FIRPTA WithholdingWithholding of Tax on Dispositions of United States Real Property InterestsThe disposition of a U.S. real property interest by a foreign person (the transferor) is subject to the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) income tax withholding. FIRPTA authorized the United States to tax foreign persons on dispositions of U.S. real property interests.
A disposition means “disposition” for any purpose of the Internal Revenue Code. This includes but is not limited to a sale or exchange, liquidation, redemption, gift, transfers, etc. Persons purchasing U.S. real property interests (transferees) from foreign persons, certain purchasers’ agents, and settlement officers are required to withhold 15% (10% for dispositions before February 17, 2016) of the amount realized on the disposition (special rules for foreign corporations).
In most cases, the transferee/buyer is the withholding agent. If you are the transferee/buyer you must find out if the transferor is a foreign person. If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax. For cases in which a U.S. business entity such as a corporation or partnership disposes of a U.S. real property interest, the business entity itself is the withholding agent.
U.S. Real Property InterestA U.S. real property interest is an interest, other than as a creditor, in real property (including an interest in a mine, well, or other natural deposit) located in the United States or the U.S. Virgin Islands, as well as certain personal property that is associated with the use of real property (such as farming machinery). It also means any interest, other than as a creditor, in any domestic corporation unless it is established that the corporation was at no time a U.S. real property holding corporation during the shorter of the period during which the interest was held, or the 5-year period ending on the date of disposition (applicable periods).
An interest in a corporation is not a U.S. real property interest if:
- Such corporation did not hold any U.S. real property interests on the date of disposition,
- All the U. S. real property interests held by such corporation at any time during the shorter of the applicable periods were disposed of in transactions in which the full amount of any gain was recognized, and
- For dispositions after December 17, 2015, such corporation and any predecessor of such corporation was not a RIC or a REIT during the shorter of the applicable periods during which the interest was held.
Rates of WithholdingThe transferee must deduct and withhold a tax on the total amount realized by the foreign person on the disposition. The rate of withholding generally is 15% (10% for dispositions before February 17, 2016).
The amount realized is the sum of:
- The cash paid, or to be paid (principal only);
- The fair market value of other property transferred, or to be transferred; and
- The amount of any liability assumed by the transferee or to which the property is subject immediately before and after the transfer.
If the property transferred was owned jointly by U.S. and foreign persons, the amount realized is allocated between the transferors based on the capital contribution of each transferor.
A foreign corporation that distributes a U.S. real property interest must withhold a tax equal to 35% of the gain it recognizes on the distribution to its shareholders.
A domestic corporation must withhold tax on the fair market value of the property distributed to a foreign shareholder if:
- The shareholder’s interest in the corporation is a U.S. real property interest, and
- The property distributed is either in redemption of stock or in liquidation of the corporation.
For distributions before February 17, 2016, the corporation generally must withhold 10% of the amount realized by a foreign person. For distributions after February 16, 2016, the rate increases to 15%.
For additional information on the withholding rules that apply to corporations, trusts, estates, and REITs, refer to section 1445 of the Internal Revenue Code and the related regulations. For additional information on the withholding rules that apply to partnerships, refer to discussion under partnership withholding. Also, consult the “U.S. Real Property Interest” section in IRS Publication 515.
FIRPTA documents are processed at:
Internal Revenue Service Center
P.O. Box 409101
Ogden, UT 84409.
Note: This page contains one or more references to the Internal Revenue Code (IRC), Treasury Regulations, court cases, or other official tax guidance. References to these legal authorities are included for the convenience of those who would like to read the technical reference material. To access the applicable IRC sections, Treasury Regulations, or other official tax guidance, visit the Tax Code, Regulations, and Official Guidance page. To access any Tax Court case opinions issued after September 24, 1995, visit the Opinions Search page of the United States Tax Court.
Page Last Reviewed or Updated: 03-Feb-2017
Foreign Nationals and FIRPTA
January 21, 2016
When a foreign person sells U.S. real estate, he or she is subject to having 15% of the gross sales price withheld from the proceeds received at closing. This is a requirement under the Foreign Investment in Real Property Tax Act, known as FIRPTA. This 15% withholding must be remitted to the Internal Revenue Service (IRS) no later than 20 days after closing. Prior to February 17, 2016, the withholding rate was 10%.
The 15% withholding has no relation to the amount of tax actually owed on the sale. It is merely a deposit that is applied against the actual tax. The actual tax is calculated on the U.S. income tax return required to be filed to report the sale. The amount of withholding is compared to the actual tax on the sale. If the tax is less than the withholding, the difference is refunded to the seller. If the tax is more than the withholding, the seller must pay the difference to the IRS.
There are exceptions to this general rule. No withholding is required if the sales price is $300,000 or less and the buyer (including family members) intends to use the property for personal purposes as a residence for at least 50% of the time the property is in use for the next two 12-month periods following the transfer. The days the property is unoccupied are excluded in the 50% calculation. Vacant land is specifically not eligible for this treatment, even if the buyer intends to build a residence on the property. In order for the exemption to apply, the buyer must be an individual, as opposed to a partnership, corporation, estate or trust.
For example, a foreign person sells U.S. real estate for $250,000. The buyer intends to rent out the property for three months of the year and use it personally for four months of the year. The property will be vacant for the remaining five months of the year. In this example, the property is in use for seven months of the year. Since the buyer intends to use the property for personal purposes for four months out of the seven months that the property is in use, this meets the 50% test. If this is the intent of the buyer for at least two years following the purchase of the property, the seller will be exempt from the 15% withholding requirement, as long as the buyer signs an affidavit, under penalties of perjury, that he or she meets the conditions for the exemption. Even though the seller is exempt from the withholding, he or she must still file a U.S. income tax return to report the sale and pay any income taxes that apply.
If the sales price exceeds $300,000, no exemption from withholding is available regardless of the intended use of the property by the buyer. Withholding is mandatory on any sale in excess of $300,000, whether the sale results in a profit or a loss.
The FIRPTA rules allow for a reduction of the 15% withholding rate, bringing it back to the prior 10%, if certain criteria are met. To meet the criteria, the sales price cannot exceed $1,000,000 and, just like for the exception to FIRPTA withholding, the buyer must intend to use the property as a residence. As guidance from the Internal Revenue Service is lacking at this time, our interpretation is that the term “residence” is defined in the same manner as for the exception to the withholding described above.
If the actual tax on the transaction is significantly less than the withholding, the seller may apply for a withholding certificate from the IRS. This withholding certificate allows for an amount of less than 15% of the gross sales price to be withheld from the closing proceeds. Let’s take the example where a property is being sold for $500,000, but the seller had previously purchased the property for $600,000. The seller will incur a loss on the sale and, therefore, no tax will be payable on the transaction. The seller is still subject to a withholding of $75,000 on the sale. The seller may submit an application to the IRS showing evidence that the transaction will result in a loss. This application must be submitted to the IRS no later than the date of closing. Otherwise, the 15% will have to be sent to the IRS no later than 20 days after closing. Once the application has been submitted, it generally takes the IRS 90 days to issue the withholding certificate. The withholding certificate will state that withholding on the sale has been reduced to zero. Therefore, closing can take place without withholding.
Due to the 90 day time lag between the filing of the application and the issuance of the withholding certificate, many times the closing will take place before the withholding certificate is issued. In this case, the closing takes place and the withholding is deducted from the closing proceeds. Instead of remitting the withholding to the IRS no later than 20 days after closing, the closing agent is authorized to hold the funds in escrow until receipt of the withholding certificate. Once the withholding certificate is received, the closing agent will remit the lower withholding amount, if any, and release the balance of the funds directly to the seller.
The decision of whether or not to apply for a withholding certificate to reduce the withholding depends on the particular circumstances of the sale. Factors to consider are the amount of actual tax compared to the amount of withholding and the timing of the sale. Individuals are on a calendar year reporting for income tax purposes. If the sale takes place in January, the seller must wait until the following January to apply for the refund via the filing of an income tax return. By the time the refund is received, this could be at least 14 months after the sale. Depending on the amount of the overpayment, it could be advisable to apply for the reduced withholding through the filing of the withholding certificate application. If the same sale took place in December, the tax return could be filed shortly thereafter and the refund obtained within a few months after closing. In this case, there would be less reason to apply for the reduced withholding.
In the case of a short sale, where the sales proceeds are insufficient to pay the mortgage balance, the withholding rules still apply. The only exception is if the sales price is $300,000 or less and the buyer meets the criteria for the exception as explained above. The only other alternative is to request a withholding certificate from the IRS. Otherwise, it is doubtful that the lender would approve the sale as any withholding would reduce the amount paid to the lender at closing.
Since every situation is unique, we are happy to advise you on the options available to you in complying with this requirement on the sale of your property.
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Sarasota, FL 34236
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