Under FIRPTA, foreign persons are subject to U.S. tax on dispositions of directly held interests in U.S. real property as well as on dispositions of stock in certain U.S. real property holding corporations. Congress enacted FIRPTA to combat several techniques used by foreign persons to avoid U.S. tax on dispositions of U.S. real estate. However, since FIRPTA's enactment, changes in the tax law would defeat these tax avoidance techniques. Consequently, this raises the issue of whether FIRPTA continues to make sense as a policy matter.
This article suggests that the repeal of portions of FIRPTA may be in order and sets forth an analysis of the various considerations in arriving at this conclusion. While it is somewhat unclear as to whether Congress's original reasons continue to justify the rule for directly held U.S. real estate, fundamental policy considerations call for the retention of this rule. On the other hand, serious consideration should be given to eliminating the rules that apply to dispositions of stock in certain U.S. real property holding corporations: an original purpose analysis of these rules is inconclusive, and a revised policy analysis suggests that the equity and efficiency benefits of the rules may not warrant the administrative costs involved.