Instructions for Form 8804-C

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

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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)