The Foreign Investment in Real Property Tax Act (FIRPTA) requires buyers of U.S. real property interests from foreign sellers to withhold a portion of the purchase price and remit it to the Internal Revenue Service (IRS). This ensures that foreign sellers pay any applicable taxes on gains from U.S. property sales.
What Is FIRPTA Withholding?
Under FIRPTA, buyers must withhold 15% of the purchase price when acquiring U.S. real property from a foreign seller. The withheld amount is credited toward the seller’s potential tax obligations when they file a U.S. tax return.
Who Is Considered a Foreign Person?
FIRPTA applies only when the seller is classified as a foreign person, which includes:
- Nonresident aliens
- Foreign corporations that have not elected to be treated as domestic corporations
- Foreign partnerships, trusts, or estates
If the property is jointly owned by a foreign and a U.S. person, FIRPTA withholding applies only to the foreign seller’s share of the sale proceeds.
What Qualifies as a U.S. Real Property Interest?
FIRPTA applies only to sales of U.S. real property interests, which include:
- Land, buildings, and mines located in the U.S. or U.S. Virgin Islands
- Fixtures and personal property associated with real estate (e.g., farming machinery)
- Shares in a U.S. corporation that primarily owns U.S. real estate (unless the corporation was not a U.S. real property holding corporation within the relevant period)
Exceptions to FIRPTA Withholding
Certain transactions are exempt from FIRPTA withholding, including:
- Residential Use Exception: If the buyer intends to use the property as a residence and the sales price is $300,000 or less, FIRPTA withholding is not required. If the price is between $300,000 and $1 million, the withholding rate is reduced to 10%.
- Publicly Traded Corporation Exception: Sales of stock in a domestic corporation traded on a public exchange are generally exempt unless a significant non-public interest is sold.
- Non-Foreign Certification: If the seller provides a certification under penalty of perjury that they are not a foreign person, withholding is not required.
- Withholding Certificate from IRS: The IRS may issue a withholding certificate that reduces or eliminates FIRPTA withholding.
- Government Acquisitions: Properties acquired by U.S. government entities, states, or municipalities are exempt.
- Zero Realized Gain: If the seller does not realize any proceeds from the transaction, withholding is not required.
FIRPTA Compliance and Penalties
Ensuring FIRPTA compliance is critical for buyers. If a buyer fails to withhold and remit the required tax, they may be held personally liable for the seller’s tax obligations, along with interest and penalties.
Filing FIRPTA Forms
Buyers must report FIRPTA withholding by filing the following forms with the IRS within 20 days of the sale:
- Form 8288 – U.S. Withholding Tax Return for Dispositions by Foreign Persons of U.S. Real Property Interests
- Form 8288-A – Statement of Withholding on Dispositions by Foreign Persons
Foreign sellers must also report the sale and any applicable tax liability by filing Form 1040NR (for individuals) or Form 1120-F (for foreign corporations).
Contact Us Today for FIRPTA Guidance
Navigating FIRPTA can be complex, and both buyers and sellers must exercise due diligence to ensure compliance. Consulting with an attorney or tax professional can help mitigate risks and ensure a smooth transaction. If you have questions about FIRPTA withholding or need legal guidance on a real estate transaction, contact our firm for assistance.
Call us at (855) 855-2608 or visit www.VokLaw.com to learn more.
