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The first good news is that you can be both real estate investor and real estate dealer with respect to your real estate portfolio.

The next good news is that you are in control, and by knowing just a few rules about dealer and investor classifications, you can do much to increase your net worth.

Profits on dealer sales are generally subject to taxes at both ordinary income rates of up to 37 percent, and self-employment rates of up to 14.13 percent. Profits on investor sales are taxed at tax-favored capital gains rates of 20 percent or less, and not subject to self-employment taxes.

Let’s take a quick look at how big a difference you can make in the tax bite. Say you have a $90,000 profit on the sale of a property.

• Dealer taxes could be as high as $46,017.
• Investor taxes could be as high as $18,000.

The investor potentially saves a whopping $28,017 in taxes.

You, the individual taxpayer, can be both a dealer and an investor! The law does not cut you in half or anything. No, the law simply looks at each property in its respective light.

But you need to make the light shine on your properties by making a clear distinction in your books and records as to which properties are investment properties and which are dealer properties.

Should you fail to make the distinction, you place yourself at the mercy of the IRS. (The word “mercy” does not exist in the tax code, so expect a very unhappy result if you rely on mercy.)

The courts look at your intent in buying and holding the property. Your books and records help establish that intent.

Dealer property is property you hold for sale to customers in the ordinary course of a trade or business. The more properties you buy, and the more properties you sell during a calendar year, the greater the chances that you are a dealer with respect to those properties.

Properties that you buy, fix up, and sell generally are dealer properties.

Also, properties that you subdivide have a great chance of being dealer property, except when those subdivisions are done under the very limited rules of Section 1237.

Unlike with dealer property, where the dealer’s principal purpose for owning the property is to sell it to customers in the ordinary course of business, the investor’s purpose in owning property is to

• have it appreciate in value, and/or
• produce rental income.

Each property stands alone with respect to its status as a dealer or an investor property.

Thus, you (the individual taxpayer) or your corporation may own both dealer and investor properties. If you have both types of properties, make a clear distinction in your books and records as to which properties are investment properties and which are dealer properties.

Although we’ve given you the basics, this is not an all-inclusive article. Should you have questions, or need business tax preparation, business entity creation, business insurance, or business compliance assistance please contact us online, or call our office at 855-743-5765. Make sure to join our newsletter for more tips on reducing taxes, and increasing your wealth.

*** ATTENTION LANDLORDS****** Are you buying new appliances for your rental? Make sure to keep the amount per appliance under $2,500, or under $5,000 (with applicable financial statements) so that you can use the de minimis safe harbor election. Using the De minimis safe harbor election allows you to deduct the cost of the appliances as an expense (aka immediate deduction), rather than having to capitalize (aka dragging the deduction out) the cost. Combining the De minimis safe harbor elections along with Section 179, & Section 168 will yield you great tax deductions and LOWER YOUR TAX LIABILITY.

Please note: There are RULES that need to be followed, so it is imperative that you work with a credentialed tax professional that can prepare your returns. You can also choose the DIY (do it yourself) method, and then pay a credentialed tax professional for tax resolution services. Tax resolution work pays more, so your professional will thank you.

Although we’ve given you the basics, this is not an all inclusive article. Should you have questions, or need business tax preparation, business entity creation, business insurance, or business compliance assistance please contact us online, or call our office at 855-743-5765. Make sure to join our newsletter for more tips on reducing taxes, and increasing your wealth.

Tax reform made many good changes in the tax law for the small-business owner. But the changes to the net operating loss (NOL) deduction rules are not in the good-changes category. They are designed to hurt you and put money in the IRS’s pocket.

Now, if you have a bad year in your business, the new NOL rules are designed to stop you from using your business loss to find some immediate cash. The new (let’s call them bad-for-you) rules certainly differ from the prior beneficial rules.

Old NOL Rules

You have an NOL when your business deductions exceed your business income in a taxable year. Before tax reform, you could carry back the NOL to prior tax years and get refunds of taxes paid in those prior years.

Alternatively, you could have elected to waive the NOL carryback and instead carry forward the NOL to offset some or all of your taxable income in future tax years.

New NOL Rules

Tax reform made two key changes to the NOL rules:

1. You can no longer carry back the NOL (except for certain qualified farming losses).
2. Your NOL carryforward can offset only up to 80 percent of your taxable income in a tax year.

The changes put more money in the IRS’s pocket by

• eliminating your ability to get an immediate tax benefit from your NOL carryback, and
• delaying your ability to get tax benefits from future NOL carryforwards.

We are bringing the NOL rules to your attention in case you need to do some planning with us. We likely have some strategies that can help you realize some immediate benefits from your business loss.

Although we’ve given you the basics, this is not an all inclusive article. Should you have questions, or need business tax preparation, business entity creation, business insurance, or business compliance assistance please contact us online, or call our office at 855-743-5765. Make sure to join our newsletter for more tips on reducing taxes, and increasing your wealth.

Taking a loss on any business hurts, no question—but at least you get that immediate tax deduction, right? Not necessarily. And the “not necessarily” is more true when you incur that business loss on your second or third business.

Here’s the culprit: When you operate a business, you have to materially participate to deduct the losses[1]. As you create more businesses, you can, and often do, reduce your chances of passing the material participation tests.

The material participation tests generally require that you spend a certain number of hours working in the business. Your primary business likely takes most of your time, meaning you have less or perhaps little time to devote to the second or third business. This article gives you several tactics that help you avoid the mistakes that can cost you loss deductions for your second and third businesses.

Multiple Businesses, Multiple Traps

Rev. Rul. 81-90 notes that you must file a separate small business Schedule C for each of your sole proprietorship businesses which includes home based businesses, and 1 member LLC’s. If you fail to file separate Schedule Cs for your small home based business, small business, or proprietorship businesses, you trigger possible penalties for negligence or intentional disregard of rules and regulations.[2]

The failure to file separate Schedule Cs for separate proprietorship’s also triggers possible penalties for your tax preparer.

The Passive Loss Trap

If you don’t pass one of the material participation tests for a business activity and that activity shows a tax loss, the tax code makes that loss a “passive loss,” and this means you can

• deduct the passive loss only against your passive income,
• carry forward any unused passive losses to future years, and
• claim the unused passive losses when you dispose of the entire business activity.

Special passive loss rules apply to rental properties. We don’t discuss the special rental property rules in this article because the focus of this article is on a second or third business. We’re also not talking hobbies, as they face a set of their own ugly rules.

Now to the businesses at hand: you need to “materially participate” in a business to deduct the business losses against your total income from all sources.

Proving Material Participation in a Second Business Activity

The IRS has seven tests for business material participation. In six of the seven tests, the IRS looks at the time you spend on the business activity. For the taxable year, you need to satisfy only one of the seven tests below to prove you materially participated in the business activity.[3]

• You participated for more than 500 hours.
• Your participation represents substantially all participation in the business.
• You participated for more than 100 hours, and your participation is equal to or greater than the participation of any other individual.
• The business activity is a significant participation activity, and your aggregate participation in all significant participation activities exceeded 500 hours.
• You materially participated in the business activity for any five (whether consecutive or not) of the 10 immediately preceding taxable years.
• The business activity is defined by tax law as a “personal service activity” in which you materially participated for any three taxable years (whether consecutive or not) prior to this year.
• Based on all the facts and circumstances, you participated in the business activity on a regular, continuous, and substantial basis during the year

“Participation” includes any time you spend working in connection with the business, except:[4]

• You can’t count time you spend as an investor (for example, reviewing financial statements or operations reports) unless you’re directly involved in the business’s day-to-day management or operations.
• You can’t count time you spend doing work that isn’t customarily done by the owner if one of your main reasons for doing the work is to avoid the passive loss rules.

Your spouse’s time counts too. You can count the time your spouse spends on the business as time you spend, even if he or she doesn’t have an ownership interest in the business.[5]

Time Log
What the IRS regulations say. You may establish your participation in a business by “any reasonable means.”[6] You aren’t required to have contemporaneous daily time logs if you can use your appointment books, calendars, or other narrative summaries to identify services performed over a period of time, including the approximate number of hours spent on those services.[7]

The real world. If there is going to be anything near a close call on the time needed for material participation, you need to keep a daily time log. Taxpayers without a daily time log consistently lose both to the IRS and in court.

Although we’ve given you the basics, this is not an all inclusive article. Should you have questions, or need business tax preparation, business entity creation, business insurance, or business compliance assistance please contact us online, or call our office at 855-743-5765. Make sure to join our newsletter for more tips on reducing taxes, and increasing your wealth.

[1] IRC Section 469.

[2] Rev. Rul. 81-90.

[3] Reg. Section 1.469-5T(a).

[4] Reg. Section 1.469-5T(f)(2).

[5] Reg. Section 1.469-5T(f)(3).

[6] Reg. Section 1.469-5T(f)(4).

[7] Ibid.