Non Foreign Affidavit Template for the United States

When you sell real property in the United States, buyers may be required to withhold a percentage of the purchase price for tax purposes unless you can prove you're not a foreign person. A Non Foreign Affidavit serves this crucial purpose, allowing you to certify your U.S. status and avoid unnecessary tax withholding under the Foreign Investment in Real Property Tax Act (FIRPTA).

When do you need this document?

You need a Non Foreign Affidavit whenever you're selling real estate and the buyer requires proof of your non-foreign status to avoid FIRPTA withholding obligations. This typically occurs in residential home sales, commercial property transactions, and transfers of vacant land. Real estate attorneys, title companies, and closing agents often request this document as standard practice to protect buyers from potential IRS penalties. The affidavit is also necessary when refinancing certain properties or in 1031 exchanges involving foreign seller concerns.

Key legal considerations

The affidavit must include specific elements to be legally valid: your full legal name and current address, a complete legal description of the property being transferred, your U.S. taxpayer identification number (Social Security Number or Employer Identification Number), and a sworn declaration that you're not a foreign person as defined by IRC Section 7701(b). The document must be executed under penalty of perjury, meaning false statements can result in criminal charges. You must also understand that providing incorrect information could subject you to significant fines and legal consequences. The affidavit should be notarized in most jurisdictions, and some states have additional requirements for witness signatures or specific formatting.

Legal requirements in United States

Under FIRPTA and IRC Section 1445, buyers must withhold 15% of the gross sales price when purchasing real property from foreign persons, unless an exception applies. The Non Foreign Affidavit serves as the primary exception mechanism for U.S. persons. Treasury Regulation 1.1445-2 specifies that the affidavit must contain the transferor's name, U.S. taxpayer identification number, and a statement that the transferor is not a foreign person. The document must be signed under penalties of perjury and delivered to the transferee at or before the time of transfer. While FIRPTA is federal law, individual states may impose additional requirements, such as mandatory notarization or specific form language. Some states also require the affidavit to be recorded with the deed or filed with local tax authorities.