Disposition of Family Residence and Rental Mixed Use

One of the more attractive provisions under the Internal Revenue Code (“IRC”) permits the gain from the sale or exchange of property to be excluded from income if, during the five-year period ending on the date of the sale or exchange, such property has been owned and used by the taxpayer as his or her principal residence for periods aggregating two years or more.   What happens if a taxpayer also uses a property both as a residence part of the time and also rents it out?  Can this property be sold completely tax free?  In a recent article entitled Tax Planning and the Family Residence: Part Two By Michael Schlesinger, Ll.M answers the above questions.

As a general rule, personal residences cannot be swapped tax-free under Section 1031 . However, vacation homes can be swapped if certain conditions are met. Rev. Proc. 2008-16 sets forth a safe harbor for the tax-free swap. The IRS issued this safe harbor because it realized that “many taxpayers hold dwelling units [including vacation homes] primarily for the production of current rental income, but also use the properties occasionally for personal purposes.” Rev. Proc. 2008-16 , section 3.02 states that the safe harbor will apply to any dwelling unit, which is “real property improved with a house, apartment, condominium, or similar improvement that provides basic living accommodations including sleeping space, bathroom and cooking facilities.” To be eligible for a Section 1031 swap, the property has to meet certain conditions, namely, the ones prescribed in Rev. Proc. 2008-16.

(1)(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately before the exchange (the “qualifying use period”); and

(1)(b) Within the qualifying use period, in each of the two 12-month periods immediately preceding the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer’s personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

For this purpose, the first 12-month period immediately preceding the exchange ends on the day before the exchange takes place (and begins 12 months prior to that day) and the second 12-month period ends on the day before the first 12-month period begins (and begins 12 months prior to that day).

(2) Replacement property. A dwelling unit that a taxpayer intends to be replacement property in a §1031 exchange qualifies as property held for productive use in a trade or business or for investment if:

(a) The dwelling unit is owned by the taxpayer for at least 24 months immediately after the exchange (the “qualifying use period”); and

(b) Within the qualifying use period, in each of the two 12-month periods immediately after the exchange,

(i) The taxpayer rents the dwelling unit to another person or persons at a fair rental for 14 days or more, and

(ii) The period of the taxpayer’s personal use of the dwelling unit does not exceed the greater of 14 days or 10 percent of the number of days during the 12-month period that the dwelling unit is rented at a fair rental.

IRS Examples  Rev. Proc. 2005-14 offers six examples of how Sections 1031 and 121 interact. The six examples have different factual situation and use of a family residence.  I will set forth two examples.

Example 1. Alvin, a single individual, purchased a house for $210,000 in 2000. From 2000 to 2004, Alvin uses the house as his principal residence. From 2004 until 2006, Alvin rents the house to tenants and claims depreciation deductions of $20,000. In 2006, Alvin exchanges the house for $10,000 and a townhouse with a FMV of $460,000 that he intends to rent to tenants. As a result, Alvin realizes $280,000 of gain on the exchange. This is the sum of $460,000 (townhouse’s FMV) plus $10,000 (cash received), less his $190,000 basis ($210,000 cost less $20,000 depreciation) in the house relinquished in the exchange.

Alvin’s exchange of a principal residence that he rented for less than three years (and used as his principal residence for over two years) for a townhouse intended for rental and cash satisfies the requirements of both Sections 121 and 1031 . Section 121 does not require the property to be the taxpayer’s principal residence on the sale or exchange date. Alvin’s ownership and use of the

house as his principal residence for at least two years during the five-year period prior to the exchange is sufficient to qualify for Section 121 gain exclusion. Further, because the house was investment property at the time of the exchange, Alvin may defer gain under Section 1031 .

Accordingly, Alvin first applies Section 121 to exclude $250,000 of the $280,000 gain. Then he applies the Section 1031 nonrecognition rules to defer the remaining gain of $30,000-which includes the $20,000 gain attributable to depreciation. Alvin is not taxed on the $10,000 of cash (i.e., boot) he received in the exchange. Boot is taken into account for Section 1031(b) purposes only to the extent that the boot exceeds the excluded gain. Here, the $250,000 exclusion is more than sufficient to shelter the $10,000 of boot that Alvin received. Alvin’s basis in the replacement property is $430,000. This is the basis of the relinquished property at the time of the exchange ($190,000), increased by the gain excluded under Section 121 ($250,000), and reduced by the cash Alvin received ($10,000).

Example 2, Betty, a single individual, buys a property for $210,000. The property consists of two separate dwelling units, a house and a guesthouse. From 2001 until 2006, Betty uses the house as her principal residence. She uses the guesthouse as an office in her business. Based on the square footage of the respective parts of the property, Betty allocates 2/3 of the basis of the property to the house (i.e., $140,000) and 1/3 to the guesthouse (i.e., $70,000).

In 2006, Betty exchanges the entire property for a residence and a separate property that she intends to use as an office. The total FMV of Betty’s replacement properties is $360,000. The FMV of the replacement residence is $240,000; the FMV of the replacement business property is $120,000, which is the same as the FMV of the relinquished business property. From 2001 to 2006, Betty claimed depreciation deductions of $30,000 for business use. Thus, she realized $180,000 of gain on the exchange. This is the $360,000 aggregate value of the properties she received in the exchange, less her $180,000 ($210,000 cost, reduced by $30,000 of depreciation deductions) basis in the relinquished property.

Under Section 121 , Betty may exclude gain of $100,000 allocable to the residential portion of the house (2/3 of $360,000 amount realized, or $240,000, minus 2/3 of $210,000 basis, or $140,000) because she meets the Section 121 ownership and use requirements for the portion of the property used as her principal residence. Because the guesthouse is business property separate from the dwelling unit, and Betty has not met the Section 121 use requirements for the guesthouse, she may not exclude the gain allocable to the guesthouse under Reg. 1.121-1(e) . The FMV of the replacement business property, however, equals the FMV of the relinquished business property, and Betty receives no boot. Consequently, Betty may defer the remaining gain of $80,000 under Section 1031 . This gain is calculated as 1/3 of the $360,000 amount realized, or $120,000, minus her $40,000 adjusted basis (which is 1/3 of the $210,000 basis, or $70,000, adjusted by $30,000 of depreciation).

No portion of the gain attributable to the relinquished business property is excluded under Section 121 , Betty receives no boot, and she recognizes no gain or loss in the exchange. Thus, her basis in the replacement business property equals her basis in the relinquished business property at the time of the exchange ($40,000). Betty’s basis in the replacement residential property is the FMV of the replacement residential property at the time of the exchange ($240,000).

Conclusion.  With proper planning you are able to dispose of a mix use property so long as you understand the complexities explained in the six examples mention in this article.

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