Form 8288 - U.s. Withholding Tax Return For Dispositions By Foreign Persons Of U.s. Real Property Interests Page 3

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Form 8288 (Rev. 8-2000)

Page

property will be vacant in making this

For rules that apply to foreclosures, see

Late notice of false statement. If after the

determination. No form or other document is

date of transfer you receive a notice that a

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

required to be filed with the IRS for this

statement that an interest in a corporation is not

exception; however, if you do not in fact use the

a U.S. real property interest is false, see Late

Liability of Agents

property as a residence, the withholding tax may

notice of false certification above.

be collected from you.

If the transferee or other withholding agent has

Generally, no withholding is required on the

received (a) a transferor’s certification of

This exception applies whether or not the

acquisition of an interest in a foreign corporation.

nonforeign status, or (b) a corporation’s

transferor (seller) is an individual, partnership,

However, withholding may be required if the

statement that an interest is not a U.S. real

trust, corporation, or other transferor. However,

foreign corporation has made the election under

property interest, and the transferee’s or

this exception does not apply if the actual

section 897(i) to be treated as a domestic

transferor’s agent knows that the document is

transferee (buyer) is not an individual, even if

corporation.

false, the agent must provide notice to the

the property is acquired for an individual.

4. Transferor’s nonrecognition of gain or

transferee or other withholding agent. If the

2. Tranferor not a foreign person. You

loss. You may receive a notice from the

notice is not provided, the agent will be liable for

receive a certification of nonforeign status from

transferor signed under penalties of perjury

the tax that should have been withheld, but only

the transferor, signed under penalties of perjury,

stating that the transferor is not required to

to the extent of the agent’s compensation from

stating that the transferor is not a foreign person

recognize gain or loss on the transfer because of

the transaction.

and containing the transferor’s name, address,

a nonrecognition provision of the Internal

If you are the transferee or withholding agent

and identification number (social security number

Revenue Code (see Temporary Regulations

and you receive a notice of false certification or

(SSN) or employer identification number (EIN)). If

section 1.897-6T(a)(2)). You may rely on the

statement from your agent or the transferor’s

you receive a certification, the withholding tax

transferor’s notice unless (a) only part of the

agent, you must withhold tax as if you had not

cannot be collected from you unless you knew

gain qualifies for nonrecognition, or

received a certification or statement. But see

that the certification was false or you received a

(b) you know or have reason to know that the

Late notice of false certification above.

notice from your agent or the transferor’s agent

transferor is not entitled to the claimed

that it was false. The certification must be

nonrecognition treatment.

The terms “transferor’s agent” and

signed by the individual, a responsible officer of

“transferee’s agent” mean any person who

No particular form is required for this notice.

a corporation, a general partner of a partnership,

represents the transferor or transferee in any

By the 20th day after the date of transfer, you

or the trustee, executor, or fiduciary of a trust or

negotiation with another person (or another

must send a copy of the notice of

estate.

person’s agent) relating to the transaction, or in

nonrecognition (with a cover letter giving your

settling the transaction. For purposes of section

A foreign corporation electing to be treated as

name, address, and identification number) to the

1445(e), a transferor’s or transferee’s agent is

a domestic corporation under section 897(i) must

address listed under Where To File on page 2.

any person who represents or advises an entity,

attach to the certification a copy of the

See Temporary Regulations section 1.1445-9T(b)

a holder of an interest in an entity, or a fiduciary

acknowledgment of the election received from

for more information on the transferor’s notice of

with respect to the planning, arrangement, or

the IRS. The acknowledgment must state that

nonrecognition.

completion of a transaction described in sections

the information required by Regulations section

5. Withholding certificate issued by the IRS.

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

1.897-3 has been determined to be complete. If

A withholding certificate may be issued by the

the acknowledgment is not attached, you may

A person is not treated as an agent if the

IRS to reduce or eliminate withholding on

not rely on the certification. Keep any

person only performs one or more of the

dispositions of U.S. real property interests by

certification of nonforeign status you receive in

following acts in connection with the transaction:

foreign persons. Either a transferee or transferor

your records for 5 years after the year of

may apply for the certificate. The certificate may

1. Receiving and disbursing any part of the

transfer.

be issued if:

consideration.

You may also use other means to determine

a. Reduced withholding is appropriate

2. Recording any document.

that the transferor is not a foreign person. But if

because the 10% or 35% amount exceeds the

3. Typing, copying, and other clerical tasks.

you do, and it is later determined that the

transferor’s maximum tax liability,

4. Obtaining title insurance reports and reports

transferor is a foreign person, the withholding tax

b. The transferor is exempt from U.S. tax or

concerning the condition of the property.

may be collected from you.

nonrecognition provisions apply, or

5. Transmitting documents between the

Late notice of false certification. If, after the

c. The transferee or transferor enters into an

parties.

date of transfer, you receive a notice from your

agreement with the IRS for the payment of the

agent or the transferor’s agent that the

6. Functioning exclusively in his or her

tax.

certification of nonforeign status is false, you do

capacity as a representative of a condominium

An application for a withholding certificate

not have to withhold on consideration paid

association or cooperative housing corporation.

must comply with the provisions of Regulations

before you received the notice. However, you

This exemption includes the board of directors,

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

must withhold the full 10% of the amount

the committee, or other governing body.

2000-35, 2000-35 I.R.B. 211. In certain cases,

realized from any consideration that remains to

you may use Form 8288-B to apply for a

be paid, if possible. You must do this by

Corporations, Partnerships, Trusts,

withholding certificate. The IRS will normally act

withholding and paying over the entire amount of

and Estates Subject to Section

on an application by the 90th day after a

each successive payment of consideration until

1445(e)

complete application is received.

the full 10% has been withheld and paid to the

IRS. These amounts must be reported and

If you receive a withholding certificate from the

Withholding is required on certain distributions

transmitted to the IRS by the 20th day following

IRS that excuses withholding, you are not

and other transactions by domestic or foreign

the date of each payment.

required to file Form 8288. However, if you

corporations, partnerships, trusts, and estates. A

receive a withholding certificate that reduces

domestic trust or estate must withhold 35% of

3. Transferred property that is not a U.S.

(rather than eliminates) withholding, there is no

the amount distributed to a foreign beneficiary

real property interest. You acquire an interest

exception to withholding, and you are required

from a “U.S. real property interest account” that

in property that is not a U.S. real property

to file Form 8288. Attach a copy of the

it is required to establish under Regulations

interest. A U.S. real property interest includes

withholding certificate to Form 8288. See When

section 1.1445-5(c)(1)(iii). A foreign corporation

certain interests in U.S. corporations, as well as

To File on page 2 for more information.

that has not made the election under section

direct interests in real property and certain

897(i) must withhold 35% of the gain it

associated personal property (see Definitions on

6. No consideration paid. The amount

recognizes on the distribution of a U.S. real

page 2).

realized by the transferor is zero (e.g., the

property interest to its shareholders. Certain

property is transferred as a gift and the recipient

No withholding is required on the acquisition

domestic corporations are required to withhold

does not assume any liabilities or furnish any

of an interest in a domestic corporation if (a) any

tax on distributions to foreign shareholders.

other consideration to the transferor).

class of stock of the corporation is regularly

No withholding is required on the transfer of

traded on an established securities market, or

7. Options to acquire U.S. real property

an interest in a domestic corporation if any class

(b) the transferee receives a statement by the

interests. An amount is realized by the grantor

of stock of the corporation is regularly traded on

corporation that the interest is not a U.S. real

on the grant or lapse of an option to acquire a

an established securities market. Also, no

property interest, unless you know that the

U.S. real property interest. However, withholding

withholding is required on the transfer of an

statement is false or you receive a notice from

is required on the sale, exchange, or exercise of

interest in a publicly traded partnership or trust.

your agent or the transferor’s agent that the

an option.

statement is false. A corporation’s statement

8. Property acquired by a governmental

may be relied on only if it is dated not more than

unit. The property is acquired by the United

30 days before the date of transfer.

States, a U.S. state or possession or political

subdivision, or the District of Columbia.

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