[Code of Federal Regulations]
[Title 26, Volume 12]
[Revised as of April 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 26CFR1.1441-5]

[Page 126-137]
 
                       TITLE 26--INTERNAL REVENUE
 
    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 
                               (CONTINUED)
 
PART 1_INCOME TAXES--Table of Contents
 
Sec. 1.1441-5  Withholding on payments to partnerships, trusts, and estates.

    (a) In general. This section describes the rules that apply to 
payments made to partnerships, trusts, and estates. Paragraph (b) of 
this section prescribes the rules that apply to a withholding agent 
making a payment to a U.S. partnership, trust, or estate. It also 
prescribes the obligations of a U.S. partnership, trust, or estate that 
makes a payment to a foreign partner, beneficiary, or owner. Paragraph 
(c) of this section prescribes rules that apply to a withholding agent 
that makes a payment to a foreign partnership. Paragraph (d) of this 
section provides presumption rules that apply to payments made to 
foreign partnerships. Paragraph (e) of this section prescribes rules, 
including presumption rules, that apply to a withholding agent that 
makes a payment to a foreign trust or foreign estate.
    (b) Rules applicable to U.S. partnerships, trusts, and estates--(1) 
Payments to U.S. partnerships, trusts, and estates. No withholding is 
required under section 1.1441-1(b)(1) on a payment of an amount subject 
to withholding (as defined in Sec. 1.1441-2(a)) that a withholding 
agent may treat as made to a U.S. payee. Therefore, if a withholding 
agent can reliably associate (within the meaning of Sec. 1.1441-
2(b)(vii)) a Form W-9 provided in accordance with Sec. 1.1441-1(d)(2) 
or (4) by a U.S. partnership, U.S. trust, or a U.S. estate the 
withholding agent may treat the payment as made to a U.S. payee and the 
payment is not subject to withholding under section 1441 even though the 
partnership, trust, or estate may have foreign partners, beneficiaries, 
or owners. A withholding agent is also not required to withhold under 
section 1441 on a payment it makes to an entity presumed to be a U.S. 
payee under paragraphs (d)(2) and (e)(6)(ii) of this section.
    (2) Withholding by U.S. payees--(i) U.S. partnerships--(A) In 
general. A U.S. partnership is required to withhold under Sec. 1.1441-1 
as a withholding agent on an amount subject to withholding (as defined 
in Sec. 1.1441-2(a)) that is includible in the gross income of a 
partner that is a foreign person. Subject to paragraph (b)(2)(v) of this 
section, a U.S. partnership shall withhold when any distributions that 
include amounts subject to withholding (including guaranteed payments 
made by a U.S. partnership) are made. To the extent a foreign partner's 
distributive share of income subject to withholding has not actually 
been distributed to the foreign partner, the U.S. partnership must 
withhold on the foreign partner's distributive share of the income on 
the earlier of the date that the statement required under section 
6031(b) is mailed or otherwise provided to the partner or the due date 
for furnishing the statement.
    (B) Effectively connected income of partners. Withholding on items 
of income that are effectively connected income in the hands of the 
partners who are foreign persons is governed by section 1446 and not by 
this section. In such a case, partners in a domestic partnership are not 
required to furnish a withholding certificate in order to claim an 
exemption from withholding under section 1441(c)(1) and Sec. 1.1441-4.
    (ii) U.S. simple trusts. A U.S. trust that is described in section 
651(a) (a U.S. simple trust) is required to withhold under chapter 3 of 
the Internal Revenue Code as a withholding agent on the distributable 
net income includible in the gross income of a foreign beneficiary to 
the extent the distributable net income is an amount subject to 
withholding (as defined in Sec. 1.1441-2(a)). A U.S. simple trust shall 
withhold when a distribution is made to a foreign beneficiary. The U.S. 
trust may make a reasonable estimate of the portion of the distribution 
that constitutes distributable net income consisting of an amount 
subject to withholding and apply the appropriate rate of withholding to 
the estimated amount. If, at the end of the taxable year in which the 
distribution is made, the U.S. simple trust determines that it 
underwithheld under section 1441 or 1442, the trust shall be liable as a 
withholding agent for the amount under withheld under section 1461. No 
penalties shall be imposed for failure to withhold and deposit the tax 
if the U.S. simple trust's estimate was reasonable

[[Page 127]]

and the trust pays the underwithheld amount on or before the due date of 
Form 1042 under section 1461. Any payment of underwithheld amounts by 
the U.S. simple trust shall not be treated as income subject to 
additional withholding even if that amount is treated as additional 
income to the foreign beneficiary, unless the additional amount is 
income to the foreign beneficiary as a result of a contractual 
arrangement between the parties regarding the satisfaction of the 
foreign beneficiary's tax liability. To the extent a U.S. simple trust 
is required to, but does not, distribute such income to a foreign 
beneficiary, the U.S. trust must withhold on the foreign beneficiary's 
allocable share at the time the income is required (without extension) 
to be reported on Form 1042-S under Sec. 1.1461-1(c).
    (iii) U.S. complex trusts and U.S. estates. A U.S. trust that is not 
a trust described in section 651(a) (a U.S. complex trust) is required 
to withhold under chapter 3 of the Internal Revenue Code as a 
withholding agent on the distributable net income includible in the 
gross income of a foreign beneficiary to the extent the distributable 
net income consists of an amount subject to withholding (as defined in 
Sec. 1.1441-2(a)) that is, or is required to be, distributed currently. 
The U.S. complex trust shall withhold when a distribution is made to a 
foreign beneficiary. The trust may use the same procedures regarding an 
estimate of the amount subject to withholding as a U.S. simple trust 
under paragraph (b)(2)(ii) of this section. To the extent an amount 
subject to withholding is required to be, but is not actually 
distributed, the U.S. complex trust must withhold on the foreign 
beneficiary's allocable share at the time the income is required to be 
reported on Form 1042-S under Sec. 1.1461-1(c), without extension. A 
U.S. estate is required to withhold under chapter 3 of the Internal 
Revenue Code on the distributable net income includible in the gross 
income of a foreign beneficiary to the extent the distributable net 
income consists of an amount subject to withholding (as defined in Sec. 
1.1441-2(a)) that is actually distributed. A U.S. estate may also use 
the reasonable estimate procedures of paragraph (b)(2)(ii) of this 
section. However, those procedures apply to an estate that has a taxable 
year other than a calendar year only if the estate files an amended 
return on Form 1042 for the calendar year in which the distribution was 
made and pays the underwithheld tax and interest within 60 days after 
the close of the taxable year in which the distribution was made.
    (iv) U.S. grantor trusts. A U.S. trust that is described in section 
671 through 679 (a U.S. grantor trust) must withhold on any income 
includible in the gross income of a foreign person that is treated as an 
owner of the grantor trust to the extent the amount includible consists 
of an amount that is subject to withholding (as described in Sec. 
1.1441-2(a)). The withholding must occur at the time the income is 
received by, or credited to, the trust.
    (v) Subsequent distribution. If a U.S. partnership or U.S. trust 
withholds on a foreign partner, beneficiary, or owner's share of an 
amount subject to withholding before the amount is actually distributed 
to the partner, beneficiary, or owner, withholding is not required when 
the amount is subsequently distributed.
    (c) Foreign partnerships--(1) Determination of payee--(i) Payments 
treated as made to partners. Except as otherwise provided in paragraph 
(c)(1)(ii) of this section, the payees of a payment to a person that the 
withholding agent may treat as a nonwithholding foreign partnership 
under paragraph (c)(3)(i) or (d)(2) of this section are the partners 
(looking through partners that are foreign intermediaries or flow-
through entities) as follows--
    (A) If the withholding agent can reliably associate a partner's 
distributive share of the payment with a valid Form W-9 provided under 
Sec. 1.1441-1(d), the partner is a U.S. payee;
    (B) If the withholding agent can reliably associate a partner's 
distributive share of the payment with a valid Form W-8, or other 
appropriate documentation, provided under Sec. 1.1441-1(e)(1)(ii), the 
partner is a payee that is a foreign beneficial owner;
    (C) If the withholding agent can reliably associate a partner's 
distributive share of the payment with a qualified

[[Page 128]]

intermediary withholding certificate under Sec. 1.1441-1(e)(3)(ii), a 
nonqualified intermediary withholding certificate under Sec. 1.1441-
1(e)(3)(iii), or a U.S. branch certificate under Sec. 1.1441-
1(e)(3)(v), then the rules of Sec. 1.1441-1(b)(2)(v) shall apply to 
determine who the payee is in the same manner as if the partner's 
distributive share of the payment had been paid directly to such 
intermediary or U.S. branch;
    (D) If the withholding agent can reliably associate the partner's 
distributive share with a withholding foreign partnership certificate 
under paragraph (c)(2)(iv) of this section or a nonwithholding foreign 
partnership certificate under paragraph (c)(3)(iii) of this section, 
then the rules of this paragraph (c)(1)(i) or paragraph (c)(1)(ii) of 
this section shall apply to determine whether the payment is treated as 
made to the partners of the higher-tier partnership under this paragraph 
(c)(1)(i) or to the higher-tier partnership itself (under the rules of 
paragraph (c)(1)(ii) of this section) in the same manner as if the 
partner's distributive share of the payment had been paid directly to 
the higher-tier foreign partnership;
    (E) If the withholding agent can reliably associate the partner's 
distributive share with a withholding certificate described in paragraph 
(e) of this section regarding a foreign trust or estate, then the rules 
of paragraph (e) of this section shall apply to determine who the payees 
are; and
    (F) If the withholding agent cannot reliably associate the partner's 
distributive share with a withholding certificate or other appropriate 
documentation, the partners are considered to be the payees and the 
presumptions described in paragraph (d)(3) of this section shall apply 
to determine their classification and status.
    (ii) Payments treated as made to the partnership. A payment to a 
person that the withholding agent may treat as a foreign partnership is 
treated as a payment to the foreign partnership and not to its partners 
only if--
    (A) The withholding agent can reliably associate the payment with a 
withholding certificate described in paragraph (c)(2)(iv) of this 
section (withholding certificate of a withholding foreign partnership);
    (B) The withholding agent can reliably associate the payment with a 
withholding certificate described in paragraph (c)(3)(iii) of this 
section (nonwithholding foreign partnership) certifying that the payment 
is income that is effectively connected with the conduct of a trade or 
business in the United States; or
    (C) The withholding agent can treat the income as effectively 
connected income under the presumption rules of Sec. 1.1441-4(a)(2)(ii) 
or (3)(i).
    (iii) Rules for reliably associating a payment with documentation. 
For rules regarding the reliable association of a payment with 
documentation, see Sec. 1.1441-1(b)(2)(vii). In the absence of 
documentation, see Sec. Sec. 1.1441-1(b)(3) and 1.6049-5(d) and 
paragraphs (d) and (e)(6) of this section for applicable presumptions.
    (iv) Examples. The rules of paragraphs (c)(1)(i) and (ii) of this 
section are illustrated by the following examples:

    Example 1. FP is a nonwithholding foreign partnership organized in 
Country X. FP has two partners, FC, a foreign corporation, and USP, a 
U.S. partnership. USWH, a U.S. withholding agent, makes a payment of 
U.S. source interest to FP. FP has provided USWH with a valid 
nonwithholding foreign partnership certificate, as described in 
paragraph (c)(3)(iii) of this section, with which it associates a 
beneficial owner withholding certificate from FC and a Form W-9 from USP 
together with the withholding statement required by paragraph (c)(3)(iv) 
of this section. USWH can reliably associate the payment of interest 
with the withholding certificates from FC and USP. Under paragraph 
(c)(1)(i) of this section, the payees of the interest payment are FC and 
USP.
    Example 2. The facts are the same as in Example 1, except that FP1, 
a nonwithholding foreign partnership, is a partner in FP rather than 
USP. FP1 has two partners, A and B, both foreign persons. FP provides 
USWH with a valid nonwithholding foreign partnership certificate, as 
described in paragraph (c)(3)(iii) of this section, with which it 
associates a beneficial owner withholding certificate from FC and a 
nonwithholding foreign partnership certificate from FP1. In addition, 
foreign beneficial owner withholding certificates from A and B are 
associated with the nonwithholding foreign partnership withholding 
certificate from FP1. FP also provides the withholding statement 
required by paragraph (c)(3)(iv) of this section. USWH can reliably 
associate the interest payment

[[Page 129]]

with the withholding certificates provided by FC, A, and B. Therefore, 
under paragraph (c)(1)(i) of this section, the payees of the interest 
payment are FC, A, and B.
    Example 3. USWH makes a payment of U.S. source dividends to WFP, a 
withholding foreign partnership. WFP has two partners, FC1 and FC2, both 
foreign corporations. USWH can reliably associate the payment with a 
valid withholding foreign partnership withholding certificate from WFP. 
Therefore, under paragraph (c)(1)(ii)(A) of this section, WFP is the 
payee of the dividends.
    Example 4. USWH makes a payment of U.S. source royalties to FP, a 
foreign partnership. USWH can reliably associate the royalties with a 
valid withholding certificate from FP on which FP certifies that the 
income is effectively connected with the conduct of a trade or business 
in the United States. Therefore, under paragraph (c)(1)(ii)(B) of this 
section, FP is the payee of the royalties.

    (2) Withholding foreign partnerships--(i) Reliance on claim of 
withholding foreign partnership status. A withholding foreign 
partnership is a foreign partnership that has entered into an agreement 
with the Internal Revenue Service (IRS), as described in paragraph 
(c)(2)(ii) of this section, with respect to distributions and guaranteed 
payments it makes to its partners. A withholding agent that can reliably 
associate a payment with a certificate described in paragraph (c)(2)(iv) 
of this section may treat the person to whom it makes the payment as a 
withholding foreign partnership for purposes of withholding under 
chapter 3 of the Internal Revenue Code, information reporting under 
chapter 61 of the Internal Revenue Code, backup withholding under 
section 3406, and withholding under other provisions of the Internal 
Revenue Code. Furnishing such a certificate is in lieu of transmitting 
to a withholding agent withholding certificates or other appropriate 
documentation for its partners. Although the withholding foreign 
partnership generally will be required to obtain withholding 
certificates or other appropriate documentation from its partners 
pursuant to its agreement with the IRS, it will generally not be 
required to attach such documentation to its withholding foreign 
partnership withholding certificate. A foreign partnership may act as a 
qualified intermediary under Sec. 1.1441-1(e)(5) with respect to 
payments it makes to persons other than its partners. In addition, the 
IRS may permit a foreign partnership to act as a qualified intermediary 
under Sec. 1.1441-1(e)(5)(ii)(D) with respect to its partners in 
appropriate circumstances.
    (ii) Withholding agreement. The IRS may, upon request, enter into a 
withholding agreement with a foreign partnership pursuant to such 
procedures as the IRS may prescribe in published guidance (see Sec. 
601.601(d)(2) of this chapter). Under the withholding agreement, a 
foreign partnership shall generally be subject to the applicable 
withholding and reporting provisions applicable to withholding agents 
and payors under chapters 3 and 61 of the Internal Revenue Code, section 
3406, the regulations under those provisions, and other withholding 
provisions of the Internal Revenue Code, except to the extent provided 
under the agreement. Under the agreement, a foreign partnership may 
agree to act as an acceptance agent to perform the duties described in 
Sec. 301.6109-1(d)(3)(iv)(A) of this chapter. The agreement may specify 
the manner in which applicable procedures for adjustments for 
underwithholding and overwithholding, including refund procedures, apply 
to the withholding foreign partnership and its partners and the extent 
to which applicable procedures may be modified. In particular, a 
withholding agreement may allow a withholding foreign partnership to 
claim refunds of overwithheld amounts on behalf of its customers. In 
addition, the agreement must specify the manner in which the IRS will 
audit the foreign partnership's books and records in order to verify the 
partnership's compliance with its agreement. A withholding foreign 
partnership must file a return on Form 1042 and information returns on 
Form 1042-S. The withholding foreign partnership agreement may also 
require a withholding foreign partnership to file a partnership return 
under section 6031(a) and partner statements under 6031(b).
    (iii) Withholding responsibility. A withholding foreign partnership 
must assume primary withholding responsibility under chapter 3 of the 
Internal Revenue Code. It is not required to provide information to the 
withholding agent regarding each partner's distributive share of the 
payment. The

[[Page 130]]

withholding foreign partnership will be responsible for reporting the 
payments under Sec. 1.1461-1(c) and chapter 61 of the Internal Revenue 
Code. A withholding agent making a payment to a withholding foreign 
partnership is not required to withhold any amount under chapter 3 of 
the Internal Revenue Code on a payment to the withholding foreign 
partnership, unless it has actual knowledge or reason to know that the 
foreign partnership is not a withholding foreign partnership. The 
withholding foreign partnership shall withhold the payments under the 
same procedures and at the same time as prescribed for withholding by a 
U.S. partnership under paragraph (b)(2) of this section, except that, 
for purposes of determining the partner's status, the provisions of 
paragraph (d)(4) of this section shall apply.
    (iv) Withholding certificate from a withholding foreign partnership. 
The rules of Sec. 1.1441-1(e)(4) shall apply to withholding 
certificates described in this paragraph (c)(2)(iv). A withholding 
certificate furnished by a withholding foreign partnership is valid with 
regard to any partner on whose behalf the certificate is furnished only 
if it is furnished on a Form W-8, an acceptable substitute form, or such 
other form as the IRS may prescribe, it is signed under penalties of 
perjury by a partner with authority to sign for the partnership, its 
validity has not expired, and it contains the information, statement, 
and certifications described in this paragraph (c)(2)(iv) as follows--
    (A) The name, permanent residence address (as described in Sec. 
1.1441-1(e)(2)(ii)), and the employer identification number of the 
partnership, and the country under the laws of which the partnership is 
created or governed;
    (B) A certification that the partnership is a withholding foreign 
partnership within the meaning of paragraph (c)(2)(i) of this section; 
and
    (C) Any other information, certifications or statements as may be 
required by the withholding foreign partnership agreement with the IRS 
or the form or accompanying instructions in addition to, or in lieu of, 
the information, statements, and certifications described in this 
paragraph (c)(2)(iv).
    (3) Nonwithholding foreign partnerships--(i) Reliance on claim of 
foreign partnership status. A withholding agent may treat a person as a 
nonwithholding foreign partnership if it receives from that person a 
nonwithholding foreign partnership withholding certificate as described 
in paragraph (c)(3)(iii) of this section. A withholding agent that does 
not receive a nonwithholding foreign partnership withholding 
certificate, or does not receive a valid withholding certificate, from 
an entity it knows, or has reason to know, is a foreign partnership, 
must apply the presumption rules of Sec. Sec. 1.1441-1(b)(3) and 
1.6049-5(d) and paragraphs (d) and (e)(6) of this section. In addition, 
to the extent a withholding agent cannot, prior to a payment, reliably 
associate the payment with valid documentation from a payee that is 
associated with the nonwithholding foreign partnership withholding 
certificate or has insufficient information to report the payment on 
Form 1042-S or Form 1099, to the extent reporting is required, must also 
apply the presumption rules. See Sec. 1.1441-1(b)(2)(vii)(A) and (B) 
for rules regarding reliable association. See paragraph (c)(3)(iv) of 
this section and Sec. 1.1441-1(e)(3)(iv) for alternative procedures 
permitting allocation information to be received after a payment is 
made.
    (ii) Reliance on claim of reduced withholding by a partnership for 
its partners. This paragraph (c)(3)(ii) describes the manner in which a 
withholding agent may rely on a claim of reduced withholding when making 
a payment to a nonwithholding foreign partnership. To the extent that a 
withholding agent treats a payment to a nonwithholding foreign 
partnership as a payment to the nonwithholding foreign partnership's 
partners (whether direct or indirect) in accordance with paragraph 
(c)(1)(i) of this section, it may rely on a claim for reduced 
withholding by the partner if, prior to the payment, the withholding 
agent can reliably associate the payment (within the meaning of Sec. 
1.1441-1(b)(2)(vii)) with a valid withholding certificate or other 
appropriate documentation from the partner that establishes entitlement 
to a reduced

[[Page 131]]

rate of withholding. A withholding certificate or other appropriate 
documentation that establishes entitlement to a reduced rate of 
withholding is a beneficial owner withholding certificate described in 
Sec. 1.1441-1(e)(2)(i), documentary evidence described in Sec. 1.1441-
6(c)(3) or (4) or 1.6049-5(c)(1) (for a partner claiming to be a foreign 
person and a beneficial owner, determined under the provisions of Sec. 
1.1441-1(c)(6)), a Form W-9 described in Sec. 1.1441-1(d) (for a 
partner claiming to be a U.S. payee), or a withholding foreign 
partnership withholding certificate described in paragraph (c)(2)(iv) of 
this section. Unless a nonwithholding foreign partnership withholding 
certificate is provided for income claimed to be effectively connected 
with the conduct of a trade or business in the United States, a claim 
must be presented for each portion of the payment that represents an 
item of income includible in the distributive share of a partner as 
required under paragraph (c)(3)(iii)(C) of this section. When making a 
claim for several partners, the partnership may present a single 
nonwithholding foreign partnership withholding certificate to which the 
partners' certificates or other appropriate documentation are 
associated. Where the nonwithholding foreign partnership withholding 
certificate is provided for income claimed to be effectively connected 
with the conduct of a trade or business in the United States under 
paragraph (c)(3)(iii)(D) of this section, the claim may be presented 
without having to identify any partner's distributive share of the 
payment.
    (iii) Withholding certificate from a nonwithholding foreign 
partnership. A nonwithholding foreign partnership shall provide a 
nonwithholding foreign partnership withholding certificate with respect 
to reportable amounts received by the nonwithholding foreign 
partnership. A nonwithholding foreign partnership withholding 
certificate is valid only to the extent it is furnished on a Form W-8 
(or an acceptable substitute form or such other form as the IRS may 
prescribe), it is signed under penalties of perjury by a partner with 
authority to sign for the partnership, its validity has not expired, and 
it contains the information, statements, and certifications described in 
this paragraph (c)(3)(iii) and paragraph (c)(3)(iv) of this section, and 
the withholding certificates and other appropriate documentation for all 
the persons to whom the certificate relates are associated with the 
certificate. The rules of Sec. 1.1441-1(e)(4) shall apply to 
withholding certificates described in this paragraph (c)(3)(iii). No 
withholding certificates or other appropriate documentation from persons 
who derive income through a partnership (whether or not U.S. exempt 
recipients) are required to be associated with the nonwithholding 
foreign partnership withholding certificate if the certificate is 
furnished solely for income claimed to be effectively connected with the 
conduct of a trade or business in the United States. Withholding 
certificates and other appropriate documentation that may be associated 
with the nonwithholding foreign partnership withholding certificate 
consist of beneficial owner withholding certificates under Sec. 1.1441-
1(e)(2)(i), intermediary withholding certificates under Sec. 1.1441-
1(e)(3)(i), withholding foreign partnership withholding certificates 
under paragraph (c)(2)(iv) of this section, nonwithholding foreign 
partnership withholding certificates under this paragraph (c)(3)(iii), 
withholding certificates from foreign trusts or estates under paragraph 
(e) of this section, documentary evidence described in Sec. 1.1441-
6(c)(3) or (4) or documentary evidence described in Sec. 1.6049-
5(c)(1), and any other documentation or certificates applicable under 
other provisions of the Internal Revenue Code or regulations that 
certify or establish the status of the payee or beneficial owner as a 
U.S. or a foreign person. Nothing in this paragraph (c)(3)(iii) shall 
require a nonwithholding foreign partnership to furnish original 
documentation. Copies of certificates or documentary evidence may be 
transmitted to the U.S. withholding agent, in which case the 
nonwithholding foreign partnership must retain the original 
documentation for the same time period that the copy is required to be 
retained by the withholding agent under Sec. 1.1441-1(e)(4)(iii) and 
must provide it to the withholding agent upon request. The information, 
statement,

[[Page 132]]

and certifications required on the withholding certificate are as 
follows--
    (A) The name, permanent residence address (as described in Sec. 
1.1441-1(e)(2)(ii)), and the employer identification number of the 
partnership, if any, and the country under the laws of which the 
partnership is created or governed;
    (B) A certification that the person whose name is on the certificate 
is a foreign partnership;
    (C) A withholding statement associated with the nonwithholding 
foreign partnership withholding certificate that provides all of the 
information required by paragraph (c)(3)(iv) of this section and Sec. 
1.1441-1(e)(3)(iv). No withholding statement is required, however, for a 
nonwithholding foreign partnership withholding certificate furnished for 
income claimed to be effectively connected with the conduct of a trade 
or business in the United States;
    (D) A certification that the income is effectively connected with 
the conduct of a trade or business in the United States, if applicable; 
and
    (E) Any other information, certifications, or statements required by 
the form or accompanying instructions in addition to, or in lieu of, the 
information and certifications described in this paragraph (c)(3)(iii).
    (iv) Withholding statement provided by nonwithholding foreign 
partnership. The provisions of Sec. 1.1441-1(e)(3)(iv) (regarding a 
withholding statement) shall apply to a nonwithholding foreign 
partnership by substituting the term nonwithholding foreign partnership 
for the term nonqualified intermediary.
    (v) Withholding and reporting by a foreign partnership. A 
nonwithholding foreign partnership described in this paragraph (c)(3) 
that receives an amount subject to withholding (as defined in Sec. 
1.1441-2(a)) shall be required to withhold and report such payment under 
chapter 3 of the Internal Revenue Code and the regulations thereunder 
except as otherwise provided in this paragraph (c)(3)(v). A 
nonwithholding foreign partnership shall not be required to withhold and 
report if it has provided a valid nonwithholding foreign partnership 
withholding certificate, it has provided all of the information required 
by paragraph (c)(3)(iv) of this section (withholding statement), and it 
does not know, and has no reason to know, that another withholding agent 
failed to withhold the correct amount or failed to report the payment 
correctly under Sec. 1.1461-1(c). A withholding foreign partnership's 
obligations to withhold and report shall be determined in accordance 
with its withholding foreign partnership agreement.
    (d) Presumption rules--(1) In general. This paragraph (d) contains 
the applicable presumptions for a withholding agent (including a 
partnership) to determine the classification and status of a partnership 
and its partners in the absence of documentation. The provisions of 
Sec. 1.1441-1(b)(3)(iv) (regarding the 90-day grace period) and Sec. 
1.1441-1(b)(3)(vii) through (ix) shall apply for purposes of this 
paragraph (d).
    (2) Determination of partnership status as U.S. or foreign in the 
absence of documentation. In the absence of a valid representation of 
U.S. partnership status in accordance with paragraph (b)(1) of this 
section or of foreign partnership status in accordance with paragraph 
(c)(2)(i) or (3)(i) of this section, the withholding agent shall 
determine the classification of the payee under the presumptions set 
forth in Sec. 1.1441-1(b)(3)(ii). If the withholding agent treats the 
payee as a partnership under Sec. 1.1441-1(b)(3)(ii), the withholding 
agent shall presume the partnership to be a U.S. partnership unless 
there are indicia of foreign status. If there are indicia of foreign 
status, the withholding agent may presume the partnership to be foreign. 
Indicia of foreign status exist only if the withholding agent has actual 
knowledge of the payee's employer identification number and that number 
begins with the two digits ``98,'' the withholding agent's 
communications with the payee are mailed to an address in a foreign 
country, or the payment is made outside the United States (as defined in 
Sec. 1.6049-5(e)). For rules regarding reliable association with a 
withholding certificate from a domestic or a foreign partnership, see 
Sec. 1.1441-1(b)(2)(vii).
    (3) Determination of partners' status in the absence of certain 
documentation. If a nonwithholding foreign partnership has provided a 
nonwithholding foreign

[[Page 133]]

partnership withholding certificate under paragraph (c)(3)(iii) of this 
section that would be valid except that the withholding agent cannot 
reliably associate all or a portion of the payment with valid 
documentation from a partner of the partnership, then the withholding 
agent may apply the presumption rule of this paragraph (d)(3) with 
respect to all or a portion of the payment for which documentation has 
not been received. See Sec. 1.1441-1(b)(2)(vii)(A) and (B) for rules 
regarding reliable association. The presumption rule of this paragraph 
(d)(3) also applies to a person that is presumed to be a foreign 
partnership under the rule of paragraph (d)(2) of this section. Any 
portion of a payment that the withholding agent cannot treat as reliably 
associated with valid documentation from a partner may be presumed made 
to a foreign payee. As a result, any payment of an amount subject to 
withholding is subject to withholding at a rate of 30 percent. Any 
payment that is presumed to be made to an undocumented foreign payee 
must be reported on Form 1042-S. See Sec. 1.1461-1(c).
    (4) Determination by a withholding foreign partnership of the status 
of its partners. A withholding foreign partnership shall determine 
whether the partners or some other persons are the payees of the 
partners' distributive shares of any payment made by a withholding 
foreign partnership by applying the rules of Sec. 1.1441-1(b)(2), 
paragraph (c)(1) of this section (in the case of a partner that is a 
foreign partnership), and paragraph (e)(3) of this section (in the case 
of a partner that is a foreign estate or a foreign trust). Further, the 
provisions of paragraph (d)(3) of this section shall apply to determine 
the status of partners and the applicable withholding rates to the 
extent that, at the time the foreign partnership is required to withhold 
on a payment, it cannot reliably associate the amount with documentation 
for any one or more of its partners.
    (e) Foreign trusts and estates--(1) In general. This paragraph (e) 
provides rules applicable to payments of amounts subject to withholding 
(as defined in Sec. 1.1441-2(a)) that a withholding agent may treat as 
made to any foreign trust or a foreign estate. For rules relating to 
payments to a U.S. trust or a U.S. estate, see paragraph (b) of this 
section. For the definitions of foreign simple trust, foreign complex 
trust, and foreign grantor trust, see Sec. 1.1441-1(c)(24), (25), and 
(26).
    (2) Payments to foreign complex trusts and foreign estates. Under 
Sec. 1.1441-1(c)(6)(ii)(D), a foreign complex trust or foreign estate 
is generally considered to be the beneficial owner of income paid to the 
foreign complex trust or foreign estate. See paragraph (e)(4) of this 
section for rules describing when a withholding agent may treat a 
payment as made to a foreign complex trust or a foreign estate.
    (3) Payees of payments to foreign simple trusts and foreign grantor 
trusts--(i) Payments for which beneficiaries and owners are payees. For 
purposes of the regulations under chapters 3 and 61 of the Internal 
Revenue Code and section 3406, a foreign simple trust is not a 
beneficial owner or a payee of a payment. Also, a foreign grantor trust 
(or a portion of a trust that is a foreign grantor trust) is not 
considered a beneficial owner or a payee of a payment. Except as 
otherwise provided in paragraph (e)(3)(ii) of this section, the payees 
of a payment made to a person that the withholding agent may treat as a 
foreign simple trust or a foreign grantor trust (or a portion of a trust 
that is a foreign grantor trust) are determined under the rules of this 
paragraph (e)(3)(i). The payees shall be treated as the beneficial 
owners if they may be so treated under Sec. 1.1441-1(c)(6)(ii)(C) and 
they provide documentation supporting their status as the beneficial 
owners. The payees of a payment to a foreign simple trust or foreign 
grantor trust are determined as follows--
    (A) If the withholding agent can reliably associate a payment with a 
valid Form W-9 provided under Sec. 1.1441-1(d) from a beneficiary or 
owner of the foreign trust, then the beneficiary or owner is a U.S. 
payee;
    (B) If the withholding agent can reliably associate a payment with a 
valid Form W-8, or other appropriate documentation, provided under Sec. 
1.1441-1(e)(1)(ii) from a beneficiary or owner of the foreign trust, 
then the beneficiary or owner is a payee that is a foreign beneficial 
owner;

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    (C) If the withholding agent can reliably associate a payment with a 
qualified intermediary withholding certificate under Sec. 1.1441-
1(e)(3)(ii), a nonqualified intermediary withholding certificate under 
Sec. 1.1441-1(e)(3)(ii), or a U.S. branch withholding certificate under 
Sec. 1.1441-1(e)(3)(v), then the rules of Sec. 1.1441-1(b)(2)(v) shall 
apply to determine the payee in the same manner as if the payment had 
been paid directly to such intermediary or U.S. branch;
    (D) If the withholding agent can reliably associate a payment with a 
withholding foreign partnership withholding certificate under paragraph 
(c)(2)(iv) of this section or a nonwithholding foreign partnership 
withholding certificate under paragraph (c)(3)(iii) of this section, 
then the rules of paragraph (c)(1)(i) or (ii) of this section shall 
apply to determine the payee;
    (E) If the withholding agent can reliably associate the payment with 
a foreign simple trust withholding certificate or a foreign grantor 
trust withholding certificate (both described in paragraph (e)(5)(iii) 
of this section) from a second or higher-tier foreign simple trust or 
foreign grantor trust, then the rules of this paragraph (e)(3)(i) or 
paragraph (e)(3)(ii) of this section shall apply to determine whether 
the payment is treated as made to a beneficiary or owner of the higher-
tier trust or to the trust itself in the same manner as if the payment 
had been made directly to the higher-tier trust; and
    (F) If the withholding agent cannot reliably associate a payment 
with a withholding certificate or other appropriate documentation, the 
payees shall be determined by applying the presumptions described in 
paragraph (e)(6) of this section.
    (ii) Payments for which trust is payee. A payment to a person that 
the withholding agent may treat as made to a foreign trust under 
paragraph (e)(5)(iii) of this section is treated as a payment to the 
trust, and not to a beneficiary of the trust, only if--
    (A) The withholding agent can reliably associate the payment with a 
foreign complex trust withholding certificate under paragraph (e)(4) of 
this section;
    (B) The withholding agent can reliably associate the payment with a 
foreign simple trust withholding certificate under paragraph (e)(5)(iii) 
of this section certifying that the payment is income that is treated as 
effectively connected with the conduct of a trade or business in the 
United States; or
    (C) The withholding agent can treat the income as effectively 
connected income under the presumption rules of Sec. 1.1441-4(a)(3)(i).
    (4) Reliance on claim of foreign complex trust or foreign estate 
status. A withholding agent may treat a payment as made to a foreign 
complex trust or a foreign estate if the withholding agent can reliably 
associate the payment with a beneficial owner withholding certificate 
described in Sec. 1.1441-1(e)(2)(i) or other documentary evidence under 
Sec. 1.1441-6(c)(3) or (4) (regarding a claim for treaty benefits) or 
Sec. 1.6049-5(c)(1) (regarding documentary evidence to establish 
foreign status for purposes of chapter 61 of the Internal Revenue Code) 
that establishes the foreign complex trust or foreign estate's status as 
a beneficial owner. See paragraph (e)(6) of this section for presumption 
rules if documentation is lacking.
    (5) Foreign simple trust and foreign grantor trust--(i) Reliance on 
claim of foreign simple trust or foreign grantor trust status. A 
withholding agent may treat a person as a foreign simple trust or 
foreign grantor trust if it receives from that person a foreign simple 
trust or foreign grantor trust withholding certificate as described in 
paragraph (e)(5)(iii) of this section. A withholding agent must apply 
the presumption rules of Sec. Sec. 1.1441-1(b)(3) and 1.6049-5(d) and 
paragraphs (d) and (e)(6) of this section to the extent it cannot, prior 
to the payment, reliably associate a payment (within the meaning of 
Sec. 1.1441-1(b)(2)(vii)) with a valid foreign simple trust or foreign 
grantor trust withholding certificate, it cannot reliably determine how 
much of the payment relates to valid documentation provided by a payee 
(e.g., a person that is not itself a nonqualified intermediary, flow-
through entity, or U.S. branch) associated with the foreign simple trust 
or foreign grantor trust withholding certificate, or it does not have 
sufficient information to report the

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payment on Form 1042-S or Form 1099, if reporting is required. See Sec. 
1.1441-1(b)(2)(vii)(A) and (B).
    (ii) Reliance on claim of reduced withholding by a foreign simple 
trust or foreign grantor trust for its beneficiaries or owners. This 
paragraph (e)(5)(ii) describes the manner in which a withholding agent 
may rely on a claim of reduced withholding when making a payment to a 
foreign simple trust or foreign grantor trust. To the extent that a 
withholding agent treats a payment to a foreign simple trust or foreign 
grantor trust as a payment to payees other than the trust in accordance 
with paragraph (e)(3)(i) of this section, it may rely on a claim for 
reduced withholding by a beneficiary or owner if, prior to the payment, 
the withholding agent can reliably associate the payment (within the 
meaning of Sec. 1.1441-1(b)(2)(vii)) with a valid withholding 
certificate or other appropriate documentation from a payee or 
beneficial owner that establishes entitlement to a reduced rate of 
withholding. A withholding certificate or other appropriate 
documentation that establishes entitlement to a reduced rate of 
withholding is a beneficial owner withholding certificate described in 
Sec. 1.1441-1(e)(2)(i) or documentary evidence described in Sec. 
1.1441-6(c)(3) or(4) or in Sec. 1.6049-5(c)(1) (for a beneficiary or 
owner claiming to be a foreign person and a beneficial owner, determined 
under the provisions of Sec. 1.1441-1(c)(6)), a Form W-9 described in 
Sec. 1.1441-1(d) (for a beneficiary or owner claiming to be a U.S. 
payee), or a withholding foreign partnership withholding certificate 
described in paragraph (c)(2)(iv) of this section. Unless a foreign 
simple trust or foreign grantor trust withholding certificate is 
provided for income treated as income effectively connected with the 
conduct of a trade or business in the United States, a claim must be 
presented for each payee's portion of the payment. When making a claim 
for several payees, the trust may present a single foreign simple trust 
or foreign grantor trust withholding certificate with which the payees' 
certificates or other appropriate documentation are associated. Where 
the foreign simple trust or foreign grantor trust withholding 
certificate is provided for income that is treated as effectively 
connected with the conduct of a trade or business in the United States 
under paragraph (e)(5)(iii)(D) of this section, the claim may be 
presented without having to identify any beneficiary's or grantor's 
distributive share of the payment.
    (iii) Withholding certificate from foreign simple trust or foreign 
grantor trust. A withholding certificate furnished by a foreign simple 
trust or a foreign grantor trust that is not a withholding foreign trust 
(within the meaning of paragraph (e)(5)(v) of this section) is valid 
only if it is furnished on a Form W-8, an acceptable substitute form, or 
such other form as the IRS may prescribe, it is signed under penalties 
of perjury by a trustee, its validity has not expired, it contains the 
information, statements, and certifications required by this paragraph 
(e)(5)(iii) and Sec. 1.1441-1(e)(3)(iv), and the withholding 
certificates or other appropriate documentation for all of the payees 
(as determined under paragraph (e)(3)(i) of this section) to whom the 
certificate relates are associated with the foreign simple trust or 
foreign grantor trust withholding certificate. The rules of Sec. 
1.1441-1(e)(4) shall apply to withholding certificates described in this 
paragraph (e)(5)(iii). No withholding certificates or other appropriate 
documentation from persons who derive income through a foreign simple 
trust or a foreign grantor trust (whether or not U.S. exempt recipients) 
are required to be associated with the foreign simple trust or foreign 
grantor trust withholding certificate if the certificate is furnished 
solely for income that is treated as effectively connected with the 
conduct of a trade or business in the United States. Withholding 
certificates and other appropriate documentation (as determined under 
paragraph (e)(3)(i) of this section) that may be associated with a 
foreign simple trust or foreign grantor trust withholding certificate 
consist of beneficial owner withholding certificates under Sec. 1.1441-
1(e)(2)(i), intermediary withholding certificates under Sec. 1.1441-
1(e)(3)(i), withholding foreign partnership withholding certificates 
under paragraph (c)(2)(iv) of this section, nonwithholding foreign 
partnership

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withholding certificates under paragraph (c)(3)(iii) of this section, 
withholding certificates from foreign trusts or estates under paragraph 
(e)(4) or (5)(iii) of this section, documentary evidence described in 
Sec. Sec. 1.1441-6(c)(3) or (4), or 1.6049-5(c)(1), and any other 
documentation or certificates applicable under other provisions of the 
Internal Revenue Code or regulations that certify or establish the 
status of the payee or beneficial owner as a U.S. or a foreign person. 
Nothing in this paragraph (e)(5)(iii) shall require a foreign simple 
trust or foreign grantor trust to provide original documentation. Copies 
of certificates or documentary evidence may be passed up to the U.S. 
withholding agent, in which case the foreign simple trust or foreign 
grantor trust must retain the original documentation for the same time 
period that the copy is required to be retained by the withholding agent 
under Sec. 1.1441-1(e)(4)(iii) and must provide it to the withholding 
agent upon request. The information, statement, and certifications 
required on a foreign simple trust or foreign grantor trust withholding 
certificate are as follows--
    (A) The name, permanent residence address (as described in Sec. 
1.1441-1(e)(2)(ii)), and the employer identification number, if 
required, of the trust and the country under the laws of which the trust 
is created;
    (B) A certification that the person whose name is on the certificate 
is a foreign simple trust or a foreign grantor trust;
    (C) A withholding statement associated with the foreign simple trust 
or foreign grantor trust withholding certificate that provides all of 
the information required by paragraph (e)(5)(iv) of this section. No 
withholding statement is required, however, for a foreign simple trust 
withholding certificate furnished for income that is treated as 
effectively connected with the conduct of a trade or business in the 
United States;
    (D) A certification on a foreign simple trust withholding 
certificate that the income is treated as effectively connected with the 
conduct of a trade or business in the United States, if applicable; and
    (E) Any other information, certifications, or statements required by 
the form or accompanying instructions in addition to, or in lieu of, the 
information, certifications, and statements described in this paragraph 
(e)(5)(iii);
    (iv) Withholding statement provided by a foreign simple trust or 
foreign grantor trust. The provisions of Sec. 1.1441-1(e)(3)(iv) 
(regarding a withholding statement) shall apply to a foreign simple 
trust or foreign grantor trust by substituting the term foreign simple 
trust or foreign grantor trust for the term nonqualified intermediary.
    (v) Withholding foreign trusts. The IRS may enter an agreement with 
a foreign trust to treat the trust or estate as a withholding foreign 
trust. Such an agreement shall generally follow the same principles as 
an agreement with a withholding foreign partnership under paragraph 
(c)(2)(ii) of this section. A withholding agent may treat a payment to a 
withholding foreign trust in the same manner the withholding agent would 
treat a payment to a withholding foreign partnership. The IRS may also 
enter an agreement to treat a trust as a qualified intermediary in 
appropriate circumstances. See Sec. 1.1441-1(e)(5)(ii)(D).
    (6) Presumption rules--(i) In general. This paragraph (e)(6) 
contains the applicable presumptions for a withholding agent (including 
a trust or estate) to determine the classification and status of a trust 
or estate and its beneficiaries or owners in the absence of valid 
documentation. The provisions of Sec. 1.1441-1(b)(3)(iv) (regarding the 
90-day grace period) and Sec. 1.1441-1(b)(3)(vii) through (ix) shall 
apply for purposes of this paragraph (e)(6).
    (ii) Determination of status as U.S. or foreign trust or estate in 
the absence of documentation. In the absence of valid documentation that 
establishes the U.S. status of a trust or estate under paragraph (b)(1) 
of this section and of documentation that establishes the foreign status 
of a trust or estate under paragraph (e)(4) or (5)(iii) of this section, 
the withholding agent shall determine the classification of the payee 
based upon the presumptions set forth in Sec. 1.1441-1(b)(3)(ii). If, 
based upon those presumptions, the withholding agent classifies the 
payee as a trust or

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estate, the trust or estate shall be presumed to be a U.S. trust or U.S. 
estate unless there are indicia of foreign status, in which case the 
trust or estate shall be presumed to be foreign. Indicia of foreign 
status exists if the withholding agent has actual knowledge of the 
payee's employer identification number and that number begins with the 
two digits ``98,'' the withholding agent's communications with the payee 
are mailed to an address in a foreign country, or the payment is made 
outside the United States (as defined in Sec. 1.6049-5(e)). If an 
undocumented payee is presumed to be a foreign trust it shall be 
presumed to be a foreign complex trust. If a withholding agent has 
documentary evidence that establishes that an entity is a foreign trust, 
but the withholding agent cannot determine whether the foreign trust is 
a complex trust, a simple trust, or foreign grantor trust, the 
withholding agent may presume that the trust is a foreign complex trust.
    (iii) Determination of beneficiary or owner's status in the absence 
of certain documentation. If a foreign simple trust or foreign grantor 
trust has provided a foreign simple trust or foreign grantor trust 
withholding certificate under paragraph (e)(5)(iii) of this section but 
the payment to such trust cannot be reliably associated with valid 
documentation from a specific beneficiary or owner of the trust, then 
any portion of a payment that a withholding agent cannot treat as 
reliably associated with valid documentation from a beneficiary or owner 
may be presumed made to a foreign payee. As a result, any payment of an 
amount subject to withholding is subject to withholding at a rate of 30 
percent. Any such payment that is presumed to be made to an undocumented 
foreign person must be reported on Form 1042-S. See Sec. 1.1461-1(c).
    (f) Failure to receive withholding certificate timely or to act in 
accordance with applicable presumptions. See applicable procedures 
described in Sec. 1.1441-1(b)(7) in the event the withholding agent 
does not hold an appropriate withholding certificate or other 
appropriate documentation at the time of payment or fails to rely on the 
presumptions set forth in Sec. 1.1441-1(b)(3) or in paragraph (d) or 
(e) of this section.
    (g) Effective date--(1) General rule. This section applies to 
payments made after December 31, 2000.
    (2) Transition rules. The validity of a withholding certificate that 
was valid on January 1, 1998, under the regulations in effect prior to 
January 1, 2001 (see 26 CFR parts 1 and 35a, revised April 1, 1999) and 
expired, or will expire, at any time during 1998, is extended until 
December 31, 1998. The validity of a withholding certificate that is 
valid on or after January 1, 1999, remains valid until its validity 
expires under the regulations in effect prior to January 1, 2001 (see 26 
CFR parts 1 and 35a, revised April 1, 1999) but in no event will such a 
withholding certificate remain valid after December 31, 2000. The rule 
in this paragraph (g)(2), however, does not apply to extend the validity 
period of a withholding certificate that expires solely by reason of 
changes in the circumstances of the person whose name is on the 
certificate. Notwithstanding the first three sentences of this paragraph 
(g)(2), a withholding agent may choose to not take advantage of the 
transition rule in this paragraph (g)(2) with respect to one or more 
withholding certificates valid under the regulations in effect prior to 
January 1, 2001 (see 26 CFR parts 1 and 35a, revised April 1, 1999) and, 
therefore, to require withholding certificates conforming to the 
requirements described in this section (new withholding certificates). 
For purposes of this section, a new withholding certificate is deemed to 
satisfy the documentation requirement under the regulations in effect 
prior to January 1, 2001 (see 26 CFR parts 1 and 35a, revised April 1, 
1999). Further, a new withholding certificate remains valid for the 
period specified in Sec. 1.1441-1(e)(4)(ii), regardless of when the 
certificate is obtained.

[T.D. 8734, 62 FR 53452, Oct. 14, 1997, as amended by T.D. 8804, 63 FR 
72185, 72188, Dec. 31, 1998; 64 FR 73410, Dec. 30, 1999; T.D. 8881, 65 
FR 32188, May 22, 2000; 66 FR 18188, Apr. 6, 2001]

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