Property Taxes Issues For Commercial Property

Property tax increases are a major concern for families and business owners who want their commercial or rental properties to be transferred or passed on to their heirs. I want to explain in this article some of the basic planning considerations of the parent child exclusion amount of $1 million for non-residential property. No matter what happens in the next presidential election as explained below, basic property tax planning will remain the same notwithstanding the overall value of your estate even if the IRS has its way of eliminating certain planning.

There are new proposed regulations under Internal Revenue Code Section 2704 that, when finalized, may substantially increase your wealth transfer taxes by blocking a common estate planning strategy in trying to eliminate discounting. In client meetings we discuss various matters mentioned below, including taking certain steps today but not making any final decision until after the November elections.

The discussions I have with families deal not only with the proposed regulations but also who will win the presidential election in November. The Republicans want to repeal the estate tax while the Democrats want to roll back the current $5,450,000 exemptions to the prior 2012 $3,500,000 exemption and raise the estate tax rate from 40% to 45%. The outcome of the November election will be a major factor in the final decision made by these clients.

If a parent owns one or more commercial or rental properties with an assessed value of more that $1 million there will be a “change in ownership” (“CIO”) for property tax increase reassessment beyond the $1 million on a transfer of property between parent and child. A husband and wife each have their own $1 million and therefore can transfer up to $2 million to their children.

Entity Considerations. Often because of assets protection considerations or discount planning for either gift or estate tax purposes commercial or rental properties are transferred to limited partnerships (“LP”) or limited liability companies (“LLC”). One major factor in transferring a property to a LP or LLC is to make certain that before and after the transfer the ownership interest in the property is identical. If not, there will be change in ownership (“CIO”) and cause a reassessment of property taxes.

The first question I ask clients regarding commercial or rental property transfer matters to their children is “What are the Crown Jewels?” where the properties’ values exceed the property tax exclusion amount. The reason for this is to determine what will be the best use of the parent’s $1 million exclusion amount.

Depending on the assessed value of the properties, I generally will first transfer the undivided interest to the children and then have both the parent and children contribute the property to the LLC so before and after the interests are identical. In complex matters I typically prepare a spreadsheet illustration of handing the $1 million exclusion amount vs the maximum gifting that the parent is comfortable doing. It is a very simple safe guard to avoid CIO in complex transfers.

CIO Example. Recently I received a call about a parent who owned a significant amount of properties and wanted to make gifts to his children at discounted values. His attorney advised him that this was possible by creating a LLC where he would own 4% and his two children 48% each for a total of 96% membership interest. The attorney created the LLC and transferred the properties that were a 100% owned by the father to the LLC.

The assessor’s office claimed that this was a CIO and correctly reassessed the properties. The reason is because both before and after the interests in the properties were not identical. See the proper planning that the father could have easily done to avoid the CIO below.

Co-Owner Contributions. Husband owns 50% of an LLC and wife the other 50%. Husband dies and transfer 25% to son and 25% to daughter. Wife then decides to transfer 5% to Son. Upon wife’s transfer, a CIO occurs because cumulatively over 50% of the original co-owners’ interests transferred. This is a change in ownership even though no person acquired over 50% of the LLC.

Again assume Husband owns 50% of an LLC and wife owns 50% of the LLC. Husband passes away and transfers 25% to son and 25% to daughter. No CIO occurred because no person acquired over 50% of the LLC ownership interests and because cumulatively more than 50% of the original co-owner interests did not transfer. Son then transfers 5% of his LLC interests to this friend. No CIO.

Client Planning. I recently was involved in a family dispute where a minority family member agreed to have her membership interest in an LLC be redeemed in exchange for receiving one of the four properties owned by the LLC. The four properties were part of a 1031 exchange and within the business entity purchase category.

There will be a CIO for the minority member who received one of the four properties. However, the remaining members avoided CIO for the other three properties because prior to the redemption one of the members who would have had more than a 51% interest agreed to transfer a portion of his membership interest to his children. If this transfer did not occur prior to the redemption, there would have been a CIO and increases of property taxes of approximately $130,000! We are now planning to avoid the 51% ownership of the remaining members on the father’s death.

It is very important for business and family owners to think about what can be done to avoid CIO for legacy properties. Sometimes you simply cannot avoid CIO. The point is that there are certain planning opportunities that can avoid CIO as explained in this article.

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