California Real Estate Law

Written by Gene Aalseth,
First American Title Insurance Company

California has modified its withholding law effective January 1, 2003. The most important change is that Individuals selling property in California, both residents and non-residents, are subject to withholding of 3 1/3 percent of the sales price.

The bill has been enrolled and affects sales occurring after January 1, 2003. The California Franchise Tax Board advised me that they would not have revised forms ready until sometime in December.

More information can be found in the following News Bulletin from the California Land Title Association.

CLTA News Express

(Reprinted with permission)

Dispositions of California real estate interests that occur on or after January 1, 2003 will be subject to withholding. As part of the budget solutions proposed by members of the California Legislature, Assembly Bill 2065 (for the complete bill text, see the link at the bottom of this bulletin), requires all real estate transferees (buyers) to withhold 3 1/3% of the sales price of specified California real property. The amount withheld shall be held in trust for the State of California according to the law. The sales price is defined to mean the cash paid, plus the fair market value of property transferred plus any liability assumed. It does not subtract any expenses of the sale.

The law sets forth a notice to be supplied by the escrow agent to the transferee with the escrow agent handling various certifications and, if necessary, the withholding and transmittal of funds to the Franchise Tax Board in the form and manner and at the time specified by the Franchise Tax Board.

The provisions in AB 2065 are patterned after Cal-FIRPTA (Foreign Investment in Real Property Tax Act) which became effective in 1988, which was in turn patterned after the federal law first adopted in 1980. Cal-FIRPTA currently relates only to withholding of real estate proceeds of foreign, non-resident aliens. The law amends CAL-FIRPTA to set up withholding requirements relating to three classes of transferors:

  • Individuals;
  • Persons (but not certain partnerships, or an individual or a corporation) where the funds are to be distributed to a transferor outside the state or to the financial intermediary of the transferor;
  • Corporations.

Under the new law, 3 & ?% of the sales price is required to be withheld unless:

  1. The property sales price is less than $100,000; or
  2. The property is the principal residence of an individual transferor based on a written certification signed under penalty of perjury; or
  3. The property is transferred to a corporate beneficiary by a foreclosure or a deed in lieu; or
  4. The property transferred by an individual and will be replaced in a like kind exchange, based on a written certification by the transferor or signed under penalty of perjury; or
  5. The property is transferred by an individual as an involuntary conversion and the transferor certifies an intent to acquire replacement property eligible for deferral under Section 1033 of the Internal Revenue Code.
  6. The transferor is an individual who certifies under penalty of perjury that the transaction will result in a loss for California income tax purposes.
  7. The transferor is a corporation unless immediately after the transfer, the corporation has no permanent place of business in California. A corporation has no permanent place of business if all of the following apply:
    • It is not organized and existing under the laws of California.
    • It does not qualify with the office of the Secretary of State to transact business in California.
    • It does not maintain and staff a permanent office in California.

An escrow agent would:

  • Provide written notification of the withholding requirements to the parties;
  • Provide certification forms for the exemptions contained in the bill;
  • Provide instructions to be signed by the parties authorizing the withholding and remitting of the amount to the Franchise Tax Board along with any charge imposed for withholding and remitting, not to exceed $45.

It is unlawful for any escrow person to charge any customer for complying with the provisions of the law unless “assistance” is provided. Assistance is not simply providing written notification of the requirements. Assistance can be:

  • Helping the parties clarify with the Franchise Tax Board the issue of whether withholding is required, or
  • Helping the parties request that the Franchise tax Board authorized a reduced amount or no amount to be withheld, or
  • Upon request of the parties withholding and remitting the funds.

The bill does allow transferors that are corporations or other entities to request a waiver from the Franchise Tax Board if documentation is provided showing that to substitute a reduced or no amount will not jeopardize collection of the tax. In such case, the withholding amount may be escrowed for 45 days to allow for a determination. The bill also allows an election for installment sales to have each installment subject to the withholding in a manner specified by the Franchise Tax Board. It also has provisions applicable to exchange accommodators regarding withholding where the exchange does not qualify for non-recognition.

a non-profit service organization for title companies
PO Box 13968, Sacramento, CA 95853-3968
1110 K Street, Suite 100, Sacramento, CA 95814-3905
Tel: 916-444-2647; Fax: 916-444-2851
Federal Tax ID: 95-0595810

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