The Trump Administration’s tax reform and regulatory reform has cut back on unneeded red tape and complexity, grown the economy, and promoted innovation and investment. The Trump Administration has further sought to reduce Americans’ tax burdens by discouraging tax hikes and instead promoting private investment in infrastructure like roads and bridges.
The Administration can build on this progress by promoting foreign investment in the U.S. and rolling back the burdensome Foreign Investment in Real Property Act (FIRPTA). In the short term, this means withdrawing Section Two of IRS Notice 2007-55.
When Congress passed FIRPTA in 1980 there were Cold War-era driven concerns that foreign investors could purchase real estate that was culturally or strategically significant to the U.S. Today, these concerns have faded, but this outdated law is still needlessly restricting foreign investment into American real estate and infrastructure. In addition, there are other laws, including last year’s Foreign Investment Risk Review Modernization Act, that safeguard against national security risks of foreign investment in U.S. assets.
FIRPTA results in higher taxes on foreign investment in real estate and infrastructure than on any other asset class such as stocks and bonds. FIRPTA imposes extra U.S. tax on the gain realized by a foreign investor on the deposition of an “interest” in the property. FIRPTA punishes foreign investments in many types of real property, from multifamily housing, to commercial buildings, to various types of infrastructure.
In 2007 the IRS worsened FIRPTA’s impact with the publication of Notice 2007-55, a non-regulatory guidance document that broke with 30 years of precedent. Prior to the IRS Notice 2007-55, liquidating distributions received by a foreign shareholder of a real estate investment trust (REIT) were treated as sale of stock. Section Two of Notice 2007-55 expanded FIRPTA by stating that these distributions should be treated as capital gains distributions subject to FIRPTA tax penalties. Because of the IRS notice, the FIRPTA penalty hits not only foreign investments in real property, but also foreign investments in companies that merely own and manage real property.
This unilateral expansion of the FIRPTA penalty is problematic and should be fixed.
The IRS notice (and FIRPTA in general) picks winners and losers. It subjects foreign investment in real property to a higher tax burden than investment in any other asset class.
A foreign taxpayer investing in a U.S. REIT will be subject to the FIRPTA tax penalty, but that same taxpayer would not be subject to U.S. tax from receiving a liquidating distribution from any other type of corporation.
The IRS notice has also restricted foreign investment in U.S. real estate and infrastructure. The U.S. is a top pick for foreign investors yet foreign investment in real estate is an anemic three percent of all foreign direct investment (FDI) in 2018. Withdrawing the notice should be step one toward correcting this problem.
The benefits of FIRPTA reform are not merely theoretical. When Congress made minor changes to FIRPTA that eased tax burdens for some foreign investors in 2015, billions of dollars were injected into the U.S. real estate market nationwide.
The potential gains are significant – A 2017 study by the Rosen Group found that full FIRPTA repeal would increase investment into the U.S. by between $65 billion and $125 billion creating284,000 to 147,000 new jobs.
In the long term, Congress can unlock these economic gains by passing H.R. 2210, the “Invest in America Act.” This bipartisan legislation, which will fully repeal FIRPTA, was introduced by House Ways and Means Committee members John Larson (D-CT) and Kenny Marchant (R-TX).
However, the Trump Administration need not wait for Congress to act to bring more badly-needed FDI dollars to the U.S. Aligning with its own priorities to reduce taxpayer and regulatory burdens, the Administration can act now to increase investment in the U.S., grow U.S. jobs, and raise Americans’ wages by pulling Notice 2007-55 and offering relief from FIRPTA double taxation.