Form 8802 for LLCs: Single-Member vs. Multi-Member

An LLC may need Form 8802 to request Form 6166, the IRS letter used to certify U.S. tax residency for certain income tax treaty benefits and VAT purposes. But there is no single set of Form 8802 rules that applies to every LLC.

The key question is how the LLC is classified for federal tax purposes. A multi-member LLC may be treated as a partnership, a single-member LLC may be treated as a disregarded entity, and an LLC may elect to be treated as a corporation. That classification affects whose U.S. residency is being certified and what information must accompany the application.

Why an LLC's Tax Classification Matters for Form 8802

An LLC is a business entity created under state law, but "LLC" is not itself a federal tax classification. The IRS generally treats a domestic LLC with two or more members as a partnership unless it elects corporate treatment. A domestic LLC with one member is generally disregarded as separate from its owner unless it elects corporate treatment.

For Form 8802, that distinction matters because partnerships, disregarded entities, C corporations, and S corporations do not all qualify for U.S. residency certification in the same way.

LLC federal tax treatment General Form 8802 treatment Single-member LLC with no corporate election Disregarded entity rules Multi-member LLC with no corporate election Partnership rules LLC taxed as a C corporation Corporation rules LLC taxed as an S corporation S corporation rules

Form 8802 for a Multi-Member LLC

For a multi-member LLC and Form 8802, the first question is whether the LLC is classified as a partnership for federal tax purposes. The IRS Form 8802 instructions state that an LLC classified as a partnership follows the partnership procedures, and the LLC's members are treated as partners for these purposes.

When certification is requested for members of an LLC taxed as a partnership, the application generally must identify each member for whom certification is requested and provide the information that would have been required if that member were requesting certification directly.

Which LLC Members Need to Be Included?

The Form 8802 instructions require the name and taxpayer identification number of each partner for whom certification is requested, along with any additional certification information applicable to that partner.

This does not mean that every member of every multi-member LLC is automatically being certified. The application identifies the members for whom U.S. residency certification is requested.

Does Form 6166 Certify the LLC or Its Members?

For a partnership, the IRS states that Form 6166 will include an attached list of partners who are U.S. residents. The IRS does not certify each listed partner's percentage ownership in the partnership.

If ownership percentages are relevant to a foreign withholding agent or another foreign requester, providing that information is the responsibility of the partnership rather than part of the IRS residency certification.

Are Member Authorizations Required?

The partnership procedures also require authorization from each partner whose tax information must be disclosed for the certification request. The IRS gives Form 8821 as an example of an acceptable authorization.

Additional authorization can also be required when the person requesting certification is not a partner in the partnership. These authorization rules are separate from simply naming an appointee on Form 8802.

Form 8802 for a Single-Member LLC

A single-member LLC is generally disregarded as an entity separate from its owner for federal income tax purposes unless it has elected to be treated as a corporation.

That means the Form 8802 analysis generally turns to the tax status and U.S. residency of the LLC's owner rather than treating the disregarded LLC as though it were a separate corporation.

A single-member LLC that has elected corporate treatment should instead follow the Form 8802 rules applicable to its elected federal tax classification.

Form 8802 for a Disregarded Entity

The disregarded entity rules are especially important for treaty claims. The IRS Form 8802 instructions state that a disregarded entity, or DRE, is not itself considered a U.S. resident within the meaning of the residence article of a U.S. income tax treaty.

Instead, treaty benefits are available through the disregarded entity's owner when that owner qualifies as a U.S. resident.

Whose U.S. Tax Residency Is Being Certified?

For a disregarded LLC, the relevant U.S. resident is generally the single owner. Form 8802 therefore requires information about the owner and the owner's federal tax classification.

Depending on the owner's classification, the underlying certification requirements may be those applicable to an individual, corporation, partnership, S corporation, or another type of taxpayer.

What Owner Information May Be Required?

The Form 8802 instructions require a disregarded entity to provide its single owner's identifying and tax information as applicable. This can include the owner's name, address, taxpayer identification number, and federal tax classification, together with the certification information required for that type of owner.

The disregarded entity should not simply be treated as a corporation because its legal name includes "LLC." The federal tax classification of the entity and its owner determines how the application should be completed.

Is a Penalties-of-Perjury Statement Required?

A disregarded entity may also need a current-year statement signed under penalties of perjury. The Form 8802 instructions specifically require a statement on line 10 when the single owner has not filed Form 8832 with the IRS.

The IRS model statement identifies the single owner, confirms that the entity is disregarded for U.S. federal income tax purposes, identifies the owner's federal tax classification, and confirms that the owner reports the disregarded entity's tax items on the owner's federal return. For a current-year certification, the statement also addresses the owner's continuing U.S. residency.

What if an LLC Has Both U.S. and Foreign Members?

A multi-member LLC does not automatically receive U.S. residency certification for every member merely because the LLC was formed in the United States.

For an LLC treated as a partnership, the IRS partnership procedures focus on the partners or members for whom certification is requested. Form 6166 can identify qualifying U.S. resident partners, while foreign partners are not converted into U.S. residents by the entity's domestic formation.

The Form 8802 instructions also state that a U.S. fiscally transparent entity generally cannot obtain certification when it has no U.S. partners, beneficiaries, or owners.

What if the LLC Elected to Be Taxed as a Corporation?

An LLC that has elected corporate tax treatment does not follow the default disregarded-entity or partnership rules simply because it remains an LLC under state law.

An LLC treated as a C corporation generally follows the Form 8802 rules for corporations. An LLC that elected S corporation status follows the special rules applicable to S corporations.

S corporations are treated differently from ordinary C corporations for U.S. residency certification because certification generally depends on qualifying U.S. shareholders. See our guide to Form 8802 for S corporations for the shareholder information and authorization requirements.

What Information Might an LLC Need for Form 8802?

The information required depends on the LLC's federal tax classification and the people or entities whose residency is being certified. Depending on the circumstances, an LLC application may require:

• The LLC's legal name and employer identification number.
• The LLC's federal tax classification.
• The tax period on which the certification will be based.
• Names and taxpayer identification numbers for relevant members or partners.
• Owner information for a disregarded entity.
• Form 8821 or another appropriate authorization for members whose tax information must be disclosed.
• A current-year penalties-of-perjury statement when required.
• Additional information supporting the owner's or member's eligibility for U.S. residency certification.

Newly formed LLCs can present an additional issue when the entity or its owner has not yet filed the return normally used by the IRS to verify tax residency. See Form 8802 for a new entity with no tax return for those filing-history rules.

Common Form 8802 Mistakes for LLCs

One of the most common mistakes is treating "LLC" as though it tells the IRS how the applicant is taxed. The LLC's federal tax classification must be identified before the correct Form 8802 rules can be applied.

Other potential problems include treating a disregarded LLC as the treaty resident instead of looking to its owner, omitting required member information or authorizations for a partnership, and using partnership procedures for an LLC that has elected corporate treatment.

These distinctions can affect both the information entered on Form 8802 and the supporting statements or authorizations submitted with the application.

Can an LLC Get Form 6166?

An LLC may be able to obtain Form 6166, but the IRS does not apply one residency-certification rule to every LLC. The correct procedure depends on the LLC's federal tax classification and, for fiscally transparent entities, the U.S. tax residency of the relevant owners or members.

Determining whether the LLC is taxed as a partnership, disregarded entity, C corporation, or S corporation should therefore come before completing the entity-specific portions of Form 8802.

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