I. Overview of FIRPTA

Simply put, FIRPTA is legislation intended to insure foreign owners of US real property pay the capital gains tax when they sell their property.  After all, there is a natural temptation for someone living abroad to simply sell the property and disappear without paying tax.

The IRS knows this, so they have put the obligation on the buyer and the title agent to withhold 15% of the sale price (10% for qualifying transactions) as a sort of escrow for payment of capital gains tax.  So, it’s not the seller that gets in trouble if the withholding is not done.

Since it can be hard to go after the foreign seller, the law is aimed at the parties the IRS knows it can find and punish.

For the most part, the 15% is calculated on the sale price, not the profit realized by the foreign seller.  So, usually, the withholding is a substantial amount, which is why clients come to us for help.

For a title agent, dealing with foreign sellers represents tremendous liability.  In fact, our office often receives referrals from title companies that are less familiar with international transactions.

Title agents who are unaccustomed to dealing with FIRPTA can get freaked out and end up making the process more slow and painful than it needs to be.

II. The Typical Scenario

Sometimes the foreign investor does not know about FIRPTA when making the purchase.  So, instead of creating a domestic land trust or LLC to purchase the property, the buyer just makes the purchase in his or her own name.   Given the choice, that approach is not the best for many reasons.  Click here for other options.

However, there are other times when purchasing through a land trust or company is not an option.  For example, some lenders may require the borrower be a natural person.  It is not impossible to get a mortgage in the name of a company or trust, but it can certainly be more difficult.  That said, since foreign buyers usually do not rely on US financing for their purchases, this is not generally an issue.

When it is time to sell the property, these are the questions to ask:

(i)  Can I avoid the withholding requirement altogether?

(ii)  If I can’t avoid withholding, can I minimize the amount withheld?  (10% instead of 15%)

(iii)  If I can’t avoid withholding, can I at least get a quick refund?

Of course, each situation is a bit different, so do not hesitate to contact our office (free consultation) when you have a situation with a particular closing.  But, if you are looking to generally educate yourself, this article is for you.

III.  Withholding Requirement

First of all, how do you calculate the the withholding?  The IRS uses the term “amount realized” from the sale, which is defined as:

• The cash paid (usually the purchase price);
• The fair market value of other property; or
• The amount of any liability assumed by the transferee after the transfer.

Sellers often say to us “But, I’m not making any money on the sale.”  Ultimately, the amount of tax liability will depend upon the profit or loss from the transaction.  But, that determination happens at the end of the fiscal year when you file your tax return.  Unfortunately, for purposes of the FIRPTA withholding, you do not get to “self-declare.”

So, you may very well get the withholding back after you file your tax returns.  But, at the time of the closing, the IRS wants to hold onto 15% (or 10%) of the sale price for you. 

Who is a “US person”?

If the seller is any of the following, then FIRPTA does not apply:

• a citizen or permanent resident of the US
• a non-resident who meets the “substantial presence” test
• a domestic, multi-member LLC
• a domestic partnership
• a domestic corporation
• a trust domiciled in the US that has at least one trustee who is a US person
• any estate that derives income from within the US

Who is a “resident”?

If you have a green card (i.e. permanent resident), then you are a US person, irrespective of how many days you have been physically present in the US.

If you are not a permanent resident, but have spent 183 days or more in the US in the past three years, then you are considered a “US person” for tax purposes.  The calculation of the 183 days (i.e. the “substantial presence test”) is a bit complicated:

• a minimum of 31 days in the current calendar year
• each day present in the current year is counted as a full day
• each day present within the preceding year is counted as one-third of a day
• each day present within the year that is two years prior to the current calendar year is counted as one-sixth of a day

Tip: The easiest way to do the math is to access Homeland Security’s I-94 page online.  That will give you a clear record of the time you have spent in the US during the most recent five (5) years.

What if the property has more than one owner?

If the property is owned jointly by U.S. and foreign persons, the “amount realized” is allocated between the seller parties based on the capital contribution of each.

Example:  If there is one US investor and one foreign investor, and they each put in 50% of the price to acquire the property, then the “amount realized” for FIRPTA purposes will be half the sale price.

What if the owner is a company?

If the seller is a foreign corporation, then the company must withhold 35% of the gain it recognizes on the distribution to its shareholders.  So, using a foreign corporation as your investment vehicle is usually not smart.

IV. Exceptions

Residence that costs less than $300,000

Probably the most common exception is where the buyer intends to live in the property as a home, as opposed to acquiring the property for rental/investment purposes.  That will work, but only if the sale price is less than $300,000.

Additionally, for the first two years, a family member has to live in the property “for at least 50% of the number of days the property is used by any person.”  So, that means, the days the house is vacant do not count, but you cannot have a tenant in the property for more time than you or your family use the property.

Limited Liability Company as Seller

This is where things get interesting.  Real estate investors often hold their properties in LLCs, so this is the section that merits the most careful analysis.

First of all, if the LLC is registered in a foreign country, then it is subject to the FIRPTA withholding unless it is a single-member LLC and the owner is a US person.

The real question, though, is what to do with domestic companies.

Domestic LLCs

Disregarded Entity.  Under the tax code, there is the concept of a “disregarded entity.”  If the LLC has only one owner (i.e. member), and the owner has not made any special elections with the IRS, then the LLC will be considered a “disregarded entity.”  In that case, whether FIRPTA withholding is required or not will depend upon the status of the owner.  If that individual or entity is a non-US person, then the LLC is subject to the withholding.

Multi-Member LLC.  By contrast, if the LLC is has more than one owner, then the default classification (i.e. no specific election taken) is “partnership,” not a “disregarded entity.”  So, a multi-member domestic LLC will generally not be subject to withholding.

An LLC formed in the US can safely sign the non-foreign affidavit and forgo withholding if _

1. 1. 1. It has only one member and that member is a US person
      2. It is has more than one member 
      3. It has made the election to be taxed as a corporation (i.e. C-corp)

Sworn Statement

If the seller provides a declaration that he or she is not a foreign person, and provides a tax ID number (i.e. social security or EIN), then that will get the buyer and title agent off the hook.  Obviously, if the information is false, the seller will be guilty of perjury and could have problems with the IRS.  The same is true if the buyer and/or title agent actually knows the information is false.

No Gain or Loss

If the transfer was to a family member, or some other situation where there truly was no profit or loss on the transfer, then the seller can provide a notice to that effect.  In that case, the buyer and title agent will not be liable.  Just be sure a copy of that notice gets filed within 20 days of the closing at the Ogden Service Center, P.O. Box 409101, Ogden, UT 84409 .

This exception may also apply in short sales, but that is not automatic because the calculation is based on the sale price rather than proceeds.  So, contact our office on that one.

V. Waivers 

This is where your experienced, resourceful lawyer can really be helpful.  There are certain mechanisms available for obtaining waiver of the withholding requirement.  There are three in particular that provide some wiggle-room.

• The amount to be withheld is greater than the tax liability.  The withholding is calculated on the full sale price, even though you may have a mortgage to pay off.  Ultimately, of course, you will only have to pay tax on your profit, not the full sale price.  So, it could very well be that your tax liability is lower than the amount of the withholding.  When that is the case, we should be able to get you a waiver.

• Agreement to pay tax with conforming security.  Since the whole idea of FIRPTA is to make sure sellers pay the capital gains tax, the IRS will consider waiving the withholding requirement as long as it has other assurances the tax will be paid.  These are the forms of security that are generally acceptable:
  • bond with surety or guarantor
  • bond with collateral (the Ibis property would probably work)
  • letter of credit (if you have funds abroad, this may be an option)

Under this scenario, we (the title company) would first determine the exact amount of tax due on the transaction, and then make arrangements to provide assurances that the tax will be paid before April 15.  If we can do that to the satisfaction of the agent, the IRS will issue a waiver.

• Nonstandard application.  This analysis really has to be done case-by-case, though I can give you an example.  One client wanted to sell his property in order to raise enough money to meet the requirment for an investor visa (E-2). In that case, the argument was really quite compelling.  After all, the IRS just wants to know the seller will not disappear without paying tax.  Well, if the very reason for the sale is to be able to remain in the US on a long-term basis, that is pretty good assurance the seller will pay his taxes.  So, we were able to obtain a waiver.

Bear in mind it does take a little time to get the certificate back (up to 90 days) so, if you decide waiver is the way to go, you will want to get the application together sooner rather than later.

VI. Amount of Withholding

There is one situation where the amount of withholding is 10% instead of 15%.  That is where the buyer plans to live in the property (see details above), and the sale price is greater than $300,000 but less than $1 million.

Otherwise, at the time this article is published, the withholding is always 15%.

VII.  Refund of Withholding

In general, you would apply for refund after filing your return and paying any tax due.  So, how quickly you get your money back–assuming you are entitled to a refund–depends up on you . . . to a point.

You do not have to wait until April of the following year, but you do have to wait until the end of the fiscal year in order to file a complete return.  Some exceptions may apply, depending upon your circumstances, but that is the general framework.

Also, there are some mechanisms for early refund but that, again, would really only apply if the withholding were greater than the tax liability.  The criteria and process would be the same as in § V above.  If you do file for an early refund, the IRS has 90 days to respond.

 VIII.  Conclusion

As usual, the moral of the story is to seek out a lawyer sooner rather than later.  Certainly, if you are a foreign investor, it would be worth your while to meet with an H&S attorney to go over options regarding structuring your real estate investments.

~ Jeff Harrington, Esq.

The “Exchange”

The place to start is with the sale of Property A. You should have a clear plan in mind as soon as you decide to sell one property and buy another as a replacement. There a key concept you need to understand.

Selling one property and using the money to buy another without more does not qualify for a 1031 exchange.

That is strange, right? Isn’t selling one property and using the money to buy another precisely the essence of a 1031 exchange? Well, yes, but there is a key distinction to keep in mind. In order to avoid taxable income, you need to intend to make a swap of one property for another.  That is the “exchange” aspect of the program.

It is not the same thing to sell one property and later decide to use the money to buy another property as it is to make an “exchange.”

Ideally, you will do the sale and purchase simultaneously. That is the easiest way to demonstrate you are swapping one property for another. However, it may not be convenient or possible to close on the Property B at the same time as Property A. That is alright. There is some flexibility, but you should be careful.

 “Control” of Sale Proceeds

If you are going to close on the sale of Property A before you close on the purchase of Property B, then you must use a qualified intermediary to hold the sale proceeds in trust. There are companies whose sole purpose is to act as a special kind of escrow agent for 1031 exchanges.  Attorneys and certain trust companies may also offer the service, but beware of restrictions.

One restriction is that your qualified intermediary cannot be an attorney who has acted as your attorney within the past two years.

The funds must be kept in a trust account subject to an exchange escrow agreement.

You cannot take control of the funds, nor even have access to the funds at any time. Both the amount you paid for Property A and the equity you earned from selling Property A must be kept in trust for the purchase of Property B.

This procedure must be followed. If you access the funds – or even have the ability to access the funds – you will likely destroy the non-recognition aspect of the transaction and will have to pay the capital gains tax.  Remember, you are making a swap. You don’t get to use the money—or parlay it temporarily through other investments1 and then put it towards the purchase Property B. That is not a “swap” under the tax code.

This concept is fundamental to making a successful 1031 exchange.  If you make a mistake at this stage, you’re probably done.  If you fail to use a qualified intermediary to escrow the proceeds from the sale of Property A, and then go on to claim a 1031 exchange, you run the risk of having the IRS challenge your position–and charge penalties when they disallow the tax deferral.

If you have any questions or doubts, contact my office or other qualified professional for guidance.

Read Part III on 1031 Exchanges

~ Jeff Harrington, Esq.

1Bell Lines, Inc. v. United States, 480 F.2d 710, 714 (4th Cir. 1973);Carlton v. United States, 385 F.2d 238, 241 (5th Cir. 1967).  [37] As we indicated in Barker v. Commissioner, 74 T.C. 555, 561 (1980) ; Accord, Starker v. United    States, 602 F.2d 1341, 1352 (9th Cir. 1979)

Part I of this series was an overview of the whole “exchange” process. In Part II, the focus was on common pitfalls and the use of a Qualified Intermediary. Here we will review restrictions regarding the identity of the seller and purchaser.

Spoiler Alert: With very few exceptions, the identity of the seller of Property A and the purchaser of Property B has to be the same.

Naturally, there are many important aspects of a 1031 Exchange, all of which are deserving of attention. We are choosing, however, to focus on matching the seller and buyer because that issue is particularly relevant to investors.

It is very common for real estate investors to join forces with other parties in joint ventures. So, for example, Joe Investor has accrued some equity in his investment property—we will call it “Property A”—and he would like to use the money to purchase a more valuable property, which we will call “Property B.” However, Joe Investor either does not have enough cash to purchase Property B on his own, or would rather share the risk with someone else. Certainly, this is a very typical scenario.

Under normal circumstances, Joe Investor would go out and find a Jane Investor to go in with him on the purchase of Property B. Joe and Jane would likely form an LLC or a land trust to hold Property B, each having an ownership interest corresponding with the amount of his/her capital contribution. Here is the kicker.

If Joe Investor sells Property A, which was titled in his name, and buys Property B with a company or land trust, he destroys the 1031 Exchange and loses the ability to defer tax.

It does not matter that Joe used the money from Property A to buy Property B – even if he did properly use a qualified intermediary (as discussed in Part II). The tax payer that sells Property A has to be the same taxpayer that buys Property B. For investors, this is a rather unfortunate restriction and an important pitfall of which to be aware.

There is an exception, though it would not help Joe Investor in our example. If Joe held title to Property A as a single-member LLC—where Joe was the single member—then he would be allowed to discard the LLC and purchase Property B in his personal name without losing the tax deferral benefits. That exception does not provide Joe the ability to purchase Property B with a co-investor, though. To do that, we will need an additional step.

The tax code does not prohibit Joe Investor from selling Property A, purchasing Property B in his own name, and then transferring Property B to an LLC or trust, which is owned jointly with Jane Investor.

Now, if Joe and Jane do the exchange this way, Jane will be exposed until Property B is transferred to the LLC/trust.  Joe could double-cross Jane.¹

If Joe and Jane trust each other explicitly, that risk might be acceptable.

As an attorney, I never ceased to be amazed at how many of these deals go wrong. I probably have a skewed view of the business world because only the transactions that go wrong are brought to my office. Nonetheless, that is just not smart business.

The solution is for Joe and Jane to execute a joint venture agreement stipulating that, while Joe will be the titleholder, temporarily, Jane has an equitable interest in Property B.

Now, I know what you are thinking. What if both Joe and Jane want to use proceeds from the sale of their respective Property A-s to purchase Property B? Well . . . every problem has a solution. Call my office.

~ Jeff Harrington