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@049 CHAP 4
┌───────────────────────────────────────────────┐
│ FOREIGN INVESTORS IN U.S. REAL ESTATE: │
│ TAX WITHHOLDING REQUIREMENTS FOR SELLERS │
└───────────────────────────────────────────────┘
American citizens and other U.S. residents who acquire U.S. real estate
(including partnership interests or stock in certain corporations where
such firms own U.S. real property) from non-resident foreigners must
withhold part of the purchase price (typically 10%) and remit it to the
IRS under the Foreign Investment in Real Property Tax Act ("FIRPTA").
Note that IF YOU FAIL TO WITHHOLD THE TAX, YOU ARE LIABLE FOR IT!
This is a potentially dangerous tax trap for unsuspecting U.S. citizens
or resident aliens buying real estate, since it is difficult to know
whether a seller is a "foreign person," particularly if the seller is a
company. While there is an exception to the withholding rules for
residences costing $300,000 or less, if you will live in it for at
least 50% of the time for 2 years, it is wise to obtain a "Certificate
of Non-Foreign Status" from the seller if there is any possibility that
the seller is a non-resident alien or a foreign company subject to the
tax withholding provisions of FIRPTA.
In order to protect yourself when purchasing real estate--or your
client, if you are in the real estate business--you should require,
as a condition of closing the transaction, that the seller provide you
with an affidavit certifying that the seller is not a nonresident alien
or a foreign company. If you are the buyer, your real estate agent or
attorney who represents you in the transaction should be able to pro-
vide you with the appropriate forms.
┌───────────────────────────────────────────────────┐
│REMEMBER: WHEN BUYING REAL ESTATE, IF THE SELLER│
│IS A NONRESIDENT ALIEN, YOU WILL OWE THE IRS 10% OF│
│THE PURCHASE PRICE IF YOU FAIL TO WITHHOLD THE TAX,│
│UNLESS YOU RECEIVED A "CERTIFICATE OF NON-FOREIGN│
│STATUS" AFFIDAVIT FROM THE SELLER!!! │
└───────────────────────────────────────────────────┘
@CODE: VT
Also, if you buy land that is located in Vermont, you need to be aware
that the Vermont Land Gains Tax applies to most land that has been
held by ANY seller for less than 6 years (with certain limited exemp-
tions, such as for land used for a personal residence). While this tax
applies to the seller, you (as buyer) are liable if you fail to with-
hold tax, equal to 10% of the total consideration paid, from the pur-
chase price. You must then immediately file the Vermont Land Gains
Withholding Tax Return (Form LG-1) and remit the tax.
@CODE:EN
@CODE: CA
WITHHOLDING FROM FOREIGN BUYERS. California has recently enacted a
withholding requirement, similar to the federal law, that requires
a buyer to withhold part of the purchase price upon sale of California
real estate to a FOREIGN person. The amount of the tax to be withheld
is 1/3 of the federal tax that must be withheld. It must be paid over
to the state FTB on Form 597 within 20 days, with a copy of federal
Form 8288 attached.
WITHHOLDING FROM NONRESIDENT BUYERS. Similarly, since January 1,
1991, the sale of any "California real property interest" by a domestic
(U.S.) person or corporation (but not a partnership), that is not a
California resident, has generally been subject to California income
tax withholding at a rate equal to 3 1/3% of the SALES PRICE. (Not
the amount of the gain!) Exceptions are made where the sales price
does not exceed $100,000, or where the seller received a homeowner's
property tax exemption in the year of sale on the property, or in
certain other circumstances.
@CODE:EN
@CODE: SC
Also, if you buy realty in @STATE from a non-resident person,
you must withhold state tax equal to 7% (5% if paid to a corporation)
of the purchase price and generally remit the tax by the 15th of the
next month.
@CODE:EN
@CODE: HI
Hawaii legislation now requires that a buyer (or transferee) of Hawaii
real property from a nonresident to withhold Hawaii income tax at a
rate of 5% (9% before 8-1-91) of the amount realized by the seller,
unless the seller is exempt from recognizing gain or loss on the
transfer.
Persons required to withhold the tax are required to make a return of
the amount withheld no more than 20 days following the transaction. In
order to avoid having to withhold, the buyer must receive from the
seller an affidavit that either:
(a) the seller is a "resident person" (an individual
Hawaii resident, a corporation incorporated in Hawaii,
a partnership formed under Hawaii law, or a "resident
trust" or "resident estate"), or,
(b) is exempt from recognizing gain or loss on the
transaction under the U.S. Internal Revenue Code; or
(c) the property was the transferor's principal residence
and the amount realized did not exceed $300,000.