Senator Hatch has introduced a bill in the Senate to tweak the rules for REITS (Real Estate Investment Trusts). This is undoubtedly due in large part to hard work by Tony Edwards at NAREIT.
Most of it does not concern us in the international tax field. But one piece does. Section 201 of the Bill creates a fix to Section 897. This is the part of the Internal Revenue Code that makes sure that foreign investors in U.S. real estate pay capital gains tax on their profits when they sell.
The proposed legislation is intended to eliminate a major conundrum that currently exists for foreign purchasers of REIT stock. Here’s the legislative language.
TITLE II — FIRPTA CORRECTION
SEC. 201. MODIFICATION OF THE TREATMENT OF CERTAIN REIT DISTRIBUTIONS ATTRIBUTABLE TO GAIN FROM SALES OR EXCHANGES OF UNITED STATES REAL PROPERTY INTERESTS.
(a) IN GENERAL. — Paragraph (1) of section 897(h) (relating to look-through of distributions) is amended by inserting before the period at the end the following: ‘, except that any distribution by a REIT with respect to any class of stock which is regularly traded on an established securities market located in the Unites States shall not be treated as gain recognized from the sale or exchange of a United States real property interest if the shareholder did not own more than 5 percent of such class of stock during the taxable year.’.
(b) EFFECTIVE DATE. — The amendment made by this section shall apply to taxable years beginning after the date of the enactment of this Act.
Net result: this means that the capital gain passthrough to a foreign shareholder in a REIT is not within the ambit of Section 897.