Investing in a real estate market in another country can be challenging. When investing in the U.S. real estate market, there are U.S. tax considerations and certain investment structures foreign investors should consider.
Federal Income Tax on Operating Income
In general, foreign investors are subject to U.S. income tax under one of two regimes: effectively connected income (“ECI”) or passive income. ECI is generally taxed on a net basis at regular rates applicable to U.S. persons. U.S. source passive income (e.g., dividends, rent and interest) is taxed on a gross basis at a 30 percent withholding rate (or a reduced treaty rate, if applicable). In addition, foreign corporations investing directly to the U.S. are normally subject to U.S. branch profits tax.
Federal Income Tax on Gains
Under Foreign Investment in the U.S. Real Property Tax Act (“FIRPTA”), if a foreign person benefits from a U.S. real property interest (“USRPI”), it will be taxed as if it was ECI. Additionally, when FIRPTA tax applies, the purchaser of a USRPI is required to withhold 15 percent of the purchase price.1
U.S. Estate and Gift Taxes
High net worth foreign individuals are generally subject to estate and gift taxes on property located in the U.S., including real property and tangible personal property. The transfer by a foreign investor of an intangible property, such as stock in a U.S. or foreign corporation, is not subject to U.S. gift tax. However, a transfer of stock in a U.S. corporation triggers U.S. estate tax.
Direct Investment Structure
A foreign investor may choose to invest in U.S. real estate directly or through a single-member U.S. LLC. Under this structure, since a U.S. LLC is generally transparent for U.S. tax purposes, the foreign investor needs to file U.S. income tax returns.
The downside of this structure is that, upon a tax audit, U.S. tax authorities may examine the foreign investor’s worldwide transactions. In addition, direct ownership of U.S. real property is subject to both U.S. estate and gift tax.
U.S. Blocker Structure
An investment can also be made through a U.S. corporation, which is commonly referred to as a “U.S. Blocker”. The U.S. Blocker is required to file corporate income tax returns. Starting in 2018, U.S. corporations and non-U.S. corporations with U.S. business income (including real property income or gains) are subject to U.S. federal corporate income tax of 21 percent (instead of 35 percent under the prior law).
When there are multiple purchases, the real estate can be purchased by a U.S. LLC which is owned by the U.S. Blocker. The benefits under this structure are that the foreign investor is not required to file U.S. income tax returns and transfers of the stock in a U.S. Blocker are not subject to U.S. gift tax. The downside of this approach is that dividends from a U.S. Blocker to the foreign investor are generally subject to U.S. withholding tax.
Dual Blocker Structure
Under a dual blocker structure, the foreign investor owns a non-U.S. corporation (“Foreign Blocker”), which in turn owns a U.S. corporation (“U.S. Blocker”) that purchases the interests in U.S. real estate. The benefits under this structure are that the Foreign Blocker is not required to file U.S. income tax returns, transfers of stock in the Foreign Blocker are not subject to U.S. estate or gift taxes and gain from sales of the real estate investments by the U.S. Blocker are not subject to the FIRPTA withholding tax.
In addition to the above commonly used structures, more complex structures, such as a two-tier partnership structure or a structure involving a U.S. or foreign trust, may offer higher U.S. tax savings. Pros and cons under each structure should be evaluated based on specific situations of the foreign investor.
Barry Wen is a partner in BPM’s tax practice. Contact Barry at [email protected] or 408-961-6316.
1USRPI includes direct interests in U.S. real property and interests in a U.S. Real Property Holding Corporation (“USRPHC”). “In general, a U.S. corporation is a USRPHC if the fair market value (“FMV”) of its USRPIs is 50% or more of the total FMV of its real property and other business assets. See Reg. Sec. 1.897-2(b).”
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