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Sec. 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.

(4) Coordination with section 1446(f).

(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 nominees required to withhold tax under section 1446.

(1) In general.

(2) Exception to nominee’s withholding.

(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.

§ 1.1446-6 Special rules to reduce a partnership's 1446 tax with respect to a foreign partner's allocable share of effectively connected taxable income.

(a) In general.

(1) Purpose and scope.

(2) Reasonable reliance on a certificate.

(b) Foreign partners to whom this section applies.

(1) In general.

(2) Definitions.

(i) U.S. income tax return.

(ii) Timely-filed.

(iii) Qualifying U.S. income tax return.

(3) Special rules.

(c) Reduction of 1446 tax with respect to a foreign partner.

(1) General rules.

(i) Certified deductions and losses.

(A) Deductions and losses from the partnership.

(B) Deductions and loss from other sources.

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

(D) Limitation on losses subject to certain partner level limitations.

(E) Certification of deductions and losses to other partnerships.

(F) Partner level use of deductions and losses certified to a partnership.

(ii) De minimis certificate for nonresident alien individual partners.

(A) In general.

(B) Requirements for exception.

(iii) Consideration of certain current year state and local taxes.

(2) Form and time of certification.

(i) Form of certification.

(ii) Time of certification provided to partnership.

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

(B) Updated certificates and status updates.

(1) Preceding year tax returns not yet filed.

(2) Other circumstances requiring an updated certificate.

(3) Form and content of updated certificate.

(4) Partnership consideration of an updated certificate.

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

(4) Partner to receive copy of notice.

(5) Notification to partnership when no foreign partner's certificate can be relied upon.

(6) Partnership notification to partner regarding use of deductions and losses.

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

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

(1) Effect on partner.

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

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

(iii) No effect on partner's obligation to file U.S. income tax return.

(2) Effect on partnership.

(i) Reasonable reliance to relieve partnership from addition to tax under section 6665.

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

(A) In general.

(B) Certificate defective because of amount or character of deductions and losses.

(3) Partnership level rules and requirements.

(i) Filing requirement.

(ii) Reasonable cause for failure to timely file a valid certificate and computation.

(A) Determining reasonable cause.

(B) Notification.

(e) Examples.

(f) Effective/Applicability date.

(g) Transition rule.

§ 1.1446-7 Applicability dates.

[Added by T.D. 9200, 70 FR 28702-78742, May 18, 2005, as amended by T.D. 9394, 73 FR 23069-23086, Apr. 29, 2008; T.D. 9926, 85 FR 76910-76947, Nov. 30, 2020.]

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