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To submit form 8802, application for us residency cert; do…

To submit form 8802...

To submit form 8802, application for us residency cert; do all members of an llc have to be U.S. residents? We have 20 members, and 1 is a resident of the U.K.

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Answered in 5 hours by:
2/1/2017
Charles Markham
Charles Markham, EA, MST, USTCP
Category: Tax
Satisfied Customers: 774
Experience: IRS Enrolled Agent, US Tax Court Practitioner
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Hello, I'm sorry you had to wait for an answer. When you are submitting an 8802. You are requesting a certificate of residency for the LLC itself not its owners. So as long as the LLC has a U S address and has filed its U S tax returns the IRS will issue the certificate of residency (Form 6166). It doesn't matter where your members. None of the questions on form 8802 should be answered with respect to the members, they should be answered with respect to the LLC itself.

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I'm sorry. I see you gave a negative rating. My answer is correct.

Is there some confusion or question?

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Customer reply replied 1 year ago
The instructions to form 8802 specifically states the following: "Partnerships are not considered U.S.
residents within the meaning of the residence article of U.S. income tax treaties. A domestic partnership is not
considered a U.S. resident, even if all partners are U.S. residents. Treaty benefits are only available to a partner who is a U.S. resident whose distributive share of partnership income includes the item of income paid to the
partnership." Therefore what you said is incorrect. My question is regarding if one member of an LLC (taxed as a partnership) is not a US resident (which means he can't sign the perjury statement required to be submitted and signed by every member), is there anyway to still claim the entity as a US resident. Your answer to address any of this. It was a blanket response that I could have found on the internet after 2 seconds of research and it's incorrect unless you have some other reference that backs up your findings.

Give me a minute to respond.

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Let me try this again. First off, you are mixing and conflating a lot of information.

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Your question was about Form 8802 and then receiving Form 6166. This is fairly mechanical issue.

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I really do know what I am talking about.

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I will draw your attention to the subsequent portion of the instructions...Please give me a second while I type this out. I'll let you know when I am done.

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The point of instructions that you cite is the treaties "look through" partnerships for treaty benefits.

Let's skip to the answer and then back track a bit:

Note. The Form 6166 issued to partnerships will include an attached list of partners that are U.S. residents. The IRS does not certify the percentage of ownership interest of the listed partners. It is the responsibility of the partnership to provide such information to the withholding agent.
Include the following with Form 8802:
1.
The name and TIN of each partner for which certification is requested and any additional information that would be required if certification were being requested for each of those partners.

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So, what happens is that the 8188 is issued in the name of the LLC and attached to it is a list of all of your resident partners.

So, getting back to your original question:

"NO" not all of the members have to be residents.

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The IRS will basically not attach to the Form 6166 the name of the member who is not a US resident.

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Each of your partners can request their own 6166 if they wanted.

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The various extra pages attached to the 6166 are not really helpful because they don't have %'s on them in fact it's not like the person receiving them can somehow determine that you have a non-resident member.

BOT***** *****NE: You will get a 6166 even with the non-resident partner.

(still not done)

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Now, I want to circle back to the original point you made citing the instructions to me under line 4b. It basically says that Partnerships don't matter for tax treaty purposes. Okay, what that might mean is "then why do you need a 6166 for the LLC?" The IRS will issue you one. (My original (and still correct answer). Trying to integrate what I am saying and what you are reading in the instructions, is that technically it is not the LLC that should be giving 6166 to whomever is asking for it but instead it should be your partners. But that's the heavy duty theoretical answer, if the company/person your dealing agrees not to withhold taxes then you are all set.

Has this helped or no? (Now I am done!) :-)

Charles Markham
Charles Markham, EA, MST, USTCP
Category: Tax
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Experience: IRS Enrolled Agent, US Tax Court Practitioner
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