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Section 1445(e)(2) Form: What You Should Know

S. Code § 1445 — Withholding of tax on dispositions of In addition, under section 1364 the foreign person must withhold tax from the  payments of capital gains and qualified dividends that are attributable to the disposition of real property if (i) the real property transferred is the primary place of business of a foreign corporation which is not a qualified electing trust, (ii) the transfer is to a trust described in IRC section 408(d), and (iii) the trust has elected the exception provided in paragraph (c) of IRC section 414 (relating to the election process for trusts which are not qualified electing trusts). 26 CFR § 1.1445-2(e) — Determination of Interest for Purposes of IRC Section 1231(a) and IRC Section 1253(b) — As noted above, paragraph (b)(2) does not apply to a trust if it is treated as owned by a foreign person under subpart E of part I of subchapter J. In this situation, (i) the trust is a qualified electing trust, (ii) the trust is controlled by a corporation which is not a United States corporation, (iii) the corporation is (or is treated as being) an active foreign corporation, (iv) the corporation is described in IRC section 897(e)(1), and (v) in the case of a disposition by the corporation of all or substantially all of its property in a series of sales, where the property is sold to a stockbroker, the stockbroker is not a United States person. 26 U.S. Code § 1384. Qualified electing trusts. (a) The term “qualified electing trust,” as used in section 104(b)(2) of the Code, includes any trust which at all times was a qualified electing trust until it became a qualified electing trust because it has (or has had) a change in control or substantial annual turnover in its stock or other property, or (b) at any time during the period ending at or before December 31, 2009, a foreign corporation which is not a controlled foreign corporation and has not been a qualified electing trust.

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