FIRPTA — the Foreign Investment in Real Property Tax Act — was enacted in 1980 to ensure that foreign sellers of US real property pay US capital gains tax, just as US citizens and residents do. For international investors considering US property, understanding FIRPTA is non-negotiable: it affects your sale proceeds, your buyer pool, and your exit timeline.
The Core Mechanism
When a foreign person sells a US Real Property Interest (USRPI), the buyer is required by law to:
- Withhold 15% of the gross sale price (or a lower applicable rate).
- Remit the withheld amount to the IRS within 20 days of closing.
- File IRS Forms 8288 and 8288-A to report the withholding.
The withheld amount is treated as a prepayment of the foreign seller's capital gains tax. If the actual tax is lower (or zero), the seller files a return and claims a refund.
Who Is a "Foreign Person" Under FIRPTA?
A foreign person for FIRPTA purposes includes:
- Non-resident alien individuals — those who are not US citizens and do not meet the substantial presence test or green card test
- Foreign corporations (not incorporated in the US)
- Foreign partnerships, trusts, and estates
- Certain US partnerships or trusts with foreign partners/beneficiaries
FIRPTA Withholding Rates in 2026
Note: The withholding is on gross proceeds, not the gain. If you sell a $2m property with a $500k cost basis and $1.5m gain, the buyer withholds $300,000 (15% of $2m) — not 15% of the $1.5m gain.
Exemptions from FIRPTA
Not all US property transactions trigger FIRPTA withholding:
- Personal-use residence under $300,000 — buyer must sign an affidavit of intent to use as a residence for at least 50% of the time during 24-month periods
- Seller is not a foreign person — evidenced by a non-foreign affidavit (Form W-9 / FIRPTA affidavit)
- Withholding Certificate issued — IRS reduces withholding to actual estimated tax (Form 8288-B)
- Qualified substitute statement by the buyer's title company
- US Publicly traded REIT shares — generally exempt
The Withholding Certificate: Your Best Tool
If you plan to sell US property and the standard 15% withholding would significantly exceed your actual tax liability, apply for a Withholding Certificate (Form 8288-B) before or at closing. The IRS typically processes these in 90 days, but you must request it in advance and coordinate with your closing agent.
The certificate lets the IRS reduce the required withholding to the actual estimated capital gains tax, which could be substantially less than 15% of gross proceeds — especially if you have a high cost basis or significant allowed depreciation.
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FIRPTA is a disposition tax — it applies when you sell. For ongoing rental income, different rules apply:
- 30% gross withholding on rental income paid to foreign persons (unless a tax treaty reduces this)
- Net income election under IRC §871(d): by attaching Form W-8ECI and filing Form 1040-NR, you elect to be taxed on net rental income at graduated US rates (typically 10–37%) — often more favourable than 30% gross withholding
- State income tax may also apply (California: up to 13.3%; New York: up to 10.9%)
Tax Treaty Interactions
The US has DTTs with over 60 countries. Treaties may:
- Reduce or eliminate the 30% withholding rate on rental income
- Affect capital gains treatment (though FIRPTA overrides most treaty capital gains exemptions for real property)
- Provide exemptions for certain types of investors (pension funds, sovereign wealth funds)
Importantly, FIRPTA was designed so that treaty capital gains provisions do not generally override it for direct real property interests — meaning foreign investors rarely escape FIRPTA withholding via treaty even if their home country has a US DTT.
Practical Steps for Foreign Investors
- Obtain a US Taxpayer Identification Number (ITIN or EIN) before investing — required for all US tax filings.
- Make the net income election for rental income (Form W-8ECI) to pay tax on profits rather than gross receipts.
- Track your adjusted cost basis carefully: depreciation recapture at 25% applies to the accumulated depreciation on sale.
- Apply for a Withholding Certificate before a planned sale — don't let the buyer withhold 15% of gross if your actual tax is much lower.
- File Form 1040-NR for each year you have US property income or a disposition.
- Check FBAR/FATCA obligations if you hold US bank accounts or other reportable foreign financial assets in relation to the investment.
Conclusion
FIRPTA is a complex but navigable part of US property investment for foreign nationals. The key is preparation: establish your ITIN early, make the net income election for rentals, plan your exit strategy well in advance of any sale, and apply for a withholding certificate to avoid over-withholding at closing. Bordex's Tax Calculator models FIRPTA scenarios alongside rental income tax obligations so you can assess your true net return on US real estate before committing capital.