Table of Contents
- General Instructions
- Purpose of Form
- Who Must File
- Amount To Withhold
- When To File
- Where To File
- Forms 8288-A Must Be Attached
- Liability of Agents
- Entities Subject to Section 1445(e)
- Section 1445(e)(1) Transactions
- Section 1445(e)(2) Transactions
- Section 1445(e)(3) Transactions
- Section 1445(e)(4) Transactions
- Section 1445(e)(5) Transactions
- Section 1445(e)(6) Transactions
- Specific Instructions
- Privacy Act and Paperwork Reduction Act Notice.
A withholding obligation under section 1445 is generally imposed on the buyer or other transferee (withholding agent) when a U.S. real property interest is acquired from a foreign person. The withholding obligation also applies to foreign and domestic corporations, qualified investment entities, and the fiduciary of certain trusts and estates. This withholding serves to collect U.S. tax that may be owed by the foreign person. Use Form 8288, U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests, to report and transmit the amount withheld.
A buyer or other transferee of a U.S. real property interest, and a corporation, qualified investment entity, or fiduciary that is required to withhold tax, must file Form 8288 to report and transmit the amount withheld. If two or more persons are joint transferees, each is obligated to withhold. However, the obligation of each will be met if one of the joint transferees withholds and transmits the required amount to the IRS.
A distribution of effectively connected income by a publicly traded partnership is subject to the withholding requirements of section 1446.
A distribution with respect to gains from the disposition of a U.S. real property interest from a trust that is regularly traded on an established securities market is subject to section 1445, but is not reported on Forms 8288 and 8288-A, Statement of Withholding on Dispositions by Foreign Persons of U.S. Real Property Interests.
A dividend distribution by a qualified investment entity to a nonresident alien or a foreign corporation that is attributable to gains from sales or exchanges by the qualified investment entity of U.S. real property interests is not subject to withholding under section 1445 as a gain from the sale or exchange of a U.S. real property interest if:
The distribution is on stock regularly traded on a securities market in the United States, and
The alien or corporation did not own more than 5% of that stock at any time during the 1-year period ending on the date of the distribution.
Generally, you must withhold 10% of the amount realized on the disposition by the transferor (see Definitions, later).
See Entities Subject to Section 1445(e), later, for information about when withholding at 35% is required. Also see Withholding certificate issued by the IRS, later, for information about applying for reduction or elimination of withholding.
Allocate the amount realized from the transfer among the transferors based on their capital contribution to the property. For this purpose, a husband and wife are treated as having contributed 50% each.
Withhold on the total amount allocated to foreign transferors.
Credit the amount withheld among the foreign transferors as they mutually agree. The transferors must request that the withholding be credited as agreed upon by the 10th day after the date of transfer. If no agreement is reached, credit the withholding by evenly dividing it among the foreign transferors.
A transferee must file Form 8288 and transmit the tax withheld to the IRS by the 20th day after the date of transfer.
You must withhold even if an application for a withholding certificate is or has been submitted to the IRS on the date of transfer. However, you do not have to file Form 8288 and transmit the withholding until the 20th day after the day the IRS mails you a copy of the withholding certificate or notice of denial. But if the principal purpose for filing the application for a withholding certificate was to delay paying the IRS the amount withheld, interest and penalties will apply to the period beginning on the 21st day after the date of transfer and ending on the day full payment is made.
Send Form 8288 with the amount withheld, and copies A and B of Form(s) 8288-A to the Ogden Service Center, P.O. Box 409101, Ogden, UT 84409.
Anyone who completes Form 8288 must also complete a Form 8288-A for each person subject to withholding. Copies A and B of Form 8288-A must be attached to Form 8288. Copy C is for your records. Multiple Forms 8288-A related to a transaction can be filed with one Form 8288. You are not required to furnish a copy of Form 8288 or 8288-A directly to the transferor.
The IRS will stamp Copy B of each Form 8288-A and will forward the stamped copy to the foreign person subject to withholding at the address shown on Form 8288-A. To receive credit for the withheld amount, the transferor generally must attach the stamped Copy B of Form 8288-A to a U.S. income tax return (for example, Form 1040NR, U.S. Nonresident Alien Income Tax Return, or 1120-F, U.S. Income Tax Return of a Foreign Corporation) or application for early refund filed with the IRS.
Under section 6651, penalties apply for failure to file Form 8288 when due and for failure to pay the withholding when due. In addition, if you are required to but do not withhold tax under section 1445, the tax, including interest, may be collected from you. Under section 7202, you may be subject to a penalty of up to $10,000 for willful failure to collect and pay over the tax. Corporate officers or other responsible persons may be subject to a penalty under section 6672 equal to the amount that should have been withheld and paid over to the IRS.
Real property located in the United States or the U.S. Virgin Islands.
Certain personal property associated with the use of real property.
A domestic corporation, unless it is shown that the corporation was not a U.S. real property holding corporation during the previous 5 years (or during the period in which the transferor held the interest, if shorter).
An interest in a domestically controlled qualified investment entity.
An interest in a corporation that has disposed of all its U.S. real property interests in transactions in which the full amount of any gain was recognized as provided in section 897(c)(1)(B).
An interest in certain publicly traded corporations, partnerships, and trusts.
A real estate investment trust (REIT), and
A regulated investment company (RIC) that is a U.S. real property holding corporation.
You are not required to withhold if any of the following applies.
If, after the date of transfer, you receive a notice from your agent, the transferor’s agent, or the qualified substitute that the certification of nonforeign status is false, you do not have to withhold on consideration paid before you received the notice. However, you must withhold the full 10% of the amount realized from any consideration that remains to be paid, if possible. You must do this by withholding and paying over the entire amount of each successive payment of consideration until the full 10% has been withheld and paid to the IRS. These amounts must be reported and transmitted to the IRS by the 20th day following the date of each payment.
If, after the date of transfer, you receive a notice that the statement is false, see Late notice of false statement, earlier.
Generally, no withholding is required on the acquisition of an interest in a foreign corporation. However, withholding may be required if the foreign corporation has made the election under section 897(i) to be treated as a domestic corporation.
A notice of nonrecognition cannot be used for the exclusion from income under section 121, like-kind exchanges that do not qualify for nonrecognition treatment in their entirety, and deferred like-kind exchanges that have not been completed when it is time to file Form 8288. In these cases, a withholding certificate issued by the IRS, as described next, must be obtained.
Reduced withholding is appropriate because the 10% or 35% amount exceeds the transferor’s maximum tax liability,
The transferor is exempt from U.S. tax or nonrecognition provisions apply, or
The transferee or transferor enters into an agreement with the IRS for the payment of the tax.
You may be eligible for relief for a late filing if a statement or notice was not provided to the relevant person or the IRS by the specified deadline and if you have reasonable cause for the failure to make a timely filing. Once you become aware that you have failed to timely file certain certificates or notices, you must file the required certification or notice with the appropriate person or the IRS. Also include the following.
A statement at the top of the document(s) that it is “FILED PURSUANT TO REV. PROC. 2008-27.”
An explanation describing why the failure was due to reasonable cause. Within the explanation, provide that you filed with, or obtained from, an appropriate person the required certification or notice.
The completed certification or notice attached to the explanation must be sent to the Ogden Service Center, P.O. Box 409101, Ogden, UT 84409.
For more information, see Rev. Proc. 2008-27, 2008-21 I.R.B. 1014, available at http://www.irs.gov/irb/2008-21_IRB/ar14.html.
If you (or the qualified substitute) received: (a) a transferor’s certification of nonforeign status or (b) a corporation’s statement that an interest is not a U.S. real property interest, and the transferee’s or transferor’s agent, or the substitute, knows the document is false, the agent (or substitute) must notify you. If notification is not provided, the agent (or substitute) will be liable for the tax that should have been withheld, but only to the extent of the agent’s (or substitute’s) compensation from the transaction.
If you (or the substitute) receive a notice of false certification or statement from your agent, the transferor’s agent, or qualified substitute, you must withhold tax as if you had not received a certification or statement. See Late notice of false certification, earlier.
An “agent” is any person who represents the transferor or transferee in any negotiation with another person (or another person’s agent) relating to the transaction or in settling the transaction. For purposes of section 1445(e), a transferor’s or transferee’s agent is any person who represents or advises an entity, a holder of an interest in an entity, or a fiduciary with respect to the planning, arrangement, or completion of a transaction described in sections 1445(e)(1) through (4).
A person is not treated as an agent if the person only performs one or more of the following acts in connection with the transaction:
Receiving and disbursing any part of the consideration.
Recording any document.
Typing, copying, and other clerical tasks.
Obtaining title insurance reports and reports concerning the condition of the property.
Transmitting documents between the parties.
Functioning exclusively in his or her capacity as a representative of a condominium association or cooperative housing corporation. This exemption includes the board of directors, the committee, or other governing body.
Withholding is required on certain distributions and other transactions by domestic or foreign corporations, qualified investment entities, trusts, and estates. A domestic trust or estate must withhold 35% of the amount distributed to a foreign beneficiary from a “U.S. real property interest account” that it is required to establish under Regulations section 1.1445-5(c)(1)(iii). A foreign corporation that has not made the election under section 897(i) must withhold 35% of the gain it recognizes on the distribution of a U.S. real property interest to its shareholders. Certain domestic corporations are required to withhold tax on distributions to foreign shareholders.
No withholding is required on the transfer of an interest in a domestic corporation if any class of stock of the corporation is regularly traded on an established securities market. Also, no withholding is required on the transfer of an interest in a publicly traded partnership or trust.
No withholding will be required with respect to an interest holder if the entity or fiduciary receives a certification of nonforeign status from the interest holder. An entity or fiduciary may also use other means to determine that an interest holder is not a foreign person, but if it does so and it is later determined that the interest holder is a foreign person, the withholding may be collected from the entity or fiduciary.
Trusts with more than 100 beneficiaries may make an election to withhold upon distribution rather than at the time of transfer. The amount to be withheld from each distribution is 35% of the amount attributable to the foreign beneficiary’s proportionate share of the current balance of the trust’s section 1445(e)(1) account. This election does not apply to any qualified investment entity or to any publicly traded trust. Special rules apply to large trusts that make recurring sales of growing crops and timber.
A trust’s section 1445(e)(1) account is the total net gain realized by the trust on all section 1445(e)(1) transactions after the date of the election, minus the total of all distributions made by the trust after the date of the election from such total net gain. See Regulations section 1.1445-5(c)(3) for more information.
A foreign corporation that distributes a U.S. real property interest must generally withhold 35% of the gain recognized by the corporation. No withholding or reduced withholding is required if the corporation receives a withholding certificate from the IRS.
Generally, a domestic corporation that distributes any property to a foreign person that holds an interest in the corporation must withhold 10% of the fair market value of the property distributed if:
The foreign person’s interest in the corporation is a U.S. real property interest under section 897, and
The property is distributed in redemption of stock under section 302, in liquidation of the corporation under sections 331 through 341, or with respect to stock under section 301 that is not made out of the earnings and profits of the corporation.
No withholding or reduced withholding is required if the corporation receives a withholding certificate from the IRS.
No withholding is required under section 1445(e)(4), relating to certain taxable distributions by domestic or foreign partnerships, trusts, and estates, until the effective date of a Treasury Decision under section 897(e)(2)(B)(ii) and (g).
The transferee of a partnership interest must withhold 10% of the amount realized on the disposition by a foreign partner of an interest in a domestic or foreign partnership in which at least 50% of the value of the gross assets consists of U.S. real property interests and at least 90% of the value of the gross assets consists of U.S. real property interests plus any cash or cash equivalents. However, no withholding is required under section 1445(e)(5) for dispositions of interests in other partnerships, trusts, or estates until the effective date of a Treasury Decision under section 897(g). No withholding is required if, no earlier than 30 days before the transfer, the transferee receives a statement signed by a general partner under penalties of perjury that at least 50% of the value of the gross assets of the partnership does not consist of U.S. real property interests or that at least 90% of the value of the gross assets does not consist of U.S. real property interests plus cash or cash equivalents. The transferee may rely on the statement unless the transferee knows it is false or the transferee receives a false statement notice pursuant to Regulations section 1.1445-4.
A qualified investment entity must withhold 35% of a distribution to a nonresident alien or a foreign corporation that is treated as gain realized from the sale or exchange of a U.S. real property interest. No withholding under section 1445 is required on a distribution to a nonresident alien or foreign corporation if the distribution is on stock regularly traded on a securities market in the United States and the alien or corporation did not own more than 5% of that stock at any time during the 1-year period ending on the date of distribution.
B, a corporation, purchases a U.S. real property interest from F, a foreign person. On settlement day, the settlement agent pays off existing loans, withholds 10% of the amount realized on the sale, and disburses the remaining amount to F. B, not the agent, must complete Part I of Form 8288 and Form 8288-A.
C, a domestic corporation, distributes property to F, a foreign shareholder whose interest in C is a U.S. real property interest. The distribution is in redemption of C’s stock (section 1445(e)(3) transaction). C must withhold 10% of the fair market value of the property distributed to F. C must complete Part II of Form 8288, and Form 8288-A.
If you are a fiduciary, list your name and the name of the trust or estate. Enter the home address of an individual or the office address of an entity.
For a U.S. individual, the identifying number is a social security number (SSN). For any entity other than an individual (for example, corporation, qualified investment entity, estate, or trust), the identifying number is an employer identification number (EIN). If you do not have an EIN, you can apply for one online at www.irs.gov/smallbiz or by telephone at 1-800-829-4933. Also, you can file Form SS-4, Application for Employer Identification Number, by fax or mail.
For a nonresident alien individual who is not eligible for an SSN, the identifying number is an IRS individual taxpayer identification number (ITIN). If the individual does not already have an ITIN, he or she should complete Forms 8288 and 8288-A and mail the forms along with any payment to the address shown under Where To File, earlier. In a separate package mail a completed Form W-7, Application for IRS Individual Taxpayer Identification Number, with supporting documentation and a copy of Forms 8288 and 8288-A to the IRS at the address given in the Form W-7 instructions.
We ask for the information on this form to carry out the Internal Revenue laws of the United States. Section 1445 generally imposes a withholding obligation on the buyer or other transferee (withholding agent) when a U.S. real property interest is acquired from a foreign person. Section 1445 also imposes a withholding obligation on certain foreign and domestic corporations, qualified investment entities, and the fiduciary of certain trusts and estates. This form is used to report and transmit the amount withheld.
You are required to provide this information. Section 6109 requires you to provide your identification number. We need this information to ensure that you are complying with the Internal Revenue laws and to allow us to figure and collect the right amount of tax. Failure to provide this information in a timely manner, or providing false information, may subject you to penalties. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation, and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for administration of their tax laws. We may also disclose this information to other countries under a tax treaty, to federal and state agencies to enforce federal nontax criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism.
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 these forms will vary depending on individual circumstances. The estimated average times are:
|Form 8288||Form 8288-A|
|Recordkeeping||5 hr., 15 min.||2 hr., 52 min.|
|Learning about the law or the form||5 hr., 8 min.||30 min.|
|Preparing and sending the form to the IRS||6 hr., 38 min.||34 min.|
If you have comments concerning the accuracy of these time estimates or suggestions for making these forms simpler, we would be happy to hear from you. You can write to the Internal Revenue Service, Tax Forms and Publications, SE:W:CAR:MP:TFP, 1111 Constitution Ave. NW, IR-6526, Washington, DC 20224. Do not send the forms to this address. Instead, see Where To File, earlier.
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