FAR 52.229-11 Tax on Certain Foreign Procurements—Notice and Representation. Basic (Jun 2020) (Current)

As prescribed in 29.402-3,

  (a) Insert the provision at 52.229-11, Tax on Certain Foreign Procurements—Notice and Representation, in solicitations, including solicitations using FAR part  12 procedures for the acquisition of commercial items, unless one of the following exceptions applies:

           (1) Acquisitions using simplified acquisition procedures that do not exceed the simplified acquisition threshold (as defined in 2.101).

           (2) Emergency acquisitions using the emergency acquisition flexibilities defined in part  18.

           (3) Acquisitions using the unusual and compelling urgency authority per 6.303-2.

           (4) Contracts with a single individual for personal services that will not exceed the simplified acquisition threshold on an annual calendar year basis for all years of the contract.

           (5) Acquisitions if the requiring activity identifies that the requirement is for certain foreign humanitarian assistance contracts which are payments made by the U.S. Government agencies pursuant to a contract with a foreign contracting party to obtain goods or services described in or authorized under 7 U.S.C. 1691, et seq., 22 U.S.C. 2151, et seq., 22 U.S.C 2601 et seq., 22 U.S.C. 5801 et seq., 22 U.S.C. 5401 et seq., 10 U.S.C. 402, 10 U.S.C. 404, 10 U.S.C. 407, 10 U.S.C. 2557, and 10 U.S.C. 2561.
 

Tax on Certain Foreign Procurements—Notice and Representation (Jun 2020)

      (a) Definitions. As used in this provision—

      Foreign person means any person other than a United States person.

      Specified Federal procurement payment means any payment made pursuant to a contract with a foreign contracting party that is for goods, manufactured or produced, or services provided in a foreign country that is not a party to an international procurement agreement with the United States. For purposes of the prior sentence, a foreign country does not include an outlying area.

      United States person as defined in 26 U.S.C. 7701(a)(30) means

           (1) A citizen or resident of the United States;

           (2) A domestic partnership;

           (3) A domestic corporation;

           (4) Any estate (other than a foreign estate, within the meaning of 26 U.S.C. 701(a)(31)); and

           (5) Any trust if–

                (i) A court within the United States is able to exercise primary supervision over the administration of the trust; and

                (ii) One or more United States persons have the authority to control all substantial decisions of the trust.

      (b) Unless exempted, there is a 2 percent tax of the amount of a specified Federal procurement payment on any foreign person receiving such payment. See 26 U.S.C. 5000C and its implementing regulations at 26 CFR 1.5000C-1 through 1.5000C-7.

      (c) Exemptions from withholding under this provision are described at 26 CFR 1.5000C-1(d)(5) through (7). The Offeror would claim an exemption from the withholding by using the Department of the Treasury Internal Revenue Service Form W-14, Certificate of Foreign Contracting Party Receiving Federal Procurement Payments, available via the internet at www.irs.gov/w14. Any exemption claimed and self-certified on the IRS Form W-14 is subject to audit by the IRS. Any disputes regarding the imposition and collection of the 26 U.S.C. 5000C tax are adjudicated by the IRS as the 26 U.S.C. 5000C tax is a tax matter, not a contract issue. The IRS Form W-14 is provided to the acquiring agency rather than to the IRS.

      (d) For purposes of withholding under 26 U.S.C. 5000C, the Offeror represents that

           (1) It [_] is [_] is not a foreign person; and

           (2) If the Offeror indicates “is” in paragraph (d)(1) of this provision, then the Offeror represents that—I am claiming on the IRS Form W-14 [__] a full exemption, or [__] partial or no exemption [Offeror shall select one] from the excise tax.

      (e) If the Offeror represents it is a foreign person in paragraph (d)(1) of this provision, then—

           (1) The clause at FAR 52.229-12, Tax on Certain Foreign Procurements, will be included in any resulting contract; and

           (2) The Offeror shall submit with its offer the IRS Form W-14. If the IRS Form W-14 is not submitted with the offer, exemptions will not be applied to any resulting contract and the Government will withhold a full 2 percent of each payment.

      (f) If the Offeror selects “is” in paragraph (d)(1) and “partial or no exemption” in paragraph (d)(2) of this provision, the Offeror will be subject to withholding in accordance with the clause at FAR 52.229-12, Tax on Certain Foreign Procurements, in any resulting contract.

      (g) A taxpayer may, for a fee, seek advice from the Internal Revenue Service (IRS) as to the proper tax treatment of a transaction. This is called a private letter ruling. Also, the IRS may publish a revenue ruling, which is an official interpretation by the IRS of the Internal Revenue Code, related statutes, tax treaties, and regulations. A revenue ruling is the conclusion of the IRS on how the law is applied to a specific set of facts. For questions relating to the interpretation of the IRS regulations go to https://www.irs.gov/help/tax-law-questions.

(End of provision)
 

NONE

Prime’s Interest;
Contracts ✖ 

52.204-3 Taxpayer Identification.

52.209-11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law.

52.209-12 Certification Regarding Tax Matters.

52.209-5 Certification Regarding Responsibility Matters.

52.212-3 Offeror Representations and Certifications—Commercial Items.

52.212-4 Contract Terms and Conditions—Commercial Items.

52.228-11 Pledges of Assets.

52.229-1 State and Local Taxes.

52.229-10 State of New Mexico Gross Receipts and Compensating Tax.

52.229-2 North Carolina State and Local Sales and Use Tax.

52.229-3 Federal, State, and Local Taxes.

52.229-4 Federal, State, and Local Taxes (State and Local Adjustments).

52.229-6 Taxes—Foreign Fixed-Price Contracts.

52.229-7 Taxes—Fixed-Price Contracts with Foreign Governments.

52.229-8 Taxes—Foreign Cost-Reimbursement Contracts.

52.229-9 Taxes—Cost-Reimbursement Contracts with Foreign Governments.

52.241-5 Contractor’s Facilities.

52.241-9 Connection Charge.

52.229-12 Tax on Certain Foreign Procurements.

252.219-7012 Competition for Religious-Related Services.

252.225-7032 Waiver of United Kingdom Levies—Evaluation of Offers.

252.228-7006 Compliance with Spanish Laws and Insurance.

252.229-7000 Invoices Exclusive of Taxes or Duties.

252.229-7001 Tax Relief.

252.229-7002 Customs Exemptions (Germany).

252.229-7003 Tax Exemptions (Italy).

252.229-7004 Status of Contractor as a Direct Contractor (Spain).

252.229-7005 Tax Exemptions (Spain).

252.229-7006 Value Added Tax Exclusion (United Kingdom)

252.229-7008 Relief from Import Duty (United Kingdom).

252.229-7009 Relief from Customs Duty and Value Added Tax on Fuel (Passenger Vehicles) (United Kingdom).

252.229-7010 Relief from Customs Duty on Fuel (United Kingdom).

252.229-7011 Reporting of Foreign Taxes – U.S. Assistance Programs.

252.229-7012 Tax Exemptions (Italy)—Representation.

252.229-7013 Tax Exemptions (Spain)—Representation.

252.229-7014 Taxes—Foreign Contracts in Afghanistan.

252.229-7015 Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement).

252.232-7010 Levies on Contract Payments.

252.236-7010 Overseas Military Construction--Preference for United States Firms.

252.236-7011 Overseas Architect-Engineer Services--Restriction to United States Firms.

252.236-7012 Military Construction on Kwajalein Atoll--Evaluation Preference.

5152.229-4013 TAX EXEMPTION, SPECIAL EXCISE TAX, REPUBLIC OF KOREA

5152.229-4014 TAX EXEMPTION, VALUE ADDED TAX, REPUBLIC OF KOREA

5152.229-4015 TAX EXEMPTION, POL PRODUCTS, REPUBLIC OF KOREA

5152.225-5914 Commodity Shipping Instructions

552.238-101 Foreign Taxes and Duties.

552.229-70 Federal, State, and Local Taxes.

552.229-71 Federal Excise Tax—DC Government.

652.229-70 Excise Tax Exemption Statement for Contractors Within the United States.

652.229-71 Personal Property Disposition at Posts Abroad.

752.229-70 Federal, state and local taxes.

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