It is very important to understand the tax consequences of real estate investing or you could be in for a very unpleasant tax bite.
If you are not buying a primary residence or second home, one of the first tax planning steps is to determine whether you are (or are planning to be) a real estate investor or a flipper. There are very different tax consequences and tax planning requirements associated with each.
Real Estate Investing
Someone how is doing real estate investing holds real estate for long-term appreciation or investment purposes. The investor holds real estate for more than one year and is interested in maximizing the gain on the investment and is not in the business of buying and selling property for short-term profit.
One of the biggest tax advantages of doing real estate investing is that any gain on a sale is taxed at a maximum of 15%. The real estate investor is also not normally subject to the 15.3% self-employment tax. However, the real estate investor is limited to only $3,000 of losses per year on their investments.
Flipping Houses
Someone who is in the business of flipping houses – buying houses, fixing them up, and then selling them for short-term gain – is considered to be a dealer by the IRS. The dealer holds real estate in the ordinary course of business and anticipates a very quick turnover and profit.
The real estate dealer is taxed very differently from the investor. The dealer may be taxed at individual income tax rates up to 35% and may also be subject to 15.3% self employment taxes. Dealers cannot transfer property through a 1031 (like-kind) exchange, cannot use the installment sale method, and cannot take deductions for depreciation.
There is one tax advantage to being a flipper – the dealer is not limited to $3,000 in tax losses per year.
Flipper / Dealer or Real Estate Investor – The Tests
The most important factors used to make this call are the INTENT and PURPOSE of the property acquisition and holding. Some of the criteria used by the IRS and the courts to determine intent and purpose include:
- Length of time the property is held – Normally an asset needs to be held for over one year to qualify for capital gains treatment. This is true of real estate, but this is not a definitive test. Just because property is held for over one year does not necessarily make it investment property.
- Number of properties sold in a year – There is no set number, but if you sell only one property in a year, you are probably NOT a dealer.
- Have a job outside of real estate? – If your primary job is not related to real estate, you are probably engaged in real estate investing. If you are areal estate broker, real estate developer or associated with a real estate company, you are likely to be considered a flipper / dealer.
- Have employees who help you sell the properties? – If you have employees who help you sell real estate, you are likely to be a flipper / dealer.
- Use a business office to sell properties? – If you sell properties out of a business office, you are most likely a flipper / dealer.
- Time and effort in buying and selling – The more time you spend buying and selling properties, the more likely you are going to be classified as aflipper / dealer. Some one who is doing real estate investing would be less concerned about moving inventory.
- Net profits received for the year – The higher your real estate-related profits, the more likely you are a flipper / dealer. This is particularly true if real estate profits are high in relation to other income you have earned.
- Extent of improvements made – The more improvements made, the more likely you are a flipper / dealer.
- Renting property – If you rent property, you are probably holding that property as an investment and not looking to sell it for short-term gain.
These are just some of the criteria used. The criteria and their application may seem vague and subjective. This is why it is extremely important to do some pre-tax planning and take the appropriate actions for your unique situation.
Food For Thought – Flipping / Dealing or Real Estate Investing – How to Tell the Difference
There are times when making the distinction is extremely difficult. Even the tax court seemed to throw up its hands in this item from the CPA Journal and quoted in Carl Zimmerman’s article, “Real Estate Dealer or Investor?” –
“[t]he problem is so severe that, according to the Fifth Circuit Court of Appeals, ‘if a client asks you in any but an extreme case whether, in your opinion, his sale will result in capital gain, your answer should probably be, ‘I don’t know and no one else in town can tell you’’ (J.D. Byram, CA-5, 83-1 USTC para. 9381, 705 F. 2d 1418).”
The RISK…
If you are engaging in buying and selling real estate or looking to do this, you are taking a very big risk with your money if you don’t take time and discuss your methods and operation with a tax professional. We offer all of our new clients a FREE 1 HOUR CONSULTATION to discuss all the details and begin to develop a tax strategy that allows you to keep the most profits possible in your bank account and help you meet your financial goals. Call us today and let one of our staff schedule a time convenient for you to meet. We understand Real Estate Investing Tax Laws, and we can help translate them into English for you today!