Form 8804

Annual partnership return reporting US withholding on partnership ECI allocated to foreign partners.

Definition

Form 8804 is filed by US partnerships with foreign partners reporting partnership withholding on foreign partners shares of ECI. Companion to Form 8805 (partner-level reporting).

Context

Relevant for multi-member LLCs taxed as partnerships with foreign partners and US ECI.

Example

A US-formed multi-member LLC has a foreign partner and US-source ECI. The LLC files Form 8804 reporting withholding tax on the foreign partner allocable share.

Common pitfalls

Partnership withholding rate is generally the highest individual/corporate rate.
Failure to withhold triggers partnership-level liability.

What Form 8804 Actually Does in Practice

Form 8804 is the annual return a US partnership uses to report and remit the withholding tax it owes on the effectively connected income (ECI) allocated to its foreign partners. The headline definition is straightforward, but the practical mechanics confuse many founders. The partnership is not paying its own income tax here. Instead, it is acting as a withholding agent on behalf of its foreign partners, collecting tax that those partners would otherwise owe and sending it to the IRS in advance. The partnership computes each foreign partner's allocable share of ECI, applies the applicable withholding rate, and reports the total on Form 8804, while issuing each partner a Form 8805 that documents their individual slice. This entire mechanism sits inside Section 1446 of the Internal Revenue Code, which exists precisely because foreign partners might otherwise be difficult for the IRS to collect from once the income has already been distributed across borders. The form is the government's way of capturing the tax while it can still reach an entity inside the United States, before the income disperses to owners who may live and bank entirely abroad. Seen this way, the form is less a tax on the partnership than a structured collection device that uses the partnership as the convenient point of contact for amounts that genuinely belong to the foreign partners.

In day-to-day terms, the form turns the partnership into a tax collection point. If a multi-member Delaware LLC taxed as a partnership earns income that is effectively connected with a US trade or business, and any of that income flows to a foreign partner, the LLC has an affirmative obligation to withhold on that partner's share. That obligation does not wait for the partner to file anything, and it does not depend on whether the partner intends to comply on their own. It attaches at the partnership level, is generally calculated and paid across the year, and is trued up annually on Form 8804. The companion Form 8805 then lets each foreign partner claim credit for the tax already withheld when they file their own US return. For a non-resident founder, understanding that the entity itself becomes responsible is the single most important practical takeaway, because the liability and the penalties for getting it wrong land on the LLC first rather than on the individual foreign owners who might be harder for the IRS to pursue directly. That shift of responsibility onto the entity is the whole reason the regime exists, and it is also the reason a founder cannot safely treat the obligation as something that will sort itself out when the partners file their own returns.

Why a Single-Member Foreign-Owned LLC Usually Does Not File It

Most non-resident founders who form a Delaware LLC start as a single owner, and this is where Form 8804 typically does not apply at all. A single-member LLC is, by default, a disregarded entity for US federal tax purposes. It has no partners, so there is no partnership return, no Form 1065, and therefore no Section 1446 partnership withholding obligation channeled through Form 8804. The disregarded single-member LLC owned by a non-resident instead has a very different compliance footprint that founders should internalize early. It files Form 5472 attached to a pro forma Form 1120, reporting reportable transactions between the LLC and its foreign owner, such as capital contributions, loans, and distributions moving between the owner and the company. That filing carries a $25,000 penalty for failure to file, which is the obligation most single-owner founders actually need to keep on their radar throughout the year rather than the partnership withholding regime that Form 8804 governs. For a solo founder, the entire energy that might otherwise go toward Form 8804 is better spent making sure the Form 5472 filing is accurate and on time, since that is the obligation that actually carries the meaningful penalty in a single-member setup. Confusing the two regimes wastes attention on the wrong risk.

This distinction matters because founders often read about Form 8804 and worry, assuming it applies to them when it does not. The trigger for Form 8804 is partnership classification combined with foreign partners and US effectively connected income. A solo non-resident owner who never adds a second member and never elects corporate or partnership treatment will generally not touch Form 8804 at all. The moment the structure changes, though, the analysis flips. Adding a co-founder, bringing on an equity partner, or otherwise creating a two-or-more-member LLC taxed as a partnership can pull the entity squarely into the Form 8804 regime if there is effectively connected income flowing to the foreign owners. So the form is better understood as a structural milestone that switches on when ownership changes rather than as a default concern for the typical solo founder. A founder planning to grow from one owner to several should anticipate this shift before it happens, not discover it after the fact, since the partnership obligations can attach as soon as the second member joins. Mapping the tax consequences of adding a partner alongside the business reasons for doing so keeps the decision from creating an unexpected compliance burden. This is general information and not tax advice for any specific situation.

Understanding Effectively Connected Income, the Real Trigger

The phrase that determines whether Form 8804 ever comes into play is effectively connected income. Section 1446 withholding only bites on the portion of partnership income that is ECI, meaning income that is effectively connected with the conduct of a US trade or business. If a multi-member LLC with foreign partners earns income that is not effectively connected with a US trade or business, there may be no Section 1446 withholding and no Form 8804 obligation on that income. This is why the classification of income matters far more than the mere presence of foreign partners in the ownership structure. Two LLCs with identical ownership rosters can have completely different Form 8804 outcomes depending solely on whether the income they earn is treated as effectively connected. A founder who assumes that foreign ownership automatically creates the obligation has skipped the analytical step that actually controls the answer, which is the character of the income itself. The same logic runs in the other direction too. A founder who assumes there is no ECI simply because the work feels international can be wrong if the facts show a genuine US trade or business, so the assumption needs testing rather than acceptance in either direction.

Determining what counts as a US trade or business and what income is effectively connected with it is one of the more fact-heavy areas of US international tax. It depends on the nature of the activity, where the work is performed, whether there are US-based employees or dependent agents acting for the business, and the overall degree of US economic presence. A foreign-owned LLC selling digital products to US customers entirely from outside the United States may reach a different conclusion than one operating a US warehouse with US staff and US-based fulfillment. Because the ECI question drives the entire Form 8804 obligation, founders with multi-member structures generally benefit from a documented analysis rather than a casual assumption in either direction. The form does not ask whether you have US customers, and it does not ask where your partners live. It asks whether your foreign partners are being allocated effectively connected income, which is a narrower and more technical question that deserves its own dedicated review whenever a partnership has any meaningful US activity. Because the answer can hinge on details that change from year to year, such as hiring US staff or opening a US location, the ECI review is not a one-time determination but something a growing partnership revisits as its operations shift.

The Withholding Rate and How the Tax Is Calculated

When Form 8804 does apply, the partnership generally withholds at the highest applicable rate for the partner's category, as the source entry notes among its pitfalls. For a foreign individual partner, that means the partnership applies the highest individual rate to the partner's allocable share of ECI. For a foreign corporate partner, the highest corporate rate applies instead. The partnership does not get to use the partner's actual marginal rate or any personalized calculation, because it does not have the partner's full tax picture and is not in a position to compute their real liability. It defaults to the top rate as a conservative collection mechanism that protects the government from under-collection. The partner can then reconcile to their true liability on their own return, claiming the withheld amount as a credit and recovering any overpayment through a refund once their actual tax has been calculated on all the relevant facts. The mechanism deliberately errs on the side of collecting too much rather than too little, leaving the correction to the partner who has the full information needed to compute the real number on their own return.

This top-rate default has a real cash-flow consequence that founders should plan around. The partnership is sending the IRS a relatively large amount of money on behalf of foreign partners throughout the year, money those partners do not see again until they file and reconcile. A worked illustration makes this concrete. Suppose a multi-member LLC allocates $100,000 of ECI to a foreign individual partner for the year. The partnership withholds at the top individual rate on that allocation and remits it across the year, then reports the annual total on Form 8804 with a Form 8805 issued to the partner that documents the figure. The partner files a Form 1040-NR, computes their actual tax on that ECI, and treats the withheld amount as a payment already made against that liability. If their real effective rate is lower than the top rate, they claim the difference back as a refund. The arithmetic shows why partnerships often build the withholding into their cash planning from the start rather than treating it as a surprise that surfaces only when the annual return is prepared.

A Worked Example from Formation Through Filing

Consider two non-resident founders who form a Delaware LLC together. They pay the $110 Certificate of Formation fee, obtain a free EIN by submitting Form SS-4, which for non-residents without an SSN typically takes around 8 to 10 business days by fax or mail, and open a US business account with a provider such as Mercury, Wise, Relay, Lili, or Payoneer. Because there are two members, the LLC is by default a partnership for federal tax purposes and files Form 1065 each year reporting its income and allocations. They run a consulting operation with US staff and a US office, so a meaningful share of their income is effectively connected income tied to that US activity. This is precisely the fact pattern where Form 8804 becomes a live obligation rather than a theoretical one, because the partnership is allocating ECI to foreign partners and must therefore act as a withholding agent on those allocations throughout the year. Had the same two founders run a purely offshore operation with no US staff, no US office, and no US-connected activity, the conclusion on whether withholding applies could look entirely different, which underscores how much the operational facts drive the result.

At year end, the LLC files Form 1065 reporting total partnership income and issues a Schedule K-1 to each member showing their distributive share. Separately, because both members are foreign and there is effectively connected income, the LLC files Form 8804 reporting the aggregate Section 1446 withholding and issues each foreign partner a Form 8805 showing their allocable ECI and the tax withheld on it. Each founder then files a Form 1040-NR, references their Form 8805, and claims the withheld tax as a credit against their personal US liability, recovering any excess as a refund. The chain runs from formation to EIN to banking to operations to the partnership return to the withholding return to the partner-level return. Every link in that chain assumes the entity is genuinely operating as a partnership with effectively connected income, which is why the structural facts established at formation cascade into the Form 8804 obligation later. Change any of those facts, such as the number of members or the character of the income, and the obligations downstream change with them. A founder who can trace this chain from the $110 formation step all the way to each partner's Form 1040-NR holds a useful mental model, because it shows exactly where a single early decision about ownership ripples forward into a recurring annual withholding duty.

How Form 8804 Connects to Form 1065 and the K-1

Form 8804 does not stand alone. It is part of a cluster of partnership filings that all describe the same underlying economics from different angles. Form 1065 is the partnership's main income tax return, reporting total income, deductions, and the allocation of items to partners through Schedule K-1. The K-1 tells each partner their distributive share of income, including the portion that is effectively connected with a US trade or business. Form 8804 then layers on the withholding obligation that arises specifically because some of those partners are foreign and some of that allocated income is ECI. The figures reported on Form 8804 must be consistent with the ECI allocations flowing through the Form 1065 machinery, because all of these documents are describing the same allocations from different vantage points. An inconsistency between them is a signal that something in the underlying analysis has gone wrong and needs to be reconciled before filing. Treating the three forms as one integrated package rather than as independent paperwork is what catches those inconsistencies early, while there is still time to fix the allocation rather than after the returns have been submitted.

For a non-resident founder, the practical workflow is to think of Form 1065 as the income return and Form 8804 as the withholding return, with Form 8805 serving as the partner-facing receipt. A bookkeeper or preparer typically computes the partnership income first, determines how much of it is effectively connected, allocates that income to partners, and only then calculates the Section 1446 withholding owed on the foreign partners' shares. Getting the sequence right matters because an error in the ECI determination ripples into both the income reporting and the withholding at once. The related-term map in the source entry points to Form 1065 and Form 8805 for exactly this reason. These three forms are designed to be read together as a single coherent picture, and a founder reviewing their preparer's work should expect the ECI figures to tie cleanly across all of them rather than appear in isolation on the withholding return. When the numbers reconcile across the set, that is a good sign the underlying allocation was handled correctly. A founder does not need to prepare these forms personally to benefit from understanding the relationship, since even a high-level grasp of how the figures connect makes it possible to ask a preparer the right questions and to spot when something does not line up the way it should.

The Partnership-Level Liability Trap

One of the source pitfalls deserves a deeper look because it surprises founders. If the partnership fails to withhold the Section 1446 tax it should have withheld, the liability does not simply pass through to the foreign partner. It becomes a partnership-level liability. The IRS can pursue the partnership itself for the tax that should have been withheld, along with interest and potential penalties, even if the foreign partner later pays their own tax in full. This is a deliberate design feature rather than an oversight. The partnership is the collection point precisely because the IRS wants an entity located inside the United States that it can reach, rather than chasing foreign individuals across borders after the income has already been distributed. The withholding agent role is the leverage point, and the law puts real teeth behind it so that partnerships take the obligation seriously rather than treating it as discretionary. From the IRS perspective, a domestic entity with US bank accounts and US filing obligations is a far more reliable target than a foreign individual, so the rule places the burden where collection is most certain.

For a multi-member foreign-owned LLC, this means the withholding obligation is not a formality that can be deferred or skipped because the partners intend to file their own returns anyway. The entity carries the exposure regardless of the partners' personal compliance. If a preparer treats Form 8804 as optional or misjudges whether income is ECI and under-withholds as a result, the LLC, and by extension its members through the entity, can end up owing the shortfall plus interest. This is materially different from the single-member disregarded scenario, where the principal exposure is the $25,000 Form 5472 penalty for failure to report transactions with the foreign owner. The partnership withholding regime adds a layer where the cost of getting it wrong can scale with the income involved rather than being a fixed dollar penalty. Founders moving from a solo structure into a partnership should understand that they are also taking on this withholding-agent responsibility, and that the responsibility comes with liability that sits on the entity rather than dispersing harmlessly to the individual owners. The practical guard against this trap is to confirm, before the first ECI is allocated, that someone is actually responsible for computing and remitting the withholding, rather than discovering after a profitable year that nobody attended to it.

Quarterly Installments Versus the Annual Return

A common misunderstanding is that Form 8804 is a once-a-year event you can leave until tax season. In reality, Section 1446 withholding generally operates on an installment basis throughout the year, with the partnership making periodic payments of the estimated withholding as income is earned and allocated to the foreign partners. Form 8804 is the annual return that reconciles those installments against the full-year figures, much as an income tax return reconciles estimated payments against the final liability. A partnership that earns ECI steadily across the year is generally expected to remit withholding along the way rather than in a single lump sum at year end. The annual Form 8804 then reports the total and squares up any difference between what was paid in installments and what was actually owed for the full year, which is the same true-up logic founders may already recognize from estimated income tax. The annual return is the reconciliation document, not the moment the money first becomes due, and that ordering is the part founders most often get backward when they first encounter the regime. Picturing the obligation as a series of payments with a final settling-up at the end, rather than as a single lump at filing, keeps the timing straight.

This installment structure has cash-flow implications that a founder should plan for from the start of the year rather than discovering at filing time. If the LLC is profitable and allocating ECI to foreign partners each period, money is leaving the business throughout the year to fund the withholding payments. A founder who budgets as though the obligation lands only at the annual filing can be caught short on cash when the installments actually come due. The practical advice that flows from this is to treat Section 1446 withholding as a recurring operating outflow in the same mental category as estimated taxes, not as a year-end true-up that can be deferred. The annual Form 8804 is the document that ties everything together and reconciles the year, but the cash discipline happens across the months in between. Because the exact thresholds and timing depend on the specifics of the partnership's income, a multi-member LLC with ECI generally benefits from a preparer who maps the installment calendar at the beginning of the year rather than reconstructing it after the fact. Setting aside the withholding as the income is earned, in a separate buffer if needed, turns what could be a year-end shock into a predictable line item the partnership has already funded.

How Treaties and Partner Documentation Affect the Picture

Foreign partners are not all treated identically under the withholding rules. A partner resident in a country with a US income tax treaty may be eligible for reduced rates or specific positions on certain categories of income, and partners can provide the partnership with documentation about their status that affects the withholding calculation. The partnership generally relies on certifications and forms from each partner to determine the correct treatment to apply to that partner's allocable share. Without proper documentation on file, the partnership often must default to the conservative top-rate withholding because it cannot substantiate a reduced rate. So the quality and completeness of partner-level paperwork directly shapes how much the partnership actually withholds and reports on Form 8804, which means partner documentation is not a back-office detail but a factor with direct cash consequences for everyone involved in the arrangement. A partnership that collects clean documentation up front can apply the correct treatment from the start, while one that is missing paperwork has little choice but to withhold at the higher default and let the partners sort out the excess later. Building documentation collection into the partner onboarding process, alongside the operating agreement and the banking setup, keeps this from becoming a scramble at year end.

For a non-resident founder building a multi-member structure, this means partner onboarding carries a tax dimension that goes beyond signing an operating agreement. Each foreign partner ideally provides the documentation the partnership needs to apply the right treatment, and the partnership retains that paperwork to support its Form 8804 positions if questions arise later. Treaty benefits are not automatic. They generally have to be claimed and supported with appropriate certifications rather than assumed. A partner who is entitled to a reduced rate but never provides documentation may find the partnership withholding at the full top rate anyway, leaving that partner to recover the difference later through their own return. The interaction between treaties, partner certifications, and the partnership's withholding obligation is one of the more nuanced parts of the regime, and the specific treaty article and eligibility depend on the partner's country of residence and the type of income involved. Founders should treat this as general information rather than a determination for any particular partner, since the correct answer turns on facts that vary partner by partner. A partnership with partners spread across several countries may end up applying different treatment to each one, which is another reason the documentation step deserves attention rather than being handled as a uniform afterthought for the whole group.

Edge Cases That Change the Analysis

Several edge cases can flip the Form 8804 analysis in ways founders do not anticipate. One is the tiered partnership, where a partnership is itself a partner in another partnership. The withholding rules contain provisions for how ECI and withholding flow through tiers, and a lower-tier partnership may have obligations that depend on the structure of the upper tier above it. Another is a partnership with a mix of US and foreign partners, where only the foreign partners' allocable shares of ECI are subject to Section 1446 withholding while the US partners' shares are not subject to it at all. The partnership has to segment its allocations correctly so that it withholds on the right slices and reports them accurately on Form 8804 and the corresponding Forms 8805. Getting this segmentation wrong in either direction creates exposure, either through under-withholding on the foreign shares or by erroneously withholding on US partners who owe nothing under this regime. In a mixed partnership, the bookkeeping has to track not just total income but who each dollar of ECI belongs to, which is more demanding than a simple all-foreign or all-domestic ownership picture would require.

A further edge case involves partnerships whose income is mostly not effectively connected with a US trade or business. A multi-member LLC owned by non-residents that earns predominantly foreign-source income with little or no US activity may have minimal or no Section 1446 withholding, even though it has foreign partners, because the trigger is ECI rather than the nationality of the owners. Conversely, a partnership that confidently assumes its income is not ECI and skips withholding can face the partnership-level liability described earlier if that assumption turns out to be wrong on the facts. These edge cases share a common theme that is worth internalizing. The Form 8804 obligation tracks the character and allocation of income far more closely than it tracks the headcount or nationality of the owners. Founders with unusual structures, mixed US and foreign ownership, or tiered arrangements generally need a specific analysis, because the default assumptions that work cleanly for a simple two-foreign-partner LLC may not hold once the structure becomes more complicated. The safer posture for any non-standard arrangement is to confirm the treatment in advance rather than to extend a rule of thumb that was built for a simpler set of facts and hope it still fits.

Common Misunderstandings Founders Bring to This Form

The first widespread misunderstanding is conflating Form 8804 with the single-member compliance that most non-resident founders actually face. A solo foreign owner of a disregarded Delaware LLC deals with Form 5472 and a pro forma Form 1120, not Form 8804. Mixing these up leads founders to either worry about an obligation that does not apply to their structure or, worse, to overlook the $25,000 Form 5472 penalty exposure that genuinely does apply to a solo owner. Knowing which regime your structure sits in is the foundation for everything else. A second misunderstanding is assuming that having US customers automatically creates a Form 8804 obligation. It does not. The obligation depends on effectively connected income flowing to foreign partners, which is a narrower and more technical condition than simply selling products or services to people located in the United States. Plenty of foreign-owned businesses sell to US buyers without generating effectively connected income, so a US customer base on its own is not the dividing line that founders sometimes imagine it to be. The actual line runs through the character of the income and the presence of a US trade or business, which is why two companies with similar customer lists can land in different places.

A third misunderstanding is treating the withholding as the partner's problem rather than the partnership's responsibility. As covered above, the entity is the withholding agent and carries the liability if it fails to withhold correctly. A fourth is believing the top-rate withholding is the final tax owed. It is not. It is a prepayment that the partner reconciles on their own return, often recovering part of it as a refund once their actual liability is computed. A fifth is forgetting the installment nature of the obligation and budgeting only for a year-end payment, which can leave the business short on cash mid-year. Clearing up these misconceptions early helps a founder structure their entity and their cash planning with eyes open rather than reacting to surprises. None of this replaces a conversation with a qualified preparer, and the right answer for a specific LLC always depends on its particular facts, but understanding the contours of the regime prevents the most common and most expensive of the surprises that catch unprepared partnerships. A founder who walks into a conversation with a preparer already knowing which regime applies, what triggers the withholding, and how the reconciliation works gets far more out of that conversation than one starting from scratch. The point of learning the contours is not to replace professional help but to make that help more efficient and to reduce the odds of a misunderstanding slipping through unnoticed.

Where Form 8804 Sits Relative to BOI and Other Recent Changes

Founders researching their US filing obligations often encounter Form 8804 alongside news about beneficial ownership information reporting, and it helps to keep these two things in separate mental buckets. Beneficial ownership reporting under the Corporate Transparency Act is a distinct regime administered by FinCEN, not an income tax filing administered by the IRS. As of the FinCEN Interim Final Rule issued March 26 2025, US-formed entities such as a Delaware LLC are exempt from the BOI reporting requirement, which removed a compliance step that had loomed over many founders forming domestic entities. Form 8804, by contrast, is an income tax withholding return administered by the IRS and is entirely unaffected by the BOI changes. The two obligations live in different agencies, serve different purposes, and respond to different facts, so relief in one area says nothing about the status of the other. A founder who hears that US-formed LLCs no longer have to file beneficial ownership reports should not read that as any change to their income tax filing duties, which run on a completely separate track with their own rules and their own deadlines. The two regimes were created by different laws for different purposes, and a change to one of them simply does not reach across to alter the other, no matter how often they appear together in the same articles aimed at founders.

This separation matters because founders sometimes assume that a relief development in one area implies relief in another related-sounding area. The BOI exemption for US-formed LLCs does not reduce or eliminate any Section 1446 withholding obligation that a multi-member LLC with effectively connected income may have. Likewise, the routine formation and tax-administration costs of a Delaware LLC, the $300 flat annual franchise tax due June 1, the $110 Certificate of Formation fee, and the free EIN obtained through Form SS-4, are all independent of whether Form 8804 applies to the entity. A founder building a compliance checklist should list these obligations separately rather than assuming that satisfying one of them addresses the others. Form 8804 is triggered by the partnership-plus-ECI condition and nothing else, and it persists or disappears based on that condition regardless of how the BOI landscape or the franchise tax rules happen to evolve over time. Treating each obligation on its own terms keeps the checklist accurate. A founder who keeps formation fees, the franchise tax, the EIN process, the single-member Form 5472 duty, and any partnership withholding in clearly labeled separate buckets is far less likely to assume that handling one of them has quietly taken care of another that is still outstanding.

Related Terms and How to Navigate Them

Form 8804 sits at the center of a small constellation of related filings that a non-resident founder with a partnership structure should learn together rather than in isolation. Form 1065 is the partnership income tax return that reports overall income and allocates it to partners through Schedule K-1. Form 8805 is the partner-level companion to Form 8804, the receipt each foreign partner receives showing their allocable share of ECI and the tax withheld, which they use to claim a credit on their own return. Form 1040-NR is the individual return a foreign partner files to report US-source and effectively connected income and to reconcile the withholding already collected on their behalf. A foreign corporate partner would instead use Form 1120-F for that reconciliation. Together these forms describe the full lifecycle of partnership ECI as it moves from the entity out to the individual or corporate partners who finally bear the tax. Each form answers a different question about that same flow, which is why no single one of them tells the complete story on its own. Reading them as a connected set rather than as scattered obligations is what lets a founder see the whole picture, because each form is just one view of the same allocation viewed from a different point in the chain.

Knowing how to navigate this set saves a founder from treating any single form as the whole story. The income starts on Form 1065, the withholding on the foreign partners' ECI is reported on Form 8804 and remitted across the year, each partner receives a Form 8805 documenting their share, and the partner closes the loop on Form 1040-NR or Form 1120-F. For the typical non-resident reading this who still operates as a single-member disregarded LLC, the more immediately relevant cluster is Form 5472 paired with a pro forma Form 1120, since that is the regime a solo foreign owner actually files under each year. The value of mapping these relationships in advance is that it lets a founder recognize, the moment their structure changes from one member to several, exactly which new obligations switch on and which old ones fall away. This remains general educational information rather than a recommendation, and the specific forms required for any given LLC depend on its classification, ownership, and income, which is a determination a founder should confirm with a qualified preparer who can review the actual facts.

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