Form 8288 - U.s. Withholding Tax Return For Dispositions By Foreign Persons Of U.s. Real Property Interests Page 4

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Form 8288 (Rev. 11-2005)

Page

know that the statement is false or you

b. The transferor is exempt from U.S.

agent or the transferor’s agent, you must

receive a notice from your agent or the

tax or nonrecognition provisions apply,

withhold tax as if you had not received a

transferor’s agent that the statement is

certification or statement. But see Late

false. A corporation’s statement may be

notice of false certification on page 3.

c. The transferee or transferor enters

relied on only if it is dated not more than

into an agreement with the IRS for the

The terms “transferor’s agent” and

30 days before the date of transfer.

payment of the tax.

“transferee’s agent” mean any person

Late notice of false statement. If,

An application for a withholding

who represents the transferor or

after the date of transfer, you receive a

certificate must comply with the

transferee in any negotiation with

notice that an interest in a corporation is

provisions of Regulations sections

another person (or another person’s

not a U.S. real property interest is false,

1.1445-3 and 1.1445-6 and Rev. Proc.

agent) relating to the transaction or in

see Late notice of false certification on

2000-35, 2000-35 I.R.B. 211. You can

settling the transaction. For purposes of

page 3.

find Rev. Proc. 2000-35 on page 211 of

section 1445(e), a transferor’s or

Generally, no withholding is required

Internal Revenue Bulletin 2000-35 at

transferee’s agent is any person who

on the acquisition of an interest in a

represents or advises an entity, a holder

foreign corporation. However,

In certain cases, you may use

of an interest in an entity, or a fiduciary

withholding may be required if the

Form 8288-B to apply for a withholding

with respect to the planning,

foreign corporation has made the

certificate. The IRS will normally act on

arrangement, or completion of a

election under section 897(i) to be

an application by the 90th day after a

transaction described in sections

treated as a domestic corporation.

complete application is received.

1445(e)(1) through (4).

4. Transferor’s nonrecognition of

If you receive a withholding certificate

A person is not treated as an agent if

gain or loss. You may receive a notice

from the IRS that excuses withholding,

the person only performs one or more of

from the transferor signed under

you are not required to file Form 8288.

the following acts in connection with the

penalties of perjury stating that the

However, if you receive a withholding

transaction:

transferor is not required to recognize

certificate that reduces (rather than

1. Receiving and disbursing any part

gain or loss on the transfer because of a

eliminates) withholding, there is no

of the consideration.

nonrecognition provision of the Internal

exception to withholding, and you are

2. Recording any document.

Revenue Code (see Temporary

required to file Form 8288. Attach a

Regulations section 1.897-6T(a)(2)) or a

copy of the withholding certificate to

3. Typing, copying, and other clerical

provision in a U.S. tax treaty. You may

Form 8288. See When To File on page 2

tasks.

rely on the transferor’s notice unless

for more information.

4. Obtaining title insurance reports

(a) only part of the gain qualifies for

6. No consideration paid. The

and reports concerning the condition of

nonrecognition or (b) you know or have

amount realized by the transferor is zero

the property.

reason to know that the transferor is not

(e.g., the property is transferred as a gift

entitled to the claimed nonrecognition

5. Transmitting documents between

and the recipient does not assume any

treatment.

the parties.

liabilities or furnish any other

consideration to the transferor).

No particular form is required for this

6. Functioning exclusively in his or her

notice. By the 20th day after the date of

capacity as a representative of a

7. Options to acquire U.S. real

transfer, you must send a copy of the

condominium association or cooperative

property interests. An amount is

notice of nonrecognition (with a cover

housing corporation. This exemption

realized by the grantor on the grant or

includes the board of directors, the

letter giving your name, address, and

lapse of an option to acquire a U.S. real

identification number) to the Director,

committee, or other governing body.

property interest. However, withholding

Philadelphia Service Center, P.O. Box

is required on the sale, exchange, or

Corporations, Trusts, and

21086, FIRPTA Unit, Philadelphia, PA

exercise of an option.

Estates Subject to Section

19114-0586. See Regulations section

8. Property acquired by a

1.1445-2(d)(2) for more information on

1445(e)

governmental unit. The property is

the transferor’s notice of nonrecognition.

acquired by the United States, a U.S.

Withholding is required on certain

Note: A notice of nonrecognition cannot

state or possession or political

distributions and other transactions by

be used for the exclusion from income

subdivision, or the District of Columbia.

domestic or foreign corporations, trusts,

under section 121, like-kind exchanges

For rules that apply to foreclosures,

and estates. A domestic trust or estate

that do not qualify for nonrecognition

see Regulations section 1.1445-2(d)(3).

must withhold 35% of the amount

treatment in their entirety, and deferred

distributed to a foreign beneficiary from

like-kind exchanges that have not been

Liability of Agents

a “U.S. real property interest account”

completed when it is time to file Form

that it is required to establish under

8288. In these cases, a withholding

If the transferee or other withholding

Regulations section 1.1445-5(c)(1)(iii). A

certificate issued by the IRS, as

agent has received (a) a transferor’s

foreign corporation that has not made

described next, must be obtained.

certification of nonforeign status or (b) a

the election under section 897(i) must

corporation’s statement that an interest

5. Withholding certificate issued by

withhold 35% of the gain it recognizes

is not a U.S. real property interest, and

the IRS. A withholding certificate may

on the distribution of a U.S. real property

the transferee’s or transferor’s agent

be issued by the IRS to reduce or

interest to its shareholders. Certain

knows that the document is false, the

eliminate withholding on dispositions of

domestic corporations are required to

agent must provide notice to the

U.S. real property interests by foreign

withhold tax on distributions to foreign

transferee or other withholding agent. If

persons. Either a transferee or transferor

shareholders.

the notice is not provided, the agent will

may apply for the certificate. The

be liable for the tax that should have

No withholding is required on the

certificate may be issued if:

transfer of an interest in a domestic

been withheld, but only to the extent of

a. Reduced withholding is appropriate

the agent’s compensation from the

corporation if any class of stock of the

because the 10% or 35% amount

transaction.

corporation is regularly traded on an

exceeds the transferor’s maximum tax

established securities market. Also, no

If you are the transferee or withholding

liability,

withholding is required on the transfer of

agent and you receive a notice of false

certification or statement from your

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