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Renting part of primary residence - Tax Law Guidance
Old 08-11-2017, 08:40 AM   #1
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Renting part of primary residence - Tax Law Guidance

Hi,

Those people on the forum who follow my posts (that would be no one), might remember that we live with our DD/SIL. It is highly likely we will be moving in the next few months. Right now we are renting. However, we are investigating DD/SIL purchasing a house and renting part of the house to us. BTW, this arrangement has nothing to do with finances as both couples could easily maintain an independent living arrangement. (We have been making this work for 4 years now, so not concerned with living arrangement advice/suggestions for this post).

My research so far suggests rent must be at a fair market value. And, some deductions can be made by measuring square footage and or percent of the house that the rented portion represents.

However, in our case, beyond our private bedrooms, we share the house. This includes sharing meals, groceries, cable, internet, utilities, phone, etc. We maintain a spread sheet and divide shared expenses 50/50.

I am sure I have left things out but given this information and other questions you may have, what do you think would be the best arrangement for DD/SIL to get the best tax benefit from this approach? What would be the hurdles for compliance? Given we would have access to more than just a bedroom, would they be able to claim a higher percent of household cost for utilities/internet/etc for example, etc.

I am also working with the NYT buy vs rent calculator. Renting part of a property is not included in the calculator. I am assuming renting part of the house offers advantages to buying a home without income so that the NYT results represent worse case. If I am missing something with this assumption, please let me know.

What happens differently on the sale of a partially rented house from a tax perspective? How should this be considered in our analysis? I have not located information on this yet.

Another approach that might be better is to simply live with DD/SIL without a rental agreement and continue with our current arrangement. DW and I would simply pay an agreed upon allowance which would help them with their expenses. But, they would not claim any of the rental benefits. And, they would not claim income. I guess it would be a gift or simply a family living together. This does not feel like the best financial approach but perhaps someone with more experience could comment that in terms of a way to make things easier, it is a better, if even slightly more costly than the 'tax' benefit approach.

Just a touch more background. Renting for DW is preferred. This idea to have DD/SIL buy and we rent, came as a way to help our children build some wealth. The NYT calculator is suggesting that buying or renting is a fairly close call, if we must move in about a 3 year time frame. Beyond that, buying makes sense. But, when we consider the 'gift/rental' money we would provide, there would be no additional cost for us and perhaps a benefit for them. Helping them along in an arrangement like this to their ER would make us happy.

Your advice and/or guidance to publications (I have done some research) is appreciated as always.
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Old 08-11-2017, 08:55 AM   #2
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Another approach that might be better is to simply live with DD/SIL without a rental agreement and continue with our current arrangement. DW and I would simply pay an agreed upon allowance which would help them with their expenses. But, they would not claim any of the rental benefits. And, they would not claim income. I guess it would be a gift or simply a family living together. This does not feel like the best financial approach but perhaps someone with more experience could comment that in terms of a way to make things easier, it is a better, if even slightly more costly than the 'tax' benefit approach.
I'm certainly no expert in these matters, but it seems pretty clear to me that simply paying DD/SIL a certain amount to help with expenses would sidestep all the issues they would otherwise encounter with an actual legal rental arrangement. No need to keep track of any bills or receipts, or to meticulously document everything for tax filing purposes. Just keep it simple and treat it as a cash gift, where there are no tax implications other than staying below the yearly threshold for reporting. I'm honestly not sure why you'd even be entertaining the other, far more complex and time-consuming approach.
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Old 08-11-2017, 08:57 AM   #3
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+1 Having DD/SIL own the house and just share it with you sounds good for DD/SIL... they own the house and get deductions for mortgage interest and property taxes and they get "gifts"/reimbursements from you for living there that they don't have to claim as income.

If they charge you rent the only other big deduction that they get is a depreciation deduction and perhaps some maintenance costs, but the downside is that a portion of their gain on sale when they sell will be subject to tax... where the entire gain is tax-free if under $250k.

I assume that you are focused on them getting tax benefits because they are working in and in a higher tax bracket than you are.
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Old 08-11-2017, 12:00 PM   #4
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+1 Having DD/SIL own the house and just share it with you sounds good for DD/SIL... they own the house and get deductions for mortgage interest and property taxes and they get "gifts"/reimbursements from you for living there that they don't have to claim as income.

If they charge you rent the only other big deduction that they get is a depreciation deduction and perhaps some maintenance costs, but the downside is that a portion of their gain on sale when they sell will be subject to tax... where the entire gain is tax-free if under $250k.

I assume that you are focused on them getting tax benefits because they are working in and in a higher tax bracket than you are.
+1. I think the financial/tax benefits are better for everyone if it is treated as a house share rather than a rental.
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Old 08-11-2017, 12:21 PM   #5
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I think you'd best consult an expert on this issue. Some articles I've read lead me to believe there are a lot of technical rules that can make "non-rental... rentals" very complicated. For instance, this article I came across https://www.forbes.com/sites/janetbe.../#416bbf46160d
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Old 08-11-2017, 01:03 PM   #6
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I think Forbes got it wrong. They say:

Quote:
If the daughter lives in the residence rent-free, the parents could be treated as having made a gift to their daughter equal to the fair rental value of the home. For 2016, the annual gift exclusion is $14,000. If the fair rental value of the home is greater than $1,167 per month, or the parents give any other gifts to their daughter that push them over the $14,000 threshold, they would be required to file a gift tax return.
But each parent can gift a child up to $14,000 for a married couple the threshold would be $28,000... IOW, each parent can gift $14,000 to their daughter without having to report it.
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Old 08-11-2017, 02:01 PM   #7
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I think you'd best consult an expert on this issue. Some articles I've read lead me to believe there are a lot of technical rules that can make "non-rental... rentals" very complicated. For instance, this article I came across https://www.forbes.com/sites/janetbe.../#416bbf46160d
+1

I'd be concerned about the payments from the non-owners to the owners while the non-owners occupy the home being called "gifts'.

If a tax professional is willing to sign off on the return then more power to them.

Otherwise it seems to look a lot like taxable income.

I recently was preparing a tax return where the taxpayer's former employer would have her plan a major event for the former employer each year. The former employer would then give the taxpayer a several hundred dollar "gift". The former employer was even requesting the taxpayers SS number. We refused to prepare the return under these conditions as stated.

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Old 08-11-2017, 02:03 PM   #8
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I was told by an enrolled agent years ago that when it comes to family members sharing a home and the expenses of that home the IRS simply doesn't go there in terms of tracking and insisting on income reporting and expense deductions.
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Old 08-11-2017, 02:41 PM   #9
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If you rent it for 14 days or less, it is a tax free event. If your corporation rents it from you for 14 days, it is also a tax free event.

Other than that, I think you just do it like a rental, but much is lost when you sell. You should just help pay expenses and do not worry about taxes.
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Old 08-11-2017, 03:23 PM   #10
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+1

I'd be concerned about the payments from the non-owners to the owners while the non-owners occupy the home being called "gifts'.

If a tax professional is willing to sign off on the return then more power to them.

Otherwise it seems to look a lot like taxable income.

I recently was preparing a tax return where the taxpayer's former employer would have her plan a major event for the former employer each year. The former employer would then give the taxpayer a several hundred dollar "gift". The former employer was even requesting the taxpayers SS number. We refused to prepare the return under these conditions as stated.

-gauss

I recently was preparing a tax return where the taxpayer's former employer would have her plan a major event for the former employer each year. The former employer would then give the taxpayer a several hundred dollar "gift". The former employer was even requesting the taxpayers SS number. We refused to prepare the return under these conditions as stated.

Perhaps you can provide some clarity. Don't multi-generational families, living in the same house (and do not take advantage of the tax code in terms of deductions for rent) live together under many financial arrangements? In some cases, the non-owner (parent or child) might not pay anything. They are like a house guest.

In some cases, the non-owner might pay their expenses or some agreement has been made where the word 'rent' could be used but it actually could just cover food or utilities. Do the owners need to declare this as income from Mom/Dad or perhaps their children? Do they need to declare the actual amount they should have charged or perhaps the cost of their out-of-pocket expense? Or does the family member receiving this benefit, need to declare it as income?

And there are roommates who actually pay their full share But the owners of the house do not treat it as rental income on a tax return. It is simply expense sharing.

Can you help me understand how you might view these scenarios that when handled as described above as they relate to the tax code It is simply a parent or child doing something for another family member or does a family member need to declare something on the tax return, perhaps as income?

I think the Forbes article is very different. The article is about a property being rented to a relative, where the relative is taking advantage of the tax code for rentals. If one does that AND takes advantage of the tax code, the rent needs to be arm length. I think I get that.

Thanks!!
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Old 08-11-2017, 05:16 PM   #11
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I recently was preparing a tax return where the taxpayer's former employer would have her plan a major event for the former employer each year. The former employer would then give the taxpayer a several hundred dollar "gift". The former employer was even requesting the taxpayers SS number. We refused to prepare the return under these conditions as stated.
Here is an example where you can use your own business to rent your own house. 100% legitimate, and very common. Also known as the Myrtle Beach rule.

https://www.kaisertax.com/blog/

In your situation, the best tax scenario would be to just ignore the rent income from a tax perspective. If they claim income, they need to depreciate the building. If they depreciate, they may lose some capital gains exclusions when they sell.
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Old 08-12-2017, 08:07 AM   #12
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Thanks all for some great feedback so far!
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Old 08-12-2017, 10:41 AM   #13
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Thanks all for some great feedback so far!
I will prepare a response shortly to your questions in item #10 above.

-gauss
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Old 08-12-2017, 11:21 AM   #14
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...
Perhaps you can provide some clarity. Don't multi-generational families...
Sure will do.

Please understand that my comments are from the perspective of a volunteer for an organization that prepares tax returns that receives support from the IRS. Please understand that we are trained not to prepare false returns in both our tax law and ethics training.

Professional tax preparers, on the other hand, especially ones catering to small business, often are experts at knowing the line at how far they can stretch things to the advantage of the taxpayer.

An average DIY taxpayer probably operates somewhere in between these limits.

--
A couple of resources from the IRS that shed light on this are as follows:

Topic 414 - Rental Income and Expenses

Publication 527 - Residential Rental Property
especially Chapter 4 - the "Renting Part of Property" and "Not Rented for Profit" sections.

Topic 414,in the first sentence defines rent as
Quote:
Cash or the fair market value of property or services you receive for the use of real estate or personal property is taxable to you as rental income. In general, you can deduct expenses of renting property from your rental income.
Later it further discusses the case where expenses are paid instead of cash payment to the owner

Quote:
Expenses paid by a tenant – If your tenant pays any of your expenses, those payments are rental income. You may also deduct the expenses if they're considered deductible expenses.
As can be seen, in these cases rental income is received and needs to be reported on Schedule E. Note however that expenses may be deductible from this income, also on Schedule E, so that no taxes may be due.


---
Quote:
Don't multi-generational families, living in the same house (and do not take advantage of the tax code in terms of deductions for rent) live together under many financial arrangements? In some cases, the non-owner (parent or child) might not pay anything. They are like a house guest.
This would not have any Federal tax consequences. It is only when cash (or other consideration) changes hands does it become a reportable event.

Quote:
In some cases, the non-owner might pay their expenses or some agreement has been made where the word 'rent' could be used but it actually could just cover food or utilities. Do the owners need to declare this as income from Mom/Dad or perhaps their children? Do they need to declare the actual amount they should have charged or perhaps the cost of their out-of-pocket expense? Or does the family member receiving this benefit, need to declare it as income?
The renters pro-rated share of utilities (and other allowed expenses) would in general be deducible on Schedule E. I don't think that food the tenant eats is ever deductible however so I would account for any food costs separately.

Any amount between the owners and the non-owners should be acceptable (including free). If the value of the rent is significantly below market value then the ability to deduct expenses becomes limited.

The non-owner receiving the benefit, if it is truly a gift, would never acknowledge any of this on a tax return.

If the owners subsidize the non-owners, with respect to FMV, by more than the annual gift tax exclusion amount, then the owners may need to file a gift tax return.

Quote:
And there are roommates who actually pay their full share But the owners of the house do not treat it as rental income on a tax return. It is simply expense sharing.
In general it sounds like the owner would need to file a Schedule E, but may be able to offset all of the rental income with expenses. See Topic 414 discussion above on expense sharing.

Unfortunately, I am not aware of any exemptions to the above due to family/related parties.

As others have said, you may get away without reporting any of this and never get caught.

On the other hand, I have heard that a thorough type of audit does exist where all financial deposits are reviewed and assumed to be income unless the taxpayer can demonstrate that the source of the income is not-taxable (ie bona fide gift, life insurance proceeds, loan, taxpayers own funds, etc)

Please feel free to seek other sources on this too because I am not a professional tax preparer -- I was an engineer in my working life.

-gauss
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Old 08-12-2017, 11:30 AM   #15
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I was told by an enrolled agent years ago that when it comes to family members sharing a home and the expenses of that home the IRS simply doesn't go there in terms of tracking and insisting on income reporting and expense deductions.
And just to be cleared to everyone, an Enrolled Agent is a professional tax preparer who works for himself that achieves a certain level of IRS accreditation and privileges.

-gauss
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Old 08-12-2017, 03:52 PM   #16
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What happens to the capital gains exclusion on the primary residence when you turn half of it into a rental?
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Old 08-12-2017, 03:55 PM   #17
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gauss, thanks so much for taking the time to share more information. Hopefully, if you (or others) are willing to continue, just a couple more questions:

This is from Forbes. It is much longer article that discusses various scenarios but this is the section that caught my attention. The home owners do not have to charge rent but their lack of rent is a gift. So, they must comply with the gift tax. The article did not discuss any responsibilities by the daughter for the parents.

Is Rent-Free Better?

What if these parents wanted to be really generous and allow their daughter to live in the home rent-free? The parents could still deduct mortgage interest and real estate taxes on Schedule A, but they might run into gift tax issues.

If the daughter lives in the residence rent-free, the parents could be treated as having made a gift to their daughter equal to the fair rental value of the home. For 2016, the annual gift exclusion is $14,000. If the fair rental value of the home is greater than $1,167 per month, or the parents give any other gifts to their daughter that push them over the $14,000 threshold, they would be required to file a gift tax return. In some parts of the country, this may not be an issue, but this client is located in Scottsdale, Arizona where the average one-bedroom apartment rents for $1,225 a month.


In the end, if these parents want to help their daughter out, they should charge a fair market rate of rent, determined by looking at comparable rentals in the area. That determination of fair market rate should be documented in case they are ever audited by the IRS.


From this and another article, it began to beg the question of when does a property become defined as a rental? Is that self defined or demonstrated by advertising/promotion? Or, as soon as someone moves in for a period of time, the property becomes a rental? Does someone know when/how a rental is defined by the tax code? The Forbes article would suggest its defined by the owner and demonstrated by charging rent.

Thanks
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Old 08-12-2017, 04:36 PM   #18
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Not addressing tax issues, but the Supreme Court upheld the right of an extended family to live together in a single family residence. It seems to imply the right of the extended family to share expenses for running of the home.


The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. [Footnote 14] Over the years, millions

Page 431 U. S. 505

of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning childrearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household -- indeed who may take on major responsibility for the rearing of the children. [Footnote 15] Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here. [Footnote 16]

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree

Page 431 U. S. 506

of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S. at 268 U. S. 535. By the same token, the Constitution prevents East Cleveland from standardizing its children -- and its adults -- by forcing all to live in certain narrowly defined family patterns.

Moore v. City of East Cleveland
431 U.S. 494 (1977)
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Old 08-12-2017, 04:45 PM   #19
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Not addressing tax issues, but the Supreme Court upheld the right of an extended family to live together in a single family residence. It seems to imply the right of the extended family to share expenses for running of the home.


The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. [Footnote 14] Over the years, millions

Page 431 U. S. 505

of our citizens have grown up in just such an environment, and most, surely, have profited from it. Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family. Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home. Decisions concerning childrearing, which Yoder, Meyer, Pierce and other cases have recognized as entitled to constitutional protection, long have been shared with grandparents or other relatives who occupy the same household -- indeed who may take on major responsibility for the rearing of the children. [Footnote 15] Especially in times of adversity, such as the death of a spouse or economic need, the broader family has tended to come together for mutual sustenance and to maintain or rebuild a secure home life. This is apparently what happened here. [Footnote 16]

Whether or not such a household is established because of personal tragedy, the choice of relatives in this degree

Page 431 U. S. 506

of kinship to live together may not lightly be denied by the State. Pierce struck down an Oregon law requiring all children to attend the State's public schools, holding that the Constitution "excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only." 268 U.S. at 268 U. S. 535. By the same token, the Constitution prevents East Cleveland from standardizing its children -- and its adults -- by forcing all to live in certain narrowly defined family patterns.

Moore v. City of East Cleveland
431 U.S. 494 (1977)
Thanks, this is very interesting and helpful for our situation!
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Old 08-12-2017, 05:33 PM   #20
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My kids lived with me for 18 years tax free. Guess I will have to go back and amend a few returns.
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