Td 9082

Page 1

Treasury Decisions
Copyright 2007 LexisNexis Group, All Rights Reserved
Rules and Regulations
DEPARTMENT OF THE TREASURY
Internal Revenue Service (IRS)
26 CFR Parts 1, 301 and 602
68 FR 46081; RIN 1545-AY24
Revision of Income Tax Regulations Under Sections 897, 1445, and 6109 To Require Use of Taxpayer Identifying Numbers on Submissions Under the Section 897 and 1445 Regulations
T.D. 9082
DATE: August 5, 2003
ACTION: Final and temporary regulations.
SUMMARY: This document contains final and temporary regulations to require the use of taxpayer identifying numbers on submissions under sections 897 and 1445. The regulations are necessary to properly identify foreign taxpayers
for which submissions are made for the reduction or elimination of tax under sections 897 and 1445. The regulations
also address certain additional issues under section 1445.
DATES: Effective Date: These regulations are effective August 5, 2003.
Applicability Date: For dates of applicability, see §§ 1.897-3(h), 1.897-5(e), 1.1445-1(h), 1.1445-2(b)(2)(iii),
1.1445-2(d)(2)(iv), 1.1445-2(e), 1.1445-3(h), 1.1445-5(b)(8)(iii), 1.1445-5(h), and 1.1445-6(h).
FOR FURTHER INFORMATION CONTACT: Robert W. Lorence, Jr. (202) 622-3860 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in these final regulations have been reviewed and approved by the Office
of Management and Budget in accordance with the Paperwork Reduction Act (44 U.S.C. 3507) under control number
1545-1797. The collection of information in these final regulations are in §§ 1.1445-2(d)(2) and 1.1445-3. These collections of information are required to notify the IRS of dispositions of U.S. real property interests by foreign persons that
otherwise are subject to taxation under section 897 and the collection of a withholding tax under section 1445.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.
The estimated annual burden per respondent varies from 3 to 5 hours, depending on individual circumstances, with
an estimated average of 4 hours.
Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent
to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, W:CAR:MP:T:T:SP, Washington, DC 20224,

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T.D. 9082

and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.
Books or records relating to these collections of information must be retained as long as their contents may become
material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Background
This document contains amendments to 26 CFR parts 1 and 301. On July 26, 2002, a notice of proposed
rule-making (REG-106876-00), relating to the use of taxpayer identifying numbers on submissions under sections 897
and 1445 of the Internal Revenue Code (Code), was published in the Federal Register (67 FR 48823). No public hearing was requested or held. Written comments responding to the notice of proposed rule-making were received. After
consideration of the comments, the proposed regulations are adopted as amended by this Treasury decision. The revisions are discussed below.
Summary of Public Comments and Explanation of Revisions
A. Use of Taxpayer Identifying Number
This document contains final regulations under sections 897, 1445, and 6109 that require foreign transferors of U.S.
real property interests (and transferees where applicable) to provide their taxpayer identifying numbers (TINs) on withholding tax returns, applications for withholding certificates, and other notices and elections under sections 897 and
1445 and the regulations thereunder. TINs are required so that the IRS can identify foreign taxpayers and more easily
match applications, withholding tax returns, notices, and elections with the transferors' income tax returns.
Applications for withholding certificates, and other notices and elections under section 897 and 1445 will be considered incomplete and generally will not be processed by the IRS unless the TIN of the transferor is provided. Amounts
withheld under section 1445 must still be reported and paid to the IRS on withholding tax returns (Form 8288, "U.S.
Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests", and Form 8288-A,
"Statement of Withholding on Dispositions by Foreign Persons of U.S. Real Property Interests") if the appropriate TINs
are not provided. The final regulations provide that although such amounts have been paid, if the transferor's TIN is not
included, a receipt (Form 8288-A) for withholding tax paid to the Service will not be stamped to show receipt and will
not be mailed to the transferor.
In many cases, the foreign taxpayer will already have a TIN, because the taxpayer will have already filed a U.S. tax
return. If the taxpayer does not already have a TIN, the TIN requirement under the regulations merely accelerates the
time to obtain a TIN, because the foreign taxpayer must have a TIN to file its U.S. income tax return for the year of the
disposition of the U.S. real property interest. In the case of foreign entities (such as foreign corporations) that are required to have employee identification numbers (EINs), the EINs can be obtained without delay through existing procedures.
Commentators have expressed concern about the time it takes nonresident alien individuals to obtain TINs and how
it could effect the timing of transactions. The IRS is aware of this concern and is exploring approaches for addressing it.
For example, the IRS is considering implementing a program in which applications for withholding certificates will be
processed in conjunction with applications for TINs. The need to obtain a TIN generally should not delay the time it
takes to get a withholding certificate under § 1.1445-3. In addition, the portion of these regulations that imposes a requirement concerning TINs, will not be applicable until 90 days after the date of publication in the Federal Register in
order to permit taxpayers that currently own real property additional time to obtain a TIN, if necessary.
B. Section 1031 Like-Kind Exchanges
Section 1031(a) provides for the nonrecognition of gain or loss on the exchange of like-kind property which is held
for productive use in a trade or business or held for investment. Section 1031(a)(3) provides for the exchange of
like-kind property in deferred exchanges, where the taxpayer has 45 days after it relinquishes the property to the transferee to identify replacement property and the transferee has until the earlier of 180 days or the due date of the tax return
for the year of transfer to deliver such property to the transferor.

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Notices of nonrecognition under § 1.1445-2(d) are limited to exchanges (including section 1031 exchanges) that
qualify for nonrecognition treatment in their entirety (thus, a notice of nonrecognition may not be used if the transferor
receives money or other property, i.e., boot). Consistent with the proposed regulations, these final regulations provide
that in the case of a simultaneous exchange of like-kind U.S. real property interests (where there is no boot), the foreign
transferor can provide a notice of nonrecognition under § 1.1445-2(d)(2) to the transferee, and the transferee can rely on
such notice, because the like-kind exchange will be fully completed on the day of the exchange. In the case of a deferred
like-kind exchange of U.S. real property interests, the transferee cannot rely on a notice of nonrecognition, because the
transferee cannot be assured that the exchange will qualify for nonrecognition treatment under section 1031 (e.g., that
the property to be received by the foreign transferor will be identified within the 45-day period required under section
1031(a)), or even if the exchange qualifies under section 1031, that the foreign transferor will not receive boot in the
transaction. Although a notice of nonrecognition is not available in a deferred like-kind exchange, the transferee may
withhold a reduced amount based on a claim of nonrecognition upon receipt of a withholding certificate pursuant to the
procedures of § 1.1445-3.
Commentators have proposed that using a notice of nonrecognition for deferred like-kind exchanges should be
permitted if a "claim of intent" to engage in an exchange qualifying for nonrecognition under section 1031 is provided.
The IRS continues to believe that notices of nonrecognition are inappropriate for deferred like-kind exchanges. In a deferred like-kind exchange, until the replacement property has been identified and a contract for its purchase is executed,
the transferor does not know with certainty that the exchange will qualify for nonrecognition under section 1031.
Moreover, it is uncertain whether boot will be received in the exchange if the replacement property is not identified at
the time the relinquished property is transferred to the transferee. Accordingly, the regulations do not permit a notice of
nonrecognition in the case of a deferred like-kind exchange and require the taxpayer to obtain a withholding certificate.
Special Analyses
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the
Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. These regulations impose no
new collection of information on small entities; therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. Pursuant to section 7805(f) of the Code, the proposed regulations preceding these regulations were submitted to the Chief Counsel for Advocacy of the Small Business Administration for
comment on its impact on small business.
Drafting Information
The principal author of these regulations is Robert W. Lorence, Jr., Office of Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in their development.
List of Subjects
26 CFR Part 1
Income taxes, Reporting, and recordkeeping requirements.
26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income taxes, Penalties, Reporting and recordkeeping
requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 1, 301 and 602 are amended as follows:
PART 1--INCOME TAXES

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T.D. 9082

1. The authority for part 1 continues to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
§ 1.897-1 -- [Amended]
2. In § 1.897-1, paragraph (p), the first sentence is amended by adding the language "or the identification number
assigned by the Internal Revenue Service (see § 301.6109-1 of this chapter)" immediately after the language "United
States social security number".
§ 1.897-2 -- [Amended]
3. Section 1.897-2 is amended as follows:
For each of the paragraphs listed in the first column, remove the language in the second column and add in its place
the language in the third column:
Paragraphs
(g)(1)(i)(B)

Remove
Director, Foreign
Operations District
("Director")

(g)(1)(i), fourth
sentence of
concluding text
immediately following
paragraph
(g)(1)(i)(B)
(g)(1)(iii) heading
(g)(1)(iii)(A),
first, fourth, and
last sentences
(g)(1)(iii)(A), third
sentence

Director

Add
Commissioner, Small
Business/Self
Employed Division
(SB/SE).
Commissioner.

Director
Director

Commissioner.
Commissioner.

Director, Foreign
Operations District;
1325 K St. NW;
Washington, DC 20225

Director's

Commissioner, Small
Business/Self
Employed Division
(SB/SE); S C3-413
NCFB, 500 Ellin Road,
Lanham, MD 20706.
Commissioner's.

Director

Commissioner.

Director

Commissioner.

Director

Commissioner.

Director

Commissioner.

Director
Director
Director
Director

Commissioner.
Commissioner.
Commissioner.
Commissioner.

(g)(1)(iii)(B)
heading
(g)(1)(iii)(B)
introductory text
(g)(1)(iii)(B)
concluding text
immediately following
(g)(1)(iii)(B)(2)
(g)(1)(iii)(C) both
places it appears
(g)(1)(iii)(D)
heading
(g)(1)(iii)(D)
(g)(2)(i)(B)
(g)(2)(iii) heading
(g)(2)(iii)(A),
first, fourth, and
fifth sentence (both
places it appears)

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T.D. 9082

Paragraphs
(g)(2)(iii)(A), third
sentence

Remove
Director, Foreign
Operations District;
1325 K St. NW.;
Washington, DC 20225

(g)(2)(iii)(B)
heading
(g)(2)(iii)(B)
introductory text
(g)(2)(iii)(B)
concluding text
immediately following
(g)(2)(iii)(B)(2)
(g)(2)(iii)(C), first
and second sentences
(g)(2)(iii)(D)
heading
(g)(2)(iii)(D)
(g)(2)(iv), fourth
sentence
(h)(2)(v), third
sentence

Director's

Add
Commissioner, Small
Business/Self
Employed Division
(SB/SE); S C3-413
NCFB, 500 Ellin Road,
Lanham, MD 20706.
Commissioner's.

Director

Commissioner.

Director

Commissioner.

Director

Commissioner.

Director

Commissioner.

Director
Director

Commissioner.
Commissioner.

Assistant
Commissioner
(International),
Director, Office of
Compliance,
OP:I:C:E:666, 950
L'Enfant Plaza South,
SW., COMSAT Building,
Washington, D.C.
20024
Assistant
Commissioner
(International),
Director, Office of
Compliance,
OP:I:C:E:666, 950
L'Enfant Plaza South,
SW., COMSAT Building,
Washington, D.C.
20024

Director,
Philadelphia Service
Center, P.O. Box
21086, Drop Point
8731, FIRPTA Unit,
Philadelphia, PA
19114-0586.

(h)(4)(ii), first
sentence

Director,
Philadelphia Service
Center, P.O. Box
21086, Drop Point
8731, FIRPTA Unit,
Philadelphia, PA
19114-0586.

4. Section 1.897-3 is amended as follows:
1. For each of the paragraphs listed in the first column, remove the language in the second column and add in its
place the language in the third column:
Paragraphs
(c), introductory
text

Remove
Director of the
Foreign Operations
District, 1325 K St.,
NW, Washington, DC
20225

Add
Director,
Philadelphia Service
Center, P.O. Box
21086, Drop Point
8731, FIRPTA Unit,
Philadelphia, PA
19114-0586.

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T.D. 9082

Paragraphs
(c)(1), introductory
text, last sentence

Remove
which must set forth

(d)(1), fourth
sentence
(d)(2)(i),
penultimate sentence
(f)(1), second
sentence

Foreign Operations
District
Director, Foreign
Operations District
Director, Foreign
Operations District,
1325 K St., NW.,
Washington, DC 20225

(f)(1), fifth
sentence
(g)(1), second
sentence

Foreign Operations
District
Director of the
Foreign Operations
District

Add
which must contain
all the following
information.
Philadelphia Service
Center.
U.S. Treasury.
Director,
Philadelphia Service
Center, P.O. Box
21086, Drop Point
8731, FIRPTA Unit,
Philadelphia, PA
19114-0586.
Philadelphia Service
Center
Director,
Philadelphia Service
Center.

2. In paragraph (c)(1)(i), remove the parenthetical "(if any)" after the words "identifying number".
3. Paragraph (h) is added to read as follows:
§ 1.897-3 -- Election by foreign corporation to be treated as a domestic corporation under section 897(i).
*****
(h) Effective date. The requirement in paragraph (c)(1)(i) of this section that the statement making the section 897(i)
election contain the identifying number of the foreign corporation (in all cases) is applicable November 3, 2003.
5. Section 1.897-5 is added to read as follows:
§ 1.897-5 -- Corporate distributions.
(a) through (d)(1)(iii)(E) [Reserved]. For further guidance, see § 1.897-5T(a) through (d)(1)(iii)(E).
(d)(1)(iii)(F) Identification by name and address of the distributee or transferee, including the distributee's or transferee's taxpayer identification number;
(d)(1)(iii)(G) through (d)(4) [Reserved]. For further guidance, see § 1.897-5T(d)(1)(iii)(G) through (d)(4).
(e) Effective date. This section is applicable to transfers and distributions after November 3, 2003.
6. In § 1.897-5T, paragraph (d)(1)(iii)(F) is revised to read as follows:
§ 1.897-5T -- Corporate distributions (temporary).
*****
(d) * * * (1) * * *
(iii) * * *
(F) [Reserved]. For further guidance, see § 1.897-5(d)(1)(iii)(F).
*****
§ 1.897-6T -- [Amended]
7. Section 1.897-6T is amended as follows:

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T.D. 9082

1. In paragraph (a)(2), second sentence, the language ", 1034" is removed.
2. Paragraph (a)(5) (including the undesignated paragraph at the end) is removed and reserved.
3. Paragraph (a)(7), Example 2 and Example 3 are removed and reserved.
8. Section 1.1445-1 is amended as follows:
1. In paragraph (c)(1), second sentence, remove the language "filed with the Internal Revenue Service Center,
Philadelphia, PA 19255" and add in its place the language "filed at the location as provided in the instructions to Forms
8288 and 8288-A".
2. In paragraph (c)(1), two sentences are added at the end.
3. In paragraph (c)(2)(i)(B), second sentence, remove the phrase ", if any," after the words "taxpayer identification
number".
4. In paragraphs (d)(1)(i) and (d)(1)(ii), remove the parenthetical "(if any)" after the words "identifying number".
5. In paragraphs (d)(2)(i), (d)(2)(iv)(B), and (d)(2)(vi)(B), remove the parenthetical "(if any)" after the words "identifying number".
6. In paragraph (f)(2), the first sentence is revised, and a sentence is added after the first sentence.
7. In paragraph (f)(3)(i), the last sentence is revised.
8. Paragraphs (g)(9) and (g)(10) are revised.
9. Paragraph (h) is added.
The additions and revisions read as follows:
§ 1.1445-1 -- Withholding on dispositions of U.S. real property interests by foreign persons: In general.
*****
(c) * * *
(1) * * * Forms 8288 and 8288-A are required to include the identifying numbers of both the transferor and the
transferee, as provided in paragraph (d) of this section. If any identifying number as required by such forms is not provided, the transferee must still report and pay over any tax withheld on Form 8288, although the transferor cannot obtain
a credit or refund of tax on the basis of a Form 8288-A that does not include the transferor's identifying number (see
paragraph (f)(2) of this section).
*****
(f) * * *
(2) * * * A stamped copy of Form 8288-A will be provided to the transferor by the Service (under paragraph (c) of
this section) if the Form 8288-A is complete, including the transferor's identifying number. Except as provided in paragraph (f)(3) of this section, a stamped copy of Form 8288-A must be attached to the transferor's return to establish the
amount withheld that is available as a credit. * * *
(3) * * *
(i) * * * Such a transferor must attach to its return a statement which supplies all of the information required by §
1.1445-1(d), including the transferor's identifying number.
*****
(g) * * *
(9) Identifying number. Pursuant to § 1.897-1(p), an individual's identifying number is the social security number or
the identification number assigned by the Internal Revenue Service (see § 301.6109-1 of this chapter). The identifying
number of any other person is its United States employer identification number.

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T.D. 9082

(10) Address of the Director, Philadelphia Service Center. Any written communication directed to the Director,
Philadelphia Service Center is to be addressed as follows: P.O. Box 21086, Drop Point 8731, FIRPTA Unit, Philadelphia, PA 19114-0586.
(h) Effective date for taxpayer identification numbers. The requirement in paragraphs (c)(2)(i)(B), (d)(1)(i) and (ii),
(d)(2)(i), (d)(2)(iv)(B), and (d)(2)(vi)(B) of this section that taxpayer identification numbers be provided (in all cases) is
applicable for dispositions of U.S. real property interests occurring after November 3, 2003.
9. Section 1.1445-2 is amended as follows:
1. Paragraph (b)(2)(iii) is redesignated as paragraph (b)(2)(iv), and new paragraph (b)(2)(iii) is added.
2. Newly designated paragraph (b)(2)(iv)(B) is revised.
3. In paragraph (d)(2)(i)(B), the language "Assistant Commissioner (International)" is removed, and "Director,
Philadelphia Service Center" is added in its place, and the parenthetical "(if any)," is removed after the words "identifying number".
4. Paragraphs (d)(2)(iii) and (d)(2)(iv) are added immediately following the concluding text following paragraph
(d)(2)(ii)(B).
5. In paragraphs (d)(3)(iii)(A)(2) and (d)(3)(iii)(A)(3), the parenthetical "(if any)" is removed after the words "identifying number".
6. Paragraph (e) is added.
The revision and additions read as follows:
§ 1.1445-2 -- Situations in which withholding is not required under section 1445(a).
*****
(b) * * *
(2) * * *
(iii) Disregarded entities. A disregarded entity may not certify that it is the transferor of a U.S. real property interest, as the disregarded entity is not the transferor for U.S. tax purposes, including sections 897 and 1445. Rather, the
owner of the disregarded entity is treated as the transferor of property and must provide a certificate of non-foreign status to avoid withholding under section 1445. A disregarded entity for these purposes means an entity that is disregarded
as an entity separate from its owner under § 301.7701-3 of this chapter, a qualified REIT subsidiary as defined in section 856(i), or a qualified subchapter S subsidiary under section 1361(b)(3)(B). Any domestic entity must include in its
certification of non-foreign status with respect to the transfer a certification that it is not a disregarded entity. This paragraph (b)(2)(iii) and the sample certification provided in paragraph (b)(2)(iv)(B) of this section (to the extent it addresses disregarded entities) is applicable for dispositions occurring September 4, 2003.
(iv) * * *
(B) Entity transferor.
"Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold
tax if the transferor is a foreign person. For U.S. tax purposes (including section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the
disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real
property interest by [name of transferor], the undersigned hereby certifies the following on behalf of [name of the transferor]:
1. [Name of transferor] is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those
terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. [Name of transferor] is not a disregarded entity as defined in § 1.1445-2(b)(2)(iii);
3. [Name of transferor]'s U.S. employer identification number is---; and
4. [Name of transferor]'s office address is-------.

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T.D. 9082

[Name of transferor] understands that this certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of [name
of transferor].
[Signature(s) and date]
[Title(s)]"
*****
(d) * * *
(2) * * *
(iii) Contents of the notice. No particular form is required for a transferor's notice to a transferee that the transferor
is not required to recognize gain or loss with respect to a transfer. The notice must be verified as true and signed under
penalties of perjury by the transferor, by a responsible officer in the case of a corporation, by a general partner in the
case of a partnership, and by a trustee or equivalent fiduciary in the case of a trust or estate. The following information
must be set forth in paragraphs labeled to correspond with the designation set forth as follows(A) A statement that the document submitted constitutes a notice of a nonrecognition transaction or a treaty provision pursuant to the requirements of § 1.1445-2(d)(2);
(B) The name, identifying number, and home address (in the case of an individual) or office address (in the case of
an entity) of the transferor submitting the notice;
(C) A statement that the transferor is not required to recognize any gain or loss with respect to the transfer;
(D) A brief description of the transfer; and
(E) A brief summary of the law and facts supporting the claim that recognition of gain or loss is not required with
respect to the transfer.
(iv) No notice allowed. The provisions of this paragraph (d)(2) do not apply to exclusions from income under section 121, to simultaneous like-kind exchanges under section 1031 that do not qualify for nonrecognition treatment in
their entirety (see paragraph (d)(2)(ii)(A) of this section), and to non-simultaneous like-kind exchanges under section
1031 where the transferee cannot determine that the exchange has been completed and all the conditions for nonrecognition have been satisfied at the time it is otherwise required to pay the section 1445 withholding tax and file the withholding tax return (Form 8288, "U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests"). In these cases, the transferee is excused from withholding only upon the timely application for and receipt of a withholding certificate under § 1.1445-3 (see § 1.1445-3(b)(5) and (6) for specific rules applicable to transactions under sections 121 and 1031). This paragraph (d)(2)(iv) is applicable for dispositions and exchanges occurring
September 4, 2003.
*****
(e) Effective date for taxpayer identification numbers. The requirement in paragraphs (d)(2)(i)(B), (d)(2)(iii)(B),
and (d)(3)(iii)(A)(2) and (3) of this section that taxpayer identification numbers be provided (in all cases) is applicable
for dispositions of U.S. real property interests occurring after November 3, 2003.
*****
10. Section 1.1445-3 is amended as follows:
1. In paragraph (a), after the seventh sentence, one sentence is added.
2. For each of the paragraphs listed in the column below, remove the language "Assistant Commissioner (International)", and add "Director, Philadelphia Service Center" in its place.
Paragraphs

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T.D. 9082

(b)(1), first sentence
(f)(1), first sentence
(f)(2)(iii), heading
(f)(2)(iii), first sentence
(g), third sentence, introductory text
3. In paragraph (b)(1), last sentence, remove the language "of this section" and add ", and to the extent applicable,
paragraph (b)(5) or (6) of this section" in its place.
4. Paragraph (b)(2) is revised.
5. Paragraphs (b)(5) and (b)(6) are added.
6. In paragraphs (f)(3)(i) and (g)(1), remove the parenthetical "(if any)" after the words "identifying number".
7. Paragraph (h) is added.
The revision and additions read as follows:
§ 1.1445-3 -- Adjustments to amount required to be withheld pursuant to withholding certificate.
(a) * * * In no event, however, will a withholding certificate be issued without the transferor's identifying number.
***
(b) * * *
(2) Parties to the transaction. The application must set forth the name, address, and identifying number of the person submitting the application (specifying whether that person is the transferee or transferor), and the name, address,
and identifying number of other parties to the transaction (specifying whether each such party is a transferee or transferor). The Service will deny the application if complete information, including the identifying numbers of all the parties, is not provided. Thus, for example, the applicant should determine if an identifying number exists for each party,
and, if none exists for a particular party, the applicant should notify the particular party of the obligation to get an identifying number before the application can be submitted to the Service. The address provided in the case of an individual
must be that individual's home address, and the address provided in the case of an entity must be that entity's office address. A mailing address may be provided in addition to, but not in lieu of, a home address or office address.
*****
(5) Special rule for exclusions from income under section 121. A withholding certificate may be sought on the basis
of a section 121 exclusion as a reduction in the amount of tax due under paragraph (c)(2)(v) of this section. The application must include information establishing that the transferor, who is a nonresident alien individual at the time of the
sale (and is therefore subject to sections 897 and 1445) is entitled to claim the benefits of section 121. For example, a
claim for reduced withholding as a result of section 121 must include information that the transferor occupied the U.S.
real property interest as his or her personal residence for the required period of time.
(6) Special rule for like-kind exchanges under Section 1031. A withholding certificate may be requested with respect to a like-kind exchange under section 1031 as a transaction subject to a nonrecognition provision under paragraph
(c)(2)(ii) of this section. The application must include information substantiating the requirements of section 1031. The
IRS may require additional information during the course of the application process to determine that the requirements
of section 1031 are satisfied. In the case of a deferred like-kind exchange, the withholding agent is excused from reporting and paying the withholding tax to the IRS within 20 days after the transfer only if an application for a withholding certificate is submitted prior to or on the date of transfer. See § 1.1445-1(c)(2) for rules concerning delayed reporting and payment where an application for a withholding certificate has been submitted to the IRS prior to or on the date
of transfer.
*****

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T.D. 9082

(h) Effective date for taxpayer identification numbers. The requirement in paragraphs (b)(2), (f)(3)(i), and (g)(1) of
this section that taxpayer identification numbers be provided (in all cases) is applicable for dispositions of U.S. real
property interests occurring after November 3, 2003.
*****
§ 1.1445-4 -- [Amended]
11. In § 1.1445-4, paragraph (c)(2), second sentence, is amended by removing the language "Assistant Commissioner (International)" and adding "Director, Philadelphia Service Center" in its place.
12. Section 1.1445-5 is amended as follows:
1. In paragraph (b)(2)(ii), first sentence, remove the language "Assistant Commissioner (International)" and add
"Director, Philadelphia Service Center" in its place.
2. In paragraphs (b)(2)(ii)(B) and (b)(2)(ii)(C), remove the parenthetical "(if any)" after the words "identifying
number".
3. In paragraph (b)(5)(i), second sentence, remove the language "filed with the Internal Revenue Service Center,
Philadelphia, PA 19255" and add in its place the language "filed at the location as provided in the instructions to Forms
8288 and 8288-A".
4. In paragraph (b)(5)(i), the fifth sentence is revised.
5. In paragraph (b)(7), the fifth sentence is revised.
6. Paragraph (b)(8)(iii) is revised.
7. In paragraph (c)(3)(v), first and fifth sentences, remove the language "Assistant Commissioner (International)"
and add "Director, Philadelphia Service Center" in its place.
8. Paragraph (e)(1)(ii) is revised.
9. Paragraph (e)(2) is redesignated as paragraph (e)(3), and new paragraph (e)(2) is added.
10. In newly designated paragraph (e)(3)(iii)(B), remove the language "§ 1.1445-5(e)(2)(iii)(B)" and add "§
1.1445-5(e)(3)(iii)(B)" in its place; and remove the language "paragraph (e)(2)(iii)(B)" and add "paragraph
(e)(3)(iii)(B)" in its place.
11. Paragraph (h) is added.
The revisions and additions read as follows:
§ 1.1445-5 -- Special rules concerning distributions and other transactions by corporations, partnerships, trusts
and estates.
*****
(b) * * *
(5) * * *
(i) * * * Form 8288-A will be stamped by the Internal Revenue Service to show receipt, and a stamped copy will be
mailed by the Service to the interest holder if the Form 8288 is complete, including the transferor's identifying number,
at the address shown on the form, for the interest-holder's use. * * *
(7) * * * Such an interest-holder must attach to its return a statement which supplies all of the information required
by § 1.1445-1(d)(2). * * *
(8) * * *
(iii) Distributions by certain domestic corporations to foreign shareholders. The provisions of section 1445(e)(3)
and paragraph (e)(1) of this section, requiring withholding upon distributions in redemption of stock under section
302(a) or liquidating distributions under Part II of subchapter C of the Internal Revenue Code by U.S. real property
holding corporations to foreign shareholders, shall apply to distributions made on or after January 1, 1985. The provi-

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T.D. 9082

sions of section 1445(e)(3) and paragraph (e)(1) of this section requiring withholding on distributions under section 301
by U.S. real property holding corporations to foreign shareholders shall apply to distributions made after August 20,
1996. The provisions of paragraph (e) of this section providing for the coordination of withholding between sections
1445 and 1441 (or 1442 or 1443) for distributions under section 301 by U.S. real property holding corporations to foreign shareholders apply to distributions after December 31, 2000 (see § 1.1441-3(c)(4) and (h)).
*****
(e) * * * (1) * * *
(ii) There is a distribution of property in redemption of stock treated as an exchange under section 302(a), in liquidation of the corporation pursuant to the provisions of Part II of subchapter C of the Internal Revenue Code (sections
331 through section 346), or with respect to stock under section 301 that is not made out of earnings and profits of the
corporation.
(2) Coordination rules for Section 301 distributions. If a domestic corporation makes a distribution of property under section 301 to a foreign person whose interest in such corporation constitutes a U.S. real property interest under the
provisions of section 897 and the regulations thereunder, then see § 1.1441-3(c)(4) for rules coordinating withholding
obligations under sections 1445 and 1441 (or 1442 or 1443)).
*****
(h) Effective date for taxpayer identification numbers. The requirement in paragraphs (b)(2)(ii)(B) and (C) of this
section that taxpayer identification numbers be provided (in all cases) is applicable for dispositions of U.S. real property
interests occurring after November 3, 2003.
*****
13. Section 1.1445-6 is amended as follows:
1. The section heading is revised.
2. In paragraph (a), after the seventh sentence, one sentence is added.
3. Paragraph (b)(3) is revised.
4. For each of the paragraphs listed in the column below, remove the language "Assistant Commissioner (International)" and add "Director, Philadelphia Service Center" in its place.
Paragraphs
(f)(1), first sentence
(f)(2)(iii), heading
(f)(2)(iii)
(g), introductory text, second sentence
5. Paragraphs (f)(3)(i) and (g)(1) are amended by removing the parenthetical "(if any)" after the words "identifying
number".
6. Paragraph (h) is added.
The revision and additions read as follows:
§ 1.1445-6 -- Adjustments pursuant to withholding certificate of amount required to be withheld under section
1445(e).
*****
(a) * * * In no event, however, will a withholding certificate be issued without the transferor's identifying number.*
**

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(b) * * *
(3) Relevant taxpayers. An application for withholding certificate pursuant to this section must include all of the
following information: the name, identifying number, and home address (in the case of an individual) or office address
(in the case of an entity) of each relevant taxpayer with respect to which adjusted withholding is sought.
*****
(h) Effective date for taxpayer identification numbers. The requirement in paragraphs (b)(3), (f)(3)(i), and (g)(1) of
this section that taxpayer identification numbers be provided (in all cases) is applicable for dispositions of U.S. real
property interests occurring after November 3, 2003.
*****
§ 1.1445-9T -- [Removed]
14. Section 1.1445-9T is removed.
PART 301--PROCEDURE AND ADMINISTRATION
15. The authority for part 301 continues to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
16. Section 301.6109-1 is amended as follows:
1. In paragraph (b)(2)(v), remove the word "and".
2. In paragraph (b)(2)(vi), remove the period at the end of the paragraph and add "; and" in its place.
3. Paragraph (b)(2)(vii) is added.
4. In paragraph (c), first and third sentences, remove the language "or (vi) of this section" and add "(vi), or (vii) of
this section" in its place.
The addition reads as follows:
§ 301.6109-1 -- Identifying numbers.
*****
(b) * * *
(2) * * *
(vii) A foreign person whose taxpayer identifying number is required to be furnished on any return, statement, or
other document as required by the income tax regulations under section 897 or 1445. This paragraph (b)(2)(vii) applies
as of November 3, 2003.
*****
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
17. The authority citation for part 602 continues to read as follows:
Authority: 26 U.S.C. 7805.
18. In § 602.101, paragraph (b) is amended by revising the entries for 1.1445-2 and 1.1445-3 to read as follows:
§ 601.601 -- OMB Control numbers.
*****
(b) * * *
CFR part or section

Current OMB control No.

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T.D. 9082

where identified and
described
1.1445-2

1.1445-3

*****
1545-0902
1545-1060
1545-1797
1545-0902
1545-1060
1545-1797
*****

Robert E. Wenzel,
Deputy Commissioner for Services and Enforcement.
Approved: July 9, 2003.
Pamela F. Olson,
Assistant Secretary of the Treasury.
[FR Doc. 03-19273 Filed 8-4-03; 8:45 am]
BILLING CODE 4830-01-P