A non-US investor considering acquiring exposure to US real estate through a financial instrument should be aware of the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA). FIRPTA subjects a non-US investor to US tax on gain on the disposition of a "US real property interest" (USRPI) by creating the fiction that the non-US investor is engaged in a US trade or business and by treating the gain or loss from the disposition as effectively connected to such business. Under the statute, a USRPI includes "an interest in real property (including an interest in a mine, well, or other natural deposit) located in the US." USRPIs also include options or contracts to acquire land or land improvements and leaseholds of land or land improvements. Under FIRPTA, then, a non-US investor is generally subject to tax at regular rates on any gain realised on the sale of real estate. The regular US income tax rate is 35%, although individuals may qualify for a rate as low as 15% on capital gain, if certain holding period requirements are satisfied.
December 10, 2008