On May 13, 2019, the U.S. Internal Revenue Service (“IRS”) and Treasury Department published proposed regulations providing guidance on the rules imposing withholding and reporting requirements under the Code on dispositions of certain partnership interests by non-U.S. persons (the “Proposed Regulations”). The Proposed Regulations expand and in important ways modify earlier Notice 2018-29 on dispositions of non-publicly traded partnership interests. Unless otherwise specified, this post focuses on the aspects of the Proposed Regulations affecting transfers of interests in non-publicly traded partnerships.
Enacted as part of the “Tax Cuts and Jobs Act”, Section 1446(f) generally requires a transferee, in connection with a disposition of a partnership interest by a non-U.S. person, to withhold and remit 10 percent of the “amount realized” by the transferor, if any portion of any gain realized by the transferor would be treated as effectively connected with the conduct of a trade or business in the United States under the substantive sourcing rule of Section 864(c)(8).
Prior to issuing the Proposed Regulations, the IRS issued Notice 2018-08 and Notice 2018-29 to provide interim guidance with respect to these withholding and information reporting requirements. On December 27, 2018, the IRS issued proposed regulations under Section 864(c)(8), providing rules determining the amount of gain or loss treated as effectively connected gain or loss with a U.S. trade or business.
The Proposed Regulations adopt many of the rules set forth in Notice 2018-29, with certain modifications, and include some taxpayer friendly provisions, such as:
- providing flexibility in determining the date on which qualifications for exceptions to withholdings may be applicable;
- extending the period of time to 22 months for which a Schedule K-1 is valid to determine a transferring partner’s share of partnership liabilities (up from 10 months under Notice 2018-29);
- allowing non-U.S. partnerships to reduce or avoid withholding if there are U.S. partners in the partnership;
- providing guidance as to the application of nonrecognition provisions of the Code as an exception from withholding;
- allowing transferors to claim treaty benefits as a partial or total exception to withholding; and
- setting forth new procedures for purposes of determining the amount to withhold, including through certification of maximum tax liability and certification of shares of partnership liabilities.
Some provisions may complicate sales of partnership interests by adding additional compliance burdens or by narrowing certain of the exceptions to withholding provided under Notice 2018-29, such as:
- requiring transferees to certify withholding to a partnership and supply supporting documentation;
- resuming secondary withholding obligations for partnerships, which may be liable for a transferee’s failure to withhold;
- lowering the minimal effectively connected taxable income (“ECTI”) threshold from 25 percent to 10 percent in the exceptions to withholding both based on the effectively connected gain upon a deemed sale and the transferor’s historic allocable share of ECTI;
- providing that transferors with zero ECTI generally may not provide a certification under the “less than 10 percent historic ECTI” exception; and
- providing that only a withholding partnership can claim a refund for any over-withholding by the partnership.
I. Applicability Dates
The Proposed Regulations generally apply to transfers that occur on or after the date that is 60 days after the regulations are finalized. For transfers that occur before the date that is 60 days after the final regulations are issued, taxpayers may apply the rules described in Notice 2018-08 and Notice 2018-29. Alternatively, taxpayers and other affected persons may choose to apply Treasury Regulations Sections 1.1446(f)-1, 1.1446(f)-2, and 1.1446(f)-5 in their entirety to all transfers as if they were final regulations instead of applying the rules described in Notice 2018-29. The IRS intends to obsolete Notice 2018-08 and Notice 2018-29 60 days after regulations are finalized.
Takeaway: Before the Proposed Regulations are finalized, there will be two sets of rules parties can apply, raising interesting questions of application where one party to a transfer may prefer to rely on the Notices while another party to the transfer may prefer to apply the Proposed Regulations.
II. General Rules Applicable to Non-Publicly Traded Partnerships
A. Reporting and Paying Over Withheld Amounts
Consistent with Notice 2018-29, the Proposed Regulations generally adopt the procedural regime that exists under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”) and Section 1445 for reporting and paying over withheld amounts. Generally, this will mean reporting and paying over any withheld amount within 20 days of the relevant transfer. Taxpayers are generally instructed to continue to use the forms required under Section 1445 (i.e., Forms 8288 and 8288-A).
As under Notice 2018-29, the Proposed Regulations provide that where withholding is required under both Section 1446(f) and Section 1445, the transferee generally need only withhold pursuant to Section 1445.
1. Transferee Certification to Partnership
The Proposed Regulations introduce a requirement that a transferee (other than a partnership that is a transferee because it makes a distribution) must furnish, no later than 10 days after the transfer, a certification to the partnership and must include either a copy of the Form 8288-A (Statement of Withholding on Dispositions by Foreign Persons of U.S. Real Property Interests) that it files with the IRS or a description of the amount realized on the transfer and any amount withheld by the transferee. The certification must also include any underlying certifications that the transferee has relied upon that claim an exception or adjustment to withholding. To rely on this certification to avoid its secondary withholding obligations, a partnership must conduct its own review of the information provided by the transferee, including any underlying certifications. Thus, the preamble to the Proposed Regulations suggests transferees relying on a certification claiming an exception or adjustment to withholding “may want to ensure that the partnership has determined the certification to be correct and reliable before the due date for payment of any withheld amounts to the IRS.”
Takeaway: This new reporting obligation may complicate private sales of partnership interests by introducing another obligation into the sale process and another potential opportunity for the general partner of a partnership to object to a sale.
2. Determination Date
When applying many of the rules and exceptions provided in Notice 2018-29, certain determinations were required to be made as of the date of transfer. Because it may be difficult to make these determinations on the precise date of transfer, the Proposed Regulations generally allow the choice of one of several dates for purposes of making determinations regarding withholding obligations under Section 1446(f)(1) (each, a “Determination Date”). The Determination Date is chosen on a transfer-by-transfer basis and must be used for a transfer for all purposes of Section 1446(f). It may be one of (1) the date of the transfer, (2) any date that is no more than 60 days before the date of the transfer, or, in certain circumstances, (3) the date that is the later of (a) the first day of the partnership’s taxable year in which the transfer occurs, or (b) the date, before the date of the transfer, of the most recent revaluation event under Section 704.
Takeaway: Because certain of the exceptions from withholding are made on the “Determination Date,” the adoption of a Determination Date prior to the date of transfer may make it easier to obtain the information necessary to qualify for these exceptions (for example, by relying on year-end or quarterly-end information a partnership may have).
B. Exceptions to Withholding Requirements
The Proposed Regulations provide six exceptions to withholding by a transferee under Section 1446(f)(1). The exceptions generally allow the transferee to rely on certain certifications that it receives from the transferor or partnership and generally follow the exceptions provided in Notice 2018-29, with certain modifications.
1. Certification of Non-Foreign Status
Withholding will not be required where a transferor certifies its non-foreign status in an affidavit and provides its U.S. TIN (if applicable). A correct and complete Form W-9 will satisfy these requirements. The Proposed Regulations also provide that a valid Form W-9 constitutes a satisfactory certification of non-foreign status for purposes of FIRPTA.
2. No Realized Gain by Transferor
Withholding is also generally not required where a transferor certifies that no gain will be realized in the disposition. However, if a transferor would realize ordinary income under Section 751(a) in connection with a transfer, the exception is not available even if there is an overall loss on the transfer. Notice 2018-29 did not include this carve-out with respect to Section 751(a).
3. Effectively Connected Gain upon a Partnership’s Deemed Sale
No withholding is required if a partnership provides the transferee a certification stating that if the partnership sold all of its assets at fair market value, the amount of net effectively connected gain resulting from the deemed sale would be less than 10 percent of the total net gain. Notice 2018-29 contains a similar exception, but at a threshold of 25 percent.
4. Less than 10 Percent Allocable Share of ECTI
The Proposed Regulations adopt the Notice 2018-29 exception for transferee certification of limited ECTI, if a transferor provides a certification that its allocable share of ECTI for the preceding 3 years is less than 10 percent of the transferor’s total distributive share (reduced from less than 25 percent under Notice 2018-29). The certification must state that the transferor was at all times a partner in the partnership for the “immediately prior taxable year” and the two taxable years that precede it. For each such taxable year, the transferor must also certify that the transferor’s allocable share of ECTI was less than 10 percent of the transferor’s total distributive share of the partnership’s net income for that year. The Proposed Regulations add an additional certification requirement that, in each of the three taxable years, the transferor’s allocable share of ECTI was less than $1 million (including ECTI allocated to certain persons related to the transferor).
When the partnership is the transferee by reason of a distribution, it may rely on its own books and records, provided that the transferor makes a representation that the relevant tax reporting and filing requirements have been satisfied.
The Proposed Regulations clarify that a transferor may not make this certification if it has not received a Form 8805 (Foreign Partner’s Information Statement of Section 1446 Withholding Tax) because it had no ECTI for which the partnership paid Section 1446 tax in its “immediately prior taxable year” and the preceding two taxable years. In addition, a transferor that did not have a net distributive share of income in any such year cannot avail itself of this exception.
Takeaway: The tightening of the exception may result in more transfers requiring withholding than would be the case under Notice 2018-29. In addition, the Proposed Regulations make clear that the exemption is not available where a transferor did not have any ECTI in the relevant taxable years. In such cases, transferors may want to consider using a certification of maximum tax liability (discussed in Section II.D).
5. Non-Recognition by Transferor
Consistent with the rule provided in Notice 2018-29, a transferee may rely on a certification from the transferor that states the transferor is not required to recognize any gain or loss with respect to the transfer pursuant to an applicable provision of the Code. The certification must briefly describe the transfer and provide the relevant law and facts relating to the certification.
A transferor may obtain a partial reduction to the withholding amount based on partial nonrecognition. Under the Proposed Regulations, in addition to the nonrecognition certification, the transferor must satisfy other requirements for certification of maximum tax liability (as discussed in Section II.D).
6. Claim of Treaty Benefits
Finally, the Proposed Regulations provide an exception to withholding when a transferor certifies that it is not subject to tax on any gain from the transfer pursuant to an income tax treaty in effect between the United States and another country. This exception applies only when a transferor (as opposed to owners of an interest in the transferor) qualifies for the benefits of an income tax treaty. Thus, partnerships may not claim treaty benefits on behalf of their partners. Since this exception is the sole method by which a transferor may claim an exception to withholding by reason of a claim of treaty benefits, many partnership structures in which partners rely on an income tax treaty to avoid or minimize withholding on ECI may be affected.
The certification to the transferee must include a valid IRS Form W-8BEN or Form W-8BEN-E (as applicable) that contains the sufficient information to support the claim for treaty benefits. The transferee must provide the IRS a copy of the certification within 30 days after the transfer (as opposed to the Determination Date).
A transferor may obtain a partial reduction to the withholding amount based on income treaty benefits. Under the Proposed Regulations, in addition to the certification discussed here, the transferor must satisfy the other requirements for the certification of maximum tax liability (as discussed in Section II.D).
C. Determining the Amount to Withhold
For purposes of withholding 10 percent of the “amount realized”, a determination of the “amount realized” generally includes proceeds (whether cash or other property) as well as any liabilities deemed assumed by the transferee for tax purposes.
1. Partner’s Share of Liabilities
For purposes of determining the amount of liabilities included in a transferor’s amount realized, the Proposed Regulations generally adopt procedures set forth in Notice 2018-29, providing that, in certain circumstances, certificates may be issued by certain transferors or affected partnerships. These certificates will generally allow a transferee to rely on the amount of partnership liabilities reported as apportioned to the transferor on the most-recent Schedule K-1 of the affected partnership, and will need to state that the certifier has no actual knowledge of events that would alter such amount by 25 percent or more.
A taxpayer-friendly change from Notice 2018-29 is the extended length of time for which a transferee can rely on a Schedule K-1. The Proposed Regulations provide that a transferee may generally rely on a certification if the last day of the partnership taxable year for which the Schedule K-1 was provided was no more than 22 months before the date of the transfer.
The Proposed Regulations also allow a transferee to rely on a certification from the partnership that provides the amount of the transferor’s share of partnership liabilities. However, unlike the rule in Notice 2018-29, a partnership is required to make this determination as of the Determination Date rather than relying on its most recently prepared Schedule K-1. The Proposed Regulations also provide a new procedure that allows a partnership that is a transferee by virtue of making a distribution to rely on its books and records to determine the transferor’s share of partnership liabilities as of the Determination Date.
If a transferee does not use one of the determination procedures provided in the Proposed Regulations, the reduction in the transferor’s share of partnership liabilities must be determined as of the date of the transfer for purposes of computing the amount realized. If the transferor’s share of liabilities cannot be determined, the Proposed Regulations generally require that the amount to withhold is equal to the amount realized determined without regard to any decrease in the transferor’s share of partnership liabilities.
Takeaway: The 10 month limitation under Notice 2018-29 meant that partners in some partnerships could be without valid Schedules K-1 from which to certify liabilities for extended periods of time. The extension of time for which a transferor may rely on the most recently received Schedule K-1 better reflects that partners may not receive Schedules K-1 until well after the close of the taxable year.
2. Non-U.S. Partnerships – Look-Through Rule
In a welcome development, the Proposed Regulations provide a procedure for non-U.S. partnerships to limit the amount realized for withholding purposes to the portion of the amount realized that is attributable to non-U.S. partners. The portion of the amount realized attributable to a direct or indirect partner is determined based on the percentage of gain allocable to that partner.
Takeaway: The “look-through” rule is a welcome relaxation of the general withholding rule and should reduce potential over-withholding where non-U.S. partnerships have U.S. partners.
D. Certification of Maximum Tax Liability
To more closely align the amount to withhold with the transferor’s actual tax liability under Section 864(c)(8), the Proposed Regulations provide a procedure that is intended to estimate the amount of tax the transferor is required to pay under Section 864(c)(8).
For this procedure to apply, a transferee must receive a certification from the transferor containing certain information relating to the transferor and the transfer. One of the requirements for this certification is for the transferor to identify the amount of its gain that would be treated as effectively connected gain under Section 864(c)(8) on the Determination Date. Further, to provide this certification, the transferor must represent that it has obtained a statement from the partnership that includes, among other things, information relating to the transferor’s distributive share of effectively connected gain in connection with a deemed sale described in Section 864(c)(8)(B) as of the Determination Date.
Takeaway: A certification of maximum tax liability could potentially allow a non-U.S. transferor to limit over-withholding on a transfer. However, partnerships may have concerns about the risks associated with providing a certification containing information regarding the transferor’s deemed effectively connected gain.
III. Secondary Withholding Obligations Re-Imposed on Non-Publicly Traded Partnerships
The Proposed Regulations, if finalized, would terminate the temporary suspension of the secondary withholding obligations under Notice 2018-29 and would subject partnerships (except in a distribution) to such secondary withholding obligations. Under the Proposed Regulations, a partnership generally must withhold from any distributions made to a transferee if (i) a transferee (other than the partnership) fails to fulfill its withholding obligations with respect to a transfer or (ii) the partnership receives notification from the IRS that a transferee has provided incorrect information regarding the realized or withheld amount or has failed to pay the withheld amount to the IRS.
A partnership may rely on certifications from a transferee to determine its secondary withholding obligations unless it knows or has reason to know that such certification is incorrect or unreliable. Thus, as discussed above, a partnership must conduct its own diligence to determine whether a certification is reliable or correct. Under the Proposed Regulations, a partnership does not have a secondary withholding obligation if it timely received and properly relied on a certification from the transferee that an exception to withholding applies to the underlying transfer or that the transferee has fulfilled its withholding obligation.
Under the Proposed Regulations, the amount subject to secondary withholding equals 10 percent of the amount realized on the transfer, reduced by any amount withheld by the transferee, plus any interest (computed as if such amount was an underpayment of tax). The amount realized, for secondary withholding purposes, would not take into account any adjustments discussed in Sections II.C and D. Under the Proposed Regulations, a partnership must determine the amount realized and withheld by the transferee based on the certification from the transferee, regardless of whether the partnership has received the certificate within the 10-day period. If, however, a partnership does not receive a certification from the transferee regarding the transferee’s withholding on the transfer, the partnership is obligated to withhold the entire amount of each distribution made to the transferee until the certification is provided.
Takeaway. It is thus imperative that a transferee timely provide an accurate and complete certification to a partnership of the amount (if any) withheld (that includes any certification the transferee relied on to apply an exception to withholding) and the basis for its calculations in connection with its acquisition of a partnership interest in order to avoid (potentially uncapped) secondary withholding by the partnership.
A partnership is required to start withholding on distributions to transferees on the later of 30 days after the transfer or 15 days after it knows of the transfer. If the partnership receives a notification from the IRS, it must start withholding 15 days after receiving such notification.
The Proposed Regulations clarify that secondary withholding does not relieve a non-U.S. person from U.S. income tax filing or payment requirements with respect to a transfer. However, the IRS will not collect amounts that have already been properly withheld and paid. Furthermore, a transferee is treated as satisfying its withholding tax liability for the amount withheld by the partnership. However, only the withholding partnership and not the transferee is entitled to a refund for amounts withheld pursuant to a secondary withholding.
Takeaway: If the Proposed Regulations are finalized, partnerships would be required to review underlying documentation and consult their own books and records with respect to each transfer of their interests to ensure their compliance with their secondary withholding obligations. A general partner of a partnership, in light of the diligence requirement, may want to preserve certain inspection and approval rights over documentation related to transfers of partnership interests. In addition, parties should consider requiring (1) prompt, complete and correct documentation with respect to each transfer from the transferee and (2) a partnership that withholds on distributions to promptly request a refund for remittance to the transferee.
IV. Reporting Requirements on Notifying Partners and Specified Partnership
Since the amount subject to withholding under Section 1446(f) is determined based on a deemed sale at the partnership level, the Proposed Regulations place reporting requirements on non-U.S. transferors and underlying partnerships under Section 864(c)(8) to facilitate the information exchange. Specifically, a “notifying transferor” that transfers an interest in a “specified partnership” would need to provide the partnership a written notice within 30 days of a transfer. Such notice should include (i) the date of the transfer and (ii) the names, addresses and TINs of the notifying transferor and transferee(s). The notifying transferor can provide the notice together with the notice required for a Section 751(a) exchange.
If any of notifying transferor’s gain on a sale of a partnership interest could be effectively connected gain or loss, then, by the due date of the Schedule K-1 for the tax year of the partnership in which the transfer occurs, specified partnerships must furnish a notifying transferor with (i) its aggregate deemed sale of effectively connected items (including items from lower-tier partnerships) and (ii) other necessary information. A partnership that is a transferee by virtue of making a distribution is treated as having actual knowledge of the transfer and thus is required to provide such information to the distributee partner.
Takeaway: In a tiered partnership structure, because the upper-tier partnership may not have sufficient information to furnish such notice to the transferring partner, it may need to request such information from a lower-tier partnership. As a result, in a tiered partnership structure, a partnership might need to provide the above information even if its interests are not being directly transferred. Thus, partnerships, especially partnerships in tiered partnership structures, may want to specify the time, place and manner that this notice is given in its partnership agreement.
V. Requests for Comments
Written or electronic comments must be received by July 12, 2019. The IRS has specifically requested comments on (i) the risk of non-compliance related to the three-year ECTI exception and (ii) the issues that arise when partnerships and transferees make arrangements by contract so that the transferees may be reimbursed for amounts refunded to the partnership.
For further information about the impact of the Proposed Regulations on transfers or sales of partnership interests, please contact your regular Proskauer contact or a member of the Proskauer tax department.
 All references to the Code are to the United States Internal Revenue Code of 1986, as amended.
 2018-16 I.R.B. 495.
 The Proposed Regulations also offer new guidance on withholding in connection with transfers of interests in publicly traded partnerships, which Notice 2018-08 (2018-7 I.R.B. 352) had previously suspended.
 For further discussion of Sections 864(c)(8) and 1446(f), please see our prior coverage. In very general terms, Section 864(c)(8) is intended to codify the IRS’ longstanding position on the character of dispositions of certain partnership interests by non-U.S. persons. See Rev. Rul. 91-32, 1991-1 C.B. 107.
 The IRS would also stamp Form 8288-A to show receipt and mail a stamped copy to the transferor.
 If the transferor has obtained a withholding certificate pursuant to Treasury Regulations Section 1.1445-11T(d)(1), the transferee must withhold the greater of the amount required to be withheld pursuant to Section 1445 and the amount required to be withheld pursuant to Section 1446(f)).
 When the partnership is a transferee because it makes a distribution, it may instead rely on its books and records unless it knows, or has reason to know, that the information is incorrect or unreliable.
 The transferor’s immediately prior taxable year is defined as the transferor’s most recent taxable year— (1) with or within which a taxable year of the partnership ended; and (2) for which a Schedule K-1 was due (including extensions) or furnished (if earlier) before the transfer.
 In addition, the transferor must certify that for each of the three preceding taxable years, it has reported all of such effectively connected income or gain on a federal income tax return by the due date (including extensions) if required to be filed, and timely paid all amounts due.
 However, if in any of the years, a transferor has an allocable share of loss that is effectively connected with the conduct of a U.S. trade or business, or has deductions properly allocated and apportioned to income that is effectively connected with the conduct of a U.S. trade or business from the partnership, an exception applies and, for purposes of determining its distributive share and providing a certification, the transferor is treated as having an allocable share of ECTI of zero in that year.
 For example, many credit lending funds are structured in a manner that relies on investors being eligible for the benefits of a tax-treaty between the United States and their country of domicile to avoid having ECI as a result of the fund’s lending activities. Because the Proposed Regulations only permit a transferor to assert this exclusion, upper-tier investors in these funds may not be able to directly qualify for this exception from withholding.
 To provide a certification for a modified amount realized, a transferor must provide to a transferee a Form W-8IMY that includes a certification of non-foreign status for each partner that is treated as a U.S. person. The certification must also include a withholding statement that provides the percentage of gain allocable to each direct or indirect partner and that indicates whether that person is a U.S. person or is treated as a foreign person.
 To report and pay the amount withheld, partnerships must use Form 8288 (U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests) and new Form 8288-C (Statement of Withholding Under Section 1446(f)(4) for Withholding on Dispositions by Foreign Persons of Partnership Interests).
 A notifying transferor is defined as any foreign person, any domestic partnership that has direct foreign partners and any domestic partner that has actual knowledge of any indirect foreign partners.
 A specified partnership is a partnership that is engaged in a U.S. trade or business directly or indirectly.