6013(g) Election and FIRPTA Withholding

[smicp]

Is an individual that has made the election to be treated as a resident of the U.S. under IRC 6013(g) subject to FIRPTA withholding when selling real property in the U.S.?

There seems to be contradictory information on this in the internet. I have found this IRS presentation where they say ( slide 8 ) that an individual that has made the 6013(g) election is a U.S. person (i.e., no FIRPTA withholding). However, some experts seem to have a different opinion (see here for example).

Also, if the answer to my question is yes, how would the individual go about filing a tax return to claim the tax withheld back? In general, a FIRPTA individual should file form 1040NR to claim the tax back, but in the case of a 6013(g) individual you would file either jointly with your U.S. spouse or separately, and in either case you would submit form 1040. 

[SusanY1]

It likely depends.  I tend to agree with those who say the withholding would apply if the individual is no longer present in the US at the time of the sale and isn't a permanent resident. 

In order to reconcile withholding with actual tax, the individual will file either form 1040 or 1040NR as appropriate based on the facts and circumstances that apply at the time of the filing of the tax return. 

Whether or not it is required to withhold tax may be a somewhat moot point as the closing agent is likely to err on the side of caution and withhold the tax for any individual who is not physically residing in the US. 

It is not unheard of for closing agents to withhold for US citizens who live abroad, which is not a requirement under the law.  However, the consequence for not withholding when required are pretty severe and since most closing agents aren't experts in the area they tend to withhold when there is any doubt.