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Real Estate Closings
FIRPTA Withholding – Foreign Investment in Real Property Tax Act
FIRPTA (Foreign Investment in Real Property Tax Act) Withholding is the Withholding of Tax on Dispositions of United States Real Property Interests
The disposition of a U.S. real property interest by a foreign person (the transferor) is subject to the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA) income tax withholding.
FIRPTA authorized the United States to tax foreign persons on dispositions of U.S. real property interests.
Persons purchasing U.S. real property interests (“transferee”) from foreign persons, certain purchasers’ agents, and settlement officers are required to withhold 15% of the amount realized.
Withholding is intended to ensure U.S. taxation of gains realized on disposition of such interests. The transferee/buyer is the withholding agent. If you are the transferee/buyer you must find out if the transferor is a foreign person. If the transferor is a foreign person and you fail to withhold, you may be held liable for the tax.
One of the most common exceptions to FIRPTA withholding is that the transferee (purchaser/buyer) is not required to withhold tax in a situation in which the purchaser/buyer purchases real estate for use as his home and the purchase price is not more than $300,000. However, buyers should be aware that while they may meet the withholding exemption they are still responsible for the seller’s tax liability, interest and penalties should the seller not file a US income tax return to report the sale and pay any relevant taxes.
Note to Non-Resident Buyers – If you purchase property from a non-resident seller and an exception to FIRPTA withholding does not apply then you must ensure that FIRPTA is satisfied as part of the closing. Check your settlement statement prior to closing where you should see 15% of the sales price withheld on the seller’s side of the settlement statement. Request a copy of the withholding certificate from the closing agent and, if withholding was calculated, request a copy of forms 8288, 8288-A and front and back of cancelled check. Retain these documents in a safe place along with your settlement statement and other closing documents.
Foreign Investment in Real Property Tax Act (FIRPTA) Withholding
U.S. Tax law requires that a non-resident alien who sells an interest in U.S. real property is subject to withholding, for tax purposes, of 15% of the gross sales price (i.e. $45,000 on a property with a sales price of $300,000). The withheld amount is required to be forwarded to the IRS, by the Closing Agent, within 20 days of the date of closing. These funds are held until the IRS is satisfied that all taxes due by the non-resident are paid. In order to apply for a refund you can either:-
File U.S. tax returns for each year that rental income was received, reporting all income and expenses; file a final U.S. tax return in the year following the year of sale, to report the sale and recover the balance of cleared funds. This process can take up to eighteen months depending on when, during the tax year, the property is sold.
File prior year tax returns (where required) plus an application for early release of cleared withholding on or before the date of closing. By making this submission, the 10% withholding remains with the Closing Agent whilst the IRS processes the Withholding Application and issues a Withholding Certificate for the cleared funds – usually around 90 days.
Please note that applying for and receiving a Withholding Certificate does not eliminate your requirement to file a final U.S. income tax return to report the sale transaction. In fact, when your final tax return is filed you may receive a further tax refund depending on the number of owners and length of time that the property was held.
In order to ensure a timely release of your funds it is extremely important that the following is obtained PRIOR to closing:-
Buyer’s names, address and SSNs – if U.S. Citizens
Buyer’s names, address and ITINs – if non residents
Or, if the buyers are non residents and do not have ITINs, the buyer’s completed Form W-7 (one per buyer) and authenticated copy of the picture page of their passport(s)
Without this information the Application for a Withholding Certificate and early refund will be rejected. We suggest that you request your Realtor prepare your sales contract contingent upon the buyers providing the above information.
Who’s responsible for FIRPTA withholding on the sale of U.S. property?
Foreign Investment in Real Property Tax Act (FIRPTA) was established in 1980 to ensure the withholding of estimated amount of taxes which may be due on the gain from the disposition or transfer of a U.S. real property interest from a foreign person.
If you purchase U.S. real property from a foreign individual or corporation then you are required to make sure that the seller pays any taxes due on the property. The buyer must execute or have executed the correct forms including the sellers name, address and social security number or individual taxpayer identification number. 15% of the gross sales price must be withheld and submitted to IRS or held in escrow whilst an application for reduced FIRPTA withholding is timely filed and processed.
If the buyer does not take care of the withholding and the seller is a foreign entity who leaves without paying their tax then 15% will be taken from the buyer.
Most buyers are unaware that it is their responsibility to determine if the transferor/seller is a foreign person and subject to FIRPTA withholding. In reality, the settlement agent (Title Company or Attorney) may be instructed to deduct the 15% and submit to IRS or hold in escrow whilst an application for reduced FIRPTA withholding is submitted to IRS for processing.
What Home Buyers Can Learn From a Seller’s Disclosure Statement
Any responsible buyer wants to know everything about the home they’re buying before signing on the dotted line. After all, this is probably the biggest purchase you will ever make, so due diligence is a must. The majority of the real estate agents in Florida are Transactional Agents and do not owe the Buyer a fiduciary duty, An Exclusive Buyer Agent does and will work for the buyer to determine all the information known about the property and advise you on inspections, permit searches, etc. Reviewing the Seller’s Disclosure is the first step in this process.
A Seller’s Disclosure in the State of Florida Is a standard form that is essentially a checklist in which a seller indicates the condition of the different features of a property, any known problems affecting the property, and any pending legal issues. This could include things like knowledge of lead-based paint, water damage, pest damage, past repairs, past insurance claims, any history of property line disputes, etc.
Typically, a seller’s disclosure form is filled out by the seller along with their listing paperwork. When buyer’s agents go into the Multiple Listing Service (MLS) to look up potential properties for their clients, that disclosure statement should be available or can be requested from the listing agent.
I am increasingly running into situations wheretransactional brokerage firms are taking the position that since a Seller’s Disclosure is NOT required by law that are not asking the sellers of their listings to fill one out. The first line of the SPDR provides “Notice to Licensee and Seller”; the less they know, the easier it is to make a “deal”. They are relying on the fact that other transactional agents working with buyers will feel the same and not ask for a Sellers Disclosure.
Although sellers aren’t required to complete this specific SPDR form, a residential seller does have to comply with the rule established in Johnson v. Davis. In that case, the Florida Supreme Court held that “where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer.” These material facts are sometimes referred to as latent defects. In addition, in Rayner vs. Wise Realty Co. of Tallahassee, the First District Court of Appeal provided that this same disclosure requirement applies to residential properties that are being sold as is.
In cases were the listing agent does not provide a Sellers Disclosure I request that the Seller answer all my questions in writing and provide a comprehensive list of questions that encompasses everything asked on the SPDR and more.
A seller’s disclosure form is NOT a substitute for a home inspection. Remember, sellers are required to disclosure only problems they know about. Most homeowners don’t go in their attic very often, and have probably never been up on their roof, and they aren’t required to do so before filling out the disclosure. While this document can provide a lot of valuable information, the home inspection is another layer of protection for a buyer.
The importance of this disclosure statement is just one of the many reasons why it’s critical for buyers and sellers to use an Exclusive Buyer Agent ( EBA) during any real estate transaction. EBAs are up-to-date on the latest laws and regulations and are very experienced with the complex documents and paperwork. They can help walk buyers through the disclosure so they understand all aspects of the home they’re buying and recommend the appropriate home inspections ( WDO, Radon, Leak Testing, Mold, and more) to ensure that any hidden defects are found in advance of the purchase.
Why Your Mortgage Is Getting More Expensive
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World events are conspiring to make it more expensive for you to borrow money to buy a house.
Mortgage rates have increased for six consecutive weeks, according to Bankrate data, bringing interest on a 30-year fixed rate loan to 4.44 percent—the highest level in 11 months—while home prices continue to rise due to a lack of available homes.
After years of tepid economic growth, inflation and wage growth recently found a groove, while the Federal Reserve’s plan to raise short-term interest rates multiple times for a consecutive year has reduced the value of government debt.
Homebuyers Should Get off the Fence
Mortgage rates are moved by the yield on 10-year Treasuries, rather than short-term rate hikes by the Fed. That’s why mortgage rates fell throughout 2017, for instance, even as the central bank raised the federal funds rate three times. Rates remain cheap, however, compared to historical prices. A 30-year fixed-rate mortgage came with an interest rate above 6 percent just before the Great Recession in 2007. Potential homeowners should get off the fence and make a bid, assuming you have an affordable home target and adequate savings, because rates are likely only heading north.
Mortgage rates are expected to climb in 2018, so it might be worth shopping for a mortgage before this long period of low rates takes a turn.
Here are several predictions from the largest housing and mortgage groups for the 30-year fixed-rate mortgage:
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Tax Deductions to Take in 2017 Before They Disappear
As you’ve no doubt heard, the U.S. tax code got an overhaul—so what does that mean for the 2017 return you’re filing right about now? It means that this is your last chance to take advantage of tax deductions from the old tax code.
Here is a rundown of four major tax breaks that are disappearing after this filing year, and how to take full advantage of them for 2017.
Home Office Deduction
With the increasing popularity of telecommuting and working from home, the home office tax deduction is one that many people opt to take. If you’re full-time self-employed, this deduction will continue in 2018. But for all you office workers who work in your “home office” on the occasional Friday? The gig is up.
“In 2018, for non-self-employed people, the home office deduction is going away entirely,” says Eric Bronnenkant, CPA, CFP, and Betterment’s head of tax. If you are a W-2 employee this is the last year you will be able to take advantage of the home office deduction. The home office deduction falls under what’s called “miscellaneous deductions,” and includes business expenses that are not reimbursed by your employer. Miscellaneous deductions can’t exceed 2% of your adjusted gross income, but if you meet the requirements, you can take the deduction in 2017.
Unlimited property tax
One of the biggest changes for homeowners in the new tax bill is the cap on deducting property taxes.
In the past all property taxes were tax-deductible. Yet going forward in 2018, the maximum you can deduct is $10,000, and that includes state and local income tax, property tax, and sales tax.
That means if you pay more than $10,000 a year between your state and local income taxes, property tax, and sales tax, anything exceeding that amount is no longer deductible. For your 2017 return, make sure every penny you pay in property taxes is deducted, along with your state and local taxes—or, if you’re in a state without income tax, a portion of the sales tax you paid.
Moving expenses
If you moved in 2017, lucky you: You’re the last to take advantage of the ability to deduct your moving expenses, provided your move meets certain requirements (e.g., your new job is at least 50 miles farther away than your old job was from your old home).”Previously, people could deduct all the expenses associated with [relocation] moving,” says Priya Mishra, the managing attorney at Top Tax Defenders. “This will now be gone.”
The only exception going forward, according Patrick Leddy, a tax partner at Farmand, Farmand, and Farmand LLP, will be members of the armed forces. So if work took you to a new locale last year, don’t forget to dig up your receipts and deduct those moving expenses.
Interest on a home equity loan for non-home improvement purposes
A home equity loan is money you borrow using your home as collateral. This “second mortgage” (because it’s in addition to your original home loan) often takes the form of a home equity loan or home equity line of credit (HELOC). Traditionally, the interest on these loans could be deducted up to $100,000 for married joint filers and $50,000 for individuals. The best part? You could use that money to pay for anything—college tuition, a wedding, you name it.
But starting in 2018, home equity loan interest is deductible only if it’s used for one purpose: to “buy, build, or improve” your home, according to the IRS. So if you’re dying to update your kitchen or add a half-bath, you’ll get a tax break from Uncle Sam. But if you want to tap your home equity to go to grad school, well, that’s on you.
More bad news: Unlike the mortgage interest deduction where loans taken before 2018 could be grandfathered into the old laws, old home equity loans have no such exemption. People with existing HELOC debt take the hit just like homeowners applying for one now.
But there is one small loophole: To reclaim this deduction, you could refinance your second mortgage and your first into a new mortgage that lumps together both debts. This essentially turns your HELOC into a regular mortgage, which means that you can deduct that interest. Just remember that refinancing can be costly, and that this new loan will be subject to the new, smaller limits on deducting mortgage interest. In loans originating on or before Dec. 14, 2017, that limit is $1 million. On loans made after that point, the cap is $750,000.
Will I owe more taxes next year?
Worried about losing all of these deductions? Though the new tax plan is drastically changing how most people will file their taxes, it doesn’t necessarily mean that you will end up owing more. Limits on mortgage interest deductions may be dropping, but so are the tax rates for most income groups. While the amount of property tax you can deduct is shrinking, the standard deduction is growing. So, it may all balance out.
The most important thing to do, after making sure you’ve grabbed all of the tax deductions you can for 2017, is to sit down with your accountant or financial advisor and size up where the new tax laws leave you.That will give you plenty of time to prepare for 2018 taxes and beyond.
Housing Starts Heating Up!
Housing Starts and consumer inflation heated up in January, but Retail Sales and Existing Home Sales stayed on the chilly side.
The Commerce Department reported that January Housing Starts jumped 9.7 percent from December to an annual rate of 1.326 million units. This was the highest level since October 2016 and up 7.3 percent from January 2017. Single-family starts, which account for the largest share of the market, rose 3.7 percent from December while multi-dwelling starts with five or more units surged 19.7 percent. Housing Starts rose in the Northeast, South and West but declined in the Midwest.
Building Permits, a sign of future construction, rose 7.4 percent from December to an annual rate of 1.396 million units. With many buyers facing inventory shortages across much of the country, this strong report regarding new home construction is a welcome sign!
The National Association of REALTORS® reported that January Existing Home Sales declined 3.2 percent from December to an annual rate of 5.38 million units. Sales were down 4.8 percent from a year ago, the largest decline since August 2014. Low inventories of homes for sale were indeed a thorn in the side of would-be buyers with just a 3.4-month supply available at the current sales pace. A 6-month supply is considered healthy.
Retail Sales also disappointed in January, as the Commerce Department reported a 0.3 percent decrease. December’s reading was also revised downward to 0 percent from a 0.4 percent increase. The key highlight was that consumer spending wasn’t strong in recent months, and this could impact GDP expectations.
Consumer inflation edged higher in January, with an important component jumping to a 12-month high! The Consumer Price Index (CPI) rose 0.5 percent in January, just above expectations due to higher gasoline prices, the Labor Department reported. Core CPI, which strips out volatile food and energy prices, rose 0.3 percent from December. This was the largest increase in a year, boosted by rising rents.
Inflation reduces the value of fixed investments like Mortgage Bonds. This means signs of inflation can hurt Mortgage Bonds and impact the home loan rates tied to them, which is a trend we’ve seen through much of this year. Stocks have also reacted negatively to hints that inflation was on the rise because inflation brings higher rates and higher rates hurt corporate borrowing. Stocks even entered correction territory in early February, meaning a 10 percent decline from recent highs.
Buying a generator: Tips to know before you make a purchase
After Hurricane Irma, much of Florida lost power. And during Hurricane Maria, all of Puerto Rico is in the dark.
The one-two punch of storms reminded Floridians of the importance of owning a generator. If you’re shopping for a power source, here are factors to consider:
How much do you want to spend?
Stand-by generators can power your whole house and usually run on natural gas or propane. They typically cost $5,000 to $10,000, according to Consumer Reports. And you’ll need to start planning the installation months in advance. Most homeowners opt for portable generators, which usually won’t run central AC and cost $400 to $1,000. (However, Consumer Reports’ top-rated portable generator is a Honda that goes for $3,999.)
What do you want to power?
If you want to run a fridge, a fan and a few lights, a small portable generator will do the job. If you hope to keep living as if the hurricane never hit, you’ll need a stationary generator. And if you’re willing to rough it but would like to run a window AC unit, you’ll want to make sure before the storm that your generator has enough juice to run your AC. Another caveat: Cheap generators can produce power surges that will fry expensive electronics.
How much noise can you stand?
Or, put another way, how many decibels do you want to bombard your neighbors with? In general, the more expensive the generator, the quieter it is.
Technology is getting better.
For decades, Floridians have been buying portable generators that were the mechanical equivalent of muscle cars, says Paul Hope of Consumer Reports. Now, though, manufacturers are designing fuel-injected engines for generators. These models are quieter, more fuel-efficient and emit less carbon monoxide. They’re also more expensive.
The smart move, says Hope, is to shop for a generator between storms or after hurricane season. That gives you time to research what you need — and to hire an electrician to install a transfer switch or interlock device that lets the generator power your house.
7 Legal Tasks to Do When You Move
The Internet is full of checklists and resources to use if you are planning to move. There are packing timelines. There are lists of packing supplies. There are even directions on how to pack boxes.
But moving is much more than purging and organizing your personal affects. There are legal tasks you need to take care of too.
Here are 5 legal tasks to complete when you move:
- Read your leases: Review your current lease to make sure you will not get into trouble for leaving. You are responsible for paying rent for the entire lease term, even if you have vacated the premises. If you need to move before the lease term is expired, read the lease to see if you can sublet or assign to a new tenant. Check your new lease for these terms before you sign it. And make sure you complete these tasks to protect your rights as a tenant.
- Protect yourself with insurance: Thoroughly read any contract with a moving company before you sign it for delivery times and insurance coverage. Moving companies are required to provide some moving insurance. But you may wish to purchase more. You should also consider renter’s insurance or homeowner’s insurance.
- Notify your creditors: Update your address with all of your creditors to ensure you do not miss a payment. And be sure to complete a change of address with the United States Postal Service and request that your mail be forwarded to your new address.
- Keep receipts if you are relocating for a job: You may be able to write off your expenses if you are required to relocate more than 50 miles due to a job change. Review the Internal Revenue Service’s requirements to qualify for this tax break.
- Update your estate plan: State laws governing wills and estate plans differ. If you move to a different state, update your estate plan.
- Register your vehicles:If you’ve moved states, provinces or countries, register your car and get a new driver’s license, tags and/or plates for your vehicles. Check your local DMV for more information.
- Register to Vote: Again, if you’ve moved cities, it’s important to make sure you’re on the voter’s registration for your local area. You should also make sure you’ve updated all important files and documents with your new address.
How To Buy A Second Home?
You’ve found the perfect new home for your family, but your current house hasn’t sold yet. You can’t afford to carry two mortgages, or maybe you were counting on money from your sale to help with the down payment and closing costs.
Before you let that dream home slip away, consider these strategies to help bridge the transition:
Make an offer that’s contingent on the sale of your house:
A seller may be persuaded to accept your offer with the caveat that you’ll have to sell your house before closing on theirs. You’ll strengthen your chances of getting a seller to take a chance on you if you can show that your home is priced properly and has a solid marketing strategy. Successful contingency offers depend on good communication between the real estate agents representing both sides. It’s up to you and your agent to reassure the seller that the closing won’t be delayed. Obviously, in hotter housing markets with potentially multiple bids, it can be harder to get sellers to accept such an offer.
Offer the seller a rent-back option:
One way to buy yourself extra time to complete your sale is to offer to buy the new house, then rent it back to the seller after closing. A rent-back agreement is typically for just a month or two. But this arrangement can give sellers extra time to move – or to find a new house of their own – while putting a little money in your pocket and keeping you from having to pay two mortgages at once.
Tap the equity in your current home:
If you have a high credit score and considerable equity in your house, you could free up some of the latter with a home equity line of credit. A HELOC lets you use up to 85 percent of your home’s value, less the balance remaining on your mortgage, and is fine-tuned based on your credit profile and income. Most HELOCs have a variable interest rate, so it’s in your best interest to pay off the loan as soon as your current home sells.
This strategy may let you buy a house before you sell, but it’s not a last-minute option. A HELOC requires an appraisal, income verification and a thorough credit check, so it takes time – generally 30 days or more – to qualify, says Tim Beyers, mortgage analyst with American Financing in Aurora, Colorado. If you’re thinking of going this route, make sure you run the numbers with an expert upfront, Beyers says.
To qualify for the new loan, a lender will evaluate your current mortgage payment, plus the HELOC payment and your new monthly mortgage payment, to calculate your debt-to-income ratio for the new mortgage approval, Beyers says. If your income is high enough to have a debt-to-income ratio below 40 percent with all those payments and other monthly expenses taken into account, only then should you consider a HELOC, he adds.
“Once you start dipping into your home’s equity, that changes the equation when you apply for a new mortgage,” he explains. “Taking too much out can hurt your qualification chances on a new mortgage. Don’t make an offer, then try to scramble to do the math.”
Add a HELOC to your new mortgage:
With this strategy, you break up the financing on your new home with a first mortgage for the amount you need, plus a HELOC to make up the difference in your shortfall for a downpayment, says Elise D. Leve, senior mortgage banker at Citizens Bank in New York.
Once you sell your current home, you can pay the HELOC portion off in full and end up with the single mortgage you wanted in the first place, Leve says.
Get a Bridge Loan:
A much riskier strategy is what’s called a ‘bridge’ or ‘swing’ loan. Using your existing home as collateral, you take out a bridge loan for three months to five years to use as the down payment on your new home. Once you’ve purchased your new home, you sell the old one and pay off the mortgage and the bridge loan. Such a loan is less risky in a fast appreciating market where appreciation can cover the extra payment on the old home. Even in the best market, however, swing loans can be expensive, last-ditch propositions that are fraught with caveats. Bridge loans can cost 5 to 10 percentage points more than a typical equity loan. Your home must be lien free. Excellent credit is mandatory, as are good income-to-debt ratios. It may be a better idea to get a cash-out refinance, second mortgage or equity loan to use as a bridge loan. Traditional financing is cheaper and less risky, but that could preclude you from landing another mortgage for a new home should the lender consider you stretched too thin.
Kim N. Bregman