Positive income tax news for owners of Real Estate

Recently announced by IRS

The new tax law now being dealt with in preparation of 2018 tax returns, had several items that needed clarification by the IRS. On January 19, 2019 the final regulations were released.

Among a host of other clarifications and interpretations, the regulations gave a much-welcomed surprise to the owners of rental real estate.

Pass through entities, which are generally LLC’s and S Corporations, that hold rental real estate, are deemed to be a “trade or business” thus qualifying for the 20% deduction of Qualified Business Income (QBI). The QBI deduction was put into law to try to establish some parity with the new 21% tax rate for C Corporations.

Here are some of the (unfortunately complicated) considerations in order to qualify:

• Interest in real property must be held for the production of rents

• Can consist of multiple properties

 • Individual or Relevant Pass-through Entities (RPE) must hold the interest directly or through a disregarded entity

 • Taxpayers must treat each property as a separate enterprise or treat all similar properties as a separate enterprise

• Commercial and residential property can’t be part of the same enterprise

• Cannot change treatment from year-to-year unless there is a significant change in circumstances 

• Real estate used as a residence by the taxpayer does not qualify

• Real estate rented or leased under a triple net lease does not qualify

• Separate books and records must be maintained to reflect income and expenses for each rental real estate enterprise

• Taxable years beginning before 2023 – 250 or more hours of rental services are performed with respect to the rental enterprise. This test can be met if a taxpayer has multiple entities and spends at least 250 or more hours on the total group, but logs must be maintained for proof!

• Taxable years beginning after 2022 – 250 or more hours of rental services in any three of the five consecutive taxable years that end with the taxable year -OR- 250 or more hours in each year for an enterprise held for less than five years

• The taxpayer maintains contemporaneous records, time reports, logs, or similar documents, regarding the following: – Hours of all services performed – A description of all services performed –

• Rental services included (for purposes of applying the 250- hour requirement): –

  • Advertising to rent or lease the real estate
  • Negotiating and executing leases
  • Verifying information contained in prospective tenant applications
  • Collection of rent –
  • Daily operation, maintenance and repair of property
  • Negotiating and executing leases
  • Verifying information contained in prospective tenant applications
  • Collection of rent –
  • Daily operation, maintenance and repair of property
  • Purchase of materials
  • Supervision of employees and independent contractors –
  • Rental services can be performed by employees, agents, and/or independent contractors of the owners

Rental services do not include:

  • Financial or investment management activities
  • Procuring property
  • Studying or reviewing financial statements or reports on operations
  • Managing or constructing long-term capital improvements
  • Time spent traveling to and from the real estate

The QBI 20% deduction is an extremely complicated provision of the new tax law, but can result in some considerable tax savings for those who qualify. Note that any qualifying trade or business qualifies. This blog just deals with the clarification that rental real estate is in fact a trade or business under this new law.