No withholding is required if the sale proceeds do not exceed $300,000 and the purchaser certifies that the property will be used as a residence for the period required under FIRPTA regulations. The buyer need not withhold if the foreign transferor gives written notice to the buyer that no recognition of any gain or loss on the transfer is required because of a non-recognition provision in the Internal Revenue Code, or a provision in a U.S. tax treaty, files this notice with the IRS within 20 days of the date of transfer and meets certain other conditions.
The most notable and most sought out of all exceptions is a withholding certificate from the IRS. As long as the application for a withholding certificate is filed in time, the buyer does not need to pay the withheld amount to the IRS but only hold it in an escrow account. Once the IRS approval of the no-withholding is received, the buyer can pay over the escrow amount to the foreign transferor.
A withholding certificate can be requested from the IRS under three circumstances:
- a claim solely on a calculation that shows that the transferor’s maximum tax liability is less than the tax otherwise required to be withheld
- a claim that the transferor is entitled to deferral of gain, e. g. under like-kind exchange rules
- a claim that the transferor is entitled to non-recognition treatment or is exempt from tax, e. g. under principal residence rules.
Ragini Subramanian, Manager, International Taxation, Marcum LLP, Greenwich, Connecticut, USA
Ragini Subramanian is a tax and business services manager at Marcum LLP, specializing in international taxation. She provides tax planning strategies for high net worth individuals and their associated entities, including foreign information reporting obligations and IRS and state audits, including OVDP representation.
Marcum LLP is a national accounting and advisory firm with offices in major business markets throughout the U.S., as well as Grand Cayman, China, and Ireland.(www.marcumllp.com)