IRS Instruction 8804, 8805 and 8813 – In the complex world of U.S. tax compliance, partnerships with foreign partners must navigate specific withholding requirements under Section 1446 of the Internal Revenue Code. The IRS Instructions for Forms 8804, 8805, and 8813 provide essential guidance on reporting and paying withholding tax on effectively connected taxable income (ECTI) allocable to foreign partners. These forms ensure that partnerships withhold and remit taxes on income that is effectively connected with a U.S. trade or business, helping to prevent underreporting and ensuring foreign partners meet their U.S. tax obligations. This article breaks down the key aspects of these instructions, including purposes, filing requirements, deadlines, and penalties, based on the latest IRS updates as of January 2026.
Whether you’re a partnership manager, tax professional, or foreign investor, understanding these forms is crucial for compliance. Let’s dive into the details.
Purpose of Forms 8804, 8805, and 8813
These forms are interconnected tools designed to handle Section 1446 withholding tax:
- Form 8804 (Annual Return for Partnership Withholding Tax): This serves as the annual summary report of the partnership’s total liability under Section 1446. It also acts as a transmittal form for attaching Forms 8805. Partnerships use it to report ECTI allocable to foreign partners and any taxes withheld.
- Form 8805 (Foreign Partner’s Information Statement of Section 1446 Withholding Tax): This form details the amount of ECTI allocable to each individual foreign partner, along with the tax credit for withheld amounts. A separate Form 8805 must be filed for every foreign partner, even if no tax was actually withheld or distributed. It’s also used by foreign trusts or estates to report to beneficiaries via Schedule T.
- Form 8813 (Partnership Withholding Tax Payment Voucher): This voucher accompanies quarterly payments of Section 1446 withholding tax to the U.S. Treasury. It’s required for each installment payment during the partnership’s tax year.
These forms apply to both domestic and foreign partnerships with U.S.-sourced ECTI allocable to foreign partners, excluding publicly traded partnerships treated as corporations under Section 7704(a).
Who Must File These Forms?
Not every partnership needs to file, but the rules are broad to ensure compliance:
- Form 8804: Required for any partnership with effectively connected gross income allocable to a foreign partner, regardless of whether ECTI exists or tax is owed.
- Form 8805: Must be filed for each foreign partner on whose behalf Section 1446 tax was paid, or if reductions (e.g., for state taxes or partner certifications) were applied, even without payments. Partnerships must provide a copy to the partner.
- Form 8813: Filed with each quarterly withholding payment.
Partnerships can designate a withholding agent to handle filing, but the forms are still required even if no tax liability exists. Foreign partner status is determined using valid withholding certificates like Form W-8BEN or W-8BEN-E. A U.S. Taxpayer Identification Number (TIN) is mandatory for each partner to credit withholdings properly.
For tiered partnerships, upper-tier entities can credit taxes paid by lower-tier ones and must attach supporting forms.
Filing Requirements and Deadlines
Filing these forms involves specific timelines and methods to avoid penalties. Here’s a breakdown:
| Form | Due Date | Filing Method | Notes |
|---|---|---|---|
| 8804 & 8805 | 15th day of the 3rd month after tax year-end (e.g., March 15 for calendar year). For records kept outside U.S./Puerto Rico: 15th day of 6th month (check box on Form 8804). | Mail to IRS Center, P.O. Box 409101, Ogden, UT 84409. Separate from Form 1065. | Extension via Form 7004 (filing only, not payment). Due dates shift to next business day if on weekend/holiday. |
| 8813 | 15th day of 4th, 6th, 9th, and 12th months of tax year (e.g., April 15, June 15, etc.). | Mail with payment (check/money order in U.S. currency) to same address. Electronic via EFTPS recommended. | Accompanies each installment; notify partners within 10 days of payment. |
Payments should be made in U.S. currency, and direct deposit is encouraged for refunds (new lines 14b-d on Form 8804 for bank details). Use EFTPS for electronic transmissions if applicable.
How to Complete the Forms: Step-by-Step Overview?
Completing these forms requires accurate calculations of ECTI and applicable withholding rates (generally 37% for non-corporate partners, 21% for corporate). Here’s a high-level guide:
- Form 8804:
- Enter partnership details and total ECTI by income type (lines 4a, 4e, etc.).
- Apply reductions for state/local taxes (90% max) and partner certifications (Form 8804-C).
- Calculate total liability, subtract credits (e.g., from lower-tier partnerships), and report payments.
- Attach Schedule A if underpayment penalties apply.
- Form 8805:
- Provide partner TIN, type, and country code.
- Report gross ECTI (line 9), reductions, and final tax credit (line 10).
- Check for treaty exemptions and attach supporting docs.
- Form 8813:
- Enter EIN and payment amount based on quarterly ECTI estimates.
- Attach reductions if claiming zero tax.
For detailed line-by-line instructions, refer to the official IRS document. Always double-check for income types like ordinary income or capital gains.
Penalties for Non-Compliance
Failing to file or pay on time can result in significant penalties, adjusted annually for inflation (check IRS.gov/InflationAdjustment for current amounts):
- Late Filing of Form 8804: 5% of unpaid tax per month, up to 25%.
- Late Filing/Furnishing Form 8805: Up to $290 per form (2026 adjusted amount), with higher rates for intentional disregard.
- Late Payment: 0.5% of unpaid tax per month, up to 25%.
- Failure to Withhold: 100% of the amount under section 6672.
- Other: Interest on unpaid amounts, plus penalties for negligence or fraud.
Penalties may be waived for reasonable cause, and reductions apply for small businesses or timely corrections.
Recent Changes in the 2026 Instructions
The January 2026 revision includes:
- Removal of fixed penalty thresholds due to annual inflation adjustments.
- Expanded direct deposit options on Form 8804.
- Emphasis on EFTPS for payments and coordination with Sections 1445 and 1446(f) withholdings.
- Continuous-use format for 2025 and later tax years.
These updates aim to streamline electronic filing and improve credit allocation.
Download the Instructions
For the full details, download the official IRS Instructions for Forms 8804, 8805, and 8813 PDF here: https://www.irs.gov/pub/irs-pdf/i8804.pdf. Always verify the revision date to ensure you’re using the most current version.
Staying compliant with Section 1446 withholding is vital for partnerships to avoid costly penalties and ensure smooth operations. If you’re unsure about your specific situation, consult a tax advisor familiar with international tax rules. This guide is for informational purposes and based on IRS publications as of February 2026.