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- @049 CHAP 4
-
- ┌───────────────────────────────────────────────┐
- │INVESTORS IN U.S. REAL ESTATE: TAX WITHHOLDING│
- │REQUIREMENTS IF BUYING FROM NONRESIDENT 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 prop-
- erty) 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 per-
- son," 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 transac-
- tion, that the seller provide you with an affidavit certi-
- fying that the seller is not a nonresident alien or a for-
- eign company. If you are the buyer, your real estate agent
- or attorney who represents you in the transaction should be
- able to provide 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
- If you acquire VERMONT real estate from a nonresident, ex-
- cept in certain foreclosure transactions, you must withhold
- Vermont state income tax equal to 2.5% of the consideration
- paid for the property and remit the withheld tax to the
- Vermont Department of Taxes within 30 days, or YOU will be
- liable for the tax you failed to withhold.
-
- To protect yourself from such state tax liability, you need
- to obtain one of the following certificates:
-
- . A certificate by the seller stating, under penalty
- of perjury, that he or she is a Vermont resident; or
-
- . A certificate from the Vermont Tax Commissioner
- stating that no tax is due from gain on the transfer,
- or that the seller's tax liability on the transaction
- has been satisfied or adequately secured already.
-
- 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 exemptions, such as for land used for
- a personal residence). While this tax applies to the sel-
- ler, you (as buyer) are liable if you fail to withhold 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. The seller is required to file Form LG-2 within 30
- days after the sale or exchange and remit the balance of
- the tax due, if any, with the LG-2.
-
- Note that on a given transaction, it is possible that you
- could be required to withhold BOTH state income tax (at a
- 2.5% rate) and Land Gains Tax (at a 10% rate) from the
- amount you pay over to the seller.
-
- @CODE:EN
- @CODE: CA
- WITHHOLDING FROM FOREIGN BUYERS. California has also en-
- acted 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 per-
- son. 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, 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, is generally 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 to this withholding requirement are allowed
- 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 South Carolina from a nonresi-
- dent 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 trans-
- feree) of Hawaii real property from a nonresident to
- withhold Hawaii income tax at a rate of 5% 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 follow-
- ing 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 resi-
- dence and the amount realized did not exceed
- $300,000.
-
- @CODE:EN
- @CODE: CO
-
- Colorado enacted legislation (Colo. Rev. Stat. Section
- 39-22-604.5) in 1992, effective on January 1, 1993,
- that requires income tax withholding of 2% of the sales
- price (or of the net proceeds, if less) of Colorado
- realty. The tax withheld is treated as an estimated tax
- payment on behalf of the seller. Withholding is generally
- required on any real estate sale exceeding $100,000 where
- the seller is a non-resident individual, estate or trust,
- or a corporation without a permanent place of business in
- the state.
-
- There are various exceptions, such as where the property
- is claimed to be the seller's principal residence, for
- example. Persons required to withhold must file state
- Form DR1083 (information return) and a Form DR 1079 with
- the tax payment, within 30 days after closing of the
- transaction.
-
- @CODE:EN
-
-