The short answer
A FIRPTA affidavit, formally a certification of non-foreign status, is the statement a seller signs at or before closing, under penalties of perjury, that it is not a foreign person, giving its U.S. taxpayer identification number and address. Under section 1445(b)(2) it relieves the buyer of the duty to withhold 15% of the amount realized. A valid Form W-9 can serve as the certification, and a single-member LLC cannot sign as the seller: its owner must.
At a glance
| Who signs | The transferor for tax purposes, which for a disregarded entity is its owner |
|---|---|
| What it states | Not a foreign person, plus taxpayer identification number and home or office address |
| Effect | No withholding; without it, the buyer may withhold 15% of the amount realized |
| Retention | The buyer keeps the certification for five years |
The affidavit comes from section 1445 and its regulations.
Section 1445(a) requires a buyer of U.S. real property from a foreign person to withhold 15% of the amount realized, and section 1445(b)(2) lifts that duty when the seller furnishes an affidavit, under penalty of perjury, stating its taxpayer identification number and that it is not a foreign person. The IRS FIRPTA withholding page confirms the 15% rate.
Reg. section 1.1445-2(b) sets the details. The certification must be given before or at the time of the transfer, and no particular form or wording is required. An entity's certification is signed by a responsible officer, a general partner or a trustee, and a domestic entity must also certify that it is not a disregarded entity. A valid Form W-9 counts as a certification, and the buyer must keep it for five years. The buyer is not obliged to demand one, but may withhold if none is given.
A hypothetical: an LLC on the deed and an owner on the affidavit.
Hypothetical figures: you own a $1,000,000 rental through a single-member LLC that has never elected corporate treatment. The deed is in the LLC's name, but the regulations say a disregarded entity is not the transferor; you are. You sign the individual certification with your own Social Security number and home address, and the LLC signs the deed.
If the closer instead had the LLC sign an entity certification, it would have to state that the LLC is not a disregarded entity, which would be false. If you were a nonresident alien, no certification would be possible, and the buyer would withhold $150,000 unless a withholding certificate was obtained. Run your own numbers with your CPA.
Check the name on every closing document against the deed and your exchange agreement. A mismatch between the affidavit signer, the W-9 and the exchange party is easier to fix the week before closing than after the money has moved.
It bites when the seller is an entity or a foreign person.
In an exchange, the person on the affidavit should be the same taxpayer who will receive the replacement property; the same-taxpayer rule explains why an LLC and its owner can be one taxpayer while a partnership is another. The affidavit usually comes with a Form W-9 for Form 1099-S, and one signed W-9 can do both jobs.
A foreign seller cannot sign the affidavit. The route that keeps exchange proceeds from being remitted to the IRS is a withholding certificate application on Form 8288-B, covered in FIRPTA and Form 8288-B at closing, with DST-specific points in foreign investors, DSTs and 1031 issues.
Related questions
Does a 1031 exchange change the FIRPTA affidavit?
No. A U.S. seller signs the same certification whether or not the sale is part of an exchange. The exchange matters only for foreign sellers, who must deal with withholding.
Who signs for a revocable living trust?
For a grantor trust with a U.S. grantor, the Form W-9 instructions say the grantor, not the trust, provides the W-9 that establishes non-foreign status, and a valid W-9 counts as the certification. Whether your trust is a grantor trust is a question for your CPA; see revocable living trust in a 1031.
Does the IRS receive the affidavit?
The regulations have the buyer keep it rather than file it. The sample wording in the regulations warns the seller that the buyer may disclose it to the IRS and that a false statement can be punished.
Sources
Checked against these publications on September 30, 2026. Rules and figures change; confirm the current version with your CPA or attorney before you act. This page is general information, not tax or legal advice.