Foreign ownership of US real estate presents a complex intersection of US income, withholding, and transfer tax rules that often differ substantially from those applicable to domestic investors.

While the US market remains attractive to foreign individuals and entities seeking stability and diversification, cross-border ownership introduces additional layers of tax exposure, compliance obligations, and structural planning considerations. Issues such as the characterization of rental income, the application of the Foreign Investment in Real Property Tax Act (FIRPTA) on dispositions, and the reach of US estate and gift taxes can materially affect an investor’s after-tax outcome.

Without proper planning and due diligence at the outset, foreign investors may become subject to unintended income and withholding tax consequences that could have been mitigated—or entirely avoided—with appropriate structuring and advice.

Examine the principal US tax considerations associated with foreign investment in US real property to balance income tax efficiency, administrative compliance, and estate planning objectives that can facilitate effective tax planning.

US Income Tax Treatment of Real Estate Investments

From a US income tax perspective, the characterization of income derived from real estate investments is critical in determining how that income will be taxed and reported. Rental income earned by a foreign investor can generally fall into one of two categories:

• Effectively Connected Income (ECI)
• Fixed, Determinable, Annual, or Periodic (FDAP) income

If the rental activity rises to the level of a US trade or business—for example, where the investor or a local agent actively manages and operates the property—the rental income is typically treated as ECI. In this case, it’s taxed on a net basis, allowing deductions for related expenses such as property taxes, depreciation, insurance, and maintenance. The resulting taxable income is subject to US tax at the graduated rates applicable to individuals (up to 37%) or corporations (21%).

Conversely, if the rental activity is more passive in nature, the rental income is generally treated as FDAP income and taxed on a gross basis at a flat 30% withholding rate, unless a lower treaty rate applies. Because no deductions are permitted against FDAP income, the effective tax burden may be significantly higher than under the ECI taxing regime.

The determination of whether the rental activity rises to the level of a US trade or business is largely based on facts and circumstances, which may change from year to year.

To avoid the potentially unfavorable treatment of passive rental income, a foreign investor may make an election under IRC §871(d) or §882(d) to treat the income as ECI. This election enables the investor to report income on a net basis, deducting the associated operating expenses, which often results in a more favorable overall tax outcome.

Issues to Avoid

Proper documentation, timely elections, and compliance with tax return filing requirements are critical to managing US tax exposure for foreign investors in real property, such as:

• Keep a valid Form W-8 on file with payors. This includes Form W-8BEN for individuals or Form W-8BEN-E for entities, or a W-8ECI for trade or business income. This practice ensures that income is correctly characterized and that the appropriate withholding rate—including any treaty-reduced rate—is applied. Failure to provide a valid form can result in automatic 30% gross withholding and administrative complications when reclaiming overpaid tax.
• Make the real property election under IRC §871(d) or §882(d) to treat rental income as effectively connected with a US trade or business can substantially reduce overall tax liability by allowing deductions for property-related expenses.
• File a US tax return to preserve any rental property losses for future use. Proper filing allows the losses to be carried forward to offset future rental income or gain on sale, and it supports the investor’s real property election under IRC §871(d) or §882(d). Skipping the filing can forfeit these tax benefits and limit future deductions.

These seemingly procedural steps often have material financial consequences. Overlooking them can lead to unnecessary withholding, loss of deductions, and increased compliance burdens that could otherwise be avoided through proper planning and documentation.

Disposition of US Real Property Interests and FIRPTA Withholding

When a US real property interest is ultimately sold, the disposition is governed by the Foreign Investment in Real Property Tax Act (FIRPTA).

Under FIRPTA, gain realized by a foreign person on the sale of a US real property interest is treated as ECI and subject to US tax. To ensure collection, the buyer is required to withhold 15% of the gross sale price, not the seller’s gain, and remit it to the IRS, unless an exemption or reduced withholding certificate applies. The foreign seller must then file a US income tax return to report the transaction and reconcile the actual tax due, which may result in either an additional payment or a refund of excess withholding.

Foreign investors can use Form 8288-B to reduce the FIRPTA withholding. Form 8288-B is filed with the IRS to request a withholding certificate, which may authorize reduced withholding based on the seller’s expected tax liability, or no withholding, if the seller qualifies for an exemption. Requests for reduced withholding require accurate information about the property, seller’s basis, and estimated tax liability.

When deciding whether to file Form 8288-B to reduce FIRPTA withholding, several factors should be carefully considered including:

• Estimated tax liability. If there’s a large discrepancy between the 15% of gross sale price and the estimated tax liability on the gain, Form 8288-B could be used to reduce over-withholding.
• Timing of the disposition. If the property is sold early in the seller’s tax year, filing Form 8288-B to request reduced withholding can allow the seller to retain more cash at closing. Conversely, if the sale occurs near the end of the tax year, the seller may choose to have the full FIRPTA withholding applied and then file a US tax return shortly after closing to claim a refund of any overpayment, rather than requesting a withholding certificate in advance.
• Coordination with withholding agent. While the buyer is legally responsible for correctly withholding and remitting FIRPTA taxes, the escrow company handling the closing often helps with compliance. IRS processing of Form 8288-B can take several months, and escrow companies’ policies regarding whether they will temporarily hold the withheld funds before remitting them to the IRS can vary. Foreign sellers should confirm the escrow company’s procedures before preparing and submitting Form 8288-B.

Issues to Avoid

FIRPTA compliance is a critical consideration for foreign investors, but it also presents several potential pitfalls that can lead to unintended tax consequences if not properly managed.

• Foreign owners should obtain a U.S. tax identification number (TIN) well in advance of selling their US real property interest by filing Form SS-4 (for an EIN) or Form W-7 (for an ITIN). Withholding and remitting FIRPTA taxes to the IRS without a TIN for the foreign seller can create significant issues in matching the payments to the seller, potentially delaying processing and refunds.
• FIRPTA applies not only to direct sales of real property but also to certain sales of US real property interests in entities such as corporations or partnerships, making structuring decisions at the acquisition stage critical to mitigate withholding risk and preserve liquidity.
• While FIRPTA represents the federal income tax framework for withholding on dispositions of U.S. real property interests, many states impose similar withholding requirements at the local level. These state-level rules can differ significantly, with some jurisdictions requiring withholding on the gross sales price and others on the net gain. For foreign investors, failure to anticipate or plan for these state obligations can result in unexpected liquidity constraints, additional administrative burden, and delayed refunds. As a result, both federal and state withholding requirements should be carefully considered in the structure

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Additional Resources

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