Tax Challenges for Foreign Investors in U.S. Real Estate

Transcription

1 Presenting a live 90-minute teleconference with interactive Q&A Tax Challenges for Foreign Investors in U.S. Real Estate Navigating the Legal Considerations of Acquiring, Owning and Disposing of U.S. Real Estate THURSDAY, MAY 29, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Ruben Flores, Jr., President, Flores Group, San Antonio Joshua A. Kaplan, Partner, Bilzin Sumberg, Miami The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 OVERVIEW OF FOREIGN INVESTMENT IN U.S. REAL ESTATE Ruben Flores, CPA & ATTORNEY THE FLORES GROUP Corporate Tax Business Advisors San Antonio Office: Houston/Woodlands Office: 7272 Wurzbach Rd. Suite Timerbloch Place, Suite 200 San Antonio, TX The Woodlands, TX (210) (281)

6 TRENDS IN FOREIGN INVESTMENT U.S.A. has seen a dramatic increase in foreign investment because of various factors: Good investment opportunity Rising crime and violence in some foreign countries Better educational and economic opportunities for the family Business relocation and domiciliation 6

7 FOREIGN INVESTMENTS IN THE UNITED STATES According to the U.S. Bureau of Economic Analysis, Foreign Direct Investments into the U.S. were: $206 Billion $230 Billion $166 Billion $234 Billion In 2013, more foreign direct investment dollars flowed to the U.S. than to any other single country in the world. 7

8 TOP GLOBAL CITIES 1. New York (#1 last year) 2. London ( #2 last year) 3. San Francisco (#3 last year) 4. Houston (#5 last year) 5. Los Angeles (#14 last year) * According to survey of member of the Association of Foreign Investors in Real Estate (AFIRE) 8

9 MOST STABLE AND SECURE COUNTRIES FOR FOREIGN INVESTMENT 1. United States (#1 last year) 2. Germany (#3 last year) 3. United Kingdom (# 5 last year) 4. Canada (#2 last year) 5. Australia (# 4 last year) * According to survey of member of the Association of Foreign Investors in Real Estate (AFIRE) 9

10 COUNTRIES PROVIDING THE BEST OPPORTUNITY FOR CAPITAL APPRECIATION 1. United States (#1 last year) 2. China (#3 last year) 3. Spain (#5 last year, tied with Australia and Mexico) 4. Australia tied with Mexico (last year, Australia and Mexico were tied for # 5 along with Indonesia) 5. United Kingdom (unranked last year) 10

11 TOP FIVE U.S. CITIES 1. New York (#1 last year) 2. San Francisco (#2 last year) 3. Washington, D.C. (#3 last year) 4. Houston (#4 last year) 5. Los Angeles (#6 last year) * According to survey of member of the Association of Foreign Investors in Real Estate (AFIRE) 11

12 TOP FIVE U.S. PROPERTY TYPES 1. Industrial (#2 last year) 2. Office (#4 last year) 3. Retail (#3 last year) 4. Multi- family (#1 last year) 5. Hotel (#5 last year) * According to survey of member of the Association of Foreign Investors in Real Estate (AFIRE) 12

13 CRITICAL ISSUES FOR THE FOREIGN PERSONS Best financial and business opportunities in U.S. real estate Legal and tax implications of investing in U.S. real estate U.S. immigration status and options U.S. tax status and obligations Best legal forms for a foreign person to invest in U.S. real estate 13 13

14 CONCLUSION Foreign investment in U.S. real estate will continue despite the legal and tax complexities, that await foreign investors because of: 1. Stable market 2. Potential capital appreciation 3. Proximity to consumer markets 4. Political stability 5. Instability of foreign markets 14

15 INCOME TAX CHALLENGES FOR THE FOREIGN INVESTOR IN U.S. REAL ESTATE Ruben Flores, CPA & ATTORNEY THE FLORES GROUP Corporate Tax Business Advisors San Antonio Office: Houston/Woodlands Office: 7272 Wurzbach Rd. Suite Timerbloch Place, Suite 200 San Antonio, TX The Woodlands, TX (210) (281)

16 INCOME TAX CHALLENGES FOR THE FOREIGN INVESTOR A foreign investor in U.S. real estate has many challenges to overcome to achieve successful returns and investment in U.S. real estate. Besides the market and financial challenges, he/she must determine the tax challenges that must be considered in their planning and structuring of their investments and operations in the U.S. 16

17 INCOME TAX CHALLENGES FOR THE FOREIGN INVESTOR Some of the specific challenges and issues that a foreign investor should consider are: 1. How can a foreign investor avoid classification as a U.S. resident for both income tax and estate tax purposes? 2. How will the immigration status and/or physical presence of the foreign investor in the U.S. affect his/her tax obligations? 3. Should the foreign person invest as an individual, U.S. corporation, or foreign corporation? 4. When will the foreign investor be subject to FIRPTA, and how can they avoid it? 5. When will rental income be considered passive income subject to withholding or business income subject to taxation on a net basis? 17

18 TAXATION OF FOREIGN INVESTORS IN U.S. REAL ESTATE The first determination that a foreign investor in real estate must make is whether the investor is considered a U.S. person for U.S. income tax purposes, because : 1. U.S. persons are subject to worldwide taxation, IRC 61(a) 2. Foreign persons are subject to taxation of U.S. source income. IRC 871(b) & 882(a) 18

19 DEFINITION OF U.S. PERSONS IRC SEC. 7701(a)(30) Definition of U.S. persons: 1. U.S. citizens- Born or naturalized in the U.S. 2. Resident Aliens- Green card test and substantial presence test 3. Domestic corporations- Corporations created or organized in the U.S. 4. Domestic Partnerships- Partnerships created or organized in the U.S. 5. Domestic Estates- Any Estate if subject to U.S. taxation of worldwide income 6. Domestic Trust Any trust if U.S. tax court has jurisdiction over the administration and one or more U.S. persons have authority to control all substantial decisions of the trust If a foreign investor is classified as a U.S. person then he/she will be taxed on worldwide income not just U.S. source income. 19

20 DEFINITION OF RESIDENT ALIEN IRC SEC. 7701(b)(1)(A) Foreign investors in U.S. real estate must carefully monitor their presence in the U.S. and carefully make any immigration decisions because of the income tax implications The U.S. taxes foreign individuals (aliens)based on their residency status: 1. Residents taxed on worldwide income 2. Non- residents taxed on U.S. source income A foreign individual is considered a U.S. resident for tax purposes in any calendar year that he/she meets either the: 1. Green card test 2. Substantial presence test 20

21 RESIDENCY TEST & ISSUES Some foreign investors with substantial U.S. real estate investments or business may consider changing their immigration status to better oversee and manage their investments, or may find themselves spending substantial amount of time in the U.S. The foreign investors should determine if they satisfy either of the two tests for residency: 1. Green card Test 2. Substantial presence test 21

22 RESIDENCY TESTS Green Card Test- An alien individual is treated as a U.S. resident for a calendar year if, at any time doing the calendar year, the individual is a lawful permanent resident of the U.S. (IRC 7701 (b)(1)(a)(i)) 1. Based on the legal privilege of residing in the U.S. 2. Considered U.S. residents for tax purposes, regardless of whether they are actually physically present in the U.S. 3. The residency starting date is the first day the tax payer is present in the U.S. with a green card 22

23 RESIDENCY TESTS Substantial Presence Test- A foreign individual who does not have a green card, but is physically present for 183 days or more in the U.S. is considered a U.S. resident for tax purposes. (IRC 7701(b)(3)) 1. Days present in the U.S. are determined over a three year period based on different ratios/percentages for each year. (100% current year + 1/3 First preceding year + 1/6 second preceding year) 2. A day is counted if the foreign individual is/was physically present during any part of the day. 3. The individual must be present in the U.S. at least 31 days during the current calendar year to be considered a resident for that year. 4. If residency is established under substantial presence test then residency begins the first day physically present in the U.S. 23

24 EXCEPTIONS & DEFENSES TO RESIDENCY CLASSIFICATION If the foreign Real Estate investor finds that he/she has spent a substantial amount of time in the U.S. and wants to avoid classification as a U.S. resident for tax purposes, there are two options 1. Closer Connection Exception 2. Treaty Exceptions 24

25 EXCEPTIONS & DEFENSES TO RESIDENCY CLASSIFICATION Closer connection exception (IRC 7701(b)(3)(B)) provides that an individual that meets the substantial presence test will not be considered a U.S. resident for tax purpose if: 1. The individual is present in the U.S. for less than 183 days during current year 2. The individual has a tax home for the current year in a foreign county 3. The individual has a closer connection to that foreign county (based on facts and circumstances) 4. This exception does not apply if the alien has applied for a green card. 25

26 EXCEPTIONS & DEFENSES TO RESIDENCY CLASSIFICATION The Closer Connection Exception is made on form 8840 and filed with the individuals personal tax return. 26

27 EXCEPTIONS & DEFENSES TO RESIDENCY CLASSIFICATION Treaty Exception The U.S. has tax treaties with several countries that allow foreign people to avoid classification as U.S. residents for tax purposes, if they satisfy treaty tiebroker provisions. The U.S. Model Income Tax Convention, Article 4 provides four factors to determine residency: 1. Location of permanent home available 2. Location of center of vital interests 3. Location of habitual abode 4. Nationality of the person The treaty exception is filed on Form 8833 and filed with the personal tax return. 27

28 SOURCING RULES FOR U.S. REAL PROPERTY The foreign investor should be aware that income from the sale of rentals of U.S. real property is considered U.S. source income and subject to taxation, regardless of the residency of the foreign investor: 1. Rental Income has its source where property is located or used (IRC 861 (a)(4) & ( IRC 862 (a) (4)) 2. Real Property gains has its source where the property is located. (IRC 861(a)(5) & IRC 862 (a)(8)) 28

29 SOURCING RULES FOR U.S. REAL PROPERTY However, for compensation, interest, and other types of income, the source rules are based on where the services are provided or the location of the person/company/ debtor. These provisions should be considered carefully in structuring the financing, management, and ownership of the investment: 1. Compensations/ management fees sourced at the place the services are provided 2. Interest Sourced at the location of the debtor 3. Dividends Sourced at the place of the incorporation 29

30 TAXATION OF DOMESTIC CORPORATION & FOREIGN CORPORATION A foreign investor in real estate may want to consider using a corporation or partnership to invest in U.S. real estate- the question is whether it should be a domestic or a foreign entity. 1. A U.S. Corporation or Partnership is any corporation or partnership organized in the U.S., and is taxed on worldwide income. (IRC 7701(a)(4)) 2. A foreign corporation or partnership is any corporation or partnership organized in a foreign jurisdiction, and is taxed on U.S. source income (IRS 7701(a)(5)) 30

31 TAXATION OF DOMESTIC CORPORATION & FOREIGN CORPORATION The advantages and disadvantages of using a U.S. corporation to invest in Real Estate are: + Asset Protection + U.S. Corporation not object to FIRPTA rules + Easier for estate and gift tax planning - No capital gains rate - Foreign shareholders subject to FIRPTA - Individual shareholders subject to estate tax 31

32 TAXATION OF DOMESTIC CORPORATION & FOREIGN CORPORATION The advantages and disadvantages of using a foreign corporation are: + Asset protection + Foreign shareholders not subject to FIRPTA + Foreign shareholders not subject to estate tax on shares in foreign corporation - No capital gains rate - Branch profits tax may apply - Foreign corporation subject to FIRPTA 32

33 TAXATION OF DOMESTIC PARTNERSHIP & FOREIGN PARTNERSHIP The advantages and disadvantages of using a domestic partnership are: + Asset protection for limited partners + Ability to joint venture with others + No gift tax transfer of partnership interest - Partnership will have to withhold on partner s share of ECI (IRC 1446(a)) - FIRPTA applies to sale of property or partner s interest - Individual partners subject to estate tax on their partnership interest 33

34 TAXATION OF DOMESTIC PARTNERSHIP & FOREIGN PARTNERSHIP The advantages and disadvantages of using a foreign partnership are: + Asset protection for limited partners + Ability to joint venture with limited partners + No gift tax on transfer of partnership interest + No tax returns required if no ECI or FDAP - Partnership will have to withhold on partner s share of ECI (IRC 1446(a)) - FIRPTA applies to sale of property or partner s interest - Individual partners subject to estate tax on their share of underlying U.S. property. 34

35 INCOME TAX CHALLENGES FOR THE FOREIGN INVESTOR A foreign investor in U.S. real property has some specific tax provisions to consider that may affect the way that he/she structures and operates his/her investments: 1. FIRPTA: U.S. Person vs. Foreign Person 2. Long Term Capital Gains Rate: Individual vs. Corporation 3. Rental Income: Gross Basis Taxation vs. Net Basis Taxation 4. Estate Tax: Individual vs. Foreign Corporation 35

36 LONG TERM CAPITAL GAINS FROM SALES OF REAL PROPERTY Long term capital gains of individual investors taxed at favorable rate of 20%, where as corporations it is taxed at the regular tax rates with a maximum tax of 34%. Options and decisions for the Foreign Person: 1. Invest as a foreign individual to get favorable long term capital, but subject to estate tax 2. Invest as a U.S. corporation to avoid FIRPTA and lose the favorable LTCG rate. 3. Invest as a foreign corporation to avoid the estate tax, and be subject to FIRTPA, regular tax rates, and the branch profits tax. 36

37 RENTAL ACTIVITIES OF FOREIGN PERSONS Rental Income and activities of U.S. persons is taxed on a net basis, i.e., rental income less rental expenses, where as a foreign person is taxed on a gross basis, unless a proper election is made to treat the rental activity as a U.S. trade or business. (IRC 871(a)(l)(A), IRS 881(a)(i)) 1. Withholdings of 30% of gross rents required 2. Election to treat rental income as effectively connected to a U.S. trade or business is made on statement attached to the tax return. (IRC 871(d)) 37

38 CHALLENGES AND DECISIONS FOR FOREIGN PERSON: Challenges & Decisions for Rental Property: 1. Invest and operate as a foreign person subject to 30% withholding on gross rents. 2. Elect to treat the rental income as ECI, taxed on a not basis 3. Use a U.S. corporation to invest in rent property, taxed on a net basis 38

39 CONCLUSION The foreign investor will find that there is no easy and ideal structure for investing in U.S. real estate. The foreign investor should determine their short and long term goals, evaluation the purpose of the investment, and try to quantify the costs and benefits of each structure Finally, the foreign investor must seek professional legal and tax advice on these matters in both the U.S. and their home country to determine their obligations. 39

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41 Click to edit Master text styles Tax Challenges for Foreign Second level Investors in U.S. Real Estate Third level Fourth level Fifth level Joshua A. Kaplan Bilzin Sumberg 1450 Brickell Avenue, 23rd Floor Miami, FL

42 Click to edit Master text styles Second level Third level Taxation of Non-US Persons Fourth level Fifth level 42 42

43 US Taxation of Non-US Persons Click to edit Master text styles Taxed only on U.S. source income and income effectively connected with conduct of a U.S. trade Second or business level (ECI) Third U.S. level source income is taxed on a gross basis Fourth by withholding level at source at rate of 30% (subject to lower treaty rate) (i.e., interest, dividends, Fifth rents, level royalties and other FDAP). Effectively connected income is taxed on a net basis at graduated rates of up to 39.6% 43 43

44 Click to edit Master text styles Third level Fourth level Fifth level US Source Income U.S. source income subject to gross 30% withholding includes U.S. dividends, interest, Second level rents, royalties and salaries Broad exceptions exist for U.S. source interest: portfolio interest, bank deposit interest, short-term debt obligations (i.e., 183 days or less) Capital gain on U.S. assets (except U.S. real property interests) is not subject to income tax unless gain is ECI or non-u.s. person has substantial presence in US 44 44

45 Portfolio Interest Exception Requirements Click to edit Master text styles Statement that beneficial owner is not a US person (IRS Form W-8) Registered Form (book-entry system) Second level Third level Limitations Fourth level Non-US person cannot own 10% or more of the voting power of the issuer Fifth level Interest received by controlled foreign corporation from a 10% US shareholder Contingent Interest not eligible 45 45

46 Generally Click to edit subject Master to text 30% styles withholding tax (subject Second level to reduced treaty rate) Exception Third level for liquidating distributions Fourth level Fifth level Dividends Liquidating distributions treated as received in exchange for stock (i.e., as capital gains) 46 46

47 Effectively Connected Income Click Subject to edit to net Master income text tax styles as similarly Second situated level US person Tax return filing requirement 30% branch profits tax for corporations (subject to reduced treaty rate) Third level Fourth level Fifth level Treaty US permanent establishment requirement 47 47

48 Portfolio Click to edit Income Master text styles Second level Income Tax Treaties Withholding rate may be reduced by an income tax treaty Effectively Third level Connected Income Fourth level Generally requires permanent establishment in US in order to be taxed in US Fifth level Limitations Limitation of Benefits clause minimizes treaty shopping 48 48

49 Click to edit Master text styles Second level Third level Basic FIRPTA Rules Fourth level Fifth level 49 49

50 Investing in US Real Estate (FIRPTA) Click to edit Master text styles Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) Second level Third level Applies to "dispositions" of "United States real property interests" (USRPIs) by a nonresident alien individual or a foreign corporation. Fourth level Fifth level 50 50

51 Click to edit Master text styles Second level Third level Fourth level Fifth level Basic FIRPTA Concepts Gain from disposition of a USRPI is treated as "effectively connected income" subject to regular net income tax Gains can qualify for long-term capital gains rates Foreign corporations may also be subject to a 30% branch profits tax FIRPTA tax liability is generally enforced through withholding obligations imposed on purchaser/transferee Foreign sellers are required to file U.S. income tax returns and are taxed on gains at the same rates applicable to U.S. sellers Nonrecognition provisions (e.g., a 1031 like kind exchange) generally do not apply unless seller receives U.S. property in the exchange that would be subject to tax on a subsequent disposition and satisfies certain procedural requirements

52 United States Real Property Interests - Direct Interests Click USRPI to is edit defined Master an interest text styles in real property (located in the US or the US Virgin Islands), other than an interest solely as a creditor Second level Third level Land, buildings and other improvements on the land Growing crops and timber, and mines, wells and other natural deposits that have not been severed or extracted Certain "associated personal property" Leasehold interests Options to acquire land or improvements thereon Any direct or indirect right to share in the appreciation in the value of, or in the gross or net proceeds or profits from the real property (e.g., shared appreciation loans) Fourth level Fifth level 52 52

53 United States Real Property Interests - Indirect Interests Click to edit Master text styles USRPI also includes certain indirect interests Second level Interest in a US real property holding corporation (USRPHC) Third level USRPHC defined as a domestic corporation where the fair market value of its USRPIs equals or exceeds 50% of the sum of its (i) USRPIs, (ii) non-us real property interests and (iii) other non-real property trade or business assets. Fourth level Fifth level Look through for interests in partnerships and stock of controlled subsidiaries Interest in a partnership to the extent gain on the disposition of a partnership interest is attributable to USRPI held by the partnership 53 53

54 United States Real Property Interests - Exclusions USRPI does not include: Click to edit Master text styles An interest solely as a creditor, which includes a mortgage loan at a fixed rate of interest (or a variable rate such as prime, LIBOR, etc.), so long as Second level Third level Not convertible into an equity interest in a USRPI; Interest on the debt is not linked to the performance of USRPI; and No equity kicker or other participation in profits of USRPI. Fourth level Interest in a domestically controlled REIT Interest in a corporation that has disposed of all USRPIs in fully taxable transactions Interests in publicly-traded corporations where the taxpayer owned less than 5% of the stock during the preceding 5 years Fifth level 54 54

55 Click to edit Master text styles Second level Third level Fourth level Fifth level Dispositions of USRPIs FIRPTA only applies to a "disposition" of a USRPI Disposition is not defined in the statute but has been broadly interpreted to include the following: Sales and exchanges Capital contributions (to corporations or partnerships) Distributions (by a corporation or a partnership) Transfers in connection with corporate mergers Gifts (where the transferred property is subject to liabilities in excess of its adjusted basis) 55 55

56 Click to edit Master text styles Second level Third level Fourth level Fifth level Nonrecognition FIRPTA generally applies to dispositions where a nonrecognition provision applies, unless Transferor receives a USRPI in exchange for the transferred USRPI Immediately following the exchange, the USRPI received in the exchange would be subject to US tax upon its disposition; and Foreign transferor complies with certain IRS filing requirements 56 56

57 Second level Third level Fourth level Fifth level FIRPTA Withholding FIRPTA requires a transferee to withhold 10% of the gross Click "amount to realized" edit Master from the sale text or exchange styles of USRPI by a nonresident Amount realized equals sum of cash received and fair market value of other property received, plus the outstanding amount of liability assumed by the transferee to which the USRPI is subject Withholding certificate to avoid excess withholding (IRS Form 8288-B and Rev. Proc ) Exemptions from Withholding Non-foreign status Transferred interest not a USRPI Non-USRPHC status Partnership does not meet the 50/90 test Sales price <$300,000 on property buyer will use for personal residence Publicly traded stock Non-recognition transfers Withholding certificate 57 57

58 FIRPTA Withholding (cont'd) US partnerships, trusts and estates required to withhold tax Click (generally to edit at 35%) Master on gain realized text from styles disposition of USRPI to the extent such gain is allocable to: Second level a foreign partner/beneficiary of the partnership, trust or estate; or a foreign owner of the trust under the grantor trust rules. Third level Foreign corporations generally must withhold 35% tax on the amount of gain recognized on the distribution of a USRPI Fourth level Fifth level USRPHC must withhold 10% tax on the fair market value of property distributed in redemption or liquidation to a foreign shareholder REITS generally must withhold tax (generally at 35%) on distributions to foreign shareholders of gain from sale or exchange of USRPIs 58 58

59 FIRPTA Withholding (cont'd) An interest in a partnership that owns USRPIs is Click generally to edit not considered Master text to be styles a USRPI, except to the extent that the gain on a disposition of the interest in Second the partnership level is attributable to a USRPI held by the partnership Third level Purchaser or transferee of a partnership interest is required to withhold 10% of the amount realized on the transfer if: Fourth level 50% or more of the value of the partnership's gross assets are USRPIs; and 90% or more of the value of the partnership's gross assets are USRPIs and cash or cash equivalents. Fifth level REITS generally must withhold 35% tax on distributions to foreign shareholders of gain from sale or exchange of USRPIs 59 59

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61 ESTATE TAX CHALLENGES FOR FOREIGN INVESTORS IN U.S. REAL ESTATE Ruben Flores, CPA & ATTORNEY THE FLORES GROUP Corporate Tax Business Advisors San Antonio Office: Houston/Woodlands Office: 7272 Wurzbach Rd. Suite Timerbloch Place, Suite 200 San Antonio, TX The Woodlands, TX (210) (281)

62 ESTATE & GIFT TAX CHALLENGES FOR FOREIGN INVESTORS The foreign investor in U.S. real estate needs to carefully consider the U.S. estate tax on their U.S. investments. For many foreign investors this is a surprising factor to deal with because many countries do not have an estate or gift tax and its difficult to understand and accept. 62

63 ESTATE & GIFT TAX CHALLENGES FOR FOREIGN INVESTORS The estate tax is imposed on individuals, both U.S. residents and Non- Residents: 1) U.S. residents subject to estate taxation on their worldwide estate (IRC 2001(a)) 2) Non- residents subject to estate taxation on property located in the U.S. (IRC 2101 & 2106) 63

64 ESTATE & GIFT TAX CHALLENGES FOR FOREIGN INVESTORS The gift tax is imposed on both U.S. residents and Non-residents, (IRC 2501): 1) U.S. residents subject to gift tax on all gifts they make, regardless of location. 2) Non- residents are taxed only on gifts of: A. U.S. situs tangible property B. U.S. situs real estate Note: Gifts of intangibles not subject to gift tax, may include gifts of corporate stock and partnership interest. 64

65 RESIDENCY FOR ESTATE & GIFT TAX PURPOSES A Foreign investor needs to carefully consider and manage their immigration status and activities in the U.S. to avoid being classified resident for estate/gift tax purpose A resident for estate/gift tax purposes is defined differently than for income tax purposes: 1) Estate Tax Resident A person who is domiciled in the U.S. at the of death or time of gift 2) Domicile test is a subjective test based on intent of the foreign person 65

66 DETERMINING RESIDENCY FOR ESTATE/GIFT TAX PURPOSES The foreign investor must carefully plan and manage their business, family, and activities in the U.S. if they wish to avoid classification as a resident for estate/ gift tax purpose The Internal Revenue Code provides that a foreign individual is deemed to be a resident for estate tax purpose if he/she has the intent to remain indefinitely in the U.S. The Internal Revenue Code and regulations do not provide much guidance as to what constitutes a subjective intent to remain indefinitely the U.S. (Treas. Reg (b)) 66

67 DETERMINING RESIDENCY FOR ESTATE/GIFT TAX PURPOSES The courts have developed several factors, which can be used to determine if a foreign individual has a subjective intent to remain indefinitely in the U.S., there are two classes of factors: 1) Personal Interest Factors Location of the family, place where children attend school, place of social and religious activities. 2) Business Interest Factors Location of employment, place of management of business, rate of investments between U.S. and foreign countries. Many foreign countries do not use the personal interest factors to determine intent or residency, which makes it more difficult for foreign investors. 67

68 DETERMINING THE TAXABLE ESTATE Foreign investors need to know they may be subject to the estate tax, even if they are not residents of the U.S. If a non-resident individual dies with property located in the U.S. he/she will be subject to U.S. tax on such property (Treas.Reg (a): 1) U.S. real property 2) Tangible personal property located in the U.S. 3) Stock in U.S. corporations (Not foreign corporations) 4) Debt obligations of U.S. persons, unless portfolio exception applies 68

69 DETERMINING THE TAXABLE ESTATE The foreign individual also has some exemptions and deductions from the estate to determine the taxable estate: 1) Expenses, taxes, and losses attributable to the gross estate (IRC 2053&2054) 2) Non- recourse debt on U.S. property is netted to determine the net value 3) Estate tax exemption of $ 60,000 4) Unlimited marital deduction if property left to U.S. citizen spouse (IRC 2056) 5) QDOT may be used to transfer property to Non- US citizen spouse, it defers the tax. (IRC 2056A) 69

70 OPTIONS FOR INVESTING IN U.S. REAL ESTATE A foreign investor should carefully plan and structure their investments in the U.S., and determine which is the best legal/corporate form of ownership: 1) Invest as an individual directly in U.S. real estate, subject to estate/ gift tax 2) Invest as an individual in a U.S. corporation that invests in U.S. real estate, U.S. stock subject to estate tax. 3) Invest in a foreign corporation that invests in U.S. real estate, foreign stock not subject to estate /gift 70

71 PERSONS SUBJECT TO U.S. GIFT & ESTATE TAX PERSONS SUBJECT TO U.S. GIFT & ESTATE TAX US. CITIZENS IRC 2001(a) U.S. RESIDENTS IRC 2001(a) NON-RESIDENTS IRC 2001(a) All persons or naturalized and subject to the jurisdiction of U.S. INA 301(a)-(h) 71 Persons who have their domicile in the U.S. with the intent to remain indefinitely. Treas. Reg (b) Persons without the requisite intent to remain indefinitely in the U.S. even if they have a U.S. residence. Treas. Reg (b)

72 PROPERTY SUBJECT TO U.S.& ESTATE TAX Determining the Gross Estate for U.S. Tax Purpose US. CITIZENS & RESIDENTS IRC 2103 NON-RESIDENT ALIENS IRC 2003 & 2104 Taxable estate includes all property wherever situated, i.e. worldwide basis, regardless if real, personal, tangible or intangible. Treas. Reg (a) 72 Taxable estate includes only that portion which is situated in the U.S. Treas. Reg (a)

73 PROPERTY OF NRA SUBJECT TO GIFT TAX Property of NRA subject to U.S. Gift Tax IRC 2501 Real property situated in the U.S. Treas. Reg (a) Tangible personal property physically situated in the U.S. at the time of gift (does not include intangible property) Treas. Reg (a) 73

74 INVESTMENTS OF NRA U.S. Real Estate 1. U.S. situs property 2. Included in U.S. taxable estate (Treas. Reg (a)) Stock in U.S. Corporation 1. U.S. situs property 2. Included in U.S. taxable estate (Treas. Reg (a)) Stock in Foreign Corporation 1. Foreign situs property 2. Not included in U.S. taxable estate (Treas. Reg (a)) 74

75 INVESTMENTS OF NRA FOREIGN CORPORATION 1. Foreign corporate stock is foreign situs 2. None of the U.S. holdings included in NRA gross estate Treas. Reg (a) U.S. Real Estate U.S. Corporation Stock 75

76 CONCLUSION The foreign investor will find that there is no easy and ideal structure for investing in U.S. real estate. The foreign investor should determine their short and long term goals, evaluation the purpose of the investment, and try to quantify the costs and benefits of each structure Finally, the foreign investor must seek professional legal and tax advice on these matters in both the U.S. and their home country to determine their obligations. 76

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78 INVESTMENT STRUCTURES FOR FOREIGN INVESTORS IN U.S. REAL ESTATE Ruben Flores, CPA & ATTORNEY THE FLORES GROUP Corporate Tax Business Advisors San Antonio Office: Houston/Woodlands Office: 7272 Wurzbach Rd. Suite Timerbloch Place, Suite 200 San Antonio, TX The Woodlands, TX (210) (281)

79 INDIVIDUAL/ U.S. LLC OWNERSHIP FOREIGN INVESTOR U.S. LLC U.S. REAL ESTATE Advantages: Asset Protection LT capital gains rate on sale of property No franchise tax Disadvantages: Estate tax Gift tax Federal Tax Return by foreign Investor FIRPTA applies on sale of property 79

80 OWNERSHIP THROUGH U.S. CORPORATION FOREIGN INVESTOR U.S.CORPORATION U.S. REAL ESTATE Advantages: Asset Protection No gift tax on transfer of shares No U.S. tax return for foreign shareholder(s) No FIRPTA on sale of property Disadvantages: Estate tax Federal tax on sale at 34% No LT capital gains rate on sale of property FIRPTA may apply to sale of U.S. shares State Franchise tax 80

81 OWNERSHIP THROUGH FOREIGN CORPORATION FOREIGN INVESTOR FOREIGN CORPORATION U.S. REAL ESTATE Advantages: Asset Protection No estate tax No gift No U.S. tax return for foreign shareholder(s) No FIRPTA on sale of foreign stock Disadvantages: 34% Federal tax on sale of property State franchise tax FIRPTA applies to sale of property Branch Profits Tax 81

82 OWNERSHIP THROUGH FOREIGN AND U.S. CORPORATIONS FOREIGN INVESTOR FOREIGN CORPORATION U.S. CORPORATION Advantages: Asset Protection No estate tax No gift tax on transfer of the shares No U.S. tax return for foreign shareholder(s) No FIRPTA on sale of property No FIRPTA on sale of foreign stock Disadvantages: 34% Federal tax on sale of property State franchise tax FIRPTA may apply to sale of U.S. shares No LT capital gains rate REAL ESTATE 82

83 OWNERSHIP THROUGH IRREVOCABLE TRUST IRR. TRUST U.S. LLC REAL ESTATE Advantages: No estate tax No gift tax (if LLC transferred to trust prior to closing) No U.S. tax return for foreign investor(s) LT capital gains rate on sale of property Succession plan No franchise tax Disadvantages: Requires irrevocable transfer of control to trustee FIRPTA applies to sale of property 83

84 OWNERSHIP THROUGH U.S. PARTNERSHIP FOREIGN INVESTOR U.S. PARTNERSHIP U.S. REAL ESTATE Advantages: Asset Protection if limited partner Ability to joint venture with others No gift tax on gift of interest No tax at entity level LT capital gains rate applies Disadvantages: Estate Tax Federal Tax Return by Investor Partnership with holding of foreign partners FIRPTA applies at partnership & partner level Franchise tax may apply 84

85 OWNERSHIP THROUGH U.S. PARTNERSHIP & CORPORATION FOREIGN INVESTOR U.S. CORPORATION U.S. PARTNERSHIP Advantages: Asset Protection Ability to joint venture No gift on transfer of shares No U.S. tax return for foreign shareholder No FIRPTA on sale of property Disadvantages: Estate Tax Federal Tax rate on sale at 34% No LT capital gains rate FIRPTA may apply to sale of U.S.stock U.S. REAL ESTATE 85

86 OWNERSHIP THROUGH U.S. PARTNERSHIP /U.S. CORP/FOREIGN CORPORATION FOREIGN INVESTOR FOREIGN CORPORATION U.S. CORPORATION U.S. PARTNERSHIP Advantages: Asset Protection Ability to joint venture No gift on transfer of shares No estate tax on foreign investors No FIRPTA on sale of property No FIRPTA on sale of foreign stock Disadvantages: Federal Tax rate on sale at 34% No LT capital gains rate State Franchise Tax may apply FIRPTA may apply to sale of U.S. stock U.S. REAL ESTATE 86

87 CONCLUSION The foreign investor will find that there is no easy and ideal structure for investing in U.S. real estate. The foreign investor should determine their short and long term goals, evaluation the purpose of the investment, and try to quantify the costs and benefits of each structure Finally, the foreign investor must seek professional legal and tax advice on these matters in both the U.S. and their home country to determine their obligations. 87

88 DISCLAIMER This information is a presentation of the general rules and should not be used or relied upon for any particular investments or transaction. We recommend you consult your tax attorney or advisor for your specific situation. If you would like more information on these matters we would be glad to visit with you. As required by United States Treasury Regulations, you should be aware that this communication is not intended or written by the sender to be used, and it cannot be used, by any recipient for the purpose of avoiding penalties that may be imposed on the recipient under United State federal tax laws. 88

89 THANK YOU! Ruben Flores, CPA & ATTORNEY The Flores Group San Antonio Office: Houston/Woodlands Office: 7272 Wurzbach Rd. Suite Timberloch Place, Suite 200 San Antonio, TX The Woodlands, TX (210) (281) www. Floresattorneys.com 89