Ownership Structures for Buying Property in NYC

Non-resident aliens (NRAs) often invest in New York real estate thanks to the market’s history of consistent growth. There are several ways that non-resident aliens can acquire U.S. real estate. However, to control costs and personal information disclosures, NRAs can consider several ownership options. At Elika Real Estate, we act as exclusive buyer’s agents for foreign buyers and help our clients organize their ownership goals.

Important

The information below does not constitute legal advice, tax advice, or an official position from Elika Associates. We do not provide any guarantee or warranty that the information below is correct. Consult your tax professional for qualified income tax advice.

Direct Ownership Benefits

If you are a non-resident alien, directly owning a property has several distinct benefits and two significant disadvantages.

No Second Tax Levels for Rental Income

NRAs pay the second level of taxes on their repatriated operating earnings, including rental income, through some other ownership options listed below. The United States does not tax impute rental income for individual direct owners. By directly owning properties, NRAs avoid this consequence. Imputed income is essential in foreign alien ownership; we discuss it further when addressing other purchasing options.

Capital Gains Tax Advantages

Non-resident aliens typically have more favorable capital gains tax rates upon selling their properties through direct ownership than they might get through other options. The two primary disadvantages of direct ownership for non-resident aliens:

Income Tax Returns

NRAs must file personal tax returns with the United States Internal Revenue Service (IRS). These returns require non-resident aliens’ personal information, and some people prefer to avoid income tax filings because they do not want to disclose their identities to the IRS. There are instances in which an NRA would not immediately file income taxes; all direct owners need to register income tax statements when selling their properties.

Estate Taxes

The United States estate tax applies to properties owned by non-resident aliens, which can be a significant consideration for some buyers. These disadvantages compel many to consider alternatives, owning property through corporations and limited liability corporations.

U.S. and Foreign Corporations

Many buyers choose to purchase a property through a U.S.-based or foreign corporation. Owning a New York City property through a U.S. corporation offers the following advantages and disadvantages:

• Non-resident aliens get liability protection by holding real estate through a United States-based corporation. You pay a 35 percent federal income tax rate for operating the corporation.
• The corporation needs to list the address, taxpayer identification number, and the name of any person who owns more than 50 percent of the corporation’s stock to the IRS.
• However, the corporation owner does not need to file personal income tax statements.
• Repatriated funds (any money sent back to your home country) are subject to double taxation unless you decide to end the corporation and liquidate its holdings.
• You are subject to estate taxes when you own property as a United States corporation with direct ownership.

Foreign Corporation

You can also form a corporation in another country to own U.S. real estate, but the Foreign Investment in Real Property Tax Act (FIRPTA) comes into play. Here’s what you need to know about this option.

• You pay a 35 percent federal income tax for operating a foreign corporation inside the United States.
• Any repatriated operating income on your real estate is subject to an additional tax of 30 percent. Applies; to all of your real estate holdings.
• FIRPTA taxes don’t apply to stock sales but the real property interest.
• You do not pay estate taxes or gift taxes on real estate owned by a foreign corporation.

Please speak with a qualified tax accountant with experience with foreign corporations for more information on tax advantages and disadvantages related to your case.

Limited Liability Companies (LLC)

Some non-resident aliens create a limited liability corporation (LLC) to get some benefits of buying a property through a corporation and the flexibility of direct ownership. Limited liability corporations get their name from how the U.S. government assigns a limited tax liability to the owner or owners of the LLC.

Here’s what you need to know about purchasing a property through an LLC:

• You can form an LLC alone or with partners to acquire a property. United States tax law treats you as a disregarded entity if you are the sole owner. It means you are not an independent body from your LLC for tax purposes.
• An LLC corporation serves as a partnership when it has multiple owners.
• Many countries do not have a limited liability corporation designation or assess more tax liability for people with LLCs. Your home country’s tax laws will play an essential role in determining whether ownership through an LLC is worthwhile.

If you do not want to file personal income taxes, your home country assigns a similar tax status to LLCs as the United States.

Tiered Structures

Asset Protection and No Personal Income Tax Requirements.

You own a United States corporation through a foreign corporation or trust in a layered structure. Tiered structures are especially popular.

• There is no personal tax return requirement.
• You pay withholding taxes on declared dividends and distributions but not on deemed repatriations.
• When selling, the cash from the sale is repatriated to your foreign corporation.
• Although your home country’s tax charges still apply, you do not pay taxes to the Internal Revenue Service.
• You pay no estate taxes or gift taxes.

We recommend you work with experienced tax professionals to understand every option’s full advantages and disadvantages.

Understanding Your Options

Before choosing an ownership structure; consider the following questions:

• Am I willing to file a personal income tax return?
• How does my home country tax LLCs and corporations?
• Am I buying property for investment or personal use?
• Am I working with individuals who fully understand my goals and non-resident alien status?

By working with the Buyer’s Agent at Elika Real Estate, you can meet your real estate goals by purchasing excellent investment properties or a private home ideally suited to your lifestyle. We frequently work with non-resident aliens and can recommend various resources to help you take the first steps towards property ownership in New York City, including accountancy and legal professionals.