Record low real estate prices make real estate investing in the US attractive to international buyers. When purchasing real estate within the US many foreign investors are not aware that upon the sale of the real estate asset they are subject to the FIRPTA withholding tax of 10%. The best advice any one in real estate can give to aforeign investor is for the investor to immediately apply for an ITIN - International Tax Identification Number. Applying for an ITIN at the outset of purchasing property within the US would best serve the foreign investor in the long run as they will then be able to sell and close without the holdup of obtaining an ITIN from the IRS which can take as long as 6 weeks or more.
Since the sale or other disposition of a U.S. real property interests by a foreign person is subject to the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA), many investors should look at the possibility of participating in a 1031 Tax Deferred Exchange. FIRPTA authorized the United States to tax foreign persons on dispositions of U.S. real property interests. Persons purchasing U.S. real property interests from foreign persons, are required to withhold 10 percent of the amount realized. The 10% withholding is submitted by the BUYER to the IRS using the Internal Revenue's form 8288. A sale of property owned by a foreign person cannot close escrow to a purchaser without an ITIN issued to the foreign seller by the IRS.
Many confuse a common exception to the FIRPTA withholding which exists and is strictly for a residence which the foreign investor resides at as their personal residence (for at least 50% of the time); and in which the sale price is not more than $300,000.00. This exception is not for use in the sale of an investment property owned by the foreign investor.
Since investment property has strict personal use limitations the foreign seller of investment property may want to consider the use of a 1031 Tax Deferred Exchange. If the investor is going to purchase another investment property then the 1031 Exchange would be beneficial to defer the capital gains and to also eliminate the required FIRPTA withholding. In order to take advantage of these two benefits the investor will need to apply for (immediately) a withholding certificate from the IRS and an ITIN (if one has not already been applied for and issued). The withholding certificate requires an ITIN in order to file for the certificate (both can be filed at the same time - but again this may cause the request to take longer than is available to meet the successful closing on the transaction). The forms for both can be obtained from our office or directly from the IRS website (IRS.gov).
Remember that FIRPTA impacts all foreign sellers, next time you have a transaction with a foreign seller be certain to ask them about these important issues as you may help to save your deal and to save the seller dollars in taxes which will result in their having more money to invest in the next property; AND we all know how that benefits everyone involved!
Brigitte Echave is a Certified Exchange Specialist® and an approved Real Estate Trainer. With over 26 years in the real estate business and 20 years specializing in 1031 Tax Deferred Exchanges you should call Brigitte with all your 1031 Exchange needs and questions.
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