The Foreign Investment in Real Property Tax Act of 1980 is more commonly known as FIRPTA. It is a tax enacted on foreign sellers of real property. It is not a capital gains tax. The US does not tax gains for foreign nationals. A gain is considered income in their case. This law requires those buying property from foreign sellers to withhold 15% of the purchase of the property. Until 2017 it was only 10%. These funds are held until the seller files and pays their taxes. Buyers who do not collect the FIRPTA withholding are subject to penalties. Their escrow agent is actually the one that holds the funds.
There are a several ways for foreign nationals to avoid this withholding. Many of which apply to corporate ownership. You can see all of them at IRS.gov. I will show the two most common ways individuals can avoid the FIRPTA withholding. Some planning ahead is required if you are going to go with the second option.
1. If the sales price of the property is less than $300,000, the withholding is not required if the buyer plans on using the property as their primary residence or at less spend 50% of the time there for two years after closing. The buyer must agree to sign a FIRPTA addendum as part of the purchase and sales agreement.
2. The seller may apply to the IRS for a withholding certificate. There are many different instances were a withholding certificate can be used, but mainly they are used if little or no gain is being realized. Here in South Florida, were many of the homes, are purchased as vacation homes, it can be difficult finding buyers that will agree to sign the FIRPTA affidavit. If you end up selling for less because it is less marketable, it defeats the purpose of trying to avoid the withholding. This is the better route If the most likely buyer won't use the property being sold as their primary residence.
The seller should consult with an accountant or tax advisor. They can estimate your taxes and assist you in applying for the withholding certificate.
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