Introduction to the taxation of foreign investment in U.S. real estate
房地产属于税务驱动型行业。因此，美国税收政策的变动会影响房地产作为一种投资工具对非美国投资者的吸引力。举几个常见的例子，美国资本利得税提高、征收房地产处置税和美国的税务申报规定，都是对投资的政策阻碍。多年来，美国的房地产机构提出了多项缓解性建议，并力图对现有规定加以明晰。这些努力已经在一定程度上取得了成功。例如，近年来房地产投资信托 (“REIT”) 业的有关税收规则已得到诸多改善和明晰诠释。此外，对于某些涉及发放和调整贷款的交易，美国在一定程度上放松了征税力度，以缓解人民对税收政策会进一步抑制经济的忧虑。
在2010年的1月，美国众议院颁布了一条用于刺激房地产业复兴的法案 (H.R. 4539, the Real Estate Revitalization Act of 2010 (“Act”)) ，其颁布将在很大程度上减轻以前年度出台的境外投资美国房地产法案 (Foreign Investment in US Real Estate Tax Act of 1980 (“FIRPTA”)) 在征税方面的影响。此法案最重要的条文是关于取消在转移美国公司股票时FIRPTA 的影响。在另一方面，截至本指南付印之日，近期有关对非美国投资者降低或取消房地产处置税的提案，尚未引发任何实质性的政策调整。在此同时，奥巴马政府近期推出进一步加强跨境支付和转帐的税收申报和管理。虽然我们尚不知晓该等建议的最终影响，但重要的是，投资者必须了解现行税收规则，才能制定有效的美国房地产投资战略。
Real estate is very much a tax-driven industry. As a result, changes in U.S. tax policy have an impact on the relative attractiveness of real estate as an investment class for non-U.S. investors. Increases to the U.S. tax rates on capital gains, the taxation of the disposition of real estate, and US tax reporting requirements are often cited as examples of such policies that create obstacles to investment. Over the years, real estate organizations in the U.S. have offered proposals which would provide some relief and have sought clarification of existing rules. These efforts have met with various degrees of success. For example, in recent years there have been numerous improvements and clarifications to tax rules governing the operations of Real Estate Investment Trusts (“REIT”). Additionally, the taxation of certain transactions involving the origination and modification of indebtedness has been somewhat relaxed to respond to the concerns of the impact of taxes on an already distressed economy.
In January 2010, a bill was introduced in the U.S. House of Representatives (H.R. 4539, the Real Estate Revitalization Act of 2010 (“Act”)) that would significantly reduce the impact of the Foreign Investment in U.S. Real Estate Tax Act of 1980’s (“FIRPTA”) taxation of foreign investment in U.S. real estate. Most notably, the Act would eliminate the application of FIRPTA on the sale of shares in U.S. companies that predominantly own real estate. On the other hand, recent proposals to reduce or repeal the taxation of the disposition of real estate by non-U.S. investors have not resulted in any substantive changes as of the printing of this Guide. Finally, recent proposals by the current Obama administration seek to further tighten the U.S. tax reporting requirements associated with cross border payments and transfers. While the ultimate impact of such proposals is unclear, it is important that investors have an understanding of the tax rules currently in place in order to effectively develop a U.S. real estate strategy.
The following is an introduction to some of the more significant tax issues that should be considered by non-U.S. investors in this regard.