United States: Real Estate Investments By Qualified Foreign Pension Funds After The PATH Act

The Protecting Americans from Tax Hikes Act of 2015 ("PATH Act") included a number of significant changes to the U.S. federal income tax rules related to real estate investment trusts ("REITs") and investments by non-U.S. investors in U.S. real estate (commonly referred to as "FIRPTA"). For a detailed overview of these PATH Act changes, please refer to our client alert: "Significant Changes to U.S. Taxation of REITs and Investments by Non-U.S. Investors in Real Property under the PATH Act". The PATH Act changes raise practical questions regarding both their direct impact and their interaction with other existing provisions. This series of blog posts addresses questions of significance relating to the REIT and FIRPTA changes in the PATH Act. This post focuses on the U.S. tax rules for "qualified foreign pension funds" investing in U.S. real estate.

The PATH Act alters the treatment of certain foreign pension funds and their subsidiaries. Distributions or dispositions of a United States real property interest ("USRPI")1 by a qualified foreign pension fund2 (or a blocker, for this purpose a wholly-owned non-U.S. subsidiary of such a fund, formed in any jurisdiction) on or after December 18, 2015 generally are no longer subject to withholding or tax under the FIRPTA regime. This is a welcome change, since it reduces the disparity between non-U.S. and U.S. pension funds with respect to investments in USRPIs. However, the general FIRPTA exemption does not mean that the qualified foreign pension funds can invest in any USRPI without any exposure to U.S. federal income tax. A qualified foreign pension fund will be subject to U.S. federal income tax on its net "effectively connected income" ("ECI") if an election is made under Section 882(d) to treat such rental income as ECI, and, if no election is made, such rental income will be subject to gross basis U.S. federal withholding tax generally at 30% unless reduced by an applicable treaty. Well-advised non-U.S. investors typically find the ECI election for rental income beneficial as it typically results in an overall lower U.S. federal tax cost. However, the election also requires the non-U.S. investor to file U.S. federal income tax returns, and therefore, investing through a blocker is often thought to be beneficial as only the Blocker needs to file U.S. federal income tax returns, and not the ultimate non-U.S. investor.

Prior to the PATH Act, the Section 882(d) election was largely irrelevant to the consequences of a sale of a USRPI since such a sale was subject to U.S. federal income tax either as the sale of an ECI generating asset or as a USRPI sale subject to FIRPTA. Following the PATH Act, however, this calculus changes significantly if a qualified foreign pension fund or its blocker makes the Section 882(d) election and generally recharacterizes the USRPI from a capital asset to an ECI generating asset, then the qualified foreign pension fund would be liable for U.S. federal income tax on the gain resulting from the sale, even if no liability would arise under FIRPTA. By contrast, if the Section 882(d) election only recharacterizes the rental income generated by the USRPI as ECI, then the FIRPTA exemption would mean that gain on a sale of the USRPI generally would escape U.S. federal income tax, with limited exceptions including depreciation recapture as discussed below.

While there is limited precedent, it would appear that the IRS would take the view that a Section 882(d) election does not change the character of the underlying asset. In Revenue Ruling 92-74 and a private ruling from 1990, the IRS ruled that the Section 882(d) provisions should be analyzed identically to the Section 871(d) provisions (which deal with non-U.S. individuals), referring to Treasury Regulations Section 1.871-10(c)(2), which states that real property or any interest in real property subject to a Section 871(d) election will still be treated as a capital asset for all other purposes of the Code. Therefore, this authority suggests that gain recognized on the sale of a USRPI generally may not be recharacterized as gain from the sale of ECI generating assets as a result of the Section 882(d) election. It is not clear whether or when the IRS might update or clarify this authority in light of the PATH Act (which as discussed above makes the answer to this question more relevant than it was under prior law).

A very important caveat to the discussion above is that notwithstanding the answer to the question about the effect of the Section 882(d) election, depreciation recapture nevertheless would be subject to U.S. federal income tax on a sale of a USRPI, even if capital gains on such dispositions may not be. Section 1250(a)(1)(A) and Treasury Regulations Section 1.1245-1 provide that tax on depreciation recapture is owed even if, in the absence of the depreciation recapture rules, there would be no tax owing on the transaction, and nothing in the analysis above or the PATH Act would appear to alter this result.

Ultimately, qualified foreign pension funds have potentially received a significant benefit from the changes made to FIRPTA by the PATH Act, but qualified foreign pension funds and their blockers remain exposed to U.S. tax liability on their interests in USRPI.

Footnotes

[1] United States real property interest is an interest in real property located in the United States or an interest in a United States real property holding corporation (other than an interest solely as a creditor). See Section 897(c)

[2] "Qualified foreign pension fund" is defined in Section 897(l) ; please see the discussion in our client alert.

Real Estate Investments By Qualified Foreign Pension Funds After The PATH Act

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions