Property Taxes and Legacy Planning 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. This is also true for the family residence. I will discuss some of the planning that can be done to avoid property tax increases either during a business owner’s lifetime or upon their death.

My discussion in this article will be dealing with planning at an entity level rather than at an individual level for ownership of commercial or rental properties. Typically corporations, limited partnerships (“LP”) or limited liability companies (“LLC”) own commercial or rental properties for asset protection purposes.

Depending on how the business entity acquired the commercial or business property can significantly impact the “change in ownership” (“CIO”) for property tax increase reassessment. There are two separate outcomes for CIO depending upon whether or not the business entity purchases the property compared to co-owners contributing their undivided property interest to a business entity without the property being reassessed after the transfer.

When the business entity purchases the property there is no CIO until one of the shareholders, partners or members acquires (directly or indirectly) a majority interest in the business entity. Until that event occurs, there is no CIO on the transfer of an ownership interest. Contrast that to the co-owner’s contribution to a business entity of property when there is a CIO once more than 50% cumulative ownership interests are transferred in the entity. No person has to have a majority interest for CIO to occur. I will illustrate the concept with a couple of examples below.

Business Entity Purchase. Assume a mother owns 90% of an LLC and son owns the other 10%. LLC then purchases real property. Mother dies and leaves 50% of her interest to son and 50% of her interest to daughter. This results in son owning 55% of the LLC and daughter owning the remaining 45%. This transfer of LLC interests results in a 100% reassessment of the real property owned by the LLC because Son acquired over 50% of the ownership interests of LLC.

To avoid a CIO, mother could have structured her estate to ensure that no single person acquired over 50% of the LLC. For example, Mother could have left 50% of her interest to Daughter, 44% of her interest to son, and 6% of her interest to daughter-in-Law.

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.