasury Inspector General for Tax Administration's Data Center Warehouse, including Form 1040-NR and 1040-NR-EZ data extracts from the Individual Return Transaction File, and Form 8804, 1120-F, and 1065 data extracts which are all maintained on the Business Return Transaction File. Additionally, we relied on Form 8805 data provided to us by the IRS, which is maintained on the Project 1446 database. Before relying on these data, we ensured that each file contained the specific data elements we requested. During the course of reviewing the returns selected in our random sample, we verified that the information on those returns matched the information in their respective databases. We also tested a judgmentally selected sample for each of the databases and verified the amounts recorded against the IRS Master File using the Integrated Data Retrieval System. We determined that the data were sufficiently reliable for purposes of this report.

Reliability of information

During the course of this audit, we determined that some of the Form 8805 information obtained from the Project 1446 database may have been erroneously transcribed by the IRS. Specifically, we noted three instances in which the ECTI and withholding amounts on Form 8805 was similar to the ECTI and withholding on Form 8804, but contained one or two additional digits seemingly input by the IRS in error. This resulted in an overstatement of more than $439 million in the ECTI and an overstatement in withholding of more than $155 million. While reviewing the Project 1446 database, we also noted that there were 27,038 records that contained invalid partner TINs. These TINs were either all zeros, all nines, or contained many zeros as the first digits.

Internal controls methodology

Internal controls relate to management's plans, methods, and procedures used to meet their mission, goals, and objectives. Internal controls include the processes and procedures for planning, organizing, directing, and controlling program operations. They include the systems for measuring, reporting, and monitoring program performance. We determined that the following internal controls were relevant to our audit objective: controls over the processing of Forms 8804 and 8805, and the processing of I.R.C. § 1446 credits claimed on the income tax returns of foreign partners. We evaluated these controls by interviewing key personnel, analyzing data from the Project 1446 database, and performing analysis of tax return data from the Individual and Business Returns Transaction Files located on the Treasury Inspector General for Tax Administration's Data Center Warehouse.

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Appendix II
Major Contributors to This Report

Matthew A. Weir, Assistant Inspector General for Audit (Compliance and Enforcement Operations)

Christina M. Dreyer, Director

Timothy Greiner, Audit Manager

Victor Taylor, Lead Auditor

Kevin Nielsen, Senior Auditor

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Appendix III
Report Distribution List

Deputy Commissioner for Services and Enforcement

Deputy Commissioner, Large Business and International Division

Deputy Commissioner, Wage and Investment Division

Director, Submission Processing, Wage and Investment Division

Director, Withholding and International Individual Compliance Practice Area, Large Business and International Division

Director, Enterprise Audit Management

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Appendix IV
Outcome Measures

This appendix presents detailed information on the measurable impact that our recommended corrective action will have on tax administration. These benefits will be incorporated into our Semiannual Report to Congress.

Type and Value of Outcome Measure:

• Reliability of Information — Potential; 2,445 taxpayers, i.e., partnerships, who had a discrepancy between the withholding reported on their Form 8804, Annual Return for Partnership Withholding Tax (Section 1446), and what was reported on their related Form 8805, Foreign Partner's Information Statement of Section 1446 Withholding Tax. These taxpayers reported and paid $303 million less I.R.C. Section (§) 1446 withholding tax than reported on their related Forms 8805 (see page 5).

Methodology Used to Measure the Reported Benefit:

In TY 2016, there were 17,734 partnerships that filed Forms 8804 on the Master File that had at least one related Form 8805 on the Project 1446 database.¹ For TY 2016, we compared Form 8804 withholding information submitted by these partnerships to related Form 8805 information entered by tax examiners into the Project 1446 database. After conducting a computer match, we identified 2,445 Forms 8804 that reported and paid $302,919,753 less I.R.C. §1446 withholding tax than reported on their related Forms 8805. Accordingly, the foreign partners could have used this nearly $303 million to reduce their tax despite the partnerships not withholding and remitting the appropriate amount of I.R.C. § 1446 tax.

Type and Value of Outcome Measure:

• Reliability of Information — Potential; 1,183 Forms 8804 reporting $450 million in income and $147 million in withholding that did not have any related Form 8805 (see page 5).

Methodology Used to Measure the Reported Benefit:

For TY 2016, we compared Form 8804 withholding information submitted by partnerships to related Form 8805 information entered by tax examiners into the Project 1446 database. After conducting a computer match, we identified 1,183 Forms 8804 reporting $449,948,542 in income and $146,824,567 million in withholding that did not have a related Form 8805 in the Project 1446 database.

Type and Value of Outcome Measure:

• Reliability of Information — Potential; 27,038 foreign partner Forms 8805 that did not contain a valid TIN reported $906.8 million of the ECTI and $273.6 million of withholding (see page 5).

Methodology Used to Measure the Reported Benefit:

For TY 2016, we compared Form 8804 withholding information submitted by partnerships to related Form 8805 information entered by tax examiners into the Project 1446 database. After conducting a computer match, we identified 27,038 Forms 8805 that were received by the IRS that did not contain a valid TIN. These 27,038 Forms 8805 reflected $906,850,847 of the ECTI and $273,586,004 of withholding that foreign partners are required to report on Form 1040-NR, U.S. Nonresident Alien Income Tax Return. * * * 2 * * *

Type and Value of Outcome Measure:

• Revenue Protection — Potential; $184.1 million in additional tax that would be owed by 5,077 foreign partners (see page 9).

Methodology Used to Measure the Reported Benefit:

To determine whether foreign partners complied with their filing and reporting requirements, we matched the 163,111 Forms 8805 issued for TY 2016 against the TY 2016 Form 1040-NR, Form 1120-F, U.S. Income Tax Return of a Foreign Corporation, and Form 1065, U.S. Return of Partnership Income, filing data and identified Forms 8805 that did not have a matching Form 1040-NR, 1120-F, or 1065. The Forms 8805 reported more than $2.7 billion in the ECTI and more than $926 million (average of 34 percent) in tax withheld. Because there was no associated tax form, there is indication that the taxpayers who received these Forms 8805 did not report their ECTI as required. Given that there was some tax withheld on this income, we performed the following tests on the 20,749 foreign partners:

• Determined the actual rate of withholding (withholding amount/ECTI amount) for each of the 20,749 foreign partners.

• Using 35 percent, the lower of the two I.R.C. § 1446 withholding rates, as criteria, we identified those foreign partners whose withholding amount was more than 35 percent (13,960 foreign partners).² Given that the withholding was at or greater than 35 percent, we assumed these taxpayers may not owe tax even if they had filed an income tax return reporting their ECTI.

• Because the withholding rate on the remaining the 6,789 foreign partners was less than 35 percent, we assumed that they would potentially owe tax if they had filed income tax returns.³

For each of these 6,789 foreign partners, we calculated withholding on their ECTI at 35 percent and determined the variance between the actual amount of tax withheld and the amount that would have been withheld at 35 percent.⁴ From the 6,789, we eliminated 1,712 cases consisting of foreign partners that either: filed a Form 1040, U.S. Individual Income Tax Return, (and not a Form 1040-NR) or filed a Form 1065 or Form 1120-F for a non-calendar year fiscal year. As a result, 5,077 foreign partners would owe potential additional tax of $184,114,263.

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Appendix V
Form 8804, Annual Return for Partnership Withholding Tax (Section 1446)

 

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Appendix VI
Form 8805, Foreign Partner's Information Statement of Section 1446 Withholding Tax

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Appendix VII
Form 8813, Partnership Withholding Tax Payment Voucher (Section 1446)

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Appendix VIII
Glossary of Terms

Term	Definition
Campus	The data processing arm of the IRS. The campuses process paper and electronic submissions, correct errors, and forward data to the Computing Centers for analysis and posting to taxpayer accounts.
Effectively Connected Taxable Income	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.
Master File	The IRS database that stores various types of taxpayer account information. This database includes individual, business, and employee plans and exempt organizations data.
Tax Year	The 12-month accounting period for keeping records on income and expenses used as the basis for calculating the annual taxes due. For most individual taxpayers, the tax year is synonymous with the calendar year.
Taxpayer Identification Number	A nine-digit number assigned to taxpayers for identification purposes. Depending upon the nature of the taxpayer, the TIN is either an Employer Identification Number, a Social Security Number, or an Individual TIN.

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Appendix IX
Management's Response to the Draft Report

 June 1, 2020

MEMORANDUM FOR
MICHAEL E. McKENNEY
DEPUTY INSPECTOR GENERAL FOR AUDIT

FROM:
Douglas W. O’Donnell
Commissioner, Large Business and International (LB&I) Division

SUBJECT:
Draft Audit Report # 2018-30-019, Withholding Compliance Efforts for Partnerships With
Foreign Partners Can Be Improved

Thank you for the opportunity to review and comment on the draft report referenced above. As reflected in the report, the partnership withholding regime encompasses a variety of issues that the IRS continues to address as part of its enforcement efforts.

As part of our compliance strategy for U.S. source income paid to foreign persons, we have implemented a campaign to verify Form 1042-S credits claimed on Form 1040NR. Also, we are in the final phases of developing data integrity software for Form 1042-S that will enable withholding agents to test their data and to identify inconsistencies before submitting to the IRS. We are continuing to evaluate and modify, as appropriate, our strategic approach for U.S. source income withholding to identify and address non-compliance and improve voluntary compliance, while balancing available resources and other organizational priorities.

Additionally, we are exploring collaboration with other LB&I campaigns for referral work where U.S. partnerships with foreign partners may have non-filed withholding tax returns (Form 8804) and unpaid withholding tax liabilities (Form 8805) pursuant to I.R.C. Section 1446, the subject of this audit. Enhanced partnership and foreign partner compliance may also result from LB&I’s efforts to increase partnership coverage.

The attachment provides a response outlining our corrective actions for the agreed recommendations. While the forms you reviewed included some reporting discrepancies and errors that require follow-up and reconciliation, this does not necessarily result in lost revenue. We are, therefore, unable to agree with your stated monetary benefits.

If you have any questions, please contact me, or members of your staff may contact Deborah T. Palacheck, Director, Withholding & International Individual Compliance Practice Area at (202) 317-8451.

Attachment

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Attachment

The Commissioner, Large Business and International Division, should request that Submission Processing:

RECOMMENDATION 1:

Strengthen controls to ensure the Code and Edit function corresponds with partnerships when there are no Forms 8805 attached to Form 8804 reporting ECTI and withholding amounts.

CORRECTIVE ACTIONS:

We will work with Submission Processing (SP) to review whether controls could be strengthened to ensure the Code and Edit function corresponds with partnerships when there are no Forms 8805 attached to Form 8804 reporting ECTI and withholding amounts.

As part of our review, we will assess what changes, if any, could be made to strengthen controls, given available resources and organizational priorities. For example, there may be updates to Code and Edit Internal Revenue Manual (IRM) procedures and training modules.

IMPLEMENTATION DATE:

June 15, 2021

RESPONSIBLE OFFICIAL(S):

Deborah Palacheck, Director, Withholding & International Individual Compliance Practice Area

CORRECTIVE ACTION(S) MONITORING PLAN:

We will monitor this corrective action as part of our internal management control system.

RECOMMENDATION 2:

Establish procedures for tax examiners to prevent duplicate or multiple Forms 8805 filed by partnerships from being entered into the Project 1446 database.

CORRECTIVE ACTIONS:

We will work with SP to determine whether procedures can be established to prevent duplicate or multiple Forms 8805 from being entered into the Project 1446 database, given available technology, human resources, and organizational priorities.

For any new procedures implemented, we will work with SP to make the necessary changes and update training modules and IRM procedures, as appropriate.

IMPLEMENTATION DATE:

June 15, 2021

RESPONSIBLE OFFICIAL(S):

Deborah Palacheck, Director, Withholding & International Individual Compliance Practice Area

CORRECTIVE ACTION(S) MONITORING PLAN:

We will monitor this corrective action as part of our internal management control system.

The Commissioner, Large Business and International Division:

RECOMMENDATION 3:

Should establish procedures using Form 8805 data to identify potential non-filers (foreign partners that do not file an income tax return) and underreporters (foreign partners that do not report their partnership ECTI on their income tax return).

CORRECTIVE ACTIONS:

We will consider establishing procedures using Form 8805 data to identify potential non-filers and under reporters. As a first step, we are evaluating the initial dataset provided by TIGTA to determine the volume of foreign partners who did not file a U.S. income tax return. We will then assess whether the foreign partners were entitled to treaty benefits and other items reducing the withholding rate to lower than 35% and analyze the resulting volume of noncompliance.

IMPLEMENTATION DATE:

June 15, 2021

RESPONSIBLE OFFICIAL(S):

Deborah Palacheck, Director, Withholding & International Individual Compliance Practice Area

CORRECTIVE ACTION(S) MONITORING PLAN:

We will monitor this corrective action as part of our internal management control system.