FIRPTA: FOREIGN INVESTMENT IN REAL PROPERTY TAX ACT

What is it?

The Foreign Investment in Real Property Tax Act (FIRPTA) generally imposes a withholding requirement on a transferee (buyer) who acquires U.S. real property from a foreign person. The buyer must deduct and withhold a percentage (usually 15%) of the sales price. 26 U.S.C. §1445.

Buyer Responsible?

FIRPTA puts the burden of compliance on the buyer. The buyer must determine if the seller is a foreign person. If the seller is a foreign person and no exemption applies, the buyer is responsible for withholding and timely remitting the withheld funds to the IRS.

Determining if Withholding is Necessary.

FIRPTA puts the burden of compliance on the buyer. The buyer must determine if the seller is a foreign person. If the seller is a foreign person and no exemption applies, the buyer is responsible for withholding and timely remitting the withheld funds to the IRS.

  1. The seller is a “foreign person”, and
  2. No exception applies.

A Foreign Person Includes:

FIRPTA puts the burden of compliance on the buyer. The buyer must determine if the seller is a foreign person. If the seller is a foreign person and no exemption applies, the buyer is responsible for withholding and timely remitting the withheld funds to the IRS.

  • Nonresident alien
  • Foreign corporation, LLC, or partnership
  • Foreign Trust
  • Single-member domestic LLC if the sole-member is a foreign person

An alien is considered a US resident, not subject to withholding, if the alien has lawful permanent resident status (green card), or meets the “substantial presence test”.

TOP TIP: Withholding is not required if seller furnishes buyer a non-foreign affidavit stating, under penalty of perjury, the seller’s US taxpayer identification number and that the seller is not a foreign person or entity.

Exceptions?

FIRPTA withholding is not required if the buyer is acquiring the property for use as a residence and the sales price is $300,000 or less. If the buyer is acquiring the property for use as a residence and the sales price is over $300,000 but not more than $1,000,000, withholding is required at the reduced rate of 10%.

NOTE: A 15% withholding applies no matter the sales price when the purchaser does not intend to occupy the property as a residence.