Seller's Affidavit of Nonforeign Status (FIRPTA)
The Seller's Affidavit of Nonforeign Status, better known by its acronym FIRPTA, is one of those escrow documents that looks like paperwork nobody reads until the wrong box gets checked and a chunk of the seller's proceeds disappears into IRS withholding. It's a federal form, not a California one, and it exists purely to answer one question: is the seller a foreign person for tax purposes? Get that answer wrong or leave it incomplete, and everyone in the transaction feels it at the closing table.
Why This Document Matters
The Foreign Investment in Real Property Tax Act, the law FIRPTA is named after, requires buyers to withhold a percentage of the sale price when they purchase U.S. real property from a foreign seller. The buyer is the one legally on the hook for the withholding, not the seller and not the agents, which is exactly why this document matters so much. If the seller is actually a foreign person and no withholding happens, the IRS can come after the buyer for the amount that should have been withheld.
The FIRPTA affidavit is how a seller who is not a foreign person avoids that withholding entirely. By signing the affidavit under penalty of perjury, the seller certifies their non-foreign status, and the buyer is relieved of the withholding obligation. Escrow relies on this document to know whether to withhold anything at all, which is why it needs to be completed early and completed correctly. This is closely related to the Statement of Information, another identity-verification document that shows up around the same point in escrow.
How It Works
Escrow typically sends the FIRPTA affidavit to the seller shortly after opening the file. The seller reviews the certification language and either checks the box confirming they are not a foreign person, or discloses that they are, in which case a different process applies involving actual withholding and additional IRS forms.
If the seller certifies non-foreign status, that signed affidavit is generally kept in the escrow file rather than filed with the IRS. It's the buyer's protection, their evidence that they had a reasonable basis to skip withholding. If the seller is a foreign person, or refuses to sign the affidavit, the buyer's withholding obligation kicks in, and the transaction needs to account for that withholding as part of the closing numbers.
Separately, California has its own withholding requirement that runs alongside FIRPTA. Even U.S. citizens and residents can be subject to California withholding under certain conditions, which is where Form 593 comes in. The two documents are often handled together during the same stretch of escrow, but they answer different questions: FIRPTA is about federal foreign-person status, Form 593 is about California state withholding exemptions.
Key Sections Explained
Certification of Non-Foreign Status: This is the core of the form. The seller declares, under penalty of perjury, that they are not a nonresident alien, foreign corporation, foreign partnership, or other foreign entity as those terms are defined under federal tax law. This single certification is what relieves the buyer of the withholding requirement.
Taxpayer Identification Number: The seller provides their Social Security Number, or for entities, their federal Employer Identification Number. This is a required field, not optional, and an affidavit missing this information is generally treated as incomplete.
Property and Transferor Information: The affidavit identifies the property being sold and the seller's identifying details, tying the certification to this specific transaction so there's no ambiguity about which sale it applies to.
Authority to Sign: If the seller is an entity, such as a corporation, partnership, LLC, or trust, the person signing needs to state their authority to sign on the entity's behalf. This section gets missed more often than it should, especially on trust and LLC-owned properties.
Common Mistakes to Avoid
Leaving the Social Security Number or Taxpayer Identification Number blank is one of the most common issues. An incomplete affidavit doesn't actually protect the buyer, since it doesn't satisfy the requirements for a valid non-foreign certification. If that field is missing, the buyer's withholding obligation may still apply even though the seller believes they've handled it.
Assuming the affidavit is unnecessary because the seller is obviously a US citizen is another mistake. The form still needs to be completed and kept in the file. Buyers and their agents need documentation, not just an assumption, to establish that withholding wasn't required.
Missing the entity authority section on trust or LLC-held property causes real delays. If the person signing doesn't clearly state they have authority to sign on behalf of the transferor entity, escrow may need to go back for clarification, which slows things down right before closing.
Confusing FIRPTA with California's separate withholding requirement is common enough to call out specifically. A seller can be exempt from FIRPTA and still owe California withholding, or vice versa in some situations. They're separate certifications governed by separate laws, and one doesn't automatically clear the other.
Pro Tips from a TC
Get the FIRPTA affidavit out to the seller early in escrow, ideally in the same batch as the Statement of Information and other identity documents. Waiting until the final week of escrow to sort out a foreign-status question is not where you want to be.
If a seller lives outside the US or has a foreign mailing address, don't assume that automatically means foreign status for tax purposes. Residency and citizenship for FIRPTA purposes follow specific IRS tests. If there's any ambiguity, the seller should talk to a tax professional rather than guessing on the affidavit. Transaction compliance support can flag these situations early so they don't become a surprise at closing.
For entity-owned properties, confirm who has signing authority before the affidavit goes out. Chasing down the right signer during closing week adds unnecessary stress to a transaction that should already be locked in.
Keep the signed affidavit in the file even though it typically isn't filed with the IRS. If a question ever comes up post-closing about why withholding wasn't applied, that signed certification is the buyer's documentation.
Related Documents
- California Form 593 (Real Estate Withholding Statement), the state-level counterpart that covers California withholding exemptions
- Statement of Information, another identity-verification document completed early in escrow
- Escrow Instructions, the governing document for how escrow handles withholding and closing funds
- Preliminary Title Report, part of the broader title and closing documentation package
- All California Real Estate Documents
Frequently Asked Questions
Q: Does every seller need to sign a FIRPTA affidavit?
Every escrow should address the question, even if the answer is a straightforward non-foreign certification. Escrow needs documentation one way or another to determine whether withholding applies. Skipping the form because the seller is obviously a US citizen isn't standard practice. It still needs to be completed and kept in the file.
Q: What happens if the seller is actually a foreign person?
If the seller cannot certify non-foreign status, the buyer generally must withhold a percentage of the sale price and remit it to the IRS. There are exceptions and reduced withholding options in certain situations, but they require additional IRS filings. This is a scenario where the seller, buyer, and escrow should be working with a qualified tax professional, since the withholding calculations and exceptions can get complicated.
Q: Is FIRPTA the same as California's withholding requirement?
No. FIRPTA is a federal law addressing foreign sellers specifically. California has its own separate withholding requirement, addressed through Form 593, that can apply even to US citizens and residents under certain circumstances, such as when the property isn't the seller's principal residence or the sale involves specific exemption criteria. A seller can clear one and still need to address the other.
Getting the FIRPTA affidavit right is a small but essential piece of a clean closing. If you're managing the identity and withholding documents across multiple escrows, that's exactly the kind of detail Relaxed Agent tracks as part of California virtual transaction coordination. See what a TC handles throughout escrow.
Learn About Other Documents
Wire Fraud Advisory
An advisory warning buyers about the risk of wire fraud in real estate transactions and providing guidance on how to verify wire transfer instructions.
Buyer's Estimated Closing Costs
An estimate of all costs the buyer will need to pay at closing, including down payment, loan costs, escrow and title fees, and prepaid items.
HOA Documents
A package of documents from the homeowners association including CC&Rs, bylaws, financial statements, meeting minutes, and any pending special assessments.

















