Chapter 1
Tax Deduction Basics for Landlords

How Landlords Are Taxed

     Income Taxes on Rental Income

     Income Taxes on Profits When You Sell Your Property

     Social Security and Medicare Payroll Taxes

     Net Investment Income Tax

     Property Taxes

How Income Tax Deductions Wor

     What Can You Deduct?

     How Your Tax Status Affects Your Deductions

     The Value of a Tax Deduction

How Property Ownership Affects Taxes

     Individual Ownership

     Ownership Through a Business Entity

     The Mini-Landlord: Renting Out a Room in Your Home

The IRS and the Landlord

     Automated Underreporter Program

     Six Tips for Avoiding an Audit

The tax code is full of deductions for landlords. Before you can start taking advantage of these deductions, however, you need a basic understanding of how landlords pay taxes and how tax deductions work. This chapter gives you all the information you need to get started, including:

     how the IRS taxes landlords

     how tax deductions work

     how forms of property ownership affect landlord taxes, and

     IRS audits—how they work and how to avoid them.

How Landlords Are Taxed

When you own residential rental property, you are required to pay the following taxes:

     income taxes on rental income and profits from property sales

     property taxes, and

     Social Security and Medicare taxes (for some landlords).

Let’s look at each type of tax.

Income Taxes on Rental Income

You must pay federal income taxes on the net income (rent and other money minus expenses) you receive from your rental property each year. When you file your yearly tax return, you add your net rental income to your other income for the year, such as salary income from a job, interest on savings, and investment income.

This book covers rental property deductions for federal income taxes. However, 43 states also have income taxes. State income tax laws generally track federal tax law, but there are some exceptions. The states without income taxes are Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming. For details on your state’s income tax law, visit your state tax agency’s website, or contact your local state tax office. You can find links to all 50 state tax agency websites at www.taxsites.com/state.html.

Income Taxes on Profits When You Sell Your Property

When you sell your property, any profit you earn is added to your income for the year and is subject to taxation. Profits from the sale of rental property owned for more than one year are taxed at capital gains rates. These rates are lower than income tax rates, except for taxpayers in the lowest tax brackets. (See Chapter 5 for an example of the tax effects of a rental property sale.)

However, you may be able to defer tax on your profits—perhaps indefinitely—by selling your property through a like-kind exchange (also called a Section 1031 exchange or tax-free exchange). This kind of exchange involves swapping your property for similar property owned by someone else. These property swaps are subject to complex tax rules that are beyond the scope of this book, since they have nothing to do with income tax deductions. For more information, see IRS Publication 544, Sales and Other Dispositions of Assets.

Social Security and Medicare Payroll Taxes

Everyone who works as an employee or who owns his or her own business must pay Social Security and Medicare payroll taxes. Employees pay half of these taxes themselves and their employers pay the other half. Self-employed people must pay them all themselves. These are two separate taxes:

Social Security tax. The Social Security tax is a flat 12.4% tax on net self-employment income or employee wages up to an annual ceiling, which is adjusted for inflation each year. In 2015, the ceiling was $118,500.

Medicare payroll tax. Medicare payroll taxes, which are used to fund the Medicare system, underwent significant changes in 2013 as part of the implementation of Obamacare. In the past, the Medicare payroll tax consisted of a single 2.9% flat tax with no annual income ceiling. Starting in 2013, however, there are two Medicare tax rates: a 2.9% tax up to an annual ceiling—$200,000 for single taxpayers and $250,000 for married couples filing jointly. All income above the ceiling is taxed at a 3.8% rate. Thus, for example, a single taxpayer with $300,000 in net self-employment income would pay a 2.9% Medicare tax on the first $200,000 of income and a 3.8% tax on the remaining $100,000. This 0.9% Medicare payroll tax increase applies to high-income employees as well as to the self-employed. Employees must pay a 2.35% Medicare tax on the portion of their wages over the $200,000/$250,000 thresholds (their one-half of 2.9% = 1.45% + plus the 0.9%).

For both the self-employed and employees, the combined Social Security and Medicare tax is 15.3%, up to the Social Security tax ceiling.

You may have to pay (and withhold) Social Security and Medicare taxes if you hire employees to work in your rental activity—for example, if you hire a resident manager. The employer’s share of such taxes is a deductible expense. (See Chapter 12.)

The income you earn from your rental property is not subject to Social Security and Medicare payroll taxes. (I.R.C. § 1402(a)(1).) This is so even if your rental activities constitute a business for tax purposes. (See Chapter 2.)  This is one of the great tax benefits of owning rental property. A person who owns a hot dog stand must pay the 15.3% self-employment tax on his or her annual profits, whereas a person who owns a rental house or other real estate need pay no self-employment taxes on his or her rental income.

There is one exception to this rule, which will not apply to many readers of this book: You must pay Social Security and Medicare taxes on rental income if you provide “substantial services” along with the rental. This exception would apply, for example, if you owned a boardinghouse, hotel, or motel and provided maid service, room service, or concierge services. The exception does not apply to services commonly provided for residential rentals, such as repairs, cleaning, maintenance, trash removal, elevators, security, or cable television.

In addition, if you qualify as a real estate dealer, you’ll have to pay Social Security and Medicare taxes on your annual profits. (See Chapter 2.)

Net Investment Income Tax

Starting with the 2013 tax year, a new Net Investment Income tax went into effect. This 3.8% tax will affect many higher-income landlords. For details, see Chapter 19.

Property Taxes

Property owners in all states pay property taxes imposed by cities, counties, and other local governments. They are a tax on the value of your rental property. Property taxes are not covered in this book.

How Income Tax Deductions Work

The tax law recognizes that you must spend money on your rental properties for such things as mortgage interest, repairs, maintenance, and many other expenses. The law allows you to subtract these expenses, plus an amount for the depreciation of your property, from your effective gross rental income (all the money actually earned from the property) to determine your “taxable income.” You pay income tax only on your taxable income, if any. Expenses you can deduct from your income are called tax deductions or tax write-offs. These deductions are what this book is about.

Although some tax deduction calculations can get a bit complicated, the basic math is simple: The entire tax regimen for rental real estate can be reduced to the following simple equation:

(People who analyze real estate investments don’t include mortgage interest as a real estate operating expense, but it is an operating expense for tax purposes.)

Example: Karen owns a rental house. This year, her effective gross rental income (all the income she actually earned from the property) was $10,000. She doesn’t pay tax on the entire $10,000 because she had the following expenses—$5,000 in mortgage interest, $1,000 for other operating expenses, and $2,000 for depreciation. She gets to deduct these as outlined in the above equation:

Karen only pays income tax on her $2,000 taxable income.

What Is Rental Income?

Your rental income consists primarily of the rent your tenants pay you each month. But it also includes:

Security deposits. If, when you receive a security deposit, you plan to use it for the tenant’s final rent payment, you should include it in your income for the year you receive it. However, do not include a security deposit in your income when you receive it if you plan to return it to your tenant at the end of the lease term. But if you keep part or all of the security deposit during any year because your tenant does not live up to the terms of the lease, include the amount you keep in your income in that year.

Interest earned on security deposits is also rental income that should be included in your income the year it is earned, unless your state or local law requires landlords to credit such interest to tenants.

Tenant property or services. Property or services you receive from a tenant, instead of money, as rent, must be included in your rental income. For example, your tenant is a painter and offers to paint your rental property instead of paying rent for two months. If you accept the offer, include in your rental income the amount the tenant would have paid for two months’ worth of rent.

Tenant payment of rental expenses. Any rental expenses paid for by a tenant are rental income—for example, payments a tenant makes to you for repairs, utilities, or other rental costs. These costs are then deductible by you as rental expenses.

Lease cancellation payments. If a tenant pays you to agree to cancel a lease, the amount you receive is rent that must be included in your rental income in the year you receive it.

Leases with option to buy. A lease with an option to buy occurs if the rental agreement gives your tenant the right to buy your rental property. The payments you receive under such an agreement are generally rental income.

Advance rent payments. Advance rent is any amount you receive before the period that it covers. Include advance rent in your rental income in the year you receive it regardless of the period covered. For example, to get you to agree to a one-year lease, a tenant with poor credit pays you six months’ rent in advance in December. You must include the entire amount as rental income the year it was received.

Fees. Fees or other charges tenants pay are also rental income. These include, for example:

   fees you charge tenants for paying rent late

   garage or other parking fees

   fees you charge tenants for use of storage facilities, and

   laundry income from washers and dryers you provide for tenants’ use.

Of course, real property ordinarily increases in value each year, often substantially. Your rental property appreciation is not rental income until you sell or otherwise dispose of your property. Any profit you earn on the sale or other disposition is taxable income.

Many landlords have so many deductions that they end up with a net loss when they subtract all their deductions from their effective gross rental income. In that situation, they owe no tax at all on their rental income. This is especially common in the early years of owning rental property, when you haven’t had time to raise the rents much. Indeed, it is common for landlords to have a loss for tax purposes even if they take in more in rental income than they pay in expenses each month.

Having a tax loss on your rental property is not necessarily a bad thing. You may be able to deduct it from other income you earn during the year, such as salary income from a job or income from other investments. However, there are significant restrictions on a landlord’s ability to deduct rental losses from nonrental income. Many small landlords can avoid them, but not all. These restrictions—known as the passive loss rules and at-risk rules—are covered in detail in Chapter 16.

What Can You Deduct?

All tax deductions are a matter of legislative grace, which means that you can take a deduction only if it is specifically allowed by one or more provisions of the tax law. You usually do not have to indicate on your tax return which tax law provision gives you the right to take a particular deduction. If you are audited by the IRS, however, you’ll have to provide a legal basis for every deduction you take. If the IRS concludes that your deduction wasn’t justified, it will deny the deduction and charge you back taxes and penalties.

Landlords can deduct three broad categories of rental expenses:

   start-up expenses

   operating expenses, and

   capital expenses.

This section provides an introduction to each of these categories (they are covered in greater detail in later chapters).

Keep track of your rental expenses. You can deduct only those expenses that you actually incur. You need to keep records of these expenses to know for sure how much you actually spent and prove to the IRS that you really spent the money you deducted on your tax return, in case you are audited. Accounting and bookkeeping are discussed in detail in Chapter 17.

Start-Up Expenses

The first money you will have to shell out will be for your rental activity’s start-up expenses. These include most of the costs of getting your rental business up and running, like license fees, advertising costs, attorney and accounting fees, travel expenses, market research, and office supplies expenses. Start-up expenses do not include the cost of buying rental property. If your rental activity qualifies as a business, up to $5,000 of start-up expenses may be deducted for the year in which they’re incurred. The remainder, if any, must be deducted in equal installments over the first 180 months you’re in business—a process called amortization. (See Chapter 8 for a detailed discussion of deducting start-up expenses.)

Operating Expenses

Operating expenses are the ongoing, day-to-day costs a landlord incurs to operate a rental property. They include such things as mortgage interest, utilities, salaries, supplies, travel expenses, car expenses, and repairs and maintenance. These expenses (unlike start-up expenses) are currently deductible—that is, you can deduct them all in the same year when you pay them. (See Chapter 3.)

Capital Expenses

Capital assets are things you buy for your rental activity that have a useful life of more than one year. A landlord’s main capital asset is the building or buildings he or she rents out. However, capital assets also include such things as equipment, vehicles, furniture, and appliances. These costs, called capital expenses, are considered to be part of your investment in your rental activity, not day-to-day operating expenses.

The cost of your capital assets must be deducted a little at a time over several years—a process called depreciation. Residential rental buildings are depreciated over 27.5 years. Capital assets other than real estate are depreciated over a much shorter period—for example, vehicles and furniture are depreciated over five years. The cost of land is not deductible—you must wait until land is sold to recover the cost. (See Chapter 5 for more on this topic.)

How Your Tax Status Affects Your Deductions

Owning rental property can be a business for tax purposes, an invest­ment, or, in some cases, a not-for-profit activity. Landlords whose rental activities qualify as a business are entitled to all the tax deductions discussed in this book. However, those whose rentals are an investment lose certain useful deductions, such as the home office deduction. Tax deductions are extremely limited for landlords who, in the eyes of the IRS, are operating a not-for-profit activity.

Your tax status is determined by how much time and effort you put into your rental activity, and whether you earn profits each year or act like you want to. Most landlords who manage their property themselves qualify as for-profit businesses. (See Chapter 2 for more on determining your tax status.)

The Value of a Tax Deduction

Most taxpayers, even sophisticated businesspeople, don’t fully appreciate just how they save with tax deductions. Only part of any deduction will end up back in your pocket as money saved. Because a deduction represents income on which you don’t have to pay tax, the value of any deduction is the amount of tax you would have had to pay on that income had you not deducted it. So a deduction of $1,000 won’t save you $1,000—it will save you whatever you would otherwise have had to pay as tax on that $1,000 of income.

To determine how much income tax a deduction will save you, you must first figure out your income tax bracket. The United States has a progressive income tax system for individual taxpayers with six different tax rates (called tax brackets), ranging from 10% of taxable income to 39.6% (see the chart below). The higher your income, the higher your tax rate will be.

You move from one bracket to the next only when your taxable income exceeds the bracket amount. For example, if you are a single taxpayer, you pay 10% income tax on all your taxable income up to $9,075. If your taxable income exceeds $9,225, the next tax rate (15%) applies to all your income over that amount—but the 10% rate still applies to the first $9,225. If your income exceeds the 15% bracket amount, the next tax rate (25%) applies to the excess amount, and so on until the top bracket of 39.6% is reached.

The tax bracket in which the last dollar you earn for the year falls is called your marginal tax bracket. For example, if you have $75,000 in taxable income, your marginal tax bracket is 25%. To determine how much federal income tax a deduction will save you, multiply the amount of the deduction by your marginal tax bracket. For example, if your marginal tax bracket is 25%, you will save 25¢ in federal income taxes for every dollar you are able to claim as a deductible business expense (25% × $1 = 25¢).

The following table lists the 2015 federal income tax brackets for single and married individual taxpayers.

Taxpayers who are subject to the Net Investment Income (NII) tax must add 3.8% to these tax rates. This applies only to taxpayers (1) whose adjusted gross income exceeds $200,000 if single, or $250,000 if married filing jointly, and (2) who have net investment income, which includes income and gains from rentals. Ordinarily, only taxpayers in the 33% and higher tax brackets are subject to this tax. See Chapter 19 for details about the NII tax.

You can also deduct your rental activity expenses from any state income tax you must pay. The average state income tax rate is about 6%, although seven states (Alaska, Florida, Nevada, South Dakota, Texas, Washington, and Wyoming) don’t have an income tax. You can find a list of all state income tax rates at www.taxadmin.org.

When you add up your savings in federal and state income taxes, you can see the true value of a tax deduction. For example, if you’re in the 25% federal income tax bracket, a deduction can be worth 25% (in federal income taxes) plus 6% (in state income taxes). That adds up to a whopping 31% savings. (If you itemize your personal deductions, your actual tax savings from a business deduction is a bit less because it reduces your state income tax and therefore reduces the federal income tax savings from this itemized deduction.) If you buy a $1,000 computer for your rental activity and you deduct the expense, you save about $310 in income taxes. In effect, the government is paying for almost one-third of your rental expenses. This is why it’s so important to know all the deductions you are entitled to take and to take advantage of every one.

You should get into the habit of thinking about your rental expenses in terms of after-tax dollars—what the item really costs you after you deduct the cost from your income taxes.

Don’t buy things just to get a tax deduction. Although tax deductions can be worth a lot, it doesn’t make sense to buy something you don’t need just to get a deduction. After all, you still have to pay for the item, and the tax deduction you get in return will cover only a portion of the cost. If you buy a $500 lawn mower to use for your rental properties, you’ll be able to deduct less than half the cost. That means you’re still out over $300—money you’ve spent for something you may not have needed. On the other hand, if you really do need a new lawn mower, the deduction you’re entitled to is like found money—and it may help you buy a better lawn mower than you could otherwise afford.

How Property Ownership Affects Taxes

How you own your residential rental property affects the tax returns you must file each year. The main ownership options for a small landlord are:

   sole proprietorship

   general partnership

   limited partnership

   limited liability company (LLC)

   corporation

   tenancy in common, or

   joint tenancy.

These can be sorted into two broad categories: individual ownership and ownership through a business entity. If you don’t know how you hold title to the rental property you already own, look at your property deed.

Individual Ownership

Most small landlords (owners of from one to ten residential rental units) own their property as individuals—either alone, or with one or more co-owners. Indeed, a government study found that individuals owned approximately 83% of the 15.7 million rental housing properties with fewer than 50 units. (Department of Housing and Urban Development and Department of Commerce, U.S. Census Bureau, Residential Finance Survey: 2001 (Washington, DC: 2005).)

One Property Owner

The simplest way to own rental property is for a single individual to own it in his or her own name. When you do this you are a sole proprietor for tax purposes. Any rental income you earn is added to your other income, such as salary from a job, interest income, or investment income. Losses you incur can be deducted from your other income, subject to the restrictions discussed in Chapter 16. You report your rental income and losses on IRS Schedule E and attach it to your individual tax return. (See Chapter 18 for a detailed discussion of Schedule E.)

Things are a bit more complex if you acquired the property while married and you live in one of the nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Although the rental is held in your name alone, unless you and your spouse agree otherwise, it will be jointly owned community property under your state’s marital property laws. However, for tax purposes, you may still treat the rental activity as a sole proprietorship with only one spouse listed as owner on Schedule E. (See “Spouses who live in community property states,” below.)

Co-Owners Not Married to Each Other

It’s not uncommon for two or more relatives, friends, or colleagues to own rental property together. If you acquire the property with one or more co-owners, you don’t necessarily have to form a separate business entity like a partnership, limited liability company, or corporation to own and operate it. Instead, for tax purposes, each owner can in essence be treated like a sole proprietor. This can be accomplished where co-owners take title to the property together as tenants in common or, more rarely, joint tenants. (See “Co-Ownership by Spouses,” below, for the difference between the two.) Each co-owner owns an undivided interest in the entire property. In the case of a tenancy in common, the interests can be equal or divided in unequal amounts; whatever the owners agree upon. The ownership interest of each owner should be listed on the property deed.

EXAMPLE: Al and Alice, brother and sister, buy a rental house together, taking title as tenants in common. They decide that because Al put more money down on the property, he should own
a 60% interest and Alice 40%. This means that Al is legally entitled to 60% of the income the property generates and is supposed to pay 60% of the expenses. Alice gets the remaining 40%.

Although they own rental property together, each cotenant is treated like a sole proprietor for tax purposes. Each cotenant reports their share of the income and deductions from the rental property on their own tax return, filing Schedule E. Each owner’s share is based on his or her ownership interest—for example, Alice in the example above lists her 40% share of the income and deductions from the co-owned rental house on her Schedule E and pays tax on that amount. Al lists the other 60% on his own Schedule E.

If one cotenant pays more than his or her proportionate share of the expenses, the overpayment is treated as a loan to the other cotenants and may not be deducted. The cotenant who overpays is legally entitled to be reimbursed by the other cotenants. (T.C. Memo 1995-562.)

EXAMPLE: Alice from the example above pays 80% of the annual expenses for the rental house this year, instead of the 40% she should pay based on her ownership interest. She may not deduct her overpayment, which amounts to $10,000. Instead, it is treated as a loan to her cotenant Al. Alice is entitled to be repaid the $10,000 by Al. If he doesn’t pay, she can sue him to collect. If he does pay, he can deduct the amount as a rental expense.

Are cotenants partners? The type of cotenancy described above may seem like a partnership, but it’s really not. Unlike in a partnership, a cotenant cannot act or contract on behalf of the other cotenants without their authorization. Moreover, one cotenant is not liable for any debts incurred by another cotenant without his or her consent. Each tenant in common may lease, mortgage, sell, or otherwise transfer all or part of his or her interest without obtaining consent from the other cotenants, or even telling them about it. This power to transfer property also applies upon the death of a tenant in common. It’s often desirable, but not required, that the co-owners enter into a written cotenancy agreement.

Not being in a partnership can save time and expense. Filing a partnership tax return and dealing with complex partnership tax laws is not easy. If you are a partnership, here is what you’re supposed to do:

   complete and file Form 1065, Return of Partnership Income, reporting all the partnership’s income, deductions, gains, and losses

   complete a Schedule K-1 for each partner showing his or her share of the partnership’s income or loss

   transfer the Schedule K-1 information onto a Schedule E, Supplemental Income or Loss, for each partner

   complete a Schedule SE for each partner, listing his or her share of partnership income as self-employment income, and

   transfer the data from the individual schedules onto the joint Form 1040.

Obviously, this requires a lot of time and money—tax pros can charge $1,000 or more to prepare partnership returns.

Co-owners who provide services to tenants. IRS regulations provide that tenants in common or joint tenants do not become partners in a partnership as long as all they do is own rental property together and merely maintain, repair, and rent it. (IRS Reg. § 1.761-1(a), IRS Reg. § 301.7701(a)(2).) See also IRS Publication 541, Partnerships: “co-ownership of property maintained and rented or leased is not a partnership unless the co-owners provide services to the tenants.”

However, the tax situation changes if co-owners of a rental property provide significant services to their tenants. In this event, the IRS will consider them partners in a partnership for tax purposes.

Significant services do not include furnishing heat and light, cleaning of public areas, normal repairs, trash collection, or similar services. Instead, they are services that primarily benefit the tenants personally, such as maid service, linen changing, food service, or concierge services. (IRS Reg. § 301.7701-1(b); Rev. Rul. 75-374.) Providing occasional cleaning or concierge services would probably not constitute significant services. Would providing tenants with an Internet connection or cable TV constitute significant services? It’s unclear.

If co-owners are deemed to be partners in a partnership, the partnership must file a partnership tax return (unless they are married and elect qualified joint venture status—see “Co-Ownership by Spouses,” below). The individual or partnership members are each given a Schedule K-1 by their partnership reporting their individual shares of annual income or loss from the rental activity. The individuals then list this amount in Part II of Schedule E, on page 2. This doesn’t increase or decrease the owners’ deductions but it does result in a more complex tax return.

Co-Ownership by Spouses

Spouses who own rental property together typically take title as joint tenants—rather than tenants in common. Joint tenants are treated exactly the same as tenants in common for tax purposes, but there are significant nontax differences. Joint tenants must own the property 50- 50. In addition, joint tenancy always includes “the right of survivorship.” When one joint tenant dies, his or her share automatically goes to the survivor. This is not the case with tenants in common, who can leave their share of the co-owned property to anyone they want. Unmarried people can also be joint tenants, but this isn’t commonly done.

If a married couple that jointly owes rental property files a joint income tax return, as most do, they are treated as a single taxpayer by the IRS. The spouses’ shares of the income and deductions from the rental property are combined on their single joint tax return. The couple reports their income and deductions from the jointly owned property on a single Schedule E they file with their joint return.

Are co-owner spouses partners in a partnership? Like other co-owners of rental property, spouses who are landlords of property they own together are ordinarily not considered partners in a partnership as long as all they do is maintain, repair, and rent their property. However, spouses who provide significant services to their tenants will be viewed as partners in a partnership by the IRS. (See “Co-owners who provide services to tenants,” above.) This means they would have to file a partnership tax return—unless they can elect joint venture status.

Electing qualified joint venture status to file Schedule C. To avoid having to file a partnership tax return, spouses who provide significant services to their tenants can elect to be taxed as a “qualified joint venture.” When this is done, both spouses are treated as sole proprietors of a Schedule C business for tax purposes. They each file an IRS Schedule C, Profit or Loss From Business, with their joint return.

This election is available only where the spouses own the rental property as individuals in their own names. It may not be made when the activity is held in the name of a state law business entity such as a partnership or LLC.

To qualify for qualified joint venture status, the spouses must share all their rental income, losses, deductions, and credits according to their ownership interest in the property. If, as is usually the case, each spouse owns 50% of the property, they equally split their rental income or loss on their Schedules C.

In addition, the spouses must:

   be the only owners of the activity

   file a joint return

   both elect not to be treated as a partnership, and

   both materially participate in the business.

 Material participation is determined by the same rules as those used to determine whether real estate owners qualify as real estate professionals for purposes of the passive activity loss (PAL) rules. This means that each spouse must be involved with their business’s day-to-day operations on a regular, continuous, and substantial basis. Working more than 500 hours in the business during the year meets this requirement. So does working over 100 hours if
no one else worked more, or doing substantially all the work for the activity. (See “Material Participation Test” in Chapter 16 for a detailed discussion.)

In addition, the IRS says that married couples cannot make a qualified joint venture election if the business is owned and operated through a state law entity—this includes a partnership, limited liability company, limited liability partnership, or corporation. Thus, you cannot make this election if you’ve formed an LLC or corporation to own and run the business.

If you qualify, you and your spouse elect this status simply by filing a joint IRS Form 1040 with the required Schedules C. Once you elect this status, it cannot be revoked without IRS approval.

Electing qualified joint venture status to file Schedule E. The instructions to Schedule E provide that spouses whose rental activity constitutes a business for reasons other than providing their tenants with services may also elect qualified joint venture status. The same requirements discussed above must be satisfied. In this event, the co-owner spouses file one Schedule E to report their income and expenses from the rental property. However, each spouse must report his or her interest as separate properties on Schedule E. There is a special box to check on Schedule E to elect qualified joint venture status. (See Chapter 18 for a detailed discussion of Schedule E.)

It’s not entirely clear when this election is necessary. The IRS regulations discussed above make clear that it is not necessary if the spouses merely maintain, repair, and rent out their property—this activity is not a partnership for tax purposes. There must be something more that makes the activity a partnership business—something other than providing services. What this is remains unclear. But, spouses who want to ensure that their rental activity is viewed as a business by the IRS may wish to make this election if they meet the requirements. It costs nothing. The spouses will have to split their rental income and expenses between them for each rental property when they file their sole Schedule E.

Spouses who live in community property states. There are some special rules for co-owner spouses who live in community property states. There are nine such states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

If you live in one of these states, you and your spouse will auto­matically be co-owners of any rental property you acquire while you’re married, unless you agree otherwise. Like married people in noncommunity property states, spouses in community property states ordinarily take title to their real property as joint tenants. However, they may take title as tenants in common instead, if they wish; or just one spouse may be named on the deed as owner.

The IRS says that spouses in community property states may treat their rental activity either as a sole proprietorship (technically, a “disregarded entity”) or a partnership. Either one is fine. If sole proprietorship status is selected, they would file one Schedule E and would not have to allocate their rental income and expenses between themselves. All they need do to elect this status is file their one Schedule E. They do not need to elect qualified joint venture status to avoid having to file a partnership return. (Rev. Proc. 2002-69 (10/9/2002).)

Ownership Through a Business Entity

Instead of owning your rental property in your own name, you can form a business entity to own it, and own all or part of the entity.

Example: Vicki and Victor, a married couple, own a small apartment building. Instead of taking title in their own names as joint tenants, they form a limited liability company (LLC). The LLC owns the building and they, in turn, own the LLC.

The tax deductions available from rental property are the same whether you own it in your own name or through a business entity.

This section provides only the briefest possible introduction to business entities. To learn more, refer to LLC or Corporation? How to Choose the Right Form for Your Business, by Anthony Mancuso (Nolo).

Types of Entities

There are several different business entities that can own rental property:

Partnerships. A partnership is a form of shared ownership and management of a business. The partners contribute money, property, or services to the partnership; in return, they receive a share of the profits it earns, if any. The partners jointly manage the partnership business. Although many partners enter into written partnership agreements, no agreement is required to form a partnership. A partnership can hold title to real estate and other property.

Limited partnerships. A limited partnership is a special type of partner­ship that can only be created by filing limited partnership documents with your state government. It consists of one or more general partners who manage the partnership and any number of limited partners who are passive investors—they contribute money and share in the partner­ship’s income (or losses) but do not actively manage the partnership business. Limited partnerships are especially popular for real estate projects that are owned by multiple investors.

Corporations. A corporation can only be created by filing incorporation documents with your state government. A corporation is a legal entity distinct from its owners, who are called shareholders. It can hold title to property, sue and be sued, have bank accounts, borrow money, hire employees, and perform other business functions. For tax purposes, there are two types of corporations: S corporations (also called small business corporations) and C corporations (also called regular corporations). The most important difference between the two types of corporations is how they are taxed. An S corporation pays no taxes itself—instead, its income or loss is passed on to its owners, who must pay personal income taxes on their share of the corporation’s profits. A C corporation is a separate taxpaying entity that pays taxes on its profits. C corporations are rarely used to own rental property.

Limited liability companies. The limited liability company (LLC) is like a sole proprietorship or partnership in that its owners (called members) jointly own and manage the business and share in the profits. However, an LLC is also like a corporation because its owners must file papers with the state to create the LLC and it exists as a separate legal entity.

Tax Treatment of Business Entities

Partnerships, limited partnerships, LLCs, and S corporations are all pass-through entities. A pass-through entity does not pay any taxes itself. Instead, the business’s profits or losses are passed through to its owners, who include them on their own personal tax returns (IRS Form 1040). When a profit is passed through to the owner, the owner must add that money to any income from other sources, and pay tax on the total amount. If a loss is passed through to the owner, he or she can deduct it from other income, subject to the restrictions on deducting rental losses discussed in Chapter 16. Because pass-through taxation permits property owners to deduct losses from their personal taxes, it is considered the best form of taxation for real estate ownership.

Although pass-through entities don’t pay taxes, their income and expenses must still be reported to the IRS as follows:

Partnerships and limited partnerships. These must file an annual tax form with the IRS (Form 1065, U.S. Return of Partnership Income). Form 1065 is used to report partnership revenues, expenses, gains, and losses. The partnership must also provide each partner with an IRS Schedule K-1, Partner’s Share of Income, Deductions, Credits, etc., listing the partner’s share of partnership income and expenses (copies of these schedules must also be attached to IRS Form 1065). The partners must then file IRS Schedule E, Supplemental Income and Loss, with their individual income tax returns, showing the income or losses from all the partnerships in which they own an interest. Partners complete the second page of Schedule E, not the first page, which individuals use to report their income and deductions from rental property. (See Chapter 18.)

S corporations. These entities must file information returns with the IRS on Form 1120-S, U.S. Income Tax Return for an S Corporation, showing how much the business earned or lost and each shareholder’s portion of the corporate income or loss. (An information return is a return filed by an entity that doesn’t pay any taxes itself. Its purpose is to show the IRS how much tax the entity’s owners owe.) Like partners in a partnership, the shareholders must complete the second page of Schedule E, showing their shares of the corporation’s income or losses, and file it with their individual tax returns.

LLCs. LLCs with only one member are ordinarily treated like a sole proprietorship for tax purposes. The member reports profits, losses, and deductions from rental activities on Schedule E. An LLC with two or more members is treated like a partnership for tax purposes, except in the unusual situation where the owners choose to have it treated like a C or S corporation. However, an LLC owned by just one person is treated as a “disregarded entity” for tax purposes. This means that the single LLC owner is treated the same as a sole proprietor.

Landlords who own their properties through business entities don’t use individual Schedule Es to report their rental income or losses. Instead, the partnership, limited partnership, LLC, or S corporation files IRS Form 8825, Rental Real Estate Income and Expenses of a Partnership or an S Corporation, to report the income and deductions from the property owned by the entity. This form is very similar to Schedule E.

Why Form a Business Entity?

The primary reason small landlords form business entities to own their property has nothing to with taxes. Rather, they use business entities to attempt to avoid personal liability for debts and lawsuits arising from rental property ownership.

Forming a business entity may help show your rental activity is a business. Another reason to form a business entity that may be more important now than it was in the past is to help establish that the rental activity is a business for tax purposes, not an investment activity. Qualifying as a business provides a landlord with many benefits. (See “Business Owner Versus Investor” in Chapter 2.) Moreover, real estate professionals whose rental activities qualify as a business can completely avoid the 3.8% Net Investment Income tax that went into effect in 2013. (See Chapter 19.)

When you own rental property in your own name, alone or with co-owners, you are personally liable for all the debts arising from the property. This means that a creditor—a person or company to whom you owe money for items you use in your rental activity—can go after all your assets, both business and personal. This may include, for example, your personal bank accounts, your car, and even your house. Similarly, a personal creditor—a person or company to whom you owe money for personal items—can go after your rental property. The main creditor that rental property owners worry about is the bank or some other financial institution from which they have borrowed money to purchase their property. If they default on their loan, they could be personally liable for the debt. (However, this isn’t always the case. It depends on the nature of your loan and how your state law deals with real estate foreclosures.)

If you own property in your own name, you’ll also be personally liable for rental-related lawsuits—for example, if someone slips and falls at your rental property and sues for damages.

In theory, limited partnerships, LLCs, and corporations provide their owners with limited liability from debts and lawsuits. (Only the limited partners in a limited partnership have limited liability. General partners are personally liable for partnership debts and lawsuits.) Limited liability means that you are not personally liable for the debts incurred by your business entity, or for lawsuits arising from its ownership of rental property. Thus, your personal assets are not at risk; at most, you’ll lose your investment in the business entity (which, of course, is often substantial).

In real life, however, limited liability is often hard to come by, even when you form a business entity. Lenders may require small landlords who form business entities to personally guarantee any loans their entities obtain to purchase property. This means the landlord will be personally liable if there is a default on the loan. In addition, you’ll always be personally liable if someone is injured on your property due to your personal negligence. For example, if someone slips and falls on your property, they can sue you personally by claiming your own negligence caused or contributed to the accident. This is so even though your property is owned by a business entity, not you personally. You can far more effectively protect yourself from such lawsuits by obtaining liability insurance for your rental property. The cost is a deductible rental expense. (See Chapter 14.)

However, if you’re dead set on owning your rental property through a business entity, the entity of choice is the LLC. It provides the same degree of limited liability as a corporation, while also giving its owners pass-through taxation—the most advantageous tax treatment for real property. As a result, LLCs have become very popular among real property owners in recent years.

Out of an abundance of caution (or paranoia), some landlords set up a separate LLC for each rental property they own. However, this can be expensive, especially in states that make LLCs pay minimum annual taxes or fees, no matter how much money they earn. For example, LLCs in California must pay $800 per year. Thus, if you set up five California LLCs to own five buildings, you’d have to pay $4,000 in fees every year—even if your rental activates incurred losses. Again, you’d probably be better off spending the money on rental property insurance.

For detailed guidance about LLCs, refer to Form Your Own Limited Liability Company, by Anthony Mancuso (Nolo).

The Mini-Landlord: Renting Out a Room in Your Home

If you rent out a room in your home, the tax deductions and other tax rules discussed in this book apply to you in the same way as they do for landlords who rent out entire properties. There is one big difference however: You must divide certain expenses between the part of the property you rent out and the part you live in, just as though you actually had two separate pieces of property.

You can fully deduct (or, where applicable, depreciate) any expenses just for the room you rent—for example, repairing a window in the room, installing carpet or drapes, painting the room, or providing your tenant with furniture (such as a bed). In addition, if you pay extra homeowners’ insurance premiums because you’re renting out a room, the full cost is a deductible operating expense. If you install a second phone line just for your tenant’s use, the full cost is deductible as a rental expense. However, you cannot deduct any part of the cost of the first phone line even if your tenant has unlimited use of it.

Expenses for your entire home must be divided between the part you rent and the part you live in. This includes your payments for:

   mortgage interest

   repairs for your entire home—for example, repairing the roof or furnace, or painting the entire home

   improvements for your entire home—for example, replacing the roof

   homeowners’ insurance

   utilities such as electricity, gas, and heating oil

   housecleaning or gardening services for your whole home

   trash removal

   snow removal costs

   security system costs, and

   condominium association fees.

You can also deduct depreciation on the part of your home you rent.

You can use any reasonable method for dividing these expenses. It may be reasonable to divide the cost of some items (for example, water) based on the number of people using them. However, the two most common methods for dividing an expense are either based on the number of rooms in your home or based on the square footage of your home.

Example 1: Jane rents a room in her house to a college student. The room is 10 × 20 feet, or 200 square feet. Her entire house has 1,200 square feet of floor space. Thus, one-sixth, or 16.67% of her home is rented out. She can deduct as a rental expense one-sixth of any expense that must be divided between rental use and personal use.

Example 2: Instead of using the square footage of her house, Jane figures that her home has five rooms of about equal size, and she is renting out one of them. She determines that one-fifth, or 20%, of her home is being rented. She deducts 20% of her expenses that must be divided between rental and personal use.

As the examples show, you can often get a larger deduction by using the room method instead of the square footage of your home. This is discussed in greater detail in the chapter on the home office deduction (Chapter 9).

We hope you enjoyed this material. The rest of this chapter is available when you purchase the book.