If you spend at least 750 hours per year, or more than half of your working hours, involved in real estate activities, you probably qualify as a "real estate professional."
There does not appear to be any clear IRS ruling on a semi-retired person
with no occupation but real estate to which they devote say, 200 hours a
Full-time real estate brokers, realty sales agents, property managers, builders, contractors and leasing agents are examples of qualified real estate professionals.
However, the tax law excludes real estate attorneys and mortgage brokers from
qualifying. Unless, one must assume, they spend more than 50% of their working
hours investing in real estate. This would include managing, buying and selling
If you invest in real estate but do not qualify as a "real estate professional"
, you are limited to a maximum annual $25,000 realty investment property loss deduction against their ordinary taxable income.
This is called the passive loss restriction. This "loss" includes the paper loss
created by depreciation.
If your annual adjusted income exceeds $100,000, the $25,000 loss deduction gradually phases out. At the $150,000 adjusted income level, the allowable tax loss deduction
goes to zero.
Any undeducted real estate investment tax loss is "suspended" for future use,
such as at the time the property is sold at a profit. Then you may subtract the
unused suspended tax loss from your capital gain to lower the taxable profit.
Material participation requirement (back to top)
Participation is critical. You can hire a professional property manager and still meet the material participation
requirement, and claim the unlimited tax deductions as a professional.
Day-to-day operating details, such as
collecting rents, evicting tenants and unclogging toilets, can be delegated to
But, you must make the major decisions, such as setting rents, approving major
expenses and qualifying new tenants. Remember of course the time
Depreciation of Personal Property (back to top)
Personal property used in operating the property, such as appliances, is
depreciated over shorter periods, typically five to 10 years. Even automobiles
and trucks used in the investment operation can be depreciated over their useful
First-year 100% deduction (back to top)
There is also the new first-year 100 percent tax deduction for up to $100,000 of
business equipment purchased. This would include appliances. Sorry but you can't
buy a brand new Mercedes and deduct 100% of the cost from your taxes in the first year.
But there are special rules for work vehicles, such as trucks. Ask your CPA
for more details.
Depreciation is a non-cash deduction (back to top)
It reduces taxable income from the investment property. But, in contrast to
property taxes, mortgage interest, utilities, insurance and repairs, it doesn't
require any cash outlay. The depreciation expense deduction can result in a positive
cash flow property becoming a loss maker for tax purposes.
Most investment properties go up in value every year, but on paper their
value is going down.
Unfortunately, unused tax losses from investment properties cannot be carried
back to prior tax years to claim a tax refund.
IRS Notice 88-94 allows use of suspended passive activity tax losses
(assuming you do NOT qualify as a professional with material participation) from
realty investment assets to offset profits from the sale of the property. The
tax result is that you can use suspended property losses on an total basis,
rather than property-by-property.
Recapture of depreciation benefits (back to top)
The maximum capital gains tax rate was reduced to 15 percent in 2003 for
assets owned more than 12 months. (If held for less than 12 months gains are
taxed as ordinary income.)
However, the IRS requires that you "recapture" the tax saving from your income
tax at a special 25 percent depreciation "recapture" tax rate when the property
is sold. This apply whether or not you qualify as a "real estate professional."
Example of Recapture:
- Suppose you bought an investment property for $500,000 and deducted $150,000 of depreciation during your ownership years.
- That means your book value (also called "adjusted cost basis") declined to $350,000. Then you sold for $650,000.
- Your capital gain is therefore $300,000 ($650,000 minus $350,000).
- Of that $300,000 capital gain, the $150,000 depreciation deducted will be "recaptured" and taxed at the 25 percent special federal tax rate.
- The $150,000 remainder of your capital gain will be taxed at the new 15 percent maximum tax rate.