FAR 52.229-12 Tax on Certain Foreign Procurements—Notice and Representation Basic (Feb 2021) (Current)

As prescribed in 29.402-3,

  (b) Insert the clause at 52.229-12, Tax on Certain Foreign Procurements, in—

           (1) Solicitations that contain the provision at 52.229-11, Tax on Certain Foreign Procurements—Notice and Representation; and

           (2) Resultant contracts in which the contractor has indicated that it was a foreign person in solicitation provision 52.229-11, Tax on Certain Foreign Procurements—Notice and Representation.



Tax on Certain Foreign Procurements—Notice and Representation (Feb 2021)

      (a) Definitions. As used in this clause—

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

      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. 7701(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) This clause applies only to foreign persons. It implements 26 U.S.C. 5000C and its implementing regulations at 26 CFR 1.5000C-1 through 1.5000C-7.

      (c) (1) If the Contractor is a foreign person and has only a partial or no exemption to the withholding, the Contractor shall include the Department of the Treasury Internal Revenue Service Form W-14, Certificate of Foreign Contracting Party Receiving Federal Procurement Payments, with each voucher or invoice submitted under this contract throughout the period in which this status is applicable. The excise tax withholding is applied at the payment level, not at the contract level. The Contractor should revise each IRS Form W-14 submission to reflect the exemption (if any) that applies to that particular invoice, such as a different exemption applying. In the absence of a completed IRS Form W-14 accompanying a payment request, the default withholding percentage is 2 percent for the section 5000C withholding for that payment request. Information about IRS Form W-14 and its separate instructions is available via the internet at www.irs.gov/w14.

           (2) If the Contractor is a foreign person and has indicated in its offer in the provision 52.229-11, Tax on Certain Foreign Procurements—Notice and Representation, that it is fully exempt from the withholding, and certified the full exemption on the IRS Form W-14, and if that full exemption no longer applies due to a change in circumstances during the performance of the contract that causes the Contractor to become subject to the withholding for the 2 percent excise tax then the Contractor shall–

                (i) Notify the Contracting Officer within 30 days of a change in circumstances that causes the Contractor to be subject to the excise tax withholding under 26 U.S.C. 5000C; and

                (ii) Comply with paragraph (c)(1) of this clause.

      (d) The Government will withhold a full 2 percent of each payment unless the Contractor claims an exemption. If the Contractor enters a ratio in Line 12 of the IRS Form W-14, the result of Line 11 divided by Line 10, the Government will withhold from each payment an amount equal to 2 percent multiplied by the contract ratio. If the Contractor marks box 9 of the IRS Form W-14 (rather than completes Lines 10 through 12), the Contractor must identify and enter the specific exempt and nonexempt amounts in Line 15 of the IRS Form W-14; the Government will then withhold 2 percent only from the nonexempt amount. See the IRS Form W-14 and its instructions.

      (e) Exemptions from the withholding under this clause are described at 26 CFR 1.5000C-1(d)(5) through (7). 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.

      (f) Taxes imposed under 26 U.S.C. 5000C may not be—

           (1) Included in the contract price; nor

           (2) Reimbursed.

      (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 clause)



Prime’s Interest;
⚠ =52.229-11 Basic

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 Products and Commercial Services.

52.228-11 Individual Surety—Pledge 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.

52.229-11 Tax on Certain Foreign Procurements—Notice and Representation.

52.212-4 Contract Terms and Conditions—Commercial Products and Commercial Services.

52.229-13 Taxes—Foreign Contracts in Afghanistan.

52.229-14 Taxes—Foreign Contracts in Afghanistan (North Atlantic Treaty Organization Status of Forces Agreement).

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.

252.229-7001 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.




5152.225-5914 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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