FIRPTA — Foreign Investment in Real Property Tax Act
FIRPTA (IRC sections 897 and 1445) requires withholding on gains from dispositions of US real property interests (USRPIs) by foreign persons. This applies to Palace Fund’s Korean investors if the fund invests in US real estate or in companies that are US real property holding corporations.
What FIRPTA Covers
FIRPTA treats a foreign person’s gain or loss from disposing of a USRPI as effectively connected income (ECI), taxable at regular US tax rates. Without FIRPTA, non-US investors could sell US real estate and leave the country without paying US tax on the gain.
US Real Property Interest (USRPI) includes:
- Direct ownership of US land, buildings, and other real property
- Interests in a partnership (like Palace Fund) to the extent the partnership holds USRPIs
- Stock in a US real property holding corporation (USRPHC) — a US corporation where USRPIs make up 50% or more of total assets
- Certain leaseholds, options, and mineral rights
Not USRPIs:
- Interests in domestically controlled REITs (if US persons hold 50%+ of the REIT)
- Debt instruments secured by real property (unless they provide equity participation)
- Stock in corporations that are not USRPHCs
Withholding Rules
Section 1445 — Disposition of USRPIs
When a foreign person disposes of a USRPI, the buyer must withhold 15% of the amount realized (gross sale price, not gain).
| Situation | Withholding Rate |
|---|---|
| General rule | 15% of amount realized |
| Residence purchased for 1,000,000 (buyer will use as residence) | 10% of amount realized |
| Residence purchased for $300,000 or less (buyer will use as residence) | 0% |
| USRPHC distribution | 15% of distribution amount |
| Withholding certificate obtained from IRS | Reduced rate per certificate |
Section 1446(a) — Partnership Withholding on ECI
When the fund earns income effectively connected with a US trade or business (including FIRPTA gains), it must withhold on the foreign partner’s share:
- 37% withholding rate on ECI allocable to non-corporate foreign partners
- This is the general ECI withholding; FIRPTA gains flow through as ECI
Section 1446(f) — Transfer of Partnership Interest
When a Korean investor sells or transfers their fund interest:
- The transferee (buyer) must withhold 10% of the amount realized
- Applies if any of the fund’s assets include USRPIs
- The fund itself has a backup withholding obligation if the transferee fails to withhold
Exception: No withholding required if the fund certifies that less than 50% of its gross asset value is attributable to USRPIs and less than 90% of its gross income is ECI in certain testing periods.
How This Applies to Palace Fund
If Palace Fund Invests in US Real Estate Directly
The fund holds USRPIs. On sale of the property:
- The fund recognizes FIRPTA gain
- The gain passes through to Korean investors as ECI
- The fund must withhold under section 1446(a) at 37% on the Korean investors’ share of the gain
- Korean investors file Form 1040-NR and may get a refund if actual tax liability is less than the withholding
If Palace Fund Invests in US Stocks or Other Non-Real-Property Assets
FIRPTA does not apply unless the fund holds stock in a USRPHC. Most publicly traded companies are not USRPHCs. For private companies, evaluate whether USRPIs constitute 50%+ of assets.
If a Korean Investor Exits the Fund
If the fund holds USRPIs at the time of the transfer:
- The buyer of the fund interest must withhold 10% under section 1446(f)
- The fund must provide a statement to the buyer indicating whether the exception applies
- If the fund is not a USRPHC-equivalent (less than 50% USRPIs), the fund can provide a certification to avoid withholding
Withholding Certificates
The fund or the foreign investor can apply to the IRS for a withholding certificate (Form 8288-B) to reduce withholding if the actual tax liability is expected to be less than the default withholding amount. This is common when:
- The property was sold at a loss
- The gain is small relative to the gross proceeds
- Installment payments are involved
Processing time is typically 90 days, so apply well before closing.
US-Korea Tax Treaty
The US-Korea income tax treaty generally does not override FIRPTA. Article 13 (Capital Gains) preserves the US right to tax gains from real property. However:
- Korean investors can claim a credit in Korea for US taxes paid on FIRPTA gains
- The treaty may affect the characterization of certain income types
Reporting Requirements
| Form | Who Files | Purpose |
|---|---|---|
| Form 8288 | Buyer/withholding agent | Report and remit FIRPTA withholding |
| Form 8288-A | Buyer/withholding agent | Statement of withholding to foreign seller |
| Form 8288-B | Seller/transferor | Application for reduced withholding |
| Form 1040-NR | Korean investor | Annual return to report FIRPTA income and claim credits |
| Form 8805 | Partnership (the fund) | Foreign partner’s share of section 1446 withholding |
Action Items
- Assess whether any current or planned fund investments constitute USRPIs
- If investing in real estate: implement section 1446(a) withholding procedures at 37% on Korean investors’ share of FIRPTA gains
- Prepare a fund-level certification for section 1446(f) purposes (to provide to buyers if Korean investors transfer their interests)
- Track the fund’s USRPI percentage quarterly to determine if exceptions to withholding apply
- Engage a tax advisor to prepare Forms 8288/8805 when FIRPTA withholding events occur
- Inform Korean investors of their obligation to file Form 1040-NR for FIRPTA income
- Consider applying for withholding certificates (Form 8288-B) in advance of large real property dispositions