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  • Writer's pictureDaniel Gray CPA


If 8288-B isn’t filed, 8288/8288-A must be filed within 20 days of closing.

If closing 8288-B

is filed, 8288/8288-A must be filed before the 20th day after the day the IRS mails a copy of the withholding certificate or notice of denial. If one receives a withholding certificate from the IRS (aka IRS 8288-b decision letter 3310) and withholding is still required, a copy of the withholding certificate must be attached to Form 8288. Therefore no one can execute an 8288 before receiving the information of said letter to complete Form 8288 lines 5-6 and if withholding is still required to attach said letter in support of withholding amount listed on 8288.

Other times of note are: (A) If the seller aka transferor opts and applies for a withholding certificate, he/she must notify the buyer aka transferee in writing that the certificate has been applied for on the day of or prior to the transfer (B) 8288 filer must credit the amount withheld among the foreign transferors, such as Canadian spouses selling jointly-owned Florida property who will each file 1040NR returns reporting 50%, as they mutually agree. The transferors must request that the withholding be credited as agreed upon by the 10th day after the date of transfer. If no agreement is reached, credit the withholding by evenly dividing it among the foreign transferors and (C) The IRS will normally (outside Covid-19) act on an 8288-b withholding certificate application within 90 days of receipt of all information necessary to make a proper determination.

Either buyer or seller is eligible to apply for ITIN with either 8288-8288-A OR 8288-b. IRS instruction thus need to address both scenarios. An ambiguous instructional comment would supply information that applies to only one of these two scenarios without explicitly specifying that it doesn’t apply to both (even where one can use logic to deduce so).

If we take the IRS instructional wording at face value, one would conclude that when seller opts to be the 8288-b filer that 8288/8828-A must be included in the ITIN filing. However, that creates an impossible conundrum since as explained above, 8288/8288-A cannot be completed before receipt of IRS 8288-b decision letter 3310. Therefore IRS must instead mean that 8288-b/W-7 does NOT require including 8288/8288-A and only requires (A) One of these three proof of sale documents (i) copy of sales contract (ii) HUD-1 Settlement Statement (a standardized mortgage lending document), or (iii) Closing Disclosure (buyer’s form that provides final details about the mortgage loan) and (B) Form 8288-b.

The way then to read IRS form instructions/Publication 1915 is: IF ITIN is being applied for with an 8288/8288-A filing, 8288/8288-A must be attached to W-7, IF ITIN is being applied for with an 8288-b filing, 8288-b must be attached but 8288/8288-A need NOT be attached to W-7 (emphasis on IRS word ‘or’ that precedes ‘Form 8288-B’). In either case, one of the three above document options proving the sale must also be attached.

The below IRS ‘Note’ must be read this way: Note, when buyer, the filer of 8288/8288 forms, applies for ITIN to file said forms, it is obvious that buyer must attach said forms to W-7, but even where the seller, who is NOT the filer of 8288/8288 forms, applies for ITIN for buyer to file said forms …. For the seller of the property, copies of the sales contract, Settlement Statement (HUD-1), or Closing Disclosure, and copies of Forms 8288 and 8288-A submitted by the buyer need to be attached to Form W-7 and this would not apply to an ITIN applicant filing 8288-b including where the chosen applicant is the seller.

Note that 8288/8288-A may be filed with ITIN(s) missing.

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