15%

Standard Rate

Of gross sale price

$300K

Exemption Threshold

Buyer residence use

90 days

Certificate Processing

IRS review time

6-12 mo

Refund Timeline

After filing return

FIRPTA Withholding Rates

Withholding is based on the gross sale price, not your profit. This often means more is withheld than your actual tax liability.

Situation Rate Conditions
Sale under $300K, buyer residence 0% Buyer will live in property
Sale $300K-$1M, buyer residence 10% Buyer will live in property
Sale over $1M, buyer residence 15% Standard rate applies
Buyer is investor (any price) 15% No residence exemption
Foreign corporation seller 21% Corporate rate
FIRPTA withholds on GROSS price, not profit. A $100K gain may trigger $150K withholding.

FIRPTA Exemptions

Buyer Residence Exemption

  • Sale price $300,000 or less
  • Buyer will use as residence
  • 50%+ of days for 2 years
  • Result: 0% withholding

Other Exemptions

  • Seller provides non-foreign affidavit
  • Withholding certificate obtained
  • 1031 like-kind exchange
  • Publicly traded stock

Withholding Certificate (Form 8288-B)

Apply for a withholding certificate when your actual tax is less than 15% of the sale price.

When to Apply

  • Actual tax < 15% of sale price
  • Little or no gain on sale
  • 1031 exchange transaction
  • Installment sale structure
1

Submit Form 8288-B

90+ days before closing. Calculate expected tax liability.

2

Escrow Holds Funds

If not received before closing, buyer withholds 15% into escrow.

3

IRS Issues Certificate

Typically 90 days. Specifies approved withholding amount.

4

Excess Released

Escrow releases any amount above the certificate amount to seller.

Apply 90+ days before closing. IRS processing is not fast.

Getting Your FIRPTA Refund

If withholding exceeds your actual tax, you must file a US tax return to claim a refund.

Individuals File

  • Form 1040-NR (nonresident return)
  • Schedule D (capital gains)
  • Form 8949 (sales detail)
  • Attach Form 8288-A from buyer

Corporations File

  • Form 1120-F (foreign corp)
  • Report gain and withholding
  • Claim refund of excess
Sale price$800,000
FIRPTA withheld (15%)$120,000
Original cost + improvements$600,000
Actual gain$200,000
Tax owed (20% cap gains)$40,000
Refund available$80,000
You MUST file a return to get your refund. IRS will not send it automatically.

Key Deadlines and Timelines

Before Closing

  • 90 days: Submit 8288-B (cert)
  • 20 days: Buyer must hold escrow
  • At closing: Buyer withholds 15%

After Closing

  • 20 days: Buyer files Form 8288
  • June 15: Filing deadline (next year)
  • 6-12 months: Refund processing

FIRPTA Planning Strategies

Reduce Withholding

  • Apply for withholding certificate
  • Structure as installment sale
  • Use 1031 exchange for deferral
  • Maximize basis (improvements)

Maximize Refund

  • Document all improvements
  • Include all selling costs
  • File return promptly
  • Get 8288-A from buyer at closing

State Withholding Requirements

Many states have their own withholding on top of federal FIRPTA.

State Rate Notes
California3.33%Of gross sale price
Hawaii (HARPTA)7.25%Highest in US
Maryland8.25%For entities
Georgia3%For non-residents
Colorado2%For non-residents
Florida0%No state income tax
Texas0%No state income tax
Nevada0%No state income tax
States without income tax = no state withholding on real estate sales.

Common FIRPTA Mistakes

Critical Errors

  • Not filing return = no refund
  • Missing 8288-A document
  • Applying for cert too late
  • Underestimating basis

Planning Mistakes

  • Not considering FIRPTA when buying
  • Relying on buyer's agent advice
  • No improvement records
  • LLC sale misconception
Selling LLC interests does NOT avoid FIRPTA. The law applies to both.