The Foreign Investment In Real Property Tax Act (FIRPTA)
Federal Requirements - There are reporting and withholding requirements for sales of property to or by foreign persons or corporations (IRC §1445). Exchange Intermediaries should be familiar with the basic rules.
Any person who purchases an interest in U.S. real property from a foreign person or corporation must withhold and remit to the Internal Revenue Service a tax in the amount of 10% of the sales price. Form 8288 is used to report and remit the withheld amount.
Although the closer may perform the withholding and preparation of Form 8288, the burden of responsibility is on the buyer of the property. Often closers are not acquainted with these withholding requirements. Failure to withhold the tax may result in the buyer of the property being held liable for the payment of the tax and any applicable penalties and interest. A lien could be placed on the property if it is determined that the buyer failed to comply with the withholding requirement and is found to be liable for the tax.
There are exceptions to the withholding requirement. Withholding is not required if the buyer is acquiring the property for use as a residence and the purchase price is $300,000 or less.
Notification of Non-recognition Treatment - Withholding is not required if the seller of the property notifies the buyer in a written statement, signed under penalties of perjury, that the seller is not required to recognize any gain on the sale under Code Section 1031. No particular form is required for this notice. It is the buyer's duty to provide a copy of the notice to the IRS within 20 days of the closing date. However, if the buyer has reason to know that the sale is not qualifying under IRC 1031 for non-recognition treatment, the buyer is not excused from the withholding requirement.
Withholding Certificate - Withholding is not required if either the buyer or the seller of the property files Form 8288-B (Application for Withholding Certificate) with the IRS and obtains a Withholding Certificate from the IRS eliminating the need to withhold. This Certificate relieves the buyer of the property from any responsibility for withholding. The only problem is, it may take the IRS up to 90-days to issue the certificate.
In an exchange involving an Intermediary, it is possible that the Intermediary may be perceived as the buyer of the property and therefore be liable for payment of the withholding tax. Even though the Intermediary does not ordinarily take title to the Replacement Property, the Intermediary can be deemed to take and convey ownership of the property by virtue of its responsibilities under the Exchange Agreement. Therefore, the Intermediary should be attentive to the FIRPTA requirements.
What if the Intermediary is assisting the foreign seller of the property with an exchange and the exchange fails or boot is recognized from the exchange? It seems prudent for the Intermediary to transfer the withholding amount to the IRS. This possibility should be provided for in the Exchange Agreement or an addendum thereto.
State Requirements - Many states have legislation similar to FIRPTA for nonresident sellers of property. All of the concerns that apply to the federal rules also apply to the requirements of each state. Intermediaries must check the requirements of the appropriate state legislation to determine the FIRPTA requirements of each state.
** Please contact an Attorney or an Accountant for further questions on this matter. You can also visit the IRS site for more information. Click here to view.**