Magazine article Journal of Property Management

Property Managers with Foreign Investor Clients (What You Should Know)

Magazine article Journal of Property Management

Property Managers with Foreign Investor Clients (What You Should Know)

Article excerpt

Unless a tax treaty exists between the U.S. and a specific country, foreign owners, including estates, corporations, nonresident aliens, and partnerships, pay a flat 30 percent withholding tax on the rents produced by their U.S. real estate investments. This tax applies unless foreigners' investments are connected with a U.S. trade or business or the foreign owner has made an election with the Internal Revenue Service to be taxed on a net basis. (Having rental income taxed on a net basis after deductions for costs or operations, maintenance, and carrying charges usually results in a lower overall tax for the foreign owner.) On the other hand, U.S. citizens and residents, both individuals and corporations, are not subject to this withholding tax.

This 30-percent withholding tax is calculated on the gross amount of the rents generated by the property without allowable deductions for interest, depreciation, repairs, management and association fees, insurance, real estate taxes, or other expenses of owning and operating the property.

Managers as Agents

Since the IRS has no jurisdiction to collect this tax against a person residing in a foreign jurisdiction, the law generally designates the U.S. person who has the last contact with the money before it leaves the U.S. as a "withholding agent." The withholding agent is charged with the responsibility for paying over the 30-percent withholding directly to the IRS. Failure to do so can result in the withholding agent being personally liable for payment of the tax, plus interest and penalties.

For rental real estate, the withholding agent is typically the property management company that collects the rent from the tenants, pays the expenses of owning and operating the property, and remits the balance to the owner. Unfortunately, the property management company is often blissfully ignorant of the implications and potential for liability that the designation of withholding agent brings under law.

Avoiding the Withholding Tax: Foreign Owners

Because of this potential tax liability, the property manager needs to know with certainty whether its foreign client is subject to the withholding tax or whether the client is exempt from withholding. For the foreign investor, there are two ways to qualify for an exemption from the withholding tax and, instead, pay its fair share of income tax on a net basis after deductions.

Trade or Business. The first way a foreign person can achieve exemption from the withholding tax and be taxed on a net basis is to qualify its real estate operations as being "engaged in a U.S. trade or business." Unfortunately, there is no hard and fast rule for determining when a foreign investor's real estate operations rise to the level of a U.S. trade or business. Instead, the legal test is based on the nature and extent of the foreign investor's activities in the U.S., which leaves the foreign investor looking to various court cases for guidance.

Resolution of one's status as not being engaged in a U.S. trade or business (and thus, subject to withholding taxes) under these cases can be fairly determined if the foreign person's activities are very limited, such as owning one rental property leased on a triple-net basis. Moreover, it is fairly dear from the court cases that a foreign investor will be considered to be engaged in a U.S. trade or business if the foreign investor's activities are considerable, regular, and continuous with regard to his or her properties. For example, owning several properties and being involved directly (or through an agent) in lease negotiations, maintenance and repairs, collection of rents, payment of operating expenses, and performing record keeping, would almost certainly qualify a foreign owner for this classification. However, should a foreign investor's activities fall within these two extremes, it may be difficult to gauge the character of the investment, which leaves the foreign owner and the property manager to guess. …

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