FIRPTA Withholding in New York

In the United States, taxes are typically involved when it comes to real estate transactions. American citizens who sell their property usually have to pay capital gains taxes on the profits they earn. Likewise, foreign investors can also anticipate significant fees. If you are a foreign investor in the U.S. dealing in real estate or income-generating stocks, you are likely familiar with the Foreign Investment in Real Property Tax Act (FIRPTA).

If you are a foreign investor and need assistance navigating the complexities of U.S. real estate taxes and the FIRPTA, it is essential to seek guidance from a skilled Manhattan real estate attorney. At Avenue Law Firm, our team of New York real estate lawyers may be able to offer valuable insights and professional advice to ensure that you comply with tax laws and minimize your tax obligations. Call us today at (212) 729-4090 to schedule a consultation.

Understanding FIRPTA Withholding

The Foreign Investment in Real Property Tax Act (FIRPTA) is a federal legislation in the United States enacted in 1980 to impose a tax on foreign persons who sell or dispose of any United States real property interests. FIRPTA ‘s main purpose is to ensure that foreign sellers pay the required taxes on the gains realized from selling real property in the United States.

The Internal Revenue Service (IRS) defines “real property interest” to encompass not only land and buildings but also any interest in a domestic corporation unless it is established that the corporation was not a United States real property holding corporation (USRPHC) during the five-year period ending on the disposition date or during the period of the foreign person’s holding.

The tax obligations under FIRPTA apply to non-resident aliens, foreign corporations, and foreign trusts or estates that sell, exchange, liquidate, redeem, transfer, or dispose of a United States real property interest. The purpose of FIRPTA is to ensure that the U.S. government retains an appropriate portion of the proceeds from the sale or disposition of real property so that the foreign seller meets their tax obligations.

Key Provisions of FIRPTA

• Withholding Tax Obligations: Under FIRPTA, the buyer or transferee of the real property is required to withhold and remit to the IRS a certain percentage (usually 15%) of the total amount realized by the foreign seller on the disposition of their United States real property interest. This withholding tax is meant to cover the foreign seller’s potential tax liability arising from the transaction.
• Exceptions and Reduced Withholding Amounts: The IRS allows for certain exceptions and reduced FIRPTA withholding rates under specific circumstances. For example, if the buyer intends to use the property as their principal residence, and the sales price does not exceed $300,000, the withholding requirement may be eliminated. In some cases, where the maximum tax liability is less than the standard withholding amount, the withholding rate may be reduced.
• Withholding Certificate Application: Foreign sellers may apply for a withholding certificate from the IRS to reduce or eliminate FIRPTA withholding obligations. To apply for such a certificate, the foreign seller must demonstrate that the actual tax liability from the sale is less than the required withholding tax, or that they qualify for an exception.
• Reporting and Payment Obligations: The buyer or other withholding agent is responsible for reporting the transfer of the United States real property interest and remitting the withheld amount to the IRS within a specified period, usually 20 days after the transfer. Applicable forms, such as IRS Form 8288 and Form 8288-A, must be filed and submitted.

Who is Responsible for FIRPTA Withholding?

In a real estate transaction where the seller is a foreign individual or entity, the buyer is typically responsible for withholding the tax under FIRPTA. The buyer must determine if the seller is a foreign person or not, and if so, must withhold and remit the required tax amount to the IRS. In some cases, the real estate agent or other professionals involved in the transaction may also be responsible for ensuring compliance with FIRPTA.

Buyers must understand their responsibilities under FIRPTA, as failure to withhold and remit the required tax amount may expose them to potential financial penalties from the IRS. Buyers are advised to work with experienced professionals, such as real estate agents and attorneys, who can assist in the assessment of the seller’s foreign status and guide them through the withholding process.

Withholding Agent’s Duties

The withholding agent, typically the buyer or their designated representative, has specific duties to fulfill under FIRPTA. These duties include determining if the seller is a foreign person or entity, calculating the required withholding tax amount based on applicable rates, obtaining the necessary forms and documentation, and remitting the taxes within the specified timeframe. Additionally, the agent must inform all parties involved in the transaction about the withholding requirement.

Fulfilling the duties requires the agent to secure relevant documentation, such as the withholding certificate issued by the IRS, which indicates the appropriate withholding amount, and complete Form 8288, used for reporting and transmitting withheld taxes. In cases where the seller has applied for a reduced withholding amount, the agent must also secure Form 8288-B. Once completed, these forms should be submitted to the IRS appropriately.

When Does FIRPTA Apply?

FIRPTA applies when foreign individuals or entities sell or dispose of U.S. real property interests. This encompasses not only land and buildings but also shares in a U.S. corporation if it qualifies as a U.S. real property holding corporation during the past five years or while the foreign entity held the asset.

The law targets non-resident aliens, foreign corporations, and foreign trusts or estates engaged in transactions like selling, exchanging, or transferring U.S. real property. FIRPTA ensures that these foreign sellers fulfill their tax obligations on any gains realized from such transactions.

The primary goal is to make sure that the U.S. government collects the appropriate taxes from foreign sellers involved in U.S. real estate deals. FIRPTA mandates that the buyer withholds a portion of the sale proceeds to cover potential tax liabilities.

This legislation is crucial for maintaining fairness in the U.S. tax system, ensuring that foreign investors contribute their share of taxes on profits from U.S. properties. By doing so, FIRPTA helps retain proper tax revenues from foreign real estate transactions, supporting the broader economic framework of the United States.

Exceptions to FIRPTA Withholding

The Foreign Investment in Real Property Tax Act (FIRPTA) is a United States tax law that imposes income tax on foreign persons selling U.S. real property interests. Under FIRPTA, the buyer or transferee of real property must withhold and remit a specific percentage of the amount realized on the disposition of the property as tax. However, there are exceptions to FIRPTA withholding, which are discussed in the following sections.

Transferee’s Use of the Property for Personal Residence

One significant exception to FIRPTA withholding is when the transferee plans to use the property as their personal residence. In this case, no withholding is required if the amount realized (the purchase price) is $300,000 or less, and the buyer or their immediate family intends to reside at the property for at least 50% of the total number of days the property is occupied during each of the first two 12-months periods following the date of transfer.

It is essential to note that the property cannot be used as a rental property or for other business purposes for this exception to apply. Also, the number of days of residence does not include any days when the property is vacant.

Nonrecognition Transactions

FIRPTA withholding does not apply to nonrecognition transactions. These are transactions in which the seller does not recognize any taxable gain or loss due to specific provisions of the Internal Revenue Code (IRC). Some common nonrecognition transactions include like-kind exchanges under IRC Section 1031, contributions to a partnership in exchange for an interest in the partnership under IRC Section 721, and transfers to a corporation controlled by the person transferring the property under IRC Section 351.

However, it is important to note that nonrecognition transactions might be subject to other withholding requirements, and the parties involved may need to comply with specific reporting and documentation requirements to claim this exception.

Does FIRPTA apply to sales under $300,000?

The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) applies to the sale of U.S. real property interests by foreign individuals, allowing the U.S. to tax these transactions. However, sales under $300,000 are subject to a specific exemption under FIRPTA, provided certain conditions are met.

The Internal Revenue Service (IRS) specifies that transactions involving the sale of U.S. real property interests valued at $300,000 or less do not require FIRPTA withholding if the purchaser intends to use the property as their residence. For this exemption to apply, the buyer must plan to live in the property for at least 50% of the days it is occupied in the first two 12-month periods after purchase. However, this exemption is not automatically granted; it requires the buyer to sign an affidavit confirming their residential intent for the property.

While FIRPTA may not apply to sales under $300,000 if specific criteria are met, sellers are still liable for taxes on any profits made from the sale. Understanding these regulations is crucial for compliance by both buyers and sellers. It is essential for foreign sellers and buyers involved in U.S. real estate transactions to be aware of when FIRPTA withholding is required and when exceptions exist.

For those involved in such transactions, it is recommended to consult with an experienced New York real estate attorney for guidance on current FIRPTA requirements and updates to tax laws.

FIRPTA Withholding Certificate

A FIRPTA Withholding Certificate primarily serves the purpose of either reducing or eliminating the 15% tax withholding required under FIRPTA. The purpose of the tax withholding is to make sure that there are sufficient funds to cover any tax liability arising from the foreign person’s sale of real property in the United States. However, the tax liability may be less than the 15% withholding amount, or the seller may be eligible for an exemption. In such cases, applying for a FIRPTA Withholding Certificate can be beneficial for the foreign seller as it can result in a reduced or eliminated withholding amount, thus releasing more funds at the time of closing the transaction.

Application Process for the Withholding Certificate

To apply for a FIRPTA Withholding Certificate, a foreign seller must complete and submit IRS Form 8288-B, “Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests.” The form should be submitted to the IRS before or on the closing date of the real property sale. It is also a good idea to submit the form as early as possible, as the IRS usually takes up to 90 days to process applications and issue withholding certificates.

The form requires various information, including the property’s description, the sales price, the buyer’s and seller’s information, the requested withholding amount, and the reason for the request. The foreign seller must also attach supporting documentation, such as contracts, settlement statements, and other documents related to the transaction.

Effects of Non-Compliance with FIRPTA Withholding

The Foreign Investment in Real Property Tax Act (FIRPTA) is an initiative in the United States aimed at taxing foreign citizens who invest in or sell U.S. real property. Withholding under FIRPTA is crucial for both buyers and sellers to understand since non-compliance can result in severe penalties from the Internal Revenue Service (IRS). 

Liability for tax, interest, and Penalties

Non-compliance with FIRPTA withholding can lead to significant consequences for all parties involved in the real estate transaction. If the buyer fails to withhold and remit the required tax amount to the IRS, they may be held liable for the tax, along with any accrued interest and penalties in relation to that tax. This is particularly concerning for the buyer because they are responsible for withholding the tax from the amount paid to the foreign seller.

On the other hand, the foreign seller may face an investigation from the IRS if they have not reported the transaction appropriately. They may be subject to assessments for unpaid taxes, interest, and penalties if their tax liability has not been satisfied. It is the responsibility of the foreign seller to ensure that they have met all reporting and payment requirements under FIRPTA.

Failure to Withhold Penalty

One of the key consequences of non-compliance with FIRPTA withholding is the “failure to withhold penalty.” This is a penalty imposed by the IRS on the buyer when they fail to correctly withhold the required tax amount on a real estate transaction involving a foreign seller. The penalty is assessed at a rate of 20% of the required withholding amount, with additional interest accruing from the date of the transaction.

This penalty can be particularly burdensome for buyers who are unaware they were required to withhold taxes at the time of the transaction. In such cases, it is crucial for the buyer to promptly consult with a tax professional and take appropriate steps to rectify the situation to avoid further consequences.

Importance of Filing Necessary Tax Returns

To avoid non-compliance with FIRPTA withholding and its consequences, both foreign sellers and buyers of U.S. real property must understand their respective tax obligations and make sure they file the necessary tax returns timely and accurately.

For foreign sellers, this includes obtaining an Individual Taxpayer Identification Number (ITIN) as well as filing appropriate tax returns to report the gain or loss from the property transaction. If required, sellers should apply for a withholding certificate to reduce the FIRPTA withholding amount.

Buyers, on the other hand, need to ensure they withhold the required tax and remit it to the IRS along with the required forms, such as Form 8288 and Form 8288-A. Additionally, buyers should obtain a U.S. Taxpayer Identification Number (TIN) to complete these filings properly.

Getting the Help of a Skilled New York Real Estate Lawyer

Navigating the U.S. real estate tax landscape and FIRPTA regulations can be challenging for foreign investors. To ensure compliance and minimize your tax obligations, it’s crucial to consult with an experienced New York real estate attorney. 

The team of experienced New York real estate attorneys at the Avenue Law Firm is prepared to offer the guidance and expertise you need to protect your investments and maximize your profits. Don’t leave your financial future to chance – contact us today at (212) 729-4090 to schedule a consultation and secure the professional advice you need to thrive in the U.S. real estate market.

via Avenue Law Firm www.avenuelawfirm.com/firpt...