Form 8802 for S Corporations: Requirements for Form 6166

S corporations follow special rules when requesting Form 6166, Certification of U.S. Residency, from the IRS. For income tax treaty purposes, an S corporation is not itself treated as a U.S. resident under the residence article of a U.S. income tax treaty.

Instead, treaty benefits generally depend on whether the shareholders for whom certification is requested are U.S. residents under the applicable treaty. Form 8802 for an S corporation therefore requires shareholder-level information and authorization in addition to information about the corporation itself.

A broader explanation of how applicant classification affects residency certification is available in Form 8802 tax residency requirements.

Can an S Corporation Request Form 6166?

An S corporation can use Form 8802 to request Form 6166 in connection with shareholders who qualify as U.S. residents for purposes of the applicable treaty.

The IRS instructions distinguish S corporations from regular domestic corporations. A regular domestic corporation may generally qualify for residency certification based on its own U.S. residence. For an S corporation, treaty benefits are instead available to shareholders who qualify as U.S. residents under the treaty involved.

The IRS must therefore be able to identify and verify the shareholders for whom certification is requested.

What Information Is Required for an S Corporation?

Form 8802 for an S corporation requires information about both the corporation and the shareholders for whom certification is requested.

The IRS instructions require the name and taxpayer identification number of each shareholder for whom Form 6166 is requested. The application must also include any additional information that would have been required if certification were being requested for that shareholder individually.

Depending on the shareholder and certification period, additional residency information or supporting documentation may therefore be required.

Applicants should review Form 8802 required documents before submitting an S corporation request.

Do S Corporation Shareholders Need to Authorize the Request?

The IRS instructions require authorization from each shareholder for whom certification is requested.

Form 8821, Tax Information Authorization, is one example of an authorization that may be used. The authorization must explicitly permit the third-party requester to receive the shareholder's federal tax information and may not cover matters other than federal tax matters.

These shareholder authorizations allow the IRS to review the tax information needed to determine whether each shareholder qualifies for the requested residency certification.

Is Corporate Authorization Also Required?

Corporate authorization may also be required depending on who is making the request.

If the requester was not a shareholder of the S corporation during the tax year for which certification is requested, the IRS instructions require authorization from an officer with legal authority to bind the corporation.

That authorization must explicitly allow the requester to receive the corporation's federal tax information.

Related third-party authorization rules are covered in Form 8802 appointee rules.

Who Signs Form 8802 for an S Corporation?

Form 8802 for an S corporation may be signed by a corporate officer who is duly authorized to bind the corporation under applicable state law.

The IRS identifies examples including the president, vice president, treasurer, chief accounting officer, or another properly authorized corporate officer.

The authority to sign Form 8802 is separate from the shareholder authorization requirements. An authorized corporate officer may sign the application, while the application must still include the shareholder-level information and authorizations required for the shareholders being certified.

Signer rules for other applicant types are covered in who can sign Form 8802.

What Is Required for a Current-Year S Corporation Request?

Additional penalties-of-perjury statements generally apply when Form 6166 is requested for the current certification year before the relevant federal income tax returns for that year are due.

For an S corporation, the IRS requires a statement from each individual shareholder for whom certification is requested stating that the shareholder is a U.S. resident and will continue to be throughout the current tax year.

The IRS also requires a statement from an officer with authority to legally bind the S corporation stating that the corporation has filed its required return and that its entity classification has not changed since that return was filed.

Applicants should use the penalties-of-perjury language required by the current IRS Form 8802 instructions rather than using a statement prepared for another applicant type.

What Tax Year Should an S Corporation Request?

Form 8802 distinguishes between the calendar year for which Form 6166 certification is requested and the tax period the IRS uses to verify the application.

The certification year should match the period for which the foreign requester needs proof of U.S. residency. The supporting tax period depends on the applicable Form 8802 rules and the filing history of the S corporation and shareholders involved.

For more information, review what tax year to use on Form 8802.

How Much Is the Form 8802 User Fee for an S Corporation?

An S corporation is a nonindividual applicant and generally pays a $185 IRS user fee for each Form 8802 application submitted.

For user-fee purposes, the IRS treats an S corporation as a fiscally transparent entity. One $185 user fee applies to the Form 8802 application with respect to Forms 6166 issued under the S corporation's employer identification number, even though the IRS verifies the tax status of the shareholders who have consented to the certification request.

The user fee is based on the Form 8802 application rather than a separate fee for every shareholder or every Form 6166 requested through that application.

Current fee rules are covered in Form 8802 user fee.

Can One S Corporation Request Certification for Multiple Shareholders?

A Form 8802 request can cover more than one shareholder, provided the required information and authorization are included for each shareholder for whom certification is requested.

Because the IRS verifies the residency status of the shareholders covered by the request, applicants should identify all shareholders for whom certification is needed before submitting Form 8802.

The applicant should also determine the countries and number of Forms 6166 needed so that eligible certification requests can be included together when appropriate.

Is an S Corporation Treated the Same as a C Corporation?

A domestic corporation taxed as a regular corporation may generally qualify for U.S. residency certification based on the corporation's own status, subject to the applicable treaty and IRS requirements.

An S corporation is treated differently for treaty residence purposes. The IRS looks to the qualifying U.S. residency of the shareholders for whom treaty certification is requested.

Applicants should therefore use the S corporation classification on Form 8802 when that is the applicant's federal tax classification rather than treating the entity as a regular corporation simply because it was incorporated under state law.

What If an S Corporation Has Many Shareholders?

The same basic rules apply when an S corporation has more than one shareholder. The application must identify each shareholder for whom certification is requested and include the required authorization and any additional information needed for that shareholder.

Applicants should determine which shareholders actually require certification for the foreign income, payment, treaty claim, or other transaction involved rather than assuming that every shareholder must necessarily be included in every request.

Common Form 8802 Mistakes for S Corporations

• Selecting the regular corporation category instead of S corporation
• Assuming the S corporation itself is the treaty resident
• Failing to identify each shareholder for whom certification is requested
• Omitting a shareholder taxpayer identification number
• Failing to include required shareholder authorization
• Omitting corporate authorization when the requester is not a shareholder
• Using a person without authority to sign for the corporation
• Using the wrong current-year penalties-of-perjury statement
• Requesting the wrong certification year
• Failing to include information needed for the IRS to verify a shareholder

Summary

S corporations follow special Form 8802 rules because they are not themselves treated as U.S. residents under the residence articles of U.S. income tax treaties. Treaty certification instead depends on shareholders who qualify as U.S. residents under the applicable treaty.

An S corporation request therefore requires shareholder information and authorization, an authorized corporate signer, and any additional information the IRS needs to verify the shareholders for whom Form 6166 is requested.

Taxpayers ready to begin can prepare Form 8802 online using a guided application workflow with optional secure e-fax submission.