Why tax planning for real estate is becoming more important

As the real estate market slowly recovers and potential taxes go up for many, tax planning for real estate-whether your home, your vacation home or a rental property-is becoming more important. Higher-income taxpayers could see the benefit of some of their home-related deductions reduced and face higher income tax rates plus the new 3.8% Medicare tax on real estate income and gains. (For information on some changes to temporary breaks for owners of leasehold, restaurant or retail properties. (See “ depreciation-related breaks expired Dec. 31, 2013, but may be extended”)

Home-related tax breaks

There are many tax benefits to home ownership — among them, various deductions. But the return of the itemized deduction reduction (see “What’s new! Deduction reduction and exemption phaseout are back”) could reduce your benefit from some of these breaks:

Property tax deduction. If you’re looking to accelerate or defer deductions (see “Timing income and expenses”), property tax is one expense you may be able to time. You can choose to pay your bill for this year that’s due early next year by Dec. 31, and deduct it this year. Or you can wait until the due date and deduct it next year.

Mortgage interest deduction. You generally can deduct (for both regular tax and AMT purposes) interest on up to a combined total of $1 million of mortgage debt incurred to purchase, build or improve your principal residence and a second residence. Points paid related to your principal residence also may be deductible.

Home equity debt interest deduction. Interest on home equity debt used for any purpose (debt limit of $100,000) may be deductible. So consider using a home equity loan or line of credit to pay off credit cards or auto loans, for which interest isn’t deductible.

Debt forgiveness exclusion. Homeowners who receive debt forgiveness in a foreclosure or a mortgage workout for a principal residence generally don’t have to pay federal income taxes on that forgiveness. Warning: This break expired after 2013. (It had been scheduled to expire after 2012, but the American Taxpayer Relief Act of 2012 (ATRA) extended it.) Check back here to see if Congress extends the exclusion to 2014 or beyond.

Home office deduction

If your use of a home office is for your employer’s benefit and it’s the only use of the space, you generally can deduct a portion of your mortgage interest, property taxes, insurance, utilities and certain other expenses. Further, you can take a deduction for the depreciation allocable to the portion of your home used for the office. You can also deduct direct expenses, such as a business-only phone line and office supplies.

For employees, home office expenses are a miscellaneous itemized deduction, which means you’ll enjoy a tax benefit only if your home office expenses plus your other miscellaneous itemized expenses exceed 2% of your AGI. If, however, you’re self-employed, you can use the deduction to offset your self-employment income and the 2% of AGI “floor” won’t apply.

A new simplified home office deduction became available beginning in 2013. The optional deduction is $5 per square foot for up to 300 square feet of home office space. So the maximum annual deduction is $1,500. If you choose this option, you can’t deduct depreciation for this portion of your home. But you can take itemized deductions for otherwise allowable mortgage interest and property taxes without allocating them between personal and business use.

Of course, there are numerous exceptions and caveats. If this break might apply to you, discuss it with your tax advisor in more detail.

Home rental rules

If you rent out all or a portion of your principal residence or second home for less than 15 days, you don’t have to report the income. But expenses directly associated with the rental, such as advertising and cleaning, won’t be deductible.

If you rent out your principal residence or second home for 15 days or more, you’ll have to report the income. But you also may be entitled to deduct some or all of your rental expenses — such as utilities, repairs, insurance and depreciation. Exactly what you can deduct depends on whether the home is classified as rental property for tax purposes (based on the amount of personal vs. rental use):

Rental property. You can deduct rental expenses, including losses, subject to the real estate activity rules. You can’t deduct any interest that’s attributable to your personal use of the home, but you can take the personal portion of property tax as an itemized deduction.

Nonrental property. You can deduct rental expenses only to the extent of your rental income. Any excess can be carried forward to offset rental income in future years. You also can take an itemized deduction for the personal portion of both mortgage interest and property taxes. In some situations, it may be beneficial to reduce personal use of a residence so it will be classified as a rental property.

Home sales

When you sell your principal residence, you can exclude up to $250,000 ($500,000 for joint filers) of gain if you meet certain tests. Gain that qualifies for the exclusion also will be excluded from the new 3.8% Medicare contribution tax.  To support an accurate tax basis, maintain thorough records, including information on your original cost and subsequent improvements, reduced by casualty losses and any depreciation that you may have claimed based on business use.

Warning: Gain on the sale of a principal residence generally isn’t excluded from income if the gain is allocable to a period of nonqualified use. Generally, this is any period after 2008 during which the property isn’t used as your principal residence. There’s an exception if the home is first used as a principal residence and then converted to nonqualified use.

Losses on the sale of a principal residence aren’t deductible. But if part of your home is rented or used exclusively for your business, the loss attributable to that portion will be deductible, subject to various limitations.

Because a second home is ineligible for the gain exclusion, consider converting it to rental use before selling. It can be considered a business asset, and you may be able to defer tax on any gains through an installment sale or a Section 1031 exchange.

Or you may be able to deduct a loss, but only to the extent attributable to a decline in value after the conversion.

Real estate activity rules

Income and losses from investment real estate or rental property are passive by definition — unless you’re a real estate professional. Why is this important? Passive income may be subject to the new 3.8% Medicare tax, and passive losses are deductible only against passive income, with the excess being carried forward. To qualify as a real estate professional, you must annually perform:

• More than 50% of your personal services in real property trades or businesses in which you materially participate, and

• More than 750 hours of service in these businesses during the year.

Each year stands on its own, and there are other nuances to be aware of. If you’re concerned you’ll fail either test and be stuck with passive activities, consider increasing your hours so you’ll meet the test. Keep in mind that special rules for spouses may help you meet the 750-hour test.

Tax-deferral strategies for investment property

It’s possible to divest yourself of appreciated investment real estate or rental property but defer the tax liability. Such strategies may be less risky from a tax perspective now that ATRA has made capital gains tax rates permanent. Nevertheless, tread carefully if you’re considering a deferral strategy such as the following:

Installment sale. An installment sale allows you to defer gains by spreading them over several years as you receive the proceeds. Warning: Ordinary gain from certain depreciation recapture is recognized in the year of sale, even if no cash is received.

Sec. 1031 exchange. Also known as a “like-kind” exchange, this technique allows you to exchange one real estate investment property for another and defer paying tax on any gain until you sell the replacement property. Warning: Restrictions and significant risks apply.

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