U.S. real property holding corporation: Overview, definition and example
What is a U.S. real property holding corporation?
A U.S. real property holding corporation (USRPHC) is a corporation whose primary assets consist of U.S. real property interests (USRPIs). Under the Internal Revenue Code, a corporation is considered a USRPHC if at least 50% of the value of its assets is attributable to U.S. real property interests, such as land, buildings, or mineral rights. This designation has tax implications, particularly for foreign investors, as the sale or transfer of interests in a USRPHC is subject to U.S. federal income tax under the Foreign Investment in Real Property Tax Act (FIRPTA).
Why is a U.S. real property holding corporation important?
Understanding the designation of a U.S. real property holding corporation is important because it determines the tax treatment of transactions involving the corporation’s stock or assets. For foreign investors, owning shares in a USRPHC means that the disposition of those shares may be treated as a sale of U.S. real property and subject to FIRPTA withholding and taxation.
For corporations, being classified as a USRPHC comes with additional compliance and reporting obligations. Properly identifying and managing this classification helps prevent unexpected tax liabilities and ensures adherence to U.S. tax laws.
Understanding a U.S. real property holding corporation through an example
Imagine a corporation owns a portfolio of assets that includes office buildings, shopping centers, and undeveloped land in the United States. These U.S. real property interests account for 70% of the corporation’s total asset value. As a result, the corporation is classified as a U.S. real property holding corporation. If a foreign investor sells their shares in the corporation, the sale is subject to FIRPTA withholding and U.S. federal income tax.
In another example, a foreign company purchases a 60% stake in a U.S. corporation whose primary asset is a luxury apartment complex. Because the corporation qualifies as a USRPHC, the foreign company must comply with FIRPTA regulations, including reporting the acquisition and paying any applicable taxes on future dispositions of the shares.
An example of a U.S. real property holding corporation clause
Here’s how a U.S. real property holding corporation clause might appear in an agreement:
“The Company represents and warrants that it is not, and has not been during the applicable testing period, a U.S. real property holding corporation as defined under Section 897(c)(2) of the Internal Revenue Code. In the event the Company becomes a U.S. real property holding corporation, it shall notify all shareholders and comply with all applicable withholding and reporting requirements under FIRPTA.”
Conclusion
A U.S. real property holding corporation classification has significant tax and compliance implications, especially for foreign investors. Understanding this designation helps businesses and investors navigate the complexities of U.S. tax laws, avoid unexpected liabilities, and ensure proper reporting and compliance. Including a clause addressing USRPHC status in agreements provides clarity and protects the interests of all parties involved.
This article contains general legal information and does not contain legal advice. Cobrief is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.