The main IRS form under the Foreign Investment in Real Property Tax Act is Form 8288, filed by the buyer with Form 8288-A and the withheld tax within 20 days of the property transfer. Depending on the deal, three other documents can enter the picture: Form 8288-B if the seller wants the IRS to reduce or eliminate withholding, a written non-foreign certification from the seller if FIRPTA shouldn’t apply at all, and Form W-7 if the foreign seller doesn’t yet have a U.S. taxpayer identification number.
Form 8288 and Form 8288-A
Form 8288 is the withholding tax return. The buyer uses it to report the amount realized on the sale, the withholding rate applied, and identifying information for both sides of the transaction, then signs under penalties of perjury. It’s submitted with Form 8288-V, a payment voucher that accompanies the check or money order for the withheld amount.1eCFR. 26 CFR 1.1445-1 – Withholding on Dispositions of U.S. Real Property Interests by Foreign Persons: In General
Form 8288-A is the statement of withholding that rides along with the return. The buyer sends copies A and B of Form 8288-A with Form 8288.2Internal Revenue Service. Instructions for Form 8288 (Rev. January 2026) After the IRS processes the return, it stamps copy B and mails it to the foreign seller. That stamped copy matters. It’s the seller’s proof the tax was paid and the document that supports claiming a credit on a later U.S. tax return. If it never arrives, recovering the withholding turns into a paperwork problem.
How Much to Withhold
The default FIRPTA rate is 15% of the amount realized, which is essentially the gross sales price rather than the seller’s profit.3Office of the Law Revision Counsel. 26 U.S. Code 1445 – Withholding of Tax on Dispositions of United States Real Property Interests Two exceptions cut that rate when the buyer is an individual buying a home to live in:
- No withholding is required when the amount realized is $300,000 or less and the buyer has definite plans to use the property as a residence for at least 50% of the days it is used during each of the first two 12-month periods after the purchase.4Internal Revenue Service. Exceptions from FIRPTA Withholding
- The rate drops to 10% when the amount realized is more than $300,000 but not more than $1,000,000 and the same residence-use test is met.3Office of the Law Revision Counsel. 26 U.S. Code 1445 – Withholding of Tax on Dispositions of United States Real Property Interests
For any sale above $1,000,000, or any property the buyer doesn’t intend to occupy, the full 15% applies. Because the calculation runs against the full sales price, the withheld amount often overshoots the seller’s actual tax on the gain. Form 8288-B is the tool for that situation.
The Non-Foreign Certification
Many people searching for a “FIRPTA form” are really looking for the non-foreign affidavit, sometimes called a FIRPTA certificate. The IRS does not publish this document. It is a written statement the seller gives the buyer, signed under penalties of perjury, swearing the seller is not a foreign person. If the buyer receives a valid certification, no withholding is required.4Internal Revenue Service. Exceptions from FIRPTA Withholding
The certification has to include the seller’s name, U.S. taxpayer identification number (SSN or ITIN), and home address, along with a statement that the seller is not a nonresident alien. Title companies and real estate attorneys usually draft it as part of the closing package. Keep the original. If the IRS later asks why nothing was withheld, that affidavit is the buyer’s defense.
One catch worth knowing: if the buyer’s agent or the settlement officer has actual knowledge that the certification is false and stays quiet, withholding liability shifts to that agent, capped at the compensation the agent received from the transaction.4Internal Revenue Service. Exceptions from FIRPTA Withholding
Form 8288-B: Applying for Reduced Withholding
When 15% of the price would sit far above the seller’s real tax liability on the gain, the seller can file Form 8288-B asking the IRS to authorize a lower withholding amount or none at all. The application walks through the seller’s maximum tax liability from the sale and asks the IRS to issue a withholding certificate.5Internal Revenue Service. About Form 8288-B, Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests
Timing is the key. If Form 8288-B is submitted on or before the transfer date, the buyer does not have to send the withheld funds to the IRS on the usual schedule. The money can sit in escrow until the IRS acts on the application. Once the IRS mails its decision, the buyer has 20 days to remit whatever amount is ultimately due.6Internal Revenue Service. Form 8288-B – Application for Withholding Certificate for Dispositions by Foreign Persons of U.S. Real Property Interests
The IRS normally acts on a complete application within 90 days. Incomplete applications reset the clock when the missing information arrives. That’s why sellers who want access to their sale proceeds without a long escrow hold tend to start the 8288-B process well before closing.
Where and When to File
Form 8288, copies A and B of Form 8288-A, and the tax payment go to the same address:
Internal Revenue Service Center
P.O. Box 409101
Ogden, UT 84409
The deadline is the 20th day after the date of the property transfer.2Internal Revenue Service. Instructions for Form 8288 (Rev. January 2026) As of the January 2026 instructions, Form 8288 cannot be filed electronically. It has to go by mail.7Internal Revenue Service. FIRPTA Withholding Most closing agents prepare and mail the package within days of closing to leave room for handling and postage.
Both parties need taxpayer identification numbers on the forms. For the buyer, that’s usually a Social Security Number or Employer Identification Number. For the foreign seller, it’s an ITIN, which is where many transactions hit friction.
When the Seller Has No ITIN: Form W-7
A foreign seller without an ITIN applies for one on Form W-7. For FIRPTA transactions, the seller checks Box “h” (other) in the reason section and writes “Exception 4” in the space provided.8Internal Revenue Service. ITIN Guidance for Foreign Property Buyers and Sellers
The buyer still sends Form 8288, Form 8288-A, and the payment to Ogden by the 20-day deadline whether or not the seller has an ITIN yet. Separately, the seller mails a completed Form W-7 with supporting identification documents and photocopies of Forms 8288 and 8288-A to:
Internal Revenue Service
P.O. Box 149342
Austin, TX 78714-93428Internal Revenue Service. ITIN Guidance for Foreign Property Buyers and Sellers
If a Form W-7 is attached to the Form 8288 package sent to Ogden, the Ogden office will forward it to Austin. Either route works, but the missing ITIN slows down the seller’s credit for the withholding, so applying early pays off.
Who Is Liable if the Form Isn’t Filed
The buyer takes on the most risk. A buyer who fails to withhold when withholding was required is personally liable for the full amount, plus penalties and interest, if the seller doesn’t pay.4Internal Revenue Service. Exceptions from FIRPTA Withholding Interest compounds daily at the IRS underpayment rate, which the agency sets quarterly.9Internal Revenue Service. Quarterly Interest Rates
Real estate agents and settlement officers can also be liable, but only in a narrow band. The IRS defines an “agent” as someone who represents either party in negotiating or settling the deal. Purely clerical work, like typing, copying, recording documents, or disbursing funds, doesn’t put a person in that category. An agent who knows a non-foreign certification is false and doesn’t speak up becomes liable for the withholding tax, up to the amount of the agent’s compensation from the transaction.4Internal Revenue Service. Exceptions from FIRPTA Withholding
What the Seller Files After Closing
FIRPTA withholding is not a final tax. It’s an estimated payment collected against a later filing. Since the calculation runs on the amount realized rather than on the gain, the withholding often exceeds what the seller actually owes.
To reconcile, the foreign seller files a U.S. income tax return, typically Form 1040-NR for nonresident individuals, reports the sale, and claims the FIRPTA withholding as a credit. The stamped copy of Form 8288-A the IRS mails back after processing is the supporting document. Sellers who expect a large overwithholding and want to avoid tying up cash for months should look at Form 8288-B before closing rather than waiting for the return to true things up.
State Withholding Is Separate
FIRPTA is federal. Many states impose their own withholding on real estate sales by nonresidents, use their own forms, and sometimes apply the requirement to out-of-state U.S. sellers as well. Rates and rules vary by state, and some states have no such requirement at all. State obligations run alongside FIRPTA rather than replacing it, so a transaction with a foreign seller may need both a Form 8288 filing and a separate state filing.