FIRPTA withholding to increase next week

If you work with foreign nationals in your real estate business, be advised that the FIRPTA withholding rate on home sales exceeding $1 million will increase to 15% on February 16.

Also known as the Foreign Investment in Real Estate Property Tax Act, FIRPTA requires foreign persons to pay U.S. income tax on gains made from the sale of real estate in the United States. Home sales that do not exceed the $1 million dollar threshold are subject to a 10% withholding.

There is an exception to the FIRPTA withholding rule. If the sales price is below $300,000 AND the new buyer intends to use the property as a principal residence, then the home sale is not subject to FIRPTA withholding.

The duty of collecting the FIRPTA tax, owed by a foreign national seller, is imposed on the U.S. national buyer The amount that must be withheld can be lowered pursuant to the seller obtaining a withholding certificate from the IRS prior to closing.

In most instances, the settlement agent will actually collect the withholding from the foreign national seller and remit the funds to the IRS on behalf of the buyer. However, the buyer is held legally responsible for the proper withholding and, under the law, the buyer could be liable for any additional withholding tax, penalty and interest if ever challenged by the IRS.

To help you determine when FIRPTA withholding is required, and the rate to withhold, we created a simple flowchart that contains four easy questions. You can view it on our website and download a copy to share with your clients and colleagues.

Close It! House of the Week: Completely transformed in Glover Park

Close It! House of the Week: Completely transformed in Glover Park

This week we're looking at a 4-bedroom, 4.5-bathroom attached row house in the Colonial style with a fully finished basement that can be used as an in-law suite or a rental to help offset the mortgage. It's near the Naval Observatory in Glover Park, and it's listed at $975,000.

This house features two massive decks, a fantastic kitchen with pantry and a beautiful exposed brick wall in the entry way. It includes two parking spaces, and there's a Whole Foods and Starbucks nearby.

Click here for more photos.

Assuming a homebuyer puts down 20 percent on a conventional loan, her cash to close number will be approximately $$223,117.96. Monthly payments will then be around $4,219.40 per month.

For a complete picture of the cash to close on any property in the D.C. metro area, including the seller's side of the transaction, try the Close It™ Web app or download the free Close It™ iOS app.

FIRPTA withholding rate to increase to 15% for sales exceeding $1 million

FIRPTA withholding rate to increase to 15% for sales exceeding $1 million

Starting February 16, 2016, there will be changes to the Foreign Investment in Real Property Tax Act ("FIRPTA").

FIRPTA is a tax law passed in 1981 that requires foreign persons to pay U.S. income tax on the gains they make from selling U.S. real estate.

The duty is on the U.S. national buyer to deduct and withhold a portion of the sales price and report the sale to the IRS. Buyers can withhold less than the statutory amount if they obtain a determination of the specific amount of tax owed by the foreign national using IRS Form 8288-B.

In most cases, the settlement agent is the party that actually remits the funds to the IRS, but the buyer is held legally responsible. Additionally, until the tax is paid in full, the government obtains a security interest in the real property.

The 10% rate will still apply for those transactions in which the property is to be used by the Buyer as a residence, provided the sales price does not exceed $1,000,000, and the existing $300,000 “exemption” remains unaffected. So here are the new guidelines:

  • If the sales price is $300,000 or less, AND the property will be used by the Buyer as a residence (as provided for in the current regulations), no sums need be withheld or remitted.
  • If the sales price exceeds $300,000 but does not exceed $1,000,000, AND the property will be used by the Buyer as a residence, then the withholding rate is 10% on the full amount realized.
  • If the sales price exceeds $1,000,000, then the withholding rate is 15% on the entire amount, regardless of use by the Transferee.
  • Under the law, the Buyer is the withholding agent and is responsible for withholding and remitting the proper amount to the IRS and could be liable for any additional withholding tax, penalty, and interest if their intent is ever challenged by the IRS.

    The current FAR/BAR contract form contains language specifically referring to a 10% withholding. An amendment to the contract for closings scheduled on or after February 16, 2016 should be added to change the potential rate of withholding to 15%.

What to do when the home seller has dementia?

A Power of Attorney allows a person with dementia ("the principal") to name another individual ("the agent" or "attorney-in-fact") to make financial and other decisions when the person with dementia is no longer able. 

As with any Power of Attorney, the decision in regards to who to appoint as the attorney-in-fact should be made after careful consideration.

In addition, a successor agent should be named in the event the original agent is unavailable or unwilling to serve.  

The Power of Attorney does not give the appointed person the authority to override the decision making of the person with dementia. The person with dementia maintains the right to make his or her own decisions as long as he or she has legal capacity.

However, just because there is a Power of Attorney, it does not mean that the title company will allow it to be used for the sale of the property. If you plan on using a Power of Attorney for an individual with dementia, be prepared to answer the following questions: 

  1. When was the Power of Attorney executed?
  2. When was the principal diagnosed with dementia?
  3. What is going on with the current transaction?  
  4. How are the funds to be disbursed?
  5. Who is the attorney in fact and what is that person’s relation to the principal?

When dementia is involved, there is always a concern that the principal may not have been competent at the time the Power of Attorney was executed. 

The best way to persuade the title company to use the Power of Attorney is to obtain an affidavit from the principal’s physician setting forth the approximate date that the principal was diagnosed with dementia and a statement that at the time of the execution of the Power of Attorney, the principal was mentally competent and did have the capacity to understand the nature and significance of the Power of Attorney that he or she signed.  

Without this document, most title companies will hesitate to allow the use of a Power of Attorney for an individual with dementia, based on a fear that the Power of Attorney might in the future be declared invalid if it was executed after the principal lacked the capacity to make decisions. In the event of a future challenge to the validity of the Power of Attorney, the title company will want to prove that it properly vetted the validity of the document. 

So what can be done if the title company will not allow the use of the Power of Attorney and the individual is no longer able to make his or her own financial decisions?  

A guardian or conservator will need to be appointed by the court.   

A guardianship or conservatorship is not common, but it can be granted by the court when it finds that a person is totally or partially legally incapacitated. 

Since the procedure for obtaining a guardianship or conservatorship varies per jurisdiction, you should consult with an attorney if you are considering this possibility. 

Did you know? Tenant Opportunity to Purchase Act in Takoma Park, Maryland

If you have been involved in real estate in the DC metro area you have likely come across the DC Tenant Opportunity to Purchase Act. But did you know that Takoma Park, Maryland also has a Tenant Opportunity to Purchase Act ("TOPA")?

The intent of TOPA is to promote the conversion of rentals to owner-occupied housing. Not complying with TOPA does leave the possibility that a court of competent jurisdiction may declare the transfer of the property void.  

As with DC, there are exceptions to the tenant opportunity to purchase. Some transfers that are exempt include transfers to a family member, transfers under a court order, transfers to the State or a local government and transfers of a minority title interest.  For a complete list of exempt transfers, please visit Section 6.32.020 of the City of Takoma Park Municipal Code.   

As the title company, Federal Title will require proof that the seller delivered a written offer of sale at the same price and terms as the third party contract of sale to each tenant, any registered  tenant association, and the City of Takoma Park by first class mail or personal delivery and, except for single family homes, that the offer was posted in a common area.  

For single family homes, the tenant has seven days from the date of receipt of the written offer of sale to provide a written statement of interest, and the City of Takoma Park has 14 days. For properties with two to six units, a group of tenants acting jointly have 14 days, then seven additional days for any individual tenant, then seven more days for the City.  

For properties with seven or more units, a registered tenant association representing at least one-third of the occupied rental units in the rental facility and the City of Takoma Park each have 45 days. (Please note that properties involving four or more units in Takoma Park will also need to comply with Montgomery County’s Right of First Refusal laws).

Similar to DC’s TOPA laws, a tenant does have the right to waive the rights but only if supported by consideration. Also, the closing must take place within 6 months of the offer of sale being mailed or personally delivered. Federal Title will additionally require that both the purchaser and the seller sign a TOPA affidavit. 

This is just a summary of the City of Takoma Park TOPA laws, but the full text can be found at Chapter 6.32 Tenant Opportunity to Purchase.

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Our blog contains general information only, not intended to be relied upon as, nor a substitute for, specific professional advice. Rate tables and figures that appear on our blog are deemed reliable but not guaranteed. For current rates & policies, refer to our Quick Quote and Consumer Guide. We accept no responsibility for loss occasioned to any purpose acting on or refraining from action as a result of any material on our blog.