Optimizing Residential Real Estate Deductions

The tax deduction rules for residential landlords have changed dramatically in recent years, with the release of the final tangible property regulations in 2013 (T.D. 9636) and the creation of the qualified business income (QBI) deduction under Sec. 199A by the law known as the Tax Cuts and Jobs Act, P.L. 115-97. Landlords are now much more likely than before to be able to deduct most of their current expenditures.

The starting point is to determine whether an expenditure is for a betterment, restoration, or adaptation. A comprehensive remodeling or correcting a preexisting defect would be a betterment or restoration and would need to be capitalized. The mortgage interest and property taxes incurred during construction may need to be capitalized as well.

If the expenditure is not a betterment, restoration, or adaptation, the next step is to determine whether it can be expensed under the de minimis, small taxpayer, or routine maintenance safe harbor. The de minimis and small taxpayer safe-harbor elections apply to businesses and farms as well as to rental properties.

DE MINIMIS ELECTION

Under the tangible property regulations and Notice 2015-82, expenditures for tangible property that would otherwise be capitalized can be expensed if the item costs $2,500 or less and the taxpayer makes the proper election. Taxpayers with applicable financial statements have a de minimis cap of $5,000 per item. The taxpayer makes the election annually by including a statement with the tax return citing "Section 1.263(a)-1(f) de minimis safe harbor election." The election is made in the year the tangible personal property is placed in service and is allowed in any year of ownership.

SMALL TAXPAYER SAFE-HARBOR ELECTION

Landlords with average annual gross receipts for the three preceding tax years of $10 million or less and for units of property with an unadjusted basis of $1 million or less can elect to write off repairs, maintenance, and improvements if the total of these expenditures does not exceed the lesser of 2% of the unadjusted basis of the property or $10,000 during a given year. Items deducted under the de minimis election are also included in the routine maintenance safe-harbor calculation (Regs. Sec. 1.263(a)-3(h)(2)). The taxpayer makes the annual election by including a statement citing "Section 1.263(a)-3(h) Safe Harbor Election for Small Taxpayers," along with his or her name, address, and taxpayer identification number and a description of each eligible building property for which the election is being made. The election can be made on a building-by-building basis.

ROUTINE MAINTENANCE SAFE HARBOR

Recurring expenditures for repairs and maintenance that keep property in ordinarily efficient operating condition do not need to be capitalized and can be expensed in the year payment is made. However, they are included in the 2%/$10,000 small taxpayer safe-harbor calculation. No elections are required. Typical expenditures include those for painting; replacing worn-out or damaged plumbing, HVAC, and appliance systems parts; and certain structural repairs.

DEPRECIATION

Sec. 179 does not apply to residential rental property or any of its components or improvements or to other property used in conjunction with the rental property.

For property placed in service after Sept. 27, 2017, 100% bonus depreciation is available for components with a recovery period of 20 years or less. Consideration should be given to depreciating versus expensing if the property is profitable and the taxpayer qualifies for the Sec. 199A QBI deduction, because the unadjusted basis of depreciable property is included in the Sec. 199A deduction calculation.

SEC. 199A: THE QBI DEDUCTION

In January, the IRS released Notice 2019-07, which provides safe-harbor requirements for rental real estate to qualify as a trade or business under Sec. 199A. To qualify, the real estate must be owned directly or through a disregarded entity. Additional requirements to meet the safe harbor are:

• Separate books are maintained for each real estate enterprise;
• Annually, at least 250 hours of rental services are provided by the owner, agent, or contractor; and
• Contemporaneous records, including time reports, logs, or similar documents are maintained that show the hours worked, a description of the service, the date, and who performed the service.

The notice also states that rental real estate businesses that do not meet the safe-harbor requirements may still qualify for the Sec. 199A deduction if they meet the definition of a trade or business under Sec. 162 other than the trade or business of performing services as an employee (Regs. Sec. 1.199A-1(b)(14)). Specifically excluded from the safe harbor are residences used by the taxpayer during the year and real estate leased where the tenant pays all the costs of ownership, commonly called triple-net leases. The safe-harbor rules are effective for tax years ending after Dec. 31, 2017.

If the activity does not meet the safe-harbor requirements, the key is whether it rises to the level of a trade or business rather than an investment activity. There is no definition of "trade or business" in the Code. However, the courts have held that activities with a profit motive and with continuous and regular involvement by the taxpayer are trades or businesses (Groetzinger, 480 U.S. 23 (1987)).

Landlords with multiple properties who actively participate in the rental activities clearly have a trade or business in real estate and therefore qualify for the deduction. It gets murkier if, for example, the landlord owns one residential property and uses a property manager to handle all the activities. Most experts agree that triple-net leases probably do not qualify as a trade or business, but even that situation should be reviewed, especially if the landlord owns and manages multiple triple-net leases.

Real estate trades and businesses are required to file Forms 1099-MISC, Miscellaneous Income, for vendor payments in excess of $600 and to complete the questions at the top of Schedule E, Supplemental Income and Loss, regarding the requirement to file the forms and whether they were filed. This could be problematic in defending a position that the activity rises to the level of a trade or business if Forms 1099-MISC were required but were not filed in previous years. Owners could also be subject to penalties for failure to file Forms 1099-MISC and for failure to supply copies to vendors.

Each situation will have to be evaluated based on the facts and circumstances. Vacation homes are especially problematic, due to the profit motive requirement. And, since they are rarely profitable, such properties would more likely reduce the deduction rather than increase it.

Thanks to Janet Hagy, CPA for this article.